Appendix — United Steelworkers of America v. Dow Chemical Co.

Supreme Court brief1981

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8 1 * 1 5 3 1 _ on US.

No. JUL 24 1981

IN THE 2 2

Supreme Court of the United States

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

1 Petitioner,

THE Dow CHEMICAL COMPANY,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Of Counsel:

BERNARD KLEIMAN ROBERT M. WEINBERG

Genera! Counsel, United (Counsel of Record)

Steelworkers of America, MICHAEL H. GOTTESMAN

AFL-CIO-CLC BREDHOFF, GOTTESMAN, COHEN,

1 East Wacker Drive CHANIN, WEINBERG &

Suite 1910 PETRAMALO

Chicago, Illinois 60601 1000 Connecticut Avenue, N.W.

CARL B. FRANKEL Washington, D.C. 20036

Associate General Counsel (202) 833-9340

United Steelworkers of America, WARREN PYLE

AFL-CIO-CLC ANGOFF, GOLDMAN, MANNING,

Five Gateway Center PYLE & WANGEK

Pittsburgh, Pennsylvania 15222 44 School Street

Boston, Massachusetts 02180

Attorneys for Petitioner

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

—

- — —

INDEX

APPENDIX A—636 F.2d 1352 (CA 3, 1980)

APPENDIX B—Order Denying Rehearing (CA 3,

REE

APPENDIX D—530 F.2d 266 (CA 3, 1976)

APPENDIX E—212 NLRB 333 (1974) ......... N

APPENDIX F—Decision of Administrative Law

Judge (attached to Board’s Opinion

at 212 NLRB 333) (1973)

APPENDIX G—Order Extending Time For Filing

Petition For Certiorari (June 12,

121a

129a

APPENDIX A

UNITED STATES COURT OF APPEALS

THIRD CIRCUIT

No. 79-2664

THE Dow CHEMICAL COMPANY,

7 Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent,

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Intervenor.

Argued Sept. 15, 1980

Decided Nov. 26 1980

As Amended Dec. 17, 1980 and

Jan. 8, 1981

REHEARING AND REHEARING EN BANC

March 26, 1981

Before GIBBONS, WEIS and SLOVITER, Circuit

Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Dow Chemical Company (Dow) petitions under section

10(f) of the National Labor Relations Act, (the Act) 29

U.S.C. § 160(f), to review an order of the Nationa! Labor

Relations Board issued against it in unfair labor practice

proceedings in which the United Steelworkers of America,

AFL-CIO-CLC (the Union) was the charging party. The

Board has cross-petitioned for enforcement of its Septem-

ber 17, 1979 order, which was issued following a remand

from this court.“ That remand resulted from a petition

for review filed by the Union seeking review of an earlier

Board decision dismissing all its unfair labor practice

charges. United Steelworkers of America, AFL-CIO-CLC

v. NLRB, 530 F.2d 266 (3d Cir.), cert. denied, 429 U.S.

834, 97 S.Ct. 100, 50 L.Ed.2d 100 (1976).

In its original decision the Board had found that a

strike by the Union membership on June 7, 1971, before

completion of the final stage of a five-step grievance pro-

cedure, was a breach of a no-strike clause in the Collec-

tive Bargaining Agreement with Dow, and was not activ-

ity protected by section 7 of the Act, 29 U.S.C. § 157. The

Board also originally held that the strike had been pre-

cipitated by unilateral action by Dow management, un-

authorized by the terms of the Collective Bargaining

Agreement and thus in violation of section 8(a) (5) of

the Act, 29 U.S.C. § 158 (a) (5). Relying on its decision

in Arlan’s Department Store of Michigan, Inc., 133

N.L.R.B. No. 56 (1961), the Board concluded that the

company’s unilateral action was not so serious an unfair

labor practice as to warrant the Union’s abandonment of

contract remedies and resort to a strike in breach of its

no-strike agreement. Thus, it concluded, none of the sub-

sequent company actions in response to the strike were

unfair labor practices.? The Union, petitioning here,

contended in reliance on Mastro Plastics Corp. v. NLRB,

350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956), that

once the company committed an unfair labor practice the

Union was justified in abandoning contract remedies and

resorting to self-help. Thus, it urged, the strike was

lawful protected activity, and all the company’s subse-

The Board’s order is reported at 244 N.L.R.B. No. 129. The

Union was granted leave to intervene in this proceeding.

2 The Board’s original decision issued on June 28, 1974, is re-

ported at 212 N.L.R.B. No. 50.

quent actions in response to it were unfair labor practices

in response to that protected activity.

We “decline[d] the invitation to resolve this case by

simply pigeon-holing it as within the rule of Mas

Plastics or of Arlan’s.” 530 F.2d at 272. Instead we

remanded to the Board to consider whether, in view of the

developments in the law of labor contracts remedies since

the 1956 decision in Mastro Plastics, the Board was cor-

rect in its conclusion that each action taken by the com-

pany in response to a strike in breach of a no-strike

agreement was warranted. Dow sought review by the

Supreme Court, which the Board, accepting our remand,

successfully opposed.*

On remand, the Board apparently reconsidered, hold-

ing instead, on the same record, that the company’s un-

fair labor practice of instituting a unilateral change in

working conditions was a serious unfair labor practice

to which the Mastro Plastics rule of contract interpreta-

tion applied, so that the Union members’ strike was pro-

tected activity. In thus finding that the strike was not

a breach of contract, the Board eliminated the premise

upon which we had acted. It never reached the question

The Board’s memorandum in opposition to Dow’s petition for

certiorari states:

The court of appeals did not hold that the Company’s acts

in this case were necessarily unlawful. It simply remanded

the case to the Board for further consideration in light of Boys

Markets [898 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199] and

other recent developments, stating that the Board had given

insufficient consideration to the Company’s decision not to press

on to arbitration. Although the Board is prepared to defend

its original decision should the Court grant the petition in

this case, the Board accepted the remand rather than seek

review by this Court. The Board will reconsider its position,

as the court of appeals has directed. Review of this case would

be appropriate, if at all, only after that process has been

completed. (Footnotes omitted).

whether any of the company’s actions, albeit in response

to a strike in breach of the no-strike clause, might have

been unfair labor practices. Thus we are now presented

with quite a different case than the one which was argued

in September 1975. We grant Dow’s petition for review

and deny the Board’s petition for enforcement.

Facts, Charges, and Initial Decision

Dow operates a plant at Allyn’s Point, Ledyard, Con-

necticut, where it manufactures plastics and related

products. From 1954 until August 9, 1971 it recognized

the Union as the bargaining representative of the pro-

duction employees at the plant. Prior to May of 1971 the

plant’s latex department was on a seven day a week

production schedule. Sixteen latex department employees

worked a schedule of seven days on the job and two days

off, with rotating shift assignments, while the remaining

three worked a regular five day week. In mid-May Dow

decided, for economic reasons related to utility costs, to

put all latex department employees on a regular five day

schedule, with a two day shut down. Dow believed it had

the right to do so under the Management Rights clause

of the Collective Bargaining Agreement effective from

February 23, 1970 through February 26, 1973. That

clause authorized it to determine “schedules of produc-

tion.” When the Union was notified of the proposed

change, it took the position that the change was not a

matter of management prerogatives under the contract,

but a change in working conditions subject to collective

bargaining. Dow’s personnel manager indicated that

while he was willing to discuss implementation of the

change he did not consider the change itself to be a

matter for negotiation. The Union thereupon filed a

grievance.

The contract contains a five-step grievance procedure.

It also provides that if the grievance is unresolved after

the final step it “may be submitted to any arbitrator or a

board of arbitration provided the bargaining committees

representing the Union and the Company each furnish

written consent to utilize arbitration.” * Grievance pro-

cedures are mandatory, while arbitration requires mu-

tual written consent. Grievance settlements may be retro-

active.“ The contract also provides:

7.7 Strikes and Lock Outs.

The Union will not cause or engage in or authorize

its members to engage in any strike against the Com-

pany, nor will any members of the Union take part

in any other strike or stoppage or curtailment of

work or restriction of production or interference with

production of the Company, unless and until all of

the Bargaining and Grievance Procedures outlined in

this agreement have been exhausted. The Company

will not cause or sanction any lock-outs unless and

until all of the Bargaining and Grievance Procedures

as outlined in this Agreement have been exhausted.

The Bargaining and Grievance Procedure in this Arti-

cle has not been exhausted until all items, a, b, and c,

have been carried out as set forth below:

* The arbitration clause is quoted in full in our prior opinion.

530 F.2d at 269.

The contract provides

7.5 Retroactivity of Settlements.

The settlement of any grievance or complaint involving an

undisputed error in pay shall be retroactive to the date the

error occurred but not prior to the date of this agreement.

Retroactivity of other grievances shall be the dates agreed to

by the Grievance Committees of the Union and the Company.

However, in no case shal) such retroactive date be earlier than

the date of the first written report to a representative of the

Company or later than the date of the written report to the

Superintendent of the department.

(a) The Grievance Procedure has been used and

completed as set forth in Section 7.1.

(b) The Grievance Procedure has been processed

through the last Step in Section 7.1 and the Union

or the Company has requested in writing, within 30

days to proceed to arbitration as per Section 7.2.

(e) The Arbitration Procedure in Section 7.2 has

been completed or the Union has been denied the

right to the use of arbitration.

The plain meaning of this clause is that the union under-

took a no-strike obligation lasting until at least thirty

days after the completion of the fifth and final griev-

ance step.

It is undisputed that the parties completed the first

four steps of the grievance procedures; the Step 4 meet-

ing took place on June 3, 1971 but failed to resolve the

grievance. At that meeting a union representative orally

suggested immediate arbitration, and the company re-

sponded by urging the Union to pursue the contract

grievance machinery. The contract provides that if a

satisfactory solution is not arrived at in Step 4 the Cen-

pany shall, on written request by the Union, arrange for

the unresolved case to be reviewed within ten days by

the Midland Division Manager in charge of the plant.

The change to five day operation was scheduled to go

into effect on Monday, June 7, 1971. On Friday, June 4,

there was a conversation between a representative of the

Union and Dow’s industrial relations manager, but no

oral or written request for a Step 5 meeting was made.

Indeed, no request for a Step 5 grievance meeting was

made by the Union either within the ten days permitted

by the contract or at any time thereafter. The day the

schedule change was to be put into effect, Monday, June

7, 1971, the production workers at the plant struck.

Dow’s plant manager immediately advised the Union

that it considered the strike a violation of the contract,

and threatened legal action. The next day he advised the

Union officials that a failure to promote and advise the

return of the employees subjected the officials to dis-

ciplinary action including discharge. On June 11, he

wrote o the employees, advising them that Dow consid-

ered the strike to be illegal. He continued:

in fact, the very dispute that the strike is over is

part way through the grievance procedure. I think

from an employee point of view that the grievance

procedure and arbitration clause that we have at

Allyn’s Point is a good one. It allows the use of

arbitration and determination as to which of the

parties is right by an arbitrator with no affiliation

with the Company or Union.

I sincerely feel that the resolution to the problem

lies in the grievance and arbitration procedure and

ask you to encourage your Union leadership to re-

tun to the legal and in my opinion morally right

means of solving this problem.“

The letter also indicated that the strike could result in

“legal remedies, disciplinary action, and even discharge.“

When this letter was sent on June 11, 1971, a Union

request for a Step 5 grievance would still have been

timely. The strike continued. Dow sought in the Superior

Court of Connecticut, and on June 29, 1971 obtained, a

temporary injunction against unlawful picketing. On

July 23, after having written two additional letters

advising the employees that it considered the strike il-

legal, Dow advised them that it would begin hiring re-

placements on July 29. Meanwhile it requested the assis-

tance of the Connecticut state mediation service, and, on

July 26, 1971, advised the State Labor Commissioner

Exhibit M. 397a.

T Id.

that it was willing to submit the labor dispute resulting

in the strike to arbitration or mediation. The Union was

made aware of Dow’s willingness to arbitrate or mediate

when, on August 12, 1971, Dow amended its state court

complaint to allege:

On July 26, the Plaintiff notified the Labor Com-

missioner of the State of Connecticut in writing of

its willingness to submit the labor dispute resulting

in said strike or walkout to arbitration or media-

tion.

Despite notice of Dow’s willingness to arbitrate even

after expiration of the time limits specified in the con-

tract, the Union continued the strike. On August 9, 1971,

Dow notified the Union that because of the breach of the

Collective Bargaining Agreement the contract was can-

celled. Shortly thereafter the company terminated the

employment of the striking employees. Dow also filed a

complaint in the United States District Court, on August

20, 1971, charging the Union with breach of contract and

seeking money damages. When a majority of the new

or returned employees petitioned Dow, contending that

they no longer wished to be represented by the local affi-

liated with the Union, the company, on August 28, 1971,

informed the Union that its bargaining representative

status would no longer be recognized.

While the strike continued, the Union filed in June of

1971 the first of a series of unfair labor practice charges,

on which complaints were issued, all of which were con-

solidated for hearing before an administrative law judge.

At that hearing the positions of the Union as the charg-

ing party and that of the General Counsel diverged. The

Union’s position was, and has remained, that by uni-

laterally announcing and implementing a change in the

operating schedule, the company not only breached the

collective bargaining agreement, but also committed the

unfair labor practice of refusing to bargain with the

designated representative of the employees, in violation

of section 8 (a) (1) and (5) of the Act, 29 U.S.C. § 158

(a) (1), (5). The Union contends that the strike was

from the outset an unfair labor practice strike, which

was not a violation of the contract. See Mastro Plastics

Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed.

309 (1956). This being so, the Union argues, all the

strike activity was legal protected activity. Thus the com-

pany’s termination of striking employees, cancellation of

the contract, and withdrawal of recognition were in re-

taliation against protected activity, and in violation of

section 8(a) (1), (3), and (5) of the Act. The General

Counsel, on the other hand, did not contend that the

initial strike was an unfair labor practice strike falling

outside the coverage of the no-strike agreement. He con-

tended that the company’s action in announcing the uni-

lateral change was both a breach of contract and a re-

fusal to bargain in violation of section 8 (a) (5), but that

the strike nevertheless violated the contract. Focusing

on the company’s later actions in response to the strike,

the General Counsel contended that the termination of

striking employees, the rescission of the contract, and

the withdrawal of recognition were separate unfair labor

practices which converted an economic strike in breach

of the collective bargaining agreement into an unfair

labor practice strike.

The Board, adopting the decision and recommended

order of the Administrative Law Judge, dismissed the

charges. It held:

(1) that the unilateral announcement and imple-

mentation of a work schedule change was a re-

fusal to bargain and an unfair labor practice

as to which no remedy was warranted in the

circumstances of the case;

(2) that the strike was a breach of the collective

bargaining agreement because the unfair labor

10a

practice and the company’s breach of contract

which precipitated it was not so serious as to

take it outside the covenant not to strike; and

(3) that since the strike was illegal the company’s

reactions to unprotected activity were not unfair

labor practices.

Member Fanning dissented solely on the ground that the

Board’s interpretation in Arlan’s Department Store of

Michigan, Inc., 133 N.L.R.B. No. 56 (1961) of the Su-

preme Court’s Mastro Plastics decision was in error. He

would have held that any employer unfair labor practice

falls outside the coverage of a no-strike covenant. Thus

no member of the Board adopted the General Counsel’s

position that what started out as an illegal economic

strike was converted into an unfair labor practice strike

by Dow’s subsequent actions.

When the Union, as charging party, petitioned for

review to this court it continued to espouse the theory

that its strike was legal from the outset. The General

Counsel, this time wearing the hat of counsel for the

Board rather than of prosecutor of unfair labor practices,

urged that the order dismissing the charges in their en-

tirety be enforced. This court, acting more or less sua

sponte, requested an expression of the Board’s views on

the question whether, assuming the strike was in fact a

breach of contract, there wasn’t something to be said for

the General Counsel’s original position that the subse-

quent company actions might nevertheless have inde-

pendent significance as unfair labor practices. In essence

we were asking whether, in the opinion of the Board, the

law of labor injunctions as evolved from Textile Workers

v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d

972 (1957) through Boys Markets, Inc. v. Retail Clerks

Union, 389 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199

(1970) to Gateway Coal Co. v. United Mine Workers,

414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974), did

lla

not suggest a reconsideration of the rule of Marathon

Electric Mfg. Co., 106 N.L.R.B. 1171 (1953), enforced

sub nom. United Electrical Radio & Machine Workers v.

NLRB, 223 F.2d 338 (D.C.Cir. 1955), cert. denied, 350

U.S. 981, 76 S.Ct. 466, 100 L.Ed. 850 (1956). The Mara-

thon Electric rule is that the unilateral cancellation of a

collective bargaining agreement following a breach of an

applicable no-strike agreement, is not an employer unfair

labor practice. Although we spoke of the Mastro Plas-

tics/Arlan’s formulation with perhaps less precision than

we might have, 530 F.2d at 280, it is clear that we were

proceeding on the assumption that the strike was a

material breach of contract, and that our primary inter-

est in remanding was to determine whether, assuming

such a breach, subsequent company actions could be con-

sidered unlawfy! retaliations against protected activities.

Had we felt that the strike was, as the Union urged, a

legal one not even covered by the no-strike clause of the

collective bargaining agreement, our opinion obviously

would have been written quite differently, for in that

event the conclusion that all the subsequent company

actions complained of were illegal retaliations for pro-

tected activity would have been inescapable.

II.

Proceedings On Remand

When the Board reconsidered the case following our

remand it was decided upon entirely different grounds.

Chairman Fanning, with members Jenkins, Murphy, and

Truesdale, held that Dow’s unilateral announcement and

implementation of the work schedule change was a seri-

ous unfair labor practice undermining the status of the

Union, to which the no-strike clause did not apply. Thus

all of the Union’s activity after June 7, 1971 was con-

sidered a protected unfair labor practice strike, and all

of the company’s responsive actions retaliations for en-

12a

gaging in protected activity. The Board, therefore, eight

years after the events in issue, ordered reinstatement of

the discharged strikers and recognition of the Union as

the exclusive bargaining representative for the plant

employees. Member Penello dissented, and member Trues-

dale wrote separately. From the separate opinions three

positions emerge. Chairman Fanning and member Jen-

kins, relying on Mastro Plastics, would hold that when-

ever an employer committed an unfair labor practice,

even one which depended, as here, on an interpretation

of the contract, and even one for which there was an

unexhausted contractual remedy, the no-strike clause

should not apply, and strike action is lawful. Members

Murphy, Penello, and Truesdale agree that Mastro Plas-

tics does not require that result, and adhere to the Arlan’s

rule that only certain serious unfair labor practices, go-

ing to the very representative status of the collective

bargaining representative, should be held to fall outside

a no-strike cause. Member Penello would hold that the

employer’s conduct was not serious and in derogation of

the Union’s representative status, while the other four

members concluded, contrary to the Board’s unanimous

holding in 1974, that it was. Thus the Board had no

occasion to address the issue which was our chief con-

cern in remanding—whether, assuming the strike was in

breach of the contract, the company’s reactions to it had

independent significance as unfair labor practices. In the

present posture of the case the chief issue before us is

whether the Board erred in concluding that Mastro Plas-

tics warrants the result which the Board reached.

III.

The Mastro Plastics Rule

There is a degree of confusion evident in the briefs,

and in the several Board opinions on remand, engendered

perhaps by our earlier opinion, over just what the Mastro

13a

Plastics rule is. Is it a rule of contract interpretation,

looking to the actual intention of the draftsmen of the

no-strike clause, or a substantive rule of the law of un-

fair labor practices? If it is the former, the courts owe no

particular deference to the Board, for by virtue of sec-

tion 301 of the Labor Management Relations Act, 29

U.S.C. § 185, they, or designated arbitral tribunals are

primarily responsible for contract interpretation. If it is

the latter, the Board’s view is entitled to the usual regard

given to the expertise of specialized administrative agen-

cies. Had we made clear in our prior opinion our view

as to what Mastro Plastics stands for, the Board’s re-

sponse to our remand would have been facilitated. We

turn to that task.

Mastro Plastics was before the Supreme Court on a

petition by an employer to review a Board order growing

out of efforts by an employer to influence the outcome of

a contested representation dispute between rival unions.

A supporter of the unions with which the employer had a

collective bargaining agreement was discharged for re-

fusing to transfer his allegiance to a different union

favored by the employer, and a strike ensued. The em-

ployer adamantly refused to reinstate the discharged em-

ployee and continued its unlawful support for the rival

union and the strike continued for several months. The

contract contained an arbitration provision to which the

union could have referred the discharge grievance, but

which probably did not cover the unlawful support issue.

It also contained a broad no-strike undertaking.* When

»The contract provided:

The Union agrees that during the term of this agreement.

there shall be no interference of any kind with the operations

of the Employers, or any interruption or slackening of produc-

tion of work by any of its members. The Union further agrees

to refrain from engaging in any work stoppage during the

term of this agreement.

350 U.S. at 281, 76 S.Ct. at 357.

l4a

the union with which the employer had a contract filed

unfair labor practices charges, including among others

the discharge of 76 strikers, the company defended the

discharges before the Board on two theories. It urged

that the strike violated the contract, and that the strike

was an unfair labor practice in violation of section

8(d)(4) of the Act.“ The Board held that the no-strike

clause was inapplicable to a strike over unlawful assist-

ance to a rival union, and that the strike was not pro-

scribed as an unfair labor practice by section 8(d) (4).

The Supreme Court agreed unanimously with the Board’s

interpretation of the contract. The Court also upheld the

Board’s interpretation of section 8(d)(4), over three

dissents. See 350 U.S. at 289, 76 S.Ct. at 361.

The contract issue in Mastro Plastics is our concern,

since Dow did not urge before the Board that the strike

was a section 8(d) (4) violation. That part of the Court’s

opinion dealing with the contract issue establishes the

parameters of our decisional responsibility. The Court

wrote:

Petitioners argue that the words “any strike”

leave no room for interpretation and necessarily in-

clude all strikes, even those against unlawful prac-

tices destructive of the foundation on which collective

bargaining must rest. We disagree. We believe that

the contract, taken as a whole, deals solely with the

economic relationships between the employers and

their employees. It is a typical collective-bargaining

contract dealing with terms of employment and the

normal operations of the plant. It is for one year

and assumes the existence of a lawfully designated

bargaining representative. Its strike and lockout

* See 29 U.S.C. § 158(d)(4). Section 8(d)(4) makes it an un-

fair labor practice to resort to a strike or lockout to affect a change

in a collective bargaining contract during its term without first

giving sixty days notice.

15a

clauses are natural adjuncts of an operating policy

aimed at avoiding interruptions of production

prompted by efforts to change existing economic

relationships. The main function of arbitration un-

der the contract is to provide a mechanism for avoid-

ing similar stoppages due to disputes over the mean-

ing and application of the various contractual pro-

visions.

To adopt petitioners’ all-inclusive interpretation of

the clause is quite a different matter. That interpre-

tation would eliminate, for the whole year, the em-

ployees’ right to strike, even if petitioners, by coer-

cion, ousted the employees’ lawful bargaining repre-

sentative and, by threats of discharge, caused the

employees to sign membership cards in a new union.

Whatever may be said of the legality of such a

waiver when explicitly stated, there is no adequate

basis for implying its existence without a more com-

pelling expression of it than appears in § 5 of this

contract.

350 U.S. at 281-83, 76 S.Ct. at 357-58 (footnote omitted).

It is plain that the Courts’ holding determined nothing

more than the intention of the parties to a particular

agreement. Mastro Plastics can be read for the proposi-

tion that, as a rule of contract interpretation, a general

no-strike clause will not be read to cover strikes in re-

sistance to unfair labor practices aimed at supplanting

the bargaining representative chosen by the employees.

As the Court elsewhere explained:

[The] clause expresses concern for the continued

operation of the plant and has a natural applica-

tion to strikes and work stoppages involving the

subject matter of the contract.

Id. at 281, 76 S.Ct. 357 (emphasis added).

The Mastro Plastics Court speculated about the legality

of a waiver of the right to strike over an attempted

ouster of a chosen bargaining representative, but it did

not suggest that a union could lawfully bargain away

the employees’ right to freely choose their bargaining

representative. An agreement curtailing the employees’

free choice would be illegal, and a clause deferring the

question of its existence to an arbitral forum would be

equally so. No arbitrator could ratify, as an interpreta-

tion of the contract, the Mastro Plastics employer’s effort

to choose the employees’ bargaining representative. Thus

the Court’s interpretation that the no-strike clause was

coterminous with what could lawfully be agreed to by

contract makes perfectly good sense as a presumption of

party intention.

Our case, however, because of the nature of the unfair

labor practice alleged, presents a problem quite different

from that with which Mastro Plastics dealt. A contract

could lawfully relegate solely to management prerogative

the disputed matter of a shift change from a seven to a

five day work week, and if the Dow contract did so there

would have been no section 8(a) (5) refusal to bargain.

Thus we are dealing with that unique category of unfair

labor practice the very existence of which depends upon

competing interpretations of a contract, either one of

which would be valid. We are well aware of the fre-

quency with which disputes arise over management pre-

rogative clauses, and thus over potential section 8(a) (5)

violations for refusals to bargain. Unlike disputes con-

cerning employer interference with employee choice of

bargaining representative, such disputes can lawfully be

and frequently are resolved, finally, by arbitration.““

In Arlan’s Department Store the Board refined Mastro

Plastics. The walkout in Arlan’s was, like that in Mastro

Plastics, precipitated by a discharge of a single employee

10 That same problem has spawned the Board’s Spielberg-Collyer

rule. See NLRB v. Pincus Bros., Inc.-Maxwell, 620 F.2d 367, 384

(3d Cir. 1980), (Gibbons, J., dissenting), and cases there discussed.

17a

for engaging in protected activity, and the discharge was

both grievable and arbitrable. The Board majority de-

clined to defer to arbitration, holding that the discharge

of the single employee was an unfair labor practice and

ordering reinstatement. But it declined to find that the

consequent strike fell outside the scope of the broad no-

strike agreement, and thus held that the discharge of 39

striking employees was not an unfair labor practice.

Member Fanning dissented from the latter holding con-

tending, as he has ever since that under Mastro Plastics

no unfair labor practice strike is subject to a general no-

strike agreement:

In my opinion, the clear import of this section of

the [Mastro Plastics] opinion is that a general no-

strike clause in a collective-bargaining agreement for

the term of the agreement bars only the right to

strike over the “subject matter of the contract”

which “deals solely with the economic relationship

between the employers and their employees,” a so-

called “economic” strike, and does not bar a strike

to protest unfair labor practices in the absence of

an express waiver to that effect because such a

strike is outside the scope of the contract.

133 N.L.R.B. at 813 (emphasis in original) (footnote

omitted). This position is consistent with that taken by

members Fanning and Jenkins on Board deferral to con-

tract remedies,” a position having the merit of preserv-

ing the Board’s authority to vindicate statutory as dis-

tinguished from contract rights. However, where the

issue is not Board power to disregard a contract remedy

and grant relief against unfair labor practices, but the

1! That sensible result may be inconsistent with NLRB v. Pincus

Bros., Inc.-Mazwell, 620 F.2d 367 (3d Cir. 1980).

12 See General American Transportation Corp., 228 N.L.R.B.

808, 809 (1977).

18a

intention of the parties in a no-strike clause, the case

for the Fanning-Jenkins canon of construction is consid-

erably weaker. Where the unfair labor practice depends,

as in this case, entirely on how the contract is inter-

preted, and involves a dispute over an economic issue—

overtime pay acceptance of the Fanning-Jenkins canon

of construction flies in the face of any rational intention

likely to have been entertained by those who negotiated

the clause. It is one thing to urge, as I have urged in

the Pincus Bros. dissent, that contract and Board reme-

dies coexist. It is quite another to say that a no-strike

clause is presumptively inapplicable in every case in

which the Board may have unfair labor practice juris-

diction.

Thus we reject the extreme application of the Mastro

Plastics rule of construction as to the coverage of a

general no-strike clause urged by Chairman Fanning and

member Jenkins. We turn to the position on which the

Board order rests, that in this case the Arlan’s gloss on

Mastro Plastics governs. As noted above, Arlan’s involved

a strike precipitated by a discharge for engaging in pro-

tected activity, the right to participate in such protected

activity being a statutory right which may not be bar-

gained away. The strike in the case before us, however,

was over conflicting interpretations of a contract, either

of which would be valid if agreed to. In 1971 there were

two avenues open to the Union for the resolution of that

dispute. It could have pursued contract grievance reme-

dies and asked for arbitration, and it could, if it felt the

employer’s construction was so totally unreasonable as to

amount to a refusal to bargain over a plainly bargain-

able issue, have filed, as it did, a section 8 (a) (5) unfair

labor practice charge.“ Neither course would in any way

have undermined its status as exclusive bargaining rep-

resentative, for each course could result in retroactive

13 But see Pincus Bros., Inc.-Mar well, supra, note 11.

19a

economic relief. It is simply unrealistic to suggest that

the no-strike clause quoted at page 1355 supra was not

intended to apply to a dispute over the meaning of the

contract. The Board’s revised order, based on a finding

that the strike was not a breach of the contract, can not

be sustained as an application of the rule of contract

interpretation as to the coverage of a non-strike provi-

sion announced in Mastro Plastics. Whatever may be

said about applications of that rule to strikes over unfair

labor practices which are, as in Arlan’s, independent of

contract disputes, it simply does not apply here.

IV.

Other Approaches

The question remains whether aside from the Mastro

Plastics rule of contract interpretation some substantive

rule of labor law supports the Board’s result. One tack

would be to say that bargaining away the right to strike

over any unfair labor practice results in a substantively

illegal contract provision; that any unfair labor practice

strike must as a matter of law remain protected activ-

ity. There are, however, insurmountable barriers to the

announcement of such a rule in tuis case. Whatever may

be said for such a rule when applied to unfair labor

practices such as interference in the choice of a bargain-

ing representative as in Mastro Plastics, its application

to section 8 (a) (5) unfair labor practices the existence

of which depends upon a disputed contract interpretation

would have disastrous consequences for arbitration as a

preferred means for eliminating industrial strife. Obvi-

onsly each resort to the courts for a Boys Markets in-

junction pending arbitration of such contract interpre-

tations would be resisted by the contention that the em-

ployer’s unreasonable construction was a refusal to bar-

gain, an unfair labor practice, and outside the scope of

the no-strike undertaking. Resolution of that contention

20a

would involve the court in decision of the very issue for

which the parties selected an arbitral forum.

Another approach would be, as we tentatively sug-

gested in our first opinion, to overrule Marathon Electric

Mfg. Co., 106 N.L.R.B. 1171 (1953), enforced sub nom.

United Electrical Radio & Machine Workers v. NLRB,

223 F.2d 338 (D.C. Cir. 1955), cert. denied, 350 U.S. 981,

76 S.Ct. 466, 100 L.Ed. 850 (1956). Marathon Electric,

as affirmed by the District of Columbia Circuit, held that

a material breach of contract by a union warranted an

employer’s unilateral cancellation of the entire agreement.

Two aspects of that approach must be considered. The

first is whether the discharge of strikers was proper.

The second is whether the cancellation of the contract

was proper. With respect to the first aspect, prohibiting

the employer from discharging the strikers raises ex-

treme practical consequences. As we noted in our first

opinion, no Boys Markets remedy was available to the

employer here because the arbitration provision was not

coextensive with the no-strike clause. 530 F.2d at 277.

Dow did seek state court injunctive relief against unlaw-

ful picketing. It then resorted to the only weapon im-

mediately available to it, operating the plant with new

employees. A rule protecting illegally striking employees’

employment status would effectively prevent the employ-

er’s resort to new hires. Moreover, the Supreme Court in

Mastro Plastics expressly acknowledged that union mem-

bers violating applicable no-strike clauses lost their status

as employees. 350 U.S. at 280, 283, 76 S.Ct. at 356, 358.

With respect to the second aspect, the termination of

the contract, the same considerations intrude. Where,

as here, Boys Markets relief is unavailable, the remain-

ing employer option of operating the plant with per-

manent new hires would be seriously undermined if the

employer were unable to bargain collectively with those

new employees. Thus the Marathon Electric doctrine of

21a

material breach of labor contracts continues to fill an

important need in the law of labor contracts.

A third approach, which we had in mind at the time

of our initial decision, might have made injunctive relief

available to employers situated as was Dow a realistic

alternative to operating a plant with new hires. We

suggested that the evolution of the law under section 301

of the Labor Management Relations Act, 29 U.S.C. § 185,

would be in the direction of broader availability of in-

junctive relief for the enforcement of no-strike clavses.

The Court’s decision in Gateway Coal Co. v. UMW, 414

U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974), seemed to

offer the promise of such an evolution. Since our initial

decision, however, the Court in Buffalo Forge Co. v.

Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d

1022 (1976), overruling our decisions in NAPA Pitts-

burgh, Inc. v. Automatic Chauffeurs, 502 F.2d 321 (3d

Cir.) (en banc), cert. denied, 419 U.S. 1049, 95 S.Ct.

625, 42 L.Ed.2d 644 (1974), and Island Creek Coal Co.

v. UMW, 507 F.2d 650 (3d Cir.), cert. denied, 423 U.S.

877, 96 S.Ct. 150, 46 L.Ed.2d 110 (1975), has effectively

eliminated that possibility in cases such as this where

the no-strike clause and the arbitration clause are not

coextensive.

Finally there remains the question on which we sought,

and did not receive, enlightenment from the Board;

whether independent of the Union’s material breach of

contract some of Dow’s post-strike activities were unfair

labor practices. The Union urges that we should once

more remand, forcing the Board to give us its views. We

conclude for several reasons that another remand would

be inappropriate. First, we have undertaken a careful

review of the record, and we conclude that the discharge

of strikers and the termination of the contract could not

be found to be unfair labor practices. The strike was

a material breach of contract, no Boys Markets injunc-

22a

tion was available, and, unless the employer were to sub-

mit to ongoing economic coercion, new hires to operate the

plant were a necessity. Permanent replacement of eco-

nomic strikers and termination of the contract are corol-

laries to that necessity. The termination of the Union’s

bargaining relationship is a closer question, since it more

directly relates to the non-contract issue of interference

with choice of a bargaining representative. But there is

evidence in the record of loss of majority status among

the new hires, and our conclusion that termination of

the strikers was not an unfair labor practice precludes

reinstatement of the former Union adherents. Thus

Union adherents were not in the majority. Perhaps most

important of all, there has been the passage of nine years

since the events in issue transpired. A remand solely

for consideration of a bargaining order at this late stage

in the history of the Allyn’s Point plant would not ad-

vance the cause of free choice in the selection of a bar-

gaining representative.

CONCLUSION

Two members of this panel were members of the

panel which considered the case when it was first before

us. With the benefit of hindsight we offer our mea culpa

to the Board for a remand in a case which on considered

reflection does not seem to have been an ideal vehicle

for the exploration of all the issues in the interrelation-

ship between the law of unfair labor practices and that

of contract remedies which we posed. Dow’s petition for

review will be granted, the Board’s petition for enforce-

ment denied, and the Board’s order set aside.

WEIS, Circuit Judge, dissenting.

In our previous opinion in this case, we emphasized

the importance of resolving industrial disputes peace-

23a

fully, and pointed to the favorable climate generated by

Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235,

90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), Gateway Coal Co.

v. UMW, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583

(1974), and this court’s decisional law following that trend,

e. g., Island Creek Coal Co. v. UMW, 507 F.2d 650 (3d

Cir)., cert. denied, 423 U.S. 877, 96 S.Ct. 150, 46 L.Ed.2d

110 (1975); NAPA Pittsburgh, Inc. v. Automotive

Chauffeurs Local 926, 502 F.2d 321 (3d Cir.) (in banc),

cert. denied, 419 U.S. 1049, 95 S.Ct. 625, 42 L.Ed.2d 644

(1974). Since that time, however, Buffalo Forge Co. v.

Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed. 2d

2 (1976), has narrowed the legal remedies available

tu federal courts in labor-management disputes.

Nevertheless, it seems to me that the point we made

in Dow I, 530 F.2d 266 (3d Cir.), cert. denied, 429 U.S.

834, 97 S.Ct. 100, 50 L.Ed.2d 100 (1976), is still valid

and represents an enlightened view on the resolution of

these disputes. Our position was simply that stability in

industrial relations is enhanced by the continuance of a

collective bargaining agreement, and therefore, its un-

necessary termination should be discouraged. Thus, we

thought that even though the strike was illegal, the

Board should consider whether termination of the con-

tract was justified when the company had not exhausted

the available grievance procedures or its options to pro-

ceed in court. Despite our opinion, the Board did not

explore the ramifications of our suggestion and, instead,

on remand decided the case on a different, and, as the

majority explains, erroneous basis.

The reluctance of the Board to seriously consider our

more civilized approach to settling labor-management dif-

ferences is regrettable. It is disturbing that given the

opportunity, the Board failed to take a stand against the

unnecessary “tooth and claw” industrial warfare which

we decried.

24a

Dow I’s p. losophy is that both labor and management

should be required to exhaust every possible peaceful

method through grievance proceedings arbitration, ad-

ministrative action, and court proceedings before being

permitted to resort to self-help which necessarily incon-

veniences the public at large. Because the Board did not

measure the parties’ actions by that standard, I would

remand once again.

25a

UNITED STATES COURT OF APPEALS

FOh THE THIRD CIRCUIT

No. 79-2664

THE Dow CHEMICAL COMPANY,

7 Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Intervenor.

JUDGMENT

Before: GIBBONS, WEIS and SLOVITER, Circuit

Judges.

THIS CAUSE came on to be heard upon a petition

filed by The Dow Chemical Company, to review an sup-

plemental order of the National Labor Relations Board

issued against said Petitioner, its officers, agents, succes-

sors, and assigns on September 17, 1979, and upon a

cross-application filed by the National Labor Relations

Board to enforce said Order. The Court heard argument

of respective counsel on September 15, 1980, and has con-

sidered the briefs and transcript of record filed in this

cause. On November 26, 1980, the Court handed down

its opinion granting petition for review, denying the

Board’s application for enforcement and setting aside the

Board’s Order. In conformity therewith it is hereby

ORDERED AND ADJUDGED by the United States

Court of Appeals for the Third Circuit that the said

order of the National Labor Relations directed against

The Dow. Chemical Company, its officers, agents, succes-

sors, and assigns, be and it hereby is set aside.

IT IS FURTHER ORDERED that costs shall be taxed

against the Respondent.

BY THE COURT

/s/ John Gibbons

Circuit Judge

Costs taxed in favor of

petitioner as follows:

1 $1,198.88

Appendix ..... 796.88

Reply Brief ... 618.20

Clerk’s fees ... 50.00

TOTAL ....$2,663.96

DATED: January 26, 1981

Certified as a true copy and issued in lieu of a formal

mandate on April 15, 1981.

Test: SALLY MRvOS

Clerk, United States Court of Appeals

for the Third Circuit

27a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2664

THE Dow CHEMICAL COMPANY,

0 Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Intervenor

(Board Nos. 1-CA-7736; 1-CA-7821, and 1-CA-7873)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH, HIG-

GINBOTHAM and SLOVITER, Circuit Judges

The petition for rehearing filed by Intervenor in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci€ion

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition

for rehearing is denied.

By the Court,

/s/ John Gibbons

JOHN GIBBONS

Judge

Dated: March 26, 1981

APPENDIX C

244 NLRB No. 129 FJPMT

D—5149

Ledyard, CT

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Cases 1—CA—7736 and

1—CA—7821

THE Dow CHEMICAL COMPANY

and

UNITED STEELWORKERS OF AMERICA, AFL—CIO—CLC

(formerly International Union of District 50,

Allied and Technical Workers of the

United States and Canada)

and

Case 1—CA—7873

WILLIAM J. KEITH, an Individual

SUPPLEMENTAL DECISION AND ORDER

On June 28, 1974, the National Labor Relations Board

issued its Decision and Order in the above-entitled pro-

ceeding,’ adopting the Decision of the Administrative

Law Judge and finding that the Respondent had engaged

in and was engaging in unfair labor practices in viola-

tion of Section 8 (a) (5) and (1) of the Act by unilat-

erally announcing and scheduling the change in the work

schedule of the employees in its latex department from a

7-days-on-and-2-days-off workweek to a 5-days-on-and-2-

days-off workweek, since such change in the work schedule

of the employees was not sanctioned by the contract.

However, the Board also adopted the Administrative Law

1212 NLRB 333 (then-Member Fanning dissenting in part).

29a

Judge’s finding that the resulting strike to protest the

Respondent’s unilateral action was not in accordance with

the provisions of the contract and was unprotected; the

Respondent lawfully rescinded the contract since it was

the United Steelworkers of America, hereinafter referred

to as the Union, and not the Respondent who failed to

comply with the grievance procedure of the contract;

the strike was called on the day the schedule change was

to take effect and followed the completion of four steps

of a five-step grievance procedure, and was unprotected

from its inception; the Respondent did not violate Sec-

tion 8(a)(3) and (1) by terminating the striking em-

ployees; and the Respondent did not violate Section

8(a)(5) of the Act by rescinding the contract on Au-

gust 9, 1971, nor did it violate the Act by withholding

its recognition of the Union on August 28, 1971. The

Board found that no cease-and-desist order was war-

ranted and dismissed the complaint.

Therefore, on January 8, 1976, the Court of Appeals

for the Third Circuit handed down its opinion in this

case.“ The court granted the petition to review the Order

of the Board, denied the Board’s cross-application for

enforcement of its Order, and remanded the case— with-

out disturbing the 8 (a) (5 and (1) finding based on

unilateral change of work schedule—so that the Board

might reconsider its evaluation of other aspects of the

case in the light of the Respondent’s failure to seek

peaceful resolution through the grievance procedure and

the arbitral forum. The court noted that the major ques-

tion in the petition for review was whether the Board

should have considered the effect of Boys Markets, Inc.

v. Retail Clerks Union, Local 770,° and the fundamental

developments in national labor policy since the issuance

2530 F.2d 266.

398 U.S. 235 (1970).

30a

of “the older rules” of Mastro Plastics Corp. v. N. L. R. B.,

and Arlan’s Department Store of Michigan Inc., relied

upon by the Administrative Law Judge and affirmed by

the Board majority in its Decision.

On May 13, 1976, the Board advised the parties that

they might submit statements of position with respect

to the issues raised by the remand. Subsequently, the

Respondent petitioned the Supreme Court for a writ of

certiorari. The Board therefore advised the parties that

it would suspend the time for filing statements of posi-

tion until after the Supreme Court ruled in the matter.

On October 4, 1976, the Supreme Court denied the Re-

spondent’s petition. On December 9, 1976, the Board

again invited the parties to state their positions with

respect to the issues raised by the remand of the court

of appeals. Responses were filed by the Respondent and

United Steelworkers of America, AFL-CIO.

The Board, having accepted the remand, respectfully

recognizes the above-mentioned court opinion as a bind-

ing guide in its reconsideration, subject, of course, to

later pronouncements by the Supreme Court, as in Buf-

falo Forge, discussed below.

The Respondent contends that, after reconsidering this

case in light of the authorities and policies discussed in

the court of appeals’ opinion, the Board properly can and

should reaffirm its original Order dismissing the com-

plaint in its entirety. It is the Respondent’s view that

only after trying by every means which appeared feasible

350 U.S. 270 (1956).

5183 NLRB 802 (1961) (then-Member Fanning dissenting in

part).

* Dow Chemical Company v. United Steelworkers of America,

AFL-CIO-CLC, 429 U.S. 834.

7 Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO,

428 U.S. 397 (1976).

31a

to get the Union to agree to settle the dispute through

peaceful procedures did it turn to self-help measures.

The Union contends that the strike was a protected

strike from its inception and, in addition, that reseission

was such a massive unfair labor practice that it surely

converted the strike to protected status thereafter.“

Thus, it contends that the Respondent violated Seetion

8 (a) (1), (3), and (5) by rescinding the collective-

bargaining agreement, discharging the striking employ-

ees, and withdrawing recognition from the Union. We

find merit in the Union’s contention.

The court of appeals remanded the case guided

by jurisprudential guideposts in recent Supreme Court

pronouncements“ favoring resolution of labor disputes by

arbitration, as discussed later in this Decision. The court

was also guided, in questioning the Board’s dismissal,

by considerations of prudence based on its doubt that the

Board’s resort to the “Mastro Plastics/Arlan’s formula”

furthered the cause of industrial peace. It viewed that

formula as setting up an unworkable distinction between

serious and nonserious employer unfair labor practices,

providing a union no helpful criteria on whether an un-

fair labor practice strike would be protected or unpro-

tected in cases where the union had made a general

no-strike commitment.

In charting the remand, the court further observed

that under the decision it was issuing the union would

still be on the horns of a dilemma, but the company

faced with a strike “will know that it should take precau-

tions” before resorting to such self-help as cancellation of

contract, termination of striking employees, and refusal

to recognize by withdrawing recognition from the Union.

With respect to the Mastro Plastics/Arlan’s formula“

and its impact on industrial peace, the Board has now

seriously considered the possibility that overruling Ar-

32a

lan’s because of its distinction between serious and non-

serious unfair labor practices would create a desirable

degree of stability in the law with respect to a union’s

resort to strike action in the face of a no-strike clause.

The contract here, section 7.7, prohibits strikes and lock-

outs unless and until all of the bargaining and grievance

procedures outlined in it have been exhausted. But

Arlan’s holds that a no-strike commitment cannot be

avoided by a union if the unfair labor practice indulged

in by the employer is “non-serious.” After much reflec-

tion a majority of this Board—Members Penello, Mur-

phy, and Truesdale—deem it wise to retain this distine-

tion in Board law as a deterrent to possible hasty strike

action.“ However, on the facts now before the Board,

Chairman Fanning and Member Jenkins would overrule Arlan’s

consistent with the suggestion of the court of appeals here. In

Arlan’s, then-Member Fanning dissented. He considered the un-

fair labor practices that occurred there serious. The majority of

two in that 1961 case (two members did not participate) found

the discharge of a union steward, stemming “largely” (but not

totally) from a clash or personalities between the steward and the

plant manager, as “not serious” in the sense of being destructive

of the foundation upon which bargaining must rest. As a result,

the walkout by 39 employees in protest was found to have violated

the no-strike clause requiring the grievance to be processed under

the grievance and arbitration provisions of the contract. In his

Arlan’s dissent, then-Member Fanning reasoned that the Supreme

Court in Mastro Plastics, supra, had emphasized the scope and

coverage of the contract containing the no-strike clause rather

than the degree and kind of unfair labor practice that precipitated

the strike.

Member Jenkins agrees with the latter interpretation and would

therefore, like Chairman Fanning, overrule Arlan’s and its trouble-

some “gloss” with respect te Mastro-Plastics. Thus they would

return to the basic holding of the Supreme Court in that case that

a contractual waiver of the right to strike does not preclude an

unfair labor practice strike unless the contract specifically waives

the right to strike because of unfair labor practices. Allowing

Mastro Plastics to exert its full impact would in their view tend

to foster labor peace by discouraging employers to take unilateral

action, as here, that the Board may construe as “non-serious.”

33a

a four-member majority—excepting Member Penello—

conclude that Respondent’s unfair labor practices were

serious within the meaning of Arlan’s including Re-

spondent’s insistence upon instituting the shift change

unilaterally before the ongoing grievance procedure—

resorted to by the Union when Respondent declined to

bargain over the change—could be completed. That in-

sistence precipitated the strike, and was a serious un-

fair labor practice in violation of Respondent’s duty to

bargain with the employees’ recognized representative

concerning a condition of employment. In these circum-

stances the Union was not obliged to complete step five

of the grievance procedure or make a written request for

arbitration.“

We turn now to those fundamental developments in

national labor policy that, according to the court of ap-

peals, “should have commanded the Board’s attention.”

These are: (1) the 1957 decision of the Supreme Court

in Textile Workers Union of America v. Lincoln Mills

of Alabama, 353 U.S. 448, holding that Section 301 of

the Labor-Management Relations Act gives Federal dis-

trict courts power to decree specific performance of “col-

lectively bargained” agreements to arbitrate; that an

agreement to arbitrate grievance disputes is the quid

pro quo for an agreement not to strike, and that the

legislation in question is not merely jurisdictional, but

expresses a Federal policy that Federal courts enforce

these agreements on behalf of or against labor organi-

* Two oral requests for arbitration made by the Union several

days earlier were flatly denied, as Respondent's transcribed minutes

of step four of the grievance procedure disclose. (C.P. Exh. 5,

p. 43.) In fact, at the fourth step Respondent pointedly stated that,

both bargaining concerning the proposed shift change—to which

Respondent was specifically obligated by the contract (art. VI, sec.

6.2 Negotiations) and arbitration—for which Respondent's con-

sent was required—were “too time consuming.”

34a

zations, and that industrial peace can be best obtained

only in that way; (2) the Court’s 1960 decisions in

the Steelworkers trilogy “ announcing the presumptive

arbitrability of labor disputes; and (3) the Court’s 1970

decision in Boys Markets, Inc. v. Retail Clerks Union,

Lecal 770, 398 U.S. 235, sanctioning, pursuant to See-

tion 301, injunction proceedings with respect to a strike

in circumstances where the contract provided that all

controversies over its application were to be resolved

by arbitration and that no work stoppage, lockout, pick-

eting, or boycotts were to occur during the contract term.

As to the applicability of Boys Markets here, we note

that the court of appeals itself concluded that such an

injunction was not in fact available to this Respondent

in light of the nonmandatory arbitration clause provided

in the Dow contract. And, as we read Lincoln Mills and

the Steelworkers trilogy, the nonmandatory arbitration

clause also militates against Federal court action pur-

suant to those cases.

10 United Steelworkers of America v. American Manufacturing

Co., 363 U.S. 564; United Steelworkers of America v. Warrior &

Gulf Navigation Co., 363 U.S. 574; United Steelworkers of America

v. Enterprise Wheel & Car Corp., 363 U.S. 593.

11 The Chairman and Member Jenkins note that not only did the

Supreme Court include a warning in its Boys Markets decision that

the holding was a narrow one not intended to undermine the anti-

injunction provisions of the Norris-LaGuardia Act, but the Court

has since issued its decision in Buffalo Forge Co., supra. There

the strike was a sympathy strike for a sister local and the employer

sought both an order directing the union to arbitrate and also a

Boys Markets injunction of the strike pending arbitration. The

Court said:

Section 301 of the Act assigns a major role to the courts in

enforcing collective-bargaining agreements, but aside from the

enforcement of the arbitration provisions of such contracts,

within the limits permitted by Boys Markets, the Court had

never indicated that the courts may enjoin actual or threatened

35a

There remains for our consideration on this remand a

reassessment of the parties’ relative willingness to ar-

bitrate, a matter of great concern to the court.“ The

contract violations despite the Norris-LaGuardia Act. Em-

phasis supplied; 428 U.S. at 409.

The Court found that the dispute in Buffalo Forge was not subject

to the contract’s no-strike clause and declined to accommodate

the policies of Norris-LaGuardia to Section 301 of the Act as it

had in Boys Markets. The Chairman and Member Jenkins note

particularly the Court’s pronouncement that it was “far from

concluding that the arbitration process will be frustrated unless

the courts have the power to issue interlocutory injunctions pend-

ing arbitration in cases such as this, or in others in which an

arbitrable dispute awaits decision.” Heeding this opinion, it would

seem unwise to rely upon the failure of an employer to attempt

to enjoin a strike such as occurred at Dow. In addition, from the

larger view, it appears that Buffalo Forge confirms reliance upon

Mastro Plastics as a basic solution of the problem whether the

Union's strike in protest of Dow's unfair labor practices was pro-

tected. We would find that it was. The Court there noted that

failure of the Board to sustain the right to strike against unfair

labor practices would seriously undermine the primary objectives

of the Act. Though the language of the Mastro Plastics contract

was broad, it was not specific as to unfair labor practice strikes

and constituted no waiver of the right to strike solely against

unfair labor practices.

12 The dissent in the underlying Board case had concluded that

“responsibility for the strike rests more upon Respondent as per-

petrator of the unfair labor practice than upon the Union and the

employees who sought to utilize peaceful means of securing their

statutory rights and only desisted therein when brought face to

face with a fait accompli.” Citing Mastro Plastics, then-Member

Fanning said: “ ‘Good judgment’ demands that before a no-strike

clause he construed as applying to strikes protesting unfair labor

practices there be clear and unmistakable language in the contract

to that effect.” The dissent then went on to say: “It demands as

well consideration of the fact that the Union and the employees

withheld strike action and continued to utilize the grievance pro-

visions of the contract in an attempt to force the Respondent to the

bargaining table up to the time that Respondent decided to imple-

ment the announced change.” (212 NLRB at 334.)

36a

facts reveal that the Mespondent’s proposed changes in

the work schedule entailed considerable loss of remunera-

tion to 16 or 19 employees whose shift was to be changed,

a loss that employees could only view as a grave viola-

tion of the bargaining obligations required of the Re-

spondent, and one that undermined the status and au-

thority of the Union. Judged on the basis of compara-

tive responsibility in carrying out their contractual com-

mitments, the onus for the strike must be placed upon

the Respondent. It would not have occurred but for the

Respondent’s adamant insistence upon implementing the

unilateral shift change before the grievance procedure

could be completed and before arbitration could be set

in motion, if agreed to.

Inasmuch as we have found that the strike was an un-

fair labor practice strike from its inception on June 7,

1971, in response to Respondent’s unilateral action that

precipitated it, it follows that the August 9, 1971, rescis-

sion of the contract by the Respondent was a violation

of Section 8 (a) (5) and (1), that the termination of

the unfair labor practice strikers on August 17, 1971,

was a violation of Section 8 (a) (3) and (1),"* and that

18 See N.L.R.B. v. State Electric Service, Inc., 477 F.2d 749 (5th

Cir. 1973), cert. denied 414 U.S. 911, to the effect that, “assuming”

the Union’s breach of a no-strike clause, such breach is not ordi-

narily sufficient to breach the entire contract, and noting that the

employer there chose not to avail itself of the contract’s broad

arbitration clause.

Concerning the “right” to breach an entire contract, we note that

the Court of Appeals for the Third Circuit has here expressed

disapproval of the Board’s Marathon rule as automatically giving

an employer the right to terminate the contract for strike in reach

of contract. Marathon Electric Mfg. Corp., 106 NLRB 1171 (1953).

As we have found the strike here to be protected, we do not address

ourselves to the Marathon rule at this time.

14 See Kellstone, Inc., 206 NLRB 156 (1973), enfd. 493 F.2d 1352

(6th Cir. 1974), where the Board found an 8(a)(5) rescission of

contract and 8(a)(3) discharge of striking employees allegedly

37a

the withdrawal of recognition on August 28, 1971, was

also a violation of Section 8 (a) (5) and (1).

In response to Member Penello’s separate opinion, con-

curring in part and dissenting in part, we comment as

follows: An early tactical mistake in this controversy

was the Respondent’s interpretation of its own collective-

bargaining agreement as not requiring it to bargain on

the proposed shift change as a condition of employment.

It focus instead on the management-rights clause, ignor-

ing its agreement (contract, sec. 6.2) to negotiate terms

ond conditions of employment, and also ignoring the lan-

guage specifically linking the bargaining and grievance

procedures in section 7.7 of the contract, providing that

both bargaining and grievance procedures must be ex-

hausted before a strike or lockout is permissible. The

Respondent took the initiative by refusing to negotiate,

thus violating Section 8(a)(5) as the Administrative

Law Judge found. This forced the Union to resort to the

grievance procedure, the only alternative short of self-

help. At step four of the five-step grievance procedure,

the Respondent refused to accelerate the pace by con-

senting to arbitration in response to the Union’s oral

requests. As footnote 9 above points out, the Respondent

freely admitted its reasons: bargaining and arbitration

were both “too time consuming” for it. In fact it then

suggested that the Union after completing the grievance

procedure could sue for recovery to determine whether

the Respondent made the wrong choice in implementing

its unilateral change. Clearly the Respondent was intent

for violating a contract the employer declared no longer existed.

The citation of Kellstone by the Administrative Law Judge as

affirming the rule in Marathon (referred to in the preceding foot-

note) is an overstatement; the Board’s reference there to Mara-

thon was limited to the general or hornbook law proposition that

„„. . ‘as a general rule of law, one party to a contract need not

perform if the other party refuses in a material respect to do so.

(Emphasis supplied; 206 NLRB at 157.)

38a

upon the shift change being made on a date certain,

before the formalities of the grievance procedure could

be completed. Thus, the ensuing strike rather than being

in violation of the contract was protected.

Member Truesdale in his separate concurrence would

find the Respondent less willing than the Union to take

affirmative steps to obtain binding arbitration of the

dispute, a conclusion with which we agree wholeheartedly.

We are, however, puzzled by his attaching no significance

to the “bargaining and grievance procedure” language

of the contract. Though the court of appeals appeared

to rule that out in part III of its opinion—which speaks

of the Union not having exhausted the grievance pro-

cedure, thus the strike was not one authorized by the

contract—later in part VII what the court remanded

for reconsideration was “all” except the Board’s 8(a) (5)

finding that the Respondent refused to bargain over the

shift change. We are therefore inclined to the view that

there is no procedural impediment at this time to em-

phasizing the specific terms of the governing contract.

Conclusions of Law

1. The Dow Chemical Company is an employer en-

gaged in commerce within the meaning of Section 2(6)

and (7) of the Act.

2. United Steelworkers of America, AFL-CIO-CLC

(formerly International Union of District 50, Allied and

Technical Workers of the United States and Canada),

is a labor organization within the meaning of Section

2(5) of the Act.

3. All hourly rated employees of the Respondent em-

ployed at its Allyn’s Point plant, exclusive of plant pro-

tection employees, office and clerical employees, salaried

employees, engineers and professional employees, super-

intendents, foremen, subforemen, and all supervisors as

39a

defined in Section 2 (11) of the Act, constitute a unit

appropriate for collective bargaining within the meaning

of Section 9(b) of the Act.

4. At all times relevant herein and continuing to

date, the above-named labor organization has been the

exclusive representative of all employees in the aforesaid

appropriate unit for the purposes of collective bargaining

within the meaning of Section 9(a) of the Act.

5. By unilaterally announcing and scheduling the

change from a 7-consecutive-days-on-and-2-days-off work-

week to a 5-consecutive-days-on-and-2-days-off workweek

for the employees in its latex department, the Respond-

ent violated Section 8(a) (5) and (1) of the Act.

6. By failing and refusing on or about May 20, 1971,

and at all times thereafter, to bargain collectively con-

cerning this change with the above-named labor organi-

zation as the exclusive bargaining representative of all

the employees of the Respondent in the appropriate unit,

the Respondent has engaged in and is engaging in un-

fair labor practices within the meaning of Section

8(a) (5) of the Act.

7. By unilaterally canceling the collective-bargaining

agreement which was effective from February 23, 1970,

to February 26, 1973, by letter of August 9, 1971, with-

out first notifying or bargaining with the Union con-

cerning said cancellation, and without first obtaining

agreement with the Union concerning said cancellation,

the Respondent has engaged in unfair labor practices

within the meaning of Section 8 (a) (5) of the Act.

8. By withdrawing recognition of the Union on or

about August 2, 1971, and thereafter refusing to recog-

nize the Union as the exclusive bargaining representa-

tive of the employees in the appropriate unit, the Re-

spondent has engaged in unfair labor practices within the

meaning of Section 8(a) (5) of the Act.

40a

9. The Respondent has violated Section 8 (a) (1) and

(3) of the Act by discharging or refusing to reinstate

on August 18, 1971, the employees who engaged in a

strike commencing on June 7, 1971, as listed on Ap-

pendix A.

10. By the aforesaid unlawful unilateral announce-

ment and scheduling of the work shift change, failing

and refusing to bargain, unilateral cancellation of the

collective-bargaining agreement, withdrawal of recogni-

tion of the Union, and the discharge and failure to rein-

state those employees who engaged in a protected strike,

the Respondent has interfered with, restrained, and co-

erced, and is interfering with, restraining, and coercing

employees in the exercise of the rights guaranteed them

by Section 7 of the Act, and thereby has engaged in

and is engaging in unfair labor practices within the

meaning of Section 8(a) (1) of the Act.

11. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning

of Section 2(6) and (7) of the Act.

The Remedy

Having found that the Respondent has engaged in and

is engaging in unfair labor practices within the meaning

of Section 8(a) (3) and (1) of the Act, we shall order it

to cease and desist therefrom and to take certain affirma-

tive action, including reinstating and making whole all

those employees who engaged in the protected strike

commencing June 7, 1971, and who were terminated

on August 18, 1971. Reinstatement of the employees

shall be to the same jobs or, if those no longer exist,

to substantially equivalent jobs without prejudice to their

seniority or other rights and privileges.

We shall also require the Respondent to pay each ter-

minated striker backpay for losses suffered as a conse-

4la

quence of the Respondent’s unlawful termination of the

striking employees on August 18, 1971. An employee’s

backpay period shall begin with his termination and

shall terminate with the offer of reinstatement. Loss of

pay and interest thereon are to be computed in the man-

ner prescribed in F. W. Woolworth Company, 90 NLRB

289 (1950), and Florida Steel Corporation, 231 NLRB

651 (1977)."

Having found that the Respondent is engaging in un-

fair labor practices within the meaning of Section

8(a) (5) and (1) of the Act, we shall order that it cease

and desist therefrom and, upon request, bargain collec-

tively with the Union as the exclusive representative

of all employees in the appropriate unit and, if an under-

standing is reached, embody such understanding in a

written signed agreement.

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

Board hereby orders that the Respondent, The Dow

Chemical Company, Ledyard, Connecticut, its officers,

agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Discharging and failing to reinstate any of its

employees because of their participation in protected

strike activities.

(b) Refusing to bargain with United Steelworkers of

America, AFL-CIO-CLC (formerly International Union

of District 50, Allied and Technical Workers of the

United States and Canada), as the exclusive representa-

tive of the employees in the appropriate bargaining unit

by unilaterally announcing and scheduling the change

(1962).

42a

from a 7-consecutive-days-on-and-2-days-off workweek to

5-consecutive-days-on-and-2-days-off workweek for certain

employees in the latex department.

(e) Refusing to bargain collectively concerning rates

of pay, wages, hours, and other terms and conditions of

employment with the aforesaid Union as the exclusive

bargaining representative of its employees in the follow-

ing appropriate unit:

All hourly rated employees of the Respondent em-

ployed at its Allyn’s Point plant, exclusive of plant

protection employees, office and clerical employees,

salaried employees, engineers and professional em-

ployees, superintendents, foremen and subforemen,

and all supervisors as defined in Section 2(11) of

the Act.

(d) Refusing to bargain collectively with the afore-

said Union by unilaterally canceling the collective-

bargaining agreement, which was effective from Feb-

ruary 23, 1970, to February 26, 1973, without first

notifying or bargaining with the Union concerning said

cancellation.

(e) Refusing to recognize and bargain collectively with

the aforesaid Union as the exclusive bargaining repre-

sentative of its employees in the appropriate unit with

respect to wages, hours, and other terms and conditions

of employment, by withdrawing recognition from such

Union as the exclusive representative of its employees in

the appropriate unit.

(f) Discharging and refusing and failing to reinstate

its employees to their former or substantially equivalent

positions because they participated in a protected strike

and refused to work during such strike.

(g) In any other manner interfering with, restraining,

or coercing employees in the exercise of the rights guar-

anteed them by Section 7 of the Act.

43a

2. Take the following affirmative action which the

Board finds will effectuate the policies of the Act:

(a) Recognize United Steelworkers of America, AFL-

CIO-CLC (formerly International Union of District 50,

Allied and Technical Workers of the United States and

Canada), as the exclusive bargaining representative of

its employees at the Allyn’s Point plant.

(b) Upon request, bargain collectively with the above-

named labor organization as the exclusive representative

of all employees in the aforesaid appropriate unit with

respect to rates of pay, wages, hours of employment,

changes in work schedules, including consecutive work-

days to be required each week, and other terms and

conditions of employment, and, if an understanding is

reached, embody such understanding in a written signed

agreement.

(e) Offer the employees named in Appendix A immedi-

ate and full reinstatement to their former jobs or, if

those jobs no longer exist, to substantially equivalent

jobs, without prejudice to their seniority or other rights

and privileges and make them whole for any loss of pay

suffered by reason of the Respondents’ discrimination

against them in the manner set forth in the section

of this Decision entitled “The Remedy.”

(d) Preserve and, upon request, make available to

the Board or its agents, for examination and copying,

all payroll records, social security payment records, time-

cards, personnel records and reports, and all other rec-

ords necessary or useful in determinnig compliance with

this Order, and the computation of the amount of

backpay.

(e) Post at its plant at Allyn’s Point, Ledyard, Con-

necticut, copies of the attached notice marked “Appen-

44a

dix B.“ 1 Copies of said notice, on forms provided by the

Regional Director for Region 1, after being duly signed

by the Respondent’s representative, shall be posted by

the Respondent immediately upon receipt thereof, and

be maintained by it for 60 consecutive days thereafter,

in conspicuous places, including all places where notices

to employees are customarily posted. Reasonable steps

shall be taken by the Respondent to insure that said

notices are not altered, defaced, or covered by any other

material.

(f) Notify the Regional Director for Region 1, in

writing, within 20 days from the date of this Order, what

steps the Respondent has taken to comply herewith.

Dated, Washington, D.C. September 17, 1979

JOHN H. FANNING, Chairman

HOWARD JENKINS, JR., Member

BETTY SOUTHARD MURPHY, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL]

16 In the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD.”

45a

MEMBER PENELLO, concurring in part and dissenting

in part:

I am pleased to join two of my colleagues (Members

Murphy and Truesdale) in reaffirming the well estab-

lished Arlan’s rule" that a strike in violation of a no-

strike clause of a collective-bargaining agreement is a

breach of contract and, absent “serious” unfair labor

practices by the employer, is unprotected. In the 18

years that Arlan’s has been the accepted interpretation

of Mastro Plasties, it has proven to be a sensible and

effective rule which discourages a union from seizing

upon a trivial or “nonserious” unfair labor practice to

strike in violation of an agreed-upon no-strike clause.

The demise of Arlan’s, which is advocated by my other

two colleagues (Chairman Fanning and Member Jen-

kins), would create uncertainty in the administration of

collective-bargaining agreements, encourage spontaneous

wildcat strikes, and ultimately undermine the founda-

tions upon which the collective-bargaining process rests.

However, with regard to the application of the Arlan’s

rule to the facts of this case, I cannot agree with the

conclusion reached by all of my colleagues that the Com-

pany’s unfair labor practice was “serious” within the

meaning of Arlan’s. In light of this disagreement, and

in order to explicate fully my position on the critical

legal and factual issues presented in this case, I have

decided to file this separate opinion.

The basic facts of this case can be summarized as

follows. In May 1971,“ the Company unilaterally an-

17 Arlan’s Department Store of Michigan Inc., 133 NLRB 802

(1961) (then-Member Fanning dissenting in part).

18 Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956).

1% All dates unless otherwise indicated are 1971.

46a

nounced and scheduled a work change in its latex de-

partment. The Union Local president demanded that the

Company bargain over the proposed change prior to its

implementation. The plant personnel manager responded

that he was willing to discuss the change but that there

was no duty to bargain concerning such a change. There-

upon, the Union invoked the grievance procedure pro-

vided in the collective-bargaining agreement.

The collective-bargaining agreement contained a lim-

ited no-strike no-lockout provision which barred a strike

unless and until: (1) all five steps of the grievance

procedure had been exhausted; (2) the Union had made

a written request for arbitration within 30 days after

the receipt of the step-five answer; and (3) arbitration

had either been completed or refused.

On June 7, the day the schedule change was to be im-

plemented, the Union went on strike. The Union failed

to exhaust the contractual prerequisites for such a strike

in that it never invoked step five of the grievance pro-

cedure and did not file a written request for arbitration.

In an attempt to end the strike, the Company wrote to

the employees and the union committee members stating

“that the resolution of the problem lies in the grievance

and arbitration procedure,” solicited help from state

mediation officials, and informed employees that it would

begin hiring replacements on July 29. Finally, after

sustaining the strike for 2 months, the Company, by let-

ter dated August 9, notified the Union that because of

the Union’s breach of the collective-bargaining agreement

it was rescinding the contract. None of these company

counter-measures resulted in a cessation of the strike.

Thereupon, on August 17, the Company terminated the

striking employees. Subsequently, a majority of the em-

ployees then employed signed a petition stating that they

no longer wished to be represented by the Union. Rely-

ing on this petition, the Company withdrew recognition

from the Union.

47a

On these facts, the Board, adopting the Decision of

the Administrative Law Judge, found that the Company

violated Section 8 (a) (5) and (1) of the Act by uni-

laterally announcing and scheduling a change in the

work schedule of the latex employees.“ The Board fur-

ther found that the strike was in breach of the no-

strike provision of the contract because the Union did

not comply with the contractual prerequisites to a strike.

Thus, the Union “failed to submit the dispute in ac-

cordance with” the contract’s grievance-arbitration pro-

cedure which “was available for the peaceful resolution

of the dispute.”

The Board therefore applied the rule of Mastro Plas-

ties as subsequently interpreted by the Board in Ar-

lan’s that “only strikes in protest against serious unfair

labor practices should be held immune from general no-

strike clauses.” ** It concluded that the Company’s uni-

lateral conduct “was not of such serious nature as to be

destructive of the foundation on which collective bar-

gaining must rest.“ Accordingly, the Union’s breach

of the no-strike provision of the contract rendered the

strike “unprotected from its inception.” *

Finally, the Company’s self-help measures in response

to this unprotected strike were not found to be violative

of the Act. The Company’s rescission of the contract was

permissible in light of the Union’s material breach of the

contract; the termination of the striking employees was

proper since the strike had resulicd in a forfeiture of

20212 NLRB 333 (1974) (then-Member Fanning dissenting in

part).

21 350 U.S. 270 (1956).

*2 133 NLRB at 807.

28212 NLRB at 340.

* Id.

48a

the employees’ reinstatement rights; and the Company

was entitled to withdraw recognition from the Union

based upon the petition signed by a majority of the em-

ployees then employed.

The Third Circuit granted the Union’s petition for

review and remanded the case to the Board for recon-

sideration in light of the court’s opinion.“ The court up-

held the Board’s finding that the Company initially com-

mitted an unfair labor practice by unilaterally announc-

ing and scheduling a work change. It further accepted

the Board’s finding that the strike was not authorized

by the contract because the Union failed to exhaust the

grievance procedure and did not file a written request

for arbitration. However, the court remanded the case

to the Board to consider the effect of Boys Markets, Inc.

v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970),

and other recent developments on the permissibility of

the Company's post-strike actions.“

In denying enforcement, the court objected to the

Arlan’s doctrine on the grounds that it was not in keep-

ing with “jurisprudential guideposts . . . on national labor

policy” which favors arbitration over the automatic right

to resort to the “tooth and claw” of industrial warfare.

The court also expressed concern that, under the Arlan’s

interpretation of Mastro Plastics, the principals to a

labor dispute cannot know for certain what is or is not

a “serious” unfair labor practice. The court, in accom-

modating Arlan’s with recent developments in labor law,

concluded that a corollary principle was necessary; i.e.,

nonserious unfair labor practice strikes in violation of

a general no-strike clause are unprotected, but employers

are obligated to exhaust the legal and contracted rem-

25530 F.2d 266 (1976).

26 Jd. at 278.

49a

edies available before resorting to such self-help meas-

ures as discharge or rescission of the contract.”

By contrast, Chairman Fanning and Member Jenkins

claim that Arlan’s was an incorrect interpretation of

Mastro Plastics. They state that the Supreme Court

in Mastro Plastics emphasized the scope and coverage

of the contract containing the no-strike clause rather

than the degree and kind of unfair labor practice that

may precipitate the strike. According to Chairman Fan-

ning and Member Jenkins, their view of Mastro Plastics

furthers labor peace and accords predictability to the par-

ties who are put on notice that a general no-strike clause

does not forbid a strike prompted by the unfair labor

practices of the employer.

In short, Arlan’s is attacked on two fronts. Chairman

Fanning and Member Jenkins insist that Arlan’s unduly

restricted the scope of Mastro Plastics which compre-

hended that any unfair labor practice strike would be

immune from a general no-strike clause. By contrast,

the court is disturbed that Arlan’s, standing alone, does

not restrict the utilization of self-help by employers on

the occasion of a breach-of-contract strike. The court

contended that recent labor law developments necessitate

a modification of the Arlan’s rule. With all respect, I

disagree that the Arlan’s rule merits rejection or modifi-

cation. I remain convinced that Arlan’s is a correct

application of the reasoning underlying Mastro Plastics

and that it is entirely consistent with contemporary

labor policy.

The court stated that its proposed modification of Arlan's

will still place “a union ... on the horns of a dilemma when it

believes the employer has committed an unfair labor practice.”

The union must ascertain whether the unfair labor practice is a

“serious” or major“ one in order to engage in a protected strike.

Thus, the court stated that its approach will encourage use of the

arbitral forum “while safeguarding the union’s interests in pro-

tecting its organizational integrity from major employer unfair

labor practices .” (Emphasis supplied; 530 F.2d at 279.)

50a

In order to explain my conclusion adequately, part II

of this opinion reviews the rationale of Mastro Plastics

and Arlan’s along with the consequences that an over-

ruling of Arlan’s would engender. Recent developments

in labor law are discussed in part IIIA in considering

whether a modification of Arlan’s is mandated. Finally,

in part IIIB, the facts of this case are reviewed in order

to highlight my disagreement with the factual analysis

of the majority and the court.

Il.

In Mastro Plastics, the Supreme Court held that, ab-

sent explicit contractual language to the contrary, a gen-

eral no-strike clause does not waive the employees’ right

to strike in response to flagrant unfair labor practices

committed by the employer. Mastro Plastics involved a

group of employers engaged in a “willful, deliberate,

widespread, and grave” campaign designed to coerce the

employees to abandon their collective-bargaining repre-

sentative and to substitute another union which the em-

ployers preferred. The Supreme Court characterized this

campaign as a “flagrant example of interference by the

employers with the expressly protected right of their

employees to select their own bargaining representa-

tive.“ Despite the existence of a general no-strike pro-

vision in the contract, the employees struck in response

to these numerous unfair labor practices which included

the discharge of a leading adherent of the incumbent

union.

The employers defended the subsequent termination of

these strikers on the grounds that the strike was un-

protected in that the words “any strike” in the general

no-strike clause prohibited all strikes, even those in re-

sponse to unfair labor practices “destructive of the

28350 U.S. at 278.

5la

foundation on which collective bargaining must rest.” ”

The Court rejected this defense as contrary to the pri-

mary objectives of the Act since it would:

. eliminate, for the whole year, the employees’

right to strike, even if petitioners, by coercion,

ousted the employees’ lawful bargaining representa-

tive and, by threats of discharge, caused the em-

ployees to sign membership cards in a new union.”

The Court in Mastro Plastics recognized that no-strike

pledges are based on the premise that the parties will

respect the ba: c integrity of the union and the collective-

bargaining framework during the term of the contract.

Such no-str.ke clauses promote the statutory policies of

labor peace “[p]rovided the selection of the bargaining

representative remains free.“ Thus, if the employer’s

unfair labor practices are indicative of a determination

to seriously undermine or disrupt the integrity of the

union, a general no-strike pledge will not shield the em-

ployer from a resulting strike which would be protected

activity from its inception.

In Arlan’s Dept. Store of Michigan Inc., supra, the

Board eschewed a broad interpretation of Mastro Plas-

tics. The Board reasoned that the language used by the

Court and its rationale could not be divorced from the

facts of the case and the argument presented by the

parties. Accordingly, the Board held that a strike in

derogation of a general no-strike pledge was unprotected

when the underlying unfair labor practice, a discharge,

was isolated and in large part was the result of a “clash

of personalities.” ** The Board concluded that the dis-

29 Id. at 281.

d. at 283.

31 Jd. at 280.

52133 NLRB at 808.

52a

charge “was not serious in the sense in which we have

used the term, i.e., it was not in the words of the Su-

preme Court ‘destructive of the foundation on which

collective bargaining must rest.’ ” *

The Arlan’s approach is a sound one based on a rule

of reason. When an employer commits a minor unfair

labor practice, a strike in response is laregly unnecessary

because the integrity of the union and the collective-

bargaining relationship remains intact. A statutory rem-

edy is always available and redress is also available

through the grievance-arbitration provisions of the con-

tract. The Board in Arlan’s emphasized that:

A contract grievance procedure with accompany-

ing no-strike, no-lockout clauses, constitutes the con-

tracting parties self-created judicial machinery for

resolving the inevitable frictional disputes arising

from the day-to-day administration of labor rela-

tions. It represents a civilized substitution for force

in the settlement of such disputes beneficial to all

parties involved in such disputes. We believe that

resort to such machinery for the settlement of labor

controversies should be encouraged by a public

agency. We can perceive no public policy served by

a holding that the kind of dispute involved in this

case is exempt from the coverage of the contract

grievance procedure and may properly be resolved

by a test of economic strength.“

The Board’s interpretation of Mastro Plastics has been

confirmed in subsequent Supreme Court decisions where

the Court has stated its holding in terms of the serious-

ness of the unfair labor practices. Thus, in Drake,

Bakeries Incorporated v. Local 50, American Bakery &

33 Jd. (quoting from Mastro Plastics, supra).

* Id.

53a

Confectionery Workers International, AFL-CIO,” the

Court, in explaining Mastro Plastics, emphasized that it

“involved a flagrant unfair labor practice by the company

threatening the very existence of the union itself” and

that “the parties could not have intended to waive the

employees’ right to strike over a flagrant unfair labor

practice.? More recently, in N.L.R.B. v. Magna vos

Company of Tennessee,” the Court characterized its

Mastro Plastics holding in virtually the same language

used in Arlan’s. The Court stated that “we held [in

Mastro Plastics} that the waiver of the ‘right to strike’

did not embrace a waiver of the right to strike ‘against

unlawful practices destructive of the foundation on which

collective bargaining must rest.’ ” **

Chairman Fanning and Member Jenkins have embraced

an interpretation of Mastro Plastics which they contend

will be beneficial by providing greater certainty and

predictability to the parties. However, the benefits flow-

% 370 U.S. 254 (1962).

Id. at 265.

* 415 U.S. 322 (1974).

d. at 325. The Arlan’s interpertation of Mastro Plastics has

been approved in the following cases: Dow Chemical Co. v. Inter-

national Union of Electrical, Radio & Machine Workers, AFL-CIO,

82 LRRM 3169, 3818 (D.C. Fla. 1971), affd. 480 F.2d 433 (5th Cir.

1973), cert. denied 415 U.S. 932 (1974); Pence Construction Cor-

poration v. Hoisting and Portable Engineers Local 450 «of the

International Union of Operating Engineers, AFL-CIO, 484 F.2d

398, 401 (5th Cir. 1973), cert. denied 414 U.S. 1144 (1974); Local

833, UAW-AFL-CIO, International Union, United Automobile, Air-

craft & Agricultural mplement Workers of America Kohler Com-

pany| v. N. L. R. B., 300 F. 2d 699, 704, fn. 19 (D.C. Cir. 1962),

cert. denied, 370 U.S. 911. See also Local Union No. 1055, Inter-

national Brotherhood of Electrical Workers, AFL-CIO, et al. „.

Gulf Power Company, 182 F.Supp. 950 (D.C. Fla. 1960), which

predated Arlan’s, but also discussed Mastro Plastics in terms of the

seriousness of the employer’s unfair labor practice.

54a

ing from this unnecessarily broad interpretation of

Mastro Plastics are illusory and certainly would not be

worth the inevitable disruptive consequences it would

engender. As noted by Justice Cardozo, [TIhere is a

certainty that is genuine and a certainty that is illusory,

a symmetry that is worth attaining and a symmetry to be

shunned . . .. Overemphasis of certainty may carry

us to the worship of an intolerable rigidity.” ** Expe-

rience has shown that bright-line tests are rarely practical

when applied to labor relations. As Arlan’s recognized,

In this field, lines between the licit and illicit can

rarely be drawn ciearly in advance. And in the

penumbral areas which are omnipresent, there is no

substitute for niceties of judgment. As the Supreme

Court recently observed in Local 761, International

Union of Electrical, Radio, and Machine Workers,

AFL-CIO v. N.L.R.B. and General Electric Company,

366 U.S. 667, 674, “However difficult the drawing of

lines more nice than obvious, the statute compels the

task.“ 40

In Arlan’s, the Board relied on its “experience, good

sense, and good judgment,” in determining whether an

unfair labor practice involves conduct “destructive of the

foundation on which collective bargaining must rest.”

The delineation between serious and nonserious unfair

labor practices is no more difficult than other tests used

by the Board. In practice, the Arlan’s doctrine has been

a commonsensical one which as resulted in a considerable

degree of certainty. Thus, the Board has characterized

as serious unfair labor practices those which threaten

the very existence of the union, such as massive dis-

3%® Benjamin Cardozo, “The Growth of the Law,” New Haven,

Yale University Press at 19 (1927).

133 NLRB at 807.

55a

charges; complete repudiation of the bargaining obliga-

tion ; ** unlawful assistance and support to a rival union;

or a company campaign intended to fire unionists “one-

by-one.“ The Board has defined nonserious unfair labor

practices as an isolated discriminatory discharge or

unilateral acts“ which do not justify breach of a no-

strike clause. The key inquiry in every case is whether

the company’s conduct is indicative of an intent to dev-

astate the integrity of the union or a wholesale negation

of its contractual obligations. Under such circumstances,

a union will not be held bound by a no-strike clause

which was predicated on the employer’s respect for the

employees’ essential rights of self-organization.

The demise of Arlan’s would exert a disruptive in-

fluence on the administration of collective-bargaining

agreements. The view that a general no-strike clause is

suspended whenever the employer commits any unfair

labor practice is contrary to the plain and inherently

sensible meaning of no-strike language. As Professor

Cox has noted:

Management is not infrequently charged with

taking unilateral action in violation of a contract

and presumably the unilateral action is also an

*1 Paul Biazevich, Dinko Biazevich, Jerry Kuser d/b/a MV

Liberator, et al., 136 N.L.R.B. 13, 19-21 (1962), enfd. 374 F.2d 974

(9th Cir. 1967), cert. denied, 389 U.S. 913.

#2 Kellstone, Inc., 206 NLRB 156 (1973), enfd. 493 F.2d 1352

(6th Cir. 1974).

43 Mastro Plastics, supra.

The Cincinnati Penthouse Club, Inc., 168 NLRB 969 (1967).

4 Arlan’s Department Store of Michigan, Inc., supra; Poloron

Products of Indiana, Inc., 177 NLRB 435, 438-439 (1969).

% Atlentic Richfield Company, 199 NLRB 1224, 1225, 1246-47

(1972).

56a

unfair labor practice. I had always supposed, and

I think that both companies and unions have usually

supposed, that to call a strike by reason of isolated

discriminatory discharges or unwarranted bits of

unilateral action would violate a typical “no strike”

provision. I still think that this attitude is the only

one consistent with sound labor-management rela-

tions.“

Although the parties have freely agreed to a general no-

strike clause fully aware that such elause has been

consistently interpreted to prohibit work stoppages except

those prompted by “serious” unfair labor practices, Chair-

man Fanning and Member Jenkins would in effect re-

write the terms for the parties by substantially increasing

the scope of permissible unfair labor practice strikes.

The effectiveness of general no-strike pledges would be

seriously undermined. A dispute more appropriately re-

solved through the normal grievance machinery of the

contract would be much more likely to escalate into a

major conflict.**

Another consequence of the overruling of Arlan’s would

be to increase the likelihood that unions will seize upon

trivial unfair labor practices in order to engage in a

protected mid-term strike designed to further other union

aims. Grievance machinery is agreed upon by the parties

in order to resolve the inevitable disputes which arise

during the life of a contract. The ease with which

breaches of contract can be framed as unfair labor

47 Archibald Cox, “The Legal Nature of Collective Bargaining

Agreements,” 57 Mich. L. Rev. 1 at 17 (1958).

48 Although no industry would be immune from the destructive

effects which would flow from an overruling of Arlan’s, the possible

implications are particularly troublesome un the context of the

health care industry. See Member Truesdaie’s incisive discussion

of this problem in his concurring opinion.

57a

practices suggests that a union would have ample op-

»xortunity to strike during mid-term.“ Under established

Board law, an unfair labor practice strike is a strike

which is precipitated in part by an unfair labor prac-

tice.” There are often accompanying grievances which

may be the predominant or primary reason for striking.

Thus, a union could seize upon any unfair labor practice

to strike in order to attempt to force the employer to

capitulate concerning other grievances which the union

would prefer not to process through the grievance proce-

dure. Although clearly contrary to the spirit of a general

no-strike clause which does not countenance such mid-

term strikes, these tactics would be feasible if the Board

overruled Arlan’s.

Arlan’s serves as an effective deterrent to spontaneous

interim strikes in violation of the no-strike clause. Wild-

cat strikes are, of course, anathema to responsible unions

as well as employers. As a result of a decision to reverse

Arlan’s and substantially increase the scope of permissi-

ble unfair labor practice strikes, minor unfair labor

practices may explode into wildcat strikes despite the

union’s preference for a more orderly forum for the res-

olution of the dispute. Such an unfair labor practice

49 As one commentator has noted:

When the Union has agreed that the employees will not engage

in any strikes, and both parties have agreed to resolve con-

tractual disputes through the grievance-arbitration machinery,

the relative ease with which many employer breaches of con-

tract can be framed as unfair labor practices counsels against

finding an implicitly reserved right to strike over every unfair

labor practice. [Kenneth Lopatka, “Protection under the Na-

tional Labor Relations Act and Title VII of the Civil Rights

Acts for Employees who Protest Discrimination in Private

Employment.” 50 NYU L.Rev. 1179, 1272 (1975).]

& Head Division, AMF, Inc., 228 NLRB 1406 (1977); C & E

Stores, Inc., D & E Supervalue Division, 221 NLRB 1321 (1976) ;

Lerand Leisurelies, Inc., 213 197 (1974).

58a

striker, under the Fanning-Jenkins view, is engaged in

protected activity and is presumably immune from dis-

charge by the employer even if the strike is not au-

thorized by the union.

The overruling of Arlan’s would have a pernicious in-

fluence on the administration of present collective agree-

ments as well as the negotiation of future collective

agreements. In return for concessions made to the union

at the bargaining table, the employer reasonably expects

to have industrial peace for the lifetime of the contract.

No-strike pledges are the ultimate assurance for the

employer that labor peace will be achieved during the

contract term. The Supreme Court has recognized that

employers will be reluctant to assume obligations to

arbitrate specifically enforceable against them when no

similarly efficacious remedy is available to enforce the

quid pro quo undertaking of the union to refrain from

striking. Congress has also emphasized that binding

no-strike provisions serve to promote the peaceful resolu-

tion of industrial disputes. As stated in Senate Report,

No. 105, Soth Cong., Ist sess. (1947):

If unions can break agreements with relative im-

punity, then such agreements do not tend to stabilize

industrial relations. The execution of an agreement

does not by itself promote industrial peace. The

chief advantage which an employer can reasonably

expect from a collective labor agreement is assurance

51In 1973, the most recent year for which comprehensive data

have been published, general no-strike clauses were found in 57

percent of contracts. In an additional 28 percent of contracts, the

no-strike ban was lifted after exhaustion of the grievance pro-

cedure, if the arbitration award is violated or if the company

refuses to arbitrate. “Basic Patterns in Union Contracts,” at 90

(BNA, 1975).

52 Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S.

235, 248 (1970).

59a

of uninterrupted operation during the term of the

agreement. Without some efiective method of assur-

ing freedom from economic warfare for the term

of the agreement, there is little reason why an

employer would desire to sign such a contract.

To the extent that a union cannot or will not deliver on

its solemn pledge not to strike during mid-term, the

confidence of the parties to the collective-bargaining re-

lationship will be undermined. If unions were free to

ignore no-strike obligations any time an unfair labor

practice occurs, employers during collective bargaining

would be reluctant to agree to binding arbitration or

other quid pro quo concessions to unions since a no-strike

clause would no longer be as good an assurance that

uninterrupted operation will result.

III.

As noted above, the Third Circuit did not contemplate

discarding the Arlan’s rule. Rather, the court asserted

that recent developments in labor law favoring the peace-

ful resolution of industrial disputes have undermined

the principle that employers can automatically resort to

self-help once a union or employees strike in breach of a

no-strike clause. Therefore, the court would modify

Arlan’s by requiring the mployer when faced with an

unprotected strike to exhaust the legal and contractual

alternatives prior to the utilization of self-help measures.

The court emphasized that legally the Company could

have compelled completion of the grievance procedure

and under the contract it could have taken affirmative

steps to have the underlying dispute submitted to arbitra-

tion. In the belief that the Board had erroneously ignored

equitable considerations, such as “the degree of fault” of

the parties for the industrial warfare which occurred,

the court directed the Board to consider the relative

willingness of the parties to arbitrate the dispute.

60a

With all respect, I believe that court’s rejection of

the traditional self-help measures available to employers

when faced with unprotected concerted activity reflects

a fundamental and serious misreading of the basic statu-

tory scheme. The court focused narrowly on the public

policy favoring the peaceful resolution of labor disputes,

and failed to give appropriate weight to the congressional

judgment that the availability of self-help is a critically

important means of achieving that goal. The restrictions

which the court would impose on an employer’s use of

self-help represent an improper and unwelcome intrusion

into the collective-bargaining process. Further, as dis-

cussed in part IIIB, infra, even accepting arguendo that

employers are required to take “certain precautions”

before resorting to “the tooth and claw of industrial

warfare,” the facts of this case demonstrate that the

Employer did attempt to channel the dispute into the

contractual grievance procedures, and that during the

more than 2 months that the Company withstood the

strike prior to resorting to self-help it indicated its will-

ingness to arbitrate despite the Union’s breach of the

no-strike clause.

Employees can never engage their employer in economic

battle and at the same time enjoy complete job security.“

In the case of protected concerted activity, however, Con-

gress has limited the responses available to management.

Thus, under normal circumstances, a “protected” striker

58 The Supreme Court has stated that Sec. 8 (a) (3) of the Act

has been consistently construed “to leave unscathed a wide range

of employer actions taken to serve legitimate business interests in

some significant fashion, even though the act committed may tend

to discourage union membership. Such a construction of

§8(a)(3) is essential if due protection is to be accorded the em-

ployer’s right to manage his enterprise.” American Ship Building

Co. v. N.L.R.B., 380 U.S. 300, 311 (1965).

6la

may be replaced, but cannot be discharged." By contrast,

when unions or employees utilize tactics or pursue goals

which the Act neither protects nor specifically prohibits,

the employees are acting largely outside the purview of

the National Labor Relations Act.“ The risks are greater

because the Act does not impinge on the employer’s re-

sponses. As a practical matter, of course, the effective-

ness of employer self-help will depend on the relative

economic strength of the parties.

Prior to the court’s decision, I had considered it well

settled that a no-strike clause in a collective-bargaining

agreement establishes a condition of employment and

that employees who violate such a provision are engaged

in unprotected activity and are subject to discharge for

cause.“ Thus, in Mastro Plastic, the Supreme Court

noted that “individuals violating such clauses appro-

priately lose their status as employees.“ Similarly, the

Board has consistently adhered to the principle that one

party to a contract need not perform if the other party

refuses in a material respect to do so." Accordingly, if

a union strikes in breach of a no-strike provision, the

* Mackay Radio & Telegraph Co. „. N.L.R.B., 304 U.S. 333

(1988).

"5 See, e.g., W. L. Mead, Inc., 113 NLRB 1040 (1955). See also

Getman, “The Protection of Economic Pressure by Section 7 of

the NLRA,” 1** U. Penn. L. Rev. 1195 (1967); Gould, The Status

of Unautho and ‘Wildcat’ Strikes Under the National Labor

Relations Ac 2 Cornell Law Quarterly 672 (1967).

56 Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246 (1962);

N.L.R.B. v. Sands Manufacturing Co., 306 U.S. 332 (1939). See

also H.R. Conf. Rep. No. 510, 80th Cong., Ist Sess. 39 (1947).

57350 U.S. at 280.

58 The Arundel Corporation, 210 NLRB 525 (1974); Kellstone,

Inc., supra; San Juan Lumber Company, 154 NLRB 1153, 1155

(1965), affd. 367 F.2d 397 (9th Cir. 1966).

employer is free to exercise the traditional contract rem-

edy of cancellation of the agreement.”

% Marathon Electric Manufacturing Corp., 106 NLRB 1171

(1955), affd. sub nom. Local No. 1113, United Electrical, Radio

and Machine Workers of America v. N.L.R.B., 223 F.2d 338, 341

(D.C. Cir. 1955), cert. denied, 350 U.S. 981; Accord, Boeing Air-

plane Co. 1. Aeronautical Industrial District Lodge No. 751, Inter-

national Association of Machinists, 188 F.2d 356 (9th Cir. 1951),

affg. 91 F.Supp. 596 (D.C. Wash., 1950), cert. denied, 342 U.S.

821 (1951).

The court reproved “the rule that holds a strike in breach of a

contract automatically gives the employer the right to terminate

the contract.” The court cited favorably Professor Cox's recom-

mendation that the factors to be considered in determining whether

of employees affected, the injury to the employer, the degree of

fault upon the part of the union, and the likelihood that the con-

tract will be honored for the remainder of its term. See Cox,

supra, 57 Mich. L. Rev. at 19.

Accepting arguendo the relevance of these factors, the rescis-

sion of the contract under the facts of this case occurred only after

the Union’s material breach. Thus, prior to canceling the contract,

the Employer suffered economic losses occasioned by a strike which

lasted over 2 months. This is in sharp contrast to the contract

rescission after only a 6-day strike which

in Marathon Electric, supra. As regards the degree of fault, as

discussed more fully infra, I remain convinced that the record sup-

ports the Administrative Law Judge’s finding of no union animus

on the part of the Employer and that it was the Union, not the

Company, which failed to comply with the grievance procedure.

Professor Cox also suggested that in ascertaining whether the

breach was material, “perhaps the line will ultimately be drawn

between a more or less spontaneous uprising and a planned resort

to economic pressure by union officials in the deliberate disregard

of their written obligation.” 57 Mich. L.Rev. at 19. On this im-

tract in preference for self-help measure.

Member Truesdale notes, correctly in my view, that Arlan’s

has served to stabilize collective bargaining by decreasing the legal

63a

Contrary to the Third Circuit, I am convinced that

retention of the traditional remedies” for employers

faced with unprotected breach-of-contract strikes is con-

sistent with contemporary labor policy. The resolution of

a dispute by peaceful methods is encouraged when em-

ployees know that engaging in a contractually prohibited

strike creates the possibility of lawful discharge. Sim-

ilarly, union leaders are deterred from materially breach-

ing a no-strike clause when one consequence of such action

may be the lawful cancellation of a collective-bargaining

agreement, with resulting loss to the union of such con-

tractual benefits as dues checkoff.

On the other hand, the court’s creation of a duty for

employers to exhaust available peaceful remedies before

resorting to self-help in response to unprotected activity

will tend to encourage industrial strife rather than les-

sen it. The ability to respond quickly is often the only

way to respond effectively in labor relations. Midterm

strikes, even of short duration, can totally cripple an

employer’s business. A union will have a powerful

weapon if it can strike in violation of a no-strike provi-

sion, with the employer unable to respond in kind to this

utilization of self-help prior to the exhaustion of available

peaceful alternatives. The strike becomes largely risk-

opportunity for protected strikes over minor unfair labor practices

during the contract term. Nevertheiess, Member Truesdale would

modify the Marathon Electric rule to make it unlawful for an

employer to rescind the collective-bargaining agreement where the

employer has committed any unfair labor practice, however minor.

I cannot agree with this modification of Marathon Electric since I

am convinced that its effect would be to undermine the efficacy of

Arlan’s as a deterrent to strikes in response to minor unfair labor

practices.

When Congress added the 10(c) proviso in 1948 protecting

an employer's right to discharge an employee for cause, it charac-

terized the violation of collective-bargaining agreements as “unde-

sirable activities . not to have any protection under the Act.”

H.R. Conf. Rep. No. 510, 80th Cong., Ist Sess. 39 (1947).

64a

free since the union, under the court’s theory, can al-

ways embrace a peaceful forum before the employer has

the right to respond with self-help measures. Although

the union may later be held liable for the resulting

damages, this remedy is neither immediate nor effective

in deterring breach-of-contract strikes when compared

to discharge or rescission.

The court perceived an inconsistency between the use

of self-help by the employer and the command of the

statute that peaceful resolutions are preferred over in-

dustrial strife. However, the national labor relations

policy favoring peaceful resolutions of industrial dis-

putes exists side by side with the availability to the

parties of self-help pressure devices. Although there are

instances where self-help is disruptive to the immediate

parties as well as bystanders, experience has demon-

stratea that the availability of self-help is indispensable

to effective collective bargaining. One astute labor law

expert has opined that “the ‘prospect’ of a cessation of

work is the most effective strike deterrent ever devised

even though it doesn’t work 100 percent of the

time ... Indeed, the Supreme Court has stated,

“The presence of economic weapons in reserve, and their

actual exercise on occasion by the parties, is part and

parcel of the system that the Wagner and Taft-Hartley

Acts have recognized.” The Supreme Court has ad-

monished that the Act does not give the Board or the

courts the authority to regulate or deny the availability

of economic weapons to either party of the collective-

bargaining relationship.“ The regulation of the choice of

1 Theodore Kheel, letter to the editor, The New York Times,

September 4, 1967, p. 20. Quoted in Derek Bok and John Dunlop,

“Labor and the American Community” at 231 (1970).

62 N. L. R. B. v. Insurance Agents’ International Union, AFL-CIO,

361 U.S. 477, 489 (1960).

*3 Jd. at 490.

65a

or the timing of the utilization of economic weapons

would be a serious disruption of the balance of power

established by Congress for the collective-bargaining

process.

According to the court, contemporary labor policy

militates against sole reliance on Arian’s in determining

whether the company’s poststrike actions were permissi-

ble. Basic polestars of contemporary labor policy are

identified as follows: (1) arbitration is favored as a

substitute for industrial strife; (2) a no-strike clause

is the quid pro quo for an employer’s agreement to sub-

mit disputes to arbitration; and (3) where the parties

agree on a forum for the peaceful resolution of disputes

that agreement may be enforced by an injunction, man-

dating resort to that forum.”

The court interpreted the impact of Boys Markets to

be far greater than its narrow holding. Thus the court

concluded that:

Given quid pro quo arbitration and no-strike pro-

visions in a collective bargaining agreement, we

would have no difficulty in concluding that an em-

ployer’s failure to seek a Boys Markets injunction

against a strike violating a no trike clause would

be an appropriate factor to consider in determining

whether subsequent actions were permissible under

the National Labor Relations Act. Thus, the avail-

ability of a Boys Markets injunction effects a pro

tanto modification of the Arlan’s rule. A contrary

conclusion would be a total perversion of the national

„ Gateway Coal Co. v. United Mine Workers of America, et al.,

414 U.S. 368 (1974).

* Boys Markets, Inc. v. Retail Clerks Union, Local 770, supra;

Textile Workers Union of America, AFL-CIO v. Lincoln Mills of

Alabama, 353 U.S. 448 (1957).

Id.

66a

labor policy espoused by Congress and the Supreme

Court.”

This suggested modification of Arlan’s is inconsistent

with the express acknowledgement in Boys Markets that

“other avenues of redress” in addition to arbitration

remain available to an aggrieved employer on the oc-

casion of a violation of a no-strike provision.“ Indeed,

the Court referred to the right of employers to discharge

employees who strike in breach of a no-strike obligation.”

Boys Markets does not represent a repudiation of tradi-

tional self-help remedies, rather it is a recognition that

these remedies will not always be feasible or effective

and, as a consequence, injunctive relief should also be

made available.”

My conclusion that an overly broad interpretation of

Boys Markets is erroneous is bolstered by the recent

Supreme Court decision in Buffalo Forge which again

emphasized that the Boys Markets holding was a “nar-

row one.“ In Buffalo Forge, the Court held that Fed-

eral courts could not enjoin a sympathy strike pending

an arbitrator’s decision of whether the strike is forbidden

by the express no-strike clause contained in the contract.”

The Court reasoned that a contrary result “would cut

deeply into the policy of the Norris-LaGuardia Act and

make the courts potential participants in a wide range

of arbitrable disputes.” Under the Third Circuit’s

67530 F.2d at 277.

*8 398 U.S. at 248.

* Jd. at 248, fn. 17.

70 Id. at 248.

71 Buffalo Forge Co. v. United Steelworkers of America, AFL-

CIO, 428 U.S. 397, 406 (1976).

72 Id. at 412.

73 Id. at 410.

67a

modified Arlan’s doctrine, Federal district courts would

apparently enjoin strikes promoted by unfair labor prac-

tices so long as all the requirements of Boys Markets

were satisfied and the strike was not in response to

“major employer unfair labor practices.” Thus, the court

implied that before granting an injunction, district courts

must make the preliminary determination of whether the

unfair labor practice was a “major” one.“ This sugges-

tion runs counter to the Supreme Court’s concern in

Buffalo Forge that Federal district courts not become

embroiled in “massive preliminary injunction litiga-

tion.” *

We now turn to the court’s conclusion that the fact

that a Boys Markets injunction was unavailable to the

Company in this case to compel arbitration was a dis-

tinction without a difference so far as the evaluation of

the Company’s poststrike actions is concerned. The court

admonished the Board for its failure to consider as a

factor “the company’s failure to seek peaceful resolution

through the grievance procedure and in the arbitral

forum.” The driving force behind Boys Markets and

Buffalo Forge was to enforce the promises of the parties

in order to give the parties what they bargained for.”

In the instant case, neither party agreed to mandatory

arbitration, and yet the Company is, in effect, told that

it must take steps to arbitrate or forfeit its rights to

use self-help in response to an unprotected strike. Notions

of compulsory arbitration are antithetical to the spirit of

collective bargaining. As the Supreme Court has noted,

“Congress has consistently declined to interfere with

free collective bargaining and has preferred that device,

or voluntary arbitration, to the imposition of compulsory

™ 530 F.2d at 279.

78 428 U.S. at 411, fn. 12.

76 428 U.S. 407.

68a

terms as a means of terminating labor disputes.” ** The

approach of the T’‘rd Circuit subordinates free collective

bargaining to a single-minded focus on the avoidance of

industrial strife. I cannot reconcile this proposed modifi-

cation of Arlan’s with the fundamental theme of our

labor policy that the elimination of industrial strife is

better accomplished through collective bargaining than

by administrative or judicial fiat.

Even accepting, arguendo, that employers have a duty

to exhaust available peaceful alternatives prior to imple-

menting self-help measures, the Company’s actions in

this case were clearly justified. A fair reading of the

record in its entirety fully supports the Administrative

Law Judge’s holding that it was the Union rather than

the Company which abandoned the grievance-arbitration

procedures of the contract. It was only after the Union

persisted in striking for almost 9 weeks in the face of

repeated appeals by the Company to settle the grievance

in a peaceful forum that the Company resorted to self-

help.

The record demonstrates that the Company did follow

the grievance procedure and strove to channel the dis-

pute back into this forum even after the Union pre-

maturely abandoned the grievance procedure and en-

gaged in a breach-of-contract strike. Nevertheless, the

court stated that the Company should not only have ad-

hered to the grievance procedure but that it had a duty

to seek specific performance of the grievance procedure

after the Union went on strike.“ The court’s insistence

that the Company had a legal remedy available which

would have been conducive to settling the strike must

7? N.L.R.B. v. Burns International Security Services, Inc., et al.,

406 U.S. 272, 282-283 (1972).

78 630 F.2d at 277.

69a

be evaluated in light of the court’s silence on whether

the company could have obtained a Boys Markets type

injunction pending compliance with the compulsory griev-

ance provisions of the contract.” It is far from clear

that such an injunction was available under the facts of

this case.“ Absent a reasonable expectation that the

Union’s illegal strike would be enjoined pending resolu-

tion of a specific performance suit, the Company should

not be criticized for rejecting this option as unrealistic.

It is unfair to predicate the Company’s use of self-help

on the exhaustion of a legal remedy which would have

left the Company vulnerable to this breach-of-contract

strike for an indeterminate amount of time.

Turning to the willingness of the parties to arbitrate,

it is important to bear in mind that arbitration under

the contract is available once the 5-step grievance proce-

dure is exhausted and the “Union and the Company each

furnish written consent to utilize arbitration.” The court

agreed that the strike was not authorized by the col-

lective-bargaining agreement since “the Union failed to

exhaust the grievance procedures and did not file a writ-

ten request for arbitration.” Nevertheless, the court

later stated that “the only stumbling block to submission

of xe dispute to arbitration was the consent of the par-

ties. The Union had indicated its desire to arbitrate;

the Company never affirmatively sought arbitration.” @

The court’s conclusion that the Union consented to ar-

bitration is based on oral statements made by the Union

during the fourth step grievance meeting. International

Union Representative McDermott did make several re-

quests for immediate arbitration in conjunction with a

* Id. at 277, fn. 17.

See Buffalo Forge, supra, 428 U.S. at 409.

81 520 F.2d at 272.

Id. at 278.

70a

demand that the scheduled change not be put into effect

pending the outcome of arbitration proceedings. The

Company responded to these requests by urging the

Union to “stick to the grievance machinery.” At one

point a company spokesman also reminded the Union

that “the grievance machinery included arbitration.” As

noted by the Administrative Law Judge, these oral and

spontaneous proposals by the Union «elated solely to im-

mdiate arbitration and thus “could not possibly be con-

strued as complying with the specific requirements of

the contract’s grievance and arbitration procedures.” “

There is no evidence that the parties in the past had ever

utilized immediate arbitration bypassing the contractu-

ally provided for grievance-arbitration procedures. As a

prectical matter, the Company's refusal to go to imme-

diate arbitration was not unreasonable and would not

have worked undue hardship on the Union or the em-

ployees. If an arbitrator found a viclation of the con-

tract an appropriate remedy wou!d include compensation

to the employees for backpay lost and an order that the

Company rescind its unilateral change of working condi-

tions. By contrast, postponement of the schedule change

pending the completion of immediate arbitration . ld

have entailed the loss of economic savings by the Com-

pany if the arbitrator ultimately found the change to be

permissible under the contract.“ Thus the Union wanted

arbitration under its own terms but it adamantly refused

to pursue arbitration under the terms of the contract.

Throughout the 9 weeks of the strike the Union ignored

company pleas to return to the grievance procedures of

the contract which included arbitration.

As regards the Company’s willingness to arbitrate, I

am unable to agree with the court’s conclusion that the

88 212 NLRB at 340, fn. 16.

*The Administrative Law Judge noted that tne schedule change

was premised on valid economic and business justifications. 212

NLRB at 335, fn. 2.

71a

Company never affirmatively sought arbitration. Prior

to the strike, the Company repeatedly advised the Union

to follow the contractual grievance and arbitration pro-

cedures. Significantly, the Company submitted uncon-

tested evidence that every previous written request by

the Union under the contract to proceed to arbitration

was met with a written consent by the Company. The

Union ignored the Company’s advice, abandoned the

grievance procedure after the fourth step and went on

strike on June 7, the day the scheduled change was to

be implemented.

Despite this strike in breach of contract, the Company

continued to urge the Union to settle the dispute through

the grie~ance and arbitration provisions of the contract.

Thus, on June 11, Plant Manager Bartolemeo sent a

letter to the employees and the union committee, which

stated in pertinent part:

Disputes between the Company and Union have

arisen before and we were able to resolve them in

a fair manner through the grievance and arbitration

clauses of the contract. In fact, the very dispute

that the strike is over is part way through the griev-

anc? procedure. I think from an employee point of

view that the grievance procedure and arbitration

clause that we have at Allyn’s Point is a good one.

It allows the use of arbitration and determination

as to which of the parties is right by an arbitrator

with no affiliation with the Company or Union.

I sincerely feel that the resolution to the probiem

lies in the grievance and arbitration procedure and

ask you to encourage your Union leadership to re-

turn to the legal and in my opinion morally right

means of solving this probiem.

During the next 2 months, several other letters were

sent to the employees and union committee members

72a

urging them to return to work and informing them that

continued participation in the strike could lead to disci-

pline and even discharge.

The Company welcomed the assistance of state media-

tion officials at various stages of the strike, but these

efforts proved fruitless. On July 26, 1971, the Company

sent a letter to the State Labor Commissioner officially

communicating its “willingness to submit the labor dis-

pute resulting in said strike to arbitration or mediatior.”

A copy of this letter was not sent to the Union, but on

August 2 the substance of the letter was communicated

to the Union when the Company, in a state court pro-

ceeding against the Union, amended its complaint by

adding the following paragraph:

9. On July 26, the Plaintiff notified the Labor

Commissioner of the State of Connecticut in writing

of its willingness to submit the labor dispute result-

ing in said strike or walkout to arbitration or medi-

ation.

This pleading was duly served upon the Union through

its attorneys.

I respectrully submit that the court’s analysis of the

facts is cleariy in error. Even though the Union’s oral

statements indicating a willingness to go to immediate

arbitration are considered sufficient by the court, the

oral statements by the Company advising the Union

to follow the grievance procedure are given little weight

by the court. Similarly, the court declined to view the

letters sent to the strikers ana the union committee as

“approaching a written consent to arbitration.” Finally,

although the court admitted that the letter to the State

Labor Commission “might be read as a consent to ar-

bitration sufficient under the collective bargaining agree-

ment,” the court was satisfied that there wes no evi-

dence that the Union received this letter. Thus, the cour‘

73a

overlooked the fact that the substance of the letter was

communicated to the Union via its attorneys.

The court agreed that the Union failed to process the

grievance through the fifth step of the grievance proce-

dure, did not furnish a written request for arbitration,

and accordingly the strike was in breach of contract. A

written request to proceed to arbitration under the con-

tract was predicated on the exhaustion of the grievance

procedure. Therefore, there was no need for the Company

to furnish a written request to arbitrate since the Union,

by its actions, had already abandoned and repudiated the

contractual grievance and arbitration procedures. Never-

theless, the Company did take positive steps to communi-

cate its willingness to arbitrate. This case is manifestly

not one where the Employer has exploited a technical

breach of contract in order to swiftly strike back at the

Union through self-help responses. Indeed, the Company

withstood the strike for 9 weeks. It remained willing

and eager for the dispute to be resolved in a peaceful

and orderly fashion. Only after the Union had demon-

strated a determination to resist repeated overtures to

resolve the dispute through the grievance-arbitration pro-

vision of the contract, and had ignored warnings that the

Company would resort to more resolute action, did the

Company finally respond to the Union in terms of the

forum that the Union had chosen, that of self-help.

The court contended that the Company “might as easily

have turned the other cheek and taken affirmative steps

to get the dispute back in the available forum.“ “ Even

if I were to accept the proposition that our national labor

policy is premised on the principle that either of the

parties must “turn the other cheek,” surely after en-

during the unprotected strike for 9 weeks, during which

time the Company took positive steps to settle the dispute

in a peaceful forum, the Company was entitled to turn

% 530 F.2d at 281.

74a

to the traditional self-help remedies available to em-

nloyers.

Finally, the court asserted that “as a practical matter

had the company sought a peaceful and orderly resolu-

tion of the underlying dispute it is highly probable that

the union would have at least suspended the strike.” “

This speculation on the part of the court is without foun-

dation under the circumstances of this strike. The Com-

pany did communicate a willingness to arbitrate albeit

even accepting the court’s insistence that this did not

satisfy the contractual requirement of a written consent.

The Union, however, remained on strike. If we are to

speculate according to probabilities, the Company had re-

sponded in kind to every previous written union request

for arbitration and it is highly probable that they would

have done the same if the Union had chosen to utilize

the arbitration sphere.

In view of the foregoing, the Board’s original Decision

was clearly correct in adopting the Administrative Law

Judge’s conclusion that “this is a case where the Union,

not Respondent, failed to comply with the grievance pro-

cedure.” * In addition, the preceding analysis of the

Company’s willingness to resolve the dispute peaceably

strongly supports the key finding of the original Board

Decision that the Company’s conduct “was not of such

serious nature as to be destructive of the foundation on

which collective bargaining must rest,” and therefore,

under Arlan’s, did not excuse the Union from adhering

to its no-strike pledge.“ As discussed above, the Com-

pany continued to urge adherence to the grievance-

arbitration procedures notwithstanding the fact that the

Union had abandoned those procedures in preference for

% Id. at 278.

87212 NLRB at 341.

88 Id. at 340.

75a

a breach- of- contract strike. The Company never objected

to arbitration as countenanced by the contract, in fact

it affirmatively sought arbitration on that basis, and only

declined to postpone the shift change pending immediate

arbitration, as proposed by the Union. The Company’s

refusal to arbitrate outside the contractual framework

was an affirmation of collective-bargaining principles,

rather than a renunciation of them.

Turning to the particular unfair labor practice com-

mitted by the Company, it is important to bear in mind

that what was involved here was a dispute over the

interpretation of the contract, with the Company con-

tending, and the Union denying, that the agreement au-

thorized the shift change. Specifically, the Company re-

lied on the management rights clause and the “Hours of

Work” clause as granting it the authority to make the

change unilaterally. The fact that the Administrative

Law Judge subsequently disagreed with the Company’s

interpretation and held that the change was not sanc-

tioned by the contract is hardly sufficient to warrant the

conclusion that the Company’s conduct constituted a re-

jection of the tenets of collective bargaining. To the

contrary, the Administrative Law Judge found that

“there is no evidence that Respondent held any union

animus, the parties appear to have long enjoyed a har-

monious relationship, and there is no evidence to indi-

cate that Respondent wished to rid itself of the Union.” “

In Arlan’s, the Board defined “serious” unfair labor

practices as those which are “destructive of the founda-

d. It is instructive to note that before the Administrative

Law Judge the General Counsel conceded that “the unilateralism

engaged in by Respondent, even though an unfair labor practice,

was not so serious as to label the strike at its inception on June 7

a protected strike if, as alleged by Respondent, said employees went

out on strike in violation of the contract’s no-strike clause.” /d.

at 338.

76a

tion on which collective bargaining must rest.” In part

II of my opinion, supra, wherein I examined the Board’s

application of the Arlan’s rule, I stated that “the key

inquiry in every case is whether the company’s conduct

is indicative of an intent to devastate the integrity of

the union or a wholesale negation of its contractual ob-

ligations.” In Member Truesdale’s discussion of Arlan’s,

he refers at one point to unfair labor practices which

“undermine the fundamental viability of the collective-

bargaining agreement.” Measuring the Company’s con-

duct by these standards, I can only conclude that the

Board correctly determined in its original Decision that

the unfair labor practice in issue here was not “serious”

within the meaning of the Arlan’s rule.

IV.

In conclusion, I strongly believe that Arlan’s furthers

the policies of the Act by encouraging the use of con-

tractual grievance procedures in preference to strikes in

violation of no-strike clauses, with the proviso that the

organizational integrity of the Union will be protected

when the employer commits serious or major unfair labor

practices. An examination of contemporary labor policy

strengt ens my view that Arlan’s is the correct inter-

pretation of Mastro Plastics, and I have therefore voted

today to retain Arlan’s without modification. Finally,

I am convinced that the Arlan’s rule wes properly ap-

plied by the Board in its original Decis n and accord-

ingly I would reaffirm the Board’s Order dismissing the

complaint in its entirety.

Dated, Washington, D.C. September 17, 1979

JOHN A. PENELLO, Member

NATIONAL LABOR RELATIONS BOARD

* 133 NLRB at 808.

MEMBER TRUESDALE, concurring:

I am separately concurring in order to explain why

I agree with the Board’s decision to adhere to Arlan’s

Department Store, and why, in this instance, the Em-

ployer’s unfair labor practices are serious within the

meaning of Arlan’s and Mastro Plastics.” Of course,

under Arlan’s, a union and employees may not lawfully

ignore a no-strike clause during the term of a negotiated

collective-bargaining agreement and strike in response

to minor or “non-serious” unfair labor practices.

In May 1971, during the term of the collective-bar-

gaining agreement, Respondent announced that it would

alter the work schedules of the latex department em-

ployees, effective June 7. These changes affected 16 em-

ployees, or 13 percent of the work force, and would have

resulted in reduced pay in the amount of 18 cents per

hour for 1 employee, and $570 a year for the remaining

15.“ When the Union requested bargaining on the

change, Respondent refused. Thereafter, the Union filed

a grievance pursuant to the terms of the collective-bar-

gaining agreement. Under that agreement’s limited no-

strike clause, the Union was free to strike after all five

steps in the grievance procedure were completed and cer-

tain other conditions were met. On June 7, however,

prior to the completion of the fifth step in the grievance

procedure, the Union struck.“ Thereafter, on July 29,

„ Arlan's Department Store of Michigan Inc., 133 NLRB 802

(1961) (then-Member Fanning dissenting in part).

Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270 (1956).

on See the original Decision, The Dow Chemical Company, 212

NLRB 333, 335-336 (1974) (then-Member Fanning dissenting

in part).

“The Third Circuit specifically adopted the finding of the

original Board Decision (sub nom., United Steelworkers of America,

AFL-CIO-CLC [The Dow Chemical Company] v. N.L.R.B.) that

the Union had failed to comply with the grievance procedures of

78a

Respondent began hiring replacements; on August 9 it

rescinded the collective-bargaining agreement; and fi-

nally, on August 17 it terminated the striking em-

ployees.“

The original Board Decision neld that Respondent had

violated Section 8(a) (5) by changing the work schedule

unilaterally in contravention of its duty to bargain with

the Union. However, the Board further concluded that,

under Arlan’s Department Store, the unfair labor prac-

tice was nonserious, and that, therefore, Respondent

could lawfully discharge the strikers and use the self-

help remedy of rescission of the collective-bargaining

agreement.“

The Third Cireuit thereafter, in a lengthy decision, re-

manded the case to the Board to review the present

Board law in this area and determine whether it is con-

sistent with “the polestars of the national labor policy

today . . . that industrial strife is to be avoided and that

arbitration or alternative peaceful conflict resolutions are

to be favored.” * Thus, the Board was asked to reassess

the relative obligations of the parties to arbitrate and/or

to seek other peaceful means of settlement before strik-

ing or engaging in other forms of self-help, like rescis-

sion of the collective-bargaining agreement. In the con-

text of these policy considerations, the court was further

the contract and that, accordingly, the strike was not permitted

by the contract:

[Wle would agree with the majority of the Board that the

union failed to exhaust the grievance procedures and that it did

not file a written request for arbitration. Accordingly, the

strike was not one authorized by the contract’s limited reser-

vation of a right to strike. [530 F.2d at 272.]

% 212 NLRB at 336-338.

% Id.

* 530 F.2d at 281.

79a

concerned with the problem of predictability under the

Arlan’s standard.“ As a possible substitute for Arlan’s,

the court suggested that the parties be required to ar-

bitrate or, where there was a mandatory arbitration

clause, to seek an injunction under Boys Markets,” pend-

ing arbitration. The court’s proposed solutions generally

restricted the use of self-help to settle labor disputes, for,

in its view, the expansion of self-help during the terms

of the collective-bargaining agreement was antitheticai

to “the polestars of the national labor policy today,” be-

cause it fostered industrial conflict rather than directing

the parties to a peaceful forum for conflict resolution.

The Board, too, is greatly concerned with minimizing

industrial strife and encouraging stability in collective

bargaining. After thorough consideration of the prob-

lems raised by the court, however, I do not believe that

one possible solution—overruling Arlan’s—would further

the goals of the Act.

To the contrary, overruling Arlan’s would stimulate

conflict. A union, or even temporarily disgruntled em-

ployees, would be free to strike during the contract’s

term in the face of a validly negotiated no-strike clause

in response to any employer provocation—no matter how

isolated and minor—as long as the employer’s conduct

was ultimately found to violate some part of the Act.

Thus, for example, a strike in response to an angry off-

hand remark by a low-level supervisor—if the remark

were found to violate Section 8(a) (1)—would be lawful,

as would be any strike called because of an isolated dis-

charge or other disciplinary action which was later found

to violate Section 8 (a) (3). Yet these actions by the em-

ployer, however deplorable, do not ordinarily undermine

os See discussion infra.

o Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S.

235, 253 (1970).

80a

the fundamental viability of the collective-bargaining

agreement.“

Thus, the overruling of Arlan’s would upset the bal-

ance previously struck under the Act between the rights

and obligations of union and employer, by permitting

drastic self-help action in response to a minor violation—

one which does not strike at the very foundation of the

bargaining relationship. In my view, such a result is con-

trary to the Supreme Court’s original intent in Mastro

Plastics to permit strikes only in response to conduct

“destructive of the foundation on which collective bar-

gaining must rest” and not as a means of retaliation for

every possible employer misconduct.’

Thus, contrary to Chairman Fanning and Member

Jenkins, I am not convinced that increasing the legal

opportunity for strikes over insignificant matters during

the contract’s terms is consistent with the goal of sta-

bility in collective bargaining. On the other hand, I be-

lieve that while Arlan’s has been the law unions and

employees have generally used the other forums available

to them: arbitration under the colleetive-bargaining

agreement or filing unfair labor practice charges with

the Board, an agency created by Congress to minimize

industrial strife. This deterrence of strikes during the

contract’s term is demonstrated by the small number of

cases—only eight since 1962—in which the Board has

had to determine the lawfulness of such work stoppages

under Arlan's. % If Arlan’s were overruled, however, I

10% There could be exceptions where the record reveals a long

history of bad-faith dealings on the part of the employer, or a

series of minor violations from which one can infer an intent to

undermine the foundation on which collective-bargaining rests.

101 Mastro Plastics Corp., supra at 281.

102 These cases are as follows: Paul Biazevich, Dinko Biazevich

and Jerry Kusar d/b/a MV Liberator, et al., 186 NLRB 13 (1962),

enfd. 374 F.2d 974 (9th Cir. 1967), cert. denied, 389 U.S. 913

81a

believe that the number of strikes would inexorably in-

crease, with the risk that minor unfair labor practices

would be seized upon, whether to shortcut the grievance-

arbitration procedure, or even to force variation in the

contract during its terms without collective bargaining.’

While overruling Arlan’s would generally have a nega-

tive effect on stability in collective bargaining, the re-

percussions of such a decision would be particularly ser-

ious for the health care industry. Section 8(g) of the

Act, as added by the 1974 amendments, requires a labor

organization to give health care institution (and the

Federal Mediation and Conciliation Service) not less

than 10 days notice before engaging in “any strike,

picketing, or other concerted refusal to work... . In

the legislative history, however, Congress has indicated

that no notice is necessary “when the employer has com-

mitted unfair labor practices as in Mastro Plastics Corp.

v. N.L.R.B., 350 U.S. 270 (1956) ....” S. Rept. 93-766,

93d Cong., 2d Sess. 4 (1974). Thus, the 10-day notice

applies unless a union strikes in response to flagrant

unfair labor practices. If, however, the Board were to

find that Mastro Plastics permits strikes in response to

any unfair labor practice, despite the presence of a valid

no-strike clause, the logical result would be that unions

(1967); The Cincinnati Penthouse Club, Inc., 168 NLRB 969

(1967) ; Poloron Products of Indiana, Inc., 177 NLRB 435 (1969) ;

Daisy's Originals, Inc., 187 NLRB 251 (1970); enfd. in relevant

part, 468 F.2d 493 (5th Cir. 1972); Atlantic Richfield Company,

199 NLRB 1224 (1972); Kellstone, Inc., 206 NLRB 156 (1973),

enfd. 493 F.2d 1352 (6th Cir. 1974); Television Wisconsin, Inc.,

224 NLRB 722 (1976); and Adroit Manufacturing Co., Northeast

Oklahoma City Manufacturing Company, 236 NLRB No. 167

(1978).

103 As noted above, in fn. 10, it could be that a minor violation

is the straw that breaks the camel’s back, in other words, a series

of minor violations from which a pattern of bad faith can be

inferred might well fit within the contour of Arlan’s.

82a

could also strike a health care institution in response

to any unfair labor practice, without regard to the notice

requirement of Section 8(g). But Mastro Plastics is

clear: the Court only sanctioned strikes in response to

conduct “destructiv. of the foundation on which collec-

tive bargaining must rest.”

Some have argued, however, that the proliferation of

strikes during the contract could be avoided if employers

simply refrained from committing Arlan’s-type unfair

labor practices. This argument assumes too much. In

the first place, when a violation is minor, why should

a strike in violation of a no-strike clause be permitted

at all? Conflicts of this kind, during the terms of a

collective-bargaining agreement, should be resolved in a

peaceful forum. Secondly, it is often extremely difficult

for either an employer or a union to predict whether

borderline conduct by the employer is on the right or the

wrong side of the Act. Without Arlan’s, if the employer

predicts correctly, and the union is wrong, the union’s

strike may result in discharge of all the employees and

rescission of the collective-bargaining agreement. On the

other hand, if the employer is wrong and the union is

correct, the union is free to strike over a minor matter

which could have been satisfactorily resolved by less

draconian means. Neither eventuality is desirable.

By contrast, under Arlan’s, these situations rarely

arise because unions are normally deterred from strik-

ing unless they are reasonably certain that the employer

has not only violated the Act but also has done so in a

4 In two subsequent decisions, the Court stated that Mastro

Plastics applies to situations involving “flagrant” unfair labor

practices. Drake Bakeries Incorporated v. Local 50, American

Bakery & Confectionery Wo ers International, AFL-CIO, 370 U.S.

254, 265 (1962); N.L.R.B. v. Magnavox Company of Tennessee, 415

U.S. 322, 328 (1974).

83a

flagrant manner. This second criterion creates a buffer

zone which with all respect, I believe the Third Circuit

underestimated.

The Third Circuit also criticized Arlan's on the ground

that, under that decision, it is difficult to predict when

the Board will Sind an unfair labor practice to be flagrant

or nonserious. Of course, predictability is important. It

is not, however, an end in itself. Rather, our first re-

sponsibility is s'ways to effectuate the policies of the

Act. In this regard, I agree with Member Penello that

experience has showr that it is rarely possible to promul-

gate clear-cut rules while effectively enforcing the Act.

Accordingly, we should not now overturn a rule of law

which has encouraged stability in bargaining, solely to

eliminate some present uncertainty in result.

Moreover, in examining the Arlan’s precedents cited

at footnote 102, supra, it is well to remember that these

are he tough cases where the line between serious“

and non- serious“ is uncertain. The Board is not pre-

sented with the easier demarcations because these are

resolved by the parties independently, or settled under

the aegis of the General Counsel. Thus, the effectiveness

of Arlau's is not measured by the tough cases, but by

its deterrent effect in more straightforward situations.

The appearance of this issue in only eight cases suggests,

as stated earlier, that it has been a powerful deterrent

in that zone of cases where the legality of the employer’s

conduct is uncertain, and its impact on the bargaining

unit ie, at most, minimal.

Thus, I would, in answer to the Third Circuit’s

thoughtfui opinion, adhere tu the Arlan’s decision, while

making every effort to attain consistency and predict-

ability of result. Moreover, like my colleagues, I do not

think that the Board should require an employer to seek

a Boys Markets injunction and order compelling arbitra-

84a

tion prior to its using available self-help remeaies.'” In

Buffalo Forge, the Court made clear that the Boys Mar-

kets exception to Norris-La Guardia’s prohibition on

court injunctions of strikes is a narrow one,“ and that

the district cc arts should proceed with caution in issuing

such injunctions. In light of this decision, and its under-

lying premise of noninterference in labor relations mat-

ters, it seems unwise to add another tier of litigation,

which, on the one hand, is both expensive and time-

consuming, and, on the other, not likely to produce a

final resolution to the conflict.“ Final resolution through

the courts is unlikely because of the narrow application

of Boys Markets, and because arbitration under the

compulsion of a court order is less likely to be fruitful,

since the degree to which arbitration is successful de-

pends so largely on the willingness of the parties to

participate.

Nevertheless, where an employer has committed an un-

fair labor practice, albeit “minor,” it is inequitable to

permit the employer to benefit from its unlawful con-

duct, by allowing it, consistent with Marathon Electric

Mfg. Corp., os to rescind the collective-bargaining agree-

ment. Accordingly, I would modify the Marathon Elec-

tric rule to make it unlawful for an employer to rescind

the collective-bargaining agreement where it has com-

mitted any unfair labor practice, however minor. This

1% Of course, Respondent here could not seek relief because it did

not have a mandatory arbitration clause.

10% Buffalo Forge Co. v. United Steelworkers of America, AFL-

CIO, et al., 428 U.S. 397, 406 (1976), quoting Boys Markets, 398

U.S. at 253.

17 In Buffalo Forge, supra at 401, the Court also expressed con-

cern about district courts becoming involved in these matters.

108 106 NLRB 1171 (1955), affd. sub nom., Local No. 1113, United

Electrical Radio and Machine Workers of America v. N.L.R.B., 223

F.2d 338 (D.C. Cir. 1955), cert. denied, 350 U.S. 981 (1956).

85a

modification of Marathon is more equitable since the

employer will not benefit from his wrongdoing. It also

corrects the anachronism of Marathon, that pure con-

tract principles are allowed to dominate important poli-

cies of the Act. Indeed, in Mastro Plastics itself, the

Court recognized that the policies and purpose of the

Act must take precedence over pure contract law, absent

an explicit waiver in the contract.” Here, I would find

that the Act’s goal of facilitating collective bargaining

and establishing a stable relationship is not fostered by

permitting an employer to reject an agreement after a

union strikes (albeit unlawfully) in protest of the em-

ployer’s own unlawful conduct. Thus, I agree with Pro-

fessor Cox’s criticism of the Marathon Electric rule as

inconsistent with the peculiar nature of a collective-bar-

gaining agreement.“ I would not, however, analyze the

problem, as Professor Cox does, in terms of “material

breach of contract” where, as here, we are dealing with

an initial unfair labor practice as the precipitating cause

of the strike.

Finally, I join the majority in its ultimate resolution

of this case because Respondent’s unfair labor practice

was a serious one, and Respondent, as found by the

court, was the least willing to arbitrate." As the ma-

jority decision states, Respondent's proposed changes in

the work schedule entailed considerable loss of remunera-

tion to 16 of 19 employees whose shifts were to be changed,

a loss that employees could only view as a grave viola-

tion of the bargaining obligations required of Respond-

100 350 U.S. at 279-280. And see N.L.R.B. v. Hearst Publication:,

Inc., 322 U.S. 111, 123-124 (1944), where the Supreme Court

rejected a common law definition of “employer” as inconsistent

with the fundamental purposes of the Act.

110 Cox, “The Legal Nature of Collective Bargaining Agree-

ments,” 57 Mich L. Rev. 1, 18 (1958).

111212 NLRB at 336.

86a

ent . . and one that undermined the status and au-

thority of the Union.” And, as stated earlier, one em-

ployee was transferred to a position which paid 18 cents

less per hour, while the remaining employees would lose

approximately $570 a year because of the reduction in

hours, and loss of overtime, holiday, and premium pay.“

Certainly, the unilateral reduction in the income of a

significant part of the work force—coupled with Re-

spondent’s failure to take affirmative steps to obtain

binding arbitration of the dispute—constituted a ma-

terial, substantial, and significant” change in violation

of Section 8 (a) (5)""* which struck at the heart of the

collective-bargaining relationship. This is so because Re-

spondent’s actions undermined the good faith and trust

which are uniquely important to the successful adminis-

tration of a collective-bargaining agreement. For this

reason, I agree with the majority’s conclusion that the

strike was lawful.

Dated, Washington, D.C. September 17, 1979

JOHN C. TRUESDALE, Member

NATIONAL LABOR RELATIONS BOARD

11 In accordance with the court’s remand, and for purposes of

this case alone, I have, with my colleagues, considered the relative

willingness of the parties to arbitrate. Respondent’s relative un-

willingness to proceed with arbitration exacerbates the seriousness

of its unfair labor practice. I was not, however, a Member of the

Board when the underlying finding of an 8(a)(5) violation was

made.

113 See, e.g., Nathan Littauer Hospital Association, 229 NLRB

1122 (1977).

87a

APPENDIX A

Allen, Dwayne

Allen, Horace

Angeloszek, Stanley

Banas, Joseph

Banker, Paul

Barlow, Alfred

Blatchford, Arthur

Bresnan, Cornelius

Brown, Russell

Bryant, Roland

Butova, Frank

Butremovic, Chas., Sr.

Calkins, John

Caron, Ronald

Cimochowski, Joseph

Clark, George

Daley, John

Delsio, John

Deshefy, Elmer

Dotolo, Jerry

Dziekonski, Mieczyslaw

Faille, Robert

Fear, Delbert ~

Fenn, Thomas

Foster, Jesse

Gay, Kenneth

Geragotelis, William

Golart, John

Hand, Alvin

Hunter, Bruce

Jolin, Ernest

Jones, Burgess

Jurezik, Peter

Keith,

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