Suburban Transit Corp., Petitioner, v. National Labor Relations Board, Respondent,united Transportation Union, Lodge 1589, Intervenor, 536 F.2d 1018 (3d Cir. 1976)

This case comes before this court upon a petition of Suburban Transit Corporation ("Suburban") to review and set aside a Supplemental Decision and Order of the National Labor Relations Board finding Suburban to have violated sections 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1) and (3). Suburban Transit Corp., 218 N.L.R.B. No. 185 (1975). A cross-application for enforcement of its order has been filed by the Board. The United Transportation Union, Lodge No. 1589, ("UTU") has intervened in support of Suburban's petition. We will grant the petition to review and set aside the Board's order and deny the cross-application for enforcement.¹ 

In a prior proceeding, the Board found that Suburban had engaged in unfair labor practices in violation of sections 8(a) (1) and (2) of the National Labor Relations Act by bargaining and entering into a renewal of a collective bargaining agreement with the UTU when a question concerning representation had been raised by a decertification petition filed by certain employees and by a representation petition filed by the rival Teamsters Local No. 701.²  Suburban Transit Corp., 203 N.L.R.B. 465 (1973). Suburban was also found to have violated sections 8(a) (1) and (3) of the Act because the agreement contained a union-security provision. Finally, the Board held that Suburban had further violated sections 8(a) (1) and (3) by discharging and refusing to reinstate certain employees who had engaged in a strike to protest, in part, the execution of the collective bargaining contract between Suburban and the UTU. Suburban was ordered to withdraw and withhold recognition from the UTU until it was certified as the bargaining representative of Suburban's employees, to offer full reinstatement to the discharged employees and to make them whole for any losses suffered as a result of the discharge.

In Suburban Transit Corp. v. NLRB, 499 F.2d 78 (3d Cir.), cert. denied, 419 U.S. 1089, 95 S. Ct. 681, 42 L. Ed. 2d 682 (1974), this court denied enforcement to the part of the Board's order that held Suburban to have violated sections 8(a) (1), (2) and (3) by bargaining and entering into the collective bargaining agreement with the UTU. We stated that the Board's decision on these charges, which relied on Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945), conflicted with "our decision in NLRB v. Swift & Co., 294 F.2d 285 (3d Cir. 1961), where this court held that mere filing of a representation petition by a competing union does not create a real question of representation so as to prevent an employer from entering into an agreement with the previously certified union." Id. at 82. Therefore, the Board's finding that a real question of representation existed at the time of the execution of the agreement between Suburban and the UTU was not supported by substantial evidence and Suburban had not committed an unfair labor practice in executing that contract. The court also set aside the Board's determination that Suburban had violated sections 8(a) (1) and (3) by discharging the striking employees because that finding had been grounded on the Board's erroneous view that the strike was a protected unfair labor practice strike. However, we remanded the case to the Board for a "determination as to whether the strike was protected activity in light of Article 13 of the bargaining agreement." Id. at 83.

On June 30, 1975, the Board issued its Supplemental Decision and Order pursuant to the mandate of our remand and again found Suburban to have violated sections 8(a) (1) and (3) by discharging the striking employees. The Board concluded that the employees striking to protest the signing of the collective bargaining agreement were engaged in protected concerted activity within the meaning of section 7 of the National Labor Relations Act, 29 U.S.C. § 157, and that nothing in the agreement could reasonably be construed as an intended waiver of their rights to take such action.³  This petition for review and cross-application for enforcement followed.

The only question presented by the petition and cross-application sub judice is whether the Suburban-UTU collective bargaining agreement expressly or impliedly prohibited the strike by the Suburban employees.⁴  Although section 7 of the National Labor Relations Act does guarantee employees the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," 29 U.S.C. § 157, it is well settled that strikes carried out in violation of a no-strike provision in a collective bargaining agreement are not afforded the protection of section 7 and that a discharge of employees who engage in such strikes does not constitute an unfair labor practice. Food Fair Stores, Inc. v. NLRB,491 F.2d 388, 395 (3d Cir. 1974). Of course, "(w)hether a particular collective bargaining agreement includes a waiver of the employees' right to strike, and the extent of any such waiver, 'turns upon the proper interpretation of the particular contract . . . (which) must be read us a whole and in light of the law relating to it when made.' " Id., quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279, 76 S. Ct. 349, 100 L. Ed. 309 (1956). In our view, Article 13 of the Suburban-UTU collective bargaining contract contains a waiver of the employee's right to strike in protest to the execution of the Suburban-UTU agreement, and consequently, the Board's finding that Suburban had violated sections 8(a) (l) and (3) in discharging the striking employees is not supported by substantial evidence.

Article 13 of the collective bargaining contract establishes a three- or four-step procedure, the last stage of which is binding arbitration, for the resolution of grievances that arise "for any reason."⁵  Subparagraph F of Article 13 prohibits strikes while a dispute is pending under the grievance-arbitration mechanism:

F. Recourse to outside tribunals will not be made by either party until the Grand Lodge of the Union has been advised and given a reasonable opportunity to intervene and dispose of or adjust the situation as the case may be. This, with the understanding that there shall be no authorized strike during such period the dispute is pending under the discussion with either the local lodge or the Grand Lodge. (emphasis added).

Despite the apparent breadth of the no-strike clause contained in Article 13F, the Board refused to construe it to prohibit the strike by the Suburban employees primarily because it concluded that the dispute which precipitated the strike could not be arbitrated under Article 13. The Board cited two reasons for its conclusion on the nonarbitrability of the employees' dispute: first, Article 13 was available only to resolve grievances "arising between Suburban and the Union" while the dispute here was between the employees and the UTU;⁶  second, the employees' protest to the signing of the collective bargaining agreement was not a "grievance" under the collective bargaining agreement.

While we agree that a "no-strike obligation is as wide as, but no wider than the contractual arbitration undertaking of the parties,"⁷  we disagree that the Suburban employees' dispute was not arbitrable under Article 13. The employees' protest to the execution of the collective bargaining agreement was directed against both Suburban and the UTU. It was a dispute about whether Suburban had a valid contract with the UTU.⁸  Since we construe the term "Union" as used in the agreement to include both the formal organization known as the UTU and the individual Suburban employees which the UTU represents,⁹  the employees' dispute was in fact one "arising between Suburban and the Union," and thus was subject to resolution under Article 13's grievance-arbitration procedure.¹⁰  A construction of Article 13 to preclude arbitration of disputes between individual employees and Suburban would be contrary to the intent of the parties, to common sense and to the presumption in favor of arbitration of labor disputes.¹¹ 

We also disagree with the Board's determination that the employees' protest was not a "grievance" within the meaning of Article 13. On its face, Article 13 appears to be sufficiently broad to encompass the instant dispute. It expressly applies to grievances that arise "for any reason." In addition, the preamble to the contract states that the "purpose of this agreement is . . . to establish a plan for the prompt adjustment of grievances and all other disputes arising between Suburban and the Union." (emphasis added). The Board concluded that the employees' dispute here was not within Article 13's purview apparently because it feared that the UTU might not adequately represent the employees' interest during the grievance arbitration proceedings.¹²  However, there is no evidence in the record that the UTU has ever failed to provide the Suburban employees with full and fair representation. Indeed, in the instant case, the UTU appeared on behalf of the striking employees at a preliminary hearing, requested an appeal from Suburban's decision to discharge seventeen of the nineteen striking employees, filed grievances on behalf of the striking employees pursuant to Article 13 and appeared on their behalf at hearings on those grievances. Thus, on the record before us and in light of the federal policy favoring arbitration of labor disputes,¹³  we see no justification for departing from the express terms of the collective bargaining contract.

One final reason put forth by the Board in support of its conclusion that the no-strike clause of subparagraph F did not prohibit the Suburban employees' strike was that Article 13F, by its terms, proscribes only " authorized strikes" while the instant strike was unauthorized. In our view, the Board's argument is mere sophistry. The no-strike obligations in the collective bargaining agreement were binding on the individual union members on whose behalf the union signed the agreement, as well as on the union. See Eazor Express, Inc. v. International Bhd. of Teamsters, 520 F.2d 951, 960-61 (3d Cir. 1975), cert. denied, --- U.S. ----, 96 S. Ct. 1149, 47 L. Ed. 2d 342, 44 U.S.L.W. 3473 (1976). In any event, as recited above, we would have no difficulty implying an obligation on the part of Suburban's employees not to strike over, but rather to arbitrate, the dispute involved here. See Gateway Coal Co. v. United Mine Workers, supra 414 U.S. at 381-82, 94 S. Ct. 629; Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 105, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962).¹⁴ 

For the reasons set forth above, the Board's order finding Suburban to have violated sections 8(a) (1) and (3) of the National Labor Relations Act by discharging employees striking to protest the execution of the Suburban-UTU agreement will be set aside, and the Board's cross-application for enforcement of its order will be denied.