rejecting “a rigid requirement that a no-strike clause contain the specific term ‘sympathy strike’ ” to waive employee’s right to engage in sympathy strike, where no-strike clause expressly extended beyond arbitration clause
How later courts described this case
- rejecting “a rigid requirement that a no-strike clause contain the specific term ‘sympathy strike’ ” to waive employee’s right to engage in sympathy strike, where no-strike clause expressly extended beyond arbitration clause
- picket line clauses delineated the boundaries of the waiver expressed in the no-strike clause
- the Board “cannot find support in any judicial or Board decisions for a rigid requirement that the no-strike clause contain the specific term ‘sympathy strike’ before finding a waiver. A number of cases have interpreted general no-strike clauses to preclude sympathy strikes”
- “It follows from the phrasing of this [picket-line] clause as an express exception that the no-strike clause relates to sympathy strikes as well.”
Written by the judges who cited it.
The opinion
SPRECHER, Circuit Judge,
dissenting.
As the majority correctly notes, a waiver of the right to strike should be in clear and unmistakable language. Gary Hobart Water Corp. v. National Labor Relations Board, 511 F.2d 284, 287 (7th Cir. 1975), cert. denied, 423 U.S. 925 , 96 S.Ct. 269 , 46 L.Ed.2d 252 (1975). The purported waiver here is considerably less than that. The no-strike language reads (Art. XVIII):
The Company and the Union agree that there will be no strike ... so long as the Company and Union submit to arbitration any differences which may arise which are not covered by this Agreement.
The sympathy strike involved here was “not covered by this Agreement” and the issue involved was not submitted to arbitration. In addition, any employee or union official reading the contract would find the following clauses:
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 (Art. VII, Sec. 3).
* * * *
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 (Art. XVII, Sec. 9).
* * * *
. [T]he parties are mindful of and have no wish to detract from any employee right guaranteed by law (Art. XIX, Sec. 1).
Absent a clear and unmistakable waiver, the right to participate in a sympathy strike is an employee right guaranteed by law. Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397 , 96 S.Ct. 3141 , 49 L.Ed.2d 1022 (1976).
Finally, in 1973, after the Company was compelled to reinstate some employees whom it had fired for honoring a picket line outside a customer’s plant, it sent a statement of policy to the Union, which read in part:
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.
I respectfully dissent. I would deny the petition for review and would grant enforcement of the Board’s order.