Clark, Associate Justice,*fn* Fairchild, Chief Judge and Sprecher, Circuit Judge. Fairchild, Chief Judge, concurring.
The question on this review and cross-application for enforcement of a Board order is whether under the collective bargaining agreement involved, employees were engaged in protected activities when honoring another local union's picket line and participating in a sympathy strike.
The Company supplies water on a wholesale basis to residential and industrial customers in Gary and Hobart, Indiana, and surrounding areas. At the time of the alleged unfair labor practices two locals of International Union of District 50, Allied and Technical Workers of the United States, represented the Company's employees. Local 13584 represented a unit consisting of operating or production and maintenance employees, sometimes referred to as the " men's unit," and had a bargaining relationship with the Company since 1952.
On September 5, 1968, the Board certified Local 14321 as the representative of a unit consisting of clerical employees, sometimes known as the "women's unit." Commencing on March 21, 1969, the women's unit struck the Company. During the strike, 70 of the 97 members of the men's unit honored the women's picket line. On April 1, 1969, the Company entered into a bargaining agreement with the women's unit for the period up to December 31, 1971.
On June 1, 1971, following expiration of the men's contract, the Local 13584 unit began an economic strike. Thirty-three of the 34 members of the women's unit honored the picket line. After warnings, the Company on June 17 discharged each of the women who honored the men's line. The discharged employees were replaced very slowly, one being replaced by June 17 and only 6 by August 17. At no time during the strike or through the summer of 1971 was there any disruption of service to the Company's customers.
On August 18, their Union on their behalf sent a telegram to the Company offering that the women return to work immediately, which offer was rejected by the Company. On August 30, the men's unit returned to work.
On October 27, the Company notified the Union that it was terminating the women's contract, believing that "the contract has already been terminated by operation of law." Prior to and after the contract expired by its terms on December 31, 1971, the Company refused to bargain with the Union in regard to the women's unit.
As a result of charges filed on behalf of the women's unit on June 21 and November 12, 1971, a complaint issued on January 4, 1972, alleging that the Company violated section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), by discharging 34 employees on June 17, 1971, because they engaged in a protected sympathy strike, and by refusing to reinstate them when openings occurred although they made an unconditional offer to return to work on August 18, 1971; violated section 8(a)(5), 29 U.S.C. § 158(a)(5), of the Act by terminating its collective bargaining agreement with the Union on October 27, 1971, and by refusing to bargain with the Union; and violated section 8(a)(1), 29 U.S.C. § 158(a)(1), of the Act by each of the foregoing acts.
On June 16, 1972, the Administrative Law Judge recommended that the complaint be dismissed. On November 30, 1972, the Board ordered that the complaint be dismissed but that jurisdiction be retained for further consideration if the dispute be not resolved with reasonable promptness either by amicable settlement in the grievance procedure or by arbitration. When the Company refused to follow the grievance procedure or to arbitrate, the Union moved for further consideration.
On May 21, 1974, the Board decided the matter on its merits. 210 N.L.R.B. No. 87 (1974).
The Board found that the contract's no-strike provisions did not waive the women's unit statutory right to observe the picket line of their brother union; that the discharge of the clericals on June 17, 1971, for such activity therefore violated sections 8(a)(1) and (3) of the Act; and that, since the unlawfully discharged clericals remained employees within the meaning of the Act, the Union's majority status continued and the Company's subsequent refusal to bargain with it violated section 8(a)(5) of the Act.
The Board's order directed the Company to cease and desist from the unfair labor practices found or in any other manner interfering with, restraining, and coercing its employees in the exercise of their section 7 rights. Affirmatively, the Board's order required the Company to offer to the discharged clericals immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights; and to make them whole for any loss of earnings they may have suffered by reason of the Company's discrimination against them. The Board's order further required the Company, upon request, to meet and ...