United Paperworkers International Union Local No. 5

1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Paperworkers International Union Local No. 5 and International Paper Co. United Paperworkers International Union Local No. 497 and International Paper Co. Cases 3-CB- 5060-1, 3-CB-5060-2, and 3-CB-5086 June 15,1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 19, 1988, Administrative Law Judge Harold B. Lawrence issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond- ents filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified, and to adopt the recom- mended Order. The amended complaint alleges that the Re- spondents violated Section 8(b)(1)(A) of the Act by directing their members, employees of International Paper Company, under threat of internal union dis- cipline, to refrain from performing certain kinds of nonunit work, and by charging, trying, and fining members who failed to comply with the Respond- ents' directives. The complaint further alleges that by taking such actions with respect to certain em- ployees who were temporarily occupying positions with grievance-handling authority, the Respondents also violated Section 8(b)(1)(B).2 For the reasons i The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings We correct the following errors in the judge's decision, none of which affects our Decision and Order (1) contrary to sec II,C of the judge's decision, we find no evidence that Par 0 Sd, 211 NLRB 333 (1974), was ever enforced by a court of appeals, (2) Food & Commerical Workers Local 1439 (Rosauer's Supermarkets), 275 NLRB 30 (1985), cited in the judge's fn 3, involved a sympathy strike, not (as the judge indicated) a partial strike, (3) in sec II,D,3, the quoted passage from NLRB v Allis- Chalmers Mfg Co , 388 U S 175 (1967), occurs at 388 U S 180-182, not 179, 181, in the same section, the quoted passage from Mastro Plastics Corp v NLRB, 350 U S 270 (1956), is found at 350 U S 280, not 279, (5) contrary to the judge's statement in the same section, the rule in Appa- lachian Shale Products Co, 121 NLRB 1160 (1958), is that an unratified written contract bars an election unless ratification is expressly required by its terms 2 We note that the amended complaint does not specifically allege that Respondent Local 5 violated Sec 8(b)(1)(B) That omission appears to have been inadvertent Par XIV,(a) of the amended complaint contains the conclusory allegation that Local 497 violated Sec 8(b)(1)(B), but refers to the acts alleged on the part of Local 5 in par VIII,(a) Thus, discussed below, we agree with the judge that the Respondents did not violate the Act in either re- spect, and we affirm his dismissal of the com- plaint.3 The Employer, International Paper Company, has approximately 21 papermaking facilities, includ- ing plants at Ticonderoga, New York, and Mobile, Alabama. In all but one of those plants, employees are represented by locals of the United Paperwork- ers International Union. The Union, through its Locals 5 and 497 (Re- spondents), has represented a unit of employees at International Paper's Ticonderoga plant since at least the 1950s. Local 497 represents unit members employed in the paper machines area, the laborato- ries, and the finishing room; Local 5 represents the remaining unit employees. The relevant collective- bargaining contract was in effect from June 1, 1985, through May 31, 1988, and covered approxi- mately 684 employees. The agreement contained a broad no-strike clause4 and a multistep grievance procedure covering all questions concerning the in- terpretation and application of the agreement. The Employer at its Ticonderoga plant has an established practice of selecting employees from the unit to perform various kinds of work outside the unit on a temporary basis.5 One aspect of that practice has been to allow certain unit employees to "set up"-that is, to perform temporarily-as foremen, clericals, and "analysts," both to replace full-time employees in those positions who are sick or on vacation and to enable the Employer to assess the unit employees' suitability for advance- ment into those positions. Setup appointments nominally are made for 1-week periods, but in practice often are extended for periods of weeks or months. Although the Employer selects employees par XIV,(a) probably was intended to allege an 8(b)(l)(B) violation on the part of Local 5 Certainly, all concerned (including the judge) under- stood that both Respondents were accused of having violated Sec 8(b)(1)(B) In any event, none of the above affects our Decision and Order 3 We affirm the judge's finding that the Respondents did not violate Sec 8(b)(1,(B) of the Act, because we agree that the record does not demonstrate that employees occupying the positions in question had the authority to adjust grievances Sec 8(b)(1)(B) prohibits discipline of union members only if they actually perform 8(b)(1)(B) duties-i e, col- lective bargaining or grievance adjustment NLRB v Electrical Workers IBEW Local 340, 481 U S 573 (1987) In this respect, we find it unneces- sary to rely on the judge's finding that permanent supervisors also may have lacked grievance-handling authority, his discussion of the require- ments for supervisory status, or on his inadvertent citation to the dissent, rather than to the opinion of the Court, in NLRB v Yeshiva University, 444 U S 672 (1980) The clause provided that It is agreed that there shall be no strikes, walkouts, lockouts or other similar interruption of work during the period of this Agreement None of the Employer's practices in this respect have been addressed in the collective-bargaining agreements between the Employer and the Union, nor have the relevant portions of those practices been the subject of negotiations 294 NLRB No. 84 PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) to serve in setup positions, acceptance of the posi- trons is not mandatory. The Management Training Systems Program (MTS) and the Maintenance Instruction Program have existed at Ticonderoga since early 1985. As described in greater detail by the judge, these pro- grams involve unit employees in the preparation of technical manuals and teaching materials and in giving instruction relating to the Employer's manu- facturing and maintenance functions. As in the case of setup positions, the Employer selects employees to participate in these programs, but participation is voluntary. The Quality Improvement Process Program (QIP) is a "brainstorming" activity in which groups of unit employees and supervisors meet after working hours every 3 weeks to discuss ideas for the improvement of plant processes. QIP has existed at Ticonderoga since 1985, and unit person- nel have participated since early 1986. Again, par- ticipation by unit employees is voluntary. Some 180 unit employees had taken part in the program as of March 1987.6 Beginning in March 1987, 7 in response to a lock- out at the Employer's facility in Mobile, the Re- spondents first requested, and later insisted, that their members at Ticonderoga not take part in the programs just described.8 Thus, on an undeter- mined date in March, the Respondents posted on company bulletin boards a notice from the execu- tive boards of both Local 5 and Local 497, that stated in part, "A Sister Local is currently locked out, Mobile, Ala. We therefore ask that those of our Members who are involved in M.T.S. and other such programs, REFRAIN from further in- volvement, until this matter is resolved." On March 21 the Respondents placed on the Employ- er's bulletin boards the following notice, signed by Gillette Bartlett, president of Local 5, and James DeZalia, president of Local 497: With confirmation that International Paper Company in the Mobile, Alabama Mill has en- gaged in an active lockout against our sisters and brothers, a resolution was passed by both '6 A fourth program, the Supervisory Process Control System (SPCS), was discussed briefly at the hearing However, the complaint did not allege that the Respondents' actions coerced employees into refraining from participation in SPCS Accordingly, we do not rely on the charac- teristics of SPCS in our analysis Unless otherwise noted, all dates are in 1987 8 Pursuant to its policy of continuing to operate plants during work stoppages by using, inter alia, "loaned" supervisors from its other facili- ties, the Employer transferred 12 employees from Ticonderoga to its Mobile plant during March, and a total of 14 other employees to struck plants at Jay, Maine, and Lock Haven, Pennsylvania, during the spring and summer Although the Employer denies that any unit employees who occupied temporary nonunit positions at Ticonderoga were used as substitutes for the "loaned" employees, the Respondents clearly believed that such substitutions were being made 1169 executive committees of local 5 and 497 UPIU. Our board has decided that until a sat- isfactory resolve has been made in the Mobile Plant, all members of the identified locals shall no longer move up into temporary non-bar- gaining unit jobs. Those found guilty of ac- tions that are detrimental to our sisters and brothers in Mobile, Alabama are guilty of hin- dering future negotiating processes that may effect the bargaining strength at the Ticonder- oga Mill. Failure to comply with the above resolve could result in future adjudication by the au- thority of the local signatory unions. Copies of the notice were either mailed or given personally to at least some union members occupy- ing temporary nonunit positions. A third notice, dated March 27 and again signed by Bartlett and DeZalia on behalf of the Respond- ents' executive boards, stated definitively that: As per Mario Scarselletta [the International Union's representative], no one is to participate in the Q.I.P., M.T.S. or any other such pro- grams until such time as the labor dispute in Mobile, Alabama and Moss Point, Mississippi have been satisfactorily resolved. Both Bartlett and DeZalia also spoke personally with certain employees in an attempt to dissuade them from filling or remaining in nonunit positions. However, despite all of the Respondents' written and oral appeals, not all members complied with the directive not to occupy nonunit positions. Ac- cordingly, as a means of obtaining compliance with the directive, the Respondents invoked article XII, section 1, of the International constitution,9 pursu- 8 Art XII, sec 1, of the Union's International constitution provides, in pertinent part, that (a) The term "discipline" when used in this Article, shall include, without limitation, a reasonable fine, suspension or removal from office, disqualification to run for office, or suspension or expulsion from membership (b) Any member of the International Union who engaged in any of the following conduct shall be subject to discipline (1) Violation of any provision of the International Constitution or the bylaws of his local union, (2) Refusal to abide by the decisions and policies established by the President or the Executive Board of the International Union or by his local union, (3) Activities detrimental to the welfare of the International Union Activities "detrimental to the welfare of the International Union" shall include, but not be limited to, crossing a picket line sanctioned by the International Union or the local union in which the member holds his membership (4) Whenever a local union of United Paperworkers International is engaged in a strike, no member of the U P I U will fill a salaried position so that salaried personnel can cover the jobs of striking members at other locations This shall also apply where members of U P I U move up to salaried positions so that salaried personnel can cover jobs of striking workers at other locations whether the other workers on strike are members of the U P I U or not 1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ant to which Local 497 fined Matthew Russell $50 for each week that he had continued in a setup bill- ing clerk's position since April 6. Paul Salstead and Peter Plass, who likewise had persisted in filling setup clerical positions, were also charged by Local 497. John Tobin, a setup foreman, was per- sonally directed in writing to return to his unit job, but did not comply with Local 497's order. Local 5 fined James O'Bryan for failure to leave his posi- tion as a setup safety trainee. 10 The General Counsel and the Employer contend that the Locals' attempts to force employees not to take or remain in nonunit positions restrained and coerced employees in the exercise of their Section 7 rights in violation of Section 8(b)(1)(A). In par- ticular, it is alleged that the Respondents' threats and imposition of internal discipline against mem- bers who failed to engage in concerted activity were unprotected because they constituted (1) an unlawful unilateral change in terms and conditions of employment, (2) a violation of the contractual no-strike agreement, (3) a violation of the provision of the contract requiring submission of all disputes to arbitration, and (4) an attempt to induce employ- ees to engage in an illegal partial strike. The judge found no merit to those contentions. We agree with the judge, but only for the reasons set forth below. A union's internal disciplinary actions against its members do not necessarily violate Section 8(b)(1)(A), even if the discipline is intended to interfere with the members' employment. Thus, for example, the Supreme Court has held that a duly adopted union rule against members' crossing a picket line during a strike is enforceable against voluntary union members by expulsion or reasona- ble fines. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967). Similarly, the Court in Sco- field v. NLRB, 394 U.S. 423 (1969), upheld a union's practice of fining members who violated the union's ban on employees ' receiving immediate payment for production in excess of a union-im- posed ceiling. The Court in Scofield laid down the following principle, which applies to this case: . . . Sec. 8(b)(1) leaves a union free to en- force a properly adopted rule which reflects a legitimate union interest, impairs no policy 10 The Respondents' efforts to have their members forgo participation in nonumt jobs were not without effect Participation in QIP dropped to between 80 and 100 employees Further, the Employer allowed Plass, Salstead, and Paul Connery to step down from setup positions , and re- spected the choices of two other employees not to fill setup foreman/analyst positions In fact , the Employer ceased offering setup positions to unit employees , and did not take disciplinary action against any employee for leaving or refusing such positions Several unit employ- ees, however, were still serving in nonumt positions at the time of the hearing Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. 394 U.S. at 430. The question we must decide, therefore, is whether the Respondents' ban on fur- ther participation in nonunit employment, and their conduct in enforcing that ban, "impair[ed any] policy Congress has imbedded in the labor laws," and therefore lost the protection of Scofield. i i Whether or not the Respondents violated Sec- tion 8(b)(1)(A) turns on one critical issue of fact- whether continued participation in nonunit jobs was left to the discretion of the employees in the unit, or whether the Employer, by virtue of past prac- tice, had the authority to order employees to remain in those positions at the Employer 's pleas- ure.12 Thus, if the Employer could compel unit employees to continue to fill temporary nonunit positions once they had accepted them, the Re- spondents' restraint and coercion of their members to leave those positions would amount to a unilat- eral change in terms and conditions of employ- ment, and that restraint and coercion would violate Section 8(b)(1)(A).13 Under such circumstances, the Respondents' ban also would have been tanta- mount to calling for their members to take part in the equivalent of an unlawful partial strike, and their attempt to enforce that ban by means of fines would have violated Section 8(b)(1)(A) for that reason as well.14 Moreover, if, under the same cir- " Clearly, the Respondents' conduct met the other elements of the Scofield test Thus, there is no indication that the union rule at issue was not properly adopted , and the rule reflects the obviously legitimate union interest of restricting the Employer's ability to reassign supervisors and other employees to plants at which labor disputes are in progress See also NLRB v Allis-Chalmers Mfg Co, supra, 388 U S at 181 (power to fine or expel strikebreakers is essential for union to be effective bargain- ing agent) In addition, it is settled that, despite a "union shop" provision in the collective-bargaining agreement , members are free to leave the union (as long as they pay the equivalent of union dues) and escape the Respondents' discipline Pattern Makers League v NLRB, 473 U S 95 (1985), Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330, 1333 (1984) 12 It is undisputed that, although the Employer selected unit employees to fill the nonunit jobs in question, the decision to accept or reject those positions was solely the employees' I a Electrical Workers IBE W System Council T-6 (New,England. Tele- phone), 236 NLRB 1209 , 1210 (1978), enfd 599 F 2d 5 (1st Cir 1979) We note that no 8(b)(3) violation has been alleged We disagree with the judge insofar as his analysis suggests that the conditions under which the Employer could select unit employees to fill nonunit positions did not constitute terms and conditions of em- ployment Such transfers and reassignments clearly are mandatory subjects for bargaining See, e g , San Antonio Portland Cement Co, 277 NLRB 309 , 314 (1985), Electrical Workers IBEW System Council T-6 New England Telephone, supra, 236 NLRB at 1210 I4 The Board and the courts have long held that the refusal by em- ployees to perform some , but not all , tasks lawfully assigned by the em- ployer constitutes a partial strike, an activity that is not protected under Sec 7 Continued PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) cumstances, the Respondents' conduct amounted to an attempt to cause the employees to violate the contractual no-strike provision, that conduct would have violated Section 8(b)(1)(A) on still another ground.15 On the other hand, if unit employees consistently had been permitted to remain in nonunit positions or not, as they chose, the Respondents' pressure on their members to refrain from occupying nonunit positions would lack the vices just discussed. Thus, if the relevant condition of employment was that the employees could choose whether to continue to fill nonunit jobs, the Respondents did not effect a unilateral change in working conditions by seeking to cause their members to exercise their right to choose in a particular way. Likewise, if employees were always free to decide whether they would remain in nonunit positions, their refusal to do so, taken either singly or in concert, can hardly be considered a strike or even a partial strike.) 6 Of course, if the employees' refusal did not constitute a strike, it did not violate the contractual no-strike clause.17 We turn, then, to the question whether the Gen- eral Counsel established, by a preponderance of the evidence, that the employees' continued participa- tion in nonunit employment under the programs at While employees may protest and ultimately seek to change any term or condition of their employment by striking or engaging in a work stoppage, the strike or stoppage must be complete, that is, the employees must withhold all their services from their employ- er They cannot pick and choose the work they will do or when they will do it Such conduct constitutes an attempt by the em- ployees to set their own terms and conditions of employment in defiance of their employer's authority to determine those matters and is unprotected Audubon Health Care Center, 268 NLRB 135, 137 (1983), citing, inter alia, C G Conn, Ltd v NLRB, 108 F 2d 390 (7th Cir 1939) It is well established that a union violates Sec 8(b)(1)(A) if it disciplines members who refuse to engage in unprotected activity-e g , a partial strike-that would subject them to lawful discipline by the employer Graphic Arts Local 13-B (Western Publishing), 252 NLRB 936, 938 (1980), enfd 682 F 2d 304 (2d Cir 1982), cert denied 459 U S 1200 (1983) i5 Food & Commercial Workers Local 1439 (Rosauer's Supermarkets), 275 NLRB 30 (1985), decision on reconsideration 293 NLRB 26 (1989) Because of our disposition of the case , we find it unnecessary to deter- mine whether the Respondents' actions actually would have violated the no-strike clause had the Employer possessed the authority to compel the members to fill nonunit positions 16 See, e g, Dow Chemical Co, 152 NLRB 1150, 1152 (1965), Imperia Foods, 287 NLRB 1200, 1203-1204 (1988) (employees' refusal to perform nonmandatory work not an unlawful partial strike) 19 As noted in fn 4, supra, the contract forbade "strikes, walkouts, lockouts, or other similar interruption[s] of work " We do not read that language to include the exercise by employees of the right (if it existed) to decline to continue to perform nonunit work and to return to the unit jobs for which they were hired To the extent that Electrical Workers IBEW System Council T-6 (New England Telephone), supra, Communications Workers Local 1122 (New York Telephone), 226 NLRB 97 (1976), enfd 562 F 2d 37 (2d Cir 1977), and Communications Workers Local 1170 (Rochester Telephone), 194 NLRB 872 (1972), enfd 474 F 2d 778 (2d Cir 1972), may be read as holding that a union 's discipline of its members in an attempt to dissuade them from voluntarily accepting or remaining in nonunit positions is un- lawful, those cases are overruled 1171 issue could be compelled by the Employer. 111 On the basis of all the record evidence, we find that she has not. James Livingston, the Employer's manager of human resources, testified that there is no formal policy, in the contract or otherwise, governing em- ployees' stepping down from temporary nonunit positions. He stated that, to the best of his knowl- edge, the employees in the MTS program were not informed either that they could or could not return at will to their unit jobs. Livingston asserted that once employees are involved in the MTS program, they are required to remain there until the manual- writing and training are completed; however, he conceded that he was unaware if the employees had been informed of that alleged requirement at the beginning. Livingston also testified that, prior to March 1987, an employee named Richard Rich asked to leave the MTS program and return to his unit job, and that the Employer granted his re- quest. Similarly, according to Livingston, two em- ployees have asked to leave setup positions, and have received the Employer's approval. The con- tract's provisions regarding discipline do not ad- dress employees' leaving setup or other temporary nonunit positions, and no employee has been disci- plined for refusing to set up. Livingston also stated that extensions of setup assignments are made at the discretion of the employee as well as of man- agement. Bartlett testified that he was informed by Cory St. Thomas, the Employer's pulp mill superintend- ent, that employees "could go on and come off [MTS] any time they wished." On rebuttal, howev- er, Livingston stated that St. Thomas (who did not testify) did not have the authority to make policy for the entire plant; instead, he has the authority to handle problems within his department, within the limits of the Employer's policies. Moreover, the context of Bartlett's testimony does not clearly reveal whether St. Thomas meant that employees could leave the MTS program indefinitely as they chose, or only that they could step down tempo- rarily, for short periods, to substitute for sick or vacationing employees or to take advantage of available overtime or long weekends.19 The record reveals that, beginning in March 1987, several unit employees filed grievances in which they requested to step down from the MTS or maintenance training program and return to the unit. Two of those employees, Varmette and 18 The General Counsel has the burden of establishing unfair labor practices by a preponderance of all the relevant evidence International Computaprint Corp, 261 NLRB 1106 , 1107 (1982) 18 Both Livingston and Bartlett testified that employees can leave the MTS program for short periods for those purposes 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bemis, indicated in their grievances that they un- derstood that they could leave their nonunit posi- tions at any time. All of those grievances were denied. Livingston testified that the grievances were denied because of the hardship that would have resulted if the employees had been allowed to leave the programs in midstream, and the Employ- er had had to replace them with other personnel. By contrast, Livingston testified that three employ- ees-Plass, Salstead, and Connery-asked not to continue in setup positions, and the Employer had accommodated their requests. On this record, we cannot conclude that the General Counsel has carried her burden of demon- strating that unit employees temporarily occupying nonunit positions could return to their unit jobs only with the permission of the Employer. Thus, it is undisputed that the Employer has no formal, written policy governing such returns. Although Livingston asserted that employees in the MTS program may not return to their unit jobs before they complete their MTS duties, he conceded that he did not know if the employees had been in- formed of such a "rule," and he made no such as- sertion concerning employees in setup positions or in the QIP program. Indeed, he conceded that ex- tension of an employee's tour in a setup position is at the employee's discretion. Moreover, he could point to no example antedating the Respondents' March 1987 ban of any employee's being required to remain in a temporary nonunit position against his will. In fact, two employees stated in their grievances that they understood that they could step down from nonumt jobs at any time. Finally, Bartlett claimed without contradiction that Pulp Mill Superintendent St. Thomas told him that em- ployees could leave the MTS program (at least in- sofar as it applied to the pulp mill) whenever they wished. On the basis of all the record evidence, then, we find that, prior to March 1987, employees were free to return to the unit from temporary nonunit positions on request. Consequently, because the employees' continued participation in the MTS, QIP, maintenance training, and setup programs was voluntary, the Respondents did not unilaterally change any term or condition of employment, or attempt to coerce their members into taking part in a partial strike or in a work stoppage in violation of the contractual no-strike clause, when they threatened to, and did, discipline members who failed to observe the Respondents' ban on filling nonunit jobs. The Employer contends, however, that by taking unilateral action designed to force their members to return to the unit, rather than waiting for decisions on the employees' grievances claiming that they were entitled to do so, the Respondents trans- gressed the congressional policy favoring private settlement of disputes through arbitration, as well as the principle of "work, then grieve."20 Conse- quently, according to the Employer, the Respond- ent's conduct was unprotected under Scofield. We, find this argument lacking in merit. That there is a strong public policy favoring pri- vate settlement of labor-management disputes is beyond question.21 However, the Respondents' ac- tions did not prevent the processing of claims on behalf of employees through the grievance-arbitra- tion procedure, but instead sought to cause the em- ployees to return to the unit while those claims were being processed. Moreover, as the Supreme Court's City Disposal decision22 makes clear, the "work, then grieve" principle is not absolute.23 In City Disposal, the Court found that an employee's contract-based re- fusal to drive a truck that he reasonably thought was unsafe could be protected concerted activity; in doing so, the Court specifically rejected the em- ployer's argument that to uphold such actions would undermine the grievance and arbitration process. 465 U.S. at 837-839.24 20 Both the Employer and the General Counsel except to the judge's finding that disputes over the employees' continued participation in non- unit employment are not susceptible to resolution by means of the griev- ance procedure Because of our disposition of this case , we need not pass on those exceptions We note, however, that although the collective-bar- gaining agreement does not mention any of the temporary nonunit em- ployment situations at issue here, it does provide that employees may be disciplined or discharged for "disobedience " The contract also provides that any dispute arising thereunder is to be submitted to the grievance procedure, no exception is made for disputes over the meaning of "dis- obedience " See Steelworkers v Gulf Navigation Co, 363 U S 574 (1960) (contractual grievance and arbitration provisions cover all matters in dis- pute except those specifically excluded by the parties) Thus, an arbitra- tor might well be called on to decide whether "disobedience" should be read to include the refusal to remain in a setup position or in the MTS, QIP, or maintenance training programs We therefore assume, for pur- poses of this decision, the arbitrability of the issue of whether the em- ployees' continued occupation of nonunit positions was voluntary or mandatory 2 1 See , e g, B u f f a l o Forge C o v Steelworkers, 428 U S 397, 411-412 (1976), Gateway Coal Co v United Mine Workers, 414 U S 368, 377 (1974), Collyer Insulated Wire, 192 NLRB 837, 840 (1971) Each of the cited decisions relied on Sec 203(d) of the Labor Management Relations Act, which provides, in relevant part, that, Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes aris- ing over the application or interpretation of an existing collective- bargaining agreement 22 NLRB v City Disposal Systems, 465 U S 822 (1984) 22 See also Elkouri & Elkouri, How Arbitration Works, pp 199-200 (4th ed 1985) 24 The Court's holding, however, disposed only of the question wheth- er the employee's refusal to drive the truck constituted "concerted" ac- tivity The question whether the refusal violated the no-strike clause and was therefore unprotected was remanded to the court of appeals On remand , the court of appeals found the refusal protected , based on its reading of the clause as permitting an employee to refuse to drive an ap- parently unsafe truck unless and until the employer demonstrated that it was in fact safe City Disposal Systems v NLRB, 766 F 2d 969 (6th Cir 1985) PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) Finally, we observe that the timing of the con- duct here was important . As we have noted, the Respondents' actions were designed to prevent their members from assisting the Employer in its disputes with their sister locals . Had the Respond- ents allowed their members to continue to occupy nonunit positions indefinitely while the employees' claims worked their way through the grievance-ar- bitration process, the work stoppages at the other plants might have ended before an arbitral decision was reached. In those circumstances, even if the Respondents had won the battle in arbitration, they might have lost the war by permitting their mem- bers to assist the Employer in the interim in its struggles with the Union at other plants.25 We do not think that the well-established public policy fa- voring arbitration requires in all cases that a union refrain from imposing otherwise lawful discipline on its members pending arbitration when to do so would be to acquiesce in a status quo favoring the employer . For all the above reasons, we find that the Respondents' disciplinary measures did not vio- late the public policy encouraging arbitration of disputes, and therefore did not lose the protection of Scofield.26 In sum, we hold that the Respondents' ban on members' doing nonunit work and their threats and actual discipline to enforce the ban did not "impair any policy Congress has imbedded in the labor laws," and therefore that the Respondents ' conduct did not violate Section 8(b)(1)(A). ORDER The complaint is dismissed. 25 Similarly, if the employee in City Disposal had "worked, then grieved," he might have been seriously hurt or killed before the grievance/arbitration process had run its course 26 We emphasize that we do not, in general, disagree with the "work, then grieve" principle Here, however, we are dealing with an unusual case in which (1) it has been found that employees had the right to return at will to their unit jobs, (2) they sought to do as an exercise of their Sec 7 rights, or the Respondents sought to require them to do so pursuant to the Union's constitution, and (3) the exercise of those rights might have proved fruitless if not carried out in a timely fashion It is under these limited circumstances that we find lawful the Unions' attempts to induce their members to return to the unit, notwithstanding that they conflicted with the Employer's instructions Alfred M. Norek, Esq., for the General Counsel. Lynn Agee, Esq., of Nashville, Tennessee, and Erick J. Genser, Esq. (Mulholland & Hickey), of Washington, D C., for the Respondent. Jane B. Jacobs, Esq. (Seham, Klein & Zelman), of New York, New York, for the Charging Party. DECISION 1173 STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard by me at Albany, New York, on 1 and 2 September 1987. The Respondents, Local No. 5 and Local No 497 of the United Paperworkers Interna- tional Union (the International) are charged with having violated Section 8(b)(1)(A) and (B) of the National Labor Relations Act (the Act) by directing their mem- bers, employed by the International Paper Co. (some- times referred to as the Employer or the Company) at Ticonderoga, New York, to refrain from certain work activities under pain of internal union discipline. The Re- spondents interposed separate answers denying the mate- rial allegations of the complaint and denying any statuto- ry violation, which were superseded by a joint answer filed on their behalf by counsel for the International. The present answer makes the same admissions and denials but also contains a denial that Local No. 5 and Local No. 497 have been "constituent locals" of the Interna- tional as alleged in the complaint insofar as that allega- tion might be construed to assert claims against the Inter- national on the basis of agency. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed by the General Counsel, counsel for the Charging Party, and counsel for the Respondents. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed herein, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue as to jurisdiction, counsel having ad- mitted the pertinent jurisdictional allegations The Em- ployer is a New York corporation engaged in the manu- facture of paper, pulp, and, related products, with plants at a number of locations throughout the United States, including the facility at Ticonderoga, New York Its gross revenues from that facility exceed $50,000 as does the dollar value of material shipped to Ticonderoga from points outside New York State. I therefore find that, at all times material, the Employer was and is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Locals Nos. 5 and 497 and the International were and are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background' 1. History of labor relations The Employer operates 21 plants with 35,000 employ- ees. All but one of the facilities are unionized, and all but ' The matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answer, data Continued 1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD one of those have collective-bargaining agreements with the International, which were negotiated directly be- tween the Employer and the International. At Ticonder- oga, the Locals administer the contract on behalf of the International and have requested employees at Ticonder- oga since at least 1950. All of the preceding collective- bargaining agreements were negotiated by the Interna- tional. The current agreement at Ticonderoga is for a term beginning on 1 June 1985 and ending on 31 May 1988 and covers approximately 684 employees. The col- lective-bargaining agreement provides that the Company agrees to recognize the International as the "agency rep- resenting its membership in the Ticonderoga Mill for the purpose of collective-bargaining." The bargaining unit is defined as consisting of All those employees inside and outside the plant except the following who are considered as part of the Management of the plant: General Superintend- ents, All Department Superintendents, All Assistant Superintendents, All Salaried Foremen, Plant Engi- neers, Assistants and Draftsmen, Chemists and As- sistant Chemists, Order Clerks, Personnel Supervi- sors, Safety Supervisors, Plant Physicians, Nurses, All Office Employees Including Storekeepers, Sales Department Apprentice Trainees, Watchmen, and Any currently existing salaried jobs not included in the above list. Local No. 5 represents the unit members employed in the pulp mill, the warehouse, the maintenance depart- ment, and the wood yard, together with the cleaners and a category referred to by Gillette Bartlett, its president, as "outdoor miscellaneous." (Bartlett is also the head op- erator of the pulp mill.) Local No. 497 represents the unit employees who work in the paper machines area, the laboratories, and the finishing room. 2. Pertinent union rules and contractual provisions All parties to these proceedings have sought to vindi- cate their positions by resort to the provisions of the col- lective-bargaining agreement and the constitution of the International. It is appropriate, therefore, to note the per- tinent provisions at the outset The collective-bargaining agreement contains a no- strike clause: It is agreed that there shall be no strikes, walkouts, lockouts or other similar interruption of work during the period of this Agreement. A multistep grievance procedure is established by Sec- tion 7 of the agreement: Section 7. Adjustment of Complaints A. The parties agree that all complaints arising during the term of the Agreement over the interpre- contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony and, in instances where conflicts in the testimony did not warrant discussion , the testimony which I have credited tation or application of its provisions shall be settled in accordance with the following procedures. B. Should a question arise concerning this agree- ment or any other agreement, an earnest effort will be made for settlement informally and personally between the aggrieved employee and/or his Stew- ard and his Foreman. Stage 1-If the informal exchange does not produce a satisfactory settlement, the complaint may be presented by the aggrieved employee and/or his Union Steward in writing to the Fore- man.. . . An earnest effort will be made by employees and/or the Union Steward to describe the cir- cumstances of the complaint and the settlement desired. The Foreman shall make a written reply to the complaint within five (5) days. Article XII of the International constitution provides in part as follows: Section 1. (a) The term "discipline" when used in this Arti- cle, shall include , without limitation, a reasonable fine, suspension or removal from office, disqualifica- tion to run for office, or suspension or expulsion from membership. (b) Any member of the international who engaged in any of the following conduct shall be subject to discipline: (1) Violation of any provision of the International Constitution or the bylaws of his local union, (2) Refusal to abide by the decisions and policies established by the President or the Executive Board of the International Union or by his local union; (3) Activities detrimental to the welfare of the International Union. Activities "detrimental" to the welfare of the International Union shall in- clude, but not be limited to, crossing a picket line sanctioned by the International Union or the local union in which the member holds (or in the case of a former member, held) his membership. (4) Whenever a local union of United Paperwork- ers International is engaged in a strike, no member of the U.P.I.U. will fill a salaried posi- tion so that salaried personnel can cover the jobs of striking members at other locations. This shall also apply where members of U.P.I.U. move up to salaried positions so that salaried personnel can cover jobs of striking workers at other locations whether the other workers on strike are members of the U.P.I U. or not. Subdivision (b)(4) was added in 1980. 3. Setup assignments and special programs The Employer at various times assigned employees who were willing to accept such assignments to full-time PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) nonbargaining unit positions which involved work differ- ent from that which they performed in the unit. These setup positions involved temporary advancements to nonbargaining unit jobs in higher classifications, such as clerical positions; foremen's positions, in which the unit employees substituted for permanent foremen who were unavailable for varying periods of time on account of ill- ness or vacation, and analysts' positions, which involved planning the work for which orders had been received. Unit members filling such positions were paid at the wage rates normally applicable to the positions while otherwise being governed by the provisions of the col- lective-bargaining agreement insofar as pensions and other matters covered by the agreement were concerned Setup assignments were made on a weekly basis, though they occasionally continued through successive reappointments for periods of months and even years The practice of making setup appointments at the Ticon- deroga plant has existed for many years. Acceptance of such positions is voluntary. Departure from the positions is not governed by any formal procedure and appears to have occurred rarely prior to March 1987.2 The only such instance known by those present at the hearing in- volved an employee named Dean McLoughlin who left a setup position in 1977, voluntarily and without opposi- tion from the Employer. In addition, there were several ongoing programs at the Ticonderoga mill in which bargaining unit members participated voluntarily. None of these programs are mentioned in the collective-bargaining agreement or the Mill Rules, which are incorporated into the collective- bargaining agreement, and there was no procedure, writ- ten or otherwise, governing departure from the pro- grams. The list of causes for which discipline may be im- posed under the Mill Rules does not include quitting such programs or refusing to enter into them. The Management Training Skills program (MTS) en- tailed the writing of technical manuals covering manu- facturing processes at the mills by experienced unit mem- bers. (Warehouse, storage and maintenance functions are not involved.) Participants in this program were careful- ly selected by management on the basis of their per- ceived capacity to write the manuals and thereafter, using them as textbooks, to teach their contents to other employees. They worked on the manuals on a daytime shift instead of their usual shifts (the mill runs on four shifts around the clock) and are paid at their regular job classification rate. Employees were approached by man- agement, but participation was entirely up to the employ- ee. The program was set up for the Employer in 1984 by a private consulting firm, MTS Incorporated. It was begun at the Ticonderoga mill in February 1985. Until that time, there had been no organized training program at the mill and no manual writing whatsoever. There are no publicly available memoranda-and possibly none may exist-concerning the terms and conditions of em- ployment for MTS participants. The Maintenance Instruction program is one which, about 2-1/2 years ago, superseded the informal on-the- 1175 job training formerly given to personnel of the mainte- nance department. Maintenance instructors, singled out by management for their ability to train others in the maintenance department, were selected from among the more experienced unit personnel in the maintenance de- partment . They prepared lesson plans and gave instruc- tion Their work schedules were flexible. Sometimes they spent entire workweeks exclusively in the program and at other times divided their time between instruction and their regular unit jobs, depending on the needs of the de- partment. No one has ever quit the program. The normal maintenance day is 7 a.m. to 4 p.m. and the program is operated on that same shift. The Quality Improvement Process program (QIP) began in 1984. Personnel of the Ticonderoga mill first became involved in it late in 1985, when several manage- ment people were sent to a seminar. Bargaining unit per- sonnel first became involved with it early in 1986. In this program, teams of unit personnel led by supervisors are constituted into discussion groups to generate ideas for the improvement of mill processes The groups meet every 3 weeks on a rotating basis, after hours, off shift time. Participating employees received overtime pay. Prior to March 1987, a total of 180 employees had par- ticipated in the program. The Supervisory Process Control System (SPCS) in- volved only Gillette Bartlett and one other employee. At management's request, they examined and evaluated computer systems, selected one for the mill, and started programming it in order to computerize the plant control system. They left the program in March 1987, as herein- after described, leaving the work unfinished. The Em- ployer has had several engineers working on it since then. Prior to that time, Bartlett had left the program several times and returned to his regular job without ob- jection by the Employer. B. The Locals' Reaction to Labor Difficulties at Other Plants The Locals' actions which are at issue in the present case were triggered by a lockout at the Employer's facil- ity at Mobile, Alabama The collective- bargaining agree- ment covering the employees at that plant had expired on 21 January. Beginning in March, the Locals began re- questing, and then insisting upon, their members' absten- tion from the setup positions and special programs. They jointly issued several notices which were posted in the plant and otherwise distributed. The first, dated March 1987, read, in part: A Sister Local is currently locked out, Mobile, Ala. We therefore ask that those of our Members who are involved in M.T . S. and other such programs, REFRAIN from further involvement , until this matter is resolved. A joint notice dated 21 March 1987 again referred to 2 All dates hereinafter mentioned are in 1987 except as otherwise the lockout and announced a resolution passed by the ex- stated ecutive committees of the two Locals. 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [O]ur board has decided that until a satisfactory resolve has been made in the Mobile Plant, all mem- bers of the identified locals shall no longer move up into temporary non-bargaining unit jobs. Those found guilty of actions that are detrimental to our sisters and brothers in Mobile, Alabama are guilty of hindering future negotiating processes that may effect the bargaining strength at the Ticonderoga Mill Failure to comply with the above resolve could result in future adjudication by the authority of the local signatory unions. On 27 March, a joint memorandum addressed to all members of the two Locals, reflecting the worsening labor situation, flatly ordered a halt to further participa- tion: As per Mario Scarselletta [the International rep- resentative], no one is to participate in the Q.I.P., M.T.S. or any other such programs until such time as the labor dispute in Mobile, Alabama and Moss Point, Mississippi have been satisfactorily resolved Personal exhortations to like effect were made by Gil- lette Bartlett, as president of Local 5, and by James De- Zalia, the president of Local 497. However, by April it had become apparent that some of the members who held setup positions or who were participating in the special programs were not going to comply with the di- rective. The Locals resorted to disciplinary action under article XII, section 1 of the International constitution. Local 497 was the first to act. On 16 April, Matthew Russell, who had continued in a setup billing clerk's po- sition, was fined $50 for each week he had continued in that position after the directive. The membership was ad- vised of this penalty. Paul Salstead and Peter Plass, who had also continued in setup clerical positions, were charged in June. A setup temporary foreman named John Tobin was personally directed, in writing, to return to his regular unit job (he has refused to do so). Local 5 fined an employee named James O'Bryan on 12 May for failure to leave a setup position as a safety trainee. Both Locals have held up further disciplinary proceedings pending the outcome of this case. It is apparent that, notwithstanding some unevenness of effect, the pressure exerted by the Locals has forced members who did not wish to comply with the directive to leave or decline setup positions. Participation in QIP is down to between 80 and 100 employees. The Employ- er has taken no disciplinary action against any employee for leaving or declining a setup position and has stopped offering setup positions to unit employees because, as Lynn Harrington testified, "it was clear that they had all gotten the message that they were not to move up . .. " Formally, it has denied grievances filed by em- ployees and by Local 497. It has honored requests by Plass, Salstead and an employee named Paul Connery that they not be continued in setup positions and has re- spected the decisions by two employees (Boucher and Cook) to decline setup foreman-analyst positions. Living- ston attributed the Employer's acquiescence to a desire not to hold individual employees who had worked hard responsible for directives they received "from other par- ties." C. Alleged Violation of Section 8(b)(1)(B) The contention that Section 8(b)(1)(B) had been violat- ed rests on the proposition, which the General Counsel had the burden of proving, that employees who had ac- cepted assignments to positions as setup foremen were endowed with authority to adjust grievances. It was argued that they acquired this authority by direct grant and, in addition, as an incident of general supervisory status possessed by them within the meaning of Section 2(11) of the Act. Neither basis for the claimed authority was proven. All the evidence regarding this violation came from James B. Livingston, the manager of human resources at the Ticonderoga mill; Lynn Harrington, the superintend- ent of maintenance at the mill; and Gillette Bartlett. The testimony given by Livingston and Harrington was extremely general in nature, and I do not credit it. They provided no specific details regarding the work ac- tually done by any particular individuals who had acted as setup foremen. Neither witness recited a single specif- ic instance in which authority to adjust grievances had been conferred on any setup foreman; no individual was identified, no instance was cited of conferral or exercise of the supposed authority. Livingston conceded that he was unaware of any situ- ation in which a setup foreman had actually handled a grievance, and there is no evidence in the record of any single instance when a setup foreman actually processed a grievance Harrington couched his testimony in terms that made it seem as though he was describing activities that had actually taken place. For example, he asserted that setup foremen, when handling grievances, would "very often" consult with him. He said that in a certain number of situations a setup foreman would handle a grievance on his own. However, he cited no actual situa- tion involving a grievance and did not name a single setup foreman who had handled a grievance, with or without consultation with him. I find the omission trou- bling and have considered the lack of specificity in the testimony of both Livingston and Harrington in assessing the credibility of their testimony. Teamsters Local 959 (Northland Maintenance), 248 NLRB 693 fn. 2 (1980). Even to the limited degree that either witness gave testimony of some specific nature, it tended to demon- strate, not that authority to adjust grievances was con- ferred on the temporary foremen, but rather that they were deprived of discretion to act independently and that even the authority of the permanent foremen was se- verely circumscribed. Noting that the collective -bargaining agreement is in evidence and so provides, Livingston testified that fore- men are involved in the first stage of a grievance. The first stage is informal and nothing is put in writing. Liv- ingston estimated that about 30 grievances a year are re- solved at that stage. Approximately 150 grievances a year reach the first formal stage, when it is put in writ- ing and the foreman responds . Most grievances involve job duties, work assignments and matters pertaining to PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) pay, the last-mentioned category embracing half of all grievances . Livingston passes on pay grievances prior to payment, relying on the foremen 's reports and paying 90 percent of them in accordance with the foremen's rec- ommendations . Livingston equated the authority of setup foremen and permanent foremen : "They have all of the authority of an existing foreman to include the adjust- ment of grievances." Harrington also testified in general fashion that a setup foreman has the full authority of a regular foreman. He cited the foremen's duties as enumerated in the collec- tive-bargaining agreement and asserted that when setup foremen assume their positions , he briefs them and ex- plains to them what authority and responsibility they have. His testimony was as lacking in specific details as Livingston's. When asked if grievance procedures are in- cluded in his briefings, he replied, "The contract is always discussed and what their position is and how they are supposed to conduct themselves in the interest of the company." The most specific he ever became was his testimony that he advised them what the "parameters" were: they could not send people home, pay money for unworked hours, or pay out money without checking with him; they could adjust grievances that had to do with scheduling, the way work is done, hours and noon- hour work. The testimony of Livingston and Harrington thus dem- onstrates that the setup foremen had no discretion to ex- ercise independent judgment in the area of grievance ad- justment. I find that just about all of the grievance-ad- justment work they were supposedly authorized to do was intended to be done under close combined supervi- sion of Harrington and Livingston. It appears from the testimony of Livingston and Har- rington that even the permanent foremen, to whose powers they were equating those of the setup foremen, may have lacked discretion to exercise independent judg- ment They testified that in at least half the grievances, those involving pay, approval of higher authority for a resolution had to be obtained by both permanent and setup foremen, and all were instructed in how to handle grievances "in the interest of the company." When asked by the Employer's counsel whether regular foremen also spoke to him occasionally before making a final adjust- ment on a grievance, Harrington replied, "Definitely." The emphatic tone of his reply suggested that consulta- tion was more than "occasional" and was expected. The power of foremen to exercise independent judg- ment in most cases was lacking and it is settled that pos- session of such power is an essential ingredient of true supervisory status under Section 2(11) of the Act NLRB v. Lauren Mfg. Co., 712 F.2d 245 (6th Cir. 1983). See also Chicago Metallic Corp., 273 NLRB 1677 (1985), modified on other grounds 794 F.2d 527 (9th Cir. 1986). We do not have to rely on the testimony alone. Mill rule 19, incorporated in and made part of the collective- bargaining agreement, limits the disciplinary powers of foremen in significant respects . Under this rule, depart- ment foremen may temporarily suspend an employee from work for causes listed in the rule, but they must report the asserted infraction to the mill manager and he, not the foremen, decides what discipline is to be im- 1177 posed The authority of a working foreman, in the ab- sence of a salaried supervisor, is limited to suspending an employee for the balance of the shift and directing him to report back when the supervisor is present. The lack of true supervisory status on the part of the setup foremen is also demonstrated by the sporadic and irregular nature of unit employees ' assignment to such positions . Appointments were not made on a regular, systematic and long-term basis Livingston testified that over the course of the 2 years preceding the hearing three persons who were put into positions as mainte- nance foremen or analysts (Pearson, Boucher and Cook) had only been assigned from time to time on a contin- gent and sporadic basis and to meet limited objectives of the Employer. Q What are the purposes of individuals asked in set-up positions? A. They're asked to be in set-up positions for a couple of purposes One is to gain training and man- agement savings that might have potential to be a supervisor. We like to view them in that role before we make an offer to them. Secondly, they're set up to fill vacancies when other supervisors go on vaca- tion, go off to a school somewhere, or they might be out on insurance. They could be sick or injured in some way. A finding that an employee had supervisory status when performing work clearly different from his regular nonsupervisory job duties must be based on evidence that he devoted a regular and substantial portion of his time to supervisory work, Thus, supervisory status has been found where an employee exercised supervisory au- thority on a weekly basis throughout the year, Aladdin Hotel, 270 NLRB 838, 839 (1984), and when as much as 25 percent of his working time was spent in supervisory duties, Honda of San Diego , 254 NLRB 1248 ( 1981). But supervisory status will not be found if the substitution is sporadic or for only a small percentage of the employ- ee's total work time. See Latas de Aluminio Reynolds, 276 NLRB 1313 (1985) (lack of regularity); Canonsburg Gen- eral Hospital Assn., 244 NLRB 899 (1979) (substitution principally at supervisor's vacation time and otherwise sporadic and irregular); Murphy Bonded Warehouse, 180 NLRB 463 (1969) (leadman substituted only when regu- lar supervisor not present , which was 10 percent of his working time); Tomkins-Johnson Co., 172 NLRB 2216 (1968) (employee substituted when foreman on vacation or absent from work area), Stewart & Stevenson Services, 164 NLRB 741 (1967), modified and enfd. 414 F.2d 232 (5th Cir. 1969) (substitution during annual vacations of regular supervisor). In the absence of detailed testimony from Livingston and Harrington and from any permanent or setup fore- men as to what they did or were told to do, the General Counsel and the Charging Party point to an affidavit by Bartlett which they assert demonstrated that foremen and setup foremen had supervisory authority . Bartlett had made the following statement: 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To my knowledge, these set-up positions carry with them the full authority that the regular compa- ny supervisor possesses; namely, the right to disci- pline unit employees and adjust their grievances at the initial stage of the grievance procedure. However, the affidavit was brought up because he took a different position at the hearing. After testifying that the foremen (meaning, as the context makes clear, the permanent foremen) have a role in the grievance pro- cedure, he was asked the following specific question by the General Counsel, and gave the following answer: Q. Am I correct that the set-up foremen, under the contract, are the first step of the grievance pro- cedure? A. No. Q. No? A. Other than- Hearing Officer: What's the first step? A. Informal meeting with the department head or whoever, foremen or whoever. Hearing Officer: Well, if a set-up foreman is op- erating in that particular area, wouldn't he be the person? The Witness: Set-up foreman I've never handled a grievance with, your Honor. That was his ques- tion. A foreman, I have Though, when shown his affidavit, he said it was true, he nevertheless, on cross-examination by Respondents' counsel, testified to the refusal of a setup foreman to handle grievances, as demonstrating the general under- standing that they did not have that authority. Instead, when problems arose, they had informal conversations with him. The Charging Party has argued that Bartlett's testimo- ny regarding a setup foreman who refused to adjust grievances in effect proved that as a rule they did adjust grievances, that if one setup foreman refused to adjust grievances, others must have had the authority That does not necessarily follow. His testimony with respect to the incident was as follows: One of my officers in the local took a temporary set-up as a back shift foreman, and he flatly stated to . . Mr. Harrington, "If I do the job," he says, "don't expect me to handle grievances because I'm not going to handle any grievances on this job." I read the testimony as supporting Bartlett's contention that setup foremen were not involved in grievance pro- ceedings and place minimal value on the affidavit. It was made in collaboration with an investigator whose input is unknown and whose influence on its contents was not probed at the hearing. Bartlett testified and was cross-ex- amined, and his testimony should be given greater weight. I conclude that, at best, the setup foremen had author- ity to process, rather than adjust, grievances Besides the lack of specificity, in the testimony of the General Counsel's witnesses, the General Counsel's case is also undermined by the failure to produce witnesses who could have supplied easy corroboration of the testi- mony of Livingston and Harrington, with detailed infor- mation on this important issue, and who certainly could have been expected to testify favorably to the General Counsel and the Charging Party. No one was called to testify who had acted or had been requested to act as a setup foreman. The permanent and temporary foremen were in an excellent position to describe the extent to which they adjusted grievances and exercised independ- ent judgment in doing so. The setup foremen could also have testified about the briefings they got from Harring- ton before they assumed their duties. See Pur 0 Sil, Inc, 211 NLRB 333, 337 (1974), affd. 420 F.2d 411 (2d Cir. 1975) (inference drawn based on failure of employer to call four of its own managers); Chicago Metallic Corp, 273 NLRB 1677, 1690 fn. 78 (1985), modified on other grounds 794 F.2d 527 (9th Cir. 1986); 7-Eleven Food Store, 257 NLRB 108, 114 fn. 41 (1981); Publishers Print- ing Co, 233 NLRB 1070, 1071 fn. 1 (1977) (failure to ex- plain why supervisors were not called). It is also to be noted that it is permissible, in borderline cases, to consid- er "secondary indicia" of authority such as the employ- ees' beliefs as to the extent of supervisory authority pos- sessed by their foremen. NLRB v. Chicago Metallic Corp., supra at 531. None of the employees at Ticonderoga were brought in to testify on that point. Accordingly, I do not credit the broad assertions of Livingston and Harrington, wholly unsupported by any factual verification, that specific authority to adjust grievances was conferred upon the setup foremen, and I find no evidence that any of the setup foremen exercised any of the functions listed in Section 2(11) of the Act with independent judgment in a nonroutine manner. At most, they were leadmen, skilled employees exercising routine control over less capable or less experienced em- ployees. See Addy Mechanical Fabricators, 257 NLRB 738 (1981). The fact that Livingston approved payment in 90 per- cent of the pay grievances in accordance with the fore- men's recommendations does not establish that they ef- fectively recommended such action and certainly pro- vides no information regarding the disposition of griev- ances processed by setup foremen. The immateriality of such an argument was noted by the Supreme Court in NLRB v. Yeshiva University, 444 U.S. 672, 871. fn. 11 (1980). Nor does the frequency with which an employer acquiesces in the recommendations of its employees convert them into managers or supervisors. See Stop and Shop Cos., Inc. v. NLRB, 548 F.2d 17, 19 (C.A. 1, 1977). Rather, the pertinent inquiries are who re- tains the ultimate decision making authority and in whose interest the suggestions are offered. A differ- ent test could permit an employer to deny its em- ployees the benefits of collective bargaining on im- portant issues of wages, hours and other conditions of employment merely by consulting with them on a host of less significant matters and accepting their advice when it is consistent with management's own objectives. PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) There is a failure of proof in yet another respect. In NLRB v. Electrical Workers Local 340, 481 U.S. 573, 585 (1987), it was held that even if setup foremen were shown to have supervisory status, it would still have to be demonstrated that the supervisor in question actually performed on 8(b)(1)(B) duties; and that even if that were shown,.a finding of violation of Section 8(b)(1)(B) could not be sustained without a "factual inquiry wheth- er a union's sanction may adversely affect the employer- representative's performance of collective bargaining or grievance-adjusting duties" because union discipline of supervisors who did not have such duties was not an unfair labor practice. It was observed that, since union members have been ruled to have the right to resign from a union at any time and avoid imposition of union discipline, an employer may order its representatives to do so and thus avoid any interference with its selection of representatives. Patently, the record in this case fails to establish that the union interfered with an employee performing such duties or acting in a representative ca- pacity for the employer in connection with adjustment of grievances Local Union No. 46, Metallic Lathers, 259 NLRB 70 (1981), modified on other grounds 727 F.2d 234 (2d Cir. 1984). There is no evidence that the compa- ny offered setup foremen permanent positions or asked them to resign from the union On the contrary, the Em- ployer permitted unit employees to withdraw from setup positions in compliance with the Locals' directive. We are dealing, therefore, with temporary setup fore- men having no power to adjust grievances by reason either of specific grant or as part of a general superviso- ry status, who assumed the setup positions on a sporadic, irregular and contingent basis, and exercised no inde- pendent judgment. They are not shown to have ever, in any specific instance, adjusted a grievance. The circumstances of this case are therefore markedly different from the facts of the cases which counsel for the Employer urges as controlling: American Broadcast- ing Companies v. Writers Guild of America, West, Inc., 437 U.S. 411 (1978), Wisconsin River Valley District Council of Carpenters, 218 NLRB 1063 (1975), affd. 532 F.2d 47 (7th Cir. 1976), and Typographical Union 403 (Pennwell Printing), 274 NLRB 1424 (1985). In ABC v. Writers Guild, the authority of the union members to adjust grievances and their availability for that purpose when the occasion arose were regarded by the Supreme Court as "unquestionable." In Wisconsin River Valley, the union fine was levied on a person who spent 70 percent of his time as a job superintendent, a concededly supervisory position, and the employer, having declined to adhere to an agreement negotiated by an employers association, had no contractual relationship with the union. The cir- cuit court expressly treated the evidence as having clear- ly established that he was a supervisor who represented the company for the purpose of grievance adjustment at the pertinent time. In fact, in its opinion it noted that the relevant facts were not in dispute. In Typographical Union, the status of shift foremen as 2(11) supervisors was stipulated to by the union and the administrative law judge noted that the record contained uncontradicted evidence that shift foremen actually handled and re- ceived employee grievances. 1179 Accordingly, I find that the Respondents did not vio- late Section 8(b)(1)(B) of the Act. D. Alleged Violation of Section 8(b)(1)(A) The General Counsel contends that the Unions violat- ed Section 8(b)(1)(A) by disciplining members for refus- ing to engage in concerted activity that was unprotected by the Act The setup positions and special programs are asserted by the General Counsel to have become "terms and conditions of employment" of the members repre- sented by the Unions within the meaning of Section 8(d) of the Act. As there is no mention of them in the collec- tive-bargaining agreement, the General Counsel claims that they became part of the terms and conditions of em- ployment by reason of longstanding practice Therefore they could not be unilaterally modified. Doing so violat- ed the collective-bargaining agreement provisions ban- ning strikes during the term of the agreement and requir- ing submission of disputes to arbitration. The Locals could not make their members unwilling accomplices to such violations by disciplining them, regardless of the au- thority they might otherwise have had in regard to inter- nal discipline. The Charging Party presses a further ar- gument that the actions pursuant to the International constitutional provision violated the policy of the Act. On the evidence in the record, I find (1) that the setup positions and the special programs were not "terms and conditions of employment" regarding which the Re- spondents were obligated to bargain; (2) the abstention from such positions and programs demanded by the unions did not constitute a partial strike and was not a violation of the contractual provisions banning work interruptions and requiring arbitration of disputes; and (3) the actions demanded of their members by the unions did not violate any statutory provision or policy. 1. Terms and conditions of employment The General Counsel asserts, in his posthearing brief, "It is beyond dispute that the programs referred to in the Locals' March directives were part of the regular duties of unit members." He thus assumes what he was sup- posed to prove. The General Counsel has the burden of establishing unfair labor practices by a preponderance of all the relevant evidence. International Computaprint Corp., 261 NLRB 1106, 1107 (1982). On the basis of the assumption that the setup positions and the special pro- grams had become mandatory subjects of bargaining, he contends that the Locals had no legal right to insist upon their members' withdrawal from them without first nego- tiating with the Employer. He does not, however, sug- gest that unit members had the right to insist upon ap- pointment to such positions and programs or that the Employer could not unilaterally cancel, curtail or other- wise modify them. The principles which govern the determination of whether setup positions and special programs are "terms and conditions of employment" within the meaning of Section 8(d) of the Act have been elucidated by the Su- preme Court. Its analysis of the history of the statute has led it to conclude that Section 8(d) is a limiting provision which restricts the obligation to bargain to specified sub- 1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jects: "wages, hours, and other terms and conditions of employment." Bargaining on subjects other then these is optional with the parties . Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 210 (1964). In analyzing whether a particular action affected employees' terms and condi- tions of employment, the Court considered factors such as whether it was within the literal meaning of the phrase employed in the statute ; whether deeming it within the meaning of the phrase would indeed promote the policy of the Act, which is to further peaceful settle- ment of industrial disputes ; whether such a decision would or would not significantly abridge managerial freedom; and whether a conclusion that a particular matter was within the terms of Section 8(d) was support- ed by existing industrial practice. Justice Stewart, in a concurring opinion which has been frequently cited , discounted industrial practice somewhat, noting that frequent negotiation of a particu- lar subject matter could mean merely that the parties found it mutually advantageous to negotiate that particu- lar issue. Defining "the ultimate question" as "the scope of the duty to bargain defined by the statutory lan- guage," he commented: It is important to note that the words of the stat- ute are words of limitation. The National Labor Re- lations Act does not say that the employer and the employees are bound to confer upon any subject which interests either of them ; the specification of wages, hours, and other terms and conditions of em- ployment defines a limited category of issues subject to compulsory bargaining... . The phrase "conditions of employment" is no doubt susceptible of diverse interpretations.. - . Only a narrower concept of "conditions of employ- ment" will serve the statutory purpose of delineating a limited category of issues which are subject to the duty to bargain collectively. [Emphasis added.] [379 U.S. at 220, 221] As an example, Justice Stewart noted that employment security in some circumstances (discriminatory discharge, seniority rights) may be a condition of employment, but that not every management decision affecting job securi- ty`s a compulsory subject of bargaining . Decisions relat- . ing to advertising, product design and financing , for ex- ample, were felt not to involve "conditions of employ- ment" to such an extent and in such a manner as to re- quire negotiation with the union. One of the things that he felt could make the difference would be the character of a decision as an incident of managerial discretion: In many of these areas the impact of a particular management decision upon job security may be ex- tremely indirect and uncertain, and this alone may be sufficient reason to conclude that such decisions are not "with respect to . . . conditions of employ- ment." ... Nothing the Court holds today should be understood as imposing a duty to bargain collec- tively regarding . . . managerial decisions, which lie at the core of entrepreneurial control. Decisions concerning the commitment of investment capital and the basic scope of the enterprise are not in themselves primarily about conditions of employ- ment, though the effect of the decision may be nec- essarily to terminate employment . If, as I think clear, the purpose of Section 8(d) is to describe a limited area subject to the duty of collective bar- gaining, those management decisions which are fun- damental to the basic direction of a corporate enter- prise or which impinge only indirectly upon em- ployment security should be excluded from that area. [379 U.S. at 223.] In Allied Chemical & Alkali Workers v Pittsburgh -Plate Glass Co., 404 U.S. 157, 178, 179 (1971), the Supreme Court described the matters as to which bargaining was required as those issues that "vitally" affect terms and conditions of employment and which "settles an aspect of the relationship between the employer and employ- ees." Only in those cases can a unilateral modification be unlawful. The concept of Section 8(d) as a limitation on the subjects of bargaining was reiterated in First National Maintenance Corp. v. NLRB, 452 U.S. 666, 676 (1981) (hereinafter referred to as First National Maintenance). Reviewing the history of Section 8(d), the Supreme Court noted that a rigid definition of the term was never intended and that Congress left the question of what constitutes "terms and conditions of employment" to be determined by the Board on a case-by-case basis, subject to judicial review of the reasonableness of the Board's construction of the statute in any particular case. See Ford Motor Ca v NLRB, 441 U.S. 488, 497 (1979); First National Maintenance, supra at 675. The result is not different when a decision (even one to close a plant and leave a particular locality) necessari- ly affects terms and conditions of employment and yet, in itself, is not primarily about terms and conditions of employment; it is not a mandatory subject of bargaining. First National Maintenance, supra. In the present case, the Locals' decision that their members would not per- form certain types of work not covered by the collec- tive-bargaining agreement was not, in itself, primarily about terms and conditions of employment at Ticonder- oga. It was a decision made to ensure that actions by members of Locals 5 and 497 would not hurt members of other locals of the International employed at other plants owned and operated by the Employer. The decisions to offer temporary assignments and invite the employees to participate in special programs were also unrelated to terms and conditions of employment. The decision in Otis Elevator Co., 269 NLRB 891 (1984), was guided by the Supreme Court's decision in First National Maintenance, supra. The employer had uni- laterally decided to discontinue research and develop- ment activities at one location and consolidate them with its operation at another location . The Board held that it could do so, unrestrained by Sections 8(a)(5) and (d) of the Act, because its decision did not turn upon labor costs but on a change in the nature and direction of a significant facet of its business; its decision was manageri- al and therefore outside the limited scope of Section 8(d) as elucidated in Justice Stewart's concurring opinion in Fibreboard Corp. v. NLRB, 379 U.S. 203, 217 (1964). The Board clearly indicated the types of decisions which, in PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) its view, tended to "affect the scope, direction or nature of the business." These are decisions to sell a business; to sell part of a business; to dispose of assets; to restructure or consolidate operations; to subcontract; to invest in labor-saving machinery; to change the methods of fi- nance, sales, advertising, product design and all decisions akin thereto (Otis Elevator Co., supra at 893 fn. 5). The decisions made by the Employer herein, pertaining to training, improvement of methods of processing, and for- mulation of programs having these as their ultimate ob- jectives, are not very different from decisions to invest in labor-saving machinery. In First National Maintenance, supra at 676-677, Jus- tice Blackmun classified management decisions as those having only an "indirect and attenuated" impact on the 'employment relationship (advertising, product type and design); those which are almost exclusively an aspect of the relationship (order of layoffs and recalls, production quotas, work rules); and those which have a direct impact on employment but have as their focus only the economic profitability of particular circumstances or contracts, "wholly apart from the employment relation- ship." That case involved a cleaning contractor's cancel- lation of a contract with a customer, resulting in loss of employment for some employees, but the focus was deemed to be purely economic and the matter not ame- nable to resolution by bargaining What was involved was a managerial decision to discontinue an unprofitable contract, and the fact that it necessarily affected employ- ment and was of deep concern to employees and the union did not take it out of the scope of managerial dis- cretion. The guidelines provided by these cases impel me to exclude the setup positions and special programs of the Charging Party from the "terms and conditions of em- ployment" at Ticonderoga and to conclude that they were not matters regarding which the parties were obli- gated to bargain. These programs did not become terms and conditions of employment by reason of longstanding practice affecting the unit as a whole, for even the infor- mal assignment of unit members to special training dates only from 1975. The first writers were assigned to the MTS programs at Ticonderoga as recently as February 1985. The evidence shows that setup positions were of- fered to only a few employees; that a distinct minority of employees participated in the special programs and that in some of them very few persons were involved; that employees entered the programs voluntarily; that ap- pointments thereto were only on express invitation and were sporadic and irregular, and dependent entirely on the pace at which management desired to proceed with the programs, that programs were initiated and setup foremen appointed solely to further management objec- tives, such as to enable it to find supervisory personnel, shift personnel around and train workers less expensive- ly; that employees left the positions and programs when they wished to do so (see discussion of the legality of withdrawal, infra); and that the duties performed by par- ticipants in the programs and by setup foremen and setup clerical help were distinct and different from their unit work duties and from the normal work duties of other unit employees. Livingston testified that participants 1181 were selected on the basis of their knowledge of oper- ations, their experience, and their possession of the quali- ties and characteristics needed for gathering and colla- tion of the material and instruction in later training pro- grams. He stated, "Once the department superintendent identified these people, they approached them and asked them if, indeed, they would like to participate in that kind of assignment " It was purely voluntary on their part and strictly off their regular work shifts. I think it is important to realize how few persons were invited into the MTS and other programs and into setup positions . The SPCS program involved only two unit members. Livingston's testimony clearly indicated the nature of the restrictions which kept down the number of persons invited to accept setup supervisory positions, the principal factors being the limited number of posi- tions and the high qualifications the candidates had to meet: Q. How do individuals come to serve in set-up positions? A. Individuals are asked if they will set up on a voluntary basis, based on their knowledge of the equipment, ability and perceived ability to fulfill the role as supervisors. So, it's experience, knowledge, and potential to one day be a supervisor. Q. The set ups are only to supervisory positions? A. No. There are also set ups to clerical posi- tions. In that case, the people that have the propen- sity for the clerical skills and want to move into those jobs will also set up. The General Counsel has claimed in his posthearing brief that the setup positions and special programs had been the subject of negotiation between the Employer and the Locals so that they became "negotiated terms of employment." The evidence does • not demonstate that. For one thing, there never was any negotiation regarding it between the International and the Employer, and the International was the only entity with whom the Em- ployer was authorized to negotiate terms and conditions of employment. All collective-bargaining agreements were negotiated between the Employer and the Interna- tional. They were the parties to such agreements. See Shipbuilders (Bethlehem Steel), 277 NLRB 1548 (1986), which is also discussed below in connection with the ar- guments raised herein concerning the policy underlying the Act. The only exchange between the Employer and the International consisted of an assurance to the Interna- tional representative that in the event that any ideas ema- nating from the QIP program resulted in reductions in employment at the Ticonderoga mill, the jobs of bargain- ing unit members would not be affected This was given in a letter dated 17 January 1986 from Paul T. Stecko, the mill manager, to Mario Scarselletta, the International representative, confirming a verbal commitment that "no current Ticonderoga Mill employee will be permanently laid off or terminated as a direct result of changes result- ing from the recommendations of any joint team of man- agement and bargaining unit employees functioning under the MTS or QIP processes " The General Counsel has cited the letter, as he did Bartlett's testimony, for the 1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proposition that the Respondents recognized the pro- grams as established duties. I search in vain for anything in the letter which says or even suggests that. The letter refers to and relates exclusively to the job security of the members of the unit. In fact, the references to the pro- grams treat them as transitory in nature, which indeed they are. This case differs sharply from those relied upon by the General Counsel Those rulings took account of specific situations wherein employers' and unions' actions war- ranted a finding that unilateral action violated the equiv- alent of a specific agreement between them. In Food & Commercial Workers Local 1439 (Rosauer's Supermar- kets), 275 NLRB 30 (1985), the parties included in the collective-bargaining agreement a no-strike provision which also provided that the union would not discipline employees who refused to cross a picket line. In Electri- cal Workers IBEW System Council T-6 (New England Telephone), 236 NLRB 1209 (1978), enfd. 599 F.2d 5 (1st Cir. 1979), as in the present case, the union had adopted an internal rule preventing members from taking tempo- rary assignments as supe:visors . But an arbitrator had al- ready ruled, prior to the adoption of the rule, that the collective-bargaining agreement recognized the employ- er's right to assign bargaining unit employees temporarily to such positions (The Boai d also found a satisfactory showing of established practice.) In Communications Workers Local 1170 (Rochester Telephone), 194 NLRB 872 (1972), enfd 474 F.2d 778 (2d Cir. 1972), the parties had entered into a side agreement contemporaneously with the collective-bargaining agreement, and before the adoption of a union rule relating to the subject matter, under which the union recognized and acquiesced in the employer's practice of appointing unit employees to su- pervisory positions. In the present case, the International, which alone was authorized to negotiate with the Em- ployer, had made no agreement at all relating to such ap- pointments. There is no evidence that the matter had ever been discussed between them The letter provided by the Employer relating to the QIP program does not deal with appointments to such programs or working conditions therein, but solely with the prospective results of QIP suggestions on future employment prospects. The issue in Kansas Education Assn., 275 NLRB 638 (1985), was whether the union was estopped from asserting a right to bargain and to be consulted with respect to an employee's transfer to a probationary position which had been directly negotiated between the company and the employee over the union's objection. The Locals herein assert no right to bargain respecting setup positions and special programs and deny the Employer's right to insist upon it. A case more directly analogous to the present case is United Technologies Corp, 274 NLRB 1069 (1985), affd. 789 F.2d 121 (2d Cir. 1986), in which a special program of long standing was held not to be a subject of manda- tory bargaining between the employer and the union. For 20 years the employer had hired college-age chil- dren of unit and nonunit employees to perform both unit and nonunit work on a temporary basis during the summer months, under assurances by the employer pro- tecting the work and overtime work of regular employ- ees. It was held that the phrase "terms and conditions of employment" was construable in a limited sense and did not include "all subjects that may merely be of interest or concern to the parties." (274 NLRB at 1070.) It was held that any change in the program or even its total elimination was solely within the control of the employ- er, which is precisely the situation in the present case. Testimony by Bartlett is asserted to have a "thrust" toward establishing that MTS and the setup positions were "negotiated terms of employment." Bartlett testi- fied that he had a conversation with Stecko. He could not fix the time and did not know if it had taken place before or after the MTS program started. Bartlett testi- fied that Stecko said the Company had invested a lot of money in the program and he wanted to get some of the smarter people into it. The conversation apparently re- solved a problem in connection with work schedule changes by two MTS participants Bartlett testified that it was agreed that those personnel would be taken off the call-in list and would be paid their regular salary, with option to leave the program any time they wanted to. They were taken off the regular workshift. Considering that Bartlett also testified that he was in daily contact with Stecko in connection with plant problems, it is hard to see how the discussion about the MTS arrangement could be deemed a negotiation of terms and conditions of employment. They merely resolved a matter of mechan- ics, to the extent of removing two people from scheduled bargaining unit work shifts so that they could work a daily daytime shift writing the manuals It had absolutely nothing to do with the remainder of the employees in the unit or with the conditions under which the manuals were written. The assertion by the Charging Party that this constituted negotiation of terms of employment, in the context of collective bargaining for the unit under Section 8(d), is unjustified on this record. Furthermore, the evidence uncontroverted that over the course of many years, terms of employment were negotiated by the International and the contracts were administered by the locals, and this was an example of such administra- tion. Also cited as evidence of union recognition of the setup positions and special programs as "terms and con- ditions of employment" are grievances filed by the em- ployees and an unfair labor practice charge filed by the International I do not believe they serve to demonstrate such recognition. The employees who withdrew from the special programs at the request of or under pressure from the Respondents followed a procedure whereby they filed grievances with the Company in writing, citing the Union demand that they withdraw and their desire not to be placed in th middle of the conflict. The company denied the grievances, asserting that they were obligated to pursue the work assignments in which they were engaged. Nevertheless, the Company permitted them to return to the unit and took no punitive action, in effect acquiescing in or consenting to their withdrawal It is difficult to believe that these programs were serious- ly considered "terms and conditions of employment" when, by the Company's own admission, it made no effort to prevent the withdrawals. At the time, it was ap- PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) parently the Employer's viewpoint that these were not subjects of bargaining. On 9 April, Local 497 filed a grievance report requesting return of all local members from managerial positions to their unit positions and that future appointments be made with its approval. In deny- ing the grievance, on 15 April, the Employer did so on the ground that it was following longstanding practice and then asserted, "There is no provision in the labor agreement for union approval of these set-ups." Certainly the filing of an unfair labor practice charge does not estop the Respondents from asserting their present position in this case, nor does it require any dif- ferent conclusion on my part as to the facts of this case and their legal significance. I note, however, that the charge alleged that the Company threatened to discipline a group of employees working as MTS program volun- teers "because they asserted rights under a collective- bargaining agreement" and because since 15 March 1987 the Company "has refused to bargain collectively with Local 5" by refusing to honor its agreement with Local 5 as to the job status of employees who volunteer to work in the Company's MTS program. The charge became moot when the Company permitted the unit members to return to the unit I find nothing contained therein which demonstrates that the special programs themselves, and participation in them, became mandatory subjects of bargaining. The subject matter of the griev- ance was the employees' rights relative to their unit posi- tions. Finally, in resolving what Justice Stewart called the "ultimate question"-the obligation to bargain-I note that the issue in this case is manifestly not one which is amenable to resolution by the collective-bargaining proc- ess, and that is a factor which the Supreme Court has considered pertinent. The Locals and the International cannot be expected to bargain away the provision in the International constitution mandating support of striking members in affiliated locals. There is no evidence in the record regarding industrial practice with regard to inclu- sion of similar provisions in union constitutions, inclusion of provisions in collective-bargaining agreements cover- ing setup positions and special programs or relating to priority as between such positions and special employer programs and similar union consitutional provisions, or relating to the extent, if any, to which an agreement be- tween the union and the Employer relating to such mat- ters would impinge on managerial discretion . In includ- ing industrial practice among the factors to be consid- ered in determining whether a subject matter was within the purview of Section 8(d) of the Act, the Court, in Fi- breboard Paper Products Corp. v. NLRB, supra, made the observation that that point is related to the further ques- tions of whether the subject matter is important enough and whether it is in fact negotiable: Industrial experience is not only reflective of the in- terests of labor and management in the subject matter but is also indicative of the amenability of such subjects to the collective bargaining process. [379 U.S. at 211.1 1183 In Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., supra, the Court indicated that matters regard- ing which bargaining would have only a speculative effect were excluded from the purview of Section 8(d) In First National Maintenance, supra, the Court observed that the Act was not intended to serve the parties' inter- ests, but to foster in a neutral manner a system for re- solving conflict between those interests, and that it was therefore important to consider whether requiring bar- gaining about a particular decision would advance the neutral purposes of the Act. To require bargaining in the present case would be counterproductive to the neutral purposes of the Act, and no evidence has been presented which would tend to indicate anything different. The evidence is therefore insufficient to support a find- ing that the setup positions and the special programs in- stituted by the Employer in this case had become "terms and conditions of employment" by March 1987 and that the International was therefore obligated to bargain with the Employer before the Locals could require their members to withdraw from and refrain from entering such positions and programs 2. The legality of withdrawal from setup positions and special programs It is conceded by the General Counsel and the Charg- ing Party that acceptance of a setup position and partici- pation in any of the special company programs were matters solely within the employees' discretion Inas- much as such acceptance and participation were volun- tary and the employer was not entitled as a matter of right to insist upon an employee's participation, the Re- spondents cannot be deemed to have insisted upon any- thing illegal when they asked members to refrain from accepting setup positions or participating in the special programs. Consequently, a violation of Section 8(b)(1)(A) cannot be found on that basis. Once involved, they still had the right to withdraw. Having found that participation in the setup positions and special programs was not part of the regular duties of unit members, and that such programs had not become "terms and conditions of employment" within the meaning of Section 8(d) of the Act, I conclude that the withdrawal of union members from such programs at the behest of the Locals' leadership was not a subject of mandatory bargaining, was not in violation of Section 8(d) and was not a matter which required submission to arbitration. Issues pertaining to setup positions and spe- cial programs are matters solely within the Employer's discretion and control. The grievance procedure is part of the continuing collective-bargaining process but these are matters which are outside of it. See Steelworkers P. Gulf Navigation Co., 363 U.S 574, 581 (1960). For basically the same reasons, the contention that fail- ure to perform these work assignments constituted a "partial strike" must also fail. There is no argument about the proposition that employees may not pick and choose the work they will do or the time when they will perform it The Employer's argument that the Locals called upon their members to engage in a partial strike is 1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD based upon a mischaracterization of the request they made to the employees. In its posthearing brief, it asserts that the Locals asked their members "to remain at work and refuse to perform only these assignments, . . ." In actuality, the Locals requested members in setup posi- tions and special programs into which they had voluntar- ily entered to abandon those altogether and return to their regular jobs in the unit, which they had not been performing. In the case of QIP, this would have in- volved abstention from attendance at further afterhours discussions, an activity which was completely separate from their regular work duties. The Employer relies upon Audubon Health Care Center, 268 NLRB 135 (1983), which involved an altogether different situation in which the Board found a partial strike on the part of nurses who violated instructions to share in covering a section left open by a nurse who had gone home ill. In that case, the employees were asked to extend the per- formance of their regular duties; they were not asked to embark voluntarily upon an altogether different work program. In its argument that the conduct requested of the members, besides being a partial strike, violated the con- tractual no-strike clause, the Employer cites Mastro Plas- tics Corp. v NLRB, 350 U.S. 270 (1956). In that case, however, the Supreme Court affirmed a judgment of the court of appeals enforcing an order of the Board predi- cated on the proposition that the employer had unlawful- ly fired employees who struck in violation of a contrac- tual no-strike clause, noting that a no-strike clause is never absolute and would not bar strikes in certain cir- cumstances such as those involved in that very case, in which employees struck because of the employer's com- mission of unfair labor practices. The Court expressly re- jected the company's argument that the employees' right to strike against unfair labor practices was waived by the explicit no-strike provision. It upheld what it termed "the Board's insistence upon preserving the employees' right to strike to protect their freedom of concerted action." (350 U.S. at 284.) The same reasoning applies to the action called for by the Respondents pursuant to arti- cle XII, section l(b)(4) of the International constitution. In the present case, the employees were not asked to refuse to perform unit work duties but to return to their unit work duties. Withholding services which are not part of employees' normal work duties does not consti- tute a partial strike . Cases in which employees have been found to have conducted a partial strike all involve some degree of refusal to perform unit work, especially during pendency of negotiations for a new contract . See Graphic Communications Local 229 (Daily Printing), 272 NLRB 1088 (1984) (ban on overtime of unit work duties during negotiations); Graphic Arts Local 13-B, (Western Publish- ing), 252 NLRB 936 (1980), enfd. 682 F.2d 304 (2d Cir. 1982) (more general ban held partial strike violative of statutory policy because imposed to exert unlawful pres- sure during pendency of negotiations). A "partial strike" can only be found when employees have refused to perform duties which are part of the terms and conditions of employment. Thus, in Valley City Furniture Co., 110 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir. 1956), a work stoppage was found to- be a par- tial strike because the union "in effect was attempting to dictate the terms and conditions of employment" and curtailing "the employees' willingness to give continuous and uninterrupted labor during the established workday." (110 NLRB at 1595.) In NLRB v. GAIU Local 13-B, 682 F.2d 304, 308 (2d Cir. 1982), the Court observed that an employee "is obligated to perform all of the work he was hired to do.... An employer is entitled to receive from a person who opts for continued employment the full and undiluted performance of the duties for which he is hired and paid." (Emphasis added.) In Audubon Health Care Center, supra at 136, the Board dealt with the ques- tion of when extra duties became part of the normal work duties and may not be withheld . It held that cer- tain extra duties fell into the category of work that had to be performed because, firstly, the performance of the additional work had become a practice so routine that no formal assignment was needed and both the aides and their supervisors assumed that the work would be done; and secondly, the extra duties and responsibilities were found to be the same as those entailed in the aides' normal assignments, the only change being the amount of the work done and not the nature of the work. The Board therefore likened the assignment of the extra work to "an unforeseen expansion of the workload rather than an assignment of a new job duty...." Consequently, objectionable unilateral- changes are only those which involve substantial and significant changes in agreed working conditions or fixed practices. San Antonio Portland Cement Co., 277 NLRB 309 (1985) (pay and working schedule changes); Suffolk Child De- velopment Center, 277 NLRB 1345 (1985) (change in medical benefits); Road Sprinkler Fitters Local Union v. NLRB, 676 F.2d 826 (D.C. Cir. 1982) (scope of bargain- ing unit work unilaterally modified by assignment of work to the unit). In Office & Professional Employees International Union Local 425 AFL-CIO v. NLRB, 419 F.2d 314, 321 (D.C. Cir. 1969), an employer unilaterally halted its practice of selecting unit members to perform audits; the Board found detriment to the bargaining unit by reason of loss of an element of work carrying higher pay and opportunity for experience and advancement, fording that it had become a term and condition of em- ployment because it was a regular and recurrent feature. Ninety audits had been. performed between 1962 and 1966. Aside from all of the above-mentioned considerations, the evidence establishes that the Employer never im- posed any restriction on the employees' right to depart from such voluntarily accepted assignments at their own option whenever they wished. There never appears to have been a problem by reason of an employee's decision to retire from the program prior to completion of a manual. The Employer has contended that departure while a manual is in preparation wastes all of the work done up to that point, but this contention is not self evi- dent and no proof was offered to demonstrate why a manual commenced by one employee could not be com- pleted by another, or why a finished manual could not be used as a text by a teacher other than the author. If that were true, evidence of the fact should have been PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) readily available. In fact,. however, at least three depar- tures from the program prior to March 1987 are docu- mented, none of which appears to have caused any such loss. In November 1986, a participant named Richard Rich requested and received permission to leave the pro- gram. (He later returned, but there is no evidence that his return was anticipated at the time he left the pro- gram.) Two participants, Brassard and Spaulding, left the program for periods of time in order to earn extra money on overtime work an the unit. In addition, there appear to have been instances when the Employer itself reas- signed MTS participants to their unit jobs to alleviate personnel shortages. In any event, premature departure is something for which the Employer made no provision when it invited employees into the program. Though Livingston testified that, once involved in writing and training, participants were required to stay until training was completed, he cited no basis for such an assertion, either by way of es- tablished company policy or agreement between the company and the unit members or their union. On the contrary, he conceded that the company has no formal policy concerning employees leaving the MTS program, and he testified flatly that he had no knowledge of whether or not participants were told, when they were invited into the program, that they were expected to remain in it until completion of training no matter what other circumstances obtained. He further admitted that he never discussed the subject of a participant's right to quit the program with any union official. That is under- standable. Prior to March only one participant in the MTS program had ever asked permission to leave it, and permission was granted, apparently without controversy. The reason cited by that employee, as related in Living- ston's testimony, did not impress me as being particularly compelling, and there seems to have been no concern that the work theretofore completed would be lost. The evidence in this regard also refutes the Employ- er's contention that the Respondents demanded that their members do something that would have subjected them to company discipline. The provisions of rule 19 of the Mill Rules, which, as I have noted, were incorporated into the collective-bargaining agreement, make no men- tion of setup positions and special programs, but enumer- ate neglect of duty and disobedience as causes for dis- charge Since the Employer had no right to insist that unit members remain in the special programs or setup positions and, in fact, did not insist upon it, there was no disobedience and no neglect of duty. 3. The policy of the Act The Charging Party presents an additional argument to the effect that actions of the Locals pursuant to article XII of the International constitution contravened the policy of the National Labor Relations Act, and there- fore were within the interdiction of Scofield v. NLRB, 394 U.S. 423 (1969). Reliance is placed on language of the Supreme Court in that case to the effect that Section 8(b)(1)(A) leaves a union free to enforce a properly adopted rule by disciplinary action against its members under certain conditions-that the rule reflect a legiti- mate union interest, impair no policy Congress has im- 1185 bedded in the labor laws, be reasonably enforced against union members, and leave them free to escape applica- tion of the rule by leaving the union The Employer con- tends that the disciplinary action imposed by the Locals pursuant to article XII impairs the congressional policy in favor of negotiated settlement of industrial labor dis- putes, reflected in Section 8(d) of the Act, and in favor of arbitration of disputes, reflected in Section 203(d) of the Labor Management Relations Act of 1947, because the duties involved in the setup positions and special pro- grams were terms and conditions of employment, and the Locals were therefore limited to resort to the con- tractual grievance machinery and arbitration.3 However, I have found that the work positions and special programs from which the Locals pressured their members to withdraw were not terms and conditions of employment, either by reason of inclusion in the collec- tive-bargaining agreement or by reason of longstanding practice in the company. There is, therefore, no factual basis for applying the Scofield analysis. The Scofield case does not deal with union action claimed to be in viola- tion of the collective-bargaining agreement, but with a union rule which assertedly violated statutory policy. The rule put a ceiling on piecework and provided for "banking" of sums earned for piecework done in excess of the limit. The collective-bargaining agreement specifi- cally provided for the ceiling and the employer had co- operated in enforcing it. The dispute was not between the union and the employer, but between a group of em- ployees who had been disciplined for violating the rule and the union. The union ceiling and its enforcement by the union were held not to violate the contract or the Act. Describing as the "principal contention" of the peti- tioners the argument that the rule impeded collective bargaining, the Court found that it did not, since the union had never denied that the ceiling was a bargaina- ble issue, and, in fact, the ceiling had been the subject of bargaining. The Court noted examples of the types of il- legal union activity which contravened overriding poli- cies of the Act, none of which involved circumstances similar to those of the present case. They involved mat- ters such as rules which interfere with the filing of unfair labor practice charges before the Board. (See Stage Em- ployees, 223 NLRB 959 (1976) ) Other examples of the type of illegality which would suffice to void internal union discipline have since been provided by cases such as Longshoremen Local 30, 223 NLRB 1257 (1976), and Mississippi Gulf Coast Building, 222 NLRB 649 (1976) (illegal picketing); Communications Workers Local 1127, 208 NLRB 258 (1974) (strike less 3 The General Counsel, in his posthearing brief, touches only lightly on statutory policy, merely noting that violation of the Act by reason of disciplinary measures and threats by a union against its members who refuse to engage in contractually prohibited actions would be a violation of the Act "[i]ndependent of the underlying policy consideration dis- cussed in" Highlands Medical Center, 278 NLRB 1097 (1986), Graphic Arts Local 13-B (Western Publishing), supra, and Food & Commercial Workers Local 1439 (Rosauer's Supermarkets), supra These cases discuss the Board's policy condemning attempts by employees to determine, uni- laterally, their own conditions of employment and upholding the right of management lawfully to direct employees' work in furtherance of the in- terests of the business • 1186 DECISIONS OF .THE NATIONAL LABOR RELATIONS BOARD than 60 days after Sec. 8(d) notice); ITO Corp., 246 NLRB 810 (1979) (improper administration of internal discipline); Food & Commercial Workers Local 1439 (Ro- sauer's Supermarkets), supra (collective-bargaining agree- ment prohibited discipline); Stationary Engineers Local 39, 240 NLRB 1122 (1979) (union disciplined member in vio- lation of amnesty agreement); Communications Workers Local 1104, 211 NLRB 114 (1974) (union pressed for dis- charge of employees for failure to pay sums equivalent to union dues after denying them union membership); Communications Workers Local 1170 (Rochester Tele- phone), 194 NLRB 872 (1972), enfd. 474 F.2d 778 (2d Cir. 1972) (discipline invoked in connection with attempt to alter a subsisting contract in midterm). The Charging Party and the General Counsel point to no clear-cut vio- lations of the Act such as these. While Respondents' posthearing brief dwells on the failure of proof that the setup positions and special pro- grams were terms and conditions of employment, at the hearing they appeared to be willing to lock horns with the Employer on the issue of statutory policy. An offer of proof was made (and rejected) to the following effect: If allowed to testify, Mr. Bartlett would state that he, in fact, introduced this particular article into the union constitution because of the problem which the union saw when other plants went on strike and foremen or supervisory personnel were then trans- ferred to those struck plants and bargaining unit employees were, in fact, set up to fill in for those supervisory personnel who then were transferred. The objective and the meaning of the constitutional provision, read by itself, are self-evident. What is needed in the present case is evidence as to how it is to be read in conjunction with the no-strike, grievance, and arbitra- tion provisions of the collective-bargaining agreement, as is discussed below. The Respondents in effect raised the policy question without articulating it by introducing evidence that nonbargaining unit personnel at Ticonder- oga were shifted around to the struck plants by the Em- ployer and replaced at Ticonderoga by bargaining unit personnel who had been set up to their positions. The implicit argument is that the circumstances existed which entitled the Locals to invoke the constitutional ban on setup positions. The Employer argues that the collective- bargaining agreement ban on work interruptions is abso- lute. For good measure, it denies that bargaining unit personnel were in fact placed in positions vacated by su- pervisory personnel who had been transferred to struck plants. I find that the Employer implemented a policy of shift- ing supervisory personnel and other personnel from Ti- conderoga to struck plants and replacing them with bar- gaining unit personnel, either directly or by virtue of the overall effect of the personnel transfers. It makes no dif- ference whether specific setup personnel served to re- lease particular supervisory or clerical personnel for duty elsewhere or whether the Employer derived a general capacity for such personnel switches by ensuring smooth functioning of its . Ticonderoga plant through placement of unit personnel in various setup positions while it trans- ferred permanent foremen and clerical personnel else- where. The Employer derived an obvious benefit either way from having a number of bargaining unit personnel in exempt positions at Ticonderoga and by the continu- ance of unit personnel in special programs which had been instituted for the long range benefit of the compa- ny, situations over which the Employer had absolute control free of any obligation to bargain with the Union. This is apparent from statements contained in the Em- ployer's own policy memorandum. The corporate policy had been codified in a memoran- dum prepared approximately 6 years after the incorpora- tion of section 1(b)(4) into article XII of the International constitution. On 19 November 1986, a memorandum marked for use within the company addressed to "All Mill Managers" by J.W. Gilliland, from the company's office at Mobile, Alabama, forwarded a document enti- tled, "Operating During Work Stoppages-Corporate Policy Guide-Workforce Issues." The covering memo- randum noted that in order to keep mills operating during work stoppage, the company used a combination of .1; he affected mills' supervisory forces and manpower from a number of other sources, including supervisors from other company facilities. The policy guide, in describing the various interim workforce sources, declares, LOANED SUPERVISORS FROM OTHER FA- CILITIES-This source has been our mainstay over the years, and continues to be a very impor- tant source of interim manning . However, as we have shrunk our supervisory workforce over the recent past, our ability to generate sizeable work crews from this source has become strained. Since this source does provide us with the best trained and most competent workforce, we need to do what- ever we can to improve our ability to utilize our own supervisory group across the system. This will be dis- cussed in more detail later in this document. [Em- phasis added.]4 The following comment appears later in the memoran- dum: As we have operated more and more facilities during work stoppages, we have experienced prob- lems in some locations in getting hourly employees to agree to setup temporarily to replace a perma- nent exempt employee who goes off on strike duty. This formal corporate policy for maintaining oper- ations at struck plants found specific application in the spring of 1987 in the use of setup personnel at Ticonder- oga to release supervisory and clerical personnel for duty elsewhere as a means of combating labor difficulties at the company's plants at De Pere, Wisconsin, Lock Haven, Pennsylvania, Jay, Maine, and Mobile, Alabama. Livingston conceded that a bargaining unit employee named John Tobin assumed the position of a supervisor 4 The later discussion related to travel and working conditions of per- sonnel working at plants away from their normal places of work. PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) who ' was sent to Jay, Maine; that a nonexempt clerk named Mike Ross, who was sent to Mobile, Alabama, was replaced at different times by three setup employees named Peter Plass, Paul Salstead, and, Mark Russell. Company records show that 13 employees were trans- ferred from Ticonderoga to Mobile, Alabama; 12 were transferred to Jay, Maine; and 3, including 1 who had al- ready served at a location away from his home base, were transferred to Lock Haven, Pennsylvania. The de- tails of these transfers are noteworthy. Of the 13 persons sent to Mobile, Alabama, 3 went on 12 March, 9 on 15 March and 1 on 25 March; 9 of these employees re- turned to Ticonderoga between 17 April and 21 August. Eight persons went to Jay, Maine on 13 June, three on 23 June and one on 6 July; seven returned to Ticonder- oga between 10 July and 12 August. Two persons went to Lock Haven, Pennsylvania in July and one in August; one returned to Ticonderoga in August. The realities of the situation are reflected in the com- ment contained in the Charging Party's posthearing brief to the effect that the Alabama lockout was a prolonged confrontation between the Union [meaning the International] and the Employer that has had far reaching effects in locations that are not directly involved in a labor dispute. It is against this background that the Charging Party urges that I find a violation of the Act on the basis of violation of the policy of the Act. The policy of the Act is set forth in the opening sec- tions of both the National Labor Relations Act and the Labor Management Relations Act of 1947, also known as the Taft-Hartley Act. The policy has been elucidated at length by the Supreme Court. The text of the two acts and the Supreme Court decisions makes it clear that when the statutory policy is discussed, it is not sufficient to rest merely on the simple assertion that the policy is to promote collective bargaining. That is but a means to achieve the declared objective of the Act, which the promotion of industrial peace by equalization of bargain- ing strength and the promotion of collective bargaining between the parties. There cannot be one without the other. The statement of "Findings and Policies" with which the National Labor Relations Act begins (and which were reenacted by the Taft-Hartley Act), in the very first instance, recited the well-known history of "[t]he denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining." . . The dis- parity in strength between employees and organized em- ployers, availing themselves of a freedom of association denied to the employees, was noted in the following terms: The inequality of bargaining power between employ- ees who do not possess full freedom of association or actual liberty of contract, and employers who are orga- nized in the corporate or other forms of ownership asso- ciation. . . Experience has proved that protection by law of the right of employees to organize and bargain collectively 1187 safeguards commerce . . . by restoring equality of bar- gaining power between employers and employees. It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial ob- structions to the free flow of commerce . . by encour- aging the practice and procedure of collective bargaining and by protecting the exercise by workers of full free- dom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. The declaration of policy contained in Section 1 of the Labor Management Relations Act, 1947, makes no men- tion of collective bargaining, but expresses concern with "the legitimate rights of both employees and employers in their relations affecting commerce" and with the need to prescribe procedures for preventing interference by either side with the legitimate rights of the other and for protecting the rights of individual employees in their re- lations with labor organizations. What is important in this case is that the Labor Management Relations Act of 1947 safeguards the right of a labor organization to pre- scribe its own rules with respect to the acquisition or re- tention of membership, and numerous cases have accord- ingly upheld the right of a union to discipline members who break ranks in times of confrontation with manage- ment. In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), the Court made the following comment (180- 182): National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working condi- tions The policy therefore . . . creates a power vested in the chosen representatives to act in the in- terests of all employees. . . . Integral to this federal labor policy has been the power in the chosen union to protect against ero- sion of its status under that, policy through reasona- ble discipline of members who violate rules and reg- ulations governing membership. That power is par- ticularly vital when the members engage in strikes . . . Provisions in union constitutions and bylaws for fines and expulsion of recalcitants, including strikebreakers, are therefore commonplace .. . In addition, the judicial view current at the time Section 8(b)(1)(A) was passed that provisions defin- ing punishable conduct and the procedures for trial and appeal constituted part of the contract between member and union .. . Similar comments on the policy of the Act were made in Mastro Plastics Corp. v. NLRB, 350 U.S. 270 ( 1956). It was observed that it was the responsibility of the Court to reconcile two declared congressional policies. one which seeks to preserve a competitive business economy, and another which seeks to preserve labor's right to or- ganize to better its conditions through the agency of col- 1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective bargaining. The order in which the reconciliation was to proceed was duly noted: The two policies are complementary. They depend for their foundation upon assurance of "full freedom of association." Only after that is assured can the parties turn to effective negotiation as a means of maintaining "the normal flow of com- merce and . . the full production of articles and commodities . . . ' 61 Stat. 136, 129 U.S.C. § 141(b); [350 U.S. at 280 ] [Emphasis by the Court.] Recognition of the importance of, and the right to pro- mote, employee solidarity pervades all aspects of labor relations law. Thus, in dealing with matters of insignia and attire, the Board has noted, in Midstate Telephone Corp., 262 NLRB 1291 (1982): . . . It is axiomatic that employees have a legiti- mate interest in seeking to promote solidarity among their fellow employees with respect to mat- ters of mutal concern, such as an economic strike, to secure a favorable collective-bargaining agree- ment.. . Furthermore, we conclude that the manner and timing in which the employees sought to promote employees solidarity did not render the employees' conduct unprotected, and that Respondent' s inter- ests were not such as to remove the otherwise pro- tected employees' activities from the Act's cloak of protection. . . .5 If statutory policy is to be considered, therefore, it must be applied in the light of the parties' understanding of the manner in which their relationships are governed by the no-strike and arbitration clauses of the collective- bargaining agreement and the solidarity provisions of the International constitution. The Board has touched on this type of problem. In Electrical Workers IBEW System Council T-6 (New England Telephone), 236 NLRB 1209 (1978), enfd. 599 F.2d 5 (1st Cir. 1979), an arbitrator had held that the employer's right to assign bargaining unit employees to temporary supervisory positions had been recognized by the union by virtue of certain provisions contained in the collective-bargaining agreement The Board rejected the union's contention that despite its ac- knowledgement of the employer's right to make such as- signments it had a correlative right to establish a union rule banning members' acceptance of such assignments, since the ban obviously would have rendered nugatory the agreements with the employer (which related to the effect on seniority rights of unit members who accepted such positions). The Board expressly noted the failure of the union to notify the employer regarding the adoption of the rule. The implication is that, had the union adopt- ed such a rule on notice to the employer , it would some- how have affected the parties' rights with respect to S Enforcement of this part of the decision was denied, 706 F 2d 401 (2d Cir 1983), on the ground that the evidence actually showed that the em- ployer had a legitimate interest in prohibiting wearing of T-shirts on the workshifts future appointments to temporary supervisory positions or, at the very least, that a question would have been presented as to how to juxtapose the union rule with the terms of the collective-bargaining agreement. In the present case, the problem is different in that there is no agreement giving the Employer the right to make such appointments, but the Employer seeks to uti- lize the no-strike clause in its place. It is a point which cannot be resolved without extrin- sic evidence, because the manner in which the collective- bargaining agreement and the International constitution are to be considered together (if at all) cannot be ascer- tained within the confines of the respective instruments. It is commonplace that seemingly absolute language may be subject to qualification. The inability of language, however seemingly clear and explicit, to control in all circumstances, is apparent from cases such as those ex- cepting unfair labor practice strikes from the application of contractual no-strike provisions. Mastro Plastics Corp , supra; Isla Verde Hotel Corp. v. NLRB, 702 F.2d 268 (1st Cir. 1983). The present case is not comparable to a situa- tion in which, for example, a no-strike clause can be read to preclude sympathy strikes either on the basis of the language itself or by consideration of other contractual clauses which are known to have been included as con- sideration for acceptance of such a limitation (such as a clause precluding lockouts). See Electrical Workers IBEW Local 803 v. NLRB, 826 F.2d 1283 (3d Cir. 1987). As was observed in Steelworkers v. Gulf Navigation Co., 363 U.S. 574, 579-580 (1960): "There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties." A collective bargaining agreement is an effort to erect a system of industrial self-government. In Steelworkers v. American Mfg. Co., 363 U S 564 (1960), Justice Brennan stated, in a concurring opinion, Words in a collective bargaining agreement , rightly viewed by the Court to be the charter instrument of a system of industrial self-government, like words in a statute, are to be understood only by reference to the background which gave rise to their inclusion. [363 U S. at 570.] In Arlan's Department Store of Michigan, 133 NLRB 802 (1961), the Board had to determine whether a no- strike clause and an arbitration clause in a collective-bar- gaining agreement barred a strike resulting from the,al- legedly unlawful discharge of an employee Noting that the Court, in Mastro Plastics, had sought to reject the "extreme application which the employers sought to give to the general no-strike clause in their collective bargain- ing contract" ( 133 NLRB at 805), the Board held that the extent to which such clauses could be overridden in unfair labor practice situations depended on the parties' intent and the nature of the offense claimed to constitute the unfair labor practice . The Board asserted that in making that determination , "The test we would apply is PAPERWORKERS LOCAL 5 (INTERNATIONAL PAPER) the test the Board has to apply in most of its cases-ex- perience, good sense, and good judgment." (133 NLRB at 807.) There must be some evidence, therefore, on which the qualities of experience, good sense and good judgment may be brought to bear, after it is clearly understood that contractual provisions need not be read literally under all circumstances. It must also be understood that an employer may, to some extent, be affected by bylaws or constitutional structure of a labor organization with which it is dealing In cases in which external relations of a union are not truly involved, employers and other parties have been precluded from taking advantage of internal union bylaws in order to evade obligations to the union, the rules or constitutional provisions being held to have no external application. Examples are unfair labor practice cases involving refusal to bargain and represention cases involving contract bar questions raised as a result of union contract ratification rules. See Newtown Corp., 280 NLRB 350 (1986) (refusal to execute contract); Athey Products Corp., 282 NLRB 203 (1986) (refusal to process grievance on pretext of questioning union official's au- thority); Appalachian Shale Products Co., 121 NLRB 1160 (1958) and Martin J. Barry Co., 241 NLRB 1011 fn. 4 (1979) (unratified written contract bars an election only if ratification is expressly required by its terms). However, when a bylaw or constitutional provision goes to the very heart of the relationship between a union and an employer, as it patently does in the present case, its existence cannot be ignored. In the present case, the International has, in all past contracts, represented employees in the various plants of this multifacility Em- ployer, and has negotiated the various separate collec- tive-bargaining agreements for the Locals representing the employees in the various plants. Consequently, I cannot agree with the Employer's claim that recently in- stituted programs have become terms and conditions of employment for the union members. They have never been discussed with the International. If they have been discussed with the Locals, then the Employer has unlaw- fully attempted to bypass the International. In Shipbuilders (Bethlehem Steel), 277 NLRB 1548 (1986), the employer and a national union entered into a collective-bargaining agreement which the employer at- tempted to modify in midterm by a new agreement which it negotiated with the local union, without the ap- proval of the national union. Such agreements were for- bidden by the national union's constitution. The national union repudiated the midterm agreement and took puni- tive action against the local. Charges that the national union thereby violated Section 8(b)(3) and Section 8(b)(1)(A) of the Act were dismissed by the administra- tive law judge, who took cognizance of provisions of the national union's constitution though evidence had been introduced that direct notice of such constitutional provi- sions had never been given to the employer. The admin- istrative law judge noted that the constitutional provi- sions had been in effect for decades and that officials of the employer knew or should have known of the nation- al union's requirements that the national union must be a party to any agreement entered into by a local and that 1189 all agreements must be approved by the national union's executive board. As in the present case, the national union had previously done all the bargaining for the local unions and the parties to the collective-bargaining agreements had been the national union and the employ- er In affirming the administrative law judge's rulings, findings and conclusions and adopting his recommended order dismissing the complaint, the Board made no com- ment on his discussion of the national union's constitu- tion, though it commented on other aspects of the judge's findings. In a later case between the same parties, in which the national union charged the employer with violation of Section 8(a)(5)and (1) and Section 8(d) of the Act, the Board held that the employer had unlawfully bypassed the national union. In view of the past practice of negotiating wage and benefit issues with a bargaining committee dominated by the national union, the employ- er had committed an unfair labor practice when it unilat- erally, without consent of the national union, agreed with the local union to modify the wages and benefits of employees covered by its collective-bargaining agree- ment with the national union. The Board noted that im- plementation by the employer of such agreements amounted, not only to abrogation and midterm modifica- tion of the previously negotiated collective-bargaining agreement, but to abrogation of the representative status of the national union. Bethlehem Steel Corp., 283 NLRB 254 (1987). The force of the national union's constitutional provi- sion, made effective through its status as the bargaining agent for the local unions, was clearly recognized in the Bethlehem Steel cases. The situation in the present case is analogous, but with the additional circumstance that the union constitutional provision which is involved is one which could come into apparent conflict with provisions of the collective-bargaining agreement . The record is silent as to the intentions of the Employer and the Inter- national with regard to their applicability. The statutory language and the expositions by the Supreme Court, indi- cate the kind of evidence which is required to support the contention that statutory policy was violated. In this case, the parties have invoked statutory policy-the Em- ployer explicitly and the Respondents by implication- without introducing evidence as to how these provisions must be juxtaposed- whether one takes precedence over the other or whether they are to be read together so as to qualify either the ban on work interruption or the multiplant solidarity provision. When the current collec- tive-bargaining agreement was negotiated and executed, section 1(b)(4) of article XII had already been incorpo- rated in the International constitution for 5 years. There is no evidence that there was any discussion of it at all during the negotiation of the current agreement or that any understanding ever came into being as to how these provisions would be reconciled. The issue is whether the International's constitutional provision, by itself, over- rides any potentially conflicting provisions of the collec- tive-bargaining agreement. On that point, no evidence was offered by either side. There was evidence, not at all detailed, that Bartlett and the mill manager talked about 1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the effects members' acceptance of setup positions would have on bargaining unit work schedules. There was evi- dence that the Employer furnished a letter to the Inter- national assuring it that no suggestions emanating from the QIP groups would directly result in loss of employ- ment to bargaining unit members. None of this helps in applying statutory policy in this case. Finally, I note that proof is lacking on the important question of whether the dispute is of a type susceptible of resolution by arbitration or negotiation. The problem existing at Ticonderoga is one which possibly cannot be resolved through the grievance and arbitration machin- ery and may not even be negotiable, for the Locals and the International would be asked to bargain with respect to a constitutional provision rooted in the obvious need for solidarity among their members in all of the Employ- er's plants. As the burden of proof is on the General Counsel, I must therefore reject any contention that by adhering to the requirements of the International constitution, the Respondents violated statutory policy, rendering their discipline of the noncomplying members unlawful. The evidence is insufficient to support a finding of violation of the Act on the basis of a policy argument. CONCLUSIONS OF LAW 1. International Paper Company is now, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Paperworkers International Union and the Respondents, Locals 5 and 497 of the United Paperwork- ers International Union are now, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in unfair labor prac- tices within the meaning of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The complaint is dismissed. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses