Record and brief — Falls Stamping & Welding Co. v. International Union, United Automobile, Aircraft & Agricultural Implement Workers

Supreme Court brief1982

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61-1348 FILED

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No. anes \ STEVAg,

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In the Supreme Court of the United States

October Term, 1981

FALLS STAMPING & WELDING COMPANY,

Petitioner,

vs.

THE INTERNATIONAL UNION, UNITED AUTOMOBILE,

AIRCRAFT & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, etal.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Epwarp C. KAMINSKI

Counsel of Record

P.O. Box 1500

I Cascade Plaza

Akron, Ohio 44309

(216) 376-5300

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED FOR REVIEW

I. Whether a union has standing to maintain a damage

action on behalf of discharged strikers pursuant to Sec-

tion 301, Labor Management Relations Act.

II. Whether an employer has a federal substantive

right to discharge employees striking in violation of the

collective bargaining agreement.

PARTIES

The petitioner is The Falls Stamping & Welding Com-

pany, an Ohio corporation, located in Cuyahoga Falls, Ohio.

The respondents are The International Union, United

Automobile, Aircraft & Agricultural Implement Workers of

America, and its Local Union No. 1194, United Automobile,

Aircraft & Agricultural Implement Workers of America,

and Thomas E. Heffernan, president of Local Union No.

1194.

Ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .................... I

ED eabinscsevcichinibdncssitenipbiiedintsenieunsedendibamiianeiuapentiminnttene II

OFFICIAL REPORTS OF OPINIONS BELOW ............ 2

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THE COURT IS INVOKED .... 2

STATUTORY PROVISIONS INVOLVED .................... 3

ose ve | ly it diy fo | 6

TIT enstinnincstnnncicinsesecintsisinmniatviteaiinannanicinneniininins 10

REASONS FOR GRANTING THE WRIT .................... 11

1. The decision below raises a significant question

that should be reviewed by this Court concern-

ing a union’s standing to maintain a damage ac-

tion for discharged strikers ............... 11

2. The decision below raises a significant question

that should be reviewed by this Court concern-

ing an employer’s right to discharge employees

engaged in a strike in breach of a collective bar-

gaining agreement ....................... » a

SUSUETIETITTITIITIET tnci-seteichidaeisiapnesdahnsieincaniapdiadedieneestadeantiteiaheision 17

APPENDIX:

Opinion of the Court of Appeals for the Sixth Cir-

SINT STERN D Al

Judgment Entry of the Court of Appeals for the

Sixth Circuit (May 24, 1978) 02022... eceeceeeeeee A4

Judgment Entry of the United States District Court

(July 6, 1976) ; A6

Memorandum Opinion and Order of the United

States District Court (July 6, 1976) ...................... A7

Arbitrator’s Award (May 28, 1976) .......0....-ccccee Als

Order of the United States District Court (Septem-

- | | eee A8l

Iv

Judgment Entry of the United States District Court

eee A&8

Order of the United States Court of pore for the

Sixth Circuit on Second “oe (October 22,

EE seneincieninsasideaientnensenpententteeniennimnnenionen A94

TABLE OF AUTHORITIES

Cases

Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962) ..... 17

Boys Market, Inc. v. Retail Clerks, 398 U.S. 235 (1970)

Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212

(1979) 17

Complete Auto Transit, Inc. v. Reis, 451 U.S. 401 (1981)

senuosiaiinsdiaianiadail 14, 15,17

Smith v. Evening News Ass'n n, 371 U.S. 195 (1962) ....12, 13

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

(1957)... en hindi tae SN LR 14, 16

United Steelworkers v. American Manuyacturing Co.,

Se 9,16

United Steelworkers v. Enterprise Wheel & Car Corp.,

RS 9, 16

United Steelworkers v. Warrior & Gulf Navigation Co.,

8: 8 2 ee ienlnameidicinagdl 9, 16

Statutes and Rules

Arbitration Act:

fF ee 4, 8, 10,11

9 U.S.C. §11 5

Labor-Management Relations Act:

ee ee passim

Federal Rules of Civil Procedure, Rule 23 .................... 13

No.

In the Supreme Court of the United States

Ociober Term, 1981

FALLS STAMPING & WELDING COMPANY,

Petitioner,

vs.

THE INTERNATIONAL UNION, UNITED AUTOMOBILE,

AIRCRAFT & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, etal.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

The petitioner Falls Stamping & Welding Company

respectfully prays that a writ of certiorari issue to review

the judgments and opinions of the United States Court of

Appeals for the Sixth Circuit entered in this proceeding.

OFFICIAL REPORTS OF OPINIONS BELOW

Falls Stamping & Welding Co. v. UAW, 416 F. Supp.

574 (N.D. OH. 1976) (Printed in Appendix at p.

A7).

Falls Stamping & Welding Co. v. UAW, 575 F.2d 1191

(6th Cir. 1978) (Appendix p. Al).

Falls Stamping & Welding Co. v. The International

Union, United Automobile, Aircraft and Agri-

cultural Implement Workers of America, 485 F.

Supp. 1097 (N.D. OH. 1979).

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THE COURT IS INVOKED

Petitioner seeks review of two orders of the Court of

Appeals for the Sixth Circuit: (1) An order and judg-

ment reversing the district court’s vacation of a labor

arbitration award and remanding the case to the district

court, dated May 24, 1978 (Appendix page Al); (2) and

an order affirming the district court’s judgment for dam-

ages for 78 employees, dated October 22, 1981 (Appendix

page A81).

This Court has jurisdiction to review the Questions

Presented by virtue of the provisions of United States

Code, Title 28, §1254.

STATUTORY PROVISIONS INVOLVED

1. Uni‘ed States Code, Title 29, §185, §301 Labor-

Management Relations Act:

Suits by and against labor organizations

(a) Suits for violation of contracts between an

employer and a labor organization representing em-

ployees in an industry affecting commerce as defined

in this chapter, or between any such labor organiza-

tions, may be brought in any district court of the

United States having jurisdiction of the parties, with-

out respect to the amount in controversy or without

regard to the citizenship of the parties.

(b) Any labor organization which represents em-

ployees in an industry affecting commerce as defined

in this chapter and any employer whose activities af-

fect commerce as defined in this chapter shall be bound

by the acts of its agents. Any such labor organization

may sue or be sued as an entity and in behalf o. the

employees whom it represents in the courts of the

United States. Any money judgment against a labor

organization in a district court of the United States

shall be enforceable only against the organization as

an entity and against its assets, and shall not be en-

forceable against any individual member or his assets.

(c) For the purposes of actions and proceedings

by or against labor organizations in the district courts

of the United States, district courts shall be deemed to

have jurisdiction of a labor organization (1) in the

district in which such organization maintains its prin-

cipal office, or (2) in any district in which its duly

authorized officers or agents are engaged in represent-

ing or acting for employee members.

4

(d) The service of summons, subpoena, or other

legal process of any court of the United States upon

an officer or agent of a labor organization, in his

capacity as such, shall constitute service upon the

labor organization.

(e) For the purposes of this section, in deter-

mining whether any person is acting as an “agent” of

another person so as to make such other person re-

sponsible for his acts, the question of whether the

specific acts performed were actually authorized or

subsequently ratified shall not be controlling.

2. United States Code, Title 9, §10:

Arbitration; vacation; grounds; rehearing

In either of the following cases the United States

court in and for the district wherein the award was

made may make an order vacating the award upon

the application of any party to the arbitration—

(a) Where the award was procured by corrup-

tion, fraud, or undue means.

(b) Where there was evident partiality or cor-

ruption in the arbitrators, or either of them.

(c) Where the arbitrators were guilty of miscon-

duct in refusing to postpone the hearing, upon suffi-

cient cause shown, or in refusing to hear evidence

pertinent and material to the controversy; or of any

other misbehavior by which the rights of any party

have been prejudiced.

(d) Where the arbitrators exceeded their powers,

or so imperfectly executed them that a mutual, final,

and definite award upon the subject matter submitted

was not made.

(e) Where an award is vacated and the time

within which the agreement required the award to

be made has not expired the court may, in its discre-

tion, direct a rehearing by the arbitrators.

3. United States Code, Title 9, §11:

Arbitration; modification or correction;

grounds; order

In either of the following cases the United States

court in and for the district wherein the award was

made may make an order modifying or correcting

the award upon the application of any party to the

arbitration—

(a) Where there was an evident material miscal-

culation of figures or an evident material mistake in

the description of any person, thing, or property re-

ferred to in the award.

(b) Where the arbitrators have awarded upon

a matter not submitted to them, unless it is a matter

not affecting the merits of the decision upon the matter

submitted. ;

(c) Where the award is imperfect in matter of

form not affecting the merits of the controversy.

The order may modify and correct the award,

so as to effect the intent thereof and promote justice

between the parties.

STATEMENT OF THE CASE

Petitioner manufactures parts, primarily for the auto-

mobile industry in Cuyahoga Falls, Ohio. Petitioner’s ap-

proximately 90 production and maintenance employees

were represented for purposes of collective bargaining by

the respondents The International Union, United Auto-

mobile, Aircraft & Agricultural Implement Workers of

America and its Local Union No. 1194, United Automobile,

Aircraft & Agricultural Implement Workers of America,

hereinafter referred to as the “unions”.

On September 9, 1975, petitioner’s employees com-

menced a strike in violation of the terms of the collective

bargaining agreement which provided that:

During the term of this Agreement, the Union,

its officers and stewards shall not instigate, promote,

sponsor, or engage in a strike, Siowdown, stoppage

of work, or any other interruption of production. In

the event any employee or group of employees covered

by this Agreement participate in a strike, slowdown,

stoppage of work, or any other interruption of produc-

tion, the Union shall immediately, upon being notified

by the Company, instruct any such employee or group

of employees to resume work immediately. The Com-

pany shall have the right to discharge or otherwise

discipline any employee who does engage in a strike,

slowdown, stoppage of work or interference with Com-

pany’s operation during the term of this Agreement

any discipline or discharge as a result of the foregoing

is subject to the grievance procedure.’

1. The collective bargaining agreement has not been re-

produced in the Appendix as there is no dispute regarding its

provisions.

7

On September 11, 1975, the United States District

Court for the Northern District of Ohio, Eastern Division,

issued a temporary restraining order enjoining the unions

and the employees from striking and picketing. The strike

and picketing continued after the issuance of the temporary

restraining order and the petitioner notified the strikers

on September 13, 1975 that they must return to work

by September 16, 1975 or be terminated.

The strikers did not return to work on September

16, 1975, and they were terminated by the petitioner.

The unions filed and processed grievances for approxi-

mately 90 discharged employees.

On November 25, 1975, the district court entered an

order for a permanent injunction specifically finding that

the members of the unions had “participated in a strike/

walkout in violation of the no-strike clause.”

The grievances were submitted to an arbitrator on

May 28, 1976, pursuant to the provisions of the collective

bargaining agreement, which provided, in part, that:

The arbitrator’s powers shall be limited to the

application and interpretation of this Agreement as

written. He shall at all times be governed wholly

by the terms of this Agreement and he shall have

no power or authority to amend, alter or modify this

Agreement in any respect or shall he consider any

statute or laws not specifically incorporated herein.

. The arbitrator’s decision shall be final and bind-

ing upon the Union, Company and employees.

The union and the employees asked the arbitrator

to reinstate all of the discharged employees to employment

with seniority and back pay for the period of unemploy-

ment. Testimony and evidence were submitted to the

arbitrator over a nine day hearing and on May 28, 1976,

the arbitrator, and his award provided:

The grievances are sustained in part as follows: All

discharged employees . . . are reinstated with senior-

ity . . . but without back pay, effective not later

than five working days from receipt of this Award

(Appendix, pages A79-A80).

The arbitrator found that the strike was in violation

of the no strike clause of the collective bargaining agree-

ment and predicated his order of reinstatement on the

finding that the petitioner had “unclean” hands, which

caused the employees to take matters into their own hands,

hence, “the penalty of discharge was inappropriate.” (Ap-

pendix, page A78).

On June 7, 1976, the petitioner filed a Petition To

Vacate and/or siodify Arbitration Award pursuant to

the Arbitration Act, United States Code, Title 9, §10.

The unions filed an answer and two cross-complaints: One

for an affirmance of the arbitrator’s award; the second

counterclaim for damages in the amount of one million

dollars for failing to reinstate the strikers on the date

ordered by the arbitrator.

On July 6, 1976, the district court entered an order

and judgment granting petitioner’s Petition to Vacate hold-

ing that the arbitrator had no power to order the reinstate-

ment of strikers in view of the clear provisions of the

no strike clause (Appendix, page Al7). The judgment

also granted judgment for the petitioner “against defen-

dants on the latters’ counterclaims” (Appendix, page A17).

The unions appealed the district court’s order and judg-

ment vacating the arbitration award to the United States

Court of Appeals for the Sixth Circuit. The union did not

appeal the judgment dismissing the second counterclaim

for damages for the discharged employees.

The court of appeals, in reversing the district court,

did not agree with the decision that the arbitrator had no

authority to reinstate the strikers. The court of appeals

noted that the no strike clause concluded with a statement

providing “any discipline or discharge would be subject to

the grievance procedure.” The court of appeals held, on

the basis of the foregoing and that the district court could

not review the arbitrator’s decision pursuant to this Court’s

decisions in the Steelworkers’ Trilogy: United Steel-

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

(1960); United Steelworkers v. Warrior & Gulf Nav. Co.,

363 U.S. 574 (1960); United Steelworkers v. American

Mfg. Co., 363 U.S. 564 (1960).

The case was remanded to the district court “with

instructions to reinstate the award of the arbitrator” in the

court of appeals’ decision dated May 24, 1978 (Appendix,

page A3).

Pursuant to the court of appeals’ decision the petitioner

offered to reinstate all the discharged strikers. Most of

the strikers accepted the offer. At the time of reinstate-

ment of the strikers, the unions were no longer the collec-

tive bargaining representative of petitioner’s employees.

Subsequent to the expiration of the collective bargaining

agreement on May 19, 1977, the unions engaged in an

economic strike against the petitioner and, during the strike,

petitioner’s employees decertified the unions in proceedings

before the National Labor Relations Board.

Upon remand, the unions moved the district court to

revive their counterclaim for damages. The district court

entered an order on September 8, 1978, granting the

10

unions’ motion and providing a procedure for the receipt

of evidence of the damages claimed by the unions on

behalf of individual strikers (Appendix, page A3). The

district court referred the matter to a special master and

ultimately entered judgment awarding damages to 72 of

the strikers for a total amount of $443,250.36 (Appendix,

page A8s).

Petitioner appealed the district court’s damage judg-

ment to the United States Court of Appeals for the Sixth

Circuit, which affirmed the district court in an Order dated

October 22, 1981 (Appendix, page A94). Petitioner raised

the first question presented herein, the issue of the unions’

standing to sue for damages for its members, but the Court

of Appeals did not address the issue. It is from this order

of October 22, 1981 and the earlier order of May 24, 1978,

that petitioner seeks a Writ of Certiorari.

JURISDICTION BELOW

The jurisdiction of the federal courts was invoked in

the first instance in this matter by virtue of the Arbitra-

tion Act, United States Code, Title 9, $10, and Title 29,

$185, §301 Labor Management Relations Act, by petitioner's

filing of its Petition To Vacate and/or Modify the Arbitra-

tors’ Award.

ll

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW RAISES A SIGNIFI-

CANT QUESTION THAT SHOULD BE RE-

VIEWED BY THIS COURT CONCERNING A

TINION’S STANDING TO MAINTAIN A DAMAGE

ACTION FOR DISCHARGED STRIKERS.

This litigation commenced with petitioner’s action in

the district court, pursuant to the Arbitration Act, 9 U.S.C.

$10, to vacate an arbitrator’s award which ordered the

reinstatement of some 90 discharged strikers without back

pay. The unions counterclaimed for enforcement of the

award under the Arbitration Act. The unions also counter-

claimed for common-law damages for the strikers based

upon the petitioner’s alleged malicious and willful refusal

to reinstate the strikers within the time ordered by the

arbitrator.

The unions failed to appeal the district court’s dis-

missal of the counterclaim when they appealed the decision

vacating the arbitration award. The Sixth Circuit’s remand

of the arbitration award to the district court with instruc-

tions to reinstate the arbitration award made no reference

to the counterclaim for damages. The district court, upon

remand, revived the counterclaim and referred it to a

special master to determine the amount of damage to each

striker. The matter thereafter proceeded as a back pay

hearing with no amendment to the pleadings. The district

court never explained the statutory or common law basis

of the action supporting the counterclaim. It is obvious

that the district court treated the counterclaim as an ar-

bitrable matter; as though the arbitrator had decided that

the strikers were entitled to back pay along with reinstate-

ment, despite the fact that the arbitrator specifically ruled

12

that the claim for back pay was denied (Appendix, page

A80). The damage judgment in favor of the individual

strikers was appealed to the Sixth Circuit, which affirmed

the district court, without answering the question whether

the federal courts have jurisdiction to entertain a union’s

damage claim for individual employees.

While the counterclaim did not allege Section 301,

Labor Management Relations Act, as the jurisdictional

basis for the counterclaim, it was treated by the courts

below as a 301 action, as obviously, that is the only basis

upon which the claim may even arguably stand.

This Court has never decided this question regarding

the union’s standing to maintain a 301 action for damages

for its members. Smith v. Evening News Ass’n, 371 U.S.

195 (1962), is frequently cited for the proposition that

federal courts will entertain damage actions for individual

employers under Section 301, however, that principle is dis-

tinguishable from the issue in this case. Smith was de-

cided very early in the history of the substantive fed-

eral labor law, while the debate was whether Section

301 was a procedural statute granting unions access to

the federal courts only to apply state contract law, or,

whether Section 301 anticipated a body of federal sub-

stantive labor law. The focus in Smith was not yet on

the substance of that federal labor law.

In Smith this Court was dealing with the question of

the individual employees’ right to bring a 301 action.

Smith, the plaintiff, was an employee of the Evening News

and had obtained assignments from his co-workers to rep-

resent their interests in their wage claim against the

Evening News. There was no grievance procedure in the

contract. The action was filed in the Michigan courts

which ultimately held that the employees could not brinr

13

the action to enforce their contractual rights because the

matter was within the exclusive jurisdiction of the National

Labor Relations Board. This Court’s holding in Smith is

that individual employees may bring a 301 action, in their

own capacity, to enforce their contract rights.

In this case, the individual employees are not parties,

they have not made an assignment of rights to the union

and the union does not purport to be a class representative

pursuant to Rule 23, Federal Rules of Civil Procedure.

The union simply alleged a common law claim for damages

upon the petitioner’s failure to reinstate strikers to work

within five days of the arbitrator’s award. The relief re-

quested was for compensatory and punitive damages.

The question raised by this counterclaim is whether

the federal courts have jurisdiction over a union’s action

for common law damages for its members.

Section 301 of the Labor Management Relations Act

is the only basis upon which the counterclaim can arguably

stand. The first section of Section 301, in paragraph a,

provides:

Suits for violation of contracts between an em-

ployer and a labor organization representing employees

in an industry affecting commerce, as defined in this

chapter, or between any such labor organizations, may

be brought in any district court of the United States

having jurisdiction of the parties. . . .

Then in Section 301(b):

. . . Any such labor organization may sue or be

sued as an entity and in behalf of the employees whom

it represents in the courts of the United States. . .

It is fair to state that Section 301(a) only authorizes

unions to bring suits for violations of a collective bar-

14

gaining agreement. The counterclaim in issue here is the

petitioner’s failure to reinstate employees and the remedy

sought is damages for the employees. The counterclaim

simply is a claim for common law damages and noi a suit

for violation of the collective bargaining agreement, hence,

the lower courts had no jurisdiction to entertain the coun-

terclaim.

Section 301(b) simply provides the union with the

standing to bring such suits as a legal entity. This Court,

in Textile Workers Union v. Lincoln Mills, 353 U.S. 448

(1957), quoted the legislative history of Section 301 in stat-

ing that the purpose of Section 301 was to provide for

“suits by unions as legal entities and against unions as

legal entities in the Federal courts in disputes affecting

commerce.” 353 U.S. 454. There is nothing in Section 301,

the legislative history or in this Court’s prior decisions

that suggest that a union has standing to maintain a com-

mon law damage action on behalf of its members against

their employer.

This issue is particularly timely in view of this Court’s

recent decision in Complete Auto Transit, Inc. v. Reis, 451

U.S. 401 (1981). This Court held that an employer cannot

maintain a damage action under Section 301 against in-

dividual unlawful strikers. This Court noted that Con-

gress preferred, as the employer’s remedy against unlawful

strikers, the employer’s right to discharge the strikers.

The petitioner exercised that right and discharged the

unlawful strikers. Yet, the Sixth Circuit has ruled that

the union has a damage action against the petitioner on

behalf of the unlawful strikers.

In Complete Auto Transit, supra, this Court expressly

acknowledged Congress’ intent that while an employer

cannot sue unlawful strikers for damages, it has a right

to discharge them, yet the Sixth Circuit has ruled that

these employees can engage in an unlawful strike, defy a

15

federal court’s injunction and, still, the union can main-

tain an action on their behalf to collect damages from

the employer. This Court should grant a review of the de-

cision below as this question presents a significant and

basic issue that has never been addressed by this Court

since it decided that Congress contemplated a body of sub-

stantive labor law pursuant to Section 301.

2. THE DECISION BELOW RAISES A SIGNIFI-

CANT QUESTION THAT SHOULD BE RE-

VIEWED BY THIS COURT CONCERNING AN

EMPLOYER’S RIGHT TO DISCHARGE EM-

PLOYEES ENGAGED IN A STRIKE IN BREACH

OF A COLLECTIVE BARGAINING AGREE-

MENT.

Section 301 of the Labor Management Relations Act

establishes the right of employers to discharge employees

engaged in unlawful strikes. In Complete Auto Transit v.

Reis, 451 U.S. 401 (1981), this Court held that Congress

in enacting Section 301 of the Labor Management Rela-

tions Act, did not intend that employees should be sued

for their breach of contract, but rather that “it preferred

discharge as the employer’s remedy under Section 301

where employees violate the no-strike provision of their

collective bargaining agreement.”

In this case, the petitioner first obtained an injunction

against the unlawful strike pursuant to Boys Market, Inc.

v. Retail Clerks, 398 U.S. 235 (1970). The strikers ignored

the injunction and the petitioner invoked its right to dis-

charge the unlawful strikers.

The union filed grievances on behalf of the discharged

strikers, which were ultimately presented to an arbitrator.

The collective bargaining agreement specifically stated

that the petitioner had the right to discharge unlawful

strikers. The arbitrator acknowledged that the strike

16

was unlawful, yet he exercised the powers of a chancellor

in equity and ordered the strikers to be reinstated because

the petitioner “had unclean hands.” (Appendix, page A78).

The federal district court vacated the arbitrator’s award

as it found that there was no basis for the award “in view

of the clarity of [petitioner’s] right to discharge the striking

employees” (Appendix, page Al7).

The Sixth Circuit reversed the district court and held:

“That arbitration as a means of settling labor disputes is

favored in that courts refuse to review the merits of an

arbitration award, seeking to effectuate the policy that

labor disputes should be resolved by arbitration. See

United Steelworkers v. Enterprise Wheel & Car Corp., 363

U.S. 593 (1960); United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960); United Steelworkers

v. American Manufacturing Co., 363 U.S. 564 (1960).” (Ap-

pendix, page A3).

The decision of the Sixth Circuit below is that an arbi-

trator’s decision is final and binding upon everyone, even

the federal courts. This Court clearly never intended that

result and where an arbitrator’s award denies an employer

the right to discharge unlawful strikers for no reason, ex-

cept the arbitrator’s whim, the feaeral courts should va-

cate the award. This Court commenced the fashioning of

a body of federal substantive labor law with the belief

that Congress intended to “promote collective bargaining

that ended with agreements not to strike.” Textile Work-

ers Union v. Lincoln Mills, 353 U.S. 448, 453 (1957). Since

then, this Court has carefully balanced the interests of the

parties: In the Steelworkers Trilogy’ it required employ-

ers to arbitrate and to be bound by arbitrators’ decisions;

2. United Steelworkers v. Enterprise Wheel & Car Corp.,

supra; United Steelworkers v. Warrior & Gulf Navigation Co.,

supra; United Steelworkers v. American Manufacturing Co.,

supra.

17

in Boys Market, Inc. v. Retail Clerks, supra, this Court said

that, as the quid pro quo for the unions and employees’

right to arbitrate, the employer was entitled to an injunc-

tion against unlawful strikes; then the Court, in essence,

granted unions, their officers and members immunity from

damage actions by the employer in favor of arbitration

where there were unlawful strikes. See Atkinson v. Sin-

clair Refining Co., 370 U.S. 238 (1962); Carbon Fuel Co.

v. United Mine Workers, 444 U.S. 212 (1979); Complete

Auto Transit v. Reis, supra. This Court surely did not

intend to discourage unlawful strikes in favor of arbitra-

tion in the first instance, and then, permit the federal

courts to allow an arbitrator to reward unlawful strikers

by reinstating them directly contrary to the terms of the

collective bargaining agreement. That is the result of the

Sixth Circuit’s decision.

This Court should continue the process of balancing the

interests of the parties in furtherance of the policy of dis-

couraging unlawful strikes in favor of arbitration by re-

viewing this case and, hopefully, ruling that the federal

courts retain jurisdiction over federal labor matters and

can vacate an arbitrator’s award that denies an employer's

right to discharge unlawful strikers.

CONCLUSION

For the reasons stated herein, this Court should grant

this Petition for a Writ of Certiorari.

Respectfully submitted,

Epwarp C. KAMINSKI

Counsel of Record

P.O. Box 1500

I Cascade Plaza

Akron, Ohio 44309

(216) 376-5300

Counsel for Petitioner

xipuaddy

Al

APPENDIX

OPINION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Decided and Filed May 24, 1978)

No. 76-2637

UNITED STATES COURT OF APPEALS

For THE SIxTH CIRCUIT

x

FALLS STAMPING & WELDING COMPANY,

Plaintiff-Appellee,

Vv.

THE INTERNATIONAL UNION, UNITED AUTOMOBILE,

AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA,

Defendants-Appellants.

AppeaL from the United States District Court for the

Eastern District of Ohio.

Before Puitirps, Chief Judge, Epwarps and ENGEL,

Circuit Judges.

Per CurtAM. The International Union, United Auto-

mobile, Aircraft & Agricultural Implement Workers of

America (the union) appeals from the judgment of the

district court vacating the award of an arbitrator in a

labor dispute. Reference is made to the decision of the

district court for a recitation of pertinent facts. Falls

Stamping & Welding Co. v. U.A.W., 416 F. Supp. 574 (N.D.

Ohio 1976).

A2

Appellee Falls Stamping & Welding Company (the

company) entered into a collective bargaining agreement

with the union containing the following no-strike clause:

The Company shall have the right to discharge or

otherwise discipline any employee who does engage

in a strike, slowdown, stoppage of work, or interfer-

ence with Company’s operation during the term of

this Agreement, any discipline or discharge as a result

of the foregoing is subject to the grievance procedure.

(emphasis added).

In September 1975, approximately 93 employees were

discharged following a series of wildcat strikes over the

disciplining of certain employees. The union processed

the grievances of the discharged employees pursuant to

the collective bargaining agreement, which required ar-

bitration. The arbitrator ordered that all of the em-

ployees should be reinstated with seniority but without

backpay. Subsequently, the company filed this action

under section 10 of the United States Arbitration Act of

1947, 9 U.S.C. § 10, to vacate or modify the award on

the ground that the arbitrator had exceeded his authority

by granting relief in contravention of the express terms

of the collective bargaining agreement.

The district court vacated the order of the arbitrator,

primarily on the authority of Amanda Bent Bolt Co. v.

U.A.W., 451 F.2d 1277 (6th Cir. 1971), finding that the

award of the arbitrator was contrary to the express lan-

guage of the contract. We conclude that Amanda is not

controlling in the present case and reverse.

In Amanda, this court held that when an employer

reserves the unequivocal right to discharge employees who

violate the no-strike provision of a collective bargaining

A3

agreement, an arbitrator has no authority to order rein-

statement. In the present case, however, the company ex-

pressly agreed that the discharge of employees for par-

ticipating in a strike would be subject to the grievance

procedure set forth in the contract. This procedure in-

cluded arbitration.

In Amanda, we recognized the following general rule:

(T]hat arbitration as a means of settling labor disputes

is favored and that courts refuse to review the merits

of an arbitration award, seeking to effectuate the

policy that labor disputes should be resolved by ar-

bitration. See United Steelworkers v. Enterprise

Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.

2d 1424; United Steelworkers v. Warrior & Gulf

Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409;

United Steelworkers v. American Mfg. Co., 363 U.S.

564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers

v. Caster Mold & Machine Co., 345 F.2d 429 (6th Cir.).

451 F.2d at 1278.

We conclude that the cases cited in the foregoing

quotation and the opinion of this court in Timken Co. v.

Local 1123, United Steelworkers, 492 F.2d 1178 (6th Cir.

1974), require reversal. Accordingly, the judgment of the

district court is reversed and the case is remanded with

instructions to reinstate the award of the arbitrator.

A4

JUDGMENT ENTRY OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed May 24, 1978)

No. 76-2637

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

FALLS STAMPING & WELDING COMPANY,

Plaintiff-Appellee,

Vv.

THE INTERNATIONAL UNION, UNITED AUTOMO-

BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA,

Defendants-Appellants.

Before: Puxiturps, Chief Judge, Epwarps and ENGEL, Cir-

cuit Judges.

JUDGMENT

APPEAL from the United States District Court for

the Northern District of Ohio,

THIS CAUSE came on to be heard on the record from

the United States District Court for the Northern District of

Ohio and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be and the same is

hereby reversed and the cause remanded with instructions.

A5

It is further ordered that Defendants-Appellants re-

cover from Plaintiff-Appellee the costs on appeal, as item-

ized below, and that execution therefor issue out of said

District Court if necessary.

ENTERED BY ORDER OF THE

COURT.

/s/ JouN P. HEHMAN

Clerk

A6

JUDGMENT ENTRY OF THE UNITED STATES

DISTRICT COURT

(Filed July 6, 1976)

Civil Action File No. C 76-170 A

UNITED STATES DISTRICT COURT

FoR THE NORTHERN DISTRICT OF OHIO

FALLS STAMPING & WELDING COMPANY,

vs.

THE INTERNATIONAL UNION, UNITED AUTOMO-

BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, et al.

JUDGMENT

This action came on for trial (hearing) before the

Court, Honorable Leroy J. Contie, Jr., United States Dis-

trict Judge, presiding, and the issues having been duly

tried (heard) and a decision having been duly rendered,

It is Ordered and Adjudged that the arbitration deci-

sion of George Hayes entered on May 28, 1976 is hereby

vacated. The parties are hereby ordered to resubmit to

said arbitrator the issues raised by the grievances of em-

ployees F. Koslik and D. Dale. Judgment is hereby granted

to plaintiff and against defendants on the remaining issues

presented by its complaint. Judgment is also hereby ren-

dered for plaintiff and against defendants on the latters’

counterclaims. Each party shall bear its own costs.

/s/ Leroy J. ContTiE, Jr.

U.S. District Judge

A7

MEMORANDUM OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed July 6, 1976)

Civil Action C 76-170 A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

FALLS STAMPING & WELDING COMPANY,

Plaintiff,

Vv.

THE INTERNATIONAL UNION, UNITED AUTOMO-

BILE, AIRCRAFT, & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Falls Stamping & Welding Company (hereinafter plain-

tiff) initiated this action on Jure 7, 1976 under Section 10

of the United States Arbitration Act of 1947, 9 U.S.C. §10,

to vacate and/or modify an arbitrator’s award. Defen-

dants have answered by denying the material allegations

and counterclaiming for enforcement of the award and

for compensatory and punitive damages for the allegedly

malicious delay in execution.

On the same date this action was filed, the Court

granted plaintiff's motion for a temporary restraining

A8

order staying the effect of said award. After hearing, the

Court issued a prelirzinary injunction on June 14, 1976,

which further stayed the award. The final hearing in this

action was conducted on June 22, 1976. The following shall

constitute the Court’s findings of fact and conclusions of

law.

The facts necessary to this decision are undisputed.

In response to plaintiff’s decision to discipline four press

operators for allegedly cheating in piecemeal work at the

pliant, certain members of defendants’ Local Union No. 1194,

United Automobile, Aircraft & Agricultural Implement

Workers of America (hereinafter Local) went on strike

on August 28, 1975. After negotiations culminating in

plaintiff's agreement to further investigate the charges of

cheating, the employees returned to work on September 2,

1975. No disciplinary action was taken by plaintiff against

the striking employees, although the collective bargaining

agreement contained a “no-strike” clause.

After further investigation, plaintiff resolved to dis-

charge two of the employees charged with cheating, and

to suspend the two female employees involved for twenty

days. Upon learning of this action, the employees on the

second shift went on strike on September 9, 1975. These

employees were discharged on September 10, 1975. The

strike spread to plaintiff's first shift on September 10,

1975.

On September 11, 1975, this Court granted a temp-

orary restraining order enjoining the strike. The striking

employees failed to return to work. On September 13,

1975, plaintiff wrote to the day shift employees and in-

formed them that if they did not return to work by Sep-

tember 16, 1975, they would be discharged. None of these

Ag

employees appeared for work on September 16, 1975, and

were accordingly discharged on that date. Thereafter, a

number of the striking employees applied for re-employ-

ment, apparently pursuant to a disputed agreement be-

tween the parties. Only fifteen (15) of the approximately

one hundred and twelve (112) employees involved were

rehired; none of these employees were granted retroactive

seniority.

Thereafter, grievances were filed pursuant to the pro-

visions of the collective bargaining agreement. Said agree-

ment provides a multiple step procedure culminating in

arbitration. After the initial steps of the grievance proce-

dure failed to adequately resolve the controversy, the mat-

ter was referred to an arbitrator on four representative

grievances. The arbitrator heard testimony and received

exhibits for nine days and, on May 28, 1976, rendered a

sixty-nine (69) page decision and award. The award or-

dered reinstatement with seniority but without back pay

of “all discharged employees of August 28 and September

16, 1975” except the two employees on suspension for

cheating at the time of the September 9 and 10, 1975 strike.

The two female employees were ordered reinstated with

seniority and back pay from October 1, 1975. By letter

dated June 11, 1976, the arbitrator corrected the reference

to August 28, 1975 to read September 10, 1975. The error

was apparently clerical in nature, as there were no em-

ployees discharged as a result of the August 28, 1975

strike. If this award is implemented, as many as ninety-

three (93) of plaintiff's present employees must be dis-

charged.

The subject grievances clearly fall within the scope of

the parties’ definition of matters subject to the grievance

procedure. Similarly, it appears that, with two possible

Al0

exceptions, all grievances were procedurally perfected.’

The pivotal provisions of the collective bargaining agree-

ment are those dealing with the powers of an arbitrator

and the no-strike covenant.

Section 24 of the contract defines the arbitrator’s

powers as follows:

“The arbitrator’s powers shall be limited to the applica-

tion and interpretation of this Agreement as written.

He shall at all times be governed wholly by the terms

of this Agreement and he shall have no power or au-

thority to amend, alter or modify this Agreement in

any respect nor shall he consider any statute or laws

not specifically incorporated herein. Any award of

the arbitrator shall not be retroactive prior to the time

that the grievance was first submitted in writing.

The arbitrator’s decision shall be final and binding

upon the Union, Company, and employees. The ex-

penses of the arbitrator shall be shared equally by

the Company and the Union.”

The no-strike provision is contained in Section 25

which reads, in pertinent part, as follows:

“During the term of this Agreement, the Union, its of-

ficers and stewards shall not instigate, promote, spon-

sor, or engage in a strike, slowdown, stoppage of work,

or any other interruption of production. In the event

any employee or group of employees covered by this

1. The grievances filed by the Local on the behalf of

eighteen employees but without their individual signatures are

defective, the plaintiff argues, for failure to follow the assertedly

mandatory provisions of Section 19 of the collective bargaining

agreement. Said section requires that grievances “shall be signed

by the employees involved.” The arbitrator ruled against plain-

tiff on this issue. Further, the arbitrator left unanswered the

question of whether the two female employees suspended for

cheating had perfected their grievances.

All

Agreement participate in a strike, slowdown, stoppage

or work, or any other interruption of production, the

Union shall immediately, upon being notified by the

Company, instruct any such employee or group of

employees to resume work immediately. The Com-

pany shall have the right to discharge or otherwise

discipline any employee who does engage in a strike,

slowdown, stoppage of work, or interference with

Company’s operation during the term of this Agree-

ment any discipline or discharge as a result of the

foregoing is subject to the grievance procedure.”

Although plaintiff advances a number of the grounds

contained in Section 10 of the United States Arbitration

Act of 1947, 9 U.S.C. §10, the Court concludes that sub-

paragraph (d) of said section is dispositive of this action.

Said subparagraph provides that an award may be vacated

where the arbitrators “exceeded their powers, or so im-

perfectly executed them that a mutual, final, and definite

award upon the subject matter submitted was not made.”

As stated by the Supreme Court in United Steelworkers

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

599, 80 S.Ct. 1358, 1362 (1960):

“It is the arbitrator’s construction that was bargained

for; and so far as the arbitrator’s decision concerns

construction of the contract, the courts have no busi-

ness overruling him because their interpretation of

the contract is different from his.”

Nevertheless, the Supreme Court also said in that opinion:

“|Ajn arbitrator is confined to interpretation and ap-

plication of the collective bargaining agreement; he

2. Enterprise was the third case of the famous Steelworkers

trilogy. See also United Steelworkers v. American Mfg., 363

U.S. 564, 80 S.Ct. 1343 (1960); United Steelworkers v. Warrior

& Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347 (1960).

Al2

does not sit to dispense his own brand of industrial

justice . . . [H]is award is legitimate only so long as it

draws its essence from this collective bargaining agree-

ment. When the arbitrator’s words manifest an in-

fidelity to this obligation, courts have no choice but to

refuse enforcement of the award.” 363 U.S. at 597,

80 S.Ct. at 1361. [Emphasis supplied].

This “essence” concept has been consistently applied by

the lower federal courts. See e.g. Timken Co. v. Local

Union No. 1123, United Steelworkers of Am., 482 F.2d

1012 (6th Cir. 1973); Amanda Bent Bolt Co. v. International

U. U.AA., A.I.W., 451 F.2d 1277 (6th Cir. 1971); Dia-

mond v. Terminal Railway Alabama State Docks, 421 F.2d

228 (5th Cir. 1970); Masters S.M.W. & C. R. Ass’n. of R. I.

Inc. v. Local Union No. 17, 397 F.Supp. 1372 (1975); Amer-

ada Hess Corp. v. Local 22026 Fed. Lab. Union, AFL-CIO,

385 F.Supp. 279 (1974).

Plaintiff argues that the arbitrator exceeded his au-

thority by entering an award which is contrary to the ex-

press language of Section 25 of the contract granting it the

right to discharge striking employees. The Court agrees.

In Amanda Bent Bolt Co. v. International U., U.A.A.,

A.I.W., supra, the Sixth Circuit dealt with a very similar

situation. In that case, the arbitrator determined that em-

ployees striking in violation of a no-strike provision in the

collective bargainine agreement should be reinstated with

back pay. The cou © held that as said award was directly

contrary to express language of the contract allowing

the company to discharge striking employees, the arbitrator

had exceeded his authority under the contract.

Defendants argue that Amanda Bent Bolt is not deter-

minative of this action. Specifically, they contend that

that case is distinguishable because Section 25 of the in-

Al3

stant contract expressly provides that any discipline ef-

fected by plaintiff for violations of the no-strike clause

is subject to arbitration, whereas the Amanda Bent Bolt

contract did not have such a clause. This argument is

specious for while the inclusion of said provision is rele-

vant to a determination of the arbitrability of the issue,

it in no way expands the authority of the arbitrator de-

lineated in Section 24 of the collective bargaining agree-

ment. The simple fact remains that, unless findings of the

arbitrator demonstrate cogent grounds for disregarding

the express terms of the contract, Amanda Bent Bolt re-

quires the vacation of this award.

Identification of the grounds for the arbitrator’s deci-

sion has not been an easy task, as said decision is repetitive,

loquacious, and imprecise. The greatest part thereof con-

sists of summaries of the evidence and of the parties’ re-

spective positions. There are practically no findings and

very little discussion. However, close scrutiny reveals

that the arbitrator’s rationale is predicated upon his con-

clusion that plaintiff had “unclean hands.” The arbitra-

tor stated:

“While the decision on four (4) Press Operators

precipitated the walkouts the employees contended

many Company improper actions and weaknesses of

the Union Officers to cope with contract violations

were underlying factors. The second walkout lasted

five working days during which period all who testified

and participated in the unauthorized strike stead-

fastly maintained they could not return to work, albeit

Court order and Union exhortations to do so were

known, due to threats of bodily harm. This defense

is understandable due to the plant being highly in-

tegrated with ex-felons among them. To name those

doing the threatening, if known, could have brough

Al4

(sic) on retaliatory measures. About one sixth of the

work force walked out, however, the evidence is they

were at the plant before 6:30 a.m. the next day and

‘persuaded’ the day shift to join them. The Arbitra-

tor recognizes the ‘threats’ as occurring after the fact,

the walk out.

“The Arbitrator concludes and finds the Company

did not have clean hands. It permitted violations of

the contract to continue by Supervisors long after

it was apprised #f them. One of the principal antag-

onists toward employees in contract violations was an

ex-convict Foreman who operated an after hours bar.

The Company steadfastly supported his brazen acts in

thwarting attempts by employees to utilize the griev-

ance procedure. The futility of the grievance pro-

cedure was manifest when Foreman Stallworth threat-

ened transfer and discharge if any filed a grievance.

His actions made a mockery of the grievance proce-

dure. The evidence established that he was the

prime Union ‘baiter’ among Supervisors.

“The intimidation by Supervision in effectively

thwarting the employees’ use of established contractual

procedures caused complete frustration to the point

that employees took matters into their own hands.

While this Arbitrator does not condone self-help by

these employees, even though they had reason to vent

their feelings, the penalty of discharge was inap-

propriate.”

If the arbitrator was referring to the clean hands

maxim of courts of equity, such reference is inapposite.

Said maxim is applicable only to those seeking the inter-

vention of a court of equity; it is a principle of inaction,

and it is applied “no matter how improper may have

been defendant’s behavior.” 30 C.JS. Equity, §93, p.101-

Al5

1011 (footnote omitted). Here it is the union which was

seeking the affirmative action. The clean hands maxim is

not applicable.

If the arbitrator’s reference to unclean hands was

predicated upon his personal sense of industrial justice,

it is equally irrelevant. While that may be a considera-

tion in some arbitration proceedings, it cannot take pre-

cedence over the express and explicit terms of the con-

tract. Amanda Bent Bolt Co. v. International U., U.A.,

A.A.I.W., supra.

The only remaining explanation could be derived from

the arbitrator’s oblique reference, made in summary of

the Local’s position early in the decision, to Mastro Plastics

Corp. v. National Labor Relations Board, 350 U.S. 270, 76

S.Ct. 349 (1956). In Mastro Plastics, the Supreme Court

held, insofar as relevant herein, that the subject no-strike

clause did not waive a union’s right to strike solely in

protest of an employer’s unfair labor practice in attempt-

ing to coerce its employees to abandon their certified

bargaining agent for another. Apparently the arbitrator

concluded that plaintiff's conduct prior to the strike, and

specifically the conduct of the “ex-convict Foreman,” was

the functional equivalent to the unfair labor practice

found to exist in Mastro Plastics.’ .

Such a rationale misconstrues the extent of the ar-

bitrator’s authority under the collective bargaining agree-

ment. As quoted above, Section 24 of said agreement pro-

vides that the arbitrator’s powers were limited to appli-

cation and interpretation of the Agreement “as written.”

3. Yet the arbitrator effected a type of compromise when

he upheld the grievances. He ordered reinstatements without

back pay for all employees except the two female press operators,

whereas full relief would have necessitated a back pay award for

all employees.

Al6

It is further stated that he shall not alter or amend the

contract, nor shall he consider any statutes or laws which

were not specifically incorporated into the agreement.

The clause in Section 25 of the Agreement permitting plain-

tiff to discharge employees striking in violation of that

section is clear and express. The arbitrator’s “unclean

hands” rationale implicitly recognizes this; yet by refer-

ence to concepts not contained in the contract the arbi-

trator rendered this clause ineffective. Implementation of

this rationale through the award constitutes an abuse

of the arbitrator’s authority.‘

As additional and alternative grounds for this holding,

the Court concludes that even assuming arguendo that the

arbitrator’s authority did extend to consideration of the

Mastro Plustics case in direct contravention of the con-

tract’s provisions, the holding of that case is applicable in

this factual situation. The Supreme Court reasoned in

that case that the collective bargaining agreement involved

therein dealt solely with “the economic relationship” be-

tween the employer and the employees. 350 U.S. at 281,

76 S.Ct. at 357. Such a contract assumes that there is

a lawfully designated bargaining agent. Thus, when the

companies involved in that case attempted to coerce their

employees into accepting a different, more “acceptable”

bargaining agent, significant effects beyond the economic

relationship of the employer-employee were created. These

effects were, the Supreme Court concluded, beyond the

scope of the agreement and its no-strike clause. There-

fore, since that strike was “solely” in protest of the unfair

labor practice, there was no waiver of the employees’ right

to strike. 350 U.S. at 284, 76 S.Ct. at 358.

4. The appropri:te means for rectifying any claimed unfair

labor practice was through the National Labor Relations Board.

While a complaint was filed, it was later withdrawn with Na-

tional Labor Relations Board’s approval.

Al7

In this case, however, the strike was, as recognized by

the arbitrator, precipitated by the plaintiff's decision to

discipline four employees. This clearly relates to the

economic relationship between 2mployer and employee.

Therefore Mastro Plastics is not controlling.

The only remaining issue which merits discussion con-

cerns the two female press operators suspended by plain-

tiff for allegedly cheating. Apparently the arbitrator

concluded that these employees were on suspension at

the time of the strike, and therefore that they were not

strikers subject to discharge. The arbitrator stated that:

“Provided they grieved their discharge and do so file

it timely, the Arbitrator orders [them] reinstated with

seniority and back pay .. .”

No finding as to the procedural integrity of said employees’

charges was ever made; nor does the record reflect any

stipulations on this issue. Clearly such incomplete find-

ings do not constitute a “mutual, final, and definite award.”

9 U.S.C. §10(d).

In view of this decision, and for the reasons stated

above, the Court concludes that defendants’ counterclaims

are meritless.

Accordingly, the arbitrator’s award shall be vacated.

In view of the clarity of plaintiff's right to discharge the

striking employees, the Court concludes that further ar-

bitration of this issue is unnecessary. Therefore, judg-

ment shall be granted to plaintiff on this issue. However,

the parties shall be ordered to submit to the arbitrator the

issue of the sufficiency of the grievances filed by the two

female press operators.

IT ISSO ORDERED.

/s/ Leroy J. Contre, Jr.

U.S. District Judge

Al8

ARBITRATOR’S AWARD

(Dated May 28, 1976)

IN THE MATTER OF THE ARBITRATION BETWEEN

THE FALLS STAMPING AND WELDING COMPANY

and

INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-

CRAFT AND AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, LOCAL UNION NO. 1194

Grievances: Re:

Discharges (112) Loss of Security (15)

Appearances:

For the Company

H.E. Rabe - Counsel

D.H. Shaffer Counsel

J.C. Herndon - Counsel and Secretary

E. Lange - President

For the Union

R. Shetterly - Rep.

W. Casstevens - Reg. Dir.

J. Yates - Int. Rep.

J. Troster - Int. Rep.

J. Simone - Int. Rep.

T. Heffernan - Local President

Hayes, Arbitrator: The above dispute was heard over a

nine day period, October 31, 1975 to January 7, 1976 by

George F. Hayes, following mutual selection. The parties

filed post-hearing briefs March 31, 1976.

Alg

THE ISSUE

The parties stipulate four (4) representative grievances

were sufficient for the record concerning one hundred

twelve (112) discharges and fifteen (15) of the one hun-

dred twelve (112) who were re-hired with loss of seniority.

Of the total number of discharges, eighty eight (88) were

on the day shift and twenty-four (24) were on the night

shift, the former discharged September 16, 1975 and the

latter September 10, 1975.

The four grievances read:

No. CL. - 4887 9/12/75

Policy Grievance for Gregg Palmer 1706

John Latchaw 1576

Steve Henderson 1651

William Marks 1673

Press Operators

These employees were fired unjustly. The Company

has brought charges of participating in an unauthorized

strike upon this employee. Adjustment

To have these employees brought back to their jobs

with full seniority and made whole.

Aggrieved Signature

Thomas E. Heffernan, President Local 1194 UAW

Company Signature

Llewelyn C. Simmons

Grievance denied - illegal strike 9/17/75

C.Trego James Gish

No. CL - 4861 9/13/75

Casper Phillips

A20

(same as CL - 4887)

signed by

Casper E. Phillips

Company

Llewelyn C. Simmons

No. CL - 4839 9/19/75

Dave Mar.n

(same as CL - 4887)

signed by

David Marsh

Company

Donald L. Shawman

No. CL - 4815 9/22/75

Local #1194 UAW for Charles Miller

(same as CL - 4487)

signed by

Thomas E. Heffernan for Charles Miller

Company

Paul Boxler

STATEMENT OF THE CASE

Four (4) Press Operators who worked the second shift

were charged with cheating on the piece work count Au-

gust 20, 1975. On August 26, 1975, the four operators were

suspended. August 28th a Union Steward on the second

shift was notified the four employees would be terminated.

Shortly thereafter, the second shift of some twenty four

(24) walked off their jobs. The first shift joined the others

in the wildcat strike the following day.

The parties met with the Company agreeing to return

the four employees to their jobs with back pay pending

an investigation of the press dispute. All employees were

A21

given the opportunity to work the Friday second shift to

qualify for Labor Day Holiday pay. None accepted. The

investigation was to be made by Company Counsel and

Secretary James Herndon. The employees returned to

work Tuesday, September 2, 1975.

The results of Mr. Herndon’s investigation were made

known to the Union Tuesday, September 9. The four em-

ployees were found guilty as charged by Herndon, with

two men to be discharged and the two women to be sus-

pended for twenty days. The two men were told of their

discharge about 5:15 p.m. and a half hour later the second

walkout of the second shift began; they were told if they

didn’t return by 7:30 p.m. they would be terminated; joined

the following morning by the day shift of some eighty eight

employees.

The Company went to Federal Court for an injunction

against the unauthorized strike. Thursday, September 11,

Judge Contie granted the relief requested and instructed

Local President Tom Heffernan to use TV and radio to

get the striking employees back to work. They refused

to return to their jobs. During the strike period some em-

ployees, including probation, remained on their jobs. None

of the Union officials reported for work, contending they

were threatened.

The second shift had been terminated at 7:30 p.m. Sep-

tember 9th and officially notified September 10th.

Under date of September 13th, the Company wrote the

day shift to report for work by Tuesday, September 16th

or they were terminated. They failed to report as told,

however, on the afternoon of the next day possibly all re-

ported to the Company for work approval effective the

next morning, stating the Union told them they would get

A22

their jobs back and seniority. Only fifteen have been re-

hired to date.

The usual complement of one hundred fifty (150) has

been reduced to one hundred fifteen (115), due in part

to loss of the Rockwell business. It had earlier removed its

dies from the plant.

The Union contends the Company violated the contract

under the Clean Hands Doctrine, whereas the Company

charges the Union with violating the no-strike clause by

engaging in two wildcat strikes.

THE COMPANY OPENING STATEMENT

The Company position is the Union now seeks advan-

tage of the contract arbitration process under a contract

it repudiated.

In spite of Judge Contie ordering all striking employees

to return to work, which order was made September

11th, none returned. The Company wrote all to return no

later than September 16th or be terminated. They failed

to heed this order and were terminated.

The Company maintains it lost over $700,000.00 in

sales and one customer has been lost to a competitor.

The specific and consequential damages exceed $28,000.00

and Police protection cost was $11,000.00.

Further contention is the Union Officers did nothing

to end the strike, nor did the International which merely

told employees their action was illegal and unauthorized.

It did nothing to penalize the Local by lifting its charter,

to police the trusteeship, to levy fines upon members to

honor the contract they signed. It says windows were

broken and tires slashed during the strike.

A23

Counsel mentioned this is a complex case. The Arbi-

trator agrees, after hearing the evidence and listening to

some twenty five (25) witnesses, and receiving almost fifty

(50) exhibits. The transcript consists of some eighteen

hundred thirty five (1835) pages.

The prima facie case presented by the Company at

the outset is mainly contained in the Arbitrators State-

ment of the Case.

In addition, some pertinent points covered by the

Cempany include allegations that eighteen (18) of the

one hundred twelve (112) grievances are improper for

failure of the grievant to sign the same. The Union had

signed for the employee.

THE UNION OPENING STATEMENT

AND POSITION

The Union contends regarding the eighteen (18) griev-

ances filed by the Union for the employees that the right

of agency extends to the Union, that the contract contains

no forfeiture clause.

The Union says the Company conduct deliberately and

directly was the cause of the walkouts that led to the dis-

charges. Further, the Company is not coming into arbitra-

tion with clean hands.

In May, 1974 the Company agreed to a wage adjust-

ment for skilled employees but reneged on the agreement.

That at vacation time the Company came up with a new

interpretation to deny vacation pay in spite of practice to

the contrary and no language change in the contract. An-

other change involved Holiday pay in that employees would

have to work the complete day before and after the Holi-

day.

A24

On November 14, 1974 an employee was discharged for

running scrap parts on incentive rate; on January 13, 1975,

another was discharged for an equally discriminating rea-

son. After proceeding through the grievance procedure,

and relying on it, the Company sought to break it down

by demanding the Arbitrators first rule on arbitratability.

After this, the treatment of employees by Foremen,

Plant Superintendent and Company President brought on

a complete breakdown in faith in the Union’s ability to

protect the membership’s rights.

The Foremen threatened to fire employees if one at-

tempted to file a grievance, used abusive, profane and

suggestive language to employees as well as assaulting

and threatening to assault employees.

Charged also is the Company changing of rates, thereby

increasing production and decreasing pay with no change

in the job.

The Plant Superintendent calls employees liars and has

told them “file all the grievances you want, will deny

them, and if you quote me, Ill deny it.”

The Union admits the fear employees had while out-

side the plant, after receiving threats, must be genuine

fear and not a cop out.

As for the Company investigation of charges against

the four Press Operators, there was lack of due process

for not one of the four was asked for an explanation of

his or her actions.

After the strike, the Company promised to re-hire a

vast majority of the discharged employees and negotiate

seniority but to date has re-hired sixteen (16) without

seniority and at a lesser rate of pay than received before

the strike.

A25

John Yates, International Representative, related in

June, 1975, he began servicing the Local; that some twenty

(20) grievances were discussed with the Company making

a proposal on four more serious ones, two discharges, Holi-

day pay and vacations. A money settlement was offered

for the two discharged employees; on Holidays one would

have to work four or six hours in qualifying days; and on

vacations due in °75, the Company would pay accumulated

vacation pay, however, the second and third year it would

no longer pay a pro-rata vacation. The offer was re-

jected. He described details of the August 28 and August

29 strike in which he sought to get the employees back

to work. The employees were dissatisfied with the Com-

pany offer to settle the four grievances, and complained

of their treatment by Foreman Stallworth who threatened

and intimidated them; transfers to various jobs, safety and

problems writing grievances. As to the four grievances

referred to, the Company objecied to one Arbitrator hear-

ing them. It insisted on separate hearings for each of the

four.

The August 29th settlement was approved, concerning

Herndon’s investigation of the four Press Operator’s al-

leged cheating; return to work and back pay for the four

who had been suspended on August 26. The settlement

was reached after the Officers and Committee met with

the Company on the 29th. Yates had been there all night

and most of the 29th. The employees were still disgruntled

and pessimistic on Herndon’s investigation. None returned

to work the 29th to qualify for Holiday pay. The Company

then gave out paychecks.

On Friday, September 5th, Herndon told Yates the re-

sult of his investigation, that the four Press Operators

were guilty. The Committee met with the Company

A26

Tuesday, September 9th and told two would be discharged,

and two females suspended twenty (20) days.

About 5:30 p.m. the second walk-out took place. Be-

tween 10:00 p.m. and 11:30 p.m. Yates stopped at the plant

but saw no picketing, only a few persons in automobiles,

after which he went home.

The following morning he attempted to meet with

the Company which refused to meet officially until the

employees returned to work. The Company had Police-

men around the plant but, although one would be pro-

tected in entering the plant there were fears expressed by

those who wanted to work that because of threats one

was not assured of getting home.

Yates told of the restraining order issued by the Fed-

eral Court ordering strikers to return which was read to

the members on September 11th. He phoned Herndon for

a meeting with Warren Davis, Assistant Regional Director

which was held the morning of September 16th. Robert

Phillips, Union Counsel was present as was Attorney

David Shaffer along with Herndon.

All had been discharged as of this meeting, day and

night shifts. The Union sought to get their jobs back

because of the long service record of many employees.

The Company indicated it had no quarrel with the over-

whelming majority of employees, stating applications for

employment would have to be completed. According to

Yates the figure of 90 to 95 percent of a total employment

of one hundred fifty (150) was mentioned by Herndon re-

garding those to be re-hired of the total discharged. Noth-

ing was reduced to writing. The Company would re-evalu-

ate applicants on the basis of the job he was doing, his

performance, attitude and attendance, all within 24 hours.

Employees were told at a 2:00 p.m. meeting that day the

A27

outline of the Company proposal after which they pro-

ceeded to the plant to apply for jobs. Trego and Lange

were apparently unaware of the agreement reached with

Herndon. The proposed outline regarding reemployment

was later received and posted by Lange which notice in-

dicated it was an agreement with the Union, denied by

Yates.

On Friday, Yates was at the plant to see what hap-

pened to the applications. He asked Lange how many he

had covered, receiving a reply, “I haven’t covered any-

body, those applications are all put on the bottom, we

are still taking applications, we have hundreds of applicants

out there before we consider those who worked here before,

prior to discharge”. He called Herndon who came to

the plant and told Lange to consider discharged persons

for re-hire. On the 23rd or 24th of September, the Union

was told sixteen (16) would be re-hired, a long way from

90-95%; that the loss of the Rockwell account reduced the

total from 150 to 115 employees. Yates said a meeting

was held shortly after in which some grievances were set-

tled. Yates claims thirty (30) outsiders have been hired

since September 24th. Denied was a statement charged

to him telling the Company “I can’t do anything with

them, go ahead and fire them.”

Yates admitted Herndon told him two affidavits con-

cerning the cheating on the press were available to him but

he told Herndon “I didn’t want to know who the witnesses

are” because of the strikers who wanted to know the wit-

nesses names. As to the Company’s offer to furnish press

cycle information to the Union upon written request

Yates admitted the offer was made but he has not written

the letter.

Yates admitted at the September 16th meeting Warren

Davis stated the Union would help to get lost business back

A28

at the plant. The Company was attempting to bring out the

fact Herndon had mentioned there would not be a need

for the former complement of 150 employees, however,

Yates said this was at a later time; that the Company

did mention protecting probationers and those hired during

the strike. Referring to an offer of settlement of the two

discharged Press operators concerning a polygraph test

if the two refused it, the Union would drop their cases,

Yates said the offer was refused.

W. Casstevens, Regional Director, testified concerning

two meetings in June, 1975 regarding four grievances, two

of which were discharges, one in vacation pay, and the

fourth, Holiday pay. He recalled discussing one of the

discharges over running scrap parts. As to vacation pay

a precedent of 20 years had been established wherein hours

compensated were computed as hours worked in arriving at

vacation pay. The Company sought a change although the

language remained the same over the years. The scrap

parts discharge case version was given the Company after

which Herndon said it was not the story he was given.

Herndon never replied to the Union. The letter of settle-

ment offer sent the Union as to Holiday pay was an offer

worse than the one made at the meeting in which the

Company stated if one was excused during a qualifying

day, he would he paid. This was changed in a Company

letter stating payment would be made if the employee

worked six hours. For one of the discharged employees,

the Company offered to pay one-half earnings and maintain

the termination. The vacation pay offer was for payment

as before for 1975 but the following two years payment

would not be made for compensated hours but hours

worked.

In the matter of the Union Committee charge the

contract did not contain all that the parties agreed upon

A29

Casstevens stated he instructed the Local Committee to

prepare a list of omitted or incorrect contract provisions

to the Company for review. He did not know if the

Committee submitted the list to the Company.

J. Simone, International Representative, stated he was

the Union servicing representative to the plant from 1967

to June, 1975, stated that following a strike in 1967 relations

were strained, partly due to a Superintendent who was

charged with doing unit work as well as other things, and

who was subsequently terminated. Relations improved

until O’Leary joined the Company. Shortly after this,

a second shift stoppage occurred when O’Leary entered

the plant under the influence of intoxicants, started to

intimidate and coerce employees, using off-color language.

Following a conversation with Simone the next day,

O’Leary apologized to the entire second shift of twenty two

(22) employees.

In February, 1974 O’Leary phoned Simone requesting

a meeting with the Committee. He wanted early negotia-

tions toward a new contract by May 1, 1974, although the

contract did not expire until July 11, 1974. Proposals were

exchanged in March or April. Rabe attended some sessions

with Carol Trego attending all negotiation meetings. Items

not negotiated that were in the present contract were to

be continued in force. Vacation benefits change was pro-

posed but the Company refused.

A skilled trades program was proposed by the Com-

pany which Simone pointed out would only mean training

one who would leave for higher wages. The Union pro-

poses raising wages for the skilled employees as a means

of keeping them at the plant.

The skilled trades group was the only group not enjoy-

ing a performance bonus. The Union proposed inclusion of

A30

maintenance workers with the skilled traders stating A

classification Tool and Die Maintenance personnel would

receive the same increase.

Simone claims the Company then offered fifty cents an

hour increase. During a recess the Committee raised

the question of getting contract approval if the skilled

trades received fifty cents an hour increase. It was agreed

to hold off the fifty cents until after contract ratification.

Simone stated O’Leary drafted a letter, the contents

of which was to the effect not later than September 1,

1974, the Company would meet with the Committee and

negotiate on additional rate for the skilled trades. Simone

returned from vacation September 9th, talked with Local

President Heffernan, prior to the meeting scheduled with

the Company that day, informing Simone he sought a

meeting with O’Leary two or three times but to no avail.

The parties met with O’Leary going into tantrums claiming

the Committee hit him over the head for the agreement;

that he was in no position to grant the fifty cents; that if

given to November 1, 1974 “maybe it wouldn’t be fifty

cents but a dollar.”

The Committee replied he had from ratification date

May 20 to September Ist to get this into motion. He called

the Committee “a bunch of dummies” and walked out.

Simone phoned Rabe about the outcome of the meeting,

that Rabe said he had attended the meeting in which

“O’Leary had made the offer which was deferred to a later

date.”

He attended two or three grievance meetings in which

O’Connor, the new Superintendent was present. The

meetings were unproductive, lasting ten or fifteen minutes.

After compromising some cases to no avail, a meeting broke

up. Simone was talking with Hefferman when O’Connor

A31

ordered him out of the plant as did Foreman Sears but did

not before Simone used a few choice words. Trego wrote

later asking Simone to apologize. Trego read into the

record a letter from the Company dated May 24, 1974, as

follows:

“Subject skilled classifications. As a result of our

recent contract negotiations, the Company would like to

confirm intention to establish an ingoing problem where

job descriptions with appropriate wage adjustments will be

made.

It is further understood that the Company, through

the office of the President, will work with members in

the skilled classification to bring about a fair and equitable

result with regard to a time limit in our joint belief that

this program will be put into effect between now and

November 1, 1974.” (later Simone claims it was amended

to read September 1, 1974) It was signed by D.A.

O'Leary, President.

Regarding his conversation with Rabe concerning the

fifty cents and O’Leary denying it when he had tantrums

during a meeting Simone said Rabe never did check out

the offer.

Things were in an uproar at the plant as reported by

Heffernan, so Simone contacted Rabe telling of the dis-

satisfaction over vacations and the Company’s attempt

to discount Holidays paid etc. as compensable hours in

complying vacations. Rabe replied if it wasn’t in the

agreement, the employees were not entitled to it. Simone

replied if one had a five weeks vacation that time would

be deducted the next year in computing one’s vacation;

that the Company had never done this in the past with

no problems of interpretation. Simone met with Rabe,

Herndon, and a company Director, Booth, a banker, ad-

A32

vising them of the labor problems with O’Leary and four

grievances involving discharges (two), Holiday Pay, and

vacations. The gentlemen agreed to review matters and as

to the four grievances did not promise anything. A few

weeks later, O’Leary, O’Connor and a few others were

terminated.

Later the parties met to resolve outstanding grievances

with four or five disposed of one way or another. The

four earlier mentioned were not resolved. Next a meet-

ing was held with Casstevens present in which no progress

was made. The Company objected to multiple grievances

before one arbitrator with the dispute settled in arbitration.

On cross-examination, Simone admitted O’Leary talked

of paying fifty cents per hour to class A Tool and Die

men, and any in an apprentice category would not get it.

The Union wanted maintenance men included especially,

Derita, First Class Repairman with O’Leary consenting to

include Derita. Two negotiating learn members were

Tool and Die men complicating the fifty cents per hour

increase for them insofar as ratification was necessary from

the production employees as well, as maintenance per-

sonnel. The O’Leary letter of May 24, 1974 was offered

in evidence.

The Union filed a charge with the Labor Board refer-

ence the fifty cents skilled trades offer which charge was

dismissed. As for the meeting with Rabe, Herndon and

Booth, it was admitted Rabe arranged the meeting.

After O’Leary left the Company, Rabe and Herndon

met with Simone and the Committee, mentioning they

were not acting responsibly in processing grievances with-

out merit. Rabe met on three consecutive days to resolve

some grievances of which several were disposed including

a discharge case in which the Company reinstated the em-

A33

ployee with back pay. Fifteen or so cases remained after

the grievance meetings.

Simone identified Company Exhibit 39, a letter to him

from the Company, signed by O’Leary, dated October 7,

1974, requesting a meeting relative to establishment of a

Tool & Die Apprenticeship Program.

The vacation problem concerned vacations not being

counted as hours worked. Simone said for twenty years

vacations hac. been computed as time worked.

T. Heffernan, Local President, reiterated much of what

Yates testified concerning the two walk outs; also that as

per Judge Contie’s order he went on radio urging em-

ployees to return to work. He was on vacation the first

walk out with G. Rice, acting President, until his return

September 2, 1974, however, he did appear at the plant and

was in the August 29th meeting with the Company. A

regular Union meeting was scheduled Saturday, Septem-

ber 13th. He also told of the employed being fed up with

the grievance procedure, Union officers and the Company

treatment of them; that grievances would get “lost” with

the Company. He did not work because of indirect threats;

nor did ke return after receipt of the Company letter of

September 13th ordering return to work by the 16th or be

terminated. On September 15th in a conversation with

Carol Trego she asked if he was coming into work on the

16th with Tom answering, “We'll wait and see.” After

Herndon investigated the cheating charge, and the result

given the Union September 9th some employees who

walked out wanted the names of the two Company wit-

nesses to the cheaiing which was refused; and if given

the names of the walk out would end. He charged the

present contract is not the same as the galley proof shown

the Union.

A34

Space will not permit reciting all the testimony of

witnesses, consequently the Arbitrator will cite highlights.

The testimony of witnesses will follow the order of ap-

pearances on the stand.

A. A long service employee and Committeeman men-

tioned September 9th he tried to get the employees back

to work, with some starting to go in when a big tall dude

said “You better not, or will break your neck’’; that he re-

ceived a threatening call at 10:00 p.m. stating his “guts

would be slit open” if he tried to lead them back to work

and this from a black man (from his voice). He was later

offered a Supervisors job by Superintendent Gish at Gish’s

home. He answered “would think it over”. He under-

stood 90-95% would be re-hired with seniority to be dis-

cussed later.

B. The next witnesses, an alternate Committeeman,

stated second shift Foreman, A. Stallworth told him “if

you write that grievance, I will fire you”. In the case

of discharged employees he couldn’t write a grievance in

the plant but had to do the writing at home. An alterca-

tion with Foreman Sears who told him to “get the hell out”

of Trego’s office.

He admitted the Steward had been given paid time

during working hours to write-up the same grievance he

was not allowed to write. He felt as a Union officer he

was one of the reasons the employees went out. O’Leary

had given him a loan of seven hundred dollars ($700.00)

when his house caught on fire.

C. A female employee, second shift, stated she had

been propositioned in the plant by Foreman A. Stallworth;

that he also refused to let her go home when ill, for which

she was hospitalized, terminating her while absent. She

was later reinstated, but without back pay, a penalty for

A35

not reporting off. When on a Press that was giving her

shocks the same Foreman refused to take her off. She

charged Foreman Stallworth with kidnapping her as she

sat in her automobile, driving off and molesting her before

they returned to where she was to meet another employee.

After walking out on September 9th and refusing to return

she was discharged September 10th.

She admitted she did not complain to Management

about the problems with Stallworth for if she grieved she

wouldn’t have a job; nor did she tell any Union Represen-

tatives.

She argued on the floor with fellow employee, W.

Jordan, who was allegedly trying to get her to go out with

him. She was talked to by Mr. Gish about this arguing on

the floor. It developed the witnesses had lived with W.

Jordan, a black, since May, 1975. She admitted attempting

to sell a fifty dollar ($50.00) ticket to Stallworth for a

motel party with women and liquor; that she never sold

any, giving the tickets back. She had also tried to sell one

to Gish.

D. The next witness, a Towmotor Operator, told of

complaints to Sears about his brakes which were not fixed;

that later Sears threatened him if he filed a grievance over

the incident; that Gish talked to him about filing grievances

stating, “you can file all you want, they don’t mean nothing

to him.” Stallworth threatened to get him if it was the

last thing he did; that Sears told him the Union was selling

him down the river.

He admitted filing several grievances the past year

and being told by Union Officers they were going to Arbi-

tration, with one of the grievances lost, which he found in

a barrel. He denied offering Committeman Showman a

percentage of Holiday pay if he got it.

A36

The parties stipulated any witnesses from the second

shift who were not called would testify to walking out

August 28th and September 9th on an unauthorized work

stoppage; refused to return when asked to do so by Union

officials; that day shift employees were not called as wit-

nesses would testify because of threats by others, they

refuse to identify either because the particular employee

would not testify as to the names, or did not know the

names.

E. The male witness had been employed a year to

August, 1975, returned two days late from vacation, fail-

ing to notify the Company, he would be detained due to

car trouble, and was discharged. He claims A. Stallworth

stated no grievance could be filed on the premises; that he

thought one had been filed when Chadwell, Acting Steward

told him Simmons would file it. He never followed through

with Union officers to find out tlie final disposition of his

case.

F. A male, four years of service, said he stayed out

following the walk-outs because of fear; that Foreman

Isaiah followed him to the wash-room and rushed him to

get back to the Press. The Foreman picked on him, and

also screamed and yelled at him about his work.

G. A male witness employed one year testified he

was on the first shift in August and September, 1975; that

on August 29th, he did not work because of the walk out

and many employees standing around, however, September

2nd to September 9th he was on vacation but returned to

work on the 8th and 9th but not on the 10th due to the

walk out. He told of his problems with Foreman Sears

who cursed him and threatened to get rid of him, giving

him a last warning for walking off the Press. He did not

grieve over the treatment by Foreman Sears.

A37

H. A male floor inspector with one year’s service

testified he did not work August 29th or September 10th

because of a threat by an individual; that he had a run in

with Foreman Sears over his alleged threat to attack him,

related to him by Gilbert Rice. A meeting with the Com-

pany followed in which Sears admitted he was probably

wrong. When first employed he was on the second shift

and had shut down a job but was overruled by Stallworth.

He put it on card which protected him against a charge

of improper inspection. Stallworth after a similar oc-

casion arose, threatened to get him if he sat down in the

inspection room as well as also get Simmons, An Inspector.

He did not file any grievances against Sears or Stallworth.

This witness was recalled for further cross examina-

tion and in answer to a question whether he had exposed

himself in the plant before female employees, denied it.

I. A maintenance man with seven years service

stated he was Financial Secretary of the Union and was

Acting President on August 28th when he, along with two

other employees, saw two Foremen, Gimperling and Sears,

at a pub. Sears told him, “he had one more day and that

day is going to be hel:”. About 6:00 p.m. a phone call

to his home advised the employees had walked out. He

went to the plant, was told by the second shift employees,

after he tried to get them back to work, they first wanted

the names of the two witnesses to the Press cheating charge.

He talked with Gish who told him as far as the Company

was concerned they were fired for walking off the job.

The employees told him their disgust with the Union

and the grievance procedure. On the 10th, he didn’t go

in to work because of threats, and the fact he thought he

could do more outside to get them back to work than

working.

A38

J. A set up operator and work leader with eight

years seniority, and Committeeman, testified similar to

other Officers of the employees loss of faith in the griev-

ance procedure, Holiday pay, and the release of the four

on the Press. Nothing results from grievance meetings

and when the employees heard the outcome of the four,

they became upset with the Union Officers and the Com-

pany. He has had lots of problems with Foreman Sears

who would say to him “none of your damn business, get

back to work,” who cussed and raised hell which he gave

back to Sears. An hour later, Sears would apologize. He

denied asking an employee for a percentage of any money

he was able to get through grievance. The incident in-

volving O’Connor and Simone who was ordered out of the

plant, Sears told him if he didn’t get back to work he

would be fired.

Simone was recalled and mentioned the fact the Union

complained to the Company about the attitudes of Sears

and Stallworth. At one meeting the Company brought

Stallworth and Foreman Isaiah in with both denying

charges attributed to them.

K. An employee, Class A Tool and Die, who had

been discharged but re-hired about September 23, 1975, and

a Shop Steward previously, said he did not return to work

September 16th as per instructions in a Company letter

for he was afraid when he saw a crowd of people outside

the plant. He had a problem with Sears over a rate and

when he approached Sears who grabbed hold of his should-

ers, shook him and told him to get out of his face or he

would knock him down. A meeting with the Company

followed, Sears denied the charge, later Sears said he was

sorry if there was any kind of mishap about it. At the

meeting, no Company representative warned Sears about

his relationship with Union representatives. He told of

A39

an incident involving Stallworth since his return to work

in which an Inspector attempted to shut down a Press

with Stallworth cursing her and telling her it was not

going to be shut down.

L. A female employee who worked at the Company

some six months in 1974 told of Stallworth touching her

body; that she told him to quit but he wouldn’t. She told

her husband who also worked at the plant about the

incident. Stallworth asked to take her home, to go to

his after hours bar, and continuously bothered her. She

was finally discharged by Stallworth with nothing ever

heard about her discharge. A grievance was filed and

dropped by the Union.

M. The above employee’s husband testified he tried

to warn Stallworth about touching his wife but Alex went

into a swearing rage, ordering him back to his Press. He

also related a Press incident over a bad hit when Foreman

Sears blew his top, cursing him all over the place. The

then Superintendent made Sears apologize. At another

time, Sears threatened to fire him if he filed a grievance.

N. A night shift Steward, employed six years, claims

he received complaints, prior to the walkouts about safety,

language Alex Stallworth was using, and the way he

treated people; that Alex remarked to Jim Lewis and

himself, a couple of weeks before Mrs. Waldron was fired,

that he was going to see her and her husband on the

bread line. He told of safetys on Press 15 that do not

work. On Press one Alex refused to get a table fixed or

repaired, finally sticking a board underneath which a

towmotor could knock off. An incident occurred with

Alex accusing him of knocking papers out of his hand dur-

ing a discussion involving an employee. Alex acted like

a wild man in front of Gish, calling the Steward a liar.

Alex threatened to fire him over a towmotor incident in-

A40

volving gasoline, and that he would see the wild night shift

fired.

Referring to the night of August 28th, he was accused

of starting the walkout by Superintendent Gish. As for

Alex Stallworth’s language and treatment of employees he

has been to Gish and Trego about it with nothing ever

done, leading to loss of faith in the Union on the part of

employees.

According to the Company, the employees are liars

and Alex Stallworth is not. He never heard back on griev-

ances that he filed, two were lost and on the balance the

Company said “we will get back to you”. Employees did

not want to grieve because they wouid be treated like a

dog afterwards. When he complained to Local President

Tom Heffernan and Vice President Mary White they did

nothing. The incident on Press 15 with the safety straps

not working was a responsibility of his as a safety man,

however, he did nothing about it for Alex Stallworth

would overrule him and run it, saying he had a special OK

to operate the Press.

O. A female employee, with one year of seniority,

and a Press Operator first shift, testified concerning Fore-

man Sears using foul and obscene language about her;

that she complained to him who denied the language

was as charged to him; that she threatened to sue him.

On Press 33 she was not making the rate so Foreman

Sears yelled at her and threatened to fire her. At a Union

meeting, after a walkout, she talked about returning to

work with several threatening to throw her out of the

Union hall. She reported off work September 9th and on

the 10th also reported off to Gish. On Thursday, she

reported for work with a Doctor’s slip but did not go in

the plant because of the walkout. On the 15th she phoned

Trego about her fear of going in to work who told her

A4l

to go home, that letters were being sent the employees.

She attempted to go to work the 16th, but someone jumped

on her car (Dave Marsh was with her). After reaching

the plant she saw employees outside so they left for

Manners. About 8:30 a.m. they reached Trego by phone,

told her the problem attempting to report for work, re-

ceiving an answer they were fired at 6:30 a.m.

She denied making advances to Foremen about dating

and going to picnics, admitted giving whiskey to Gish,

Stallworth, Sears and Gimperling. The incident involving

Sears and his swearing led to his later apology. She told

of three occasions when safetys were not working properly

on her Press, however, after reporting the problems were

corrected. Also brought out was turmoil at the Union hali

when they threatened to throw her out of the meeting.

Further, as to gifts she brought meats and homemade

jellies for female employees.

P. A male arc welder, about a year of service, told

of lack of flash screens on welders; that his eyes were

affected. To get new gloves from Foreman Isaiah he

had to have three fingers showing through the gloves; the

bare fingers would get burned. He told of a big wheel, 10

feet in diameter, falling and putting a four inch hole

in the pavement. Also a twelve inch wheel came down,

cutting his wrist, leaving a scar; that 90% of the presses

were: unsafe, but to file a grievance was useless.

Q. A female employee with one year’s service, told

of her getting a transfer to the second shift to get away

from Foreman Stallworth; that August 28 she did not work,

and on September 9th she worked one hour and went home

because of illness. She complained at one time to Stall-

worth about a Press repeating receiving a reply “that

machine doesn’t repeat”. As for grieving, it wouldn’t do

any good.

A42

It developed this witness is one of four involved in

the Press cheating charge.

A grievance was filed for Holiday Pay, resulting from

her absence one of the days before or after, which was

denied.

R. A female employee with nine years service said

she engaged in the walkouts. because of the failure of the

grievance procedure; that one never knew whether he had

a job at the end of a shift.

S. A male employee with three years service, said

he was on vacation during the August walkout and on

September 10th, however, the vacation ended while the

employees were out but he did not work for he had been

threatened. He told of signing a note for the Company

for $396.36 representing overpayment of his hourly rate

from November 11, 1974 to May 3, 1975 (payment at $3.58

per hour instead of $3.29 as a Utility Man). The note

called for re-payment at $10.00 per week, however, when

he received his final check the Company took out $120.00

giving him a check for $2.58. He was re-hired September

23rd and has been repaying the balance since. He told

of Foreman Sears swearing at him at one time.

T. A male employee, formerly a Foreman in Ship-

ping for two years, who returned to the bargaining unit,

seniority date originally March, 1966, testified about a griev-

ance he filed as a Steward for R. Seymour which Super-

intendent Gish told him he was tearing up, however, it

developed the issue was settled.

U. One of the two suspended employees was recalled

and said Alex Stallworth told the two of them the Com-

pany was using them and they were not guilty.

Mary White, Local Vice-President, denied the state-

ment attributed to her about a black employee allegedly

A43

exposing himself; that what she told Trego was two or

three female employees complained about a black man

making obscene remarks to them near the time clock as

they reported for work. She did not identify the black

man to Trego.

In its post-hearing brief, the Union argues the Com-

pany discharges must meet the “just cause” concept of

Section 7 of the contract; that the Company attempts to

justify its action by claiming a violation of the no-strike

clause and the penalty assessed by it should not be dis-

turbed. As to “just cause” the Union contends the Com-

pany is bound to afford due process prior to discharge; and

was the Company guilty of discrimination by failing to

even attempt identification of leaders, and discrepant treat-

ment by rehiring some and not others without establishing

degrees of guilty; and more important, the application of

the “Clean Hands Doctrine” and the extent it should

be considered in mitigation of these discharges.

Referring to the Company allegation some of the griev-

ances were improperly filed, the Union referred to CL-

4887, signed by the Local President, on behalf of four

employees contending the four were discharged after leav-

ing the plant and not given the benefits of Section 20,

Step 1 of the grievance procedure. The employee was

not given an opportunity to enter the plant and enter into

a discussion per Step 1, at which he would have been

available to sign such grievance.

In Section 25 provision is made in the No Strike

Clause “subject to the grievance procedure”, not part but

all including Step 1. Failure of the Company to comply

with Step 1 estops the Company forfeiture claim per Sec-

tion 19.

A44

The Union contention is Section 19 applies to all griev-

ances except discharge grievances, The second paragraph

of Step 3 provides discharge grievances must be filed in

writing within three working days after receipt of dis-

charge whereas Section 19 provides a time limitation of

fifteen calendar days; starting at Step 3 compared to Step 1

in Section 19. Discharge grievances and the signature

of the employee is not required under the language deal-

ing with the filing and processing of discharge grievances.

As bargaining agent, the Union is authorized by law, con-

tract and by the UAW Constitution to file and process or

refrain from filing and processing grievances on behalf

of its members. As to the fourteen other grievances signed

by the Local President the same Union arguments apply.

The Union attached Company counsel’s statement, the

only question before the Arbitrator is whether or not there

was a violation of the no-strike clause, not whether one

was called a liar, or once somebody hit another in the nose

or somebody spat on another, all irrelevant. It says the

Company position is it could violate with impunity any

section of the contract, could degrade any employee, could

threaten Union Representatives with discharge if he pro-

tested any Company actions, and the only recourse was for

the Union to grieve under a procedure the Company

flaunted, and refused to accept.

The Company argues the Arbitrator is restricted in

Section 68 to ruling on specific items in the contract; that

there is no specific coverage in the contract regarding Com-

pany obligation to restrain Supervisors from engaging in

lewd and reprehensible sex proposals to female employees,

nor anything obligating the Company to punish or dismiss

Supervisors who manhandle and threaten Union Commit-

teemen. Using the Company argument the Union couldn’t

A45

grieve over the above for the reason the type complaints

are not in the contract.

The Union mentioned the Mastro Plastics case decided

by the U.S. Supreme Court (37 LRM 2587) holding the

no-strike clause does not waive employees’ right to strike

against unfair labor practices of the employer. While no

unfair labor practice charge has been filed against the Com-

pany, this fact should not affect the application of Mastro

Plastics rationale.

The Union recalled the testimony of Company wit-

nesses, however, the Arbitrator will only touch on the

highlights of said testimony as related by the Union in

its brief.

As to Foreman Alex Stallworth, the Union points to his

statement (Vol. 1, Page 82, line 20) he had no solid evi-

dence against the four (4) on Press 1 but concluded their

denials were all lies. The two walkouts that followed

were culminations of discriminating suspensions and dis-

charges; and the result of Company unfair labor practices.

Referring to Carol Trego’s testimony and her state-

ment that at 7:15 p.m. September 9th Lange told the Com-

mittee to go get the employees back to work by 7:30 p.m.

It questions how this could have been done in fifteen

minutes, after which Lange shut the plant and sent those

at work home. The Union questioned as to how Koslik

and Dale participated in an “unauthorized strike” while

serving a 20 day penalty was not explained.

Superintendent Gish told of Foreman Poole attempt-

ing on September 9th to get the employees back to work,

but no top management personnel asked them to return

to work. He identified pictures of employees outside the

plant after September 9th peacefully walking or standing

out in front of the plant.

A46

Mentioned in relation to pictures of employees walk-

ing or standing outside the plant is the fact some in the

picture have been rehired, showing discrimination in re-

hiring. Paul Boxler and Dino Tambini were two employees

so identified and rehired.

The Union referred to the Company claim it lost the

Rockwell account because of the strike, and the testimony

of Superintendent Gish who admitted having problems

with Rockwell before the strike. Gish offered Dave Derita,

who had been fired, a job as a Supervisor and the Union

is unable to reconcile said offer with Derita’s unfitness as

an hourly employee.

The Union attacked the testimony of President Lange

who told of Company loss of business from the strikes and

the fact the Union failed to discharge its duties under the

contract, however, he failed to concern himself with em-

ployee abuses by Foremen.

The Company did not have any evidence against the

two females on Press 1 but gave them 20 days suspension

for just being in the area. J. Herndon’s testimony, accord-

ing to the Union, consisted of an attack on employees who

walked out of the plant, but nothing about his instruc-

tions to Foremen back in February, 1975, which, if given,

were ignored by Foremen.

The Union mentioned the testimony of Local President

Heffernan, who cited loss of employee faith in the Union

officers in processing their complaints; and the fact tech-

nicalities were often thrown out by the Company blocking

settlements, leading to the employees’ conclusion the only

redress was to walk out of the plant.

Lack of due process was present in the Company han-

dling of discipline.

A47

John Yates testified concerning the two walkouts; that

most of the employees wanted to work, however, because

of threats were unable to do so.

W. Casstevens told of the Company reneging on an

agreement it made in a meeting he attended; that Super-

visor misconduct was called to the attention of the Com-

pany. J. Simone testified regarding his tenure as service

representative 1967 to 1975; that actions cf Foremen toward

employees was called to the Company’s attention with

nothing done about it; that they reneged on the 50¢ offer

for Skilled Tradesmen.

The Union reviewed in its brief testimony of many

Union witnesses who had been discharged, the Arbitrator

has recounted this testimony earlier.

Union comments were then made about the testimony

of Company rebuttal witnesses.

Carol Trego was attacked for unfounded allegations

of impropriety toward one employee. She couldn’t identify

even one grievance that was settled by the Company;

failing also to bring in proof of any settled grievances.

Lange’s denial of knowledge of Foremen misbehavior

was contradicted by Company witnesses who acknowledged

especially complaints against A. Stallworth.

As to Sears’ denials of all charges against him it is clear

this was done to protect himself with the Company.

The Union attacked the Company for its broken agree-

ment with an employee who had been overpaid a large sum

of money; that he was to pay back the amount on a weekly

basis, however, the Company took out of his final check

almost all the pay due, leaving him with a check for

$2.68. He has been rehired and as of the hearing date

he testified owes about $5.00 to the Company.

A48

The complete denials of all allegations against him by

A. Stallworth brand this convicted felon as untrustworthy.

Trego recalled numerous ex-criminals hired by the

Company. all hourly with nonc in a Supervisory capacity.

Additional rebuttal witnesses appeared for the Union

and Company, however, the Arbitrator will not recite their

testimony at this time.

In conclusion, the Union points to the Mastro Plastics

Company case (37 LRRM 2587) in support of its conten-

tion unfair labor practices by the Company resulting in a

walkout are sufficient to protect the status of such em-

ployees. Actions by the Company in tearing up grievances,

threatening Committeemen with discharge for writing

grievances are unfair labor practices that nullify the no-

strike clause.

Under the doctrine of the clean hands issue, the Com-

pany cannot come to an Arbitrator and ask the discharges

be upheld where it has been flagrant in abuse of not only

the contract but of the employees themselves causing the

walkout; and lack of due process is not being questioned

about their actions or given a chance to explain.

An earlier arbitration case at this plant decided by

H. Dworkin at 48 LA 107 involved walkouts with the Ring-

leaders’ discharges upheld.

Requested is reinstatement for all who were not found

to be Ringleaders, meaning 100% of all the discharged em-

ployees, for the reason no proof was offered as to any Ring-

leaders by the Company.

A49

THE COMPANY POSITION

Following presentation of its position in its opening

statement, the Company offered in succeeding days some

forty (40) exhibits, the details of which will not be

touched upon at this time.

Alex Stallworth, Press Room Foreman for the past

three years, stated he was on the second shift in August,

1975; that his job consisted of overseeing the presses for

which he took counts, assigned jobs, and ordered repairs

for the machines; on August 28th, he had Press One under

his authority assigning two men and two women to it, who

during the first hours operated 75% below production, with

Alex telling the four to pep it up, resulting in their reaching

abeut standard the second hour, a total of 326 pieces

being standard. At 8:00 p.m. took another count and found

Press One up to 200 per hour which he felt was not right

at the speed they were working, so he watched for another

hour with the count showing appreximately 300 pieces.

The Operators at the end of eight hours qualified for ten

hours pay.

About 11:30 he contacted Steward Doshak telling him

about Press One and the fact Alex had decided to conduct

an investigation. The operators were Dorothy Dale,

Frances Koslik, Wayne Thomas and Wallace Jones. The

incident was reported to Jim Gish who suggested Alex

call a meeting to find out from the employees what hap-

pened. August 21 the two girls and Steward Doshak were

called to his office and denied cheating. Alex also talked

with the two men who likewise denied cheating. Alex gave

the two men an indefinite suspension. A few days later

in talks with Trego it was decided to suspend the two girls

which was done on the following Wednesday, August 27th.

The same day all four, along with Steward Doshak met with

Alex, Trego, and Gish, with each interviewed separately

A50

as to the Press incident of August 20th. It was decided

all four were lying so their suspensions were continued.

On cross-examination, Alex admitted he at one time,

called Doshak a liar.

Carol Trego, Personnel and Industrial Relations Man-

ager, the past two years, stated about 5:15 p.m. August

28th she had Foreman Miller and Steward Doshak in her

office to give a decision to Doshak as promised the pre-

vious day. It developed Doshak came on his own to ask

for the Company’s decision which as Trego told him, the

four employees were to be terminated. Doshak questioned

as to why the two girls were being terminated and then left

after Trego said, “All four were on the machine and

should be treated equally.” The four were not told of the

decision that day by Trego for they were on suspension.

About 7:15 p.m. Gish phoned the employees had walked

out. Trego returned to the plant at 7:30 p.m. seeing the

employees outside the plant. Foreman Poole tried to talk

to the people into coming back to work for there was a

grievance procedure to follow, and nothing could be ac-

complished while they were out. She phoned Yates who

came to the plant at 10:00 p.m. and urged a return to work

for they were out on an unauthorized strike. She left at

2:00 a.m. but overheard Lange say to Yates they would have

to return to work before the Company would meet with

the Union, later saying he’d meet the next morning. The

next morning the first shift stayed out. A meeting was

held in the morning and an agreement was reached for em-

ployees to return that afternoon to qualify for Holiday

Pay (Labor Day) and the four suspended Press Operators

would be returned and paid for loss time pending Herndon’s

investigation of the Press One matter next week. No em-

ployees returned to work that afternoon to qualify for Holi-

day Pay but returned Tuesday, September 2nd.

A51

After Herndon completed his investigation, Friday,

September 5th, the Company made a decision about the

four Operators, however, it was not made known to the

Committee until Tuesday, September 9th when Lange

told them the decision to fire two men and suspend two

girls twenty days, and also cautioned he would not tolerate

any more walkouts and that he “didn’t want to fire any-

one.”

About 5:15 Foreman Miller, Stewards Doshak and

Simmons, reported to the office, with Maliace Jones and

Wayne Thomas called in and all were told Jones and

Thomas were discharged, could work or not until the

end of the shift or leave then with pay to the end of the

shift. Both decided to leave, turned in safety equipment

and left. About fifteen minutes later the walkout took

place. Lou Simmons, Steward, came in and phoned Heffer-

nan about the walkout. Lange and Gish were not at the

plant, but Lange returned at 6:30 pm. They saw Com-

mitteeman Dave Derita still working overtime from his

first shift. He joined Trego and Lange in going out to the

employees with Derita pleading for a return to work.

Dan Showman told Lange they wanted the names of the

two witnesses the Company had regarding the Press One

cheating matter, which was refused by by Lange who

warned them to be back to work by 7:30 p.m. or they

would be fired.

Subsequent events related by Trego concerned eight

employees who retained seniority for the reason of absence

at the time due to industrial injury, sick leave, personal

leave, or vacation.

Trego did not observe all seventy three day shift em-

ployees on the picket line, saying others saw them. She

sent out the letters of September 13th and discharge notices

A52

after the day shift did not return September 16th. J. Gish,

Plant Superintendent since March, 1975, formerly in the

bargaining unit, employed nineteen years, stated the strike

events as related by Trego. During the strike names of

strikers outside were written, those seen by Gish and Fore-

men. Some of the names were written by him on napkins

(after returning from a restaurant).

From September 16th on some seventy new employees

have been hired. He understood three hundred applicants

were at the plant on September 17th.

Gish identified numerous pictures of pickets taken by

David Lange, son of E. Lange, recalling their names. He

denied threatening employees with penalty if they filed

grievances. Gish said September 17 or 18 Dave Derita

came to his home and in the conversation Gish asked

Derita if he would consider a Supervisor’s job. Gish told of

Rockwell removing dies from the plant September 19th

and the loss of G.M. parts business during the strike.

T. Gimperling, Foreman two years, identified names

of pickets from notes written by him as he observed them.

E. Lange, Company President since March, 1975 stated

in relation to the August 28th walkout Gish told him

about it; that Yates appeared and at midnight asked for a

meeting the next morning. He told Yates if employees

returned he would meet. He left at 2:00 a.m. and re-

turned at 6:00 a.m.; that at 6:30 a.m. none of the day shift

come into the plant but remained outside. About 9:30

a.m. Herndon, Stallworth, Gish and Trego were present

for a meeting with the Union.

Many items were discussed beside the four Press One

employees, namely charges against Stallworth, among

which were propositioning female employees. Herndon

A53

would investigate the counter cheating charge against the

four Operators the following week while all employees

were back at work. The Company offered a chance to

earn Holiday Pay if all worked the second shift Friday,

August 29th. None reported for work until Tuesday, Sep-

tember 2nd. Yates explained he thought the decision

was more than fair. The following week Herndon investi-

gated the Press matter and on Friday a decision was made

the two males were to be fired and the two females sus-

pended twenty days. Herndon later talked with Yates

and set up a meeting for Tuesday, September 9th to notify

the Union Committee. He related the morning meeting

with Heffernan and White, and the afternoon meeting with

the Committee, wherein he told them of their responsi-

bilities and if the second shift walked out there would be

serious consequences, including firing of them. About

6:00 p.m. Gish phoned saying they had walked out.

Shortly after reaching the plant about 6:30 p.m. Lange

spoke to the emplovees, mainly Heffernan, Dave Derita,

Lou Simmons and Dan Showman who had asked for the

names of two Company witnesses to the Press cheating,

and, if given the names all employees would return to

work. He told them the names would be produced in

Arbitration; that they had until 7:30 p.m. to return to

work or they would be fired. At 7:45 p.m. when they had

not returned to work they cards were pulled; and the

probationers in the plant were sent home to avoid any

problems in the parking lot late at night (they were paid

until midnight). Lange said he talked with Dan Show-

man about the time of the firing (he had been the one

asking the names of the Press witnesses) and discussed

following the grievance procedure.

Events at the Court on September 11th were related by

Lange who told the Committee the second shift was dis-

A54

charged but the day shift should report the next morning.

On the 12th some one hundred people were outside at 6:00

a.m. milling about. The Company had arranged for Police

protection. Mary White drove up in a car, rolled down

the window and said she was not going to cross the picket

line. Lange asked “what line?” There was no line.

Lange told of the loss of the Rockwell account and

partial General Motor loss and identified a statement show-

ing lost gross sales of $700,000.00, costs and expenses of

$28,000.00 as of the end of October, 1975. Eight to ten

jobs were lost as a result of Rockwell pulling their work out

of the plant; as a result of schedule problems with G.M.

work was sublet resulting in a loss of 12 to 24 jobs (people)

later changing the figure to 14.

On September 17 about 300 applied for work. There

are 115 now in the unit compared to a previous figure of

150 to 160; and operational efficiency is up 30%.

Lange identified many pictures of employees outside

the plant. At a meeting with the Union, he recalled the

statement being made that “an overwhelming majority

would be rehired, if space was available.”

J.C. Herndon, Secretary and General Counsel, and a

Director, testified concerning conditions at the plant upon

his arrival at 8:30 am. August 29, 1975 following the

walkout of the night before; the settlement arrived at and

his proposal to investigate the Press incident the following

week. He also told of Union complaints against Foreman

Stallworth, safety, and grievances not being expedited.

He recalled Steward Doshak, relative to the Press counter

matter “everybody has a little larceny in their hearts.”

He said the Company would not tolerate any type of dis-

honesty.

A55

The four suspended and later (August 28th) dis-

charged Press employees were to return to work and

be paid for lost time (although there had been a mis-

understanding about back pay.) Other employees who

worked the Friday, August 29th second shift would qualify

for Holiday Pay.

He detailed the investigations of the Press and counter

investigation the following week. On Friday he told

Lange the results of his investigation; the charges were

true; that he felt discharge proper for the two men and 30

days suspension for the two females, which Lange cut te

twenty calendar days. The action was delayed until Tues-

day, September 9th so Yates could be informed.

The Federal Court order of September 11th did not

get the employees back to work Friday, September 12th

so it was decided to send letters to day shift employees

to report by Tuesday, September 16th. Later that Friday,

Yates called and a Tuesday morning meeting was set up

with Yates, Assistant Director Warren Davis, and Union

Counsel, R. Phillips. Herndon did not recall if he told

Yates about the letters that were going out. The parties

met for a couple of hours, with Davis leaving after an

hour. The Company refused to reinstate the night shift.

The next day Phillips called and Herndon stated the

conditions under which the Company would reconsider

former employees. An hour later he received a phone call

from Lange that about 100 employees were at the plant

to fill out applications and told Lange they were to go to

work the following morning.

Herndon prepared a memo, later posted at the plant,

after talking with Phillips and Yates, which memo out-

lined the understanding regarding former day shift em-

ployees. He recalled use of the term “as many as possible”

A56

in reference to rehire of former day shift workers, not

“overwhelming majority”.

In rebuttal to Union evidence the Company presented

the following witnesses:

J. Gish regarding failure of the grievance procedure

said he sat in a lot of meetings with the Union, with

some settled by each party. Overtime grievances of An-

derson and Capes were settled on the basis they were

overlooked and would get overtime to balance out over a

ninety day period as in the contract. Someone allegedly

told the two girls if they did not grieve they would be

fined $100.00 and maybe lose their jobs. As to a Shafer

grievance two stewards couldn’t agree on filing with one

given time but didn’t file it, and time to file was denied

the other steward.

Anderson tried to sell him a ticket for a stag party

stating she knew who the girls were that were to be at the

party. He denied ever tearing up a grievance; did not talk

to Dixon about the complaint lodged against him.

C. Trego stated in 1975 there were 50 grievances filed

with some 30 settled. No personal grievances were filed

against A. Stallworth or E. Sears. The Mary White com-

plaint against an employee could have been but the one

identified from her description. There were no improve-

ments in labor relations after O’Leary and O’Connor left

in the spring of 1975. Vacation pay was settled in De-

cember, 1974.

The Showman grievance involves absence the day

before a Holiday and, with no proof of sickness offered for

the above pay was denied. Allegations have been made

against Foremen and discussed with them but the Company

has not disciplined any members of Supervision. The

case of a Company error in discharging one McGee was

A57

mentioned in that he was reinstated by Company actions

and given back pay.

E. Lange testified no action has been taken against

Foremen for no proof has been offered to support the

charges. Stallworth never told him the two girls were

innocent of the Press charges.

E. Sears denied having words with Simone following

the conclusion of a meeting at the foot of the plant stairs;

that he did tell the Committee to get back to work.

He never told Shafer the Union was selling him down

the river. Denied ever telling Simmons he could not file

a grievance. He spoke to Dixon about obscene language

and too many breaks.

Yeager threatened to blow up his house. Sears denied

the statement allegedly made while in a pub to Rice. “You

will have one more day to be Jesus Christ and the last day

will be pure hell.” Admitted joking with Rice about him

being Union President. He never cussed out an employee

but has used bad language, but never to an employee.

He never yelled at Dan Showman, but did apologize to

him. He never grabbed Paul Boxler by the shoulders.

He never threatened any employee about filing a grievance;

nor about firing her for not making the rate. Several

times she has made overtures to him.

A. Stallworth, Foreman, the past three years, stated

he started in the paint room; had problems over down

time which he solved by moving employees to other work,

which employees he did not like. He detailed the dis-

charge of an employee for refusing a work assignment,

followed by considerable cussing directed toward Stall-

worth. He told of absentee problemns with one female

employee who was struck in the head with a hammer,

allegedly by a friend.

A58

He denied the kidnapping charge saying Jordan told

his girl friend to ride him to Grant Street; that no per-

sonal advances were made by him. He denied threats

to get certain employees fired. He denied touching a

female employee, and saying he would see she and her hus-

band on the bread line. He denied all other charges and

still claims he was told by two employees the Union was

out to get him.

Stallworth admitted on May 24, 1964 he was found

guilty of breaking and entering and burglary; sentenced

one to fifteen years; and a second time he was sentenced

to the penitentiary for one to twenty five years, unarmed

robbery. He denied a third case charged to him. Stall-

worth claimed half the employees are felons.

C. Trego testified according to applications for em-

ployment twelve listed criminal convictions.

H. Poole, Tool and Die Supervisor since i974 stated

he was formerly in the bargaining unit; a Union Vice

President and Steward in 1974; that August 28th he talked

those who had walked out but had no success. In the

1974 negotiations he and another Tool and Die man were

on the negotiating Committee when the Company offered

fifty cents and hour increase for his classification, how-

ever, the Union Committee felt it would not be ratified

for it was for one group. President O’Leary said it would

be discussed again for he felt they were underpaid. He

did not say this was an ongoing continuing offer. O’Leary

did not think the majority of the then Class A men were

fully capable; he indicated he would discuss the matter

again in September. O’Leary called the Tool and Die men,

along with Dave Derita to his office and told them his in-

tention to hire more men and if successful he would adjust

their wages. There was some talk about tests to qualify

for a Class A rating.

A59

Poole admitted negotiations ended in May and he went

to Supervision in June, 1974.

T. Gimperling, Foreman two years, told of his early

experience with T. Heffernan over work gloves when Tom

told the Press operators not to wear the gloves, thereby

causing a fifteen minutes work stoppage. O’Leary spoke

with Tom but no disciplining action was taken. Some other

problems with Tom were over stopping his work to talk

shop with fellow employees in the plant shop he was re-

sponsible for a short work stoppage in an attempt to get a

rate in a mail box job. A rate was put in the job but prob-

lems remained leading to a discontinuance of the product.

An overtime issue raised by two females who were

not told of such work being available for they were not in

the Welding department at the time was resolved by later

giving them overtime work. The two later claimed the

Committeemen Simmons and Steven White threatened

blackball and a fine if they did not grieve. The two Union

men caused other problems for various Foremen.

One female employee gave him a couple bottles of

liquor and made overtures about meeting him at a motel.

He did not discipline any Union men for abusing

grievance time for he thought it would bring on further

hostility.

S. Miller, Foreman since August 4, 1975 stated he was

in the unit three and a half years. He related the incident

involving refusal to clean bolsters in which the employee

was terminated, later reinstated. He identified two men,

Chadwell and Latchaw leading the walkout September 9th.

His experience with Heffernan involved Tom’s refusal to

file a grievance for Miller about Foole’s father-in-law wear-

ing shorts in the plant. While he was in the unit driving

a towmotor he and employee would grab each other’s

A60

genital organs, but not in front of females. Related also

were taking phonecalls from a female employee, asking

for A. Stallworth; the same one asked him to go out and

eventually gave him $70.00 worth of meat.

A probationary employee who started work in August,

1975 on a Press told of Doshak telling three of them on the

Press to slow down or they would be fired; that this

September 8, 1975. He related employee Chadwell telling

another employee that they were to walkout at 7:00 or

seven minutes which they did. The first walkout Doshak

told a group near Miller others were going to walkout but

they should not go out for they would be fired.

Another employee, probationer at the time in Septem-

ber, 1975, was on the Press mentioned above told of

Doshak saying to slow down but he did not hear him make

any threats. He later admitted the reason as stated by

Doshak, for slowing down the press was for time to allow

the Stocker to get a chance to get caught up. H. Rabe,

Labor Counsel, testified he was been counsel since early

1974; that he was in half the negotiation meetings, that

O’Leary was not willing to raise maintenance rates but

willing to raise Tool and Die men fifty cents an hour if they

qualified as Class A.

O’Leary mentioned 70% of that work was farmed out

because of inability to do the work by the Company men.

The Union caucused and then refused the offer.

O’Leary then stated he would sit down in three to six

months and negotiate an “ongoing program”, meaning ap-

prenticeship and said “it may be a dollar an hour.” Octo-

ber 7th, O’Leary wrote the Union for a meeting on Tool

and Die but the Union failed to reply.

Simone called regarding O’Leary and O’Connor and

Union problems with those men; that Rabe met in April or

A61

May over some 18 grievances along with four major ones.

During three days of meetings, 4 or 5 grievances were

washed out. Rabe had met with the Shop Committee and

told the Committee it was investigating grievances.

Casstevens joined in on one meeting and blew up; that

multiple grievances before one arbitrator was mentioned

with opposing views leading to agreement to arbitrate that

question.

He stressed Union Representatives Simone and Yates

have been unavailable for processing cases to arbitration.

Omissions in the contract were mentioned, however, the

Union has not said what they were.

The Union offered several rebuttal witnesses, one de-

nied stating to Stallworth the Union was out to get him

fired; another claimed Stallworth told her she was not

guilty of the cheating charge; and another disclaimed tell-

ing Trego about an employee exposing himself near the

time clock, but said he was vsing profanity.

In its post-hearing brief, the Company outlined events

at the plant from August 20, 1975 to on or about September

12th. It believes three questions for decision are:

1. Whether grievances which were not filed and/or

processed under the terms of the collective bargaining

agreement are arbitrable;

2. Whether or not certain employees were unjustly

denied seniority for prior service upon being rehired fol-

lowing the strike, and

3. Whether or not approximately 112 employees were

unjustly discharged for having engaged in a protracted

illegal strike.

Pertinent contract clauses were enumerated, and in

its introduction the Company pointed out inconsistencies

A62

in the Union approach such as charged of discrimination

in selection of those discharged; claim of “protected ac-

tivity” for Company refusal to allow employees Union

representation. It says the Union admitted the walkout

was not justified, later saying it was understandable. The

Union agreed the Arbitrator should determine which em-

ployees, if any, were honestly afraid to report to work as

opposed to those not genuinely afraid and/or those who

had threatened their fellow employees. Later the Union

said the strike was called to protest unsafe working con-

ditions and/or because of alleged abuse of female em-

ployees. Further, the employees were denied due process

of law. The Union charged the Company provoked the

strike. All such claims are without merit the Company

contends.

The no strike clause was violated yet the same em-

ployees now seek refuge under that contract. The strike

does not fit the Mastro Plastics Corp vs. L.R.B. case ex-

ception as to unfair labor practices.

Several cases were cited referring to no strike clauses

and several in support of its contention.

Section 19 was not complied with when 18 employees

failed to sign grievances which were processed by Local

President T. Heffernan.

The Union has ignored equity in raising the question

of the “clean hands” doctrine although claiming the prin-

ciples of equity apply. It says equity does not apply where

the claimant has failed to exhaust administrative and/or

other remedies; namely, the grievance procedure.

A principle ignored by the Union is that of “the wrong-

doer is not permitted to profit from his own wrong”, and

“equity follows the law”.

A63

Further “he who seeks equity must do equity” es-

pecially in the law of contract. An application of the

principle arises where a Plaintiff seeks an equitable decree

of specific performance, although if such relief is given,

there would be no assurance that the Plaintiff would be

obliged to perform under the same agreement.

The true litigant in this case is the grievant and

that person is guilty of unconscionable conduct and thus

is barred by the “clean hands” doctrine.

As to the September 9th walkout it was a duplicate of

the August 28th walkout for which the Company was

lenient. The Company did make it clear it would not

tolerate any further strike activity. At the time of the

walkout of September 9th there was no claim of employee

unfair labor practices, abuse of employees, safety conditions

or any other matters raised by Union counsel at the hear-

ing. All that the employees asked September 9th was

the names of two witnesses to the Press cheating incident.

The arbitrator will not now detail the cited case of an

illegal strike involving Mack Trucks 64-1-ARB 8422, Wallen,

Arb. other than to say the Arbitrator stressed the com-

pliance with the no strike clause and anyone who in-

stigates, leads, condones, or participates attacks of the

fundamental basis of collective bargaining. The night shift

grievances should be denied.

The Company maintains the day shift discharges for

illegal strike activity should be upheld.

Officers of the Union were notified of Judge Contie’s

injunction of September 12th by service through the U.S.

Marshal yet failed to heed this order, ye: they ask rein-

statement.

A64

It says there was mass picketing with signs indicating

it was well organized. Claims of threats if they crossed

the picket line are not borne out by the fact 67 crossed

the line for paychecks September 12th.

Company witnesses testified seeing 30 day shift on

the line September 12th; 10 on September 15th and 5 on

September 16th it is claimed the strike and picketing con-

tinued September 17th.

After writing a warning letter to employees (day shift)

September 13 ordering their return by September 16 they

failed to return, thereby terminating themselves.

The Company attacked the International for failing to

take affirmative disciplinary action toward those who

violated the contract. The Union officers did not set an

example by returning to work. Thousands of dollars was

lost by the Company and it sustained injury to its repu-

tation.

All members of a Union who engage in an illegal strike

can only be viewed as Union action (Eayer Express, Inc.

vs. Teamsters, 44 U.S.L.W. 2090 - 3rd Cir. 1975). It says all

grievances should be denied.

DISCUSSION

This Arbitrator is cognizant of the importance of this

case and its uniqueness in that there are no reported cases

in point. This complex case covered nine days hearing,

some thirty witnesses, over forty exhibits, and over eigh-

teen hundred pages of transcript, the analysis of which has

consumed more time than this Arbitrator ordinarily re-

quires.

The strike situation presented here, covering two oc-

casions, August 28, 1975 and September 9, 1975, following

A65

which 112 were discharged of 150 employees has left its

scars in monetary losses to all concerned.

Many motions were directed to the Arbitrator for rul-

ing, some of which were deferred. Any not ruled upon

are be to be considered overruled.

The first motion is a request to remove 18 of the

grievants from this case on the basis they did not sign

their individual grievances, T. Heffernan, Local President,

signed on behalf of four (4) and fourteen (14) of the

employees. The Company says the employees signature

is mandatory for the word shall is used. The Union main-

tains Step 1 could not be complied with after their dis-

charge and they had left the plant; that the no strike

clause states a violation is subject to the grievance pro-

cedure, all of it; that Step 1 says fifteen (15) days and

Step 3, three (3) working days after receipi of discharge.

It feels Step 3 on controls discharges with no requirement

mentioned regarding an employee’s signature.

The mass discharges are of paramount concern to the

Union which is the original party to the collective bargain-

ing agreement. It would not permit rights it obtained for

members to rest solely on the willingness of affected em-

ployees to prosecute claims. The Arbitrator finds the

defect one of form and not of substance, therefore, it is not

fatal to the Union’s right to progress this dispute to arbitra-

tion.

The next motion objected to any Union testimony re-

lating to the Union charge the Company did not have

“clean hands” and the evidence offered to support it. This

motion is overruled.

The Company contends the 112 were discharged for

just cause in that there was a deliberate, concerted viola-

tion of the no strike clause; that the Union denounced the

A66

employees on strike for being out on an unauthorized strike,

yet it failed to affirmatively move against the violators.

The Union bases its case on the “clean hands doctrine”

in the Company treatment of employees by Supervisors,

acquiesced in by Management, over a long period led to

their dissatisfaction with Union officers in their ability to

accomplish anything in discussions with the Company. This

shabby treatment, it says, culminated in the two unautho-

rized strikes.

Earlier it was stated the Company established a prima

facie case involving contract violation of the no strike

clause and the Union evidence was entered into the record

following which the Company evidence was produced.

The following is a summary of Union evidence:

J. Simone, International Representative at the plant

from 1967 to June 1975 (after which John Yates towk over)

said problems started shortly after O’Leary became Com-

pany President (1973); that on one occasion he was in-

formed O’Leary came to the plant, second shift, intoxicated,

intimidated and coerced the employees using off-color

language. Simone went to the plant and found 22 em-

ployees not working after the above incident. The Union

prevailed upon them to return to work. O’Leary after

talking with Simone the next day went in and apologized

to the second shift.

In February, 1974 O’Leary phoned saying he wanted

early negotiations of the contract expiring in July, 1974.

In March or April demands were exchanged with va-

cations remaining the same and the Co:apany offering 50¢

an hour increase for Tool and Die A men, which the Union

felt couldn’t get ratification so it was deferred. O’Leary

drafted a letter he would meet in September or earlier and

A67

negotiate the skilled trade rate. Local President Heffernan

tried to get a meeting with O’Leary but could not, how-

ever, September 9th the Union Committee and Simone met

with O’Leary. At this meeting O’Leary went into a tan-

trum, claiming the Committee hit him over the head to

get this agreement; that he was in no position to grant the

50¢; to give him another month or until November maybe

it would not be 50¢ but a dollar.

Simone told O’Leary he had trom May 20th to come

up with the 50¢ whereupon O’I sary pounded the table,

started to walkout, exclaiming ‘you are nothing but a

bunch of dummies.” The following day, Simone phoned

Rabe who recalled the earlier meeting about the 50¢ saying

“I was there when you people made your proposition, and

it was decided to be deferred to a later date, and no later

than. . .”. Simone thought it was September Ist. In the

meantime the Company had hired a new Superintendent

named O’Connor who Simone said despised human beings.

Grievance meetings became a farce, lasting 10 to 15 min-

utes with nothing settled. After one meeting O’Connor

said while Simone was downstairs “your business is done

now and you can get out.” The reply was “go to hell.”

This was followed by daily calls from Heffernan over plant

problems, one being pro rata vacations, subtracting Holi-

days and Vacations, and Bereavement Pay as time worked

for vacation eligibility. Rabe told Simone the employees

were not entitled to it with Simone saying one with five

(5) weeks vacation to 40 hours would have that number

of hours subtracted from the time worked calculation.

Simone met with Rabe, Company Secretary and Coun-

sel Herndon and a Mr. Booth, banker, and Company Di-

rector and told of O’Leary pounding the table saying he

had his life savings in the Company and wasn’t going to let

it go down the drain. Herndon said “Hell, he doesn’t have

A68

a damn penny in it. The four serious grievances were dis-

cussed, but not settled, vacations, holidays, and two dis-

charges. A few weeks later the Company fired O’Leary,

O’Connor and a few others.

In later meetings with Trego and Gish a few grievances

were resolved.

June 17, 1975 Casstevens came to a meeting at Rabe’s

office with nothing accomplished concerning the four (4)

major grievances which were later arbitrated, as to the

question of a single arbitrator hearing all four cases or

one arbitrator for each case. The arbitrator ruled in favor

of multiple grievances before a single arbitrator.

When Cross-examined, Simone admitted O’Leary’s let-

ter stated the meeting regarding the 50¢ would be on or

before November 1, 1975 not September 1, 1975 which

had been changed to the date of September 1, 1975 by T.

Heffernan because it was the agreed upon date in the minds

of the Committee. An N.L.R.B. charge was filed by the

Union over the 50¢ and dismissed.

The evidence shows the Company made an offer of

50¢ per hour for Class A Tool and Die men, which would

also go to the apprentices among the group of eight upon

reaching the A status. The Union contends Repairman

Derita was included in the group to receive the increase.

The Union says the 50¢ was deferred because of anticipated

ratification problems but felt the offer was a continuing

one. O’Leary wrote Simone October 7, 1974 about a per-

sonal request September 26th for action regarding estab-

lishing the skilled trades program, and again made a re-

quest to meet on the subject. As for subsequent meetings

it developed Rabe told Heffernan the Committee was not

investigating grievances, many of which had no merit.

A69

Some allegations of employees are:

D. Derita, employed thirty three years, and the past

five years on the negotiating Committee, mentioned em-

ployee Shafer accused him of selling him down the river

on his grievance as told to him by Foreman Sears. When

confronted Sears said “that’s true ain’t it?”

L. Simmons, Work Leader and Committeeman, told of

an incident involving an employee cleaning a bolster plate

in which an argument ensued with Foreman Stallworth

stating after the employee said he was going home said

“if you go, you quit your job,” followed by “if you don’t

leave, I'll call the Police, and have you thrown out.” The

following day Simmons was told by Stallworth he couldn’t

file a grievance for the man while in the plant, nor in the

parking lot, and if he punched out and went home to pre-

pare it, he “would be fired.” Gish the following day up-

held Stallworth in that he said “if the man has been

discharged he is no longer an employee and has no right

to file a grievance in the plant.” Foreman Sears in a sim-

ilar situation threatened to fire Simmons if he prepared a

grievance in the plant over the discharge.

The above two employees were referred under (a) and

(b); some of the allegations against Foremen are briefly:

(ec) Propositioned by Stallworth; refusal to let her

go home when ill, for which she was hospitalized, refusal

to take her off a Press that was giving her shocks; alleged

“kidnapping” by Stallworth and molestation; told none

about it, for if she grieved, she felt she would be fired.

She tried to sell tickets to a stag party, but did not

sell any, asked Gish if he would buy one but he refused.

(d) A towmotor operator told of Foreman Sears

threatening to fire him if he grieved over the brake prob-

A70

lem on a towmotor; that Gish told him “you can file all

the grievances you want, they don’t mean nothing to me”

that Stallworth threatened “to get him if it was the last

thing he did”; Sears mentioned the Union was “selling

him down the river.”

(e) This male employee with one ye~.'s service was

discharged for returning late from a vacation without

proper notification; he claimed Stallworth told him no

grievance could be filed on the premises.

(f) A male employee with four years service, claims

Foreman Isaiah followed him to the wash room, and if he

. sat down, Isaiah would walk back and forth, call out his

name to make sure he was there; constantly threatened

him if he “didn’t watch his step he’d be fired.”

(g) A male with one year’s service told of threats

and cursing from Foreman Sears who gave him a last warn-

ing for walking off the Press.

(h) A floor Inspector told of threats by Sears to

physically attack him, later Sears admitted he was prob-

ably wrong. Stallworth threatened to fire him if he caught

him sitting down.

(i) This man denied the charge of exposing himself.

(j) This Union official told of threats to him; that

employees wanted the names of two witnesses to the

Press cheating matter.

(k) A set up operator told of lots or problems with

Sears who cursed and raised hell with him. An hour

later he would apologize. Denied asking a percentage of

a money grievance settlement.

(1) This Class A Tool and Die man, and Steward, re-

lated an incident with Sears over a job rate in which

A7l

Sears grabbed his shoulders, shock him and told him to

“get out of my face, or I'll knock you down.” A meeting

with Gish and Sears brought this statement from Sears:

“I’m sorry if there was any mishap about it.”

(m) A female who worked six months in 1974 said

Stallworth touched her body; that she told her husband

who also worked at the plant. Stallworth tried to get

her to go to his after hours bar. Stillworth finally fired her.

(n) The above employee’s husband tried to warn

Stallworth about touching his wife; with Stallworth going

into a swearing rage, ordering him back to his Press. A

bad Press hit brought on a swearing rage by Sears who

swore all over the place, later being forced to apologize.

Sears also threatened to fire him if he filed a grievance.

(o) A night shift Steward told of Safety complaints,

language and treatment of employees by Stallworth; that

the bread line threat to fire the couple was told to him

and Lewis by Stallworth; who also threatened to fire the

entire night shift. Gish and Trego did nothing to Stallworth

after he told them about his actions. It did no good to file

grievances for they were either lost or never heard of

again. If one grieved he was treated like a “dog” after-

ward. As a safety man he complained about the straps

on Press 15 but was overruled by Stallworth. _

(p) Threats of firing were made by Sears to a female

Press operator who had other complaints regarding safety

which were corrected. Allegations were brought out about

her whiskey gifts to Gish, Stallworth, Sears and Gimper-

Jing; along with $70.00 worth of meats to Forernan Miller,

all of which she admitted.

(q) A male arc welder, one year service, told of lack

of flash screens on welders, thereby affecting his eyes:

that to get new gloves from Foreman Isaiah he had to have

A72

three fingers showing through the gloves; that the bare

fingers would get burned; that 90% of the presses are

unsafe.

(r) A female employee, one of the four on the Press

where the alleged cheating took place said September 9th

she worked one hour and was excused.

Rebuttal witnesses offered by the Company attempted

to answer allegations chargeable to them, some of the

evidence follows:

J. Gish, Superintendent, to his knowledge, did not hear

of Foremen telling anyone he could not file a grievance.

He said it was routine in the plant for Foremen and

employees to use obscene language. He said the safety

devices on Press 15 did not create a safety hazard; denied

tearing up any grievances; didn’t recall telling Triplett,

who had been discharge, he could not file a grievance on

Company time or property.

Carol Trego testified some 50 grievances were filed in

1975 with 15 settled by the Company and 15 dropped by

the Union and with 20 pending; that no grievances were

filed against Stallworth concerning his conduct, but some

were filed for pay or overtime; the same was true of

Foreman Sears; that O’Leary and O’Connor were sore

spots to the Union, however, after they left in March of

1975 labor relations did not improve. She admitted all

Foremen have been talked to by the Company about passes

being made to female employees, later mentioning Stall-

worth, Sears and Gimperling. Between the two walkouts,

Lange said allegations against Foremen were told him but

he did not check with employees for no names had been

given of females molested, nor has he taken action against

Foremen for lack of proof.

A73

Foreman Sears stated he never made the statement

to Shafer “the Union was selling its members down the

river.” The towmotor complaint was turned over to the

towmotor maintenance people, White Mobile Left, who sug-

gested new pins be ordered. The new pins were not ordered

for Sears suggested the Company make their own pins.

He never heard if the pins were made. Denied he ever

told anyone he could not file a grievance, nor threatened

anyone if he grieved; denied saying to a black employee

“You damn people can’t do anything right”; admitted a

threat about one employee hoping to get a problem solved.

One ex-employee threatened to blow up his house. He

never called an employee a vile or obscene name; nor has

he ever grabbed an employee by the shoulders, threatening

to knock him down; didn’t threaten anyone not making the

rate about being fired.

A. Stallworth told of down time problems in the Paint

Shop when he became a Foreman three years ago; he re-

assigned employees to other work during such periods

which antagonized the employees. He admitted refusing

one discharged employee the filing of a grievance on Com-

pany property, however, Gish overruled him. The dis-

charge brought on choice name calling to Stallworth con-

cerning race along with a threatening phone call.

One female employee (c) had never been propositioned

by him to go out; that he had absentee problems with her

and gave her a reprimand, although she said she had been

hit on the head with a hammer. On the complaint of her

receiving a shock he solved it by moving the table. As

for the kidnapping and molestation charge he denied it,

and explained (c)’s friend had asked her to drive him a

distance of ten blocks which she did, a charge that he

threatened a male employee it was the last thing he did,

was denied, but he did tell him to quit cowboying the tow-

A74

motor and to slow it down, otherwise reprimands would

follow, eventually leading to his discharge. An overtime

pay claim in which the employee sought to grieve through

his Steward Stallworth requested a replacement Inspector,

if the Inspector was going to leave the department; that the

Steward the grievant got was the second one for the first

one refused the grievance. He told the employee who

wanted to go outside the plant after punching out, to pre-

pare his grievance along with the Steward. He had paid

for discussion time for the other Steward and grievant

some 20-25 minutes.

If he overrules Inspection and runs a job he initials a

card. Denied touching a female worker, not ask to take

her home or go to his after hours bar, which he did not

have in December, 1974. All he told the girl’s husband

was to watch his absenteeism and take care of his job;

he didn’t recall saying he would “put both of them on

bread lines”. He helped to get the wife a job at the plant.

Stallworth stated that prior to the strikes the per-

centage of whites and blacks was 60-40. Steward Doshak

did knock reprimand papers out of his hand and was sus-

pended the balance of the shift. He did not threaten

Doshak’s job on the towmotor incident, about running

out of gas.

According to Stallworth the reason employees have

been making charges against him is to get him, as related

to him by two employees who named some who were out

to get him.

According to Stallworth over half of the employees

at the Company are ex-felons. He admitted being sen-

tenced one to fifteen years for breaking and entering and

burglary; another one unarmed robbery one to twenty

five years; and two other charges, allegedly bearing Court

case numbers were denied; that he is not now on parole.

A75

Of the approximately one hundred fifty (150) em-

ployees as of September 9, 1975, a Company list showed

twenty one (21) on the night shift, in addition to the

twenty four (24) who walked out, of which thirteen (13)

were probationary employees and eight (8) were off for

various reasons. Similar computations were not developed

about the day shift which no doubt would show similar fig-

ures to arrive at the total of one hundred fifty (150) em-

ployees. Of the total employees, forty percent (40%) were

black with over half of the personnel ex-felons, (Stall-

worth) however, it should be noted the employment ap-

“lication show twelve (12) admitted ex-felons in addi-

tion to Stallworth. The high number of probationary em-

ployees indicates considerable turnover of personnel. A

Company exhibit listed seventy three day shift employees

discharged September 16th, whereas, eighty eight were

terminated, fifteen (15) of whom were rehired shortly

thereafter.

The year 1974 developed some serious problems over

the new contract including skilled trades, Holiday Pay,

and Vacations. Any misunderstanding as to whether or

not the 50¢ offer for skilled trades employees was a con-

tinuing one does not alter the fact the Union and some

employees interpreted it as a continuing offer in which

O’Leary reneged. The Company insisted on a literal in-

terpretation of the Holiday Pay and Vacation hours worked

for eligibility, whereas, the Union felt the past practice

should remain. Twenty grievances were unresolved for

failure to agree.

The attitude of employees regarding safety, threats

of Foremen to discharge one who grieved, transfer to jobs

where one could not make a bonus were alleged if one

grieved; harassment of Stewards and employees who

sought to grieve on Company premises in discharge cases,

A76

propositioning of female employees and touching one

charged against a Supervisor, and a kidnapping and mo-

lestation of a female by a Supervisor were encompassed

in a multitude of sworn testimony.

The kidnapping case was not substantiated by a wit-

ness who identified himself one hearing day but failed to

testify in support of his girl friend.

Although one employee claimed 90% of the presses

are unsafe, the Arbitrator cannot accept this as true for

lack of proof. However, a most significant instance of

safety negligence was Sears’ failure to order pins for

a faulty towmotor as recommended hy White Motor Lift.

Foreman Isaiah, who issued gloves did not testify and refute

charges of the necessity for three bare fingers to be

showing before he issued new gloves. Superintendent

Gish verified a charge that discharged employees were

not permitted to grieve on Company premises.

A reason advanced by employees for failure to return

to work following the walkout was threats of bodily harm.

The Union in its opening statement admitted the threats

could not be idle threats but real threats. Names were

not divulged of those who did the threatening. Witnesses

did say the threats were to inflict bodily harm on anyone

who went to work.

The precipitating factor leading to the walkouts was

the first Company decision August 28, 1975 to discharge

four (4) Press operators. This was shortly resolved with

reinstatement of the four (4) with back pay pending in-

vestigation by Herndon the next week. The Company

warned the Union it would not tolerate any further walk-

outs. While the arbitration case of the four (4) Press

operations is not before me, I must comment to the extent

it was not completely investigated jointly by Union and

AT77

Company representatives but by Herndon, Company Coun-

sel and Secretary. The result was unofficially told the

Union prior to September 9th, however officially given

the Union in the afternoon when Trego and Lange told

the Union the result and penalties. The two men were

discharged at 5:15 p.m. The two females who were sus-

pended were not present, one was not at work that night,

and the other went home after two hours’ work. Shortly

after, the walkout of twenty four followed. No leaders

were observed, or later discerned. Failing to return to

work by 7:30 p.m. Company President Lange fired all

twenty four employees.

The number of female employees was not offered.

There were some females present during the hearing days,

however, the percentage to the total is not in the record.

While the decision on four (4) Press Operators pre-

cipitated the walkouts the employees contended many

Company improper actions and weaknesses of the Union

Officers to cope with contract violations were underlying

factors. The second walkout lasted five working days dur-

ing which period all who testified and participated in the

unauthorized strike steadfastly maintained they could not

return to work, albeit Court order and Union exhortations

to do so were known, due to threats of bodily harm. This

defense is understandable due to the plant being highly

integrated with ex-felons among them. To name those

doing the threatening, if known, could have brought on

retaliatory measures. About one sixth of the work force

walked out, however, the evidence is they were at the

plant before 6:30 a.m. the next day and “persuaded” the

day shift to join them. The Arbitrator recognizes the

“threats” as occurring after the fact, the walkout.

A78

The Arbitrator concludes and finds the Company did

not have clean hands. It permitted violations of the con-

tract to continue by Supervisors long after it was apprised

of them. One of the principal antagonists toward em-

ployees in contract violations was an ex-convict Foreman

who operated an after hours bar. The Company stead-

fastly supported his brazen acts in thwarting attempts by

employees to utilize the grievance procedure. The futility

of the grievance procedure was manifest when Foreman

Stallworth threatened transfer and discharge if any filed

a grievance. His actions made a mockery of the grievance

procedure. The evidence established that he was the

prime Union “baiter” among Supervisors.

The intimidation by Supervision in effectively thwart-

ing the employees use of established contractual procedures

caused complete frustration to the point that employees

took matters into their own hands. While this Arbitrator

does not condone self-help by these employees, even though

they had reason to vent their feelings, the penalty of dis-

charge was inappropriate.

All discharged employees, except Koslik and Dale, are

reinstated with seniority, including fifteen (15) re-hired,

but without back pay, effective not later than five work-

ing days from receipt of this award.

THE CASE OF F. KOSLIK AND D. DALE

Under date of September 13, 1975 the Company wrote

the two female Press operators they were discharged for

participating in an unauthorized strike. This was the only

type letter sent to any dischargees (CO-26). They had

been observed outside the plant prior to discharge. Their

twenty calendar days suspension was told the Union Sep-

tember 9th. Neither employee was at work around 5:45

A79

p.m. when the walkout took place; Dorothy Dale was

absent and Frances Koslik left work, excused due to ill-

ness; after two hours.

The two employees did not grieve their suspension

of twenty days which had been told to the Union Com-

mittee per the Company. The two have grieved their dis-

charges according to Union Counsel.

President Lange tes

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