The opinion of the court was delivered by: BIUNNO
This case comes before the court by its jurisdiction under 29 U.S. Code, § 185, without regard to the amount involved in controversy and without regard to the citizenship of the parties.
Section 4 of Article X reads as follows:
"The Employer during the first twenty-four hour period of an unauthorized work stoppage or strike shall have the sole and complete right of discipline including discharge of employees, and such employee shall not be entitled to or have any recourse to any other provision of this Agreement."
Art. VI of the agreement contained usual provisions for the processing of grievances, and for arbitration, "in the event a misunderstanding or dispute regarding the interpretation of this Agreement occurs."
On November 1, 1968, none of the bargaining unit employees (numbering about 70 or 80) showed up for work. All probationary employees, that is, those recently hired and obliged to join the union but who were not yet members, did show up for work. Hertz officials had reports the night before that this would happen, and was able to draw in management staff to conduct the operation.
From the early morning, the union members phoned in that they were sick and would not be able to work. Raspberry says he told two supervisory people the day before that his back hurt and that he would not be in the next day. Johnson said he was ill and had his cousin phone in that morning to report the fact.
Both Johnson and Raspberry claim they were in fact sick. They claim they had no part in any unauthorized work stoppage. They claim that Art. X, § 4 is void against public policy if read to authorize Hertz to fire anyone it chose, whether involved in the work stoppage or not. They claim that if the provision is read to apply only to those participating in the work stoppage, they were entitled to the benefit of the grievance and arbitration procedures, which the Union failed to prosecute for them. Recovery is sought from both Hertz and the Union.
Putting the legal issues to one side and turning to the facts, there seems to be no question but that there was a concerted work stoppage at the Hertz operation at Newark Airport on November 1, 1968. Now, assuming for the moment that the disciplinary provisions of Article X, § 4, are applicable only to employees who participated in the work stoppage in some fashion, the evidence establishes by a clear preponderance that both plaintiffs did participate. Now, it is true that they have had testimony of their own that they were ill on November 1st but that doesn't end the inquiry. They may have been in fact ill on November 1st but even on the interpretation assumed for this purpose it is obvious that someone who set up the unauthorized work stoppage during the week and happens to get sick the day of the work stoppage can hardly claim to be excused because he was sick that day.
There is testimony of a discussion earlier in the week where a group, including the two plaintiffs, expressed the intention to walk out if the outer garments, the parkas, were not delivered by the end of the week.
Section 4 is also quite explicit and this seems to leave no room for interpretation at all, that the employee who is disciplined, including discharge, during the first twenty-four hours of an unauthorized work stoppage or strike is not entitled to and cannot have any recourse to any other provisions of the agreement. It doesn't say "excepting grievance proceeding" and it doesn't say "except the arbitration provision." It says "Shall not be entitled to or have any recourse to any other provision of this agreement."
So that any contention that the issue of the participation of plaintiffs in the work stoppage should itself be the subject of a grievance or arbitration finds no support in the clause, even construed for this purpose in the fashion that the Court has assumed for the time being.
It is a well-established rule that when a person who is the subject of a charge offers an explanation or makes some statement about his conduct or his innocence or anything of that kind which tends to show the charge is not true, and the explanation or statement is shown to be false, then the finder of fact may consider that as being circumstantial ...