Pilot Freight Carriers, Inc.

PILOT FREIGHT CARRIERS, INC 341 Pilot Freight Carriers, Inc. and Theresa Gallitzin. Case 8-CA-8648 June 2, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND WALTHER On February 28, 1975, Administrative Law Judge James V Constantine issued the attached Decision in this proceeding Thereafter, the Respondent and the General Counsel filed exceptions The General Counsel filed a supporting brief 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith Respondent is charged with violating Section 8(a)(3) and (1) of the Act by discharging Theresa Gallitzin because she refused to cross a picket line Respondent claims that her discharge was justified under the provisions of the collective-bargaining agreement it has with Teamsters Local 497, of which Gallitzin is a member The Administrative Law Judge agreed with Respondent and dismissed the complaint in its entirety We disagree with the Ad- ministrative Law Judge Respondent operates terminals providing inter- state transportation throughout the United States The two terminals pertinent to the instant proceeding are located in West Richfield, Ohio, the site of the present dispute, and Jacksonville, Florida In Febru- ary 1974,1 Local 512 which represents employees at the Jacksonville terminal, commenced a strike against Respondent there The Board subsequently found that the strike by Local 512 against Respondent's Jacksonville operations was an unfair labor practice strike That strike was initiated as a result of Respondent's unlawful discharge of an em- ployee in violation of Section 8(a)(3), and by Respondent's refusal to bargain with Local 512 in violation of Section 8(a)(5) 2 In early March, Local 512 set up a picket line at the West Richfield terminal All the office clericals, including Gallitzin, and the majority of drivers and dockmen honored the Local 512 picket line It was 1 All dates are 1974 unless specifically stated otherwise 2 Pilot Freight Carriers, Inc, 223 NLRB 286 (1976) stipulated at the hearing that Gallitzin refused to cross the picket line and engaged in such picketing on behalf of Local 512 On June 14, Gallitzin and another office clerical 3 were terminated by Respon- dent The notice of termination stated that she had been discharged in accordance with article 9, section 10, of Local 497's agreement with Respondent Article 9 contains provisions governing the griev- ance procedure Sections 9 and 10 provide that there shall be no strikes or any other cessation of work during the processing of a grievance, except that the Union has the right to authorize a work stoppage if it notifies the Employer 24 hours before the com- mencement thereof Failure to so notify results in the work stoppage being unauthorized The employer has the right to discharge an employee 24 hours after the beginning of any unauthorized work stoppage A further provision of the contract pertinent to the proceeding herein is article 20, entitled "Protection of Rights" It shall not be a violation of this Agreement and shall not be cause for discharge if any employee refuses to go through a primary picket line rec- ognized by Teamsters Joint Council No 41 In dismissing the complaint, the Administrative Law Judge found that Gallitzin's refusal to work constituted an unauthorized cessation of work pro- hibited by article 9, section 10 The Administrative Law Judge therefore concluded that her discharge was lawful under the contract He noted in particular that there was no evidence that Local 497 authorized the work stoppage, or that Respondent received any notice of the stoppage as required by article 9, sec- tion 10 ° In his exceptions, the General Counsel claims that article 9, section 10, is not the applicable contract provision, because that section pertains to strikes during the pendency of grievances between the Re- spondent and Local 497, and there was no such grievance herein The General Counsel contends that article 20, which deals with sympathy strikes, is the pertinent contract provision The General Counsel argues that sympathy strikes are outside the scope of the no-strike clause in article 9, so that Gallitziri could not be discharged under that section for engag- ing in a sympathy strike According to the General Counsel, the conduct engaged in by Gallitzin on be- half of Local 512 was protected by article 20 We agree with the General Counsel that Gallitzin 3 The other clerical is not a party to this proceeding ° The Boards decision in the Local 512 case, supra, In 2, issued after the Administrative Law Judge's Decision in the present case At the hearing the Administrative Law Judge rejected the General Counsels contention that he should receive evidence as to the nature of the Local 512 strike or take judicial notice of the Administrative Law Judge's findings in that case with respect to the strike 224 NLRB No 46 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was unlawfully discharged, and that article 20 of the contract relates to her situation However, in reach- ing our decision, we are of the opinion that, as a practical matter, the application of either article 9 or article 20 would not alter the final results herein As a striker in sympathy for Local 512's cause, Gallitzin assumed the status of the Local 512 unfair labor practice strikers 5 In view of her protected status as an unfair labor practice striker, and considering the seriousness of the unfair labor practices which prompted the underlying strike by Local 512, we find that, even assuming that evidence of notice to Re- spondent by Local 497 as required by article 9 and evidence of recognition by the Joint Council as re- quired by article 20 are lacking, Gallitzin's activity remains protected under both the majority and mi- nority views expressed in Arlan's Department Store of Michigan Inc,' and that her discharge was therefore in violation of Section 8(a)(3) and (1) of the Act THE REMEDY We have found, contrary to the Administrative Law Judge, that Respondent engaged in certain un- fair labor practices in violation of Section 8(a)(3) and (1) of the Act by discharging Theresa Gallitzin on June 14, 1974, for engaging in protected activities In our opinion, it is necessary in order to effectuate the purposes of the Act that Respondent be ordered to cease and desist from engaging in such unfair labor practices and to reinstate Theresa Gallitzin to her former job, or, if such job no longer exists, to a sub- stantially equivalent position, with backpay We shall order Respondent to make her whole for any loss of earnings she may have earned absent the discrimina- tion against her by payment of a sum equal to that she normally would have earned, from the date of the discrimination to the date Respondent offers her reinstatement, less her net earnings for that period Backpay shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289 (1950), 5 See Hoffman Beverage Company, 163 NLRB 981 (1967) 6 133 NLRB 802 (1961) The view of the majority in Arlan s was that only strikes in protest against serious unfair labor practices should be held im- mune from a general no-strike clause "Serious" was read to mean destruc- tive of the foundation on which collective bargaining must rest which were the words used by the Supreme Court in Mastro Plastics Corp, and French American Reeds Mfg Co, Inc v N L R B 350 U S 270 281 (1956) Surely it cannot be denied that an unlawful discharge and an unlawful refusal to bargain are such serious matters that a strike in protest of or in support against such practices should be, and is, protected, even in the face of any injunction against primary or sympathy strikes contained in articles 9 and 20, respectively Member Fanning, in expressing the minority viewpoint in Arlan's, placed emphasis on the scope and coverage of the no-strike clause not on the degree and kind of unfair labor practices which may be involved In his view, such a clause would not bar a strike if the subject matter of the strike was outside the scope of the contract The issue over which Gallitzin ceased work was unfair labor practices directed at employees represented by Local 512, and such issue was not cognizable under Local 497's contract with interest added thereto as set forth in Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1 Pilot Freight Carriers, Inc, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Teamsters Local Union 497 and Teamsters Lo- cal Union 512, both affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act 3 By discharging Theresa Gallitzin for engaging in protected concerted activities, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 4 The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Pi- lot Freight Carriers, Inc, West Richfield, Ohio, 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 7 of the Act, and discriminating in regard to hire, tenure, and other conditions of employment by dis- charging employees because they engaged in protect- ed concerted activities (b) In any other manner interfering with, restrain- ing, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act 2 Take the following affirmative action (a) Offer to Theresa Gallitzin immediate and full reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay which she may have incurred by reason of Respondent's discrimination against her in the man- ner described in "The Remedy" section of this Deci- sion (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at its place of business in West Richfield, PILOT FREIGHT CARRIERS, INC 343 Ohio, copies of the attached notice marked "Appen- dix " I Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices 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 (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with MEMBER WALTHER, concurring I agree with my colleagues that Respondent violat- ed Section 8(a)(3) and (1) of the Act by discharging Theresa Gallitzin because she refused to cross a pick- et line However, my reasons for reaching this result are somewhat different than those advanced by my colleagues As I read the collective-bargaming agreement, arti- cle 9, including the no-strike provision, does not ap- ply to this case The no-strike clause is clearly limited to situations in which a grievance is pending Since no grievance has been filed with respect to Respondent's activities in Florida, it is evident that the no-strike prohibition does not encompass Gallitzin's activities Since article 9 does not apply to this proceeding, it is unnecessary for me to reach-and I do not rely on-my colleagues' apparent extension of the Arlan's I and Mastro Plastics Corp 9 principles To my knowledge, this is the first time that an employer's unfair labor practices at one location have been deemed to abrogate a no-strike provision in a collec- tive-bargaining agreement with another labor organi- zation at another location I do agree with my colleagues, however, that arti- cle 20 of the collective-bargaining agreement does apply to Gallitzin's activities I agree further that Gallitzin's activities were protected whether or not the Council approval required by article 20 was giv- en In the absence of a lawful no-strike provision, employees enjoy a Section 7 right to engage in sym- pathy picketing Article 20 provides that such picket- 7 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 ' 8 Arlan's Department Store of Michigan Inc, 133 NLRB 802 (1961) 9 Mastro Plastics Corp and French American Reeds Mfg Co Inc v NLRB 350 U S 270 (1956) Ing is permissible under the contract so long as the requisite Council approval is first acquired In my judgment, article 20 cannot be considered a waiver of the employees' right to engage in sympathy picketing in the absence of the required Council ap- proval Such waivers must be clear and explicit and are not lightly to be inferred 10 Since article 20 does not satisfy the Board's waiver standards, it follows that Gallitzin's activities were protected irrespective of whether prior approval was in fact secured For the foregoing reasons, I agree that Gallitzin's discharge violated Section 8(a)(3) and (1) 10 Gary-Hobart Water Corporation, 210 NLRB 742 745 (1974) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce employees in the exercise of rights guar- anteed by Section 7 of the National Labor Rela- tions Act or discriminate against them by dis- charging them for engaging in protected concerted activities WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed them by the Act WE WILL offer Theresa Gallitzin immediate and full reinstatement to her former job, or, if such job no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of her unlawful discharge PILOT FREIGHT CARRIERS, INC DECISION STATEMENT OF THE CASE JAMES V CONSTANTINE, Administrative Law Judge This is an unfair labor practice case litigated pursuant to the provisions of Section 10(b) of the National Labor Rela- tions Act, as amended, herein called the Act, 29 U S C 160(b) It was commenced by a complaint issued on No- vember 22, 1974, by the General Counsel of the National Labor Relations Board, the latter herein called the Board, through the Regional Director for Region 8 (Cleveland, Ohio), naming Pilot Freight Carriers, Inc, as the Respon- dent That complaint is based on a charge and amended charge filed on October 9 and November 20, 1974, re- spectively, by the Charging Party, Theresa Gallitzin, an individual 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In substance the complaint alleges that Respondent vio- lated Section 8(a)(3) and (1), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act Respondent has answered admitting some allega- tions of the complaint but denying that it committed any unfair labor practices Pursuant to due notice this case came to be heard before me, at Cleveland, Ohio, on January 8, 1975 All parties were represented at and participated in the hearing, and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argu- ment Counsel for the General Counsel argued orally at the close of the case A brief has been received from Respon- dent This case presents the following issues 1 Whether the Charging Party refused to cross a picket line, or struck, or both, established by another union than that representing Respondent's employees at its terminal in West Richfield, Ohio 2 Whether Respondent discharged the Charging Party for engaging in the conduct described in the preceding paragraph and, if so, whether such discharge was unlawful 3 Whether a collective-bargaining contract between the Charging Party's union and Respondent contained (a) a no-strike clause, (b) a grievance and arbitration clause, or both Upon the entire record in this case, and from my obser- vation of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT I AS TO JURISDICTION Respondent, a North Carolina corporation, is engaged in furnishing interstate transportation services Among other things it operates terminals throughout the United States, including one in West Richfield, Ohio, and another in Jacksonville, Florida Annually it receives gross revenue. in excess of $50,000 for transporting goods and commodi- ties in interstate commerce The answer admits, and I find, that Respondent is an employer as defined in Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act And I further find that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding II THE LABOR ORGANIZATIONS INVOLVED Teamsters Local Union 497 and Teamsters Local Union 512, both affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A General Counsel's Case It was stipulated at the hearing that (a) General Counsel's Exhibit 2 at all times material was the collective- bargaining contract entered into by Respondent and Local 497, (b) Gallitzin, an employee at Respondent's West Richfield, Ohio, terminal and a member of Teamsters Lo- cal 497, an Akron, Ohio, Teamsters union, refused to cross a picket line of Teamsters Local 512 of Jacksonville, Flori- da, at Respondent's said terminal from on or about March 28 to April 8, 1974, and on or about May I to 29, 1974, (c) that Gallitzin engaged in such picketing on behalf of said Local 512 from on or about May 29 to August 16, 1974, and (d) that Local 512, which represents Respondent's em- ployees at Jacksonville, Florida, is engaged in a strike of Respondent at said Jacksonville terminal It was further stipulated that on June 14Z 1974, Gallitzin was discharged by Respondent by a writing which reads in pertinent part "Your employment with Pilot Freight Car- eers, Inc, is hereby terminated in accordance with Article 9, Section 10 of your collective bargaining Agreement " See General Counsel's Exhibit 3 for said termination notice and General Counsel's Exhibit 2 for said collective-bar- gaining agreement This writing, i e, General Counsel's Ex- hibit 3, was the only communication, written or oral, which Gallitzin received informing her that she was terminated by Respondent In pertinent part said article 9, section 10, provides that [As to] any such period of unauthorized stoppages of work mentioned above, it is specifically understood and agreed that the Company during the first twenty- four (24) hour period of such unauthorized work stop- page shall have the sole and complete right of reason- able discipline short of discharge and such employee shall not be entitled to or have any recourse to any other provision of this Agreement After the first twenty-four (24) hour period of such stoppage, and if such stoppage continues the Company shall have the sole and complete right to immediately discharge any employee participating in any unauthorized strike, slowdown, walkout, or any other cessation of work and such employee shall not be entitled to have any recourse to any other provision of this Agreement In the event the Union authorizes any work stoppage or any other cessation of work the Union shall notify the Company by telegram twenty-four (24) hours before commencement of such work stoppage, etc Failure of the Company to receive such notice prior to the commencement of any work stoppage, etc, it shall be deemed to be unauthorized for the pur- pose of this Agreement In this connection article 20 of said contract states that It shall not be a violation of this agreement and shall not be cause for discharge if any employee refuses to go through a primary picket line recognized by Team- sters Joint Council No 41 The Union agrees that, in the event the Company becomes involved in a contro- versy with any other Union, the Union will do all in its power to help effect a fair settlement It was admitted by counsel for the General Counsel that Local 497 was not on strike against Respondent and "there was no labor dispute" or grievance involving Local 497 In addition to the foregoing the General Counsel put on PILOT FREIGHT CARRIERS, INC 345 two witnesses One of them is James F Wykle, secretary- treasurer and business agent for Local 497 A conspectus of his testimony follows This Union represented the three clericals at the West Richfield terminal of Respondent (see art 1 of G C Exh 2), one of whom is Theresa Gallitzin Joint Council 41 of the Teamsters and the Teamsters Inter- national Union has recognized the picket line at said West Richfield Union within the meaning of article 20 of the contract between Local 497 and Respondent's terminal at said West Richfield Said Joint Council 41 sent Local 497 a telegram that the former was recognizing said picket line Such telegram is not in evidence Local 512 of the Teamsters of Jacksonville, Florida, had a labor dispute with Respondent's terminal at said Jack- sonville and struck in support of said dispute All the office clericals and all but three or four of the drivers and dock men at the West Richfield terminal honored the picket line of Local 512 at said West Richfield terminal Among the West Richfield employees who joined the picket line and also honored said line was Gallitzin After Gallitzin was terminated Wykle had a "brief hear- ing" on said action and the discharge of office clerical An- denero with Mr Wakeman, the terminal's manager Wake- man then referred Gallitzin's said complaint or grievance to Respondent's "general office in North Carolina " Said grievance, dated June 17, 1974, reads as follows "We, the undersigned, hereby protest our discharge from Pilot Freight Carriers, Inc, on the basis that we have in no way violated our contract or agreement, and demand immedi- ate reinstatement " It was signed by Gallitzin and Andene- ro (See G C Exh 4) Later said grievance was denied by Respondent's home office on the ground that it had been filed late under the terms of the collective-bargaining agreement Thereafter Wykle briefly discussed said denial with Wakeman but took no further action Wykle "in- structed" Gallitzin and Andenero "that it would be legal for them to honor the strike the picket line" of Local 512 and that they "could join the picket line " At no time did Local 497 inform Respondent's said terminal that Lo- cal 497 was respecting or honoring said picket line Theresa Gallitzin, the Charging Party, also testified for the General Counsel An adequate abridgment of her testi- mony is set forth at this point She worked as a clerk-typist at Respondent's West Richfield terminal beginning No- vember 2, 1970, and was in the unit covered by the con- tract between it and Local 497 (See G C Exh 2 for said contract) On June 14, 1974, she was terminated by a letter from Respondent (See G C Exh 3 for said letter) During February 1974, she became aware, "through the different people in the office" that a "labor dispute in the nature of a strike [existed] between a Pilot Freight Union and a Pilot Freight Terminal" in Florida Said "Florida dispute" affected her West Richfield freight terminal "with the less and less freight coming in " On March 4, 1974, she and all the office employees except Joyce Andenero (the "oldest employee") and all the drivers (except the "oldest driver") at said West Richfield terminal were laid off Dur- ing the period of such layoffs and thereafter Teamsters Lo- cal 512, a Florida union, picketed said West Richfield ter- minal At first no West Richfield employees took part in said picketing About March 28, 1974, General Manager Clifford Wakeman of said West Richfield terminal told Gallitzin to return to work as work had become available On April 8 she returned to work As of April 23 there were not, to her knowledge, "any grievances pending under [the contract] concerning either Local 512, the 512 strike, or any other contractual matter " About June 14 she and clerical em- ployee Joyce Andenero "joined the picket line " It was stipulated that both Gallitzin and Andenero were terminat- ed for joining said line This caused both Gallitzin and Andenero on June 17 to prepare and sign a protest or grievance over their discharge and submit it to Respon- dent (See G C Exh 4 for such document) At this point the General Counsel rested B Respondent's Case After the General Counsel rested Respondent also rested without offering any evidence on the ground that the Gen- eral Counsel had failed to establish a prima facie case C Concluding Findings and Discussion 1 Initially, Respondent maintains that the instant case cannot be heard because the contract with Local 497 con- tains a clause (Art 9) requiring that all employee griev- ances must be resolved pursuant to the grievance and arbi- tration process as provided in the contract See Collyer Insulated Wire, A Gulf and Western Systems Co 192 NLRB 837 (1971) But assuming that Collyer would apply Respon- dent may not rely upon it, because although Gallitzin at- tempted to invoke the contract's grievance machinery Re- spondent rejected her grievance as untimely Hence I find that Respondent may not advance its Collyer defense since Respondent refused to proceed with Gallitzin's grievance The fact that Gallitzin's grievance was untimely filed is not fatal since Respondent was in a position to waive the un- timeliness and proceed with the resolution of the grievance Cf Gary-Hobart Water Corporation, 210 NLRB 742 (1974) 2 The General Counsel submits that the strike of Local 512 at Jacksonville, Florida, is an unfair labor practice strike, so that its picketing at West Richfield, Ohio, is in furtherance of an unfair labor practice strike He also sub- mits that the contract's clause against an unauthorized work stoppage does not forbid an employee from engaging in a strike or work stoppage sympathizing with another union's unfair labor practice strike See Hoffman Beverage Co, 163 NLRB 981 (1967) In this connection the General Counsel requests that I find that the strike of Local 512 is an unfair labor strike because Administrative Law Judge Saunders has so found in another case brought against Re- spondent by Local 512 See consolidated case numbered 12-CA-6267, 6288, and 6384 In my opinion I am not bound by the decision of Ad- mimstrative Law Judge Saunders in the aforesaid case And I ruled at the hearing of the instant case that I would not receive evidence as to the nature of said strike by Local 512 as that issue would be decided by the Board in the case heard by Administrative Law Judge Saunders Of course any decision of the Board on such issue will be determina- tive of the identical issue in the case before me It follows 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that when the case before me reaches the Board the Board will be able to definitively dispose of this case as said Board will probably have decided this issue in Administra- tive Law Judge Saunders' case 3 The General Counsel contends that in any event Gal- litzin was authorized by article 20 of the contract to refuse to go through the Local 512 picket line at Respondent's West Richfield, Ohio, terminal In pertinent part said arti- cle 20 (see G C Exh 2) declares that "It shall not be a violation of this Agreement and shall not be cause for dis- charge if any employee refuses to go through a primary picket line recognized by Teamsters Joint Council No 41 " At the hearing the General Counsel offered oral evi- dence that said Joint Council had sent a telegram to Local 497 to the effect that said Council recognized said picket line of Local 512 at West Richfield Said evidence was ex- cluded on the ground that the parol evidence rule prevent- ed oral evidence as to the contents of a pertinent written document However, I did grant the General Counsel a specific time following the close of the instant case to file a copy of the foregoing telegram with me as an exhibit in this case Nevertheless no such copy has been received as of the date of the preparation of this Decision Accordingly, I find that this contention of the General Counsel has not been sustained because of a lack of competent proof to support it 4 Respondent finally contends that Gallitzin's refusal to work constituted an unauthorized cessation of work pro- hibited by section 10 of article 9 of the contract between Respondent and her union, Local 497 (see G C Exh 2), so that Respondent lawfully discharged her pursuant to said section 10 I find that this defense is well taken and that accordingly Gallitzin's termination does not violate the Act It is undisputed that Gallitzin not only joined the picket line, but also refused to cross it And I find that such conduct amounts to a cessation of work by Gallitzin The question then is whether such refusal to work was unau- thorized as contemplated by said section 10 Preliminarily I rule that, on this issue, 12th and L Ltd v Local 99-99A, International Union of Operating Engineers, 396 F Supp 1174 (D C D C, 1976), is not determinative This is because that case (a) did not contain a contract clause against a work stoppage similar to that in the instant case, (b) that case involved a damage suit against a union, whereas the instant case involves the legality of a dis- charge, and (c) that case recognizes that some circuit courts have held contrary to the decision of the D C District Court See 396 F Supp 1178 Assuming that said 12th And L case, supra, is applicable, I do not follow it as I believe the three following cases cited in this paragraph represent a sounder, but contrary, view Monongahela Power Company v International Brotherhood of Electrical Workers, AFL- CIO-CLC, 484 F 2d 1209 (C A 4, 1973), Inland Steel Com- pany v Local Union No 1545, United Mine Workers of America, 505 F 2d 293 (C A 7, 1974), and NAPA Pitts- burgh, Inc v Automotive Chauffeurs, Parts and Garage Em- ployees Local Union No 926, 502 F 2d 321 (C A 3, 1974), cert denied 419 U S 1049 (1974) On the record unfolded before me I am of the opinion, and find, that Gallitzin's joining the picket line during her usual working time constituted a work stoppage or a cessa- tion of work, and that such cessation was unauthorized Indeed the record is barren of any evidence that (a) Local Union 497 authorized any work stoppage, or (b) that Re- spondent received notice of any such stoppage as required by the last paragraph of Article 9, Section 10 of the con- tract between Local Union 497 and Respondent It follows, and I find, that Respondent's discharge of Gallitzin was sanctioned by the contract and that such termination did not contravene the Act In my opinion Gary-Hobart Water Corporation, 210 NLRB 742 (1974), is distinguishable and does not require an opposite conclusion Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Local 497 and Local 512 each is a labor organization within the meaning of Section 2(5) of the Act 2 Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act 3 The General Counsel has failed to establish by the credited evidence that the Respondent has committed any of the unfair labor practices averred in the complaint Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed ORDER1 It is ordered that the complaint be, and it hereby is, dismissed in its entirety 1 In the event no exceptions are filed as provided by Sec 102 46 of the Boards Rules and Regulations, the findings, conclusions, recommenda- tions and recommended Order herein shall, as provided in Sec 102 48 of said Rules and Regulations, be adopted by the Board and become its find- ings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes