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Food Fair Stores Inc. v. National Labor Relations Board


decided: January 18, 1974.



Van Dusen, Hunter and Garth, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

This case is before the court upon the petition of Food Fair Stores, Inc. (hereinafter the "Company") to review and set aside an order of the National Labor Relations Board issued against the Company on March 12, 1973, and reported at 202 N.L.R.B. No. 51. The Board has filed a cross-application for enforcement of its order. This court has jurisdiction of the proceeding under section 10(e) and (f) of the National Labor Relations Act (hereinafter the "Act"), as amended, 29 U.S.C. ยง 151 et seq., since the alleged unfair labor practices occurred in Philadelphia where the Company has a food distribution center from which it supplies retail stores in Pennsylvania and southern New Jersey.

In the course of its business, the Company employs some 200 full-time truck drivers and some 20 to 30 "casual" truck drivers. The casual drivers are those called on to replace a regular driver who is absent or on vacation. The Company's truck drivers, casual as well as regular, are represented by Food Drivers, Helpers and Warehousemen Employees Local 500, IBT (hereinafter the "Union"). The Company and the Union are parties to a collective bargaining agreement between Food Employer's Labor Relations, Inc., amicus curiae here, representing 18 employers in the food distribution and processing industry, including Food Fair, and four local unions, including Local 500. The agreement is in effect from January 1, 1971, through December 31, 1973, and covers both casual and regular drivers. The provisions relevant to the case are reproduced in the footnote below,*fn1 which includes the prohibition against work stoppages in Article 28.

The casual drivers subsequently became dissatisfied with a number of Company practices, and on November 6, 1971, between 14 and 18 of the casual drivers met to review them. Uppermost among these grievances was their frustration in achieving permanent status as truck drivers.*fn2 The next day, the casuals presented their problems to Union shop steward Emberger, who agreed to arrange a meeting with Union officials.

On November 16 the casuals met with Emberger, Union Secretary-Treasurer William Brown, and Union Vice-President William O'Farrell. After hearing their grievances, Brown told the drivers there was nothing the Union could do for them. When the men insisted that an effort be made to arrange a meeting with the Company, O'Farrell consented and tried, unsuccessfully, to reach Robert McIntyre, the Company's Assistant Director of Industrial Relations. During this meeting, the casual drivers mentioned the possibility of a protest "demonstration."

After the meeting, Emberger, O'Farrell, and probably Brown remained to await a call from McIntyre. When McIntyre did not call, O'Farrell called him again and requested a meeting. McIntyre suggested a meeting November 19.*fn3 O'Farrell told him that unless a meeting was arranged immediately, the casual drivers might demonstrate the following night. McIntyre replied that if they did, there would be no meeting until work recommenced. McIntyre also reminded O'Farrell that as Union officials, he and Brown had an obligation under the contract to make sure that there was no interruption in the Company's operations and told him that if he expected any problem in that regard it was incumbent on him personally to see that it was resolved. O'Farrell assured him that he would do everything possible to keep the men in line.

The following day, November 17, some of the casual drivers gathered at the home of one of their group to await an answer to their request for a meeting with the Company. When they did not receive a call, they telephoned the Union. They were told that the Company had not responded and apparently was not going to meet with the casual drivers. On hearing this, they began to prepare signs for a "demonstration."

Between 8:30 and 10:00 P.M. on the night of November 17, the casual drivers began picketing the entrances to the Company's distribution center. The pickets were peaceful and orderly and did not interfere with other workers entering or leaving the center. At about 10:00 P.M., Union representatives Emberger, Brown, and O'Farrell arrived. Brown, in the presence of Company representatives, told the pickets that their activity was not authorized or sanctioned by the Union and that they should disperse. The pickets, with apparent sarcasm, thanked Brown and continued picketing until about 3:30 P.M. on November 18, when the pickets were served with a state court injunction. The walkout thus lasted approximately 18 hours. During this time, only one casual driver was available for work, and many regular drivers also failed to report for work.*fn3a

On November 18 the Company terminated the 21 casual drivers who had participated in the walkout and thereafter refused to recall them. Following their discharge, the casual drivers attempted to have the Union file a grievance on their behalf, but the Union refused to do so. Thereafter the casual drivers filed a charge against the Union, alleging that it had denied them fair representation, but that charge was subsequently withdrawn.

The instant charge against the Company was filed on November 23, 1971, and a complaint was issued against the Company in June 1972. Following a hearing, the Decision, including Finding of Fact and Conclusions of Law, as well as a recommended Order, of the Administrative Law Judge was issued on November 17, 1972. On March 13, 1973, the Board affirmed the rulings, findings and conclusions of such judge and adopted his recommendations. In its decision the Board found that the protest walkout in this case was concerted activity protected by section 7 of the Act and that the right of the employees to engage in a walkout of less than 24 hours' duration had not been waived in the collective bargaining agreement. The Board held, therefore, that the Company had violated section 8(a)(1) of the Act by discriminating against the 21 casual drivers who had participated in the walkout.*fn4

There has been much discussion in this case as to whether under the terms of the collective bargaining agreement the Company has the right to discharge employees who engage in work stoppages of less than 24 hours' duration. The Company argues that Article 11, section 1, of the agreement provides for "immediate discharge" of any employee who participates in an unauthorized strike or walkout and that its right to apply this sanction is in no way abridged by Article 8, section 9. According to the testimony of Mr. McIntyre, the purpose of the disputed clause in Article 8, section 9, was not to forbid discharge during the first 24 hours of an unauthorized strike, but rather to create an exception for workers discharged during that period from the provision that workers disciplined for participation in a wildcat strike are not entitled to have recourse to the grievance procedures of the agreement. In support of this construction, the Company points out that the 24-hour clause appears in the article of the agreement dealing with the grievance procedure, rather than the one concerning discharge and, furthermore, that Article 8, section 9, contains a provision absolving the Union of any possible liability for wildcat strikes, which the Company maintains was the quid pro quo for the 24-hour clause. However, the Board rejected this interpretation, since it found that the clear meaning of Article 8, section 9, on its face was to limit the employer's right of discipline during the first 24 hours of an unauthorized work stoppage to all reasonable measures short of discharge.

It is unnecessary for this court to resolve this dispute, for whether the agreement is read to permit the discharge of strikers during the first 24 hours of an unauthorized work stoppage or not, the walkout in this case was not protected by section 7 of the Act and, therefore, the Company's discharge of the employees who participated in the walkout did not violate section 8(a)(1) of the Act.*fn5 Section 7 guarantees employees the right "to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection." In defining the scope of concerted activities to be afforded the protection of the Act, courts have generally excluded two types of employee conduct, both involved here--unauthorized strikes and strikes in breach of a collective bargaining agreement.

The question of whether unauthorized strikes are "concerted activities" in which employees have a right to engage poses an important issue of policy. As this court observed in N.L.R.B. v. Rubber Rolls, Inc., 388 F.2d 71, 73 (3d Cir. 1967):

"The problem is a fundamental one, for it involves the sometimes incompatible policies of conferring on the collective bargaining agent selected by a majority of the employees the exclusive authority to speak for all of them and of permitting employees the right to individual expression over matters affecting their conditions of employment."

Nearly all of the circuits that have been confronted with this issue have followed the decision of the Fourth Circuit in N.L.R.B. v. Draper Corp., 145 F.2d 199 (4th Cir. 1944), and have treated unauthorized strikes as unprotected activity per se. See Plasti-Line, Inc. v. N.L.R.B., 278 F.2d 482 (6th Cir. 1960); N.L.R.B. v. Sunbeam Lighting Co., 318 F.2d 661 (7th Cir. 1963); Harnischfeger Corp. v. N.L.R.B., 207 F.2d 575 (7th Cir. 1953); N.L.R.B. v. Illinois Bell Telephone Co., 189 F.2d 124 (7th Cir.), cert. denied, 342 U.S. 885, 72 S. Ct. 173, 96 L. Ed. 663 (1951); N.L.R.B. v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir. 1969); N.L.R.B. v. Sunset Minerals, Inc., 211 F.2d 224 (9th Cir. 1954). This approach is supported by recent Supreme Court decisions holding that because of the interest of section 9(a) of the Act in a union's status as exclusive bargaining agent, some of the section 7 rights of the employees may be exercised only in accordance with the majority choice of the union. See Scofield v. N.L.R.B., 394 U.S. 423, 22 L. Ed. 2d 385, 89 S. Ct. 1154 (1969); N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 18 L. Ed. 2d 1123, 87 S. Ct. 2001 (1967).

The principal exception to the general unwillingness of courts to grant the protection of the Act to unauthorized strikes was the decision in N.L.R.B. v. R.C. Can Co., 328 F.2d 974 (5th Cir. 1964), where the Fifth Circuit distinguished between unauthorized activity which supported union objectives and that which opposed them, holding that the former was protected. In N.L.R.B. v. Rubber Rolls, Inc., supra at 73, we expressed in dicta our approval of the R.C. Can decision, noting that in some situations unauthorized activity by employees might enhance the authority of the union and aid the collective bargaining process. Since then, however, the Fifth Circuit has cast doubt on the continued viability of the approach taken in R.C. Can and has warned that its decision there should be read rather narrowly. N.L.R.B. v. Shop Rite Foods, Inc., 430 F.2d 786, 790-791 (5th Cir. 1970).*fn6

The unauthorized walkout in this case was carried out against the wishes of the Union, which, in compliance with its contractual obligation under Article 8, section 9, sought to induce the casual drivers to return to their work. It violated the provision of Article 8, section 9, of the agreement which gives the Union sole authority to call any strikes not in violation of the agreement. And the purpose of the walkout was in part to protest against certain substantive portions of the agreement concerning seniority to which the Union had assented. Under these circumstances, it is clear that the activity of employees should not be granted the protection of the Act; otherwise, the status of the Union as exclusive bargaining agent would be weakened and the orderly resolution of industrial conflicts envisioned by the Act would be impaired. The employees had available to them a contractual grievance procedure,*fn7 and their proper course was to press their claims through it, rather than to engage in an unauthorized strike.*fn8

In addition, the law is clear that strikes carried out in violation of a no-strike provision in a collective bargaining agreement are not protected by the Act, and therefore the discharge of employees who engage in such strikes is not an unfair labor practice. See Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246, 8 L. Ed. 2d 462, 82 S. Ct. 1318 (1962); Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 280, 100 L. Ed. 309, 76 S. Ct. 349 (1956); N.L.R.B. v. Rockaway News Co., 345 U.S. 71, 80, 97 L. Ed. 832, 73 S. Ct. 519 (1953); N.L.R.B. v. Sands Mfg. Co., 306 U.S. 332, 344, 83 L. Ed. 682, 59 S. Ct. 508 (1939). Whether a particular collective bargaining agreement includes a waiver of the employees' right to strike, and the extent of any such waiver, "turns upon the proper interpretation of the particular contract . . . . [which] must be read as a whole and in light of the law relating to it when made." Mastro Plastics Corp. v. N.L.R.B., supra at 279. Thus, we must look to the terms of the agreement in this case to determine if the walkout of the casual drivers violated any waiver of their right to strike contained therein.*fn9

Article 28, section 5, provides that "there shall be no work stoppages or threats thereof except as specifically permitted under the provisions of Article 8." The Company argues that the only work stoppage specifically permitted in Article 8 is that provided for in section 7 in cases where one of the parties to the agreement fails to comply with an arbitrator's award. However, the Board found that Article 8, section 9, also contained an exception to the no-strike clause of Article 28, section 5, for strikes of less than 24 hours' duration. The Board apparently reasoned that Article 8, section 9's prohibition against discharges during the first 24 hours of an unauthorized strike implied that work stoppages lasting less than 24 hours are permitted.*fn10 In support of this conclusion, the board relied on its decision in Wagoner Transportation Company, 177 N.L.R.B. 452, enforced, 424 F.2d 628 (6th Cir. 1970) (per curiam), a case involving a contractual provision nearly identical to the 24-hour clause here. Adopting the decision of the Trial Examiner, the Board held there "that to the extent that the Agreement prohibited the Respondent from exacting the extreme penalty of discharge on employee-participants in wildcat strikes of less than 24 hours' duration, such strikes are protected activities under the provisions of Section 7 of the Act which guarantees to employees the right to engage in 'concerted activities for the purpose of collective bargaining or other mutual aid or protection.'" Id. at 457.

We find this reasoning unpersuasive. Even assuming that the 24-hour clause prohibits the discharge of employees who participate in an unauthorized walkout lasting less than 24 hours, it does not follow, as a matter of sound construction or of logic, that such a walkout is thereby excepted from the no-strike provision of the agreement and is, therefore, protected by the Act. Article 28, section 5, of the agreement forbids all work stoppages "except as specifically permitted under the provisions of Article 8." Article 8, section 7, clearly creates an exception for cases where a party has failed to comply with an arbitrator's award. However, there is nothing in the language of Article 8, section 9, that specifically permits an unauthorized walkout of less than 24 hours' duration. Furthermore, no intent to do so can be inferred from a prohibition of discharge during such a walkout. The purpose of that prohibition would seem to be to give the employees who participate in an unauthorized work stoppage a day to reconsider their action before being subject to the extreme penalty of discharge. However, there is no question that under the terms of Article 8, section 9, the Company retains the power to impose reasonable discipline short of discharge upon employees who participate in an unauthorized work stoppage lasting less than 24 hours. That provision is consistent with the other terms of the agreement only on the assumption that such a strike is still illegal under the agreement.*fn11 While it is true that the source of that illegality may be the unauthorized nature of the strike, rather than the work stoppage itself, the policy behind the language of Article 8, section 9, can hardly be said to permit strikes of less than 24 hours' duration. Thus, the strike in this case was in violation of the no-strike clause of the collective bargaining agreement and, hence, was not protected by the Act.

For the foregoing reasons, we hold that in discharging the casual drivers who participated in the walkout of November 17-18, 1971, the Company did not commit an unfair labor practice as defined in section 8(a)(1) of the Act. The Company's petition to review and set aside the March 12, 1973, order of the Board will, therefore, be granted and the Board's cross-application for enforcement of that order will be denied.

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