Alliance Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1972

200 N.L.R.B. 697 (N.L.R.B. 1972)

ALLIANCE MANUFACTURING CO 697
Alliance Manufacturing Company, Inc and Interna-
tional Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC and its Local 750 Cases
8-CA-6537, 8-CA-6578, 8-CA-6703,
8-CA-6921, and 8-CA-6982
violation of the statute Each of the parties filed briefs and
I have duly considered the same 1
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
December 1, 1972
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 17, 1972, Administrative Law Judge'
Phil Saunders issued the attached Decision in this
proceeding Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a brief in opposition to the
exceptions and in support of its cross-exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Trial Examiner This case, initiated by a
charge filed on July 26, 1971, and the complaint issued on
March 21, 1972, was tried before me at Alliance, Ohio, on
June 13, 1972 The amended and consolidated complaint
alleges that Alliance Manufacturing Company, Inc, herein
the Respondent or Company, violated Section 8(a)(1) of
the National Labor Relations Act, as amended, by issuing
disciplinary notices, warnings, reprimands, suspensions,
terminations, and/or layoffs to certain employees who
were absent from work because they chose to honor the
sister Local's picket line Respondent denied that it was in
i The transcript has been corrected in accordance with motions received
from each of the parties
2 All dates are 1971 unless specifically stated otherwise
3 The number of employees who were scheduled to work and the
number who actually reported for work on the dates on which pickets
I THE BUSINESS OF RESPONDENT
Respondent is a corporation organized under the laws of
Ohio, with its principal office and place of business
situated in Alliance, Ohio, where it is engaged in the
manufacture and assembly of garage door openers and
motors Annually, the Respondent manufactures, sells, and
ships products valued in excess of $50,000 from its
Alliance, Ohio, plants directly to points located outside the
State of Ohio The complaint alleges, the answer admits,
and I find that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, and its Local 750, herein the
Union or Local 750, is a labor organization within the
meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates plants in Alliance, Ohio, and
Shenandoah, Virginia Local 750 has been the collective-
bargaining agent for the two Alliance plants for many
years These are known as plants I and 2 The employees at
the Shenandoah plant are represented by Local Union No
174 of the same International Union, and on June 3, 1971,
a strike was commenced by Local 174 at Respondent's
Shenandoah plant, and continued until November 18,
19712 On June 7, members of Local 174 picketed plant 1,
the largest of Respondent's two Alliance plants, but no
further picketing occurred until June 21 when plant 1 was
again picketed by Local 174 and on the following 2 days,
June 22 and 23, members of Local 174 picketed both
Respondent's Alliance plants Thereafter, no further
picketing occurred until July 6 The resumption of the
picketing occurred at a time when the Respondent was
operating plant I with a reduced complement of employees
and when plant 2 was closed due to the annual vacation
shutdown Consequently, the picketing, which continued
on each working day thereafter, through July 16, was
limited to plant 1 Subsequently, no further picketing has
occurred There is no dispute that only members of Local
174 engaged in the picketing of Respondent's plant This
record also reveals that varying numbers of employees at
Respondent's Alliance plants refused to cross the picket
line on all of the days that pickets from Local 174
appeared 3
The Respondent counted as unexcused absence all days
any employee refused to cross the picket line, and the
appeared are substantially as follows
(Continued)
200 NLRB No 112
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of any employee on any day on which there was
picketing was treated the same as an absence on any other
day The Company points out that this action was taken
pursuant to the provisions of the current contract between
the Respondent and Local 750-effective until January 31,
1973, and providing for disciplinary action in connection
with absences 4 It is admitted that the Respondent's
application of its rules regarding absenteeism and disci-
pline included the disciplining of all employees who were
absent in excess of 8 days in either, or both, of the calendar
quarters' ending on June 30, and September 21, 1971,
notwithstanding the dates during these quarters when
Respondent's plants were picketed There is no dispute
that the named employees, set out in the amended
consolidated complaint, were disciplined in the manner set
forth in the complaint, and in accordance with the
company policies regarding absenteeism and disciplinary
action It is further stipulated that these disciplined
employees reported to the Respondent the reason for
his/her absence during the various dates that the pickets
were present, with the exception of the vacation period,
and that the reasons given by each employee, except for
Ellen Evans, are as set forth in Joint Exhibit 2(a) through
2(d) Regarding the vacation period in July, the parties
stipulated that each disciplined employee's absence from
work during this period was precipitated by and attributa-
ble to the employee's individual determination to honor
the picket line
The General Counsel produced six or seven witnesses to
explain their own personal reasons for not reporting to
work on the days in question, and their explanation was
that they did not want to cross the picket line Wanda
Mohr admitted that she was not ill on the days during the
picketing when she reported off "sick " She explained that
the presence of the pickets, and her experience in situations
involving picketing, prompted her to report off "sick"
rather than report for work during the period that the
picketing was in progress No stipulation was agreed upon
between the parties concerning the reasons for Ellen
Evans' absence on June 7, 21, 22, and 23 However the
Respondent's records indicate that Evans reported off
"personal" on June 7, and "sick" thereafter Evans then
testified she reported off for "personal" reasons on all of
Alliance Plant No 1 Alliance Plant No 2
Date
Number
Worked
Number
Scheduled
Number
Worked
Number
Scheduled
June 7 169 615 31 35
June 21 57 615 30 35
June 22 69 615 1 35
June 23 91 615 2 35
July 6 78 157 0 0
July 7 82 157 0 0
July 8 107 157 0 0
July 9 107 157 0 0
July 12 109 146 0 0
July 13 116 146 0 0
July 14 113 146 0 0
July 15 122 146 0 0
July 16 116 146 0 0
4 These express provisions of the current agreement are as follows
11 I An employee shall be disciplined as follows
I I I I He shall be given a written reprimand by the Company after
the first infraction of rules and regulations established and published
by the Company Copy of this reprimand shall be given to his Steward
11 12 In the event of a second such infraction written notice of a
three day layoff shall be given to the employee A copy of this notice
the days in question and explained that her personal reason
was, in fact, that she "wouldn't go across the picket line "
The current contract between the Respondent and Local
750, Joint Exhibit 1, also contains a no-strike provision
This provision states as follows
18 1 Should differences apse between the Company
and the Union, as to the interpretation or application
of the provisions of this Agreement, or should any
dispute of any land apse, it is agreed that there shall be
no work stoppages, walk-outs, or slowdowns, until the
entire grievance procedure has been exhausted except
in the matter of reopening the contract for the
renegotiation of wages There shall be no lock-outs
during the term of this Agreement
In addition to the above clause, the current contract also
contains, in Article 2 1, a "purpose" clause and which, in
pertinent part, reads as follows
Therefore, this agreement has been written to
eliminate lock-out, strikes, slowdowns, and work
stoppages of all kinds and to make possible satisfactory
adjustment of any differences which might arise
The provisions of Article 16 "Arbitration," provides as
follows
16 1 Any grievances arising out of, or relating to, this
agreement, may be submitted by the union to an
arbitration Panel, provided it shall not have been
satisfactorily settled after following the complete
grievance procedure contained in the agreement
16 2 The arbitration Panel shall be empowered to
rule on all grievances pertaimng to the interpretation of
this agreement, but shall not have the power to add to,
or subtract from, or modify the terms of this agreement
or any other agreement made supplementary thereto
The grievance procedures are contained in section 15 1
of the contract, and provide for several steps of intermedi-
ate appeal before reaching arbitration
The General Counsel produced testimony through
several of his witnesses to the effect that each employee
independently decided whether to work or honor the picket
line, and contends the record testimony clearly establishes
that the Union did not attempt to interfere with, instruct,
or influence its members concerning their individual
decision regarding whether or not to honor Local 174's
shall be given his Steward
11 13 In the event of a third such infraction, an employee may be
discharged in the discretion of the Company The reason for his
dismissal shall appear on his discharge notice
112 A first reprimand shall not be used against the employees
record after a six month period has elapsed provided the employee
does not receive another reprimand within that period If a second
reprimand is received within the six month period, it will not be used
against the employee s record after a twelve month period has elapsed
except that in the event of a third infraction occurring within an
eighteen month period the employee may be subject to discharge
s s s s a
B Any employee who is absent from work more than eight (8)
days in any period of three (3) consecutive months, shall receive a
written warning for the first offense and a written reprimand in
accordance with Article II of the Agreement for each subsequent
offense A written reprimand will be issued for the first offense if the
employee received a written warning
The rules and regulations referred to above are also incorporated in the
present contract, and paragraph B of these rules has been set forth
Paragraph C of the rules specifically enumerated the five (5) exceptions to
paragraph B See Jt Exh I
ALLIANCE MANUFACTURING CO 699
picket line The Business Agent of Local 750, John Gusbar,
testified that at the start of the picketing at the plants in
Alliance he received numerous inquiries from his members
concerning the picketing and whether they should honor
the picket line According to Gusbar , he answered these
inquiries by informing the members that Local 750 had a
contract to honor, that the individuals had to decide for
themselves whether to honor the picket line, and told them
the Union was not in a position to tell them what to do
On June 15, and again on June 22, Local 750 distributed
leaflets to its members The first leaflet stated as follows
Recent Company literature has caused many members
to inquire concerning their rights and obligations where
the Alliance plant is picketed by members of another
Local union
The Local union is obligated to and will abide by the
Contract which is currently in effect We have notified
the Company of our intentions to comply with all the
various provisions of the contract
Local 750 is also obligated to inform you of your legal
rights The law gives you , as an employee, the right to
individually and on your own , to refuse to cross a
picket line established at the plants Any decision not
to cross a picket line must be your own
The second union leaflet dated June 22 stated
Company announcements state that employees
honoring the recently established picket lines are
subject to discipline under the eight (8) day rule This
company announcement is legally in error Normally
employees have the right on an individual basis to
refuse to cross a picket line Local 750 previously
informed employees of their right in a June 15 leaflet
because of a prior company misrepresentation
While employees have the right individually and on
their own to refuse to cross the picket line established
at the plants , the local union is obligated to and will
abide by the contract currently in effect and will honor
all its provisions
On June 25 and on one other subsequent occasion in
July, the Respondent 's personnel director, Ralph Reeder,
sent letters to employees who were absent from work on
one or more of the dates when Respondent 's plants in
Alliance were being picketed The employees were advised
that the contract with Local 750 forbids strikes or work
stoppages , and that anyone participating in such activities
would be engaging in an unlawful act, and the fact that
there were pickets did not alter these basic facts The
employees were also informed that the Respondent would
not condone or excuse such conduct , and that their
absence would be charged against them as unexcused 5
It is General Counsel's position that in refusing to cross
the picket line at the plants in Alliance these employee-
members of Local 750 were assisting their sister Local 174,
which at the time was engaged in a strike of Respondent's
Shenandoah plant The General Counsel maintains and
concedes that none of the employees would have been
disciplined had there been no picketing as this was the
reason for their failure to report for work , states that the
no-strike provision in the current contract does not operate
as a waiver of the employees' statutory right to honor
another union's picket line, and further contends that the
no-strike clause contemplates only work stoppages which
apse over matters subject to the grievance and arbitration
procedures
The Charging Party reasserts some of the arguments by
the General Counsel, but specifically states the following
This case turns solely upon the issue of waiver If
there is no waiver of statutory rights by the Union, the
Employer is in violation of Section 8(a)(1) in its
discipline of employees who individually on their own
refused to cross the lawfully established picket line
In other contentions the Charging Party also maintains
that read in context , the no-strike clause in the instant case
only contemplates no walkouts, slowdown , or strikes on
matters subject to the grievance procedure , and also
maintains that disputes beyond the scope of the grievance
procedure are not restricted by the no-strike provision
The Respondent's position is that the Alliance employees
were not engaged in protected activity, and rests its
position on the two sets of explicit provisions in the current
contract-the provisions regulating absenteeism and the
agreed plan of discipline for it , and the explicit no-strike
provisions, as aforestated
Conclusions
This is another in a series of cases where employees are
faced with a picket line at their place of work , and acting in
the time-honored tradition of organized labor deciding not
to cross the picket line even though the union conducting
the picketing is not their own bargaining representative
Nevertheless , as the Board held in Redwing Carriers, Inc,
137 NLRB 1545 , modifying 130 NLRB 1208, affd sub
nom Teamsters, etc Local Union No 79 v N L R B, 325
F 2d 1011 (C A D C ), such "employees engage in protect-
ed concerted activity when they respect a picket line
established by other employees Such activity is literally for
`mutual aid or protection' as well as to assist a labor
organization within the meaning of Section 7 "
From the above it follows that the employees in the
instant case, absent additional circumstances, had a
protected right in refusing to cross a peaceful picket line set
up by another union-Local 174-and in which they had
no direct interest , but the issue here is whether Local 750
has contracted away or waived that right with the inclusion
of no-strike provisions in its contract with the Respondent
There is considerable evidence and testimony in this
record bearing on whether or not the employees here
involved individually or in "concert," made their decisions
to honor the picket line All those who testified for the
General Counsel said they made their own decision The
Respondent introduced various exhibits showing numerous
correspondence and other contacts between Local 750 and
Local 174, and made a showing of strong backing and
support for the pickets , both financially and otherwise, by
members of Local 750 The Charging Party contends that
Local 750 did not engage in a strike However , regardless
of the possible ramifications on these questions and on
whether or not Local 750 had actually or technically called
a strike-the employees were most certainly engaged in
5 Jt Exhs 3 and 4
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activity by staying off the job, and therefore, the
pivotal issue still remains as to whether the concerted
action was protected or whether it had been waived
It is well recognized that rules applicable to the
construction of contracts in general apply to bargaining
contracts The contract must be construed as a whole, and
effect must be given to the mutual intention of the parties
involved In the instant case it appears to me that section
18 1 in the contract is a rather explicit no -strike provision,
and I agree with the Respondent that this provision was
clearly meant and understood to be exactly that As
pointed out during the picketing, agents of Local 750
indicated that they understood the no-strike clause to
prohibit participation in work stoppages-see General
Counsel Exhibits 2 and 3, as previously set forth here-
in-and the same is true as reflected in the testimony of
Union Representative Gusbar who related telling employ-
ees that the Union "had a contract to honor," and that the
Union "was not in a position to tell them what to do "
Another sure indicator that the contract clearly ex-
pressed an explicit or broad prohibition against work
stoppages was confirmed by the Union's efforts to change
the no-strike provision in the negotiations which led to
current agreement It appears that sections 2 1 and 18 1
have been included in the Company-Union agreements for
many years and these provisions were also included in the
1968 agreement which preceded the current contract
However, in the negotiations which led to the present 3-
year agreement, Local 750 suggested changes or modifica-
tions in the no-strike provisions and proposed that the
Union be relieved of its no-strike pledge under three
circumstances
A The parties engage in negotiations upon a proper
subject of collective bargaining not covered by this
contract
B The parties are unable to reach agreement
C The matter in dispute is not subject to the
grievance and arbitration provisions of this contract
Throughout the negotiations Local 750 persisted in these
modifications, but the Respondent took the position that it
wanted no changes, and in final settlement , Local 750
abandoned its efforts to modify the no-strike provisions,
and sections 2 1 and 18 1 were continued without the
modifications
Section 18 1 in the contract states, in part, that there are
to be no work stoppages "until the entire grievance
procedure has been exhausted " The Respondent suggests
several possible interpretations of this language-one being
that in respect to matters that could be processed through
the grievance procedure, there could be no work stoppage
or strikes until the grievance procedure was exhausted
-and further suggests there could be no strike or
stoppages with respect to a matter that could not be
processed through the grievance procedure
The General Counsel suggests that the no-strike clause
contemplates only work stoppages on the matter subject to
the grievance procedure, maintains that this interpretation
is supported by the arbitration and grievance provision in
the current contract , and inasmuch as there is no
contractual provision governing a situation where individu-
al employees refuse to cross the picket line of another
union, there is no dispute cognizable under the contractual
grievance provision , and hence, no grievance could be filed
which would bring the grievance exhaustion provision of
article 18 1 into effect , and it therefore follows that the
arbitration clause could not be invoked and in such
situations the no-strike prohibitions were inapplicable
The General Counsel and the Union might have been
successful in these arguments had the contract merely
contained the above clause However, this contract must
be construed as a whole , and when the pertinent part of
article 2 1, the purpose clause , is read, "to eliminate work
stoppages of all kinds," it becomes clear that the position
advanced by the Respondent is the most plausible
one-that the no-strike provision says in effect , that on
matters not subject to the grievance procedure there can be
no strike , and on matters which are subject to the grievance
procedure, there cannot be a strike until the grievance
procedure is exhausted
The Respondent's position is further substantiated by
noting and evaluating the negotiations leading up to the
existing contract The latest bargaining history between the
parties reveals that Local 750 wanted to be relieved of its
no-strike pledge when matters in dispute are not subject to
the grievance and arbitration provisions , but the Company
would not go along and the former provisions were again
put in the contract , as detailed previously herein It appears
to me that this bargaining history is particularly helpful
here because the effort made by Local 750 to modify the
no-strike provision clearly shows their understanding of a
no-strike restriction or ban on all matters not subject to
grievance , and, of course, it is fully recognized by all the
parties that the controversy involved herein is not a
grievance matter In view of the above , the intentions of
the parties became readily apparent, and the overall
arguments by the General Counsel and the Union that the
no-strike clause did not apply to matters not within the
grievance provisions must be rejected
Attorney Ronald Janetzke testified his purpose in
requesting a modification of the no-strike clause was in an
effort to handle situations and matters pertaining to
working conditions which are not covered in the contract
He said that for years the employees have received a
Christmas bonus, but this subject matter is not covered in
the contract, and under the no-strike provision, an
employer could propose a change in this bonus and then
bargain to an impasse , and under such conditions, the
Union would not have a right to strike He stated that the
proposed modification was to overcome situations of this
type, but was not meant to have anything to do with
employees refusing to cross a picket line
This bargaining history again shows the overall applica-
tion of the no-strike clause involved herein, and it seems to
me, further denotes a broad no-strike commitment with
definite limitations of restricting strike actions to only
contractual items specifically enumerated in the contract,
and on all other matters there is a strict and unbinding
prohibition against strikes and work stoppage 6
6 The bargaining history and factual circumstances in the instant case General Counsel In Kellogg Company 189 NLRB No 123 the Charging
make it clearly distinguishable from cases cited by the Union and the Party and Ri spondent intended and understood that the no strike clauses
ALLIANCE MANUFACTURING CO 701
The testimony and exhibits in this record, regardless of
the various reasons stated or given for not reporting to
work, clearly indicate that the actual cause for their
absence was the refusal by employees to cross the picket
line, and they were then disciplined for failure to report
under the contractual and related provisions of the
contract In the final analysis there is no showing of any
irregularity in the application of these measures, and in
accordance with my conclusions herein, I find that the
Respondent acted properly in carrying out its enforcement
prerogatives
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act, as
alleged in the complaint
Upon the foregoing findings of fact, conclusions of law,
and the entire record , I hereby issue the following
recommended
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
constituted a narrow prohibition on strike activity and unlike the present
case there was a total absence of any contemporaneous evidence of the
bargaining history in regard to negotiation of the various no strike clause
which would indicate that the parties intended the no-strike commitment to
be a broad one
ORDER?
The complaint is dismissed in its entirety
7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes