Teamsters Local No. 741

National Labor Relations Board - Board Decisions

Mar 5, 1968

170 N.L.R.B. 61 (N.L.R.B. 1968)

TEAMSTERS LOCAL NO. 741 61
Teamsters Local No . 741, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America , Independent and Los An-
geles-Seattle Motor Express, Inc. Case
19-CB-1092
March 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On January 17, 1967, Trial Examiner William E.
Spencer issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
and the Charging Party filed exceptions to the
Decision and a supporting brief, and the Respond-
ent filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
spondent Union in its duly filed answer denied, that
the Respondent refused to bargain in good faith
with LASME and thereby violated Section 8(b)(3)
of the Act.
Upon the entire record in the case and considera-
tion of the briefs filed with me by each of the
parties , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
LASME is a State of Washington corporation
with its principal office in Seattle, Washington. It is
engaged, as a licensed common carrier, in hauling
freight between points in the States of Washington,
Oregon, and California, and its operations do not
extend beyond those States. During its most" recent
fiscal or calendar year, it had gross revenues in ex-
cess of $50,000 from the transportation of com-
modities in interstate commerce.
II. THE LABOR ORGANIZATION
Teamsters Local No. 741, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent, is a labor or-
ganization within the meaning of the Act. At all
material times herein it was the exclusive bargain-
ing representative of employees of LASME in an
appropriate unit, within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The threshold issue is whether this is a case
where the Board will construe a labor agreement in
order to determine whether the Respondent has
committed the alleged unfair labor practice. There
can be no determination of the latter without first
construing the labor agreement, because the al-
leged unfair labor practice does not exist inde-
pendently of the agreement.
If this is such a case and it be found that the
Union has violated the no-strike clause of the
agreement by striking before exhausting the means
provided in it for- the settlement of disputes, does
such conduct constitute a violation of Section
8(b)(3) of the Act.
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: This
proceeding under Section 10(b) of the National
Labor Relations Act, hereinafter the Act, was
heard in Seattle, Washington, on October 25, 1966,
pursuant to due notice. The complaint, issued
January 4, 1966, pursuant to a charge filed
November 17, 1965, by Los Angeles-Seattle Motor
Express, Inc., hereinafter LASME, the Charging
Party herein, alleged in substance, and the Re-
B. The Factual Situation
The stipulated facts, substantially as set forth in
the respective briefs of the parties, follow.
In August 1965, the International Association of
Machinists (IAM) was in the process of negotiating
a collective-bargaining agreement with the auto
freight industry in California, including the Charg-
ing Party herein, LASME. On August 21, 1965, it
struck in support of its demands for an agreement
170 NLRB No. 13
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covering mechanics employed by the trucking in-
dustry in California , and on the same date
established a picket line at the gates of the terminal
of LASME in Oakland, California. Shortly after the
picket line was placed , 18 truckdrivers employed
by LASME, all members of the Respondent Union,
domiciled in Seattle, Washington , on arriving at
LASME 's terminal in Oakland , refused to cross the
IAM picket line and remained idle from August 21
to about September 1, 1965. LASME, under the
terms of article 54, section 9, of an existing bar-
gaining agreement covering Respondent's em-
ployees, allowed the drivers layover pay until 7:30
p.m., August 27 , but refused to allow their claim
for layover pay between that time and September 1,
1965.
On September 24, 1965, the Union filed a
grievance in which it asserted LASME's obligation
to pay the balance of the claim asserted on behalf
of the 18 drivers . On LASME 's refusal to pay such
additional claim, the Union filed a grievance with
the Washington Joint State Committee in Seattle,
and when that committee "deadlocked " over the
grievance , appealed the grievance to the Joint
Western Committee which sits in San Francisco, all
as provided for in articles 42 and 43 of the Supple-
mental Agreement to the National Master Freight
Agreement , referred to jointly herein as the Agree-
ment . The 'Joint Western Committee also
deadlocked, over the grievance . The Employer
under the terms of the Agreement then moved that
the dispute over the grievance be submitted to ar-
bitration , and once again the committee , composed
of three members representing each of the parties,
was deadlocked.
On November 17, 1965 , the Union struck
LASME in support of its position on the grievance,
and established a picket line at LASME's facilities
in Seattle . The strike and picketing continued until
November 19, 1965, when a temporary restraining
order and order to show cause was issued by a su-
perior court of the State of Washington.
Presumably the matter of the injunctive relief was
still pending at the time of the hearing herein.
On November 12, 1965 , the director of labor
relations for the Washington Motor Transportation
Association and the coordinator for the Western
Machinists Freight Division sought to present the
grievance to the Union 's international grievance
committee and on the same date, the international
committee through its secretaries , James R. Hoffa
and R . F. Beagle, advised both the Union and
LASME by telegram that the national committee
accepted jurisdiction of the grievance . On March 9,
1966, the international grievance committee
resolved the grievance in favor of LASME.
Relevant contractual provisions appear below.
Article 8 ( National Agreement)
National Grievance Procedure
(a) All grievances or questions of interpreta-
tion arising under this Master Agreement or
Supplemental Agreements thereto shall be
processed as set forth below . If such Supple-
mental Agreements provide for arbitration of
discharges , such procedure shall be continued.
(1) All factual grievances or questions of in-
terpretation arising under the provisions of the
Supplemental Agreement , ( or factual
grievances arising under the National Master
Agreement ) shall be processed in accordance
with the grievance procedure of such Supple-
mental Agreement . If upon the completion of
such Supplemental grievance procedure, the
matter is deadlocked and, as a result , a work-
stoppage is threatened , which could involve
more than one Conference Area , the matter
shall be submitted to a Multi-Conference Com-
mittee composed of two employer representa-
tives and two union representatives from each
Conference Area involved . Such Multi-Con-
ference Committee shall be convened by the
Employer Secretary or the National Grievance
Committee after receipt of notice from the
Employer or Union party to the dispute. The
notice convening the Committee shall set forth
the nature of the deadlocked grievance or 'in-
terpretation involved , the parties to the
dispute, the Conference Areas which are in-
volved , and the employer or union representa-
tives appointed to the Multi-Conference Com-
mittee. The Multi-Conference Committee shall
meet at a mutually convenient time and place,
but not later than 20 days after receipt of
notice as aforesaid . In the instance of a
deadlocked factual grievance or interpretation
arising under a Supplemental Agreement or a
deadlocked factual grievance arising under the
National Master Agreement , the decision of
the Multi-Conference Committee shall be
based solely upon the provisions of the applica-
ble Supplemental Agreement or the National
Master Agreement, whichever is applicable.
Any request for interpretation of the Na-
tional Master Agreement shall be submitted
directly to the Joint Area Committee from
which it shall be immediately referred to the
National Grievance Committee.
If the Multi-Conference Committee resolves
the dispute by a majority vote of those present
and voting , such decision shall be final and
binding upon the parties . If the Multi-Con-
ference Committee is deadlocked on the
disposition of the dispute, the dispute shall be
referred to the National Grievance Committee
and handled as set forth in Paragraph 2 hereof.
(2) Any matter which has been referred
pursuant to Paragraph 1, or any question con-
cerning the interpretation of the ' provisions
contained in the Master Agreement , shall be
submitted to a permanent National Grievance
Committee which shall be composed of five
members designated by the Employers and
five members designated by the unions. The
National Grievance Committee shall meet
TEAMSTERS
quarterly for the disposition of grievances
referred to it, or may meet at more frequent in-
tervals, upon call of either Chairman of the
employer or union representatives on the Na-
tional Grievance Committee. The National
Grievance Committee shall adopt rules of
procedure which may include the reference of
disputed matters to sub-committees for in-
vestigation and report, with the final decision
or approval, however, to be made by the Na-
tional Grievance Committee. If the National
Grievance Committee resolves the dispute by a
majority vote of those present and voting, such
decision shall be final and binding upon the
parties.
If the National Grievance Committee is
deadlocked on the disposition of the dispute
then either party shall be entitled to all lawful
economic recourse to support its position in
the matter. In considering factual disputes that
are deadlocked and may affect more than one
Conference or deadlocked questions of in-
terpretation involving more than one Con-
ference arising out of Supplemental Agree-
ments, the decision of the National Grievance
Committee shall be based solely on the provi-
sions of the applicable Supplemental Agree-
ment.
(b) The National Grievance Committee by
majority vote may consider and review all
questions of interpretation which may arise
under the provisions contained in the Master
Agreement which are submitted by either the
Union Area Director or the designated Em-
ployer representative and shall have the
authority to reverse and set aside the majority
interpretation of any area, regional, or local
grievance committee if, in its opinion, such in-
terpretation is contrary to the provisions set
forth in the Master Agreement, in which case
the decision of the National Grievance Com-
mittee shall be final and binding.
(c) Any provision in the grievance procedure
of any Supplement hereto which would require
deadlocked disputes to be determined by any
arbitration process shall be null and void as to
any agreements involving interpretation of the
Supplemental Agreement or this National
Master Agreement. The decision of the Na-
tional Grievance Committee as to whether a
grievance involves an interpretation which is
subject to this procedure shall be final and
conclusive.
(d) In the event of strikes, work stoppages, or
other activities which are permitted in case of
deadlock, default or failure to comply with
majority decisions, no interpretation of this
Agreement by any tribunal shall be binding
upon the Union or affect the legality or lawful-
ness of the strike unless the Union stipulates to
be bound by such interpretation, it being the
intention of the parties to resolve all questions
LOCAL NO 741 63
of interpretation by mutual agreement.
Nothing herein shall prevent legal proceedings
by the Employer where the strike is in violation
of this Agreement.
Article 9 (National Agreement)
A. -Protection of Rights
Section 1, Picket Line
It shall not be a violation of this Agreement
and it shall not be cause for discharge or
disciplinary action in the event an employee
refuses to enter upon any property involved in
a labor dispute or refuses to go through or
work behind any picket line, including the
picket line of Unions party to this Agreement
and including picket lines at the Employer's
place or places of business
Article 43 (Supplemental Agreement)
Grievance Machinery and Union Liability
Section 1.
The Union and the Employers agree that there
shall be no strike, lockout, tie-up or legal
proceedings without first using all possible
means of settlement as provided for in this
Agreement and in the National Master Agree-
ment , if applicable, of any controversy which
might arise.
Article 54 (Supplemental Agreement)
Section 9, Layover Pay
In the event a driver is required to take a rest
period during any one (I) round trip, away
from his home terminal, the driver shall be
compensated for layover time as follows....
C. The Positions of the Parties
The General Counsel's position in common with
that of the Charging Party is best summarized by
the following excerpt from his brief-
The General Counsel contends that the
Respondent committed an unfair labor prac-
tice by striking over an arbitrable dispute
without first exhausting the grievance and ar-
bitration procedures of the labor contract
which contained an express "no-strike" agree-
ment . The dispute over which the Union struck
concerned the Employer's obligation to pay
under Article 54, Section 9, to employees who
asserted their right under Article 9, Section 1,
to respect the picket lines established by
another Union. A resolution of this dispute
necessarily involves an interpretation of Article
9, Section 1, of the National Master Freight
Agreement. This is made even more clear by
the fact that the Respondent urged, at a meet-
ing of the Washington Joint State Labor
Management Committee, that Article 9, Sec-
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 1 of the National Agreement justified its
members in refusing to cross the picket line
established by the Machinists ' Union. ...
Furthermore, on November 12, 1965, the Na-
tional Grievance Committee determined that
this was a grievance within its jurisdiction, and
Article 8(c) of the Labor Contract provides
that, "The decision of the National Grievance
Committee as whether a grievance involves an
interpretation which is subject to this
procedure shall be final and conclusive." .. .
Nevertheless, after the National Grievance
Committee accepted the grievance the Union
struck the Employer on November 17. This
strike, under these circumstances , constituted
a violation of the "no-strike" agreement ex-
pressed in Article 43, Section 1 of the Labor
Contract and was an attempt by the Union to
force the Employer to resolve the dispute out-
side the agreed upon exclusive channel for
resolving such disputes....
Particular reference is made in the brief of the
Charging Party to Section 8(d) of the Act, which
provides in material part:
That where there is in effect a collective-bar-
gaining contract covering employees in an in-
dustry affecting commerce, the duty to bargain
collectively shall also mean that no party to
such contract shall terminate or modify such
contract , unless the party desiring such ter-
mination or modification ... ( follow various
requirements prerequisite to a lawful modifica-
tion or termination of the contract).
The argument on the point is that the Union by
striking without first meeting the requirements
prerequisite to a lawful modification or termination
of the contract, in effect modified the grievance
procedures provided in the contract , in violation of
8(d) and, consequently, 8(b)(3) of the Act.
The Respondent Union's position on the facts is
that it exhausted the grievance procedure of the
Agreement governing its dispute with LASME; that
under the terms of the Agreement its national com-
mittee had no jurisdiction of the dispute; and that
having met all requirements for the settlement of
disputes provided in the Agreement, it was, by the
terms of the Agreement , licensed to bring
economic pressure to bear on LASME in support of
its grievance . That it was not bound by the. no-
strike clause of the Agreement once it had ex-
hausted the procedures under the Agreement for
the settlement of disputes, is not questioned.
In support of its claim that it exhausted the
grievance procedures of the Agreement before
striking , Respondent advances the arguments sum-
marized below.
It is not disputed that the Union in filing its
grievance initially with the Washington Joint State
Committee in Seattle , and on appeal with the Joint
Western Committee in San Francisco , completed
the grievance procedure by which it was bound
under the Supplemental Agreement . It is not con-
tended and no evidence was offered to prove that
the Union's dispute with LASME involved more
than one conference area . Article 8(a)(1) of the
National Agreement provides, inter alia: "If upon
the completion of such Supplemental grievance
procedure, the matter is deadlocked and, as a
result , a work-stoppage is threatened , which could
involve more than one Conference area, the matter
shall be submitted to a Multi-Conference Committee
composed of two employer representatives and two
union representatives from each Conference Area in-
volved." ( Emphasis supplied.) The grievance was
not submitted to a multiconference committee
because no more than one conference area was in-
volved. Most of what follows in article 8(a)(1) of
the National Agreement is relevant only to
proceedings before a multiconference committee,
and the section concluded: "If the Multi-Con-
ference Committee is deadlocked on the disposition
of the dispute, the dispute shall be referred to the
National Grievance Committee and handled as set
forth in Paragraph 2 hereof." Obviously the
Union's dispute with LASME was not referrable to
the national grievance committee under this section
of the National Agreement.
Section 8(b) of the National Agreement does not
appear to apply to the dispute with LASME
because it limits the authority of the national
grievance committee to situations where there has
been a majority interpretation of the master agree-
ment by any area , regional , or local grievance com-
mittee, and here there was no such majority in-
terpretation. The committees were deadlocked.
Section 8(c) of the National Agreement, upon
which the General Counsel relies, provides, inter
alia, "The decision of the National Grievance Com-
mittee as to whether a grievance involves an in-
terpretation which is subject to this procedure shall
be final and conclusive." (Emphasis supplied.) The
Union argues that "this procedure" relates to the
preceding sentence in Section 8(c): "Any provision
in the grievance procedure of any Supplement
hereto which would require deadlocked disputes to
be determined by any arbitration process shall be
null and void as to any agreements involving in-
terpretation of the Supplemental Agreement or this
National Master Agreement." The Union argues
therefrom: "Article 8(c) merely eliminates the pos-
sibility of an arbitrator passing on a question involv-
ing the interpretation of the National Agreement.
Recognizing that some supplemental agreements
privided for arbitration of certain questions (in the
Western Supplemental Agreement arbitration is
required in all cases involving discharge ) the parties
have protected themselves against an arbitrator in-
terpreting the national contract."
The Union admits that it relied on article 9, sec-
tion 1 of the National Agreement in filing its griev-
ance with LAS ME for layover time, but denies that
this raised any question of interpretation inasmuch
as the said article is plain and unambiguous. Quot-
ing from Respondent's brief:
TEAMSTERS LOCAL NO. 741
It hardly seems necessary to point out that
the mere fact Local 741 in filing the grievance
mentioned that the eighteen employees who
refused to cross the IAM picket line exercised
a right guaranteed by Article 9 does not, ipso
facto, raise a question of interpretation of
Article 9. An examination of the entire
proceedings of the grievance from the time it
commenced until the case was deadlocked in
San Francisco reveals not one scintilla of
evidence indicating that Article 9 was at any
time the subject matter of interpretation at any
stage. Moreover, Article 9, Section 3, requires
that if ,a grievance involves a claim of violation
of Article 9, the grievance shall immediately go
to the final step of the Conference Area
grievance procedure without any intermediate
steps whatsoever. If the parties had at any time
raised the question as to whether the eighteen
drivers were entitled to respect the picket line
of the IAM the party raising the question
would'have had to have complied with Article
9, Section 3, of the Master [National] Agree-
ment. This never occurred.
Finally, the Union argues that even if it be found
that it violated the Agreement, its violation was not
such as to constitute a refusal to bargain within the
meaning of Section 8(b)(3) of the Act.
D. Concluding Findings
It is now settled law that a strike which violates
some term of a collective agreement, even a no-
strike clause, is not per se a refusal to bargain. In
Cheney California Lumber, 130 NLRB 235, the
Board, overruling its Trial Examiner, and on the as-
sumption that the strike there dealt with violated
the no-strike clause of a collective agreement,
found on the basis of the Supreme Court decision
in the Prudential Insurance case,' that such conduct
did not constitute a violation of Section 8(b)(3) of
the Act. The Court, in affirming the Board (319
F.2d 375, 378 (C.A. 9)), stated inter alia,
In our judgment the fact that a strike, other-
wise wholly consistent with good-faith collec-
tive bargaining, constitutes a violation of a no-
strike agreement does not, per se, render the
strike a refusal to bargain in good faith.
Cheney has its remedy for demands resulting
from this contract violation. Whether the con-
duct of the Union in calling the strike con-
stitutes a refusal to bargain in good faith must
be determined not on a per se basis but upon a
scrutiny of the circumstances taken in their en-
tirety.
The Court also incorporated in its decision this lan-
guage from the Supreme Court's decision in the
Prudential case (fn. 1, supra):
' N L R B v . Insurance Agents' International Union , AFL-CIO [Pru-
dential insurance Co .],361 U S 477, 494.
2 C & C Plywood Corporation and Plywood , Lumber and Sawmill Workers
Local Union No. 2405, AFL-CIO, 148 NLRB 414, enforcement denied 351
65
... [T]he use of economic pressure by the
parties to a labor dispute is not a grudging ex-
ception to some policy of completely academic
discussion enjoined by the Act; it is part and
parcel of the process of collective bargaining.
... It may be that the tactics used here deserve
condemnation, but this would not justify at-
tempting to pour that condemnation into a ves-
sel not designed to hold it.
This much is clear but what it takes in addition to
a per se contract violation to constitute such a
violation also'a violation of Section 8(b)(3) is, as of
now, somewhat less than pellucid. If lack of good
faith is a determining factor-and because of the
Board's reliance in Cheney on the Supreme Court's
decision in the Prudential case one might assume
that good faith is at least a factor-I would doubt
that the General Counsel has proved his case for it
would appear from the Union's reasoned arguments
that there were substantial grounds for a'belief that
in its dispute with LASME it took all measures
required of it under the agreement before striking.
However, we must distinguish between actual good
faith and good faith when used as a term of legal
art, as when it is found that an employer or a union
has failed to bargain in good faith though in'actual
good faith it has questioned the appropriateness of
the bargaining unit as found by the Board. I do not
see that the employer's actual good faith entered
into the Board's Decision in the C & C Plywood
Corporation case,2 in which it found that the em-
ployer's reliance on a contract clause as defense did
not exonerate it from a finding that it had refused
to bargain in good faith. The Union's position in the
preceding section has been given in' considerable
detail for whatever bearing it might have on a good-
faith issue and also for the purposes of demonstrat-
ing that we are here dealing with a collective . agree-
ment of many parts and which does not allow for an
easy answer as to whether the Union in striking vio-
lated its terms. Apparently the General Counsel
and the Charging Party would have me construe the
agreement for the sole purpose of determining
whether or not the Union did in fact violate its
terms for the settlement of disputes, and on finding
that it did, ipso facto declare that the Union thereby
violated Section 8(b)(3) of the Act.
The General Counsel's chief reliance is the
Board's Decision in United- Mine Workers of Amer-
ica (Boone County), 117 NLRB 1095, in which the
Board stated, inter alga, at 1097:
We find in agreeement with the Trial Ex-
aminer, and for the reasons explained in detail
by him in his Intermediate Report, that the
grievance and arbitration procedures set out in
the "Settlement of Local and District Dis-
putes" section of the contract upon which the
parties had agreed, excluded the right to strike
F 2d 224 (C A. 9), cert granted 384 U S 903 (The Supreme Court's deci-
sion issued January 9, 1967 [385 US 4211, but its text had not reached me
as of the time of this writing )
350-999 0 - 71 - 6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or engage in work stoppages over disputes,
such as the one involved herein, which were
cognizable under the grievance machinery and
that, therefore, the strike in this case was in
derogation of the contract We further find, as
did the Trial Examiner, and again for the
reasons fully set forth in his Intermediate Re-
port, that since the strike in this case was in
derogation of the contractual commitment not-
to strike, it was an activity unprotected by the
Act, and as such, occurring in a bargaining
context was violative of Section 8(b)(3). The
Respondents by engaging in such unprotected
activity in aid of their bargaining position not
only abused their bargaining powers and im-
paired the collective-bargaining process, but
also thwarted the peaceful procedures for the
channelization of contract disputes that they
had agreed to follow as a substitute for
economic conflict. This, in our opinion, con-
stituted bad-faith bargaining contravening the
Act's requirements.3
Provided it be found that the Union in the
present case violated the provisions in the agree-
ment for the settlement of disputes, I would find it
indistinguishable from the Board's Decision in the
case cited above, but there are two considerations
which leave me doubtful whether this Decision is
controlling as of now: (1) the court denied enforce-
ment of the Board's Order in the case, 257 F.2d
211 (C.A.D.C.), and (2) the Cheney case, while not
specifically overruling Boone County, shows a shift
in the Board's approach to contract violations as
constituting a refusal to bargain, a shift brought
about by the Supreme Court's decision in the Pru-
dential Insurance Company case (fn. 1, supra), a
decision which issued some 3 years after the
Board's Decision in the Boone County case. It
seems obvious therefore that the Board's post Pru-
dential Insurance view of strike violations con-
sidered as constituting a refusal to bargain, drasti-
cally alters views previously held.4 For instance, in
its C & C Plywood Corporation Decision, fn. 2,
supra, April 24, 1964, the Board in reversing its
Trial Examiner distinguished the cases relied on by
him in dismissing an allegation of 8(a)(5) violations
by an employer,' principally on the grounds that in
the C & C Plywood case the complaint was not
based on a contract violation but on an invasion of
J Neither the Trial Examiner nor the Board agreed with the General
Counsel 's contention that the strike , though in derogation of the contract's
provisions for the settlement of disputes , was an attempt to modify the con-
tract within the meaning of Section 8(d) Reference is made to pages 1121,
1 1 22, 1 123 of the Decision for an analysis of the alleged 8(d) aspects of the
case which I adopt as applicable to the case at bar
the union's statutory right as a bargaining represent-
ative, in that case a unilateral wage increase by the
employer, whereas the cases relied on by the Trial
Examiner were predicated upon a breach of con-
tract.
The same distinction lies here. To strike, sans
contract, to enforce a grievance, even though the
strike occurs in a context of bargaining, is not,
under the Prudential decision, per se refusal to bar-
gain. The refusal to bargain here complained of is
predicated upon an alleged breach of contract, and
it is only after construing the said contract-as
previously indicated, by no means an instrument
completely free of ambiguity-and after a finding
on the basis of such interpretation that it has indeed
been breached, that we come to the issue of
whether or not a violation of 8(b)(3) has occurred.
It is upon such considerations rather than any in-
terpretation of the Agreement to determine
whether or not it was breached, or whether the
Respondent Union challenged its International's in-
terpretation of the Agreement in good faith, that I
shall recommend dismissal of the complaint in this
case. And in doing so I draw no conclusions on the
Board's power generally to construe contracts in
order to determine whether an unfair labor practice
has been committed. I simply see no circumstances
peculiar to this case, such as substantial and superi-
or advantages of remedial action here as compared
with that to be obtained in other forums with un-
doubted jurisdicition over alleged breach of collec-
tive-bargaining agreements, to require the exercise
of such power by the Board.
CONCLUSIONS OF LAW
LASME is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
The Respondent has not engaged in the alleged
unfair labor practices.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed.
' 1 do not find the Supreme Court's decision in Local 174, Teamsters v
Lucas F/our Co , 369 U S 95, cited by the General Counsel, apposite, for
the reasons that (1) the contract violation was clear requiring no construc-
tion of the instrument but merely reference to applicable law and (2) there
was no alleged refusal to bargain involved
' United Telephone Comports of the West, 112 NLRB 779, Morton Suit
Company, 119 NLRB 1402