# Petition — C. K. Smith & Co. v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 957

## Text

~ Supreme Court, U. $
{ FILED

| MAR 28 1978

In the | MICHAEL RODAK, JR., CLERK

Supreme Court of the United States.

Ocroser TERM, 1977.

No. @7- 1374

C.K. SMITH & CO., INC.,
AND
BUCKLEY HEATING CO., INC.,
(GASOLINE DIVISION),

PETITIONERS,

0.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT.

Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit.

Pau. J. KincsTon,
Rosert W. GARRETT,
Pau V. MULKERN, JR.,
133 Federal Street,
Boston, Massachusetts 02110.
Francis T. COLEMAN,
2020 K Street, N.W..,
Washington, D.C. 20006.
Of Counsel: Counsel for Petitioners.
Kincston & GARRETT,
133 Federal Street,
Boston, Massachusetts 02110.
Loomis, OwEN, FELLMAN & COLEMAN,
2020 K Street, N.W.,
Washington, D.C. 20006.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinions below
Jurisdiction
Questions presented
Statute involved
Statement of the case
A. The facts
B. The Board’s decision and order
C. The decision of the Court of Appeals
Reasons for granting the writ

A. The Court of Appeals has decided a ques-
tion which had not been, but should be,
settled by this court

B. The First Circuit Court of Appeals has
rendered a decision in conflict with the de-
cisions .: »ther Courts of Appeals

C. The First Circuit’s decision is ‘1 conflict
with this Court’s decision in NLRB v. Rock-
away News Supply Co. and Mastro Plastics
Corp. v. NLRB

1. NLRB v. Rockaway News Supply Co.
2. Mastro Plastics Corp. v. NLRB
Conclusion

Appendix A — Opinion of the United States Court of
Appeals for the First Circuit issued December 28,
1977

Appendix B — Decision and Order of The National
Labor Relations Board with Decision of the Ad-
ministrative Law Judge attached

oof NY WY WY

13
14
15

15

18

SRS

32

la

l4a

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.
CASEs.

Arlan’s Department Store, 133 NLRB No. 56, 48

LRRM 1731 (1961) 30, 32
Buffalo Forge Co. v. Steelworkers, 428 U.S. 397, 92
LRRM 3032 (1976) 16, 17

Hearst Corporation, The, 161 NLRB No. 113, 63
LRRM 1441 (1966), enf’d sub nom. News Union of
Baltimore v. NLRB, 393 F. 2d 673, 67 LRRM 2487
(D.C. Cir. 1968) 27, 28, 29

Hoffman Beverage Co., 163 NLRB No. 134, 65
LRRM 1011 (1967) 15n

Keller-Crescent Co., 217 NLRB No. 100, 89 LRRM
1201 (1975), enf. den. 538 F. 2d 1291, 92 LRRM
3591 (7th Cir. 1976) 28

Laconia Shoe Co., Inc., 215 NLRB No. 106 (1974) 15n

Local 814, Teamsters v. NLRB, 546 F. 2d 989, 93
LRRM 2305 (D.C. Cir. 1976) 23

Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 37

LRRM 2587 (1956) 3, 18, 25, 29
30, 31, 32
Montana-Dakota Utilities Co. v. NLRB, 455 F. 2d
1088, 79 LRRM 2854 (8th Cir. 1972) 27
NLRB v. Brown & Root, Inc., 203 F. 2d 139, 3]
LRRM 2577 (8th Cir. 1953) 18, 22
NLRB v. General Stencils, Inc., 438 F. 2d 894, 76
LRRM 2288 (2d Cir. 1971) 30

NLRB v. Gibson Prods. Co., 494 F. 2d 762, 86
LRRM 2636 (5th Cir. 1974) 30

ee — eo eee

TABLE OF AUTHORITIES CITED.

NLRB v. Gissel Packing Co., 395 U.S. 575, 71
LRRM 2481 (1969)

NLRB v. Gruber’s Super Market, Inc., 501 F. 2d
697, 87 LRRM 2037 (7th Cir. 1974)

NLRB v. International Van Lines, 448 F. 2d 905,
78 LRRM 2299 (9th Cir. 1971), rev'd in part, 409
U.S. 48, 81 LRRM 2595 (1972)

NLRB v. International Van Lines, 409 U.S. 48, 81
LRRM 2595 (1972)

NLRB v. L.G. Everist, Inc., 334 F. 2d 312, 56
LRRM 2866 (8th Cir. 1964)

NLRB v. Rockaway News Supply Co., 345 U.S. 71,
31 LRRM 2432 (1953)

NLRB v. Union Carbide Corp., 440 F. 2d 54, 76
LRRM 2181 (4th Cir. 1971), cert. den. 404 U.S.
826 (1971)

News Union of Baltimore v. NLRB, 393 F. 2d 673,
67 LRRM 2487 (D.C. Cir. 1968)

Ozark Dam Constructors, 99 NLRB No. 153, 30
LRRM 1192 (1952), enf’d sub nom. NLRB v.
Brown & Root, Inc., 203 F. 2d 139, 31 LRRM
2577 (1953)

Peerless of America, Inc. v. NLRB, 484 F. 2d 1108,
83 LRRM 3000 (7th Cir. 1973)

Pilot Freight Carriers, Inc., 224 NLRB No. 46, 92
LRRM 1338 (1976)

Redwing Carriers, Inc., 137 NLRB No. 162, 50
LRRM 1440 (1962), enf’d sub nom. Teamsters,
Local 79 v. NLRB, 325 F. 2d 1011, 54 LRRM
2707 (D.C. Cir. 1963), cert. den. 377 U.S. 905
(1964)

19, 24

16

21

25, 26, 27, 29

18, 19, 20

19, 28

19, 22, 23

30

15n

iv TABLE OF AUTHORITIES CITED.

Republic Steel Corp. v. Mine Workers, ___. F.. 2d

___, 97 LRRM 2836 (3d Cir. 1978) 16
South Prairie Construction Co. v. Engineers, 425

U.S. 800, 92 LRRM 2507 (1976) 3ln

Teamsters, Local 79 v. NLRB, 325 F. 2d 1011, 54
LRRM 2707 (D.C. Cir. 1963), cert. den. 377 U.S.

905 (1964) 19, 23
Universal Camera Corp. v. NLRB, 340 U.S. 474, 27
LRRM 2373 (1951) 32
Winter Garden Citrus Products v. NLRB, 238 F. 2d
128, 39 LRRM 2080 (5th Cir. 1956) 30, 31
STATUTES.
28 U.S.C. § 1254(1) 2
National Labor Relations Act, as amended, 29
U.S.C. §§ 151 et seq. passim
§ 1, 29 U.S.C. § 151 4
§ 2(6), 29 U.S.C. § 152(6) 14
§ 2(7), 29 U.S.C. § 152(7) 14
§ 7, 29 U.S.C. § 157 4
§ 8(a)(1), 29 U.S.C. § 158(a)(1) 5, 6, 13, 14, 15
§ 8(a)(3), 29 U.S.C. § 158(a)(3) 5, 6, 13, 14
§ 8(a)(5), 29 U.S.C. § 158(a)(5) 5, 6, 13, 14, 15
§ 10(c), 29 U.S.C. § 160(c) 5
§ 10(e), 29 U.S.C. § 160(e) 6
§ 13, 29 U.S.C. § 163 6

In the
Supreme Court of the United States.

Ocroser TERM, 1977.
No.

C.K. SMITH & CO., INC.,
AND
BUCKLEY HEATING CoO., INC.,
(GASOLINE DIVISION),
PETITIONERS,

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT.

Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit.

The petiticners, C.K. Smith & Co., Inc. (“Smith”), and
Buckley Heating Co., Inc. (Gasoline Division) (“Buckley”),
hereby request the issuance of an order granting certiorari
to review the judgment and opinion of the United States
Court of Appeals for the First Circuit entered in this pro-

2

ceeding on December 28, 1977. The judgment enforced an
order of the National Labor Relations Board (the “Board”)
that requires, inter alia, your petitioners to reinstate and
award back pay to certain employees who were replaced
during a strike at the petitioners’ common premises.

Opinions Below.

The opinion of the Court of Appeals for the First Circuit,
dated December 28, 1977, is reported at 97 LRRM 2460,
and is reprinted in Appendix A, infra, pp. la-l3a. The
Board’s decision and order, with an attached decision of the
Administrative Law Judge, are reported at 227 NLRB No.
147, and are reprinted in Appendix B, infra, pp. 14a-79a.

Jurisdiction.

The judgment of the Court of Appeals was entered on
December 28, 1977, and this petition for writ of certiorari
has been filed within ninety days of the entry of that judg-
ment.

The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).

Questions Presented.

The National Labor Relations Board found in this case
that two corporations separately engaged in the wholesale

3

and retail distribution of oil products comprised a single
employer within the meaning of the National Labor Re-
lations Act; that two bargaining units of employees of the
retail distributor had engaged in a primary strike protesting
certain unfair labor practices against them by that corpora-
tion; and that the unfair labor practice striker status con-
ferred upon those employees should automatically be con-
ferred upon a separate bargaining unit of the wholesale
distributor’s employees against whom no unfair labor prac-
tices had been committed and with whom the wholesale
distributor was lawfully bargaining but who had been
permanently replaced by that corporation for legitimate
business and economic reasons following their refusal to
cross the retail distributor’s employees’ picket lines at their
common place of employment. The actions of the whole-
sale distributor’s employees were also alleged to be in viola-
tion of the no-strike clause of their separate bargaining
agreement. The Court of Appeals upheld the Board’s
findings and rendered a judgment enforcing the Board’s
order of reinstatement with back pay relative to the whole-
sale distributor’s employees. The questions presented by the
rulings of the Court of Appeals are:

1. Whether the right to preferential reinstatement con-
ferred by the Board upon a bargaining unit of unfair labor
practice primary strikers should automatically be extended
to employees comprising a second bargaining unit with
whom their common employer was lawfully bargaining and
against whom no unfair labor practices had been committed,
thereby depriving the employer of the right to permanently
replace them for legitimate business and economic reasons
following their refusal to cross the primary strikers’ picket
lines at their common place of employment; and

2. Whether this Court’s decision in Mastro Plastics
Corp. v. NLRB, which privileges the breach of a collective

4

bargaining agreement’s broad no-strike clause by a primary
strike over an employer's serious and flagrant unfair labor
practices, should be extended to privilege a similar breach
by the refusal of employees comprising a separate bargaining
unit, against whom no unfair labor practices have been
committed, to cross the primary picket line of unfair labor
practice strikers at their common place of employment.

Statute Involved.

The relevant provisions of the National Labor Relations
Act, as amended, 29 U.S.C. §§ 151 et seq. (“the Act”), are
as follows:

§ 1, 29 U.S.C. § 151.

It is hereby declared to be the policy of the United
States to eliminate the causes of certain substantial ob-
structions to the free flow of commerce and to mitigate
and eliminate these obstructions when they have oc-
curred by encouraging the practice and procedure of
collective bargaining and by protecting the exercise by
workers of full freedom of association, self-organization,
and designation of representatives of their own choos-
ing, for the purpose of negotiating the terms and condi-
tions of their employment or other mutual aid or pro-
tection.

§ 7, 29 U.S.C. § 157. Employees shall have the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through repre-

5

sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall
also have the right to refrain from any or all of such
activities except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as au-
thorized in section 8(a)(3) [section 158(a)(3) ].

§ 8(a), 29 U.S.C. § 158(a). It shall be an unfair
labor practice for an employer —

(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7 [sec-
tion 157];

(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization:

(5) to refuse to bargain collectively with the repre-
sentatives of his employees, subject to the provisions of
section 9(a) [section 159(a)].

§ 10(c), 29 U.S.C. § 160(c).... If upon the pre-
ponderance of the testimony taken the Board shall be
of the opinion that any person named in the complaint
has engaged in or is engaging in any such unfair labor
practice, then the Board shall state its findings of fact
and shall issue and cause to be served on such person
an order requiring such person to cease and desist from
such unfair labor practice, and to take such affirmative
action including reinstatement of employees with or

6

without back pay, as will effectuate the policies of
this Act:

§ 13, 29 U.S.C. § 163. Nothing in this Act, except
as specifically provided for herein, shall be construed so
as either to interfere with or impede or diminish in any

way the right to strike, or to affect the limitations or

qualifications on that right.

Statement of the Case.

On application by the National Labor Relations Board
pursuant to § 10(e) of the Act, 29 U.S.C. § 160(e), the First
Circuit Court of Appeals enforced an order of the Board by
which it summarily affirmed the rulings, findings and con-
clusions of its Administrative Law Judge (“ALJ”) that Smith
had by certain acts relative to two separate bargaining units
of its employees, herein referred to as “mechanics” and
“retail drivers,” engaged in conduct violative of §§ 8(a)(1)
and (5) of the National Labor Relations Act (the “Act”), 29
U.S.C. §§ 158(a)(1) and (5), causing them to engage in an
unfair labor practice strike, and that Buckley had violated
§§ 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and
(3), by refusing to reinstate certain of its employees, herein
referred to as “wholesale drivers,” who had engaged in a
sympathy strike in support of Smith’s mechanics and retail
drivers (App. A, infra, p. 13a; App. B, infra, p. 15a).

A. Tue Facts.

C.K. Smith & Co., Inc., a Massachusetts corporation
with offices and its principal place of business located at

7

99 Crescent Street, Worcester, Massachusetts, is engaged in
the sale and retail distribution of oil and related products.
During the winter and spring of 1974, Smith employed
three retail drivers represented for purposes of collective
bargaining by Local 170, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (“Local 170”), and, from January 14, 1974, to
April 18, 1974, had been negotiating with that local for a
successor collective bargaining agreement covering said
drivers (App. B, infra, pp. 30a, 35a). The business agent
for Local 170, Carl Gentile, testified he had proposed inclu-
sion in the successor retail drivers’ agreement of a so-called
“Protection of Rights” (POR) clause which would expressly
protect the retail drivers from discharge or discipline if they
refused to cross a picket line “including the primary picket
line of unions party to this Agreement, and including pri-
mary picket lines at the Employer’s place of business” (em-
phasis added) (C.C. Ex. 2; R. 44; R. 112-113). He had
suggested the inclusion of such a clause since as the business
agent representing employees of another company, Pilot
Freight, he had experienced considerable difficulty over this
issue (R. 106-110). The prior Smith retail drivers agree-
ment had no such clause (R. 107), and neither did the agree-
ment Buckley had covering its wholesale drivers (R. 106).
Smith’s vice president, David Adams, testified Smith had
never agreed to Gentile’s proposal (R. 9-11, 920). The ALJ
found that, due to disagreement over the inclusion of the
POR clause and other items, no collective bargaining agree-
ment had been reached between the parties, and that Smith
did not violate the Act by subsequently refusing to sign an
agreement the union tendered which included them (App.
B, infra, pp. 53a, 58a-59a). On or about April 29, 1974,
Gentile met with the retail drivers and they voted to strike

8

because Smith would not sign the contract to which Gentile
claimed it had agreed (R. 135-136).

In early March, 1974, Smith’s six mechanics participated
in an organization campaign for representation by Local 170
(App. B, infra, pp. 30a, 33a). Following Business Agent
Gentile’s telephone call claiming to represent the mechanics,
Smith’s Vice President Adams, at the request of one of the
mechanics, held a meeting with them and “asked the em-
ployees in effect to tell him who had signed union cards”
(App. B, infra, p. 41a). Adams told the men “adjustments
could be made if there were not a union” and “to talk it
over among themselves, that if they wanted to join a union,
they could have one by 5:00 [p.m.], that he was going to
have the ‘man’ over” (App. B, infra, p. 41a).

All of the mechanics signed authorization cards at a
meeting on March 16, 1974, and on March 20 Gentile and
another union official met with Adams and the president of
Smith, Mr. James Smith, and demanded recognition. Mr.
Smith refused to recognize the union, saying he wanted an
election and would talk to his attorney (App. B, infra, p.
5la). The ALJ credited Gentile’s testimony that during a
telephone conversation a few days after March 20, 1974,
Adams had agreed to recognize the union (App. B, infra,
p. 52a). The ALJ further found that on April 23, 1974,
after two prior meetings, during one of which the parties
had attempted to negotiate the mechanics contract, Adams
told Gentile no agreement could be reached on wages and
that Smith was going to get an attorney and cease bar-
gaining. On April 25, 1974, Smith filed a representation
petition in Case No. 1-RM-902 seeking an election in the
“mechanics” unit. On April 26, before an election could be
held, the mechanics voted to strike, and did begin striking,
on April 29, 1974 (App. B, infra, p. 58a). The ALJ found

9

Smith had wrongfully withdrawn recognition and refused to
bargain since April 23, 1974 (App. B, infra, p. 54a).

Buckley Heating Co., Inc., a Massachusetts corporation
with its principal offices and place of business located at the
same premises as those of Smith, is engaged in the wholesale
and distribution of oil and related products (App. B, infra,
pp. 24a, 30a), and, at the time of the strike by Smith’s retail
drivers and mechanics, actively employed twelve wholesale
drivers represented by Local 170 (App. B, infra, p. 67a-
68a). Since the Board’s certification of their bargaining
unit in April, 1972 (R. 528), these employees had been
covered by successive collective bargaining agreements be-
tween Buckley and Local 170 (G.C. Exs. 4A, R. 73; 4B, R.
86). In 1972, during negotiations for the initial contract,
Local 170 Business Agent Roger McCarthy testified he had
proposed that Buckley become party to a multi-employer,
multi-union, area-wide agreement covering employers in the
oil, gas and asphalt industries, the so-called “Joint Council
10” Agreement (R. 516, 554). Mr. McCarthy admitted that
the president of Buckley, Mr. Smith, refused to sign that
agreement and Mr. Smith testified he did so for two reasons:
(1) if union members of Joint Council 10 voted to strike the
employers group, they would also strike Buckley; and (2)
the Joint Council 10 contract contained a Protection of
Rights (POR) clause (R. 516, 740). Adams, vice president
of Buckley, also testified he told McCarthy that Buckley
would not sign a contract with a POR clause since such a
clause would interfere with Buckley's contractual obligations
to its customers (R. 846), Buckley needed to protect the con-
tinuation of its normal operation, and such a clause would
conflict with Smith’s retail drivers agreement (since it had
no POR clause) (R. 849).

Business Agent McCarthy testified that during these same
initial negotiations, culminating in the 1972-1973 agreement

10

(G.C. Ex. 4B, R. 86), he had explained to Mr. Smith that
the Buckley drivers would cross a picket line at a customer's
place of business unless there were a threat of bodily harm
or damage to company equipment. He further testified
that if a picket line were set up at the company’s premises
by fellow employees under a different contract “the unit
which is Buckley Heating, Gas, that if somebody put up a
picket line, that the people would go through” (R. 539-540).
Moreover, referring to an affidavit given the NLRB con-
cerning his statements to Mr. Smith, McCarthy testified:

The situation would be different, however, if a picket
line was set up by fellow employees of the Company
premises, meaning fellow employees meaning people
that were belonging to Buckley Heating, Gas Division.
This situation was not discussed in relation to picket
lines set up by employees not under a contract, only in
relation to employees that had a contract. I would ex-
plain to the men that one contract has nothing to do
with the other and that they should report to work as
long as they were not threatened. (Emphasis added.)
(R. 546; R. Ex. 6, R. 588.)

The 1972-1973 contract referred to by McCarthy did not
contain a POR clause (G.C. Ex. 4B, R. 86). In February,
1972, the Buckley drivers had engaged in a strike and pick-
eted the common premises; the Smith retail drivers, also
represented by Local 170 and under a contract with no
POR clause, crossed the Buckley drivers’ picket line (R. 870-
871).

When the 1972-1973 Buckley agreement expired, Business
Agent McCarthy testified he proposed, once again, that
Buckley become a party to the Joint Council 10 agreement

ll

(R. 589-591). That agreement contained the following Pro-
tection of Rights clause:

(a) Picket Lines

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 prop-
erty involved in a primary labor dispute, or refuses to
go through or work behind any primary picket line,
including the primary picket line of Unions party to
this Agreement, and including primary picket lines at
the Employer's places of business. (Emphasis added.)
(R. Ex. 12, R. 642-643.)

Once again Buckley refused and Adams testified that he told
McCarthy of his reasoning (R. 850-852). Adams testified
that the importance of the omission of the POR clause was
vividly illustrated to him when the Buckley wholesale drivers
crossed a picket line at the Arduini Company in March,
1973 (R. 852-853, 865). For years Buckley had been trying
to obtain the Arduini account from its competitor, Texaco
(R. 853, 863). During the March strike at Arduini’s prem-
ises, Texaco drivers refused to cross the picket lines (R. 870),
Arduini asked Buckley to fill the order, its drivers crossed
the lines, and Buckley obtained the account (R. 873). The
Arduini event and Smith’: retail drivers’ crossing the Buckley
drivers’ picket lines at the common premises had dramati-
cally demonstrated to Buckley the significance of resisting
inclusion of a POR clause in the 1973-1976 agreement (R.
865, 871; G.C. Ex. 4A, R. 73). The importance of ob-
taining such a POR clause to the union was demonstrated
by a list of companies with whom it had executed agree-
ments containing such a clause. Counsel for Local 170,

12

Christy A. Pano, stipulated the list contained 98 per cent of
the union’s contracts (R. 648); the list itself reflected the
fact that, of 190 agreements, only 25 did not contain a POR
clause (R. Ex. 7, R. 636).

On March 22, 1974, at the time Business Agent Gentile
had claimed Local 170 was the bargaining representative of
Smith’s mechanics, Buckley executed the 1973-1976 agree-
ment covering its wholesale drivers (G.C. Ex. 4A, R. 72-73;
R. 900; App. B, infra, pp. 30u, 52a). It did not contain a
Protection of Rights clause.

On April 29, 1974, when Smith’s mechanics went on
strike, Buckley’s wholesale drivers did not report to work.
Business Agent Gentile testified he had not held any meeting
with them to explain why the mechanics were picketing and
he was unaware whether the drivers themselves knew the
reasons for the mechanics’ strike (R. 197). He testified he
assumed the existence of the picket line was the sole reason
the Buckley wholesale drivers refused to work and that, at
the time, they had no pending grievances with Buckley (R.
200, 202).

Within two and one-half weeks of the strike, Buckley had
hired twelve permanent replacements for its wholesale
drivers because, as Adams testified:

Number one, I had a business to run and I had many,
many obligations out of this business. We had con-
tractual agreements with Federal, with State agencies.
We had performance bonds that we had up. We had
obligations under the Federal Energy Office at that
time that were mandatory that we supplied certain
customers with their base supply of 1972. That’s how
the Federal regulations read. And in order to run our
business in this manner, we had to hire new drivers.
(R. 931.)

13

The ALJ found that on July 8, 1974, the Buckley drivers
made an unconditional offer to return to work and were
refused reinstatement (App. B, infra, p. 67a). From that
time until the time of the hearing before him, seven of the
drivers had been reinstated (App. B, infra, p. 70a).

Counsel for Local 170, Mr. Pano, testified that, at the
urging of Board Agent Donlan, the parties agreed to arbi-
trate the status of the Buckley wholesale drivers and had
agreed upon an arbitrator on August 14, 1974 (R. 1009-
1012). The record does not reflect whether the arbitration
hearings were held. On October 22, 1974, Business Agent
Gentile filed Charge 1-CA-10,184 with the Board alleging
the wholesale drivers had been “locked out” (App. B, infra,
pp. 2la, 59a). On January 2, 1975, almost seven months
after Buckley's refusal to reinstate the wholesale drivers,
Business Agent Gentile filed an amended charge alleging for
the first time that Buckley had violated § 8(a)(3) of the Act,
29 U.S.C. § 158(a)(3), by wrongfully refusing to reinstate
the wholesale drivers it had permanently replaced (App. B,
infra, p. 23a).

B. Tue Boarp’s DEcis10n AND ORDER.

The Board summarily affirmed the findings and conclu-
sions of its Administrative Law Judge in their entirety. The
ALJ found that Smith had violated § 8(a)(1) of the Act (29
U.S.C. § 158[a][1]) by interrogating its mechanics con-
cerning their union membership, by promising them adjust-
ments in their working conditions, and by threatening them
with loss of work opportunity to dissuade their support of a
union; that Smith further violated § 8(a)(5) of the Act
(§ 158[a}[5]) by voluntarily recognizing Local 170 as the
representative of its mechanics and, shortly thereafter, with-

14

drawing recognition; and, in addition, that Smith violated
§§ 8(a)(1) and (5) of the Act (§ 158[a][1] and [5]) by bar-
gaining directly with certain of its retail drivers. He found
that Smith’s mechanics went on strike on April 29, 1974, as
a result of Smith’s withdrawal of recognition from Local
170; that Smith and Buckley constituted a single employer
within the meaning of §§ 2(6) and (7) of the Act (§§ 152[6]
and [7]); and that Buckley's wholesale drivers who had en-
gaged in a sympathy strike by refusing to cross the me-
chanics’ primary picket line at Smith’s and Buckley’s com-
mon premises automatically took on the status of unfair
labor practice strikers. Therefore, the ALJ further con-
cluded, Buckley violated §§ 8(a)(1) and (3) of the Act
(§§ 158[a][1] and [3]) by refusing to reinstate its wholesale
drivers upon their unconditional offer to return on July 8,
1974, rejecting Buckley’s contentions that it had a lawful
right permanently to replace said drivers for legitimate busi-
ness and economic reasons (which it had done shortly after
the strike began) and, in addition, that said drivers were
unprotected as a result of their breach of a no-strike clause,
the bargaining history behind which, Buckley contended,
unequivocably demonstrated their waiver of the right to
engage in any sympathy strike. The ALJ found that Smith’s
mechanics and retail drivers comprised separate bargaining
units distinct from the unit of Buckley’s wholesale drivers
and made no finding of any unfair labor practice committed
by Buckley other than its refusal to reinstate said wholesale
drivers.

C. THe DEcIsION OF THE CourRT OF APPEALS.

Mindful of the First Circuit’s reluctance to upset the
credibility findings of the trier of fact, Smith and Buckley

15

chose not to challenge the Board’s findings that Smith had
violated §§ 8(a)(1) and (5) of the Act (§§ 158[a]}[1] and [5])
but, rather, challenged its determinations (1) that Smith
and Buckley constituted a single employer; (2) that Buckley’s
wholesale drivers automatically took on the mantle ef Smith’s
unfair labor practice strikers; and (3) that said wholesale
drivers did not, by their sympathy strike, violate the no-
strike clause of their agreement. The Court of Appeals re-
jected each of these contentions and enforced the Board’s
order (App. A, infra, p. 13a). With respect to the second
contention, however, the court noted:

[W]e have found no similar court decisions dealing
with the reinstatement rights of unfair labor practice
sympathy strikers .... (App. B, infra, p. 7a.)

Reasons for Granting the Writ.

A. Tue Court or APPEALS HAS DECIDED A QUESTION WHICH
HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS Court.

This case presents for decision the important and unre-
solved issue in industrial relations and in the interpretation
of the Act’ left undecided by this Court’s recent decision in

Recent decisions of the Board have adopted a so-called “stand in the
shoes” doctrine whereby the protected or unprotected status conferred
upon primary strikers is assumed by sympathy strikers who become sub-
ject to discipline or replacement as a result of their refusal to cross a
primary picket line. See Hoffman Beverage Co., 163 NLRB No. 134,
65 LRRM 1011 (1967); Pilot Freight Carriers, Inc., 224 NLRB No. 46,
92 LRRM 1338 (1976); Laconia Shoe Co., Inc., 215 NLRB No. 106
(1974). |

16

NLRB v. International Van Lines, 409 U.S. 48, 81 LRRM
2595 (1972), namely, whether sympathy strikers against
whom no unfair labor practices have been committed should
automatically assume the mantle of unfair labor practice
primary strikers entitling them to preferential reinstatement

rights:

We need not decide, however, whether the Board was
correct in determining that the discharged employees
[sympathy strikers] assumed the status of unfair labor
practice strikers . .. to reach the conclusion that the
Court of Appeals erred in refusing to enforce the Board's
order of reinstatement with back pay. 409 U.S. at 52-
53, 81 LRRM at 2596.

The resolution of the status of the sympathy strikers in this
case and the scope of the employer’s right permanently to
replace them takes on added and nationwide significance in
light of this Court’s recent decision in Buffalo Forge Co. v.
Steelworkers, 428 U.S. 397, 92 LRRM 3032 (1976), denying
an employer injunctive relief specifically to enforce a sym-
pathy striker’s “no strike” pledge. Referring to Buffalo
Forge, the Third Circuit has recently and aptly noted:

In so finding, what the Buffalo Forge Court did not
decide became as important as what it did .. . it did
not decide what remedies are available to an employer
when the issues precipitating the underlying strike are
subject to settlement procedures. (Emphasis added.)
Republic Steel Corp. v. Mine Workers, __. F.. 2d
, 97 LRRM 2836, 2842 (1978).

17

The First Circuit recognized in its opinion that Buckley
did not have access to the contract’s grievance and arbitra-
tion machinery (App. A, infra, p. 12a), and Buckley made
an election of available remedies: rather than seek injunc-
tive relief (Buffalo Forge, supra, was then undecided) or
discipline its sympathy strikers, Buckley elected to replace
them permanently for legitimate and economic business
reasons (R. 931), reasons which were unchallenged and, in
light of the ALJ’s automatic conferral of unfair labor
practice status, were unconsidered by the ALJ or the Board
in its summary affirmance of his order:

The Respondents presented evidence to the effect that
the replacements were required as a matter of economic
necessity. I note that as a general principle, unfair
labor practice strikers do not lose their right to rein-
statement because the Respondents have hired replace-
ments. (App. B, infra, p. 68a.)

The sympathy strikers comprised a separate bargaining
unit against whom no unfair labor practices had been
committed and with whom Buckley was lawfully bargain-
ing. Indeed, at the very height of the alleged unfair labor
practices committed by Smith against its separate bargain-
ing units of mechanics and retail drivers, Buckley had
executed a new collective bargaining agreement covering its
wholesale drivers (G.C. Ex. 4A, R. 72-73) and, at the time
of the strike, they had no grievance pending with their
employer (R. 900). In keeping with Business Agent
McCarthy’s testimony that “one contract has nothing to do
with the other” (R. 546), Business Agent Gentile testified he
had not even met with the wholesale drivers to inform them
of the reasons Smith’s mechanics were striking (R. 197, 200,
202).

18

While the Court of Appeals admitted it could find no
other judicial precedent approving the Board’s “stand in the
shoes” doctrine in an unfair labor practice context, it stated
it had “no reason to suppose that the Board has not struck a
‘proper balance between the asserted business justification
and the invasion of employee rights’” (App. A, infra,
p. 7a). As the record demonstrates, neither the ALJ nor
_ the Board ever considered petitioner Buckley’s business
justifications.

Your petitioners submit that the First Circuit’s approval
of the Board’s blind application of its “stand in the shoes”
doctrine totally eliminates the employer’s remedy to replace
permanently for legitimate business reasons sympathy
strikers against whom no unfair labor practices have been
committed, and upsets the delicate balance between the
dual Congressional policies of the National Labor Relations
Act which this Court struck in its decision in Mastro Plastics
Corp. v. NLRB, 350 U.S. 270, 37 LRRM 2587 (1956),
namely, preserving a competitive business economy and, at
the same time, preserving the right of labor to better its
conditions through collective bargaining. This Court
should issue a writ of certiorari to resolve this important
question of federal labor law and to restore that balance.

B. Tue First Circurr Court or APPEALS HAS RENDERED A
Decision IN CONFLICT WITH THE DEcISIONS OF OTHER
Courts OF APPEALS.

The First Circuit’s decision is in direct conflict with that
of the Fourth Circuit in NLRB v. Union Carbide Corp., 440
F. 2d 54, 76 LRRM 2181 (1971), cert. den. 404 U.S. 826
(1971); the decision of the Eighth Circuit in NLRB v. Brown
¢ Root, Inc., 203 F. 2d 139, 31 LRRM 2577 (1953), enforc-

19

ing Ozark Dam Constructors, 99 NLRB No. 153, 30 LRRM
1192 (1952), a Board order completely contrary to its
determination in this case; the decision of the District of
Columbia Circuit in Teamsters, Local 79 v. NLRB, 325
F. 2d 1011, £4 LRRM 2707 (1963), cert. den. 377 U.S. 905
(1964), and, as argued in Part C, infra, that Circuit's
decision in News Union of Baltimore v. NLRB, 393 F. 2d
673, 67 LRRM 2487 (1968); and it would appear to conflict
with the Ninth Circuit’s decision in NLRB v. International
Van Lines, 448 F. 2d 905, 78 LRRM 2299 (1971), rev'd in
part on other grounds, 409 U.S. 48, 81 LRRM 2595 (1972).
In Union Carbide Corp., supra, the Fourth Circuit held
that subjective analysis of the reasons (the causality) for non-
striking sympathy strikers’ refusal to cross the primary
picket line of striking employees of a common employer was
necessary to the Board’s determination of their protected or
unprotected status. The court enforced a Board order re-
quiring reinstatement of two sympathy strikers who refused
to cross an economic primary picket line out of principle,
but refused to enforce the order as to an employee who
declined to cross the primary picket line out of fear:

[W]e do not think the record affords any factual basis
for the finding that Mullins’ refusal was based on
principle. A careful reading of the testimony reveals
that his refusal was based on fear and nothing else.

One who refuses to cross a picket line by reason of
physical fear does not act on principle. He makes
no common cause, and contributes nothing to mutual
aid or protection in the collective bargaining process.
. . » Mullins’ refusal to cross the picket line was not
protected activity under Section 7, and enforcement of

20

the Board’s order as to him will be denied. 440 F.2d
at 56, 76 LRRM at 2182-2183.

The First Circuit’s decision is instantly in conflict with
Union Carbide, since it required no analysis, and the Board
made none, of the subjective reasons for the Buckley whole-
sale drivers’ refusal to cross the Smith mechanics’ line. Lo-
cal 170 Business Agent Gentile admitted that the wholesale
drivers had no grievances pending with Buckley at the time
of their sympathy strike and that he had held no meeting
with them to explain the reasons for the mechanics’ primary
strike (R. 197, 200, 202).

The First Circuit acknowledged that the “only evidence”
the ALJ had found “relating to the motivation for the
striking activities of the Buckley wholesale drivers on April
29, 1974, through July 8, 1974, consisted of the Union's
filing of an unfair labor practice charge contending that
such employees were ‘locked out’” on October 22, 1974 —
four months after the strike ended, “Gentile’s testimonial
denial . . . that such employees were ‘striking’” and “Gen-
tile’s testimony to the effect that such employees in effect
honored the picket line” (App. A, infra, pp. 4a-5a). The
court admitted, “To be sure, the business agent of Local 170
testified, perhaps disingenuously, that the wholesale drivers
were not ‘striking’ at all but were simply observing the other
bargaining unit’s picket line” (App. A, infra, p. 5a), and
then concluded that this evidence entitled the Board to infer
that the wholesale drivers “struck in sympathy” with the
mechanics.

Your petitioners have no quarrel with the court’s charac-
terization, on these facts, of the strike as a “sympathy strike.”
They are not, however, probative of the reasons why the
Buckley wholesale drivers engaged in such a strike nor,

21

under the Fourth Circuit’s subjective approach, are they
probative of these employees’ protected or unprotected
status. Indeed, the ALJ had refused reinstatement and
back pay to two of Buckley’s wholesale drivers by reason of
their assault on a third wholesale driver who had crossed
their picket line (App. B, infra, p. 68a; R. 755-757). More-
over, your petitioners had filed unfair labor practice charges
of picket line misconduct against Local 170 which the Board
unilaterally and informally settled (R. 18), and, in addition,
an action in the Massachusetts Superior Court which re-
sulted in a stipulation by Local 170 and Smith’s mechanics,
individually, to refrain from “attacking, assaulting or
threatening” other employees of Smith and Buckley (R. Ex.
15, R. 883). On these facts, the other wholesale drivers
may well have refused to cross the picket lines out of fear
and not out of principle, but the ALJ and the Board made
no inquiry into the subjective reasons for their actions, in-
stead blindly applying the “stand in the shoes” doctrine.
The Eighth Circuit has refused to adopt such an “automatic”
approach in conferring even economic striker status upon
sympathy strikers refusing to cross picket lines at a custom-
er's place of business:

We see no reason in law, in logic or in the provisions
of the Act which compels the acceptance of the Board’s
attempt to equate these drivers with the status of eco-
nomic strikers and hold that by their refusal to work
they might enter into a legal twilight zone from which
they could return to work at any time of their own
choosing, so long as it was before permanent replace-
ments had been hired. NLRB v. L.G. Everist, Inc.,
334 F. 2d 312, 318, 56 LRRM 2866, 2870 (8th Cir.
1964).

22

While citation to the Eighth Circuit’s decision in Brown
& Root, supra, was made by petitioners’ counsel at oral
argument, the First Circuit chose not to discuss the decision
in its opinion. Contrary to the instant case, in Brown &
Root (then denominated Ozark Dam Constructors) the
Board actually examined the causal nexus between unfair
labor practices committed by a single employer (Ozark)
against one bargaining unit (the Joint Council) and found
no reason to extend the unfair labor practice status granted
those employees to sympathy strikers in a second unit (IAM)
against whom no unfair labor practices had been committed
and with whom the single employer had been properly bar-
gaining:

However, the Trial Examiner held that the IAM em-
ployees who struck were themselves unfair labor prac-
tice strikers to whom the full reinstatement rights avail-
able under the Act should be granted. With this con-
clusion we cannot agree. ... [T]he IAM strikers were
affirmatively represented in separate certified units
with respect to which Ozark was properly bargaining
collectively with the IAM. This minority group of
IAM employees, unauthorized by their own representa-
tive, undertook to strike in conjunction with the Joint
Council strikers as to whom Ozark did unlawfully re-
fuse to bargain. It is therefore clear that the strike was
not caused by any unfair labor practices directed at the
IAM employees, and that they were not immediately
affected or aggrieved by Ozark’s conduct relating to the
Joint Council units. Nor are we able reasonably to
conclude that Ozark’s unfair labor practices, rather

than a desire to express sympathy and support for the
Joint Council strikers, constituted the actual reason for

23

the work stoppage on the part of the IAM strikers.
(Emphasis added.) 30 LRRM at 1194.

The Board has made no reasoned elaboration for its de-
parture from its own precedent nor for the blind application
of its “stand in the shoes” doctrine in this case. “Judicial
deference is appropriate ... only when the agency has
made a reasoned decision and articulated its reasoning.”
Local 814, Teamsters v. NLRB, 546 F. 2d 989, 992, 93
LRRM 2305, 2307 (D.C. Cir. 1976), Bazelon, C.J., dis-
senting.

In Redwing Carriers, Inc., 137 NLRB No. 162, 50 LRRM
1440 (1962), the Board upheld the right of an employer to
replace sympathy strikers permanently even though they
had engaged in protected activity under the Act,

where it is clear from the record that the employer
acted only to preserve efficient operation of his business,
and terminated the services of the employees only so it
could immediately or within a short period thereafter
replace them with others willing to perform the sched-
uled work. 50 LRRM at 1441.

The District of Columbia enforced that decision sub nom.
Teamsters, Local 79 v. NLRB, 325 F. 2d 1011, 54 LRRM
2707 (1963), cert. den. 377 U.S. 905 (1964). The Board in
this case made no finding that Buckley acted in reprisal by
refusing to reinstate its wholesale drivers and made no in-
quiry into the adequacy of Buckley’s stated business justifi-
cations (App. B, infra, p. 68a), although the record was
clear that Buckley acted solely to preserve the efficient op-
eration of its business (R. 931).

24

In NLRB v. International Van Lines, supra, the Ninth
Circuit held that the wrongful discharge of sympathy strikers
did not convert an economic strike into an unfair labor
practice strike so as to give the discharged sympathy strikers
unfair labor practice status. Referring to what appears
from the decision to be a variant of the Board’s “stand in
the shoes” doctrine, the court stated:

Implicit in the Board’s reasoning, though not explicitly
stated, is the assumption that the conversion of the eco-
nomic strike into an unfair labor practice strike neces-
sarily converted the four discharged economic [sympa-
thy] strikers into unfair labor practice strikers, to whom
the Mastro Plastics rule properly applies. That as-
sumption is untenable. 448 F. 2d at 911, 78 LRRM
at 2304.

Whether the Fourth Circuit’s subjective test, the Board’s
“stand in the shoes” doctrine approved by the First Circuit,
the Eighth Circuit’s impact or “immediately affected” cri-
terion or, indeed, a “bright line” test of conferral of eco-
nomic status on all sympathy strikers regardless of the status
given primary strikers should be used to determine their
protected or unprotected status and subsequent reinstate-
ment rights is a question of extreme and nationwide im-
portance over which there is a conflict in the Circuit Courts
of Appeals and which this Court should ultimately resolve.

25

C. Tue First Circurt’s Decision ts In CONFLICT WITH THIS
Court’s Decision IN NLRB v. Rockaway News Suppiy
Co. AND Mastro Piastics Corp. v. NLRB.

1. NLRB v. Rockaway News Supply Co.

In NLRB v. Rockaway News Supply Co., 345 U.S. 71,
31 LRRM 2432 (1953), this Court relied upon the bargaining
history behind a no-strike clause in finding a waiver of the
simple right to engage in a sympathy strike, upholding an
employer’s discharge of an employee who refused to cross a
picket line at the premises of another company. That no-
strike clause provided:

No strikes, lockouts or other cessation of work or inter-
ference therewith shall be ordered or sanctioned by any
party hereto during the terms hereof except as against
a party failing to comply with a decision, award, or
order of the Adjustment Board. 345 U.S. at 79, 31
LRRM at 2436.

After citing the above contractual provisions, this Court
declared:

If this be considered ambiguous in meaning, respondent
offered, as evidence of its intent and meaning, to prove
that during the negotiations one of the demands made
by the union was a clause in the contract with reference
to work stoppages which would have said “No man
shall be required to cross a picket line,” that this clause
was rejected by respondent and the union acquiesced
in the rejection and consented to the no-strike clause as
above recited. 345 U.S. at 79-80, 31 LRRM at 2436.

26

As the facts demonstrate, the bargaining history of Buck-
ley’s no-strike clause presents a case more compelling than
Rockaway for a finding of waiver. Buckley was party to a
contract containing a no-strike clause which, like Rockaway,
prohibited all strikes except those in the face of employer
noncompliance with an arbitration award:

There shall be no strike, work stoppage or interruption
of work during the term of this Agreement unless the
company shall refuse to comply with an arbitration
award pursuant to arbitration proceedings instituted in
accordance with the terms of this Article. (G.C. Ex.
4A, R. 73.)

If Buckley’s no-strike clause is ambiguous relative to sympa-
thy strikes, just as in Rockaway, the bargaining history
demonstrates that, during negotiations for the initial 1972-
1973 agreement and even its 1973-1976 successor, Local 170
Business Agent McCarthy proposed that Buckley become
party to the so-called “Joint Council 10” agreement which
contained a broad Protection of Rights (POR) clause privi-
leging the observance of any primary picket line at the em-
ployer’s premises (R. Ex. 12, R. 642-643). Buckley twice
rejected that proposal precisely because of the presence of
the POR clause (R. 516, 740, 850-852). Buckley was acutely
aware of the clause’s significance since Smith’s retail drivers,
also represented by Local 170 and under a contract with no
POR clause, had crossed Buckley drivers’ picket lines in
February, 1972 (R. 870-871). Moreover, Local 170 Business
Agent Gentile admitted that, during negotiations in 1974,
he had proposed such a clause for inclusion in the retail
drivers’ successor contract (R. 112-113), which Smith re-

27

jected (R. 9-11, 920). In addition, Buckley drivers had
crossed the Arduini employees’ picket lines (R. 852-853,
865).

This Court also noted in Rockaway the importance of
industry practice:

In addition, the contract between the parties does not
specifically permit the refusal by the employee to com-
ply with such an order although other contracts in the
industry do contain such a provision. (Emphasis
added.) 345 U.S. at 80, 31 LRRM at 2436.

The multi-employer, multi-union Joint Council 10 agree-
ment did contain such a provision. Of even greater con-
sequence, Respondent’s Exhibit No. 7 demonstrated that, of
190 agreements Local 170 had with other industry em-
ployers, only 25 — including petitioners — did not contain
a Protection of Rights clause (R. Ex. 7, R. 636).

Perhaps the clearest formulation of the meaning of Rock-
away News comes from the Board’s decision in The Hearst
Corporation, 161 NLRB No. 113, 63 LRRM 1441 (1966),
enf'd sub nom. News Union of F:ltimore v. NLRB, 393
F. 2d 673, 67 LRRM 2487 (D.C. Cir. 1968), where the
Board held that Rockaway News “as a minimum” stands for
the proposition that “an ambiguous contract coupled with
collateral evidence of [a union’s failure to secure a Protec-
tion of Rights clause] must be construed as a surrender,
during the terms of the agreement, of the simple right to
refuse to cross a picket line.” Id., 63 LRRM at 1444. See
also Montana-Dakota Utilities Co. v. NLRB, 455 F. 2d
1088, 79 LRRM 2854 (8th Cir. 1972). The POR clause in
Hearst was, word for word, exactly the same as the POR
clause in the Joint Council 10 agreement proposed by Local

170 and rejected by Buckley. Yet the precise language of
that clause was considered by the Board in Hearst to indi-
cate an understanding by the union’s negotiators that unless
they were successful in having the proposal embodied in
their agreement, the agreement would prohibit sympathy
striking.

In Keller-Crescent Co., 217 NLRB No. 100, 89 LRRM
1201 (1975), enf. den. 538 F. 2d 1291, 92 LRRM 3591 (7th
Cir. 1976), the Board distinguished the facts of that case
from Hearst, stating that the Hearst POR clause:

strongly indicates that the Teamsters negotiators under-
stood that absent this proposed provision the agree-
ment, more specifically the no-strike pledge contained
therein, prohibited the refusal to cross another union's
picket line or engage in a sympathy strike. Accord-
ingly, in these circumstances, the Teamsters acqui-
escence in the employer’s refusal to accept its picket
line language proposal, coupled with acceptance of the
broad no-strike pledge language, warranted the infer-
ence that the Teamsters understood and intended there-
by to waive the statutory right of its members to honor
another union’s picket line or engage in a sympathy
strike. (Emphasis the Board’s.) 89 LRRM at 1209.

The District of Columbia Circuit enforced the Board’s order
in Hearst, also noting the Board could properly rely upon
statements of union leaders interpreting the scope of the no-
strike clause as prohibiting sympathy strikes. News Union
of Bultimore v. NLRB, supra, 393 F. 2d at 678, 67 LRRM
at 2490.

If Local 170 Business Agent McCarthy’s testimony that “I
would explain to the men that one contract has nothing to

2S

do with the other and that they should report to work” (R.
546) is ambiguous, as the First Circuit believed it to be
(App. A, infra, pp. 10a-lla, fn. 2), the language of the
Joint Council 10 POR clause rejected by Buckley, the under-
stood significance of the POR clause by all parties, the in-
dustry practice reflected by Respondent's Exhibit No. 7, and
the history of the Buckley and Smith drivers’ actions in
crossing picket lines when no POR clauses were in their
agreements are not.

Your petitioners submit that the First Circuit misapplied
this Court’s teaching in Rockaway News, supra, by con-
cluding that the foregoing bargaining history evidenced a
waiver only of the right to honor “picket line[s] at another
employer's plant” (App. A, infra, p. lla, fn. 2), that the
Board’s decision is not in keeping with its own precedent in
The Hearst Corporation, supra, and that this Court should
grant the petition for certiorari and find that Local 170’s
acquiescence in Buckley’s rejection of the Joint Council 10
POR clause, which would otherwise have privileged the
wholesale drivers from crossing “any primary picket line
. . . including primary picket lines at the Employer’s places
of business” (R. Ex. 12, R. 642, 643), resulted in their
waiver of the right to engage in any sympathy strike.

2. Mastro Plastics Corp. v. NLRB.

Petitioners Buckley and Smith readily accept this Court’s
decision in Mastro Plastics Corp v. NLRB, 3&. U.S. 270, 37
LRRM 2587 (1956), that primary strikers engaged in a strike
in violation of a broad no-strike clause in their contract do
not lose their protected status under the Act if such a strike
was over flagrant and serious unfair labor practices com-
mitted against them by their employer and “designed to
destroy the very foundation of that contract and that rela-

30

ationship.” Arlan’s Department Store, 133 NLRB No. 56,
48 LRRM 1731, 1733 (1961). They submit, however, that
the teaching of Mastro Plastics, as it has been reformulated
by the Board in Arlan’s Department Store, requires that
before such a special license to breach the contract is per-
mitted, there must be (1) a finding that the employer’s un-
fair labor practices were serious and flagrant, undermining
the very foundation of the contract, and (2) a causal nexus
between those unfair labor practices and the strike itself.

The Fifth Circuit has taken such an approach in its de-
cision in Winter Garden Citrus Products v. NLRB, 238
F. 2d 128, 39 LRRM 2080 (1956), and denied reinstatement
of primary strikers where there was no proof of a causal
connection between certain alleged unfair labor practices
and the strike itself. Indeed, in an only slightly different
context, this Court has classified categories of employer un-
fair labor practices which might warrant a bargaining order,
NLRB v. Gissel Packing Co., 395 U.S. 575, 71 LRRM 2481
(1969), and Circuit Courts of Appeals have refused enforce-
ment of Board bargaining orders where it has failed to
explain the causal nexus between the employer’s unfair labor
practices and the impossibility of holding a fair election.
NLRB v. General Stencils, Inc., 438 F. 2d 894, 76 LRRM
2288 (2d Cir. 1971); Peerless of America, Inc. v. NLRB,
484 F. 2d 1108, 83 LRRM 3000 (7th Cir. 1973); NLRB v.
Gruber’s Super Market, Inc., 501 F. 2d 697, 87 LRRM
2037 (7th Cir. 1974); NLRB v. Gibson Prods. Co., 494 F.
2d 762, 86 LRRM 2636 (5th Cir. 1974).

As has been argued above, neither the ALJ nor the Board
made any inquiry into the motivations of the wholesale
drivers other than to characterize their actions as a “sympa-
thy strike.” They comprised a separate bargaining unit,
were under a separate contract, had no contractual griev-
ances pending, and neither Buckley nor Smith committed

31

any unfair labor practices against them (see Reasons For
Granting The Writ, Part A). Even the First Circuit was
forced to admit:

The present case is, to be sure, distinguishable from
Mastro Plastics in that here the employer’s unfair labor
practices were destructive of the union’s status only in
another bargaining unit. (App. A, infra, p. 10a.)

Yet, having approved the Board’s blind application of its
“stand in the shoes” doctrine, the First Circuit was able to
accept the Board’s premise that Buckley’s drivers were “un-
fair labor practice sympathy strikers” and then conclude
that Mastro Plastics permitted a finding that they had not
breached the no-strike clause of their agreement — as if
serious and flagrant unfair labor practices destroying the
very foundation of their contract had been committed
against them when, in fact, at the very height of Smith's
unfair labor practices against its employees, Buckley had
executed a new three-year collective bargaining agreement
with its wholesale drivers (R. Ex. 4A, R. 72-73; R. 900;
App. B, infra, pp. 30a, 52a).*

The First Circuit has misapplied this Court’s decision in
Mastro Plastics, supra; its decision conflicts with that of the
Fifth Circuit in Winter Garden Citrus Products, supra; the
Board’s finding is in conflict with its own precedent in

*In this Court’s recent decision in South Prairie Construction Co. v.
Engineers, 425 U.S. 800, 92 LRRM 2507 (1976), it upheld the decision
of the Court of Appeals of the District of Columbia that South Prairie
and Kiewit constituted a single employer but reversed that court’s further
finding that the separate bargaining units of employees of those em-
ployers comprised a single bargaining unit, refusing to blindly equate a
finding of “single employer” with a finding of “single bargaining unit.”

“a

~~

32

Arlan’s Department Store, supra, and is unsupported by
substantial evidence on the record taken as a whole. Uni-
versal Camera Corp. v. NLRB, 340 U.S. 474, 27 LRRM
2373 (1951). This Court should grant the petition for certi-
orari and reaffirm that Mastro Plastics, supra, does not
license employees in a bargaining unit against whom no un-
fair labor practices have been committed to breach the no-
strike clause of their agreement.

Conclusions.

For the foregoing reasons, this petition for a writ of certi-
orari should be granted.

Respectfully submitted,
PAUL J. KINGSTON,
ROBERT W. GARRETT,
PAUL V. MULKERN, JR.,
133 Federal Street,
Boston, Massachusetts 02110.
FRANCIS T. COLEMAN,
2020 K Street, N.W..,
Washington, D.C. 20006.
Of Counsel: Counsel for Petitioners.
KINGSTON & GARRETT,
133 Federal Street,
Boston, Massachusetts 02110.
LOOMIS, OWEN, FELLMAN & COLEMAN,
2020 K Street, N.W.,
Washington, D.C. 20006.

la
Appendix A.

United States Court of Appeals

For the First Circuit

Neo. 77-1152
| NATIONAL LABOR RELATIONS BOARD.
| PETITIONER,
| v.
| C. K. SMITH & CO., INC.,
and

BUCKLEY HEATING CO., INC.,
(GASOLINE DIVISION),
RESPONDENTS.

ON APPLICATION FOR ENFORCEMENT OF AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Before
Corrin, Chief Judge,
Tutte, Circuit Judge,*
CaMPBELL, Circuit Judge.

Michael 8. Winer, Attorney, with whom John 8. Irving, General
Counsel, John E. Higgins, Jr., Deputy General Counsel, Carl L.
Taylor, Associate General Counsel, Elliott Moore, Deputy Associate
General Counsel, and Judith P. Wilkenfield, Attorney, were on
brief, for petitioner.

Paul J. Kingston, with whom Robert W. Garrett, Pawl V. Mul-
kern, Jr., and Thompson & Kingston, were on brief, for respondent.

December 28, 1977
CaMPBELL, Circuit Judge. The National Labor Rela-
tions Board petitions for enforcement of an order that
requires, inter alia, that respondents C. K. Smith & Co.
and Buckley Heating Co. cease and desist from committing

*Of the Fifth Circuit, sitting by designation.

2a
2 NLEB V. C.K. SMITH & ©0., INC.

certain unfair labor practices and reinstate employees who
were replaced during a strike at the companies’ common
premises. '

The Board’s order is premised on a finding that the
respondents, though separately incorporated, constitute
a single ‘‘employer’”’ within the meaning of the Act, with
each corporation thus responsible for the other’s unfair
labor practices and with the employees of each commonly
protected. We turn first to the companies’ challenge to
the Board’s resolution of this threshold question.

The Administrative Law Judge (hereinafter ALJ),
whose findings the Board adopted, found that both corp-
orations are commonly owned and share the same premises
in Worcester, Massachusetts, where they have their of-
fices and conduct their business. Both corporations are
engaged in the ‘‘sale and distribution of .. . oil and re-
lated products’’ with Smith engaged in the retail end of
the business and Buckley engaged in wholesale sales. The
daily operations and labor relations of both companies
are managed by the same people who hold the same offices
in both firms. The ALJ also found that ‘‘in the handling
of labor relations mutters for one Respondent, concern is
given for the effect of such labor relations on the other
Respondent.”’

The Supreme Court has said that, for purposes of
determining ‘‘single employer”’ status,

‘(t]he controlling criteria, set out and elaborated
in Board decisions, are interrelation of operations,
common management, centralized control of labor re-
lations and common ownership.”’
Radio Technicians Local 1264 v. Broadcast Service of
Mobile, Inc., 380 U.S. 255, 256 (1965). See, e.g., Western
Union Corp., 224 N.L.R.B. 274, 276 (1976); Sakrete of
Northern California, Inc., 137 N.L.R.B. 1220, 1222 (1962),
enforced, 332 F.2d 902 (9th Cir. 1964). See also South

3a
OPINION OF THE COURT 3

Prairie Construction Co. v. Operating Engineers Local 67,
425 U.S. 800 (1975). The Board’s conclusion that two corp-
orations constitute a ‘‘single employer’’ is ‘‘essentially
a factual one’’ and not to be disturbed provided substan-
tial evidence in the record supports the Board’s findings.
NLRB v. R.L. Sweet Lumber Co., 515 F.2d 785, 793 (10th
Cir.), cert. denied, 423 U.S. 986 (1975). Accord, Newspaper
Production Co. v. NLRB, 503 F.2d 821, 827 (5th Cir. 1974).

Respondents do not contest the findings of common
ownership, common management and common control of
labor relations. Rather they cite various factors which,
they say, show that the two firms’ operations are not in-
tegrated, such as the existence of separate bargaining
units and a lack of evidence showing combined accounting
records and bank accounts. But there was sufficient other
evidence for the Board to find a unified operation. The
sharing of common premises is a factor probative of in-
tegrated operations. Marine Welding ¢ Repair Works,
Inc. v. NLRB, 439 F.2d 395, 397 (8th Cir. 1971); NLRB v.
Jordan Bus Co., 380 F.2d 219, 222 (10th Cir. 1967). The
sale of essentially similar products via similar distribution
methods is also probative of integration. See Sakrete of
Northern California, Inc., supra, 332 F.2d at 906. And,
while the Board’s General Counsel had the burden of
proving integrated operations, the ALJ could take into
account that respondents had primary access to whatever
evidence might exist to refute the claim. Not only did they
fail to produce evidence capable of rebutting the infer-
ences to be drawn from the evidence introduced by the
General Counsel, but, the ALJ noted, their attorney had
even retreated without explanation from an earlier
agreement to stipulate to facts that might be material to
the single employer issue. We find ample basis for the
conclusion that ‘‘the facts reveal in effect one enterprise

4a
4 NLEB V. O0.K. SMITH & ©O., INO.

with divisions of the same engaged in ‘wholesale’ and ‘re-
tail’ distribution of oil and related products.’’

On the premise, therefore, that the two firms constituted
one employer, we turn to the unfair labor practices alleged.
During March and April 1974, Buckley had a collective
bargaining relationship with Teamsters Local 170, repre-
senting about twelve wholesale drivers. Smith had a barg-
aining relationship with the same union representing a
unit made up of its three retail drivers. And, in March
1974, the six employees in what is termed the ‘‘Smith
mechanics unit’’ began organizing in league with Local
170. In findings that are not appealed, the Board found
that in the spring of 1974 Smith’s president violated § 8(a)
(5) & (1) by bargaining individually with retail drivers unit
employees during contract negotiations with the union.
The Board also found that Smith’s officials coercively
interrogated and threatened mechanics unit employees
during the union organizing campaign. It was also found
that the employer had recognized the union as the me-
chanics’ bargaining agent and then had unlawfully with-
drawn recognition.

On April 29, 1974, the wholesale drivers, the retail driv-
ers and the mechanics ‘‘ceased work concertedly and went
out on strike.’’ The strike lasted until July 8. The me-
chanics led the walkout, having voted to strike after learn-
ing of Smith’s withdrawal of recognition. The retail driv-
ers, the ALJ found,

‘*struck in support of the ‘mechanics’ who were en-
gaged in an unfair labor practice strike and because
of a belief that the Respondents would not negotiate
as to the ‘retail drivers’ contract as long as there
was trouble with the mechanics.”’
The ALJ went on to state,

‘“‘The only evidence, other than the facts previously
set forth, relating to the motivation for the striking

5a
OPINION OF THE COURT 5

activities of the Buckley wholesale drivers on April
29, 1974, through July 8, 1974, consists of the Union’s
filing of an unfair labor practice charge contending
that such employees were ‘locked out,’ Gentile’s testi-
monial denial in effect that such employees were
‘striking,’ and Gentile’s testimony to the effect that
such employees in effect honored the picket line.’’
The ALJ, and the Board, concluded,
‘‘In sum, the evidence . . . reveals that the ‘whole-
sale drivers’ struck in sympathy with the ‘mechanics’
unit employees in an unfair labor practice strike.’’
The Local’s representative, Gentile, repeatedly testified
that the reason the wholesale drivers did not work on
Apri! 29 was their refusal to cross the mechanics’ picket
line. This testimony, together with the common locus and
employment, the fact that the same local represented the
two dozen men in the three bargaining units, and the con-
certed timing of the wholesale drivers’ action, which be-
gan and ended at the same time as the mechanics’ strike,
entitled the Board to infer that the wholesale drivers
‘*struck in sympathy’’ with the mechanics. Indeed, no
other explanation can easily be imagined. We see no
merit in the employer’s claim that there was no causal
nexus between the unfair labor practices committed
against the mechanics and the wholesale drivers’ strike.
To be sure, the business agent of Local 170 testified, per-
haps disingenuously, that the wholesale drivers were not
‘‘striking’’ at all but were simply observing the other
bargaining unit’s picket line. On these facts, the distinc-
tion is without a difference ; however the wholesale drivers’
walkout is characterized, the inference that it amounted to
a sympathy strike, maintained in support of the mechanics’
grievances, is reasonable.
Even so assuming, however, the respondents maintain
that the Board erred in conferring unfair labor practice

6a
6 NLRB UV. C.K. SMITH & ©0., INC.

status on the wholesale drivers, and in ordering their re-
instateinent irrespective of whether the employer had re-

placed them out of economic necessity. They contend that .

a sympathy strike is unprotected by § 7.2 But the sympathy
strike here was by employees of a common employer. Such
a strike by employees against a common employer and in
support of coworkers is ‘‘concerted activit(y] for...
mutual aid or protection’’. See Newspaper Production
Co., supra, 503 F.2d at 830; General Tire & Rubber Co.
v. NLRB, 451 F.2d 257, 258 (1st Cir. 1971) ; NLRB v. Union
Carbide Corp., 440 F.2d 54, 55-56 (4th Cir.), cert. denied,
404 U.S. 826 (1971); NLRB v. Difco Laboratories, Inc.,
427 F.2d 170, 171-72 (6th Cir.), cert. denied, 400 U.S. 833
(1970); NLRB vy. Southern Greyhound Lines, 426 F.2d
1299, 1301 (5th Cir. 1970). And it has been the Board’s
policy that where such a sympathy striker supports an
unfair labor practice strike against a common employer,
the sympathy striker enjoys the same reinstatement rights
as the primary striker. Pilot Freight Carriers, Inc., 224
N.L.R.B. 341, 342 (1976); Hoffman Beverage Co., 163
N.L.R.B. 981, 982 (1967).

In determining whether striking employees are entitled
to reinstatement, the Board’s duty is to balance their in-
terests in the free exercise of their § 7 right against the
employer’s legitimate business reasons for replacing them.

1The employer’s reliance on Montana-Dakota Utilities Co. v.
NLRB, 455 F.2d 1088 (8th Cir. 1972) and NLRB v. L.G. Eve-
rist, Inc., 334 F.2d 312 (8th Cir. 1964), is misplaced. Both cases
involved employees’ honoring stranger unions’ picket lines at an-
other employer’s premises. Such conduct is arguably unprotected
by § 7 inasmuch as the disciplined employees’ self-interest is not
directly or indirectly implicated in the primary strike. See NLRB
v. Union Carbide Corp., 440 F.2d 54, 55 (4th Cir.), cert. dented,
404 U.S. 826 (1971). But see NLRB vy. Peter Cailler Kohler Swiss
Chocolates Co., 130 F.2d 503, 506 (2d Cir. 1942) (L. Hand, J.).
The type of sympathy strike involved in the present case is clearly
protected by § 7.

7a
OPINION OF THE COURT 7

It is primarily the Board’s not the courts’ responsibility
‘*to strike the proper balance between the asserted business
justifications and the invasion of employee rights in light
of the Act and its policy.’’ NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 378 (1967), quoting NLRB v. Great Dane
Trailers, 388 U.S. 26, 33-34 (1967); accord, Hudgens v.
NLRB, 424 U.S. 507, 521-23 (1976) ; NLRB v. Erie Resistor
Corp., 373 U.S. 221, 229 (1963); Union Carbide Corp.,
supra, 440 F.2d at 57; NLRB v. Alamo Ezpress, Inc., 430
F.2d 1032, 1036 (5th Cir. 1970), cert. denied, 400 U.S. 1021
(1971).
Circuit courts have upheld the reinstatement of economic
sympathy strikers where the striker
‘‘has in effect plighted his troth with the [other]
strikers, joined in their common cause, and has thus
become a striker himself... . The basis of the protec-
tion against discharge afforded an employee who re-
fuses to cross a picket line at his employver’s business
is his status as a striker. Such an employee is there-
fore entitled to all the protection due under the Na-
tional Labor Relations Act to those strikers with
whom he has joined cause.’’-
Southern Greyhound Lines, supra, 426 F.2d at 1301; ac-
cord, Newspaper Production Co., supra, 503 F.2d at 830.
See, e.g., General Tire € Rubber Co., supra. While we have
found no similar court decisions dealing with the rein-
statement rights of unfair labor practice sympathy stri-
kers, we have no reason to suppose that the Board has
not struck a ‘‘proper balance between the asserted busi-
ness justification and the invasion of employee rights’’ in
extending the Act’s protection to such strikers. See Pilot
Freight Carriers, supra; Hoffman Beverage Co., supra.
The preferential reinstatement rights accorded unfair
labor practice strikers may cavse some disruption to an
employer which has replaced all or some of them. But the

8a
8 NLRB UV. C.K. SMITH & ©O., INC.

synipathy striker resisting unfair labor practices may also
have more at stake than in the economic strike situation.
An employer’s attempted ouster of the union in one barg-
aining unit could have -deleterious effects on the union’s
prestige and the stability of collective bargaining through-
out the plant. Such misconduct might be thought to thwart
the Act’s central policy of ‘‘inaugurating regimes of in-
dustrial peace,’’ Linden Lumber Division, Summer ¢ Co.
v. NLRB, 419 U.S. 301, 307 (1974), and is of considerably
greater moment to affected employees than the issues
typically at stake in an economic strike. And, since sym-
pathy strikers stand in the shoes of primary strikers for
purposes of lawful discipline and replacement, it seems
equitable to afford them preferential reinstatement rights
where such rights are granted primary strikers. We con-
clude, therefore, that the Board has not exceeded its auth-
ority in providing the same reinstatement rights to un-
fair labor practice sympathy strikers in a situation of com-
mon employment as are afforded to primary strikers.
The employer’s most substantial argument is that re-

instatement should not be ordered because the wholesale
drivers struck in violation of a ‘‘no strike’’ clause in their
contract. The ‘‘no strike’’ clause is contained in the sec-
tion of the contract entitled ‘‘Grievance Procedure’’ which
defines a ‘‘grievance’’ as ‘‘any controversy, complaint,
misunderstanding or dispute . . . arising between the
Company and the Union or an employee represented by
the Union’’. The contract provides that any ‘‘grievance’’
will be subject to a three-step procedure, from shop stew-
ard to arbitrator. It further provides,

‘‘If the Company fails to comply with the award of

the Arbitrator or with the procedures of this Article,

the Union has a right to take all legal and economic

action to enforce compliance.

‘¢| | There shall be no strike, work stoppage or in-

9a
OPINION OF THE COURT 9

terruption of work during the term of this Agree-
ment unless the Company shall refuse to comply with
an arbitration award pursuant to arbitration pro-
ceedings instituted in accordance with the terms of
this Article.’’

In deciding whether this portion of the contract pro-
hibits the sympathy strike at issue here, we begin with
the holding in Mastro Plastics Corp. v. NLRB, 350 U.S.
270, 281 (1956), that a similar no-strike clause was not to
be given a literal interpretation but was to be read in the
context of the whole contract and in ‘‘light of the law
under which the contract was made.’’ The Court has also
stated that it is appropriate for the Board to interpret
contract terms when necessary to its role of enforcing the
Act. NLRB v. C & C Plywood Corp., 385 U.S. 421, 428-29
(1967). If the Board’s interpretation has a reasonable
basis in the contract terms, the Act’s policies and the
Board’s expertise, it is entitled to deference. See id. at 430-
31; Newspaper Production Co., supra, 503 F.2d at 830.

In the present case, the Board’s interpretation finds
support in several rationales. In Mastro Plastics Corp.,
supra, employees protesting the employer’s illegal attemp)-
ted ouster of their union as collective bargaining repre-
sentative ostensibly violated the broad ‘‘no strike’’ clause.
The Supreme Court noted that the ‘‘no strike’’ pledge
was to be read in the context of a contract which ‘‘as-
sume[d] the existence of a lawfully designated bargaining
representative’’ and was plainly ‘‘aimed at avoiding in-
terruptions of production prompted by efforts to change
existing economic relationships.’’ 350 U.S. at 282. View-
ing the ‘‘no strike’’ clause, in context, as logically limited
to stoppages over economic issues properly the subject
of collective bargaining or arbitration, the Court held
that there was ‘‘no adequate basis for implying [the] ex-
istence’’ of a waiver of the right to strike over unfair

10a
10 NLBEB VU. C.K. SMITH & ©O., INO.

labor practices undermining the collective bargaining re-
lationship. 7d. at 283. Later circuit cases have held that
waivers of the right to strike against unfair labor prac-
tices must be in ‘‘clear and unmistakable language.’’ News-
paper Production Co., supra, 503 F.2d at 830; Kellogg Co.
v. NLRB, 457 F.2d 519, 525 (6th Cir.), cert. demed, 409
U.S. 850 (1972). There is in the present ‘‘no strike’’ clause
and contract no such clear and unmistakable waiver.

The present case is, to be sure, distinguishable from
Mastro Plastics in that here the employer’s unfair labor
practices were destructive of the union’s status only in
another bargaining unit. Nevertheless, the right to engage
in an unfair labor practice sympathy strike is protected
under § 7; waiver of the right is not lightly to be inferred.
And the wholesale drivers’ contract containing the ‘‘no
strike’’ clause plainly does not contemplate processing the
mechanics’ grievance through the wholesale drivers’ arbi-
tration machinery. See Buffalo Forge Co. v. Steelworkers,
428 U.S. 397, 407-08 (1976). There is thus a close parallel
between this case and Mastro Plastics.?

2NLRB vy. Rockaway News Supply Co., 345 U.S. 71 (1953),
relied on by the employer, is not controlling. That case not only
preceded Mastro Plastics but also involved an employee’s refusal
to cross a stranger union’s picket line at another employer’s
plant. Such a ‘‘sympathy strike’’ is of considerably less import-
ance under the Act than one directed at a common employer and
provoked by serious unfair labor practices. See note 1 supra.

We ascribe little weight to the employer’s argument that the
bargaining history behind the ‘‘no strike’’ clause reveals that
the union was waiving its right to strike even over serious unfair
labor practices directed at another bargaining unit at the em-
ployer’s plant. It is true that the union was unable to obtain the
employer’s assent to a contract containing a broadly phrased “‘ pres-
ervation of rights’’ clause which would have permitted the union
to honor sister locals’ picket lines at the company’s and other
employers’ premises. The inference to be drawn, however, is not
that the union thereby agreed to incorporate the converse in the
‘‘no strike’’ clause. The more reasonable interpretation is that
the parties left the ‘‘no strike’’ clause to be interpreted accord-
ing to the existing principles of law in this area, with the union

lla
OPINION OF THE OCOUBT 11

By the same token, the Board’s interpretation of the
‘‘no strike’’ clause is supportable in light of the familiar
principle that a no-strike provision is ordinarily coter-
minous with the duty to arbitrate. E.g., Gateway Coal Co.
v. UMW, 414 U.S. 368, 382 (1974); Gary Hobart Water
Corp. v. NLRB, 511 F.2d 284, 287 (7th Cir.), cert. denied,
423 U.S. 925 (1975). Since the dispute underlying the work
stoppage — that between the mechanics and the employer
— could not be processed through the wholesale drivers’
grievance machinery, there was no duty to arbitrate, and
the ‘‘no strike’’ clause did not bar the sympathy strike.

The employer, however, argues that the wholesale dri-
vers violated their contract since the applicability of the
‘‘no strike’’ clause to the wholesale drivers’ sympathy
walkout is itself an arbitrable issue. In Buffalo Forge Co.,
supra at 405, it was recognized that the scope of such
pledges may itself present an arbitrable question. How-
ever, it does not follow that the application of the clause
in the present case was arbitrable. The contract between
Buckley and the wholesale drivers provides that the arbi-
tration machinery may be activated where the ‘‘aggrieved
employee or employees’’ first ‘‘present the grievance to
the Shop Steward within five (5) working days after the
reason for the grievance has occurred ... .’’ The contract
then provides steps for further processing of the grievance,

free to engage in a sympathy strike against unfair labor practices
committed by the employer but barred from honoring picket lines
at another employer’s plant. Compare Mastro Plastics Corp. v.
NLRB, 350 U.S. 270 (1956), with Rockaway News Supply Co.,
supra. Nor does the ambiguous testimony of the union business
agent. cited by the employer, require a different interpretation.
‘“Where a provision would normally be implied in an agreement
by operation of the Act itself . . . we think a waiver should be
express, and that a mere inference, no matter how strong. should
be insufficient.’’ NLRB v. Perkins Machine Co., 326 F.2d 488, 489
(1st Cir. 1964). Not only was there no express waiver in this case,
but the inferences supporting the employer’s position are inconclu-
sive.

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12 NLRB UV. C.K. SMITH & CO., INC.

culminating in arbitration. Nowhere in the ‘‘Grievance
Procedure’’ section of the contract containing the ‘‘no
‘trike’? clause is there provision for employer initiation
of grievance procedures or arbitration. Compare Buffalo
lorge Co., supra at 400 & n.2. Since the claimed violation
of the ‘‘no strike’’ pledge is itself the employer’s rather
than the union’s grievance, and since no provision is made
for arbitration of such a ‘‘grievance’’, we have some
difficulty seeing how the union violated an implicit or
explicit pledge to arbitrate this issue.? And, on the merits,
it seems unlikely that an arbitrator, even if he took juris-
diction, would construe the ‘‘no strike’’ clause in a manner
different from the Board’s interpretation in this case.
There is no ‘‘picket line’ clause, see NLRB v. Keller
Crescent Co., 538 F.2d 1291 (7th Cir. 1976), and neither
the law nor the bargaining history provides significant
support for an interpretation of the clause barring the
sympathy strike at issue here.

A court, to be sure, cannot coufidently predict how an
arbitrator might see these matters, although we believe
it our duty to make a threshold determination in these
cireumstances, Mastro Plastics Corp. v. NLRB, supra;
NLRB v. C & C Plywood Corp., supra. But even assuming
that the scope of the ‘‘no strike’’ clause were arbitrable,
we do not think that the employer is in a good position to
complain that the issue was not arbitrated. The company
points to nowhere in the record, and we have discovered
none, where evidence indicates that the employer called

3 The majority and the dissenters in Buffalo Forge Co. v. Steel-

workers, 428 U.S. 397 (1976), appear to agree that it is appropriate
for federal courts in the first instance to determine whether ‘‘the
strike was ... over any dispute between the Union and the em-

ployer that was even remotely subject to the arbitration provi-

sions of the contract.’’ Jd. at 407 (opinion of the Court) ; see id.
at 431 (Stevens, J., dissenting). It is also competent in this case
for the Board and the court to perform a similar function with
respect to the contract at issue here.

13a
OPINION OF THE COURT 13

to the union’s attention the breach of its ‘‘no strike’’ pledge
or demanded arbitration on this issue. As noted above,
existing law holds the type of sympathy strike involved
here not a violation of a broad ‘‘no strike’’ promise and
there is nothing in the bargaining history or terms of the
contract to put the union on notice that a different inter-
pretation could be placed on the clause. Compare NLRB v.
Keller Crescent Co., supra. In these circumstances, it is
hardly equitable for the employer to play dog in the mang-
er: the company itself should have recognized and raised
the arbitrability issue at the appropriate time if it later
wished to argue the lack of arbitration as a ground for
refusing to rehire the strikers.

Finally, assuming again that the scope of the ‘‘no strike”’
pledge was arbitrable, it is by no means clear (although
we do not decide the point) that the union was under a
duty not to strike pending resolution of the question by an
arbitrator. In Buffalo Forge the Supreme Court noted that
a ‘‘no strike’’ pledge would be implied only with respect
to issues ‘‘over’’ which a union had agreed to arbitrate.
428 U.S. at 407. And the Court stated further that an
injunction against a strike in violation of such a pledge
would ordinarily be appropriate to protect the employer’s
quid pro quo and the arbitral process itself. Since the
Court in Buffalo Forge barred an injunction against a
sympathy strike even where the scope of the ‘‘no strike’’
clause was itself concededly arbitrable, it is questionable
whether the union could be said to have impliedly agreed
not to strike pending arbitral resolution of the scope of
the ‘‘no strike’’ clause.

We have examined the other points raised by the em-
ployer and find them to be without merit.

Enforcement granted.

l4a
Appendix B.

227 NLRB No. 147 D — 1981
Worcester, Mass.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

C. K. SMITH & CO., INC.
AND Cases 1|—CA—9817 AND

TEAMSTERS LOCAL 170, 1—CA—9818

A/w INTERNATIONAL

BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA

C. K. SMITH & CO.,
INC./BUCKLEY HEATING
CO., INC. (GASOLINE
DIVISION)
AND CasE 1—CA—10184
TEAMSTERS LOCAL 170,
A/w INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA

Decision and Order

On July 16, 1976, Administrative Law Judge Jerry B.
Stone issued the attached Decision in this proceeding.

l5a

Thereafter, Respondents, Charging Party, and General
Counsel filed exceptions and supporting briefs.

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 pro-
ceeding 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 recom-
mended 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 recommended Order of the Admini-
strative Law Judge and hereby orders that the Respondents,
C. K. Smith & Co., Inc., and Buckley Heating Co., Inc.
(Gasoline Division), Worcester, Massachusetts, their officers,
agents, successors, and assigns, shall take the action set
forth in said recommended Order, except that the attached

‘The Respondents, Charging Party, and General Counsel have ex-
cepted to certain credibility findings made by the Administrative Law
Judge. It is the Board’s established policy not to overrule an Administra-
tive Law Judge’s resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB
544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully ex-
amined the record and find no basis for reversing his findings.

l6a

notice is substituted for that of the Administrative Law
Judge.
Dated, Washington, D.C. January 14, 1977

BETTY SOUTHARD MURPHY,
Chairman

JOHN H. FANNING,
Member

JOHN A. PENELLO,
Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX
Notice to Employees

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

We Wu recognize Teamsters Local 170, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive collective-
bargaining representative of employees in C. K. Smith &
Co., Inc.’s mechanics unit set out below.

We Wut bargain collectively upon request with Team-
sters Local 170, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive collective-bargaining representative of
employees in the appropriate bargaining units set out
below, and embody any understanding reached in a signed
agreement.

17a

We Wit Nor withdraw recognition from and refuse to
bargain collectively with Teamsters Local 170, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, with respect to rates of
pay, hours, and other conditions of employment of C. K.
Smith & Co., Inc.’s employees in the appropriate bargain-
ing unit of mechanics set out below.

We Wit Nor bargain directly with individual retail
driver employees of C. K. Smith & Co., Inc., in derogation
of the rights of Teamsters Local 170, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the bargaining representative of
employees in the retail drivers bargaining unit set out
below. The appropriate bargaining units are:

1. All mechanics and warehousemen of C. K. Smith
& Co., Inc., employed at its Worcester plant, exclusive
of all other employees and supervisors as defined in
Section 2(11) of the Act.

2. All retail truck drivers of C. K. Smith & Co.,
Inc., at its Worcester plant, exclusive of all other
employees and all supervisors as defined in Section
2(11) of the Act. |

We Wut Nor coercively interrogate our employees
concerning their union membership, activities, or desires.

We Wut Nor promise our employees adjustments in
working conditions to dissuade their support of the Union.

We Wit Nor threaten our employees with loss of work
opportunity to dissuade their support of the Union.

We Wu. offer immediate and full reinstatement to the
employees listed below to their former positions or, if such
positions no longer exist, to substantially equivalent posi-

18a

tions, without prejudice to their seniority or other rights
previously enjoyed, and We Wit make them whole for any
loss of pay or other benefits, including interest at 6 percent
per annum, suffered as a result of the refusal on July 9,
1974, and thereafter, to promptly reinstate such employees
upon their unconditional offer to return to work on July 8,
1974, from an unfair labor practice strike engaged in by
such employees:

Clyde Whitaker William Paige

David Plante Edward Commo

Joseph Luksha Harry Wilson

Thomas Crilly James Wadowski
Richard Erickson Raymond Flagg

David Bedard Richard Castonguay, Sr.
Arthur Lewis Douglas C. Morrison
Stanley MacDonald Gregorio Santoro

Bruce Hathaway Robert Luby

Richard Cook Raymond Desy

We Wu Nort discourage membership in or activities on
behalf of Teamsters Local 170, or any other labor organi-
zation, or the engaging in protected concerted activities, by
refusing to reinstate unfair labor practice strikers upon their
unconditional offer to return to work.

We Wut Nor in any other manner, interfere with,
restrain, or coerce our employees in the exercise of their
rights to engage in organizational activities or in collective
bargaining, or to refrain from such activities.

19a

All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization, except to the extent provided by Section
8(a)(3) of the Act.

C. K. SMITH & CO., INC., AND
BUCKLEY HEATING CO., INC.
(GASOLINE DIVISION)

(Employer)

Dated By
(Representative) (Title)

This is an official notice and must not be defaced by
anyone.

This notice must remain posted for 60 consecutive days
from the date of posting and must né@t be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board’s Office, 12th Floor, Keystone
Building, 99 High Street, Boston, Massachusetts 02110,
Telephone 617 — 223-3348.

JD-484-76
Worcester, MA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

C. K. SMITH & CO., INC.
AND
BUCKLEY HEATING CoO.,
INC. (GASOLINE DIVISION) Cases 1-CA-9817
AND 1-CA-9818
TEAMSTERS LOCAL 170, 1-CA-10184
a/w INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA

Thomas J. Flynn, Esq., and Avrom Herbster, Esq., for
the General Counsel.

Christy A. Pano, Esq., and Peter F. Keenan, Jr., Esq., of
Worcester, MA, for the Charging Party (Union).

Paul J. Kingston, Esq., of Boston, MA, for the Employer
(Respondent).

Decision
STATEMENT OF THE CASE

Jenny B. Stone, Administrative Law Judge: This consoli-
dated proceeding, under Section 10(b) of the National

2la

Labor Relations Act, as amended, was tried pursuant to due
notice on November 17, 18 and December 8, 9, 11, 12, 13,
and 14, 1975, at Worcester, Massachusetts.

The charges in Cases 1-CA-9817 and 1-CA-9818 were
filed on May 13, 1974. The charge in Case 1-CA-10184
was filed on October 22, 1974. The amended charge in
Case 1-CA-10184 was filed on January 2, 1975. The
amended consolidated complaint in this matter was issued
on June 24, 1975.

The issues concern (1) whether the Respondents constitute
a single employer within the meaning of the Act;
(2) whether the Respondents have engaged in conduct
violative of Section 8(a)(1) of the Act by interrogation of
employees concerning their membership in or activities on
behalf of the Union, by threatening employees with loss of
employment or job security or working conditions because
of their membership in or activities on behalf of the Union,
and by promising adjustments in working conditions if there
were no Union; (3) whether the Respondents have engaged
in conduct violative of Section 8(a)(5) and (1) by refusing to
bargain collectively with the Union; (4) whether the Union
is an exclusive collective-bargaining agent in a certain
bargaining unit; (5) whether a strike was an unfair labor
practice strike, an economic strike, or unprotected unlawful
strike in whole or in part as regards certain employees on
strike; and (6) whether the Respondents have violated
Section 8(a)(3) and (1) of the Act by refusing to reinstate
certain strikers upon their unconditional offer to return to
work.

The Respondents, prior to trial, filed a motion to dismiss
certain allegations of the complaint. The motion was
predicated in effect upon a contention that charges were
not sufficient to constitute charges filed within the 10(b)
period for the purpose of the complaint allegations per-

22a

taining to the issues, primarily the issues relating to an
alleged unfair labor practice strike and to the alleged refusal
to reinstate unfair labor practice strikers. The Respondents’
motion to dismiss such complaint allegations was dismissed.
Respondents’ interim-appeal to such ruling was denied by
the Board. The Respondents have in effect reiterated in
brief that such complaint allegations are barred by Section
10(b) of the Act.

I find no merit to such Respondents’ contentions and ad-
here to the rulings made at the trial. The complaint alleges
that Respondents (Buckley and Smith) have engaged in cer-
tain conduct violative of Section 8(a)(5) and (1) of the Act.
Such conduct is alleged to have occurred on or after March
1 and on dates thereafter and well within the 6-month
period preceding May 13, 1974, the date 8(a)(5) and (1)
charges were filed in Cases 1-CA-9817 and 1-CA-9818
against C.K. Smith & Co., Inc. The charges contained in
effect specific 8(a)(5) allegations and general 8(a)(1) allega-
tions. It is clear that the 8(a)(5) and (1) complaint allega-
tions are closely related to the charges as filed and are
timely within the meaning of Section 10(b) of the Act.
Service upon one corporation, part of a single employer
enterprise, is sufficient to support complaint allegations of a
single-employer respondent. As found later herein, Buckley
and Smith constitute a single employer within the meaning
of the Act. Further, on October 22, 1974, the Union filed
an unfair labor practice charge in Case 1-CA-10184 against
the single employer, Smith and Buckley, and alluded there-
in in effect to the labor dispute between the employer and
employees in the bargaining units other than the unit
specifically involved in Case 1-CA-10184. Such charge, in
and of itself, is sufficiently related to the charges in Cases
1-CA-9817 and 1-CA-9818 to constitute proper notice by
amendment of the single-employer contention.

23a

Thus, the charges in Cases 1-CA-9817 and 1-CA-9818
properly form a basis for the complaint allegations of
conduct violative of Section 8(a)(1) and (5) of the Act. Such
conduct alleged as having occurred timely with respect to
the date of filing of such charges on May 13, 1974, forms a
proper basis for determining whether a strike occurring on
April 29 through July 8, 1974, is an unfair labor practice
strike as alleged in the complaint.

The complaint alleges in effect that the Respondents have
failed and refused to reinstate certain employees since on or
about July 9, 1974, because they participated in an unfair
labor practice strike. The amended charge in Case 1-CA-
10184 was filed on January 2, 1975. The complaint allega-
tions are within the 10(b) period of such charge. The
amended charge (Case 1-CA-10184) in part alleges conduct
violative of Section 8(a)(3) and (1) of the Act by refusal to
reinstate certain named employees. The complaint allega-
tions of refusal to reinstate unfair labor practice strikers are
sufficiently related to the charges as filed. Although, as the
record reveals, the individuals named in such charge were
Buckley wholesale drivers, the question of refusal to rein-
state all of the unfair labor practice strikers (including
employees who were “retail drivers” and “mechanics”) is
properly encompassed since the alleged violation is of the
same class of violation involved in the charge. In sum, the
complaint allegations are based upon proper charges.'

All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by all parties and
have been considered.

'N.L.R.B. v. Fant Milling Company, 360 U.S. 301 (1959); Southern
Materials Company, 181 NLRB 958.

24a

Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following: *

FINDINGS OF FACT

I. The Business of the Employer
Single-Employer Status

A. Undisputed Facts

C.K. Smith & Co., Inc., herein sometimes referred to as
Respondent Smith or Smith, is and has been at all times
material herein a corporation duly organized under and
existing by virtue of the laws of the Commonwealth of
Massachusetts.

Buckley Heating Co., Inc. (Gasoline Division), herein
referred to sometimes as Respondent Buckley or Buckley, is
and has been at all times material herein a corporation duly
organized under and existing by virtue of the laws of the
Commonwealth of Massachusetts.

At all times material herein Respondent Smith has main-
tained its principal office and place of business at 99 Cres-
cent Street, Worcester, Massachusetts (herein called the
Worcester plant).

At all times material herein, Respondent Buckley has
maintained its principal office and place of business at 99
Crescent Street, Worcester, Massachusetts (herein called the
Worcester plant).

*An order, marked as ALJ Ex. No. 1, dated May 26, 1976, wherein
the record was corrected in part, is hereby received into the record.
Proof of service of such order is attached thereto and a part of ALJ Ex.
No. l.

25a

Respondents, Smith and Buckley, at all times material
herein, have been engaged in the sale and distribution of
gasoline, oil and related products at the said Worcester
plant.

Respondents (Smith and Buckley) in the course and
conduct of their business cause, and continuously have
caused at all times material herein, large quantities of gaso-
line and oil used by them in the conduct of their business to
be purchased and transported in interstate commerce from
and through various States of the United States other than
the Commonwealth of Massachusetts.

Respondents (Smith and Buckley) in the course and con-
duct of their business annually receive gasoline and oil
valued in excess of $50,000 at their Worcester plant from
points located outside the Commonwealth of Massachusetts.

B. Disputed Issue
The Single-Employer Issue

The General Counsel alleges and the Respondents deny
that “Respondent Smith and Respondent Buckley (herein
jointly called Respondents) are, and at all times material
herein have been, affiliated businesses with common owner-
ship and operators and constitute a single, integrated busi-
ness enterprise. The said owners and operators formulate
and administer a common labor policy for the aforemen-
tioned companies affecting the employees of said com-
panies.”

At the trial of this matter, attempt was made to get the
parties to narrow the issues and to stipulate to facts that
were not in dispute. In this regard, Respondents’ counsel
indicated his willingness to stipulate to certain facts relating
to the single-employer issue but his unwillingness to stipu-
late to a legal conclusion that the Respondents constituted a
single employer. Dialogue between counsel ensued with
apparent agreement to meet outside the proceeding and to

26a

develop some factual stipulations. Despite this, no stipula-
tions of fact were presented into the record concerning the
single-employer issue.

The pleadings and the evidence clearly establish that James
Smith is President of both Respondent Smith and Respond-
ent Buckley, and that David J. Adams is Vice President of
both Respondent Smith and Respondent Buckley. The
pleadings and the credited evidence as a whole clearly
establish that both Respondents’ place of business and
offices are at the same location.

The General Counsel presented evidence concerning nego-
tiations by the Union with Respondents Buckley and Smith,
certain statements made by President Smith and Vice Presi-
dent Adams to employees, and some evidence concerning
the business and operations of the Respondents. The
Charging Party’s questioning of witnesses was in the same
vein. Respondents’ counsel questioned witnesses in the same
area of evidence.

It is clear from such evidence that President Smith and
Vice President Adams are engaged generally in the manage-
ment of both Respondents on a day-by-day basis. It is also
clear in effect that Respondent Buckley is essentially engaged
in the sale and wholesale distribution of oil and related
products. The credited evidence also reveals that both
President Smith and Vice President Adams handle labor
relations interchangeably and for both Respondents.

Although limited evidence was presented concerning spe-
cifics of labor policy as directed to individual employees, it is
clear that Respondents were concerned about the effect of
labor relations of one Respondent upon the other Respond-
ent. Thus, Vice President Adams credibly testified in effect
that he was concerned over the inclusion of a “protection of
rights” clause in a contract for one of the Respondents
because of the effect of the same on the other Respondent.

27a

As indicated, despite assertion of Respondents’ counsel
that he was willing to stipulate to certain facts relating to
the single-employer issue, the parties did not enter into such
stipulation.

In the presentation of Respondents’ case, Respondents’
counsel went into some issues for which evidence touched in
a minor way the single-employer issue. The General
Counsel and Charging Party attempted to broaden the
cross-examination of such witnesses into the general single-
employer issue. The Respondents objected to the examina-
tion of witnesses on the single-employer issue and contended
that Respondents had not gone into the single-employer
issue.* The cross-examination of such witnesses was limited
to the matter gone into on direct. Although Respondents
were attempting to avoid going into the single-emnployer
issue, where subject matter is gone into which overlaps or
touches upon such issue, evidence elicited must be
considered as to all issues. This is the risk of litigation.
The area of cross-examination was limited but did adduce
evidence which touches upon the single-employer issue.
Thus, credited evidence was adduced which revealed that
Messina, a supervisor of Respondent Smith, was concerned
in 1972 about a strike by Respondent Buckley’s drivers
because of the effect on the ability of Respondent Smith to
deliver oil. Further, credited evidence reveals that Re-
spondent Smith’s Supervisor Carlson interviewed prospective
employee Witt when he was hired for a job for Respondent
Buckley during the April 29 — July 8, 1974, strike involved
in this case.

Considering all of the foregoing, I conclude and find that
the facts reveal that Respondent Buckley and Respondent

*I would note that the General Counsel made no contention that the
question of “stipulation” had been inadvertently overlooked.

Smith constitute a single employer within the meaning of
the Act. Thus, the facts reveal that the Respondents share
the same location and have their businesses and offices at
the same location. Respondents have the same officers.
James Smith is President of both Respondents. David J.
Adams is Vice President of both Respondents. Both Presi-
dent Smith and Vice President Adams are engaged in daily
management of both Respondents. Both President Smith
and Vice President Adams are engaged in the handling of
labor relations for both Respondents. In the handling of
labor relations matters for one Respondent, concern is given
for the effect of such labor relations on the other
Respondent. There is no question that there is common
ownership of the two Respondents. Although the issue of
whether there is common ownership of both Respondents is
presented by the pleadings, it is not a genuine issue. Per-
haps the Respondents denied the complaint allegations as tc
the single-employer issue because the allegations were broad
and included other matter. Since Respondents’ counsel
stated at the trial that there is common ownership of the
two Respondents, it would appear that the answer should
have admitted in part and denied in part the allegations.
Statement by counsel at a trial as to such matter that is not
really disputed can properly be considered as a statement
narrowing the issues, or as an admission of a fact. I so
construe the statement of Respondents’ counsel that there is
common ownership of the Respondents.

The facts reveal in effect that from the same location
Respondents operate through Respondent Buckley the sale
and distribution on a wholesale basis of oil and related
products, and through Respondent Smith the sale ard distri-
bution of retail oil and related products.

Although the Board and Court normally give weight to a
combination of the criteria of common ownership, common

29a

management, centralized control of labor relations, and
interrelationship of the enterprise, it does not always give
the same weight to each criteria, nor does it always find
that each criteria is essential. In situations where the types
of businesses are essentially similar, as here where the
distinction is one of “wholesale” or “retail,” the criteria of
common ownership, management, centralized control of
labor relations, and location of the enterprises have been
accorded controlling weight. In sum, the facts here reveal
in effect one enterprise with divisions of the same engaged
in “wholesale” and “retail” distribution of oil and related
products. The overall facts reveal Respondent Buckley and
Respondent Smith to constitute a single employer within the
meaning of the Act,‘ and engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.

II. The Labor Organization Involved

Teamsters Local 170, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of the
Act.

III. The Unfair Labor Practices
A. The Setting

Many of the facts and some of the issues in this proceed-
ing are not disputed, are admitted in the pleadings, are

‘Arlington Ridge Development Co., etc., 203 NLRB 787; Barwise
Sheet Metal Co., 199 NLRB 372; Triangle Maintenance Corporation,
186 NLRB 538; and State Lathing Co., Inc., 153 NLRB 1189.

30a

stipulated to, or established by overwhelming evidence.
For a brief look at the setting and the issues I find it proper
to set forth the following statements as to the setting and
issues.

Respondents operate an enterprise from a plant location
in Worcester, Massachusetts. Respondent Buckley is en-
gaged in the wholesale sale and distribution of oil and
related products. Respondent Smith is engaged in the retail
sale and distribution of oil and related products. Re-
spondent Buckley has had a collective-bargaining relation-
ship and collective-bargaining contracts with Local 170 of
the Teamsters concerning what may be described as a
wholesale drivers bargaining unit. During the first months
of 1974, the Respondent and the Union had not finalized a
new collective-bargaining contract for such unit but did so
on March 22, 1974. Respondent Smith has had a
collective-bargaining relationship and collective-bargaining
contracts with Local 170 of the Teamsters concerning a unit
of retail drivers. During the early months of 1974, Re-
spondent Smith and the Union were involved in negotia-
tions for a new collective-bargaining agreement for this
unit. Involved in this case is a question as to whether an
agreement was reached for a new contract around April 12,
1974, whether Respondent later refused to sign such
contract and whether Respondent earlier engaged in direct
bargaining with unit employees.

In the early months of 1974, Respondent Smith's
employees in a unit of employees described herein as the
“mechanics” unit were not represented by a union. Some
union activity directed to the unionization of such
employees commenced in early March, 1974. Contact was
made by Union Representative Gentile, of Teamsters Local
170, with Respondent Smith’s Vice President Adams
concerning the Union’s claim for representation. Involved

3la

in this case is whether the Respondent thereafter engaged in
certain acts violative of Section 8(a)(1) of the Act by acts of
interrogation, promises of benefits, and threats of reprisals.
Involved also are questions of whether Respondent recog-
nized the Union as exclusive collective-bargaining repre-
sentative of such employees and later withdrew such recog-
nition.

Involved in this case are also questions as to whether a
strike by employees in all of the above referred to bargain-
ing units was an unfair labor practice strike caused by the
alleged unlawful interrogation of employees in the mechan-
ics unit, by Respondents’ direct bargaining with employees
in the retail drivers unit, by Respondents’ refusal to sign an
agreed upon contract involving the retail drivers, and by
Respondents’ withdrawal of recognition concerning the
“mechanics” unit. Involved also are certain issues concern-
ing whether certain contract clauses affect employee rights
to strike, whether certain employees were unfair labor
practice strikers, and whether the Respondent has discrimi-
natorily refused to reinstate certain of the striking employees
upon their unconditional offer to return to work after the
strike.

B. Preliminary Facts

1. The pleadings, admissions therein and stipulations of
the parties establish that:

At all times material herein, the following named persons
occupied the positions set opposite their respective names
and have been and are now agents of the Respondents
acting on their behalf and are supervisors within the
meaning of Section 2(11) of the Act:

32a

James Smith — President of Smith;
President of Buckley
David J. Adams — Vice President of Smith;
Vice President of Buckley
Vincent Messina — Sales Manager,
Industrial Fuel Division,
C.K. Smith

2. The pleadings and admissions therein, and the overall
facts establish that:

All retail truckdrivers of Respondent Smith employed at
its Worcester plant, exclusive of all other employees and all
supervisors as defined in Section 2(11) of the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.

Prior to and in January of 1974, Respondent Smith and
the Union were parties to a collective-bargaining agreement
covering the employees in the unit described above.*

At all times material herein, the Union has been the
representative for the purpose of collective bargaining of a
majority of the employees in the unit described above and,
by virtue of Section 9(a) of the Act, has been and is now
the exclusive representative of all the employees in the said
unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other condi-
tions of employment.

3. The pleadings and admissions therein and the over-
whelming evidence establish that: |

All drivers, warehouse employees and helpers of Re-
spondent Buckley employed at its Worcester plant, exclusive
of all other employees and all supervisors as defined in

* The facts are clear that the contract in effect around January, 1974,
was due to expire around that time and that bargaining for a new con-
tract started around that date.

33a

Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.

The overwhelming evidence reveals that Respondent
Buckley and the Union have had a collective-bargaining
relationship with respect to the above bargaining unit at all
times material herein, that the latest current collective-
bargaining agreement concerning such unit was executed on
March 22, 1974, and was in existence at al! times material
thereafter.

There is no issue that the Union is the exclusive collective-
bargaining representative of the employees in such bargain-
ing unit, and by virtue of such contractual relationship, it is
concluded and found that the Union is the exclusive
collective-bargaining representative of the employees in the
above collective-bargaining unit.

4. The pleadings and admissions therein as amended at
the trial establish that:

All mechanics and warehousemen of Respondent Smith
employed at its Worcester plant, exclusive of all other
employees and all supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. |

Although in issue is whether the Union is the appro-
priately designated exclusive collective-bargaining repre-
sentative of the employees in the above appropriate
collective-bargaining unit, the facts overwhelmingly estab-
lish that the Union has been the exclusive collective-bargain-
ing representative since March 16, 1974.

The parties’ stipulations and the evidence clearly establish
that there were six employees in the above-described appro-
priate collective-bargaining unit on March 16, 1974, and
thereafter at all times material to this proceeding up to the
date of the strike on April 29, 1974. On March 16, 1974,

34a

the six said employees (Santoro, Morrison, Luby, Desy,
Castonguay and Flagg) signed cards authorizing the Union
to represent such employees in collective bargaining.’ It is
clear and I conclude and find that the Union (Teamsters
Local 170) was the exclusive collective-bargaining repre-
sentative of the employees in the above appropriate collec-
tive-bargaining unit on March 16, 1974, and at all times
material to the issues in this case.

5. The pleadings, admissions therein, and the evidence
clearly establish that the employees in the appropriate
collective-bargaining units described in paragraphs 2, 3,
and 4 above, ceased work concertedly and went out on
strike on April 29, 1974, that such strike continued through
July 8, 1974, and that on July 8, 1974, said employees
made an unconditional offer to return to work.

C. Interference, Restraint and Coercion,

Refusal to Bargain,
Direct Bargaining with Employees

The General Counsel alleges in effect and Respondents
deny that the Respondents, since on or about March l,
1974, bargained directly and individually with their
employees in the C.K. Smith retail drivers unit (described
above in III B 2) concerning rates of pay, wages, hours of
employment, or other conditions of employment. The
General Counsel alleges and contends that such conduct is
violative of Section 8(a)(5) and (1) of the Act.

*The facts are based upon a composite of the credited testimony of
Gentile, Santoro, Morrison, Luby, Desy, and Castonguay.

35a

Although the above issues are disputed by the pleadings
and briefs, the facts overwhelmingly reveal that the facts
support a finding of violative conduct as alleged.

The principal witnesses to the issues as to such violative
conduct are Wadowski, Wilson, and President Smith. The
facts as to the critical issues are based upon a composite of
the credited aspects of such witnesses’ testimony and a
logical consideration of the totality of all of the facts.

In January of 1974, the Respondents had a collective-
bargaining agreement between C.K. Smith Co., Inc., and
the Union concerning the retail drivers unit. The contract
was due to expire around February 25, 1974.’ In Janu-
ary of 1974, Union Representative Gentile held a meeting
with employees in the retail drivers unit and thereafter on
January 14, 1974, submitted proposals for certain provisions
to be included in a new contract to be negotiated. For the
purpose of this issue, it is clear that the Union and the
Respondent engaged in contract negotiations for a new
contract covering the retail drivers unit during the period of
time from January 14, 1974, to April 18, 1974.

For the purpose of resolution of the issue involved herein
it may be said that it is clear that the Respondents, during
negotiations, desired to have a clause, described as the
“stand-by” clause, removed from the collective-bargaining
contract with the Union. This clause in effect provides that
one of the bargaining unit employees would be on stand-by
for call to deliver oil to customers if customers ran out of oil
at night. Gentile, who was new at his job as a representa-
tive, first indicated to the Respondents that he would be
willing to delete such clause from the contract. Millet, a

’The facts are based upon a composite of testimony of Gentile and
Adams, exhibits as regards proposed contracts, and Respondents’ answers
to the complaint and amended complaint.

36a

higher official of the Union, indicated to Gentile that he
could not agree to such exclusion, and Gentile conveyed to
the Respondents that continuation of such clause in the
contract was necessary. It appears that the inclusion or
exclusion of such clause in the contract did not appear to be
of great importance to the employees in the bargaining
unit. However, it appears that there had been grievances
filed concerning past application or nonconformance with
such clause. In essence, the Union considered that
exclusion of such clause constituted a possible loss of
bargaining unit work.

While Respondents (C.K. Smith & Co., Inc.) were
negotiating with the Union over the inclusion or exclusion
of such clause and over a new contract, President Smith
had conversations with two of the three employees in the
retail drivers unit wherein he discussed the question of
exclusion of the stand-by clause in the new contract.‘

Thus the facts are clear that employee Wadowski, in
March of 1974, let it be known to President Smith that he
was interested in receiving full employment rather than
seasonal employment. President Smith told Wadowski in
effect that he would see that he received full employment
by his being placed on the “green machine,” a fertilizer
truck, but that this was contingent upon Respondents’
getting the “night call” and “stand-by” provisions out of the
upcoming contract. Smith and Wadowski also discussed in
effect what the “money” terms in the contract would be.
Later Wadowski, an employee in the retail drivers bargain-
ing unit, voted in a union meeting against the contract
proposals being considered because the “money” items were
not what he had thought President Smith had indicated to

* These conversations took place at Respondents’ place of business, at
the gas pumps, in the yard, the drivers’ rooms, or in the locker room.

37a

him. Later President Smith and Wadowski had another
conversation concerning the contract proposals. During
this discussion Smith mentioned certain hourly figures for
work, and Smith ultimately indicated that he couldn’t give
the hourly rate wanted by Wadowski but would see that
certain overtime work was available.

During the time that the Union and the Respondents
were negotiating a new contract for the retail drivers,
President Smith and Wadowski had another conversation
concerning overtime work. Thus, Wadowski complained to
Smith that he wasn’t receiving the overtime work Smith had
promised him. At this time Smith told Wadowski that the
deal was off because the Union had not taken the
“stand-by” and “night call” provisions out of the contract.

As indicated, the facts are clear that President Smith
engaged in direct bargaining with employees in the retail
drivers unit at the same time that bargaining negotiations
were going on between the Union and the Respondents.
Smith’s own testimony reveals that he had discussions with
both employees Wilson and Wadowski to the effect that he
would give Wadowski full employment if the “stand-by”
clause were eliminated from the new contract.°

Considering the entire record and all of the foregoing, it
is clear and I conclude and find that the Respondents, by
President Smith, violated Section 8(a)(5) and (1) of the Act
by bargaining directly with employees concerning rates of
pay and conditions of employment at a time when
Respondents were engaged in bargaining with the exclusive
collective-bargaining representative of such employees con-
cerning a new contract.

* Wadowski also testified to discussions with a contended supervisor
apparently named Blount. It was made clear to the parties that the
issues in this case would be those formally alleged. It is unnecessary for
..ie disposition of the alleged issues to consider the testimony of Wadow-
ski alluding to statements by Blount.

38a

Respondents’ main contention appears to be that it was
taking the same position in bargaining with the Union as
with the employees. Such contention is without merit.
Bargaining directly with employees on a quid pro quo basis
has the inherent effect of dividing, undermining and by-
passing the Union as bargaining agent. Such conduct is
clearly violative of both Section 8(a)(5) and (1) of the Act,
and it is so found and concluded.

D. Interference, Restraint and Coercion,
Interrogation, Promises of Adjustments

1 (a) The General Counsel alleged in his complaint and
the Respondents denied in answer that the Respondents
violated Section 8(a)(1) of the Act by “on or about
March 11, 1974, by their officer and agent, David J.
Adams, interrogating their employees concerning their
membership in or activities on b

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0679%3A1. Public record. Not legal advice.