Kiley, Cummings*fn* and Stevens, Circuit Judges.
James Moore was discharged by Sunbeam Corporation on October 17, 1967. He claims that the corporation committed an unfair labor practice, that his union*fn1 breached its duty to represent him fairly, and that he is the victim of racial discrimination proscribed by the Civil Rights Act of 1964. His appeals from adverse rulings by the Labor Board and the district court were consolidated in this court. In brief, the issues are whether the Board correctly construed the collective bargaining agreement; whether the union was required to submit Moore's grievances to arbitration; and whether Moore's civil rights claims are barred as untimely.
Although the three issues arise out of the same transaction, many factual details relate primarily to only one issue. We shall, therefore, start by considering the unfair labor practice charge which was the subject of a full evidentiary hearing before a Labor Board Trial Examiner. We shall then discuss the basis for the summary judgments entered in favor of the union and the employer, respectively, in the district court action.
The union represents approximately 2,400 employees in five plants operated by Sunbeam in the Chicago area. Moore, a union member, was one of approximately 1,200 employees at the main plant.
In the collective bargaining contract Sunbeam agreed to a four-stage grievance procedure, culminating, if the union so demanded, in arbitration. On its part, the union, for itself and for its members individually, broadly agreed not to strike, to picket, or to encourage any interference with orderly production.*fn2 During the course of his employment*fn3 Moore initiated several grievance proceedings*fn4 and filed four unfair labor practice charges against Sunbeam. Apparently none of the grievances was successful. Two of the Labor Board charges were withdrawn voluntarily;*fn5 the general counsel refused to issue complaints on the other two.*fn6 Frustrated by his inability to obtain relief through regular channels, in February of 1967 Moore wrote to the president of Sunbeam requesting a personal interview. He was advised that the president would not set a precedent by meeting with an individual employee on a grievance matter.
On August 11, 1967, Moore again wrote to Sunbeam's president demanding a meeting with him and with the union's district representative (Janas). The letter reviewed Moore's unredressed grievances and expressed his feeling that "top management is systematically denying me the opportunity to advance to the full extent of my ability . . . only because I am a Negro." He stated that if a meeting could not be arranged, "the only alternative [is] to present my grievance to my co-workers, and the public." Suprisingly, this letter evoked no response whatsoever from Sunbeam.*fn7
In late September Moore added a few paragraphs to his unanswered letter, labeled it an "Open Letter to Mr. Robert P. Gwinn, President," and made 3,500 copies for distribution to various public officials and agencies, his fellow employees, and members of the public. The added paragraphs asked for support in making equal opportunity in employment a fact and requested supporters to "refrain from buying any Sunbeam appliances . . . until justice has been served." At the end of the open letter Moore stated that he would march in front of the Sunbeam plant on October 24, 1967, "in protest of the conditions here."
On October 2, 1967, Moore gave a copy of the open letter to a fellow employee and discussed it briefly with her. Later that day the letter came to the attention of Sunbeam's Personnel Department and on October 3 Moore was suspended. He distributed his "petition" at various plant gates that day and on the next three days.
During this period he had several discussions with union representatives. On October 5 Janas prepared a grievance covering Moore's suspension; at that time Janas advised Moore that his actions violated the union contract. Accordingly, Janas responded to inquiries from union stewards by advising that the union would not sanction picketing by Moore. Moore nevertheless insisted that he would march on October 24 without union support.
On October 11 a second stage grievance meeting regarding Moore's suspension was held. Nothing was resolved. On October 17 he was discharged. Both the discharge letter and a letter written to the union on the same day relied, in part, on the ground that Moore was seeking to encourage a strike and product boycott in violation of the union contract.
On October 24 Moore did picket for most of the day, but with almost no support from fellow employees. It is reasonably accurate to state that although he attempted to engage in collective or concerted activity, he actually conducted a one-man demonstration.
A week later a third step grievance meeting was held, but the company refused to reinstate Moore. The union subsequently rejected Moore's request for arbitration of his suspension and discharge grievance.
Thereafter, Moore filed unfair labor practice charges against both the union and the company. The charge against the union was dismissed. The general counsel issued a complaint against Sunbeam alleging that its rule against solicitation by employees was too broad and that Moore had been discharged for engaging in concerted activity protected by § 7 of the Labor-Management Relations Act.
The Trial Examiner and the Board found the solicitation rule invalid, but upheld the discharge. No issue involving the rule is before us since Sunbeam has made the modification directed by the Board.
Although both the Trial Examiner and a majority of the Board concluded that Moore's activity was not protected by the Act, their reasoning was different. The Trial Examiner, stressing the individual character of Moore's campaign, found that his activity was not "concerted," and therefore not covered by the statute. The Board, stressing his expressed intentions and requests rather than his accomplishments, regarded his activity as "concerted," but prohibited by the no-strike clause of the contract. The dissenting member of the Board agreed that Moore was engaged in concerted activity, but felt that he did not violate the no-strike clause.
Certain propositions of law are not disputed. There are kinds of concerted activity that are not protected by the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 8 L. Ed. 2d 298, 82 S. Ct. 1099. Specifically, conduct which violates a no-strike clause in a collective bargaining agreement is not protected and may give rise to discharge. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246, 8 L. Ed. 2d 462, 82 S. Ct. 1318. The critical question here is whether Moore's conduct violated Article 1, Paragraph 5, of the agreement between Sunbeam and the union.
In answering this question we do not merely consider dictionary definitions of the word "strike," or even judicial interpretations of that term in other contexts. Of greater importance is the understanding of the parties who negotiated and drafted the contract before us, the interpretation of administrators who specialize in labor relations matters, and the purpose which the contractual provision was intended to serve. We thus put to one side the dissenting Board member's persuasive exposition of why Moore's conduct was not a conventional strike.
Moore had embarked on an independent effort to resolve his dispute with his employer by means other than those which the union, on his behalf, had agreed to employ. In substance, the union and its individual members had agreed to abstain from economic warfare or collective pressures during the term of the contract. To the extent that Moore's conduct can properly be viewed as concerted, it was directly opposed to the intent of the no-strike clause. He asked his co-workers to "refrain from buying any Sunbeam appliances" and for support "to obtain . . . better working conditions for all Sunbeam employees."*fn8 The company, quite reasonably, viewed this overture to collective action as a violation of the employees' agreement not to encourage any interference with work or any picketing of the company's plant or premises.
Of greater significance, the union agreed with this construction of the contract. Janas so advised Moore in advance of the discharge, but Moore nevertheless persisted in his independent course of action. After the discharge, the union declined to submit the matter to arbitration. The union's interpretation of the scope of its own undertaking is entitled to considerable respect.*fn9
We also respect the Labor Board's appraisal of the issue. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456. It might be argued that that case applies only to questions of fact decided by the Board and that we are not bound to follow the Board's construction of written instruments.*fn10 It does not follow, however, that the expertise of the Board is not relevant in the interpretation of a labor contract. When, as in this case, the facts must be interpreted in connection with the contract language, the function of the Board in promoting the national labor policy is particularly ...