W-I Canteen Service, Inc. v. N.L.R.B.
| Decision Date | 25 September 1979 |
| Docket Number | No. 78-2283,W-I,78-2283 |
| Citation | 606 F.2d 738 |
| Parties | 102 L.R.R.M. (BNA) 2447, 87 Lab.Cas. P 11,576 CANTEEN SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Dennis M. White, Madison, Wis., for petitioner.
Paul J. Spielberg, N. L. R. B., Washington, D. C., for respondent.
Before PELL, SPRECHER and WOOD, Circuit Judges.
The petitioner, W-I Canteen Service, Inc. (Canteen), seeks review of an order of the National Labor Relations Board. The Board has cross-applied for enforcement of its order. The Board found that Canteen violated sections 8(a) (1) and (3) of the National Labor Relations Act by discharging and otherwise penalizing employees for engaging in a sympathy strike. The determinative issue is the legality of the strike under two collective bargaining agreements negotiated by the petitioner and Retail Clerks Local 1354. Canteen argues that the
agreements clearly and unequivocally waived the right to engage in sympathy strikes at its premises and that the Board's interpretation of the agreements was erroneous. Also at issue is the Board's determination that Canteen violated section 8(a)(1) of the Act by coercively interrogating one of its employees about her union activities.
The petitioner, Canteen, services and maintains vending machines in the Rockford, Illinois, area. At its Rockford plant, Canteen and the Retail Clerks Union Local 1354 have been parties to three separate collective bargaining agreements covering three separate bargaining units. One agreement covers the service and maintenance unit. Members of this unit report to Canteen's Rockford facility to pick up goods for delivery to the premises of customers. Three members of this unit report directly to a nearby Chrysler plant and remain there all day without reporting to the Canteen Rockford facility. Another bargaining agreement covers members of the bakery unit, which produces some of the goods sold in the vending machines. The third agreement covers clerical workers. The service and maintenance agreement (Service Agreement) was first negotiated in 1968 and was renegotiated in 1969, 1972, and 1975. The bakery unit agreement (Bakery Agreement) was first negotiated in 1968 and was renegotiated in 1971 and 1974. The clerical unit agreement was entered into for the first time in 1976.
The 1975 Service Agreement, which covers the events at issue here, contains the following no-strike provision:
The Company and the Union agree that there will be no strike or lockout during the life of this Agreement so long as the Company and the Union abide by the terms of this Agreement or submit to arbitration any differences which may arise which are not covered by this Agreement.
The following two provisions, appearing in separate articles of the same agreement, relate to picket lines:
SECTION 3. The Company will not, as a condition of continued employment, require the employees to cross any picket line established on or in front of the premises of any other company. The individual or concerted refusal to pass such a picket line shall not constitute grounds for discipline, discharge, and is not to be considered as violating any provision written or implied which prohibits the Union from striking.
SECTION 9. In the event of a strike or lockout of any certified Union, it shall not be considered a violation of this Agreement for the members of the Union to refuse to deliver goods or service machines where such controversy is on. The Union agrees, however, that the accounts in the Company must be serviced and they will not in any way attempt to interfere with such servicing by Company personnel other than employees covered by this Agreement.
An arbitration article in the 1975 Service Agreement permits either party to initiate arbitration in the event of proper exhaustion of preliminary procedures. The scope of the arbitration provision is defined in this way:
The arbitrator shall have authority and jurisdiction to determine the propriety of the interpretation and/or application of the Agreement respecting the grievance in question, but he shall not have the power to alter or modify the terms of the Agreement. With respect to arbitrations involving discharge or discipline . . . the arbitrator shall determine if the discharge . . . was for just cause. . . .
The no-strike clause of the 1974 Bakery Agreement covering the events at issue here is identical to the Service Agreement provision quoted above. The scope of the arbitration clause also is identical to the clause in the Service Agreement. The Bakery Agreement, however, has no picket line permission clause.
The service and maintenance unit in Rockford has twice in the past engaged in a strike: during negotiations leading to their 1972 agreement and during negotiations leading to their 1975 agreement. The 1972 strike lasted two to three weeks. The 1975 strike lasted only a few days.
During the 1972 strike, the service and maintenance unit employees picketed the Rockford premises. Canteen's bakery did not operate, except to service the few contract obligations requiring performance during a strike. These obligations were carried out by supervisory personnel. None of the bakery unit employees crossed the picket line during the strike. 1 No bakery employee was subjected to discipline for failure to report to work during the period of the strike.
In 1973, Canteen discharged the service and maintenance employees who worked full-time at the Chrysler plant when they refused to cross a picket line established by auto workers at that plant. The employees protested and were reinstated. Canteen issued a written statement to the union concerning picket lines, which said in part:
Since 1957, the company's policy has been to allow any employee the right to decide whether or not to cross a picket line. This is a personal decision on his part and his decision to cross a picket line or not has been his decision to work or not to work. His refusal to not (sic) work is his decision to take, in essence, a voluntary lay-off. This has been the case in all previous instances, the employee has not worked until the picket line is removed or he is needed to help in other areas or routes.
In no instance in the past have any employees been discharged, disciplined or discriminated against due to their refusal to cross a picket line, all have been treated equally and fairly.
During the negotiations leading to the 1975 Service Agreement, the service and maintenance unit employees again went on strike and picketed Canteen's Rockford premises. The bakery operations again were cut back. Some employees did not work part of the time during which the picket line was up. Some of the workers returned to work during the strike, and Canteen directed the remaining bakery employees to return to work.
In Madison, Wisconsin, Canteen maintains another facility engaged in the same business as the Rockford, Illinois, facility. Teamsters Local 695 was certified as the bargaining representative of the service and maintenance employees at this facility in March 1976. The Madison employees began a strike on May 4, 1976. On May 6, 1976, Retail Clerks Local 1354 held a meeting of employees of the three Rockford bargaining units. A Teamsters union representative attended the meeting and explained to the Rockford employees that the initial contract negotiations in Madison were not progressing satisfactorily and that the Madison employees were on strike. The Teamster representative proposed placing a picket line at the Rockford facility. The Rockford employees voted 14 to 14 on a request to support the Madison strike, and therefore no formal resolution of support was made. The Rockford local president, Merle Heitz, told the employees that it would be up to each individual to decide whether to honor a Teamsters picket line at the Rockford facility. After the meeting, one Rockford service and maintenance employee privately asked Heitz what would happen if Canteen should bring trucks across the Teamster picket line. Heitz told the employee that refusal to work under these circumstances would cost the employees their jobs.
Over the following weekend the Teamsters informed the Rockford local that a picket line would be set up in Rockford on Monday, May 10. The picket line was set up on that day at 5:00 a. m. Thirteen Rockford employees did not report to work. Of these thirteen, eleven were members of the service and maintenance unit. 2 In the bakery unit, only one of the six employees did not report for work. In the clerical unit, one of the five employees, Lisa Erickson, did not report.
On the morning of May 10, the first day of the picketing, eight of the employees who did not report for work met near the plant with a Retail Clerks business representative. The employees were advised to apply for food stamps and unemployment compensation. At another meeting later that morning an employee asked Merle Heitz what to do if Canteen called and requested them to return to work. Heitz instructed the employees to stay away from their phones. Heitz also instructed them that if the employer offered to bring work to them at a location where they would not have to cross the picket line, they would be fired if they did not perform the work. Canteen made efforts to reach the service and maintenance unit employees at home by telephone. The president of Canteen, Charles Swanson, ordered that employees who refused to come to work be told that they were fired. Canteen offered to deliver equipment to some of the employees so that they would not have to cross the picket line to perform their duties. None of the striking employees...
To continue reading
Request your trial
-
Local Union 1395, Intern. Broth. of Elec. Workers, AFL-CIO v. N.L.R.B.
...line to discharge work assignments even though it does not specifically use the words "sympathy strike." See W-I Canteen Serv. v. NLRB, 606 F.2d 738, 745 (7th Cir.1979). The no-strike clause, moreover, is contained in a section of the agreement separate from the arbitration clause and appea......
-
N.L.R.B. v. Southern California Edison Co.
...it is entitled to deference from the courts. E. g., NLRB v. Gould, Inc., 638 F.2d 159, 164 (10th Cir. 1980); W-I Canteen Service, Inc., v. NLRB, 606 F.2d 738, 747 (7th Cir. 1979); NLRB v. C. K. Smith, 569 F.2d 162, 167 (1st Cir. 1977), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1......
-
N.L.R.B. v. Gould, Inc., 79-1025
...contract the parties had manifested an intention to prohibit other types of sympathetic activities. See also W-I Canteen Services, Inc. v. NLRB, 606 F.2d 738, 745-46 (7th Cir. 1979). There is no question that the existence of the picket line clause persuaded the court that the employees had......
-
International Broth. of Elec. Workers, Local 803, AFL-CIO v. N.L.R.B.
... ... Young, Paul Spielberg, Elliott Moore, Appellant Court Branch/NLRB, Washington, D.C., Patrick Szymanski (argued), Philadelphia, Pa., for ... the desire of both parties to provide uninterrupted and continuous service to the public ... Id at 58. Identical language has ... Relying on Operating Engineers Local Union 18 (Davis-McKee, Inc.), 238 N.L.R.B. 652 (1978) ("Davis-McKee "), the ALJ reasoned that, absent ... Cf. W-I Canteen Serv. v. NLRB, 606 F.2d 738, 744 (7th Cir.1979) ("the parties may by ... ...