Strick Corp., 210 (1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Strick Corporation and Gordon Maurer, John Horek,

Walter Anderson, and Louis S. Trapane International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 644 and Gordon Maurer, John Horek,

Walter Anderson, and Louis S. Trapane. Cases 4CA-8295-1, 4-CA-8295-2, 4-CA-8295-3, 4-CA8295-4, 4-CB-2950-1, 4-CB-2950-2, 4-CB-2950

3, and 4 CB-2950 4

March 19, 1979 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS JENKINS

AND PENEI.LO On November 16, 1978, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the Charging Parties and the General Counsel filed exceptions and supporting briefs, Respondent Employer and Respondent Unions filed cross-exceptions and supporting briefs, the Charging Parties filed answering briefs to the cross-exceptions of Respondent Employer and Respondent Unions, Respondent Employer and Respondent Unions filed answering briefs to the exceptions of the Charging Parties and the General Counsel, and the General Counsel filed an answering brief to the cross-exceptions of Respondent Employer and Respondent Unions.

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.

While we agree with the Administrative Law Judge's ultimate finding that Respondent Unions did not violate their duty of fair representation, we regard as irrelevant the fact that the Unions might have lost the support of the then-working unit members if the Unions had failed to accede to the Employer's demand for a contract clause abrogating the arbitrator's award giving rise to this controversy. The only issue IThe Charging Parties have requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties.

In agreeing with the Administrative Law Judge that the instant proceeding is not time-barred by Sec. 10(b) of the Act, we rely solely upon established Board precedent holding that notice, whether actual or constructive, must be clear and unequivocal, and that the burden of showing such notice is on the party raising the affirmative defense of Sec. 10(b). AMCAR Division, ACF Industries, Incorporated. 234 NLRB 1063 (1978).

presented herein is whether the Unions acted arbitrarily or in bad faith in acquiescingin the Employer's demand for the clause. Given the particular circumstances herein, including the Employer's adamant demand for the clause, the Employer's avowed intention to 'take a strike' if the Unions failed to agree to the clause, the desire of the working employees and their shop committee that the clause be included, and the probable ineffectiveness of a strike in opposition to the clause and the fact that resistance of the clause further would delay implementation of the new contract and its improved benefits thus resulting in detriment to working employees, we conclude that the Union was faced with a 'Hobson's choice,' and in making its decision did not act arbitrarily or in bad faith.

The record reveals that the Unions at all times actively pursued the rights of the discharged employees.

Thus, the Unions promptly filed and processed the grievance giving rise to the arbitration award and provided an attorney to argue before the arbitrator on behalf of the dischargees. The Unions also paid the dischargees' expenses related to the State of Pennsylvania's denial to them of unemployment compensation, and, on appeal of that denial, provided them with the services of its attorney.

As the Supreme Court stated in Humphrey v.

Moore, 375 U.S. 335, 349 (1964):

[W]e are not ready to find a breach of the collective bargaining agent's duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of an other .... 'Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. ... A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.'2

On the basis of the foregoing, we find that, by acquiescing in the Employer's demand, the Unions 'acted upon wholly relevant considerations, not upon capricious or arbitrary factors,'3 and accordingly have not breached their duty of fair representation.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby or2 Citing Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953).

Humphrey v. Moore, supra at 340.

241 NLRB No. 27

210

STRICK CORPORATION ders that the complaint be, and it hereby is, dismissed in its entirety.

DECISION

STATEMENT OF THE CASE

JOEL A. HARMATZ, Administrative Law Judge: This consolidated proceeding was heard in Wilkes-Barre, Pennsylvania, on May 15, 16, and 17, 1978, upon an unfair labor practice charge filed on October 29, 1976, and a consolidated complaint issued on December 30, 1977.' The aforesaid consolidated complaint alleges that Respondent Unions violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act by alleged restraint and coercion against participants in an authorized strike by joining with Respondent Employer in a collective-bargaining agreement which abrogated remedies acquired by said strikers through arbitration. It is further alleged that Respondent Employer violated Section 8(a)(3) and (1) of the Act by its conduct in this regard. In their duly filed answers, Respondent Unions and Respondent Employer denied that any unfair labor practices were committed, and raised various affirmative defenses. Following close of the hearing, briefs were filed on behalf of the General Counsel, the Charging Parties, the Respondent Unions and the Respondent Employer.2

Upon the entire record in this proceeding, including consideration of the briefs filed on behalf of the parties, and after close observation of the witnesses and their demeanor while testifying, I make the following:

FINDINGS OF FACT

  1. JURISDICTION Respondent Employer is a Pennsylvania corporation engaged in the manufacture of trailers for use by motor carriers, with a facility located in Berwick, Pennsylvania, the sole plant involved in this proceeding. During the 12-month period preceding issuance of the complaint, Respondent Employer in the course and conduct of its operations shipped and sold products valued in excess of $50,000 directly to points located outside the Commonwealth of Pennsylvania.

The complaint alleges, Respondent Employer's answer admits, and I find that it is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

1I. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answers admit, and I find that Respondent International Union, United Automobile,

Aerospace and Agricultural Implement Workers of America, and its constituent, Respondent Local 644, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act.

IIn accord with a request by the General Counsel, official notice is taken that the charges initiating this proceeding were initially dismissed and that the complaint which ultimately issued was pursuant to an appeal by the Charging Parties to the General Counsel in Washington, D.C.

2 Following expiration of the date for the submission of briefs, counsel for the Respondent Employer requested leave to file an answering brief. Said request is hereby denied; the document has not been considered.

  1. The Issues and Positions of the Parties This proceeding involves a challenge to certain terms in a collective-bargaining agreement executed by Respondents in 1976. Prior thereto, Respondent Employer had discharged about 200 employees by reason of their participation in an unprotected strike. The discharges were grieved and an arbitration award resulted, authorizing preferential hiring and retroactive seniority for the strikers. Subsequently, negotiations leading to the aforesaid bargaining agreement opened, with Respondent Employer insisting throughout upon a provision nullifying the arbitrator's remedy as a condition for any new contract. Late in the negotiations, the Respondent Unions assented to that proposal.

    The complaint herein challenges the agreement reached as an unlawful deprivation of rights acquired in arbitration by the discharged strikers.

    As for the positions of the parties, first with respect to Respondent Unions the allegations of 8(bXIl)(A) and 8(b)(2) violations are predicated upon an asserted breach of the duty of fair representation. See Vaca v. Sipes, 386 U.S.

    171, 177 (1967); Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (2d Cir. 1963).

    The General Counsel contends that the Unions' assent to abrogation of the arbitration award sacrificed the rights of the strikers for the benefit of actively employed replacements and that this was done arbitrarily to avoid a decertification challenge to the Unions' representative status. It is asserted that Respondent Unions' acceptance of the Employer's proposal, so motivated, violated the statutory guarantee under Section 7 of the Act that employees be represented by their exclusive agent without arbitrary, irrelevant, or invidious discrimination. In...

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