Petition — Brown Boveri Electric, Inc. v. National Labor Relations Board
Supreme Court brief1981
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| MAR 18 1991,
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In the Supreme Court of the United States
OCTOBER TERM, 1980
BROWN BOVERI ELECTRIC, INC.
Switchgear Systems Division
(formerly Gould, Inc., Switchgear Division)
Petitioner
Vv.
NATIONAL LABOR RELATIONS BOARD
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RICHARD LEE BARNES
Kothe, Nichols, & Wolfe, Inc.
124 East Fourth Street
Tulsa, Oklahoma 74103
(918) 584-5182
Counsel for Brown Boveri Electric, Inc.
(ex) conetoni Printing Co. * 323E.3rd ¢ Tulsa, Okla. 74120 ¢ Phone (918) 582-1234
BBC BROWN BOVERI & COMPANY, LTD.
(a Limited Company of Switzerland)
BBC BROWN BOVERI & CO., INC.
BROWN BOVERI POWER DELIVERY, INC.
BROWN BOVERI ELECTRIC, INC.
—_—l[—
QUESTIONS PRESENTED
1. In the absence of any clispute between Petitioner and
any of its employees, (1) is the “mutual aid or protection” clause
of §7 of the Labor Management Relations Act, 29 U.S.C., §157,
broad enough to include collective action by Petitioner’s
employees in sympathy with informational or recognitional
picketing directed at an unrelated third party employer with
whom Petitioner was doing business, and (2) is such collective
action permissible activity protected by §8(a)(1) of the Labor
Management Relations Act, 29 U.S.C. §158(a)(1) when it takes
the form of a strike?
2. Is the National Labor Relations Board, as a matter of
national labor policy, deprived of the jurisdiction in an unfair
labor practice proceeding to interpret the obligations of
employees under a no-strike clause in a collective bargaining
agreement when the interpretation of said clause has been
previously litigated and concluded by a final and binding ar-
bitration award issued pursuant to the mandatory dispute settle-
ment procedures of the collective bargaining agreement?
3. Is an employee who seeks redress of an alleged unfair
labor practice under the Labor Management Relations Act, 29
U.S.C. §151 et seqg., foreclosed as a matter of national labor
policy from relitigating before the National Labor Relations
Board the interpretation of the obligations of such employee
under a no-strike clause in a collective bargaining agreement
when the interpretation of said clause has already been litigated
and concluded by a final and binding arbitration award issued
pursuant to the mandatory dispute settlement procedures of the
collective bargaining agreement?
4. Does a work stoppage by production and mainentance
employees of the neutral employer at the neutral employer’s
7
work place in response to an informational picket directed at a
non-union electrical contractor performing remodeling work in
the administrative offices at the neutral employer’s plant (1) af-
fect the quantum of proof required to establish a prima facie
case thai the objective of the picketing was illegal secondary ac-
tivity prohibited by 8(b)(4) of the Labor Management Relations
Act, 29 U.S.C. §158(b)(4), or (2) does the secondary effect of
the picketing affect the evidentiary risk of nonpersuasion or the
burden of going forward withi the evidence?
—ili-—
TABLE OF CONTENTS
Page
are er rr ee eer ere ree i
ESN eee eee ere TEE TCE eT |
NE EE EOE CEE ECTS ETE CER ET TEE ee 2
OEE FEE EE CLE E ETE SCTE TCE EERE TON 2
EE eee Tee eee TEE PETE e Tee 4
Pe RR eer rr tay a eee ere 4
ey eer es Tete TE eee 7
ORR ef | er ere 8
Pees GO I GD TE 5 ono oc nce ie vec ecccccncs 8
A. The decision of the Court of Appeals is in conflict
with the principles for delineating the scope of the
“mutual aid or protection” clause of §7 of the Labor
Management Relations Act, and the concept of
“protected” activity, as expressed by the Court most
recently in Eastex, Inc. v. N.L.R.B., 437 U.S. 556,
EG yg 5 oon cha sone s ber edssaeee es 8
B. By affirming the refusal of the National Labor
Relations Board to adopt the interpretation of the
collective bargaining agreement as embodied in a
final and binding arbitration award, the decision
of the Court of Appeals is in direct conflict with
decisions of this Court holding that the Board has
no such preemptive jurisdiction, and with this Court’s
decisions in Buffalo Forge Co. v. United Steelworkers
of America, 428 U.S. 397, 96S. Ct. 3141 (1976). ...... 10
C. The conflict among several Circuit Courts of Appeal and
the inconsistency of the National Labor Relations
Board concerning the evidentiary standards in
determining the object of picketing which has a
— jy—
Page
secondary impact on neutral employers necessitates
the establishment of uniform standards by the Court. .16
COOMRGIIIIONE. va nn cc nwciccunusccipasaehcune 20
Appendices:
Appendix A—Opinion of the Tenth Circuit
Cowmst at Ammen. <... «.sk0daxeas eee A-1
Appendix B—Order denying Petitioner’s Motion
for Rehearing and Suggestion for
Remenriny Hin DOME... ocsceccdcecanasa B-1
Appendix C— Decision of the National Labor
Relations Board (283 NLRB #88) ........ C-1
Ruling of the Administrative Law Judge ..C-4
Appendix D— Arbitration Award .................... D-1
Page
AUTHORITIES CITED
CASES:
American Tel. & Tel. Co.,
ee eee eibulens woe 19
American Totalisator Co., Inc.,
74 Labor Arb. 377 (Gentile 1980) .................... 12
Barrentine v. Arkansas-Best Freight System, Inc.,
ee 15
Bexar Plumbing Co. v. N.L.R.B.,
ge 17
Buffalo Forge Co. v. United Steelworkers of America,
428 U.S. 397, 407-408, 96 S. Ct. 3141,
RE ETE a 11, 12
Chas. Dowd Box Co. v. Courtney,
368 U.S. 502, 510-511, 82S. Ct. 519, 524 (1962)........ 13
Cinch Mfg. Corp.,
ER NE 19
Dallas General Drivers (Associated Wholesale Grocery),
ER A 19
Douglas Aircraft Co. v. N.L.R.B.,
Co 8 te 15
Eastex, Inc. v. N.L.R.B.,
mae Gams com, we. Ch, 29S (ISTE) 2... wc ce 8,9, 10
Electrical Workers Local 11 (L.G. Electric
Contractors, Inc.),
Ee 20
Gateway Coal Co. v. Mine Workers,
414 U.S. 368, 94S. Ct. 629, 38 L.Ed.2d. 583 (1974)..... 12
1.B.E.W. Local 480 v. N.L.R.B.,
Se ae a 16
Laundry Workers Local 298 (Southern Service Co.),
nna a a os od dbs aks wale de bo ale 19
— Yi
Page
Local 761, J.U.E. v. N.L.R.B. (General Electric),
366 U.S. 667, 673-674, 81 S. Ct. 1285,
NE os ai anne Onde cheese Chea e eek SON Rages 18
Los Angeles Building & Trade Council (Sierra
South Div., Inc.),
Ee Pre rer ee Te eee 18
McDonnell Douglas Corp. v. Green,
eee, Rf Re Me ys er ree 16
National Homes Mfg. Co.,
72 Labor Arb. 1127 (Goodstein 1979) ................ 12
N.L.R.B. v. C & C Plywood Corp.,
385 U.S. 421, 427-428, 87S. Ct. 559, 563 (1967)........ 13
N.L.R.B. v. Electrical Workers Local 3
Ee ee as BFE up dace dacs cacesees exes 18
N.L.R.B. v. Electrical Workers Local 3 (Wickham
Constr. Co.),
oe eG Fe Pa a. erry 17
N.L.R.B. v. Pincus Brothers, Inc., —Maxwell,
ct Oe a CU wc veccsedaatcnctnvesese 15
N.L.R.B. v. Sands Mfg. Co.,
pe eR eee rr 13
N.L.R.B. v. Southern Greyhound Lines
Pc ge TT ee... rer ere 19
N.L.R.B. v. Strong,
393 U.S. 356, 360-361, 89S. Ct. 541, 554-545 (1969) ....13
N.L.R.B. v. Rockaway News Supply Co.,
ee ey Ps Fak as Re hohe icdasaeecseusess 13
N.L.R.B. v. Universal Services, Inc. & Assoc.,
467 F.2d 579 at 584, fn. 5 (9th Cir. 1972) .............. 13
National Maritime Union v. N.L.R.B.,
Re ce ee NS Gc WOME oe 5 bb vasn sees cc cvccetees 17
— vii—
Page
N.Y. Dis. Council No. 9 v. N.L.R.B.,
453 F.2d 17 at 23-24, fn. 17 (2nd Cir. 1972)............ 13
Square D Co. v. N.L.R.B.,
552 FBO 360 Oi Ci. Te i ska ein aceseeehs eee 13
Steelworkers v. American Mfg. Co.,
363 U.S. 564, 80S. Ct. 1343, 4 L.Ed.2d 1403 (1960) ....12
Steelworkers v. Enterprise Corp.,
363 U.S. 593, 80S. Ct. 1352, 4 L.Ed.2d 1424 (1960) ....12
Steelworkers v. Warrior & Gulf Co.,
363 U.S. 574, 80S. Ct. 1347, 4 L.Ed.2d 1409 (1960) ....12
Sterling Regal, Inc.,
69 Labor Arb. 513, 535 (Kaplan, 1977) ............... 12
Texas Department of Community Affairs v. Burdine,
Docket No. 79-1764, 49 USLW 4214 ................. 16
Reed v. N.L.R.B.,
4350 F 28 F38 COR Coe. FR ik aos 3 cnedencuscuaneue 8
United Steelworkers of America v. Enterprise
Wheel & Car Corp.,
363 U.S. 593, 599, 80S. Ct. 1358, 1362 (1960) ......... 14
United Steelworkers of America v. N.L.R.B. (Carrier),
376 U.S. 492, 84S. Ct. 899 (1964). ...............0... 18
Westinghouse Transport Leasing Corp.,
69 Labor Arb. 1210, 1213 (Sergent, 1977) ............. 12
STATUTES:
Labor Management Relations Act, as Amended,
(61 Stat. 136, 73 Stat. 519, 29 U.S.C.)
Lb’ Tt Emery Fy 10
SESE G)..« 5 + s:s00andactve eae ea whee eee 2
tL | rr rey mr 7
Lt errr RS 7
— vili—
Page
ee eee iy ok ot bese hbase an’ seed ae 2
a a a Pe EE 10, 16
a teas ga bteeernc eh eas nee 2
cee a ta dew e ose eb eu wnes one aa bORE 3
A ead ak nek es o5 See os Seke aes eRe we 3
er aes koe be aka eee SAS Sh ewR STE 3
ee ree oi a6 chs heb eaddwee td eeeneeenee 15
RE rg Sa rea ec ar 15
No.
In the Supreme Court of the United States
OCTOBER TERM, 1980
BROWN BOVERI ELECTRIC, INC.
Switchgear Systems Division
(formerly Gould, Inc., Switchgear Division)
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Petitioner, Brown Boveri Electric, Inc., Switchgear
Systems Division, respectfully prays that a Writ of Certiorari
issue to review the judgment of the United States Court of Ap-
peals for the Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the Tenth Circuit Court of Appeals is
reported at ___ F.2d ____ (1980) (App. A, p. A-1).
The order denying Petitioner’s motion for Rehearing and
Suggestion for Rehearing En Banc is reported at____ F.2d
(1980) (App. B, p. B-1). The decision of the National Labor
niin
Relations Board adopting in large part the findings and conclu-
sions of an Administrative Law Judge is reported at 238 NLRB
No. 88 (1978) (respectively Apps. C and D, pp. C-1 and D-1).
JURISDICTION
The judgment of the Court of Appeals was entered
November 7, 1980 (App. A, p. A-16). Petitioner’s timely Peti-
tion for Rehearing was denied December 18, 1980 (App. B, p.
B-1). The jurisdiction of this Court is invoked pursuant to 28
U.S.C. §1254(1).
STATUTES INVOLVED
The relevant portions of the Labor Management Relations
Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. §151, er
seq.) are set forth below:
Section 8(a)
(t shall be an unfair labor practice for an employer —
(1)
to interfere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed in section 7;
Section 8(b)
It shall be an unfair labor practice for a labor organiza-
tion or its agents —
(4)
(i) to engage in, or to induce or encourage any in-
dividual employed by any person engaged in commerce
or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use,
manufacture, process, transport or otherwise handle or
work on any goods, articles, materials, or commodities.
or to perform any services; or (ii) to threaten, coerce, or
restrain any person engaged in commerce or in an in-
dustry affecting commerce, where in either case an ob-
ject thereof is:
* = >
(B) forcing to requiring any person to cease using, seil-
ing, handling, transporting or otherwise dealing in the
products of any other producer, processor or manufac-
turer, or to cease doing business with amy other person,
or forcing or requiring any other employer to recognize
or bargain with a labor organization as the represent-
ative of his employees unless such labor organization has
been certified as the representative of such employees
under the provisions of section 9: Provided, That
nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any
primary strike or primary picketing;
(7)
to picket or cause to be picketed or threaten to picket or
cause to be picketed, any employer where an object
thereof is forcing or requiring an employer to recognize
or bargain with a labor organization as the represen-
tative of his employees, or forcing or requiring the
employees of an employer to accept or select such labor
Organization as their collective bargaining represent-
ative, unless such labor organization is currently cer-
tified as the representative of such employees;
* * *
(C) where such picketing has been conducted without a
petition under section %c) being filed within a
reasonable period of time not to exceed thirty days from
the commencement of such picketing: Provided, That
when such a petition has been filed the Board shall forth-
with, without regard to the provisions of section 9c)(1)
or the absence of a showing of a substantial interest on
the part of the labor organization, direct an election in
-
such unit as the Board finds to be appropriate and shall
certify the results thereof: Provided further, That
nothing in this subparagraph (C) shall be construed to
prohibit any picketing or other publicity for the purpose
of truthfully advising the public (including consumers)
that an employer does not employ members of, or have a
contract with, a labor organization, unless an effect of
such picketing is to induce any individual employed by
any other person in the course of his employment, not to
pick up, deliver or transport any goods or not to perform
any services.
STATEMENT OF THE CASE
A. The Facts
The production and maintenance employees of Petitioner
at iis Tulsa, Oklahoma, plant have been represented by IBEW
Local Union No. 584 for many years. The Tulsa plant manufac-
tures electrical switchgear and related components.
The collective bargaining agreement covering Petitioner’s
Tulsa plant employees during 1977 provided:
ARTICLE XXII—STRIKES AND LOCKOUTS
In view of the procedure for the orderly settlement of
grievances provided under the terms of this Agreement,
the Union agrees that there will be no strike, work in-
terference, or other stoppage or slowdown of work, total
or partial, during the term of this Agreement.
An employee or employees who participate in any such
action in violation of this Agreement may be disciplined
or discharged from the Company’s service, subject to the
employee’s right to submit a grievance alleging improper
discharge in accordance with the provisions of Article
XX, Section 3, paragraph (c) of this Agreement.
The Union agrees that it will take immediate, positive ac-
tion to forestall or suppress any action on the part of
jello
employees in violation of this Agreement.
The Company will not lock out any employee or
employees while this Agreement is in force.
Sometime early in 1977, the Union and the employees of
Petitioner learned that Petitioner would probably contract with
a non-union electrical contractor to do some remodeling work
in the administrative offices at the plant. The matter was even
discussed at a regular union membership meeting and the Un-
ion’s Business Agent warned Petitioner there would be a “prob-
lem” if a non-union electrical contractor performed work in
Petitioner’s facility.
On March 1, 1977, the non-union electrical contractor,
Houchin Electric Company, commenced working on the re-
modeling job at Petitioner’s Tulsa plant. A separate gate was
established for Houchin’s use. About nine o’clock that morning,
Local Union No. 584 placed a picket outside the plant carrying
a placard with the legend:
Informational ~
Houchin Electric
Does Not Have
Agreement With
Electrical Workers
L. U. 584
Shortly after the picketing commenced, Local Union No. 584
officials in the plant, Virginia Beekman, Chief Shop Steward,
and Clifford Edgar, Unit President, became aware that the
picketing was taking place.
Upon learning of the picketing, Chief Steward Beekman
called the Union to discuss the matter with Local Union No. 584 .
Business Agent, Clinton Sroufe. Sroufe told her that the picket
was aimed at Houchin Electric Company and that the Union
had no grievance with Petitioner but each employee was free to
_
choose what to do in response to the Union’s picket. Word
spread throughout the plant that the employees shou'd gather in
the employee lunchroom for their midmorning break at ten
o’clock a.m.
Unit President Clifford Edgar called the meeting to order
in the lunchroom. Chief Steward Beekman fielded the questions
from the assembled employees. Two votes were taken in the
lunchroom concerning the employees’ response to the picket,
and Mr. Edgar admitted openly voting in favor of striking. The
result of the votes in each case was that the employees would
strike immediately.
The meeting did not end when the warning buzzer signaled
the end of the break. Rather, the employees gathered again out-
side the lunchroom area and conducted a third vote under the
leadership of Unit President Edgar. During this voting process,
Chief Steward Beekman again called the Union Business Agent
Sroufe to report to him the results of the meeting. Again,
Sroufe instructed that each employee could act as he chose. Just
as this vote was being concluded, Foreman Whitten approached
the assembled group and instructed those who had already
clocked out to leave the premises and for those who had not
clocked out to return immediately to their work stations.
Despite this instruction from Supervisor Whitten, the
employees began clocking out and leaving the plant. Chief
Steward Beekman and Unit President Edgar joined in the mass
exodus.
The strike lasted only one day, but the picketing continued
for several weeks.
For participating in the strike in violation of the no-strike
provisions of Article XXII of the collective bargaining agree-
ment and for their failure as union officials to carry out their
_
duty under the contract to forestall or suppress the wildcat
strike, Petitioner discharged Beekman and Edgar.
In addition to filing the NLRB charge, the Union proceed-
ed to arbitration under the contract to test the validity of the
discharges. The Arbitrator found that the two union represent-
atives, Beekman and Edgar, had violated the collective bargain-
ing agreement, but reduced the penalty to a sixty (60) day
suspension (App. D, p. D-21).
B. The NLRB Decision
The Administrative Law Judge concluded that the strike
was protected concerted activity and that the discharge of
Beekman and Edgar was a violation of §8(a)(1) of the Act, 29
U.S.C. §158(a)(1).
The Administrative Law Judge further concluded that Peti-
tioner had condoned the strike when it reinstated without any
discipline all of the strikers other than Beekman and Edgar,
rendered the discharges also violative of §8(a)(3) of the Act, 29
U.S.C. §158(a)(3).
In so doing, the Administrative Law Judge rejected Peti-
tioner’s contention that the strike was unprotected, but gave no
factual basis for concluding the strike was protected (App. C, p.
C-19-22, 26.) The Judge also rejected Petitioner’s contentions
that the picketing was illegal, and that the arbitration award
that the strike was in violation of the collective bargaining
agreement was binding upon the parties and the Board.
Petitioner filed timely Exceptions to the foregoing, but the
National Labor Relations Board adopted the Administrative
Law Judge’s findings and conclusion, except that the Board
declined to review the violation of §8(a)(3) as it would not affect
the remedy ordered (App. C, p. C-2).
=
C. The Circuit Court Opinion
The Court of Appeals granted enforcement in toto of
Respondent’s application for enforcement of its Order (App. A,
p. A-1l).
REASONS FOR GRANTING THE WRIT
A. The decision of the Court of Appeals is in conflict
with the principles for delineating the scope of the
“mutual aid or protection” clause of §7 of the Labor
Management Relations Act, and the concept of “pro-
tected” activity, as expressed by the Court most recently
in Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 98 S. Ct. 2505
(1978).
The strike here presents the facts for explication of the
Court’s baseline stated in Eastex, infra, below which concerted
activity by employees can no longer be deemed to be for their
“mutual aid or protection.”
It is true, of course, that some concerted activity
bears a less immediate relationship to employees’ in-
terests as employees than other such activity. We may
assume that at some point the relationship becomes so
attenuated that an activity cannot fairly be deemed to
come within the “mutual aid or protection” clause. 437
U.S. at 567-568, 98 S. Ct. at 2513.
The striking employees sought nothing for themselves or
for any other employees of any employer. They simply respond-
ed to a union information placard. Tg ¢onsider such action to
be for mutual aid or protection is to carry the concept of mutual
aid or protection well beyond reality. Reed v. N.L.R.B., 430
F.2d 331 (10th Cir. 1970).
The decision of the Court in Eastex, Inc. v. N.L.R.B., 437
U.S. 556, 98 S. Ct. 2505 (1978), expressed a three step test for
ailies
determining the protected status of employees’ concerted activi-
ty directed at their employers, by which test it must be deter-
mined:
(1) That there is a sufficient relationship between the
employees’ concerted activity and the employees’ interests as
employees to bring the activity within the scope of the “mutual
aid or protection” clause,! and
(2) That upon balancing the rights of all parties involved,
the location in which the activity takes place is proper,! and
(3) That the form of the activity is appropriate to the ob-
ject of the activity.
Neither the Board nor the Court of Appeals attempted to
reconcile with the Eastex test their conclusions that the strike
was protected concerted activity.
The cases relied upon by the National Labor Relations
|The first is whether, apart from the location of the activity, distribution of
the newsletter is the kind of concerted activity that is protected from employer
interference by §§7 and 8(a)(1) of the National Labor Relations Act. If it is,
then the second question is whether the fact that the activity takes place on
petitioner’s property gives rise to a countervailing interest that outweighs the
exercise of §7 rights in that location. See Hudgens v. NLRB, 424 U.S. 507,
521-523, 96 S. Ct. 1029, 1037-1038, 47 L.Ed.2d 196 (1976); Central Hardware
Co. v. NLRB, 407 U.S. 539, 542-545, 92 S. Ct. 2238, 2240-2242, 33 L.Ed.2d
122 (1972); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76S. Ct. 679,
684, 100 L.Ed. 975 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793,
797-798, 65S. Ct. 982, 985, 89 L.Ed. 1372 (1945). We address these questions
in turn. 437 U.S. at 563, 98S. Ct. at 2511.
2In addition, even when concerted activity comes within the scope of the
“mutual aid or protection” clause, the forms such activity permissibly may
take may well depend on the object of the activity. “The argument that the
employer’s lack of interest or control affords a legitimate basis for holding that
a subject does not come within ‘mutual aid or protection’ is unconvincing. The
argument that economic pressure should be unprotected in such cases is more
convincing.” Getman, The Protection of Economic Pressure by Section 7 of
the National Labor Relations Act, 115 U. Pa. L.R. 1195 (1967). 437 U.S. at
568, fn. 18, 98 S. Ct. at 2513-2514, fn. 18.
~~ ‘o
Board (App. C, p. C-2), the Administrative Law Judge (App.
C, p. C-19-23) and by the Court of Appeals (App. A, p. A-6-8)
in support of their respective conclusions that the strike by Peti-
tioner’s employees was a protected activity are all factually inap-
posite to this case. Some of those cases involved a refusal to
cross a lawful picket line at another employer’s place of
business, which Congress expressly protected with the first pro-
viso in 29 U.S.C. §158 (b)(4). The remainder involve refusals by
employees to cross picket lines directed at their own employer,
and thereby strike, in support of fellow employees who have a
labor dispute with their common employer.
It appears the Court of Appeals conceived, but did not
clearly state, that freedom to picket or strike is sacrosanct. Here
the information picketing is directed at a stranger employer and
there is no labor dispute with either employer involved. To hold
a strike protected in these circumstances is insupportable.
In Eastex, supra, the Court relied in part on the statutory
definition of “employee” in §2(3) of the Labor Management
Relations Act, 29 U.S.C. §152(3), as an expression of Congres-
sional intent as to the breadth of the “mutual aid or and protec-
tion” clause. 437 U.S. at 564, 98 S. Ct. at 2511-2512.
Section 2(3) also extends employee status to strikers by in-
cluding “any individual whose work has ceased as a consequence
of, or in connection with, any current /abor dispute or because
of any unfair labor practice . . . .” This indicates a Congres-
sional intent to control the use of economic pressure by protec-
ting it only under limited circumstances.
B. By affirming the refusal of the National Labor
Relations Board to adopt the interpretation of the collec-
tive bargaining agreement as embodied in a final and
binding arbitration award, the decision of the Court of
atta
Appeals is in direct conflict with decisions of this Court
holding that the Board has no such preemptive jurisdic-
tion, and with this Court’s decisions in Buffalo Forge Co.
v. United Steelworkers of America, 428 U.S. 397, 96 S. Ct.
3141 (1976).
It appears that this case presents to the Court for the first
time « concise factual basis for decision on the fundamental
issue of the premier forum for the interpretation of collective
bargaining agreements. The whole concept industrial arbitra-
tion is in serious jeopardy of being neutered if the Court of Ap-
peals opinion is not reversed.
Despite the numerous decisions of the Court supporting the
private dispute-settlement process, both the Board and the
Court of Appeals ignored them.
The Court of Appeals (App. A, p. A-10) and the Ad-
ministrative Law Judge (App. C, p. C-20) relied upon this
Court’s decision in Buffalo Forge Co. v. United Steelworkers of
America, 428 U.S. 397, 407-408, 96 S. Ct. 3141, 3147-3148
(1976) to support the proposition that the Arbitrator could not
imply that the no-strike clause prohibited sympathy strikes. The
Court did not so hold, but rather stated the District Court could
not make such implication to support issuance of a Boy’s
Market injunction. 428 U.S. at 407-409, 96 S. Ct. at 3147-3148.
The Court’s opinion in Buffalo Forge is in direct contradic-
tion of the Court of Appeals rationale herein. 428 U.S. at
405-406, 96 S. Ct. at 3146-3147:
The parties involved here are bound by collective-
bargaining contracts each containing a no-strike clause
which the Union claims does not forbid sympathy
strikes. The employer has the other view, its complaint in
the District Court, asserting that the work stoppage
violated the no-strike clause. Each of the contracts be-
on es
tween the parties also has an arbitration clause broad
enough to reach not only disputes between the Union
and the employer about other provisions in the contracts
but also as to the meaning and application of the no-
strike clause itself. Whether the sympathy strike the
Union called violated the no-strike clause, and the ap-
propriate remedies, are subject to the agreed-upon
dispute-settlement procedures of the contracts and are
ultimately issues for the arbitrator. Steelworkers v.
American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4
L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf
Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L.Ed.2d 1409
(1960); Steelworkers v. Enterprise Corp., 363 U.S. 593,
20 S. Ct. 1358, 4 L.Ed.2d 1424 (1960). The employer
thus was entitled to invoke the arbitral process to deter-
mine the legality of the sympathy strike and to obtain a
court order requiring the Union to arbitrate if the Union
refused to do so. Gateway Coal Co. v. Mine Workers,
414 U.S. 368, 94S. Ct. 629, 38 L.Ed.2d 583 (1974). Fur-
thermore, were the issue arbitrated and the strike found
illegal, the relevant federal statutes as construed in our
cases would permit an injunction to enforce the arbitral
decision. Steelworkers v. Enterprise Corp., supra. (Em-
phasis supplied).
The decision of the Court in Buffalo Forge, supra, did not
alter the industrial common law relative to no-strike obliga-
tions, and arbitrators have continued to hold that sympathy
strikes are forbidden by broad no-strike clauses identical to the
one in Respondent’s collective bargaining agreement. Sterling
Regal, Inc., 69 Labor Arb. 513, 535 (Kaplan, 1977);
Westinghouse Transport Leasing Corp., 69 Labor Arb. 1210,
1213 (Sergent, 1977); American Totalisator Co., Inc., 74 Labor
Arb. 377 (Gentile 1980). See also National Homes Mfg. Co., 72
Labor Arb. 1127 (Goodstein 1979).
=_ =
The Court has also ruled that the Board does not have
preemptive jurisdiction to interpret collective bargaining
agreements N.L.R.B. v. Strong, 393 U.S. 356, 360-361, 89 S.
Ct. 541, 554-545 (1969).
Only where the contract contains no arbitration procedure,
or where the procedure has not been utilized, has the Board
been permitted to interpret the contract. N.L.R.B. v. Strong,
supra; N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421,
427-428, 87 S. Ct. 559, 563 (1967); Chas. Dowd Box Co. v.
Courtney, 368 U.S. 502, 510-511, 82 S. Ct. 519, 524 (1962). See
also N. Y. Dis. Council No. 9 v. N.L.R.B., 453 F.2d 17 at 23-24,
fn. 17 (2nd Cir. 1972); N.L.R.B. v. Universal Services, Inc. &
Assoc., 467 F.2d 579 at 584, fn. 5 (9th Cir. 1972); Square D Co.
v. N.L.R.B., 332 F.2d 360 (9th Cir. 1966).
A breach of contract strike is illegal, unprotected activity.
N.L.R.B. v. Sands Mfg. Co., 306 U.S. 332, 59 S. Ct. 508
(1939); N.L R.B. v. Rockaway News Supply Co., 345 U.S. 71,
73 S. Ct. 519 (1953).
The Administrative Law Judge justified his refusal to abide
by the prior Arbitration Award (App. D, p. D-1) on an ar-
bitrary conclusion that the arbitrator did not interpret the scope
of the no-strike clause but merely “assumed that the two
discharged employees had breached the collective bargaining
agreement” (App. C, p. C-6).
The Arbitrator set forth in his Award a complete statement
of the evidence submitted to him, and made specific findings
(App. D, p. D-21-22):
AWARD
The arbitrator makes the following award in con-
nection with the parties of this case.
1. He finds that both Virginia Beekman and Clif-
cr
an Chins
ford Edgar were in fact guilty of insubordination on March 1,
1977 in walking out of the plant as they did and under the cir-
cumstances involving an illegal walkout.
2. This arbitrator finds that the actions of walking out on
March | at the plant of the company was an illegal act and it is
to be regretted that only two people must pay the penalty for
their combined efforts.
3. This arbitrator feels that there should have been some
action on the part of labor and/or management to have had a
joint meeting and not let this matter get out of hand as it did.
Both must accept some blame for the final results. /t could have
been avoided.
4. While the employees Virginia Beekman and Clifford
Edgar did violate the agreement and the posted rules 7 and 8 of
the company yet a discharge of the 2 parties was foo severe. It is
thereby ordered that Virginia Beekman and Clifford Edgar be
and they are suspended for a period of 60 days from March | to
May 1, 1977 and without pay. Pay for both shall begin on May
1, 1977 when they shall be considered to have returned to their
positions at the same rate of pay when action was taken against
them. Each Grievant reinstated shall have full rights of seniority
and fringe benefits unaffected by the discharge but consistent
with other provisions of the Agreement respecting period of
disciplinary suspensions.
The Board’s refusal to abide by the contractual interpreta-
tion embodied in this Award is highly destructive of the whole
process of industrial arbitration. It is all the more destructive
because the Board’s Decision exceeds the scope of judicial
review available to the parties to the arbitration. United
Steelworkers of America v. Enterprise Wheel & Car Corp., 363
U.S. 593, 599, 80 S. Ct. 1358, 1362 (1960).
= =
Tangential to the lack of Board jurisdiction is the proposi-
tion that the discharged employees should not be permitted to
relitigate the arbitrator’s interpretation of the no-strike clause,
whether by res judicata, collateral estoppel or election of
remedies.
In Barrentine v. Arkansas-Best Freight System, Inc., 615
F.2d 1194 (8th Cir. 1980), the Court of Appeals affirmed
dismissal of a suit grounded upon both the Fair Labor Stan-
dards Act and the Labor Management Relations Act because
the plaintiffs had already had the dispute with their employer
resolved in final and binding arbitration. The District Court
also applied the effects of the arbitral contract interpretation to
the other drivers on the basis of §203(d) of the Labor Manage-
ment Relations Act, 29 U.S.C. §173(d) that dispute settlement
“by a method agreed upon by the parties is declared to be the
desirable method for settlement of grievance disputes.” Petition
for Certiorari was granted on this aspect of the case October 6,
1980, Docket No. 79-2006, 101 S. Ct. 70.
The Court of Appeals decision is herein arguably in conflict
with decisions by the Third and Ninth Circuit Courts of Ap-
peals.
In N.L.R.B. v. Pincus Brothers, Inc. — Maxwell, 620 F.2d
367 (3rd Cir. 1980), the Court of Appeals held that it was an
abuse of discretion for the National Labor Relations Board to
refuse to defer to a prior arbitration award finding that the
discharged employee had been terminated for cause. There was
no need for any contract interpretation in reaching an award in
the arbitration.
Douglas Aircraft Co. v. N.L.R.B., 609 F.2d 352 (9th Cir.
1980) reaches the same result on similar facts as present in Pin- -
cus Brothers, supra. This case does differ in that there were two
aw titinn
reasons or “causes” found by the arbitrator as justification for
the discharge that was clearly unprotected activity.
The arbitral award herein likewise has several causes sup-
porting the disciplinary action (App. D. p. D-21-D-22). In addi-
tion to their participation in the strike, the arbitrator found the
grievants had also violated plant rules 7 and 8 (App. D, p. D-7)
involving insubordination and absence from duty without per-
mission.
C. The conflict among several Circuit Courts of Ap-
peal and the inconsistency of the National Labor Rela-
tions Board concerning the evidentiary standards in de-
termining the object of picketing which has a secondary
impact on neutral employers necessitates the establish-
ment of uniform standards by the Court.
As a result of erratic and inconsistent applications of evi-
dentiary standards in determining employer motivation in
employment decisions, the Court established such standards,
beginning in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817 (1973), and recently reiterated in part in Texas
Department of Community Affairs v. Burdine, Docket No.
79-1764, 49 USLW 4214.
In establishing a violation of the secondary boycott pro-
hibitions of §8(b)(4) of the Labor Management Relations Act,
29 U.S.C. §158(b)(4), it is necessary to show that the object of
the secondary activity was one specified in §8(b)(4).
Rarely do we have an admission by a union agent that the
object of the secondary activity is one of the forbidden objects.
1.B.E.W. Local 480 v. N.L.R.B., 413 F.2d 1085 (D.C. Cir.
1969).
When secondary activity results in a work stoppage by
iin
neutral employees, Petitioner submits that fact should lighten
the evidentiary burden of persuading the trier of fact that an ob-
jective of the secondary activity was an unlawful one.
In this present case, there was evidence of a number of fac-
tors relied upon by the Board in prior cases and by various
Courts of Appeals as sufficient to establish a prima facie case
that the object of the secondary activity was unlawful:
(1) Several months before the picketing, Union Busi-
ness Agent Sroufe warned Petitioner of a problem if a
non-union electrical contractor performed work in Peti-
tioner’s plant.
(2) Several weeks before the picketing, Un.»on Business
Agent Sroufe told Petitioner’s employees that there
might be a picket at Petitioner’s plant if a non-union
electrical contractor went to work there.
(3) The picket sign did not indicate in any manner that
no work stoppage was intended by the picketing. Na-
tional Maritime Union v. N.L.R.B., 342 F.2d 538 (2nd
Cir. 1965).
(4) The Union had never attempted to unionize the em-
ployees of the primary employer Houchin Electric Com-
pany, and had picketed Houchin in only one site in three
years—Petitioner’s plant—the one site where the
picketing would have the greatest impact because Peti-
tioner’s employees, as members of the picketing union,
would naturally respond by striking. N.L.R.B. v. Elec-
trical Workers Local 3 (Wickham Constr. Co.), 542 F.2d
860 (2nd Cir. 1976); enforcing 220 NLRB Nos. $7 and
117; Bexar Plumbing Co. v. N.L.R.B., 536 F.2d 634 (Sth
Cir. 1976);
(5) Although notified in advance that a work stoppage
was about to occur among the neutral employees, Union
Business Agent Sroufe not only did nothing to stop it,
but in fact left the clear impression that the work stop-
—~18—
page was proper. N.L.R.B. v. Electrical Workers Local
3, 477 F.2d 260 (2nd Cir. 1973); Los Angeles Building &
Trade Council (Sierra South Div., Inc.), 215 NLRB no.
59.
In Local 761, I.U.E. v. N.L.R.B. (General Electric), 366
U.S. 667, 673-674, 81 S. Ct. 1285, 1289-1290 (1961) the Court
states:
“Almost all picketing, even at the situs of the
primary employer and surely at that of the secondary,
hopes to achieve the forbidden objective, whatever other
motives there may be and however small the chances of
success.” Local 294, supra, 284 F.2d at page 890. But
picketing which induces secondary employees to respect
a picket line is not the equivalent of picketing which has
an object of inducing those employees to engage in con-
certed conduct against their employer in order to force
him to refuse to deal with the struck employer. National
Labor Relations Board v. International Rice Milling
Co., supra.
However difficult the drawing of lines more nice
than obvious, the statute compels the task. Accordingly,
the Board and the courts have attempted to devise
reasonable criteria drawing heavily upon the means to
which a union resorts to promoting its cause. Although
“Injo rigid rule which would make * * (a) few factors
conclusive is contained in or deducible from the statute,”
Sales Drivers, etc. v. National Labor Relations Board,
97 U.S. App. C.D. 173, 229 F.2d 514, 517, “[I]n the
absence of admissions by the union of an illegal intent,
the nature of act performed shows the intent.” Seafarers
International Union, etc., supra, 265 F.2d at page 591.
in Local 761, supra and in the later United Steelworkers of
America v. N.L.R.B. (Carrier), 376 U.S. 492, 84 S. Ct. 899
(1964), the picketing took place at the primary employer’s place
of business and employees of neutral employers refused to cross
=
the picket lines.
In both cases, the Court held the picketing to be lawful
primary picketing in large part because the employees of the
neutral employers were performing tasks in aid of day to day
operations of the struck employer.
The refusal of a neutral employer’s employee to cross a
picket line at another employer’s place of business is not a strike
against the neutral employer. The employee is available to work
for the neutral employer at other work sites.
Our case here presents a very different situation from that
ait the General Electric and Carrier plants. The picketing is at the
neutral employer’s plant, the neutral employees withhold all ser-
vices, and the tasks of the neutral employer’s employees and the
primary employer’s employees at the plant are completely
unrelated.
With all these factors present here, the Administrative Law
Judge gave only a cursory explanation for rejecting Petitioner’s
defense that the strike was illegal unprotected activity because
the picketing was illegal secondary activity (App. C, C-19), and
the Court of Appeals referred to it only by footnote (App. A, p.
A-7, fn. 2).
The defense that the picketing was illegal was critical to
Petitioner’s defense, because a strike is illegal when undertaken
in support of illegal picketing, American Tel. & Tel. Co., 231
NLRB No. 11; Cinch Mfg. Corp., 91 NLRB 371; N.L.R.B. v.
Southern Greyhound Lines, 426 F.2d 1299 (Sth Cir. 1970).
Picketing is always a signal to action. Dallas General
Drivers (Associated Wholesale Grocery), 118 NLRB 1251;
Laundry Workers Local 298 (Southern Service Co.), 215 NLRB
No. 59
The signal is obviously strongest to the members of the
—20—
picketing union, which cannot be permitted to get away with a
secondary boycott strike it knew would occur. Electrical
Workers Local 11 (L. G. Electric Contractors, Inc.), 154 NLRB
766 and cases cited therein.
CONCLUSION
For the foregoing reasons, the Petitioner should be
granted.
Respectfully submitted,
RICHARD LEE BARNES
Kothe, Nichols, & Wolfe, Inc.
124 East Fourth Street
Tulsa, Oklahoma 74103
Counsel for Petitioner
~~ < pe
APPENDIX A
PUBLISH
No. 79-1025
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
FILED
United States Court of Appeals
Tenth Circuit
OCT 07, 1980
HOWARD K. PHILLIPS
Clerk
NATIONAL LABOR RELATIONS BOARD
Petitioner
v.
GOULD, INC., SWITCHGEAR DIVISION
Respondent
On Application for Enforcement of an Order of
the National Labor Relations Board
(No. 16-CA-7061)
Paul J. Spielberg, Attorney (John S. Irving, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, Robert E.
Allen, Acting Associate General Counsel, Elliott Moore, Depu-
ty Associate General Counsel, Sandra Shands Elligers, At-
torney, with him on the brief), National Labor Relations Board,
Washington, D.C., for Petitioner.
aS
Richard L. Barnes of Kothe, Nichols and Wolfe, Inc., Tulsa,
Oklahoma, for Respondent.
Before BARRETT, PECK* and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
*Of the United States Court of Appeals, Sixth Circuit, sitting by
designation.
This case is before the court on the petition of the National
Labor Relations Board for enforcement of its order against
Gould, Inc. The Board found that Gould violated section
8(a)(1) of the National Labor Relations Act (the Act), 29
U.S.C. §158(a)(1), by discharging two Union officials, Virginia
Beekman and Clifford Edgar, for participating in a sympathy
walkout. The walkout was prompted by the Gould employees’
refusal to cross an informational picket line directed against
Houchin Electric, a nonunion contractor performing remodel-
ing work on Gould’s premises. The Board found that the pick-
eting was lawful primary activity and that the Gould employees’
sympathy walkout in support of the picket line was concerted
activity protected by sections 7 and 8(a)(1) of the Act. 29
U.S.C. §§157, 158(a)(1). We agree.
Gould’s manufacturing employees are represented at its
Tulsa, Oklahoma plant by the manufacturing division of the In-
ternational Brotherhood of Electrical Workers Local Union 584
(the Union). At the time of the walkout, the Company and the
Union were bound by a collective bargaining contract which in-
oay yo
cluded a grievance procedure leading to arbitration. In addition,
the contract contained the following general no-strike clause
(Article XXII), which is linked to the grievance-arbitration
machinery:
“In view of the procedure for the orderly settlement
of grievances provided under the terms of this Agree-
ment, the Union agrees that there will be no strike, work
interference, or other work stoppage or slowdown of
work, total or partial, during the term of this Agree-
ment.
“An employee or employees who participate in any
such action in violation of this Agreement may be dis-
ciplined or discharged from the Company’s service, sub-
ject to the employee’s right to submit a grievance alleging
improper discharge in accordance with the provisions of
Article XX, Section 3, paragraph (c) of this Agreement.”
Rec., vol. Il, at 237 (emphasis added).
In addition to the manufacturing division, the Union has
two other autonomous divisions, construction and mainte-
nance. The informational picket which triggered the walkout
was set up by the Union on behalf of its construction division as
part of its two-year campaign to organize ihe employees of elec-
trical construction contractors. The picket sign contained the
word “Information,” and warned readers that Houchin Electric
Company did not have an agreement with Local 584.
When Beekman, the Shop Steward for Gould’s manufac-
turing employees, became aware of the picketing at around 9:30
a.m. on March 1, 1977, she telephoned Union Business Man-
ager Stroufe to inquire about it. Stroufe informed her that
Houchin Electric, a nonunion construction contractor, was
working in the plant. He stated that the picketing was directed
at Houchin and was purely informational. He emphasized that
a
it was not related to any violation by Gould of the collective
bargaining contract covering the plant employees. He said he
could not advise her or the other employees what to do and that
any actions by the employees were “up to each individual, what
they decide to do.” Rec., vol. I, at 28.
During the morning break, Clifford Edgar called the atten-
tion of his fellow employees so that Beekman could relate what
she had learned about the picketing. Beekman explained to the
group what Stroufe had told her and advised the employees that
“whatever action was taken it would be up to each individual,
how they felt about what was going on.” Rec., vol. I, at 33.
Subsequently most of the employees walked out.
That afternoon the company sent a telegram to Stroufe and
the employees in the bargaining unit, asserting that the strike
not only violated the no-strike clause in the collective bargaining
agreement but was an unlawful secondary boycott. The employ-
ees were warned that if they did not return to work the next day,
they would be discharged.
Before Stroufe received the telegram, Jeff Ott, the
employee representative on the second shift, called to inquire
what to do. Stroufe told him to proceed with his second shift
duties and the second shift went to work as scheduled. Ellis
finally called Stroufe late that afternoon to discuss the morning
walkout. Stroufe told Ellis he did not feel the contract had been
violated “because Article 22 of the contract between IBEW and
Gould pertained to the orderly settlement of grievances” and
“there was no grievable offense that prompted the picket or the
activity that followed.” Rec., vol. I, at 114.
The next day all the first shift employees returned to the
plant and all except Beekman and Edgar were put back to work
without discipline. Beekman and Edgar received suspension let-
~~
ters pending an investigation into their roles in what the Com-
pany termed an “illegal wildcat strike.” Rec., vol. II, at 244. On
March 10, Gould terminated them, stating they had led the
walkout and violated the no-strike clause.
The Union filed unfair labor practices charges against
Gould. It also filed grievances on behalf of the two discharged
employees, which ended in arbitration prior to the unfair labor
practice hearing. In his award, the arbitrator ignored the
Union’s contention that a no-strike clause such as Article XXII
does not constitute a waiver of the right to engage in sympathy
strikes. He simply assumed without explanation that the
walkout violated Article XXII and focused his attention on the
appropriate penalty. The arbitrator found the penalty of
discharge to be excessive and reduced the discharges to sixty-day
suspensions. The Company refused to comply with the arbitra-
tion award, asserting that the arbitrator was without authority
to tamper with the penalty.
Notwithstanding its refusal to obey the arbitration award,
Gould urges on appeal that the Board erred in failing to defer to
the arbitrator’s finding that the sympathy walkout violated the
no-strike clause. In addition, Gould contends the sympathy
walkout did not constitute protected concerted activity and,
even if it did, the Union waived its right to engage in sympathy
strikes by having agreed to the no-strike clause. We find these
contentions without merit and affirm the Board’s decision.
4
Sections 7 and 8(a)(1) of the Act! protect the rights of
employees to engage in “concerted activities . . . for mutual aid
or protection.” 29 U.S.C. §157. The threshold question here is
whether the Gould employees’ refusal to cross their fellow union
members’ picket line was protected under sections 7 and 8(a)(1).
—?
An employee has a statutory right to honor any lawful
picket line set up against his employer at his employer’s place of
business, Delaware Coca-Cola Bottling Co. v. Teamsters Local
326, ___ F.2d ___, 104 L.R.R.M. 2776 (3d Cir. 1980), even
though the employee is not a member of the picketing union.
See, e.g., NLRB vy. Difco Laboratories, Inc., 427 F.2d 170,
171-172 (6th Cir. 1970), cert. denied, 400 U.S. 833 (1970);
NLRB y. Southern Greyhound Lines, 426 F.2d 1299, 1301 (Sth
Cir. 1970). Furthermore, an employee’s refusal to cross a lawful
picket line directed at a stranger employer at such employer’s
place of business is protected, Teamsters Local 657 v. NLRB,
429 F.2d 204 (D.C. Cir. 1970), even though the picket line is
established by a stranger union. NLRB v. Alamo Express, Inc.,
430 F.2d 1032 (Sth Cir. 1970), cert. denied, 400 U.S. 1021
(1971).
Today, we must decide whether an employee has the right
to honor the lawful picket line of his own union which is set up
at his employer’s place of business but is directed at a stranger
employer doing work on the premises.2 To deny this right
“would be to hold that, although Congress protected the fun-
damental right of labor organizations to engage in primary
picketing, it withheld this protection from the normal employee
response which makes this right effective.” West Coast Casket
Co., 97 N.L.R.B. 820, 823 (1951), enf'd, 205 F.2d 902 (9th Cir.
1 Section 7 provides in pertinent part:
“Employees shall have the right to self-organization, to form, join, or
assist labor organization, to bargain collectively through represen-
tatives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or
protection... .”
29 U.S.C. §157. Section 8(a)(1) provides that it “shall be an unfair practice for
an employer . . . to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7... .” 29 U.S.C. §158 (a)(1).
wis
1953). As the Fourth Circuit pointed out: “It cannot be denied
that respect for the integrity of the picket line may well be the
source of strength of the whole collective bargaining process in
which every union member has a legitimate and protected
economic interest.” NLRB vy. Union Carbide Corp., 440 F.2d
54, 56 (4th Cir.), cert. denied, 464 U.S. 826 (1971). Consequent-
ly, we hold that the Gould employees’ refusal to cross the picket
line is protected concerted activity under section 7.3
Gould, however, argues that the Union waived this protec-
tion by agreeing to the no-strike clause contained in Article
XXII of the Agreement. The Board disagreed, and “Ti]f the
Board’s interpretation has a reasonable basis in the contract
terms, the Act’s policies and the Board’s expertise, it is entitled
to deference.” NLRB v. C.K. Smith & Co., 569 F.2d 162, 167
2On appeal, Gould also argues that the picketing itself was unlawful. Earlier it
filed separate charges against the Union alleging that the picketing violated
sections 8(b)(4) and 8(b)(7)(c) of the Act. 29 U.S.C. §§158(b)(4),
158(b)(7)(c). However, after investigating the charges, the Regional Director
found them without merit and refused to issue a complaint.
We agree that Gould’s argument is without merit. This court has upheld
peaceful picketing at the premises of a neutral employer where the record sup-
ports a conclusion that the picketing was for informational purposes and not
for the purpose of inducing neutral employees to take concerted action against
their employer. NLRB vy. International Union of United Brewery Workers,
272 F.2d 817 (10th Cir. 1959). Here, there is substantial evidence to support
the Administrative Law Judge’s (ALJ) findings that the walkout was the spon-
taneous action of the Gould employees and was not directed or induced by the
Union within the meaning of section 8(b)(4)(i) of the Act. Compare Electrical
Workers Local 501 v. NLRB, 341 U.S. 694 (1951), with Building & Construc-
tion Trades Council (Tampa Sand & Material Co.), 132 N.L.R.B. 1564,
1565-66 (1961). Furthermore, there is substantial evidence to support the
AL/J’s conclusion that the Union made no threat of economic reprisal to force
Gould to stop doing business with the nonunion contractor, as required by
section 8(b)(4)(ii). Finally, in view of the evidence that the picketing was in-
tended to inform the public and did not have a substantial disruptive effect,
the ALJ properly found it was lawful under section 8(b)(7)(c) of the Act. See
Barker Brothers Corp. v. NLRB, 328 F.2d 431, 436-37 (9th Cir. 1964).
~~ s
(ist Cir. 1977), cert. denied, 436 U.S. 957 (1978).
Although the right to honor picket lines and engage in sym-
pathy strikes may be waived by agreement, NLRB v. Rockaway
News Supply Co., 345 U.S. 71 (1952), “clear and unmistakable”
language is required to effect such a waiver. E.g., Delaware
Coca-Cola Bottling Co. v. Teamsters Local 326, __., 104
L.R.R.M. at 2780; Newspaper Production Co. v. NLRB, 503
F.2d 821, 830 (Sth Cir. 1974); Kellog Co. v. NLRB, 457 F.2d
519, 525 (6th Cir.), cert. denied, 409 U.S. 850 (1972). Here, the
contract does not expressly prohibit sympathy strikes, and no
evidence was presented to suggest the parties intended such a
prohibition.* Consequently, under the prevailing rules for inter-
preting general no-strike clauses, we are unable to infer from the
language of Article XXII a waiver of the right to engage in sym-
pathy strikes.
Moreover, when construing a no-strike clause, we must
bear in mind that “a no-strike obligation is the quid pro quo for
3 We note, however, that an employee's right to refuse to cross a lawful picket
line at his employer’s place of business is not unlimited. The employer cannot
simply discharge employees for engaging in such protected activity, but the
employer may hire permanent replacements for those employees when
justified by substantial and legitimate business considerations. NLRB vy.
Union Carbide Corp., 440 F.2d 54 (4th Cir.), cert. denied, 404 U.S. 826
(1971); NLRB v. Southern Greyhound Lines, 426 F.2d 1299 (Sth Cir. 1970).
See generally NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967). For
example, in order to continue operations, an employer may replace workers
who refuse to cross a picket line. Union Carbide, 440 F.2d at 57. Southern
Greyhound Lines, 426 F.2d -% 1301. Gould does not contend here that the
discharge of Beekman and Edgar was justified under this doctrine.
4 This case is thus distinguishable from cases where extrinsic evidence was of-
fered to prove that the no-strike clause was intended to prohibit sympathy
strikes. See NLRB v. Rockaway News Supply Co., 345 U.S. at 79-80; Jowa
Beef Processors, Inc. v. Amalgamated Meat Cutters, 597 F.2d 1138, 1144 (8th
Cir.), cert. denied, 100 S.Ct. 79 (1979); News Union v. NLRB, 393 F.2d 673,
678 (D.C. Cir. 1968).
—.
an undertaking by the employer to submit grievance disputes to
the process of arbitration.” Boys Market, Inc. v. Retail Clerks
Local 770, 398 U.S. 235 (1970). Accordingly, “[a]bsent an ex-
plicit expression of [another] intention . . . the agreement to ar-
bitrate and the duty not to strike should be construed as having
coterminous application.” Gateway Coal Co. v. UMW, 414
U.S. 368, 382 (1974). See also Delaware Coca-Cola Bottling
Co., ____ F.2d at____, 104 L.R.R.M. at 27779-80. Here Article
XXII makes clear that the reach of the no-strike clause is tied to
the grievance procedure. It specifies that the no-strike pledge is
given “[iJn view of the procedure for the orderly settlement of
grievances provided under the terms of this agreement... .”
Rec., vol. II, at 237. This language suggests that if the dispute
underlying a strike is not subject to the grievance-arbitration
machinery of the contract, the strike is not prohibited by the no-
strike clause.
Article XX, Section 2 of the contract provides further in-
dication that the grievance-arbitration procedure is intended to
resolve only grievances about a claimed “misapplication or
violation of a specific provision of [the] agreement... .” Rec.,
vol, II, at 234-35. The parties agree that the dispute underlying
the sympathy walkout, i.e., the Union’s construction division
dispute with Houchin, had nothing to do with the collective
bargaining agreement between Gould and the Union’s manufac-
turing division and was, therefore, not arbitrable. Thus, as the
Administrative Law Judge pointed out, “[sJince neither the
cause of, nor the issue underlying, the sympathy strike are /sic/
subject to the settlement procedures of the contract, a ban on
the sympathy strike may not be implied.” Rec., vol. III, at
667-68. Accord, Delaware Coca-Cola Bottling Co., ___. F.2d
—___., 104 L.R.R.M. 2776; C. K. Smith & Co., 569 F.2d 162;
Hyster Co. v. Independent Towing & Lifting Machine Associa-
—A-10—
tion, 519 F.2d 89 (7th Cir. 1975), cert. denied, 428 U.S. 910
(1976).
In Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397,
400 n. 2 (1976), the Supreme Court addressed the related ques-
tion whether a sympathy walkout may be enjoined when the col-
lective bargaining agreement between the parties contains a
general no-strike clause that does not specifically address sym-
pathy strikes, and an arbitration provision that limits arbitrable
disputes to grievances involving “question[s] as to the meaning
and application of the provisions of this Agreement.” The
Court held that the sympathy strike could not be enjoined since
“the strike was not over any dispute between the Union
and the employer that was even remotely subject to the
arbitration provisions of the contract. The strike at issue
was a sympathy strike in support of sister unions negoti-
ating with the employer, neither its causes nor the issues
underlying it was subject to the settlement procedures
provided by the contracts between the employer and re-
spondents. The strike had neither the purpose nor the ef-
fect of denying or evading an obligation to arbitrate or
of depriving the employer of his bargain.”
Id. at 407-408.
In NLRB v. Keller-Crescent Co., 538 F.2d 1291, 1296 (7th
Cir. 1976), the court read Buffalo Forge as suggesting that the
employees were contractually bound to arbitrate the legality of a
sympathy stike before engaging in it. However, Keller-Crescent
is readily distinguishable from this case. There, a section of the
contract dealt specifically with the employees’ rights to honor
picket lines established by other locals of their own union. The
picket line which the employees honored did not fall into the
permitted category. Accordingly, the company successfully
argued that by expressly permitting one type of sympathetic ac-
tt
tivity in the contract the parties had manifested an intention to
prohibit other types of sympathetic activites. See also W-I Can-
teen Service, 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 little basis for
believing they had the legal right to honor the picket line, and
therefore should have arbitrated the question before they re-
fused to cross it. In contrast, the contract here is totally silent
on the subject of picket lines. The express link between the no-
strike clause and the contractual settlement procedures makes
inescapable the inference that only strikes over arbitrable issues
were intended to be proscribed.
We hold that the Board properly refused to infer a waiver
of the employees’ right to engage in sympathetic activity pro-
tected by section 7.
Although Gould refused to comply with the Arbitrator’s
award, which directed that Beekman and Edgar be reinstated
after sixty-day suspensions, Could strenuously argues on appeal
that the Board erred in failing to defer to the arbitrator’s
assumption that Article XXII prohibits sympathy walkouts.°
We disagree.
Section 10(a) of the Act empowers the Board to prevent un-
5‘ This conclusion is bolstered by the fact that the court distinguished an earher
Seventh Circuit case, Gary Hobart Water Corp. v. NLRB, $11 F.2d 284 (7th
Cir.), cert. denied, 423 U.S. 925 (1975), on the ground that the collective
agreement at issue there lacked a picket-line clause. In Gary Hobart, it was
held that sympathy strikers did not violaie a general no-strike clause under
essentially the same analysis we have followed here. In Aeller-Creseent Co..
the court expressly acknowledged the continued vitality of the Gary Hobert
holding.
-A-12—
fair labor practices and provides that this power “shall not be af-
fected by any other means of adjustment or prevention that has
been or may be established by agreement, law or other-
wise... .” 29 U.S.C. §160(a). Thus, in an unfair labor practice
case, the Board is not deprived of jurisdiction te decide an issue
which has previously been the subject of an arbitration award.
In Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964)
the Court noted:
“‘There is no question that the Board is not
precluded from adjudicating unfair labor practice
charges even though they might have been the subject of
an arbitration proceeding and award. Section 10(a) of
the Act expressly makes this plain, and the courts have
uniformly so held. However, it is equally well established
that the Board has considerable discretion to respect an
arbitration award and decline to exercise its authority
over alleged unfair labor practices if to do so will serve
the fundamental aims of the Act.’ ” /d. at 271 (quoting
International Harvestor Co., 138 N.L.R.B. 923, 925-26
(1962) ) (emphasis added).
in the interest of promoting industrial peace and avoiding
duplicative litigation, the Board with judicial approval has
voluntarily deferred to arbitration awards where the arbitration
procedure was “fair and regular, all parties had agreed to be
bound, and the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act.” Spielberg
6 Gould contends the arbitrator was without authority to modify any penalty
imposed by the Company for Article XXII violations. The arbitrator con-
strued the language of Article XXII to allow him to do precisely that. Thus,
Gould finds itself in the curious position of arguing that the Board abused its
discretion by rejecting the arbitrator's interpretation of Article XXII to pro-
hibit sympathy walkouts, even though Gould itself has steadfastly refused to
comply with the arbitrator's award on the ground that he misconstrued
another part of the same Article.
~hta—
Manufacturing Co., 112 N.L.R.B. 1080, 1082 (1955). See Carey
v. Westinghouse Electric Corp., 375 U.S. 261, 270-71 1964);
NLRB v. Auburn Rubber Co., 384 F.2d 1, 3 (10th Cir. 1976).
At least two circuits would add two additional requirements to
the Spielberg test: (1) that the arbitrator clearly decided the un-
fair labor practice issue on which the Board is later urged to give
deference and (2) that the arbitrator decided only issues within
its competence. See Stephenson v. NLRB, 550 F.2d 535, 538
(9th Cir. 1977); Banyard v. NLRB, 505 F.2d 342, 347 (D.C. Cir.
1974).
The Board has wide discretion in deciding whether deferral
to an arbitration award is appropriate under these standards.
Upon review, we are limited to the question whether the Board
abused its discretion in reaching its deferral decision. Hawaiian
Hauling Service, LTD v. NLRB, 545 F.2d 674, 676 (9th Cir.),
cert. denied, 431 U.S. 965 (1976); NLRB v. Horn & Hardart
Co., 439 F.2d 674, 679 (2d Cir. 1971). In NLRB v. Auburn Rub-
ber Co., Inc., 384 F.2d at 3, this court said: “[T]he Board has
the discretion to defer to, or to reject, the decision of the ar-
bitrator and, in determining whether the discretion has been
properly exercised, the tests announced in Spielberg are perti-
nent.” Relying on Spielberg, the Board here determined that the
arbitrator’s decision should not be honored. We find no abuse
of discretion in the Board’s refusal to defer.
Although the Union argued before the arbitrator that sym-
pathy strikes were protected activity and that general no-strike
clauses do not automatically effect a waiver of sympathetic
rights, the arbitrator failed to address these issues. He assumed
without discussion that the sympathy walkout was “an illegal
strike,” and devoted his opinion to explaining why Beekman
and Edgar could legitimately be singled out for some punish-
ment short of discharge. Rec., vol. II, at 602. As we have
~frthn
previously noted, no extrinsic evidence was presented to the ar-
bitrator to support the conclusion that the parties intended the
no-strike clause to cover sympathy strikes.
The employees’ statutory right to strike lies “at the core” of
the Congressional scheme for promoting collective bargaining.
Division 1287, Motor Coach Employees v. Missouri, 374 U.S.
74, 82 (1963); NLRB v. Eric Resistor Corp., 373 U.S. 221,
234-235 (1963). The Board need not defer to an arbitral decision
which is inconsistent with the policies underlying section 7, and
which is thereby repugnant to the purposes and policies of the
Act. NLRB v. Owners Maintenance Corp., 581 F.2d 44, 48 (2d
Cir. 1978); Dreis & Krumpf Manufacturing Co., Inc. v. NLRB,
544 F.2d 320, 330 (7th Cir. 1976).
In particular, where an arbitrator’s award clearly ignores a
long line of Board and court precedent, the Board’s refusal to
defer to the award under Spielberg is proper. Alfred M. Lewis,
Inc. v. NLRB, 587 F.2d 403, 407-08 (9th Cir. 1978); Radio
Television Technical School, Inc. v. NLRB, 488 F.2d 457 (3d
Cir. 1973). In this case, the arbitrator assumed that a general
no-strike clause ipso facto effected a waiver of the right to
engage in sympathy strikes, despite the lack of any extrinsic
evidence to support that conclusion.’ Under these cir-
cumstances, we conclude the Board properly refused to honor
the award as repugnant to the purposes and policies of the Act.
See Dreis & Krumpf Manufacturing Co. v. NLRB, 544 F.2d at
330.
ENFORCEMENT GRANTED.
7NLRB vy. Pincus Brothers, Inc., 620 F.2d 367 (3d Cir. 1980), is
distinguishable from this case. There, the arbitrator upheld the discharge of an
employee for distributing leaflets containing allegedly false statements about
the company. The court held that the Board erred in refusing to defer to the
award because “it appears at least arguable that [the employee's] leaflet can be
=A-16—
No. 79-1025
UNITED STATES COURT OF APPEALS
°
FOR THE TENTH CIRCUIT
FILED
United States Court of Appeals
Tenth Circuit
NOV 07, 1980
HOWARD K. PHILLIPS
Clerk
NATIONAL LABOR RELATIONS BOARD
Petitioner
v.
GOULD, INC., SWITCHGEAR DIVISION
Respondent
JUDGMENT
Before Barrett, Peck* and Seymour, Circuit Judges.
THIS CAUSE was heard upon application of the National
Labor Relations Board for the enforcement of a certain order
Footnote 7 (Cont.)
labeled as ‘defamatory or insulting material known to be false,’ Linn vy. Plant
Guard Workers, 383 U.S. 53, 61, 86 S.Ct. 657, 662, 15 L.Ed.2d 582 (1966),
and thus can be characterized as unprotected under the Act.” /d. at 376. The
court emphasized: “We hold only that where there are two arguable interpreta-
tions of an arbitration award, one permissible and one impermissible, the
Board must defer to the decision rendered by the arbitrator.” /d. at 377. Here,
the sympathy strike is not even arguably unprotected. As stated above, it is
well settled that a general no-strike clause does not operate to waive the right
to engage in sympathy strikes absent some extrinsic evidence that the parties so
intended.
fr ~
issued by it on September 28, 1978 against Respondent, Gould,
Inc., Switchgear, Division, Tulsa, Oklahoma, its officers,
agents, successors and assigns. On October 7, 1980, having con-
sidered the record, briefs and argument of counsel, and being
fully advised in the premises, the Court handed down its deci-
sion granting enforcement of the Board’s order.
ON CONSIDERATION WHEREOF, it is hereby ordered
and adjudged that the said order of the National Labor Rela-
tions Board be enforced, and that Gould, Inc., Switchgear Divi-
sion, Tulsa, Oklahoma, its officers, agents, successors and
assigns, abide by and perform the directions of the Board con-
tained in said order.
S/S Stephanie K. Seymour
Judge, United States Court of
Appeals for the Tenth Circuit
Dated: November 4, 1980
*Of the United States Court of Appeals, Sixth Circuit, sitting by
designation.
By: S/S Vicki Edmisson
Deputy Clerk
eS ene
APPENDIX B
NOVEMBER TERM — DECEMBER 18, 1980
Before The Honorable Oliver Seth, Chief Circuit Judge,
Honorable William J. Holloway, Jr., Honorable Robert H.
McWilliams, Honorable James E. Barrett, Honorable William
E. Doyle, Honorable James K. Logan, Honorable Stephanie K.
Seymour, Circuit Judges, and Honorable John Peck, United
States Court of Appeals for the Sixth Circuit.
No. 79-1025
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VS.
GOULD, INC., SWITCHGEAR DIVISION
(formerly Terac Controls, Inc.),
Respondent.
This matter comes on for consideration of respondents’
petition for rehearing and suggestion for rehearing in banc in
the captioned cause.
Upon consideration whereof, the petition for rehearing is
denied by Circuit Judges Barrett, Seymour and Peck to whom
the case was argued and submitted.
The petition for rehearing having been denied by the panel
to whom the case was argued and submitted, and no member of
the panel nor judge in regular service on the Court having re-
quested that the Court be polled on rehearing in banc, Rule 35,
7.
~ 2.
Federal Rules of Appellate Procedure, the suggestion for
rehearing in banc is denied.
HOWARD K. PHILLIPS, Clerk
By:
Robert L. Hoecker
Chief Deputy Clerk
=. oe
APPENDIX C
FMT
238 NLRB No. 88 D— 4283
Tulsa, Okla.
Case 16—CA—7061
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GOULD INC., SWITCHGEAR DIVISION
(formerly Terac Controls, Inc.)
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL UNION 584
DECISION AND ORDER
On May 31, 1978, Administrative Law Judge Herzel H. E.
Plaine issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party each filed
answering briefs.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Relations
Board has delegated its authority in this proceeding to a three-
member panel.
The Board has considered the record and the attached
Decision in the light of the exceptions and briefs! and has de-
! Respondent has requested oral argument. This request is hereby denied as
the record, exceptions, and vriefs adequately present the issues and the posi-
tions of the parties.
aO@a
cided to affirm the rulings, findings, and conclusions? of the
Administrative Law Judge and to adopt his recommended
Order.
2 For the reasons fully set forth by him, we agree with the Administrative Law
Judges’s finding that Respondent violated Sec. 8(a)(1) of the Act by discharg-
ing employees Virginia Beekman and Clifford Edgar because they participated
in a sympathy walkout which, in the circumstances, was a protected concerted
activity. Having found, in agreement with the Administrative Law Judge, that
the employees’ sympathy walkout was a protected concerted activity, we do
not reach the question (discussed by the Administrative Law Judge at fn. 7a of
his Decision) of whether Respondent’s willingness to accept the returning
strikers without discipline constituted condonation of their asserted miscon-
duct. Also, in view of our finding that the discharges violated Sec. 8(a)(1) of
the Act, we deem it unnecessary to pass on the Administrative Law Judge’s
further finding that the discharges also violated Sec. 8(a)(3) of the Act, in-
asmuch as such additional finding could not affect the remedy herein. Finally,
in view of our agreement with the Administrative Law Judge’s finding that the
strike was a protected concerted activity, Precision Castings Company Divi-
sion of Aurora Corporation, a wholly owned subsidiary of Allied Products
Corporation, 233 NLRB No. 35 (1977), is inapplicable, since that decision
concerned only unprotected activity.
Although the Administrative Law Judge correctly found that the doctrine
of Redwing Carriers, Inc., and Rockana Carriers, Inc., 137 NLRB 1545
(1972), afforded Respondent no defense to its discharge of Beekman and
Edgar, and is inapplicable to the facts herein, he failed to note the Board’s re-
cent decision in Torrington Construction Company, Inc., 235 NLRB No. 211
(1978), which holds that while a sympathy striker may be replaced when
necessary to the continued operation of the employer’s business, such striker
may not lawfully be discharged.
Finally, we agree with the Administrative Law Judge that deferral to the
arbitrator’s award is not appropriate in these circumstances, but not with his
characterization of this proceeding as looking to “vindication of individual
rights under the Act” inasmuch as the Board’s processes function only in vin-
dication of the public interest even though the statutory rights of individual
employees may be involved. However, in finding deferral inappropriate, we
do not rely on General American Transportation Corporation, 228 NLRB 808
(1977), inasmuch as the arbitrator’s award has already issued in this case. In-
stead, we find that the arbitration award does not meet the standard of
Spielberg Manufacturing Company, 112 NLRB 1080 (1955), for the reasons
set forth in Raytheon Company, 140 NLRB 883 (1963), enforcement denied
on other grounds 326 F.2d 471 (C.A. 1, 1964).
=
ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board adopts as
its Order the recommended Order of the Administrative Law
Judge and hereby orders that the Respondent, Gould Inc.
Switchgear Division (formerly Terac Controls, Inc.) Tulsa,
Oklahoma, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended Order.
Dated, Washington, D.C. September 28, 1978.
John H. Fanning, Chairman
Betty Southard Murphy Member
John C. Truesdale, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
=aQéa
JD-370-78
Tulsa, Oklahoma
Case No. 16-CA-7061
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GOULD INC., SWITCHGEAR DIVISION
(formerly Terac Controls, Inc.)
Respondent
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL UNION 584
Charging Party
KATHLEEN D. AURE, ESQ.,
Fort Worth, Texas,
for the General Counsel.
RICHARD L. BARNES, ESQ.,
of KOTHE, NICHOLS AND WOLFE, INC.,
Tulsa, Oklahoma,
for the Respondent.
THOMAS F. BIRMINGHAM, ESQ.,
of SMITH, BROWN, MARTIN AND ADKISSON,
Tulsa, Oklahoma,
for the Charging Party.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge:
he question presented is whether Respondent, a manufac-
—C-5—
turer of electrical switchgear, violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act) by discharging the
two employees, of its bargaining unit of manufacturing
employees, who were the two elected union representatives of
the unit represented by the Charging Party (Union). The two
employees had participated with most of the other employees in
a walkout and brief strike of several hours, allegedly in sym-
pathy for the division of construction employees of the Union
who were conducting informational picketing against a non-
union contractor doing electrical construction for Respondent
in an expansion of the manufacturing plant in which the
manufacturing employees worked. !
The union contract governing the relationship between
Respondent and its manufacturing employees contains a no-
strike clause tied to the procedure for the orderly settlement of
grievances arising within the terms of the contract. The Union
and General Counsel are of the view that such clause is a limited
ban on strikes over matters subject to the grievance procedure,
and does not expressly or impliedly prohibit the employees from
engaging in sympathy strikes, under the reading of Buffalo
Forge Co. v. United Steelworkers of America, 428 U.S. 397,
407-408 (1976). Hence General Counsel and the Union contend
that the sympathy strike was protected activity under the Act
and that the discharges for engaging in it were unlawful.
Further, General Counsel and the Union contend that the
sympathy strike was spontaneous, individual action of the
employees not directed by the Union or its agents or the two
elected representatives among the employees, and that the
discharges of only the two elected union representatives from
among all of the striking employees were discriminatory.
! Complaint was filed on May 19, 1977, on a charge filed by the Union on
March 3, 1977.
=.’
Respondent contends that the strike action of its manufac-
turing employees was unlawful and unprotected because they
had no labor dispute with Respondent, and because the Union
purpose behind its informational picketing of the nonunion
electrical construction contractor was to cause a work stoppage
by the manufacturing employees, in violation of Section 8(b)(7)
of the Act, with the objective of forcing Respondent to stop do-
ing business with the nonunion electrical construction contrac-
tor, in violation of Section 8(b)(4) of the Act.
Respondent also claims that since its employees engaged in
strike activity forbidden by the collective bargaining contract
they were subject to discipline, including discharge, under the
contract, and that Respondent enjoyed discretion to choose for
discharge those employees whom it regarded as having special
culpability in the forbidden action, in this case the two elected
representatives of the employees.
The matter of the discharges had been referred to arbitra-
tion before trial of the case at bar. Respondent argues that the
arbitrator found that the two discharged employees violated the
collective bargaining contract and that the Board should defer
to that finding.
Actually, the arbitrator assumed that the two discharged
employees had breached the collective bargaining contract and
concerned himself only with whether discharge was too severe a
penalty. He found that the discharges were too sever a penalty
for the breach and commuted the discharges to sixty-day
suspensions.
Respondent claims that the arbitrator had no authority to
modify the penalty which Respondent had invoked, and at the
time of trial of this case, Respondent had not complied with ar-
bitrator’s award. Therefore, Respondent has not asked that the
= <=
Board defer to the arbitrator’s award but has moved for def-
erence only to the alleged finding therein that the collective
bargaining contract was breached by the two employees.
General Counsel and the Union oppose such deference.
The case was tried in Tulsa, Oklahoma on July 21, 1977.
Counsel for all three parties have filed briefs.
Upon the entire record of the case, including my observa-
tion of the witnesses and consideration of the briefs, | make the
following:
Findings of Fact
|. Jurisdiction
Respondent is a corporation with an office and place of
business in Tulsa, Oklahoma, where it is engaged in the
manufacture of electrical switchgear and components.
In the calendar year prior to filing the complaint, a
representative period, Respondent sold and shipped finished
products, valued in excess of $50,000, directly to customers out-
side Oklahoma.
As the parties admit, Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
é
As the parties also admit, the Union is a labor organization
within the meaning of Section 2(5) of the Act.
ll. The Unfair Labor Practices
A. Respondent’s Business and Union Relationship
Respondent manufactures electrical switchgear in its Tulsa
plant, and for this purpose uses largely electricians, and some
welders, sheet metal workers and related personnel.
There are two shifts, the early shift commencing at 7:30
=, ae
a.m. and the late shift commencing at 4 p.m. The early shift has
about 90 employees, the late shift about 30 employees.
In overall charge of plant is General Manager Donaldson.
Shop Superintendent is Adam Bellis, who answers to the general
manager, and under Bellis are several foremen, including Shop
Foreman Donald Purkey and Electrical Foreman Grover Whit-
ten. The Director of Personnel is Louis Ellis, who is also in:
charge of labor relations. All of the foregoing are admitted
statutory supervisors or agents with authority to speak for and
on behalf of Respondent.
Respoadent’s manufacturing employees comprise a
bargaining unit that has been represented for a number of years
by the Union—Local 584—under a collective bargaining con-
tract with Respondent.
The Union local’s chief representative is its Business
Manager Clinton Sroufe. According to Sroufe, the Union’s ter-
ritorial jurisdiction in Oklahoma is large, stretching from the
Kansas line to below McAllister, Oklahoma, and from Stroud,
Oklahoma to the Arkansas border. Sroufe testified that the
Union comprises three autonomous divisions of workers: con-
struction, manufacturing, and maintenance, and no one divi-
sion votes on the business of the others. Respondent’s bargain-
ing unit employees belong to the manufacturing division of the
Union.
Apart from its professional union representation, the
bargaining unit had two elected representatives, Shop Steward
Virginia Beekman, a class A electrician, and bargaining unit
Chairman Clifford (Toby) Edgar, a class A welder.
At the time of the events in this case, the plant operations
were all on one floor, with a mezzanine floor for offices and an
employees’ lunchroom. Respondent had embarked upon a plant
=. we
expansion and remodeling and for this purpose was using con-
struction contractors including an electrical construction con-
tractor. Prior to February 28, 1977, the electrical contractor for
some of the work was Stewart Electric Co., which had a collec-
tive bargaining agreement with the Union, and whose employees
were members of the Union’s construction division. On about
February 28, 1977, Respondent brought in a nonunion electrical
contractor, Houchin Electric Co., for work on which Houchin
had underbid Stewart. Houchin was a comparatively small elec-
tric construction contractor who used about two to four men on
the job at the plant.
On March 1, 1977, the Union set up an informational
’ picket at the plant on behalf of the members of its construction
division.
The picket sign read:
“Information: Houchin Electric does not have an agree-
ment with Local Union 584, IBEW.”
B. The Union Contract
The collective bargaining agreement between the Union
and Respondent, exhibit GC-2, effective November 11, 1975
through November 10, 1978, covered the plant employees (other
than office employees, clericals, guards, and professionals),
largely made up of manufacturing electricians, and some
welders, sheet metal workers, painters, inspectors, stockroom
employees, and janitors.
Among other things, the agreement had a grievance pro-
cedure, coupled with compulsory arbitration of grievances not
satisfactorily settled, Article XX. To be arbitrable, a grievance
must allege misapplication or violation of a specific provision of
the agreement and is limited to subject matter expressly con-
tained in the agreement, Ai. ie XX, Section 2.
=
The agreement also provided:
ARTICLE XXII—STRIKES AND LOCKOUTS
In view of the procedure for the orderly settlement of
grievances provided under the terms of this Agreement,
the Union agrees that there will be no strike, work in-
terference, or other stoppage or slowdown of work, total
or partial, during the term of this Agreement.
An employee or employees who participate in any such
action in violation of this Agreement may be disciplined
or discharged from the Company’s service, subject to the
employee’s right to submit a grievance alleging improper
discharge in accordance with the provisions of Article
XX, Section 3, paragraph (c) of this Agreement.
The Union agrees that it will take immediate,
positive action to forestall or suppress any action on the
part of employees in violation of this Agreement.
The Company will not lock out any employee or
employees while this Agreement is in force.
C. The Walkout
According to Respondent’s Personnel Director Ellis, the in-
formational picketing at the plant, directed at Houchin Electric
Co., began on March 1, 1977, after 9 a.m. There were two
pickets, one of them an assistant business manager of the Union
and one carrying the picket sign, see heading A above, which
Ellis read.
The manufacturing employees became aware of the
picketing between 9 a.m. and 9:30 a.m. Employee Harold Web-
ber told Shop Steward Virginia Beekman of it. She then saw it
oe for herself and went to the telephone about 9:30 a.m. to ask
Union Business Manager Sroufe what it was about and what to
do about it.
Union Business Magaeer Sroufe told Shop Steward
Bn! ba
sey
te:
en
= Sw
Beekman that a nonunion electrical construction contractor
(Houchin) with nonunion employees was working in the plant,
that the picketing was informational picketing directed at
Houchin and did not involve a violation by Respondent of its
collective bargaining contract covering the plant employees,
that the Union was no! going to tell or advise her or the other
employees what to do, and that any actions by employees would
have to be their individual actions.
Word of the picketing spread through the plant and, at 10
a.m., most of the morning shift employees gathered in the
lunchroom, as was not unusual, for the fifteen-minute morning
coffee and refreshment break. The gathering was unusually
noisy, according to employees Stack, Beekman (the shop stew-
ard), and Edgar (the unit chairman), since, in addition to get-
ting and consuming refreshments, the employees were dis-
cussing the picket, what to do about it, whether to walk out or
continue working behind the picket line, or whether they were
obliged to do one or the other. Unit Chairman Edgar succeeded
in getting attention of the gathering long enough to have Shop
Steward Beekman explain what she had learned about the pick-
eting, and she concluded by saying any employee reaction
would be up to each of them as individuals.
Some of the employees talked of walking out of the plant at
once, according to Unit Chairman Edgar and Shop Steward
Beekman. Beekman testified that she did not get into the discus-
sion of, or advise, a walkout. Edgar testified that he did not ad-
vise against a walkout but said that the employees ought to wait
until 4 p.m. (the end of the day shift) to give Respondent and
the Union time to talk and avoid a walkout. Though there was
no organized meeting in progress, employee John Burgess made
a motion to walk out at 4 p.m., quitting time, unless the Union
and Respondent had worked things out before then. There was
oe
a voice vote of approval, and some employees started leaving
the lunchroom presumably for their work places.
However, others stayed on and despite the vote talked
about an immediate walkout because there were employees who
would be going out and returning to the plant during the day on
business errands or lunch, causing them to cross the picket line
in returning for work. A second voice vote was taken, by the
lesser number of employees still in the lunchroom, and this time
the vote was to walk out of the plant immediately.
It was now approximately between 10:10 a.m. and 10:15
a.m. The bell rang signaling coffee break was about to end and
time to return to work. The employees in the lunchroom, on the
inezzanine floor, started moving to and down the stairway to
the ground floor shop area. They apparently halted uncertainly
at the foot of and on, the stairway because, said Unit Chairman.
Edgar, employees were there who were unaware of the second
vote in the lunchroom. Further confused discussion ensued on
the conflicting views and votes already taken, and, according to
Edgar Doug Dodwell broke through the discussion with a mo-
tion to walk out now, which was approved by voice vote.
Nonetheless, said Unit Chairman Edgar, the employees
hesitated and stood where they were. Employee Stack described
it as an emotional situation in which the employees wanted to
do something, but with no one among them taking the initiative
to start.
At this point Foreman Whitten approached the assembled
employees at the stairway. Whitten testified that, at the direc-
tion of Personnel Director Ellis, he announced that those
employees who had punched out (or clocked out) were to leave
and those who had not were to go back to work. None of the
employees had punched out or clocked out —and Whitten testi-
ais
fied that he later verified this to be the fact — but when he made
his announcement, said Whitten, the whole group of employees
moved to the timeclock, clocked out, and left the plant. As
employee Stack testified, corroborating Foreman Whitten’s
description,, Whitten’s statement to the employees had the ef-
fect of supplying the initiative for them to do something, and
they walked out.
Almost all of the 90 employees on the shift walked out,
testified Shop Superintendent Bellis, and when he observed a
half-dozen employees who had not left, he told them they might
as well go home too, and sent them home.
In this connection, the evidence indicated that the plant
management made scant, if any, effort to try to head-off or
avoid the walkout. Shop Superintendent Bellis testified that he
had been made aware of the gathering in the lunchroom and the
talk of walkout, had personally observed the (third) vote to
walk out taken at the stairway, but made no attempt to talk to
the employees about going back to work or the possible conse-
quence of not doing so, or of talking to Unit Chairman Edgar
whom he saw among the employees at the stairway. Bellis did
walk over to the telephone, behind and away from the stairway,
where Shop Steward Beekman had gone from the lunchroom
(without participating in the stairway gathering) to report to
Union Business Manager Sroufe on what had occurred at the
lunchroom gathering. Bellis interrupted her phone conversation
to ask what was going on. She replied the employees had voted
to honor the picketing outside the plant. Bellis answered that
the picketing had nothing to do with the employees, or their
union contract, and they were subjecting themselves to
discharge. Beekman handed Bellis the telephone and he took
over the conversation with Sroufe. Sroufe agreed with Bellis
that the picket line had nothing to do with the union contract of
~~
Respondent’s unit employees, and asked Bellis to have General
Manager Donaldson or Personnel Director Ellis get in touch
with him to resolve the problem before it came about. Ellis did
not call Sroufe until about 4 p.m., approximately six hours
later.2
Shop Steward Beekman and Unit Chairman Edgar were the
last of the employees to walk out. Edgar had walked over to
Beekman at the telephone to inform her of the third vote at the
stairway. Neither of them had advised their fellow employees
against voting or against walking out but Beekman had not
voted in any of the three employee votes, she said, and Edgar
said he had voted in all three. Beekman testified she saw five or
six employees still in the shop at the timeclock when she
punched out (these were the few employees whom Shop
Superintendent Bellis then sent home). Bellis and some of his
supervisors were also at the clock, and Bellis asked her if she
knew that the employees who had walked out could be discharg-
ed. She replied, they made their decision, and left the plant.
In connection with the March 1 walkout, Union Business
Agent Sroufe testified that at no time did he or the Union give
any instructions or directions to anyone for a walkout or strike
action. He noted that in December 1976 he had heard, from a
union member and employee of the union construction contrac-
tor Stewart Electric, that nonunion construction contractor
Houchin Electric might be getting some of Respondent’s plant
2Personnel Director Ellis had also been fully aware of the actions of the
employees as they occurred in the morning of March 1. Like Shop Superinten-
dent Bellis, he too made no effort to head off the walkout or advise employees
of possible consequences, but merely directed Foreman Whitten to make the
statement he made, supra.
Interestingly, the arbitrator in his award, appeared to regard the Whitten
statement as an invitation for a mass exodus of the employees.
~i-15—
expansion work that Stewart thought it had; and that he,
Sroufe, asked Personnel Director Ellis about it. Ellis said he had
nothing to do with contract awards but would find out.
However Ellis provided Sroufe with no advance information,?
and Sroufe tried in vain to obtain information from General
Manager Donaldson.
At the monthly union meeting of Respondent’s bargaining
unit employees, in January 1977, Sroufe said he mentioned that
he had heard of the possibility of the nonunion contractor get-
ting some of Respondent’s electrical construction work but, ac-
cording to Sroufe and several employees who testified, he added
no more other than that he could probably work out any pro-
blem with Respondent. Sroufe said he had no meeting or discus-
sion with any of Stewart’s management and learned that
Houchin had obtained the work when Houchin’s men started
working at the plant at the end of February.
Sroufe further testified that for about two years prior to
trial the Union had been engaged in organizing employees of
electrical construction employers and had a two-year history of
informational picketing of such employers whose employees
were not unionized. Because the Union had been concentrating
on the larger employers, said Sroufe, there had been no infor-
mational picketing of Houchin Electric, a small operator, prior
to the picketing that began March 1, 1977, at Respondent’s
plant.
The informational picketing of Houchin lasted thirteen
days, according to Sroufe, from March 1 through March 13,
1977. Beginning on the second day of the picketing, after the
sympathy walkout and strike of Respondent’s manufacturing
J Ellis did tell Sroufe, a week after the March 1, 1977 walkout, that Houchin
had underbid Stewart, by a considerable amount, for the particular job.
~¢-18-
employees had ended, Respondent had the Houchin employees
use a reserved gate of their own which they erected the previous
day, said Sroufe. Shop Steward Beekman testified that she ob-
served that the picket moved to the new location on March 2.
D. The Employees Return to Work
In the afternoon of the walkout on March 1, 1977, Re-
spondent sent a telegram to Union Business Manager Sroufe
and caused copies to be delivered to each of the bargaining unit
employees, exhibit CP-1.
In the message, Respondent stated that the strike was an
unlawful secondary boycott and was a violation of Article XXII
of the collective bargaining agreement. Each of the employees
was told if he did not report to his or her next regularly sched-
uled shift, he or she would be subject to discharge, as provided
in Article XXII; and the Union was called on to take immediate
positive action to return the employees to work.
Union Business Manager Sroufe testified that before he
received his copy of the telegram in the afternoon of March 1,
he had been called about 4 p.m. by employee Jeff Ott the em-
ployee representative on the second or late shift, who had
observed the absence of first shift employees and was inquiring
what to do. Sroufe said he told employee Ott that there had
been picketing earlier in the day, that he was told the first shift
employees left the plant, that the picketing had no relation to
the employees collective bargaining contract, and that Ott
should proceed with the second shift duties. Sroufe also testified
that he talked to day or first shift employees and advised them
to report to work at their next regularly assigned shift.
The second shift went to work as scheduled on March 1,
and next morning, March 2, all of the first shift returned to
work as scheduled, and the strike ended. The Union’s informa-
fit
tional picketing at the newly set up reserved gate for Houchin
Electric continued from March 2 through March 13.
In the late afternoon of March 1, Personnel Director Ellis
finally responded to Union Business Manager Sroufe’s morning
request to call Sroufe. They discussed the morning walkout of
the employees and whether the collective bargaining contract
had been violated. Sroufe contended that Article XXII of the
contract pertained to the orderly settlement of grievances under
the contract, that there was no grievable offense under the con-
tract that prompted the Union’s picket or the employee activity
that followed, and therefore since the contract does not bar
sympathy strikes, the employees committed no violation of the
contract. Ellis asked what would the Union position be if
Houchin Electric was not there, and Sroufe answered, there
would have been no need for a picket if Houchin were not there.
As a result of the March | walkout and strike Respondent
filed unfair labor practices charges against the Union, charging
violations of Section 8(b)(4)(i), Section 8(b)(4)(ii)(A) and (B),
and Section 8(b)(7)(C) of the Act. Following investigations of
the charges, the Regional Director found further proceedings
unwarranted and refused to issue complaints against the Union,
see exhibits CP-2-3-4-5.
E. The Discharges of Employees Beekman and Edgar
When the day shift employees reported to work on the
morning of March 2, all were put back to work without dis-
cipline or talk of discipline for the walkout on March 1, except
Shop Steward Beekman and Unit Chairman Edgar. The two
employees were interviewed separately by Personnel Director
Ellis with several supervisors present and interrogated about the
walkout. Both were handed suspension letters, already
prepared, charging each with a substantial role in the strike of
~66~
March | and removing them from the payroll, exhibits GC-3
and -5. Both were sent home.
Following a further separate meeting for each of them with
management representatives, employees Beekman and Edgar
were discharged as of March | by letters dated March 10, 1977,
exhibits GC-4 and -6. Both were charged with being the leaders
of the work stoppage on March 1. Added in, was a charge of
having violated company rules, i.e. refusing to return to work
despite a foreman’s direct order (which was identified at trial as
the Whitten statement made to all employees to leave if clocked
out or return to work) and being absent from duty for the six
hours on March 1.
While none of Respondent’s witnesses testified as to the
discharges, it was made plain by Respondent that it had deter-
mined that these two employees “had a special responsibility
and higher duty” than the other employees (by virtue of being
the elected shop steward and unit chairman, respectively), and
therefore should be disciplined rather than the 83 or 84 other
employees “who may have been misled by their actions or inac-
tion,” transcript, page 10.
The Union filed grievances on behalf of the two discharged
employees, which went to arbitration. In his award, the ar-
bitrator, though he copied down the arguments of the Union
and Respondent, assumed without explanation that the walkout
was a violation of the collective bargaining contract and dealt
only with whether the discipline of discharge invoked by Re-
spondent was too severe. He found that the discipline was too
severe and reduced the discharges to sixty-day suspensions, ex-
hibit GC-7. At the time of trial, Respondent had not complied
with the award and had not reinstated the two employees, con-
tending that the arbitrator had no authority to modify the
discharge penalty.
~$-10=
F. Concluding Findings
1. Protected Activity
The employee walkout and six-hour work stoppage of
March 1, 1977, by Respondent’s unionized manufacturing em-
ployees, was in sympathy for the construction employee
members of the union, who had begun informational picketing,
that morning, of a nonunion electrical construction contractor
engaged in work for Respondent with nonunion employees at
Respondent’s plant.
The walkout was the spontaneous action of about 85 of the
90 first shift employees, who decided in unorganized assem-
blages in the plant that they would not work behind the picket
line. The decision and action was not directed by the Union,
whose Business Manager Sroufe advised the shop steward and
through her the employees that whatever action the employees
took would be their individual choice and action. Such advice
does not constitute union authorization, or union inducement
within the meaning of Section 8(b)(4)(i) of the Act, Building
and Construction Trades Council of Tampa (Tampa Sand and
Material Co.), 132 NLRB 1564, 1565-1566 (1961). Moreover,
the Union was not required to actively discourage the sympathy
strike in order to disestablish any connection to secondary ac-
tivity, Building and Construction Trades Council of Los
Angeles (Kon Tee Bldg. Co.), 162 NLRB 605, 608-609 (1967).
Before the picketing and sympathy walkout, the Union
made no threats to force Respondent to stop doing business
with the nonunion contractor Houchin Electric; and the Union
business manager’s comment after the sympathy strike began
that there would have been no need for an informational picket,
in reply to Respondent’s question on what the Union position
would be if there was no nonunion contractor, was hardly a
— C-20-—
threat of economic reprisal to force cessation of business with
another within the meaning of Section 8(b)(4)(ii)(B) of the Act.
Under the no-strike provision, Article XXII, of the collec-
tive bargaining contract with Respondent, quoted under
heading B above, Respondent’s manufacturing employees did
not waive their right to engage in sympathy strikes. The right is
not expressly prohibited by the language, and a prohibition may
not be implied, because the contract restriction on strikes is tied
to the procedure for the orderly settlement of grievances arising
under the contract. Since neither the cause of, nor the issue
underlying, the sympathy strike are subject to the settlement
procedures of the contract, a ban on the sympathy strike may
not be implied, Buffalo Forge Co. v. United Steelworkers of
America, 428 U.S. 397, 407-408 (1976); Montana-Dakota
Utilities Co., 189 NLRB 879, 882-883 (1971), reversed on
another ground, Montana-Dakota Utilities Co. v. N.L.R.B. 445
F.2d 1088 (C.A. 8, 1972).4
In both of the cited cases the employees who engaged in the
sympathy strikes were under no-strike provisions of collective
bargaining contracts similar to Article XXII of the contract in
this case. It was held, by the Court in the Buffalo Forge case
and by the Board in the Montana-Dakota case, that such provi-
sions do not imply a waiver by employees of the right to engage
in sympathy strikes.
4The other ground and resulting disagreement between the Circuit Court and
the Board was the Cc urt’s view (contrary to the Board) that under a special
picketing clause, separate from and in addition to the no-strike clause, of their
contract, the utility employees had waived any right they might otherwise have
had to cease work when confronted by a picket line. There is no such com-
plication in the case at bar.
5In Buffalo Forge, the issue arose on application for a District Court injunc-
tion against the strike, which was denied.
-~@26~
In Buffalo Forge the sympathy strike was by the produc-
tion unit on behalf of the striking office workers unit of the
common employer, when the office workers failed to obtain a
collective bargaining agreement; the employees were repre-
sented by two locals of the same union, not unlike the situation
here, where the Union local represents several autonomous divi-
sions Of workers.
The facts in Montana-Dakota were even closer to those of
the case at bar. A group of the utility’s unionized employees,
who were assigned to work on a housing development project,
refused to cross, or work behind, an informational picket, set
up by a union other than their own, directed at a nonunion con-
struction contractor. As in the case at bar, the utility employees
were advised by their union steward that the picketing did not
involve any issue or dispute with their employer and that each of
them had to make his own decision as to whether he would cross
the picket line.
It is useful to note, as was noted in Montana-Dakota, 189
NLRB at 882, that though employees (who have not waived
their right) are engaged in protected concerted activity when
they respect a picket line established by other employees, the
employer of those engaged in the sympathy action is not with-
out a balancing remedy. As set out in Redwing Carriers® and
related cases, the protected right of the employees must be
balanced against the specific business interest of the employer to
conduct his business. Where the employer’s business need to
replace the employees clearly outweighs the employees’ right to
engage in protected activity, an invasion of the statutory right is
justified and the employer may suspend or terminate such
6 Redwing Carriers, Inc., 137 NLRB 1545 (1962), modifying 130 NLRB 1208,
aff'd sub. nom. Teamsters etc. Local No. 79 v. N.L.R.B. 325 F.2d 1011
(C.A.D.C., 1963), cert. denied 377 U.S. 905.
— C-25 —
unlawful in violation of Section 8(a)(1) and (3) of the Act.8
3. No Deferral to Arbitration
The Respondent has not asked for deference to the Ar-
bitrator’s award. Actually, Respondent opposes the award since
the arbitrator commuted the discharges of Beekman and Edgar
to sixty-day suspensions, and Respondent had not reinstated
either employee at the time of trial. Respondent nevertheless has
moved for deference te an alleged finding in the award that the
two employees breached the collective bargaining contract by
participating in the walkout. General Counsel and the Union
have opposed such deference.
There is no sound basis for granting the motion. While I
doubt that a party may pick and choose the part he likes from
the part he doesn’t like in asking Board deference to an ar-
bitrator’s award, there was no such finding in the award as
Respondent alleges. The arbitrator, though he had the issues
laid out for him, simply assumed that the sympathy walkout
was illegal. He stated that all of the striking employees including
Beekman and Edgar were equally at fault, and that while neither
Beekman nor Edgar exerted affirmative leadership in causing
the walkout, nevertheless Respondent had the right to discipline
them, intimating that by reason of their union-related functions
they owed some (undefined) special duty to prevent the walk-
out. The major concern of his conclusions was with the penalty
of discharge invoked by Respondent. He held that the
discharges were too severe a penalty and awarded instead a
sixty-day suspension without pay for both employees, with
8 The additional claim by Respondent that the two employees disobeyed a
direct order to return to work as the walkout began was without substance.
The “order” was the statement or request of Foreman Whitten addressed to all
of the employees in general (and not to Beekman and Edgar in particular) say-
ing, in effect, leave the plant if you are going to strike, else go back to work.
— C-26 —
reinstatement to follow.
It is also obvious, therefore, that the arbitrator’s award did
not deal with the issues that required decision, supra, in dealing
with the unfair labor practices alleged in the complaint; and
that, to the extent that the arbitrator assumed or intimated
views in those areas, such views appeared to be repugnant to
Board Law.
For these reasons, and since the case at bar looks toward
vindication of individual rights under the Act, deferral to the ar-
bitration, or more exactly to a portion of it, is not appropriate.
General American Transportation Corp., 228 NLRB No. 102,
94 LRRM 1483, 1484-1486 (1977).
Conclusions of Law
1. The six-hour work stoppage on March 1, 1977, by
Respondent’s manufacturing employees, members of the
Union’s manufacturing division, in sympathy for informational
picketing by construction employees who were members of the
Union’s construction division, directed at a nonunion electrical
construction employer performing construction services for
Respondent at the manufacturing plant, was a spontaneous
sympathy strike by the manufacturing employees involved, and
was not directed by the Union. The sympathy strike was not for-
bidden by the no-strike provision of the collective bargaining
contract governing the unit of manufacturing employees, which
provision was limited to a ban on strikes for grievances arising
and arbitrable under the collective bargaining contract. Respon-
dent’s employees who participated in the sympathy strike were
engaged in protected concerted activity under Section 7 of the
Act.
2. Respondent’s discharges of the two elected employee
Union representatives of the manufacturing unit from among
~647~
the 85 employee participants in the sympathy strike, on the basis
of their holding union office, were discriminatory against the
two employees and constituted unfair labor practices in viola-
tion of Section 8(a) (3) and (1) of the Act. The discharges, on the
further basis of an unproven accusation or mistaken belief that
the two employees engaged in misconduct by providing the lead-
ership for the walkout, infringed upon their right under Section
7 of the Act to engage in protected concerted activity, and con-
stituted further unfair labor practices in violation of Section
8(a) (1).
3. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
The Remedy
It will be recommended that the Respondent,
(1) cease and desist from its unfair labor practices;
(2) offer to reinstate employees Beekman and Edgar, and
give each backpay from the effective date of their discharges,
March 1, 1977, said backpay to be computed on a quarterly
basis as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344
(1953), with interest as prescribed in Florida Steel Corporation,
231 NLRB No. 117 (1977);?
(3) post the notices provided for herein; and because the
Respondent violated fundamental employee rights guaranteed
by Section 7 of the Act, and because there appears from the
manner of the commission of this conduct an attitude of op-
position to the purposes of the Act and a proclivity to commit
other unfair labor practices, it will be further recommended that
the Respondent
9See generally, /sis Plumbing & Heating Co., 231 NLRB 716 (1962).
— C-28 —
(4) cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.L.R.B. v. Ent-
wistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); P.R. Mallory
and Co., v. N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968),
cert. denied 394 U.S. 918; N.L.R.B. v. Bama Company, 353
F.2d 323-324 (C.A. 5, 1965).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the Act,
there is hereby issued the following recommended: !°
ORDER
Respondent, its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Discharging or suspending employees or
discriminating against them in regard to their hire, tenure, or
any term or condition of employment, because of their pro-
tected concerted activities or because they hold union office in
the bargaining unit when engaging in protected concerted ac-
tivities.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Make employees Virginia Beekman and Clifford
10In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
— C-29 —
Edgar whole, in the manner set forth in the section of the deci-
sion entitled “The Remedy,” for any loss of earnings incurred by
each of them as a result of their discharges effective on March 1,
1977.
(b) Offer to both of said employees immediate and
full reinstatement to their former jobs, or if the jobs no longer
exist, to substantially equivalent positions, without prejudice to
the seniority or other rights and privileges of each.
(c) Preserve, and, upon request, make available to the
Board and its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ascertain
the backpay due under the terms of this Order.
(d) Post in the plant at Tulsa, Oklahoma, copies of
the attached notice marked “Appendix.”!! Immediately upon
receipt of said notice, on forms to be provided by the Regional
Director for Region 16 (Fort Worth, Texas), the Respondent
shall cause the copies to be signed by one of its authorized
representatives and po..ed, the posted copies to be maintained
for a period of sixty consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within twenty days from the date of this Order, what
11 In the event the Board’s Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading “POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD.”
— C-30 —
steps the Respondent has taken to comply herewith.
Dated, Washington, D.C. May 31, 1978
S/S Herzel H. E. Plaine
Herzel H. E. Plaine
Administrative Law Judge
—D-1—
APPENDIX D
FMCS. 77K 11755
Discharge of Virginia Beekman
and Clifford Edgar
IN THE MATTER OF ARBITRATION
BEFORE WALTER L. GRAY, ARBITRATOR
THE INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL UNION 584
and
GOULD SWITCHGEAR DIVISION
(TERAC CONTROLS, INC.)
APPEARANCES
FOR THE COMPANY Mr Richard Barnes, Attorney
124 East Fourth Street
Tulsa, Oklahoma
FOR THE UNION Mr. Thomas F. Birmingham,
Attorney
416 Beacon Building
Tulsa, Oklahoma
AWARD IN ARBITRATION
The above matter came on for hearing as per agreement of
the parties at the office of the Union 584 South Lewis, Tulsa,
Oklahoma at 9:30 a.m., May 17, 1977. The system Board was
waived and it was agreed that the decision of the Neutral Ar-
bitrator Walter L. Gray of Oklahoma City, Oklahoma would be
the sole opinion. The hearing was completed the same day. A
transcript was taken of the meeting by way of tapes as provided
=~
by the company. A copy to be furnished to both the attorney for
the union and to the art.irator. It was agreed that the transcript
and the briefs would be in the mail to the arbitrator by June 17,
1977 and by agreement this was later extended to June 24th.
From the transcript of the proceedings and the briefs as filed by
the attorney for the Company and the Union this award is writ-
ten.
STATEMENT OF FACTS
The grievants were employees of the Gould Switchgear
Division (Terac Controls, Inc.) of Tulsa, Oklahoma. This com-
pany is a manufacturer of electrical assemblies and employs
about 125 or more. The company works two shifts. The day
shift begins at 7:30 and ends at 4 p.m. We are concerned in this
case with just the first shift.
On March | a short time after the employees went to work
they saw a picket walking in front of the plant. This caused
quite a bit of confusion among the workers until it was learned
that the picket was from a different unit of this union, but was
there as an informational picket. A union electrical contractor
had been making repairs at the plant for about 6 months and it
was learned that the Stewart Company was to be replaced by the
Houchin Electric Company, a nonunion electric company.
Then the question came up with the workers what to do in a like
situation as to staying on the job. There developed an idea
among the employees to have a meeting and to inquire more
about the situation. It was decided to have this meeting in the
lunch room of the company at the 10 o’clock break.
The grievant, Virginia Beekman, was the duly elected shop
steward for the manufacturing unit and the grievant Clifford
Edgar was Chairman of the Bargaining Unit. Mrs. Beekman
had been with the company for six and a half years. Mr. Edgar
on Sias
had also been an employee for some years. Both were at work
on March 1, 1977 at the plant of the company.
Shortly before the 10 o’clock break Mrs. Beekman ob-
tained permission from her superior to use the telephone and
called Mr. Clinton Shroufe, Business Agent of the union, and
asked his advice as what to do. It appears that she was told this
was a dispute aimed at Houchin Electric Company, and that the
picket was an informational picket as Houchin Electric Com-
pany had no contract with Local 584.
At the meeting in the lunch room there was a great deal of
discussion about what to do. The company and the union are
miles apart as to who was in charge of the meeting. It appears to
this arbitrator that it was a rump session with just about
everyone having his say. It does appear however that it was
decided to take some definite action, and the question at the 10
o’clock meeting was when. It seems that it was voted at this ses-
sion that the workers would wait until after quitting time at 4
p.m. and then make a positive action in connection with the
problem at hand. The company insists a vote was taken at 10:00
to strike immediately.
However, a number of witnesses testified at the hearing
that there was a second meeting at the bottom of the stairs
before the employees went back to work. That it was then voted
to go on strike immediately and this vote carried. It is admitted
that Mrs. Beekman did not attend this second meeting as she
was on the phone with Mr. Shroufe, but the company contends
that she answered questions and was very much at the first
meeting at 10 o’clock. The company contends that she was a
leader, if not in fact, that leader at this 10 o’clock meeting. The
union contends that while she was present that she did not at
any time advise a strike but said that each man should take his
Own position as to what to do.
afte
There is no question as to what happened then. After the
vote was taken to walk out, Mr. Whitten a company foreman in
the plant mounted the steps and told all those who had voted to
strike and clocked out that they should leave the plant and that
those who had not clocked out to immediately return to their
stations.
The result was that all of the employees left the plant at
once. However, the union contends that Beekman and Edgar
were the last to leave the plant.
That afternoon the company sent a telegram to all
employees telling them to report to work the next day and if
they did not they would be subject to discharge.
On the morning of March 2 Virginia Beekman and Clifford
Edgar reported to work. They were told by the foreman not to
clock in and were taken to the personnel director, Mr. Lewis
Ellis. They were told by Mr. Ellis that they had violated Section
XXII of the Contract between the company and the union.
They were told that they would be suspended without pay. A
number of witnesses were then interviewed by Mr. Ellis and on
March 10, 1977 both Mrs. Beekman and Mr. Edgar received
identical letters of discarge as of March 1, 1977.
It is as a result of these letters of discharge that the
grievance before us was filed by Mrs. Beekman and Mr. Edgar.
The union asks that the arbitrator order their reinstatement with
full pay, and all seniority as of March 1, 1977. The company
asks that the grievance of these two parties be denied in full.
COMPANY POSITION
The Issue
The issue as agreed to: “Did the Company violate the col-
lective bargaining agreement by discharging Virginia M.
—~D-5—
Beekman and Clifford E. Edgar? If so, what is the remedy?”
Article XVI
Discipline and Discharge
a. The Company has the right to discipline employees and
to effect discharges for cause without prior warning. However,
the Company will not discharge or demote any employee
because of unsatisfactory work without warning and affording
a chance to bring work performance to a level comparable with
that of other employees in the same classification.
An employee who is given such warning will be told that a
written memorandum of the warning has been placed in the
employee’s personnel file and the employee and the Shop
Steward will be given a copy of the memorandum.
Any employee who requests it will be permitted to have the
Shop Steward present during a reprimand.
Power of Arbitrator
The arbitrators will have power only to interpret the provi-
sions of this Agreement that are in dispute, and will have no
power to add to, subtract from, alter, modify or disregard any
of the terms of this Agreement or amendments or supplements
hereto.
An arbitration decision or award will be based only on the
specific provisions of this Agreement.
Article XXil
Strikes and Lockouts
In view of the procedure for the orderly settlement of
grievances provided under the terms of this Agreement, the
Union agrees that there will be no strike, work interference, or
other stoppage or slowdown of work, total or partial, during the
—C-22—-
employees so that he can immediately or within a short period
thereafter replace them with others willing to perform the
scheduled work.
Here, Respondent’s employees engaged in a sympathy
walkout and refusal to work behind or cross an informational
picket line. The informational picketing was legitimate under
Section 8(b)(7)(C). The picketing was directed at nonunion
electrical construction contractor Houchin Electric, informing
the public, on behalf of the construction members of the Union,
that Houchin had no collective bargaining agreement with the
Union. There was no evidence that the six-hour sympathy work
stoppage of Respondent’s manufacturing employees had any ef-
fect on Houchin Electric, let alone the substantial disruptive ef-
fect the Board would require to be shown when the legitimacy
of an informational picketing is challenged under the “effect”
clause of Section 8(b)(7)(C), Retail Clerks Union Local 324 et.
al. (Barker Bros., Corp. and Gold’s Inc.), 138 NLRB 478,
490-491 (1962).’
The six-hour work stoppage by Respondent’s employee’s
was therefore protected concerted activity under Section 7 of
the Act, and discharges founded upon participating therein
were in violation of Section 8(a)(1) of the Act.74
Respondent made no claim of justifying the discharges of
employees Beekman and Edgar under a balancing of the em-
ployer’s business needs against the employees’ rights (to engage
in the protected activity) under the Redwing Carriers doctrine
discussed above. On the contrary as discussed below, the
7 Indeed, Respondent provided no evidence in support of its claim of statutory
violations by the Union beyond the assertions thereof that were apparently the
same assertions before the Regional Director when he refused to issue com-
plaints against the Union on charges filed by Respondent, see heading D
above.
— C-23 —
Respondent selected the two employees for discharge not for
any economic reason but for allegedly violating a claimed
special duty owed by these two employees as elected union
representatives of the unit of employees.
2. Discrimination Against the Employee Union Representatives
Respondent requested each of the striking employees to
return tg work by the start of the next regular shift, or risk
discharge. All of the employees complied with the request and
were put back to work without penalty or talk of penalty, except
the two elected employees union representatives, Shop Steward
Beekman and Unit Chairman Edgar. These two employees were
first suspended and later discharged.
Out of the 85 strikers, Respondent selected these two
employees for discipline because, in Respondent's view, by vir-
tue of their status as elected shop steward and unit chairman,
respectively, they supposedly had a special responsibility and
higher duty than the other employees to take steps to prevent
rather than participate in the work stoppage.
Discharge for this reason was discriminatory under Section
8(a)(3) of the Act, and has been held so even where the walkout
was unprotected activity. In Precision Castings Co., 233 NLRB
No. 35, slip op. p. 4, 96 LRRM 1540, 1542 (1977), where the
employer disciplined only the union stewards following an
unauthorized walkout under the governing collective bargaining
7aEven if the walkout of the first day by Respondent’s employees were not
regarded as protected activity at its inception, Respondent condoned the con-
certed activity by its demonstrated willingness to forgive the unprotected
aspect of it in offering to accept, and accepting, the return of the employees
without discipline at the start of the shift on the second day, Super Valu
Xenia, 228 NLRB No. 156, slip op. p. 12 (1977); Confectionery and Tobacco
Drivers v. N.L.R.B., 312 F.2d 108, 113-114 (C.A. 2, 1963), enforcing M.
Eskin and Son, 135 NLRB 666; Brantly Helicopter Corp., 135 NLRB 1412,
1413, 1417-1418 (1962).
~ Cat
contract, the Board held that selecting for discipline the
employees who held the position of shop steward, assertedly
because they could be held to a greater degree of accountability
for participating in the strike, was discrimination directed
against an employee on the basis of his or her holding union of-
fice contrary to the meaning of Section 8(a)(3) of the Act. The
discipline was held to violate Section 8(a)(3) and (1) of the Act.
Respondent went a step further and accused employees
Beekman and Edgar not merely of participation but of leader-
ship in the walkout. However, the proof adduced at trial did not
sustain the accusation. Rather it appeared that the employees
assembled spontaneously in unorganized fashion on their morn-
ing break and discussed walkout to avoid working behind and
crossing the picket line. Beekman made clear to the employees
that they were acting individually, and Edgar asked them to
delay any walkout until the end of the day to allow time for
discussion between Respondent and the Union and avoidance of
a walkout. His request was initially agreed to, but was subse-
quently overridden by successive votes of the employees, and
Beekman and Edgar followed the rest of the employees in walk-
ing out of the plant.
Assuming that proven leadership by the two elected
employee representatives in connection with the sympathy
walkout might have been regarded as misconduct justifying
employer discipline including discharge, the discharges of these
two employees (who had participated in the protected sncerted
activity) based on unfounded accusations or mistaken beliei
that they engaged in strike leadership or misconduct, con-
stituted acts of interference, restraint, or coercion infringing
rights under Section 7 of the Act in violation of Section 8(a)(1),
N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 23 (1964).
The discharges of employees Beekman and Edgar were
~ 6s.
structions of Foreman Whitten to return to work when they had
failed to do so at the end of their scheduled break (Tr. 49, 208).
Each admitted total disregard of that instruction in violation of
Rule 7 of the posted Company Rules (TR. 49-50, 208). Each
also admitted the failure to get permission to leave the plant as
required by Rule 8 of the posted Company Rules (TR 49-50,
209). No contention was made by the Union that these
Grievants were unaware of the posted Company Rules. The
Rules had been posted continuously from their inception (Tr.
52, 53). In fact, Grievant Beekman participated in an arbitra-
tion case arising under both of these Rules (Company Exhibit
No. 3).
The Company has consistently applied summary discharge
to violations of posted Rules 7 and 8 (Tr. 99-103). See also Com-
pany’s Exhibits No. 3 and 4.
The Union may contend that the walkout would not have
occurred but for Whitten’s instructions. Grievants Edgars’
testimony shows that the decision to walkout had been made
prior to Whitten’s appearance at the meeting (Tr. 208). And
none of the employees had walked out prior to Whitten’s in-
structions (Tr. 139-140, 214, 221-222, 230).
Conclusion
The Collective Bargaining Agreement and the body of ar-
bitral law dictates that the grievances be denied.
2Union Exhibit No. 5 concerns denial of issuance of Complaint by the NLRB
on the initial secondary boycott charge filed by the Company. That denial is
on appeal because of the mandate in I.B.E.W. Local Union 502 v. N.L.R.B.,
341 U.S. 694 (1951). Two other charges have been filed which have not yet
been determined. Strikes with illegal objectives are unprotected under the Na-
tional Labor Relations Act. N.L.R.B. v. Sands Manufacturing Co., 306 U.S.
332 (1939); H. M. Newman, 85 NLRB 725 (1949); Thompson Products, Inc.,
72 NLRB 886 (9947). -
~
—D-10-
UNION POSITION
The union contends the evidence does not support the ac-
cusation that Beekman and Edgar led a plant-wide work stop-
page. Further the union contends the grievants’ conduct does
not violate Article XXII of the contract which says:
In view of the procedure for the orderly settlement of
grievances provided under the terms of this agreement,
the union agrees that there will be no strike, work in-
terference, or other stoppage or slow down of work,
total or partial, during the term of this agreement. (Em-
phasis Supplied)
The March | incident was not brought about in any way by
any grievance between the employees of Gould and the
employer. There was no issue of a contract violation for which a
grievance could be filed. There was a legal informational picket
informing the public the employer had a contractor in the plant
which did not have an agreement with the construction unit of
the 1.B.E.W.
Since Article XXII prohibits strikes or work stoppages,
based upon issues arising out of contract disputes, there was no
violation of Article XXII.
The union contends the company was responsible for the
walkout when it failed in its duty to fully inform the employees
of the consequences of a walkout and the failure of the com-
pany to effectively order the employees back to work.
The union contends the grievants were the only two union
officials in the unit, and they were dismissed because of their
position as union Officials, not because of their participation in
leaving the plant. The conduct of the grievants, Beekman and
Edgar, was no different than the conduct of the other 93 some
employees who left the plant on March Ist. Therefore, the
«p-11~
dismissal of Edgar and Beekman is an arbitrary and
discriminatory application of discipline. Both grievants had a
long work record without a blemish, and dismissal is too severe
a penalty for their conduct of March 1, 1977.
Proposition |
The grievants were terminated for leading a plant
wide work stoppage when in fact the evidence does not
indicate they led such a plant wide work stoppage.
Under the contract (Joint Exhibit 1), an employee cannot
be discharged except for cause, Article XXVI.
Both grievants, Beekman and Edgar, received the identical
letter of discharge, (Company Exhibit 5).
The termination of these two employees is bottomed in the
paragraph of that exhibit which states:
Most seriously, however, the evidence shows that you
were one of the leaders of a plant-wide employee work
stoppage on March 1, 1977, in violation of Article XXII
of our collective bargaining agreement. You have of-
fered us no acceptable excuse for your conduct,
Compariy Exhibit 5
The union contends there is no evidence which shows
Virginia Beekman and Clifford Edgar were “one of the leaders
of a plant-wide work stoppage.”
Of the 16 witnesses called or stipulated to in the arbitration,
including the company witnesses, not one ever stated the
grievants:
(1) Called either the lunchroom meeting or the bottom of
the stairs meeting on March 1.
(2) At either meeting told any employee that he or she
should leave the plant before the regular shift ended.
—-12-
(3) Encouraged, led or suggested to any employee they
participate in a work stoppage.
The walkout was in fact triggered by a statement made by
company foreman, Grover Whitten, who told the employees at
the meeting at the bottom of the stairs that those who had
clocked out were to go home and the others back to work.
It was at that point that the bulk of the employees walked
out of the building. At this stage Mrs. Beekman was 20 feet
away under the stairs and out of sight, talking on a telephone to
the local union hall to report what had transpired at the lunch-
room meeting.
Of all the witnesses listed by Mr. Ellis in his “investigation,”
not one of these witnesses testified at the arbitration hearing to
the effect that Mr. Edgar or Mrs. Beekman led, participated in
or encouraged a walkout of the Gould Company employees.
It is the union’s position that the grievants, Beekman and
Edgar, could not have led the walkout as charged in the ter-
mination letter above stated.
Proposition Il
The Company failed to fully inform the employees of
the consequences or discipline to be taken concerning
the incident of March 1st.
The record is unequivocal that no company supervisor at
any time, even though they were aware employee meetings were
taking place, ever gave the employees a direct order to go back
to work or suffer termination.
The top people in charge of personnel at the plant, along
with the foreman, took no affirmative steps to advise the
employees to go to work, took no affirmative steps to advise the
employees that a walkout would precipitate their discharge and
~$ita~
in fact encouraged the employees to leave the plant by the
statements that if you clocked out to go home, or that go home
because we don’t want you to get in trouble with the union.
These statements were not the type which should have been
given to a confused group of employees wondering what action
to take.
Therefore it was the company, not the shop steward or the
unit president, which in fact encouraged the employees to leave
the plant on March 1, 1977. The plant superintendent passed
within 5 feet of the group gathered at the bottom of the stairs
where the critical decision on whether to stay or leave was being
made. He could see a meeting was in progress during working
time. All it would have taken to get the group back to work was
for the superintendent to address the group and inform them
that they had to go back to work and that leaving the premises
would be a violation of a company rule.
Proposition Ill
The company’s decision to terminate the grievants
was not “for cause,” but represented an arbitrary and
discriminant application of punishment.
The evidence shows the entire 95 person work force that
appeared at the assigned time of 7:00 a.m. on March 1, 1977 did
leave the plant shortly after the scheduled 10:00 a.m. coffee
break. All those who left reported the next day for work at the
assigned time. Only two of the 95 were singled out for any type
of discipline, the two being the grievants, Beekman and Edgar.
The company during the hearing shifted its position from
the termination letter, which alleged Beekman and Edgar “led a
walkout,” to an accusation of negative leadership by the steward
and unit president.
The transcript also indicates that company officials, name-
=)
ly personnel director Ellis, plant superintendent Bellis and
foreman Whitten all had an opportunity to direct the work
force to stay in the plant but they did not do so. All had oppor-
tunities to directly order the work force back to their stations.
However, no plant official ever issued such an order.
Conclusion
The union contends the record, when read as a whole, does
not support the accusation that the grievants “were one of the
leaders of a plant-wide employee work stoppage on March 1,
1977,” that the employees did not have a “leader or leaders” dur-
ing the incident, but merely exhibited a confused reaction to an
informational picket being at the company on the date in ques-
tion. That the company itself was at fault and precipitated the
incident by having a foreman mount the stairs and address a
group of confused employees, telling them “those that had
clocked out could go home and those that hadn’t could go back
to work.”
Both the personnel director and the plant superintendent
had abundant opportunities to address the employees and order
them back to work or at a minimum, contact the grievants and
ask them to order the employees back to work. The evidence is
clear that management failed to perform either of these duties.
Finally, while admitting that the grievants did leave the
plant on March 1, 1977, they were but two of 95 employees
which also left the plant and none of the other employees re-
ceived any disciplinary action. That the grievants were dis-
charged because they were union officers, with the intent of the
company to discriminate against their union position. Further-
more, termination under the facts and the cases cited creates not
only an arbitrary selection of discipline, but is also too severe a
penalty for the conduct displayed.
~D-15—
Therefore, the union respectfully requests that the ar-
bitrator order the grievants, Virginia Beekman and Clifford
Edgar, reinstated with full back pay and full seniority to their
positions held on March 1, 1977 at Gould, Inc., Switchgear
Division, formerly Terac.
CONCLUSIONS OF ARBITRATOR
In this case we had a hearing that lasted from 9:30 a.m. un-
til 2:00 p.m. with no interruptions. This arbitrator wants to
thank both management and labor for such splendid co-
operation. The transcript taken at the hearing consisted of 238
pages all of which was read at least twice by the arbitrator to be
sure that he did not miss any important testimony.
Let me say in the very beginning that the actions of March
1, 1977 at the plant was an emotional blow up and certainly
nothing that anyone could look upon with pride and satisfac-
tion. I am sure that all parties involved, now that it is over,
would use more discretion should such a situation arise again.
Walking off a job must be considered to be a very serious mat-
ter. It must be admitted that interruption of work is destructive
of the industrial discipline on which our complex industrial
society rests. It is necessary to make this premise before pro-
ceeding with the body of the arbitrator’s award.
Discharge is recognized to be the extreme industrial penalty
since the employee’s job, his or her seniority, and accrued
benefits are involved. It is one of the most frequent cases to be
heard by an arbitrator unfortunately. All elements involved in
discharge cases must be considered with the greatest of care and
caution.
Certainly no arbitrator can dispel his own band of justice.
He is bound by certain limits. One of the first things that must
be considered is that in most agreements, as in the case at hand
—D-16—
are these words:
“The arbitrator will have power only to interpret the
provisions of this agreement that are in dispute, and will
have no power to add to, subtract from, alter, modify,
or disregard any of the terms of this Agreement or
amendments or supplements thereto.”
Some would interpret this so /iterally that there would be
no need for arbitration. That was never meant by making such a
provision in labor agreements.
Now let us go immediately to what might be the thrust of
this whole case. Are the terms of the agreement such that this
arbitrator cannot in any way consider discipline in its broad
sense or is he bound to so /iterally follow the agreement that he
has no choice but to uphoid the discharge of these two
employees? It is after a great deal of research of other awards
and court decisions that we must remember that in Article XXII
we find these words, “may be disciplined or discharged.” If we
must uphold the discharge as the only thing this arbitrator can
do, we might as well end the award here. But we are convinced
that we can very well consider the words “may be disciplined
or.” Feeling firmly that this arbitrator has this right to go into
the matter in depth it is the desire of this award to do so.
First, let us see what really happened on March 1. A lone
picket appeared in front of the plant. There was considerable
alarm among the employees. No one blames the employees for
being concerned. That is their right. However, instead of asking
Virginia Beekman and/or Clifford Edgar to go to management
and ask what this picket was doing out there after all it was
decided to have a meeting to take action. Certainly Mrs.
Beekman and Mr. Edgar did not show any great measure of
leadership in not making an effort to find out from the com-
pany what the facts were and then to call their business agent,
-D17—
Mr. Shroufe, for his advice. This was a breakdown in labor rela-
tions as it should be. This arbitrator must be fair in stating that
he feels that all 80 or 90 workers that day were equally at fault.
But Mrs. Beekman and Mr. Edgar had a duty to perform and
there is a great deal of confusion as to what really did happen on
their part. Certainly there was a meeting at 10:00 a.m. and it is
agreed Mrs. Beekman and Mr. Edgar were there and voted to
walk out.
We now come to the big question that must have real
significance. Did either of them call this meeting or was it a
hastily called gathering and not in fact a called meeting of a
union? We must find it was not a meeting called by either of-
ficer as such.
While there is some confusion as to the result of that first
meeting at 10:00 a.m., this arbitrator feels that a vote was taken
and carried to wait until after 4:00 o’clock and have a meeting to
properly consider the matter of a walkout. In just a very few
minutes this vote was overturned by a voice vote at the bottom
of the stairs and it was decided to walk out at once. This was no
decision that would warrant a blue ribbon for performance and
we feel most labor members now agree. It is agreed by both par-
ties Mrs. Beekman was not at this meeting at the bottom of the
stairs but was on the telephone talking to Mr. Shroufe, Business
Manager, but Mr. Edgar was present.
What happened next is not clear to this arbitrator. The
union says that Foreman Whitten approached the group and
told them that those who had clocked out to leave the premises.
The company says it was not a demand, it was a request. But
one thing is agreed upon, they all left the plant including Mrs.
Beekman and Mr. Edgar whom the union says were the last to
leave. Here the question must come up is whether the Foreman
had used a little more diplomacy in his approach might this not
— D-18—
have kept a mass exodus from taking place? Neither side agrees
to my theory.
We skip the details that followed. All parties did report
next day and Mrs. Beekman and Mr. Edgar were notified that
they had been suspended without pay pending further investiga-
tions. We are convinced that Mr. Ellis is a splendid, upright
man, and that he did make an investigation which resulted in
the discharge of the two grievants. The Courts have held that in
the case of an illegal strike that an employer is not required to
deprive itself of the services of all its employees. This would be
‘industrial and financial suicide both for the company and for
the families of the employees. Therefore, we do not blame Mr.
Ellis for taking disciplinary action against Mrs. Beekman and
Mr. Edgar but we do reserve the right to discuss the severity of
such action.
There are several questions that need to be asked and
answered.
1. Did the company have the right to discipline Virginia
Beekman and Clifford Edgar, and did the agreement existing
between management and labor give the company that right?
The answer must be yes without a question.
2. Did management and labor miss the opportunity to sit
down and discuss the picket and why he was there in the first
place. Might this have avoided the walkout?
The answer again is yes and both parties should know that by
now.
3. Was there a good working arrangement between the
union and this company.
Answer. Yes there was every evidence of it on the surface, at
least.
4. Was it a mistake to punish two people when all were
— D-19—
equally to blame in the walkout? Answer. Ne. It would have
been wrong and financially a loss to have disciplined all the peo-
ple involved.
5. Is there any evidence that Mrs. Beekman and Mr. Edgar
had been disciplined before?
Answer is no.
6. Did Mr. Clifford and Mrs. Beekman show a lack of
leadership in this instance.
Answer. We must say they did, and we feel it was due from lack
of experience however.
7. Was Mrs. Beekman in the meeting at the bottom of the
Stairs and did she vote for an immediate walkout?
The answer is no. She was on the phone talking to Mr. Clinton
Shroufe, but she did not walk out.
8. Did Mr. Edgar take the lead in forcing a strike or was he
more or less negative.
Answer. The only answer that this arbitrator has is that Mr.
Edgar was there at all times and must share the blame regardless
of his negative leadership.
9. Was discharge too severe in this case or would suspen-
sion have been more in order?
The answer is yes. Discharge was too severe and we shall dwell
on reasons in the lines that follow.
In support of my decision to hold that discharge was not
the proper thing to do may I cite the following awards and deci-
sions to sustain my position.
Brush Pottery Co., and International Brotherhood of
Pottery Workers
CCH Labor Arbitration Awards #8120 76-1 ARB
Protective Treatments Inc. and United Automobile etc.
#8593 73-2ARB
—~D6-
term of this Agreement.
An employee or employees who participate in any such ac-
tion in violation of this Agreement may be disciplined or
discharged from the Company’s service, subject to the employ-
ee’s right to submit a grievance alleging improper discharge in
accordance with the provisions of Article XX, Section 3,
paragraph (c) of this Agreement.
The Union agrees that it will take immediate, positive ac-
tion to forestall or suppress any action on the part of employees
in violation of this Agreement.
The Company will not lock out any employee or employees
while this Agreement is in force.
Article XXiil
Management Rights
All management rights and functions not expressly and
=<
7. Insubordination, including (a) refusal to perform
work assigned, except refusal to do any acts which
would subject him to discharge under any of the
other offenses herein listed; (b) failure to perform
work assigned; or (c) malicious use of profane or
abusive language toward fellow employees or toward
those in supervisory positions.
8 . Absence from duty without notice to and permission
from his immediate supervisor.
* * *
Failure of union leadership to act effectively to prevent an
iilegal walkout will, alone, justify discipline. Herrud Co., 66 LA
682 (Keefe, 1976); Seabright Co., Inc., 53 LA 154 (Belcher,
1969); Stockham Pipe Fittings Co., 4 LA 744 (W. McCoy,
1046); Bethlehem Steel Co., 2 LA 194 (Shipman, 1945).
= a ~ I
atin
two prior arbitrators (Company Exhibit No. 3 and Company
Exhibit No. 4).
Those courts have dealt with the issue, have universally
held that the arbitrator has no power to reduce the penalty
where the contract grants to the employer the option to
discharge participants in wildcat strikes.
“The reservation of a right to either discipline or
discharge for cause, would be wholly ineffective and
meaningless if the employer’s action, pursuant to such
right, is subject to review by an arbitrator on the basis of
appropriateness. If the reserved right is construed to
mean that the employer can take no disciplinary action
in excess Of a reprimand, except at its own risk and sub-
ject to severe penalties in case the arbitrator should later
be of the opinion that some milder action is appropriate,
the effect would be that the employer’s inherent right
which has not been expressly relinquished by contract is “*
not right at all.” che?
ey
— D-20—
CCH Reports
U.S. Steel Corp. 49LA 1236
Mississippi Lime Co. 29L.A. 559
Southern Bell Tel. Co. and Telegraph Co. 25 L.A. 85
Valley Steel Casting Co. 22 L.A. 520
United Air Lines Inc., 19 L.A. 585 McInerney Spring
and Wire Co. 21 L.A. 80
Gulf States Tel. Co. vs. Local 1692 416 F 2nd 198
Arbitrator Kesselman in 54 L.A. 145
Gerber Products Co. 46 L.A. 956
Teleddyne Isotopes and United Plant Guard etc. CCH
Labor Reports 76-1 #8119 ;
Morris Bean vs. U.S. Steel Workers CH Reports
74-1ARB #8068
Powermatic vs. Houdaillie 65 L.A. 1245
Bendix Corp. vs. Laborers District Council etc. 61 L.A.
149 :
Hoosier Panel Co. Inc. vs. International Pottery etc. 61
L.A. 981 47 L.A. 890 -25 L.A. 90 L.A. or 25 L.A. 85-87
We feel that the Amanda Bent Bolt vs. UAW i594 so often
cited does not apply in this case since we have the added word
discipline to deal with, and, therefore this arbitrator is not
dispensing his band [sic] of justice but is following the law.
Both Mr. Ellis and Mr. Shroufe had a hard matter to settle.
Mr. Ellis must see that order is maintained in his plant and he is
to be commended for so doing. Mr. Stroufe certainly did not
order a walkout and could not be the movant in the walkout,
but did the best he could for his union. Where then is the blame
for this incident? We feel that better labor relations could and
should exist between this company and this union, and that
every effort should be made to prevent anything like this taking
place again. This is not an order as I have no right to make such
— D-21-—
an order but I feel deeply this strike could have been averted.
Elkouri and Elkouri in their 1973 edition How Arbitration
Works sets forth reasons why discharge is in many instances
may be too severe a penalty for the offense under the cir-
cumstances of the case— page 613. We feel that this is exactly
the case here.
Not to be too verbose in this award this arbitrator feels that
a suspension of 60 days for both Mrs. Beekman and Mrs. Edgar
would be sufficieat punishment and it is so ordered. This would
be no pay from March 1 to May 1, but payment thereafter at the
salary paid at the time of the walkout, or on March 1, 1977. We
feel a penalty of discharge is too severe in a case involving facts
such as were present in this case, but discipline for 60 days is en-
tirely justified.
Award
The arbitrator makes the following award in connection
_with the parties in this case.
1. He finds that both Virginia Beekman and Clifford
Edgar were in fact guilty of insubordination on March 1, 1977
in walking out of the plant as they did and under the cir-
cumstances involving an illegal walkout.
2. This arbitrator finds that the actions of walking out on
March | at the plant of the company was an illegal act and it is
to be regretted that only two people must pay the penalty for
their combined efforts.
3. This arbitrator feels that there should have been some
action on the part of labor and/or management to have had a
joint meeting and not let this matter get out of hand as it did.
Both must accept some blame for the final results. Jt could have
been avoided.
Ls
Fy
— D-22—
4. While the employees Virginia Beekman and Clifford
Edgar did violate the agreement and the posted rules 7 and 8 of
the company yet a discharge of the 2 parties was too severe. It is
thereby ordered that Virginia Beekman and Clifford Edgar be
and they are suspended for a period of 60 days from March 1 to
May 1, 1977 and without pay. Pay for both shall begin on May 1
when they shall be considered to have returned to their positions
at the same rate of pay when action was taken against them.
Each Grievant reinstated shall have full rights of seniority and
fringe benefits unaffected by the discharge but consistent with
other provisions of the Agreement respecting period of
disciplinary suspensions.
This award is dated July 8, 1977 at Oklahoma City,
Oklahoma.
S/S Walter L. Gray
Walter L. Gray,
Arbitrator
eat
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.