Record and brief — Falls Stamping & Welding Co. v. International Union, United Automobile, Aircraft & Agricultural Implement Workers
Supreme Court brief1982
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UITiCe . Suprema -
61-1348 FILED
JAN 15 igh
No. anes \ STEVAg,
LERK
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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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