# Petition — Brown Boveri Electric, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1512%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 930 ## Text Ofice .s inrame CC VGPrCHie UCOUur : es t, U.S. 80-1589 | a Pace nal | MAR 18 1991, i a XA - ame STEVAS, + 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1512%3A1. Public record. Not legal advice.