Petition for Writ of Certiorari — TNS, Inc. v. Oil, Chemical & Atomic Workers International Union

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TIL aD

942067 WH 19/a

—

In The

Supreme Court of the United States

October Term, 1994

TNS, INC.

Petitioner,

OIL, CHEMICAL & ATOMIC WORKERS

INTERNATIONAL UNION, AFL-CIO,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

WiiuiaM M. EARNEST,

Counsel of Record

for Petitioner TNS, Inc.

and

Rosert L. THOMPSON

Mark D. HALVERSON

Of Counsel

ELARBEE, THOMPSON & TRAPNELL

229 Peachtree Street, N.E.

Suite 800

Atlanta, Georgia 30303

(404) 659-6700

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

27 50¢e

STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

REQUIRED BY S. CT. RULE 14.1(a)

Consistent with administrative review principles

developed by this Court and circuit courts of appeals,

may a Decision and Order of the National Labor Rela-

tions Board, which meets all the criteria for a reviewable

final agency action set forth in 29 U.S.C. §§ 153(b) and

160(f), be set aside and remanded by a United States

Circuit Court of Appeals on grounds that a two-member

plurality opinion does not provide a “discernable” basis

for review of the Decision and Order?

LIST OF ALL PARTIES TO PROCEEDINGS BELOW

REQUIRED BY S. CT. RULE 14.1(b)

1. Oil, Chemical & Atomic Workers International Union,

AFL-CIO

2. National Labor Relations Board

3. TNS, Inc.!

1 List Required by S. Ct. Rule 29.1 Naming All Parent Com-

panies and Subsidiaries of TNS, Inc.: TNS, Inc., incorporated in

and by the State of Tennessee, is a wholly-owned subsidiary of

Aerojet-General Corporation (an Ohio corporation), which is a

wholly-owned subsidiary of GenCorp Inc. (an Ohio corpora-

tion).

iii

TABLE OF CONTENTS

Page

STATEMENT OF QUESTIONS PRESENTED ........ i

LIST OF PARTIES TO PROCEEDINGS BELOW....... ii

REFERENCE TO REPORTS OF OPINIONS BELOW... 1

STATEMENT OF GROUNDS FOR INVOKING JURIS-

ree Oe eee CQUET..,... .. 1

STATEMENT OF CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES AND REG-

i gh HAS TS SR aa ene ae ene 2

STATEMENT OF THE CASE...................... 4

STATEMENT OF BASIS FOR FEDERAL JURISDIC-

Sang IER ES RRR aie ial inet 7

REASONS RELIED ON FOR THE ALLOWANCE OF

ect ieee ch FEE OEE UE pe eee 7

In Accordance with Statutory Authority and the Deci-

sions of this Court and of Circuit Courts of Appeals,

the Plurality Opinion was a Discernable and Defens-

ible Rationale for a Final Decision of the Board which

the Panel was Obligated to Review................ 7

EMINENT O52) Fst eis oven 18

vents wien pups, oe oO Re LES A Regs BERLE OS App. 1

TABLE OF AUTHORITIES

Page

Cases

Avecor, Inc. v. NLRB., 931 F.2d 924 (D.C. Cir. 1991) .... 16

Bell v. New Jersey, 461 U.S. 773 (1983) .............- 12

~ *Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667: (1906) oc vik snes ci cei cee rece eds 9, 11, 18

*Bowman Transportation, Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 281 (1974) ........... 17

Burlington Truck Lines, Inc. v. United States, 371

U.S. TSG: CROGBY sak os 50h bis Crp ae Vee ek Fa eee 14

*Communications Workers of America, Local 5008 v.

NLRB, 784 F.2d 847 (7th Cir. 1986)................ 17

*Communist Party of the United States v. Subversive

Activities Control Board, 367 U.S. 1 (1961)....... 17, 19

Darby v. Cisneros, __ U.S. __, 125 L. Ed. 2d 113

(AGS) cis ob Ekin cud Save oh 66 Cee oe ee es 12

Dubuque Packing Co., Inc., 297 N.L.R.B. 499 (1987) .... 15

*FTC v. Flotill Products, 389 U.S. 179 (1967).......... 12

Mohawk Liqueur Co., 300 N.L.R.B. 1075 (1990)....... 10

*NLRB v. Internat’! Union of Operating Engineers,

Local 138, 293 F.2d 187 (2d Cir. 1908). 32- 25. 5a5.. 18

*NLRB v. Milgo Industrial, Inc., 567 F.2d 540 (2d

AE yo 8 8 BRIER IRS tg Peper ist, hls Bats Se a ge 18

*NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st

Che: SOS) iki 2 SES EE IS 18

Oil, Chemical and Atomic Workers International

Union, AFL-CIO v. NLRB, __, U.S. App. __, 46

ae Ks Ce OM vk hoc eso cit eckies L, 6. 13,15

TABLE OF AUTHORITIES - Continued

*Photo-Sonics, Inc. v. NLRB, 678 F.2d 121 (9th Cir.

MOMEB hs Pa IaE s bas VO okk Fok bd Go 12

TNS, Inc., 309 N.L.R.B. 1348 (1992)............ Spay ae

United Food & Commercial Workers v. NLRB, 880

Wee 160s (A Cle tO 14, 15, 16

*Authorities upon which we chiefly rely are marked

with asterisks.

STATUTES

National Labor Relations Act, as amended (29 U.S.C.

§ 151 et seq.):

I oe ca ee he. 5 es

I 55 boi a, 4) 9,43; th

Wn Ns or ise ic ne ee 10

Labor Management Relations Act

(29 U.S.C. § 143):

NR ON es io oe sales Se ce as Se passim

OTHER AUTHORITY

2 The Developing Labor Law (P. Hardin ed. 3d ed.

sobs EERE ek PPE GLCP eS 13

REFERENCE TO THE REPORTS OF OPINIONS

DELIVERED IN THE CASE BY OTHER COURTS

AND ADMINISTRATIVE AGENCIES

REQUIRED BY S. CT. RULE 14.1(d)

The United States Court of Appeals for the District of

Columbia’s opinion below, Oil, Chemical and Atomic

Workers International Union, AFL-CIO v. NLRB, is reported

at__s, U.S. App. __, 46 F.3d 82, 1995 US. App. LEXIS

2747 (D.C. Cir. Feb. 14, 1995). The underlying National

Labor Relations Board decision is reported as TNS, Inc.,

309 N.L.R.B. 1348, 1992 NLRB LEXIS 1538, 142 L.R.R.M.

(BNA) 1046, 1992-93 NLRB Dec. (CCH) 17643 (1992).

This case was previously before the D.C. Circuit with

regard to different issues. The D.C. Circuit’s decision

there is reported as Oil, Chemical and Atomic Workers

International Union, AFL-CIO v. NLRB, 256 US. App. D.C.

370, 806 F.2d 269, 123 L.R.R.M. (BNA) 3129, 105 Lab. Cas.

(CCH) 12091 (D.C. Cir. 1986). The Board’s decision on

remand is reported as TNS, Inc., 288 N.L.RB. 20, 1988

NLRB LEXIS 53, 128 L.R.R.M. (BNA) 1049, 1987-88 NLRB

Dec. (CCH) 19252 (1988).

There are no other related cases of which counsel is

aware before any other court or agency, either pending or

decided.

STATEMENT OF GROUNDS FOR INVOKING

JURISDICTION OF THIS COURT

REQUIRED BY S. CT. RULE 14.1(e)

The date of the opinion and order sought to be

reviewed is February 14, 1995. The date of the order

denying rehearing in the case is April 24, 1995. The date

of the entry of the judgment is May 25, 1995.

This Court has jurisdiction to review the judgment of

the D.C. Circuit pursuant to 28 U.S.C. § 1254(1).

STATEMENT OF CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES,

AND REGULATIONS

REQUIRED BY S. CT. RULE 14.1(f)

Labor Management Relations Act § 502, 29 U.S.C. § 143

Nothing in this chapter shall be construed to require

an individual employee to render labor or service with-

out his consent, nor shall anything in this chapter be

construed to make the quitting of his labor by an individ-

ual employee an illegal act; nor shall any court issue any

process to compel the performance by an individual

employee of such labor or service, without his consent;

nor shall the quitting of labor by an employee or

employees in good faith because of abnormally dan-

gerous conditions for work at the place of employment of

such employee or employees be deemed a strike under

this chapter.

National Labor Relations Act § 3(b), 29 U.S.C. § 153(b)

(b) The Board is authorized to delegate to any

group of three or more members any or all of the powers

which it may itself exercise. The Board is also authorized

to delegate to its regional directors its powers under

section 159 of this title to determine the unit appropriate

for the purpose of collective bargaining, to investigate

and provide for hearings, and determine whether a ques-

tion of representation exists, and to direct an election or

take a secret ballot under subsection (c) or (e) of section

159 of this title and certify the results thereof, except that

upon the filing of a request therefor with the Board by

any interested person, the Board may review any action

of a regional director delegated to him under this para-

graph, but such a review shall not, unless specifically

ordered by the Board, Operate as a stay of any action

_ taken by the regional director. A vacancy in the Board

shall not impair the right of the remaining members to

exercise all of the powers of the Board, and three mem-

bers of the Board shall, at all times, constitute a quorum

of the Board, except that two members shall constitute a

quorum of any group designated pursuant to the first

sentence hereof. The Board shall have an official seal

which shall be judicially noticed.

National Labor Relations Act § 10(f), 29 U.S.C. § 160(f)

(f) Any person aggrieved by a final order of the

Board granting or denying in whole or in part the relief

sought may obtain a review of such order in any United

States court of appeals in the circuit wherein the unfair

labor practice in question was alleged to have been

engaged in or wherein such person resides or transacts

business, or in the United States Court of Appeals for the

District of Columbia, by filing in such a court a written

petition praying that the order of the Board be modified

or set aside. A copy of such petition shall be forthwith

transmitted by the clerk of the court to the Board, and

thereupon the aggrieved party shall file in the court the

record in the proceeding, certified by the Board, as pro-

vided in section 2112 of Title 28. Upon the filing of such

petition, the court shall proceed in the same manner as in

the case of application by the Board under subsection (e)

of this section, and shall have the same jurisdiction to

grant to the Board such temporary relief or restraining

order as it deems just and proper, and in like manner to

make and enter a decree enforcing, modifying and

enforcing as so modified, or setting aside in whole or in

part the order of the Board; the findings of the Board with

respect to questions of fact if supported by substantial

evidence on the record considered as a whole shall in like

manner be conclusive.

STATEMENT OF THE CASE

The case arose from TNS, Inc.’s (“TNS”) decision to

permanently replace employees who had engaged in a

work stoppage immediately following the expiration of

the existing collective bargaining agreement on April 30,

1981. The collective bargaining representative, the Oil,

Chemical & Atomic Workers International Union, AFL-

CIO (“Union”), filed unfair labor practice charges alleg-

ing, inter alia, violations of National Labor Relations Act

(“NLRA”) Sections 8(a)(1) and (3). The Union claimed

that the employees could not be permanently replaced

because they were engaged in a work stoppage over

conditions alleged to qualify as “abnormally dangerous”

under Labor Management Relations Act (“LMRA”) Sec-

tion 502. More specifically, the Union argued that the

employees had walked out over management's alleged

failure to address employee concerns about exposure

levels for carcinogenic and toxic dust particles produced

by the manufacturing processes used by TNS. Although

the Union’s theory concerning Section 502’s insulation of

the employees from permanent replacement was entirely

novel, the National Labor Relations Board’s General

Counsel adopted the Union’s premise in an unfair labor

practice complaint filed in August of 1982.

After hearings on the matter in 1983 and 1985, an

Administrative Law Judge finally issued a decision and

recommended order on July 21, 1987 in which she found

against TNS. The full National Labor Relations Board

(“NLRB” or “Board”), sitting with a quorum of four

members, reversed the Administrative Law Judge by a

3-1 vote and issued a Supplemental Decision and Order

(“Board’s Decision”) on December 23, 1992 dismissing the

complaint on grounds that the strike was not a work

stoppage within the meaning of LMRA Section 502. The

Board reasoned that, in the absence of any protection

which Section 502 might have provided the strikers from

the normal rules relevant to economic strikes, the

employees could be lawfully permanently replaced.

The Board majority was comprised of a two-member

plurality and a one-member concurrence, each of which

developed and applied separate tests for determining

Section 502’s coverage in the context of employee expo-

sure to carcinogenic or toxic substances. The plurality

(“Plurality”) held that under a two-pronged objective test

the General Counsel had failed to show that the

employees reasonably believed conditions were “abnor-

mally dangerous” at the time of the walkout. See TNS,

Inc., 309 N.L.R.B. 1348, 1355-61 (1992). The concurrence

(“Concurrence”) held that Section 502 was inapplicable

regardless of whether the conditions at issue were

“abnormally dangerous.” See id. at 1368-71. Citing the

language of Section 502 and Supreme Court interpreta-

tion thereof, the Concurrence held that when, as in this

case, the conditions at issue were not the “sole cause” of

the work stoppage, the mixed-motives of the employees

‘for the work stoppage took it outside the scope of Section

502. Based upon these two opinions, the Board’s 3-1

majority dismissed the complaint against TNS.

Subsequently, the Union timely filed a Petition for

Review of the Board Decision with the United States

Court of Appeals for the District of Columbia Circuit

(“D.C. Circuit”). On February 14, 1995, a three-judge

panel (“Panel”) issued an Opinion and Order remanding

the case to the Board. Oil, Chemical & Atomic Workers,

Internat’l Union, AFL-CIO v. NLRB, 46 F.3d 82 (1995).

Although the Panel reviewed and rejected the Concur-

rence to the Board’s December 23, 1992 Order, it flatly

refused to consider the admittedly “defensible” grounds

set forth in the Plurality’s opinion. The Panel justified

ignoring the Plurality’s extensive and well-developed

rationale for dismissing the complaint by citing the fact

that it was supported by only two of the four members

hearing the case. Based upon this reordering of the votes

cast by the Board members, the Panel held simply that

the Board’s Order was not reviewable because “the

Board’s position on the underlying substantive issue can-

not be discerned. ...” Id. at 84. The Panel thereafter

remanded the case to the Board to “articulate a majority-

supported statement of the rule that [it] will be applying

now and in the future . . . in determining the applicability

of Section 502 in the context of occupational exposure to

low-level radiation.” Id. at 92. [citation and internal

quotes omitted]. Following denial of TNS’ Petition for

Rehearing and Suggestion for Rehearing En Banc on April

24, 1995, TNS filed the instant Petition for a Writ of

Certiorari.

STATEMENT OF BASIS FOR

FEDERAL JURISDICTION

REQUIRED BY S. CT. RULE 14.1(i)

The basis for federal jurisdiction in the court of first

instance in this matter was NLRA Section 10(f), 29 U.S.C.

Section 160(f).

REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT

In Accordance with Statutory Authority and the Deci-

sions of this Court and of Circuit Courts of Appeals, the

Plurality Opinion was a Discernable and Defensible

Rationale for a Final Decision of the Board Which the

D.C. Circuit was Obligated to Review.

If allowed to stand by the Supreme Court, the Panel’s

opinion in this case will artificially restrict access to judi-

cial review and undermine the administrative process by

permitting a court of appeals to bypass reasoned and

open review in favor of a selective and silent disregard-

ing of disfavored but legally sound bases for final agency

action. Supreme Court intervention under the Court’s

»2cognized power to supervise the United States courts of

appeals is thus required to prevent the D.C. Circuit from

establishing a form of administrative remand which con-

flicts with established doctrines in the area and which

will be a serious hindrance to effective administration of

all federal laws wherein agency decisionmaking is subject

to judicial scrutiny.

The discussion below is divided into three parts.

First, the discussion details the internal analytical flaws

in the Panel’s reasoning in relation to a circuit court's

obligation to provide full review of a final agency order.

The discussion then examines the Panel’s attempt to jus-

tify remand by analogizing this case to other instances

wherein cases have been remanded to the Board for fur-

ther proceedings. The discussion concludes by showing

that the Panel’s approach is both unsupported by general

remand practice and is in conflict with principles devel-

oped by both this Court and the other Circuit Courts of

Appeals relating to agency reliance on multiple grounds

for an action.

Concerning the analysis utilized in the opinion

below, the Panel inexplicably reviewed and rejected one

of the Board Decision’s supporting opinions, but then

professed not to be able to review the other opinion

because its existence had somehow been rendered

“undiscernible.” TNS submits that the Panel’s reasoning

in this regard is not a viable basis for remanding the case

to the Board.

The Panel advanced two interlocking grounds for

finding that no reviewable Board action had taken place

under these circumstances; i.e., that the Concurrence was

legally unsound and that, as a consequence of this

unsoundness, the remaining Plurality need not be

reviewed as it was supported by “only” two of the four

Board members. Nevertheless, it is clear that the first of

these purported grounds is insubstantial. The Panel’s

harsh criticism of the legal basis for the Concurrence

cannot in any sense support its dramatic leap of logic to

the conclusion that the Plurality opinion should be

rejected without comment. This flaw is obvious from the

fact that only two of four votes would have supported the

Plurality position even had the Concurrence adopted a

legally “defensible” alternative rationale for its position.

Accordingly, the Panel’s selective attack on the Concur-

rence provides no actual logical support for its second

conclusion that the case should be remanded in lieu of

reaching the merits of the Plurality view. In effect then,

the Panel simply held that a plurality-supported decision

of the Board is the equivalent of no decision at all.

;

The Panel’s discarding of the Board’s Decision

because it was only plurality-supported fails to overcome

the strong presumption of reviewability which attaches to

the final actions of the Board or any federal agency. A

fundamental guarantee of both the National Labor Rela-

tions Act and the federal administrative scheme in gen-

eral is the right of parties to the administrative process to

seek timely and complete judicial review of an agency’s

final order. See Bowen v. Michigan Academy of Family Physi-

cians, 476 U.S. 667, 670-71 (1986) (noting “strong pre-

sumption” that Congress intends judicial review of

administrative action, which should be restricted only on

clear and convincing evidence of contrary legislative

intent). In this regard, NLRA Section 10(f) no where

provides that a Circuit Court may sidestep complete

review of the NLRB’s disposition of a case and substitute

a requirement that an otherwise final and valid agency

action be reopened to produce a vote count more to the

Circuit Court’s liking. Rather, upon filing of a petition for

review, a Circuit Court has the power to “make and enter

a decree enforcing, modifying, and enforcing as so mod-

ified, or setting aside in whole or in part the order of the

‘ Board....” 29 U.S.C. § 160(f). In this case, however, the

Panel did none of these things and chose instead to

disturb the finality of the Board’s action by remanding

the case for another, different decision and order, thereby

effectively nullifying the Board’s initial decision simply

because it was comprised of a plurality opinion and a

concurring opinion.

The Panel’s insistence on a Board rationale supported

by a unanimous majority was based upon a subtle and

disingenuous blurring of the analytical lines between the

issue of the Board Decision’s subsequent precedential

value (for which remand to the Board is not warranted)

and the issue of whether reviewable agency action has

taken place (which could support remand where a defini-

tive final action is absent). The only support which the

Panel could muster for its proposition that no “discern-

able” test had been articulated by the Plurality was a

reference to a footnote in Mohawk Liqueur Co., 300

N.L.R.B. 1075, 1075-76 n.3 (1990), enforced sub nom. General

Indus. Employees Union, Local 42 v. NLRB, 293 U.S. App.

D.C. 41, 951 F.2d 1308 (D.C. Cir. 1991):

In [a prior case] the Board plurality opinion

rejected this doctrine, but there was no holding

on the issue because the vote was split 2-2 on

this point.

Oil, Chemical and Atomic Workers Union, 46 F.3d at 91 1. 5

(internal quotes omitted). Although miscast in terms of

reviewability, the Panel’s only substantive concern was

obviously that the Board’s Plurality decision, even if

defensible policy, will be viewed only as persuasive,

rather than dispositive, authority on the Section 502 issue

presented in the case. However, the Panel’s premature

speculation on whether or not the Plurality opinion

within the TNS majority will ultimately be treated as

controlling precedent in future Board cases is an irrele-

vant consideration to the Panel’s present refusal of the

judicial review to which the parties are entitled to under

NLRA Section 10(f). See Bowen, supra, 476 U.S. at 670-71

(strong presumption of reviewability rebuttable only on

clear and convincing evidence no review intended). In

the absence of a clear Congressional mandate to the con-

trary, such matters as the weight to give precedent are

best resolved through subsequent decisions of the Board,

not a remand to undo a final decision.”

The Panel herein did more than simply reject the

Concurrence’s reasoning as insufficient; the Panel actu-

ally rejected the Concurrence’s vote for dismissal of the

complaint and alchemized it into a dissenting vote. The

Panel’s revisionist calculus caused a 3-1 vote for dis-

missal to metamorphose into a 2-2 deadlock from which

no reviewable decision and order had supposedly issued.

See Oil, Chemical and Atomic Workers Union, 46 F.3d at 94.

2 Moreover, the reopening of a final Board decision in this

case is especially burdensome on the parties herein, who have

endured nearly fourteen years of administrative processing

before reaching this point.

TNS submits, however, that no substantial justification

for the Panel’s refusal to recognize and review the Plu-

rality opinion is presented by the fact that the lone dis-

senting vote in this case was opposed by two “defensible”

votes rather than three. Indeed, the Panel’s revisionism is

directly contrary to NLRA Section 3(b), which permits the

full Board to act on the majority-vote of as few as three

members; i.e. a position supported, as in this case, by as

little as a 2-1 margin is still a final act of the full Board.

See 29 U.S.C. § 153(b). Thus even accepting the Panel’s

view that “given its legal infirmity, the concurring opin-

ion can count for nothing in this case,” fully reviewable

final Board action still occurred because, of the three

“defensible” votes cast by the Board - constituting the

minimum statutory quorum for final action of the full

Board — a majority were cast in favor of dismissing the

complaint against TNS. See FTC v. Flotill Products, 389

U.S. 179, 185 n.9 (1967) (NLRB may act by simple majority

of quorum); Photo-Sonics, Inc. v. NLRB, 678 F.2d 121,

122-23 (9th Cir. 1982) (even if only 2 of 3 panel members

cast valid votes, decision still binding because quorum of

2 can act for panel).°

3 The Board’s Decision was clearly a fully reviewable order

under any of the tests this Court has used to discern final

agency action. For example, the parties had exhausted all their

administrative remedies with the issuance of the Board’s deci-

sion. See Darby v. Cisneros, __ U.S. __, 125 L. Ed. 2d 113, 127

(1993) (agency action reviewable after exhaustion of all manda-

tory intra-agency appeals). Further, there is no doubt that the

Board’s Decision definitively determined the rights and obliga-

tions of the parties concerning the strike at issue, and that

review did not in any sense disrupt any Board proceedings on

this matter. See Bell v. New Jersey, 461 U.S. 773, 778-80 (1983)

The Panel’s decision to remand the case to the Board

for a second balloting might have had some analytical

basis had it been the Plurality’s votes that were not

supported by a defensible opinion. In that case, only two

defensible votes would have been cast by the Board,

leaving a decision and order founded upon less than the

quorum majority minimally required by NLRA Section

3(b) for final Board action. This was decidedly not the

case, however. What the Panel simply failed to recognize

was that only one vote was cast in favor of upholding the

complaint, and categorically discounting the Concurrence

neither increased nor diminished the dissent in this regard.*

Indeed, the Panel never explains how the vote cast by the

(agency decision reviewable where judicial review not disrup-

tive and decision definitive statement which determines rights

of parties). Moreover, this case does not fall under any of the

recognized exceptions to the review available under NLRA

§ 10(f), 29 U.S.C. § 160(f); i.e., this case does not involve a Board

order determining an appropriate bargaining unit, a Board

order concerning a representation election, a Board order made

in connection with certification of a bargaining representative,

or a decision of the Board’s General Counsel not to pursue an

unfair labor practice charge. See generally 2 The Developing Labor

Law at 1878-1880 and 1896-1900 (P. Hardin ed. 3d ed. 1992).

Thus, this Court’s own authority on final agency action and the

plain language of Section 10(f) provide no basis at all for the

abridged judicial review accorded the Board’s Decision by the

Panel herein.

4 The Panel’s treatment of the Concurrence as an effective

dissent is all the more ironic in view of the Concurrence’s clear

disclaimers of any such status: “This is not necessarily to say

that I would [disagree with the Plurality and] find that the

‘abnormally dangerous’ test was met in this case. Nor is it to say

that I embrace all the views set forth in the relevant portion of

Member Deveney’s dissent.” TNS, Inc., 309 N.L.R.B. at 1368.

Concurrence, which it characterized as counting “for

nothing,” may nevertheless be used by the Panel to

increase the number of dissenting votes. Whether the

Decision and Order is viewed as being a 3-1 ruling or a

2-1 ruling with one defective vote, the Panel simply had

no authority under NLRA Sections 3(b) or 10(f) to disre-

gard the finality of the Board's order dismissing the com-

plaint by remanding the case for reballoting.°

The Panel downplayed the significance of its reopen-

ing the case for a new vote by trying to analogize this

result to prior instances in which reviewing courts have

returned a case to the Board for a better elaboration of its

reasoning. See, e.g., Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 167-68 (1962) (remand to agency

appropriate where agency failed to disclose basis for

order). However, the Panel’s actions herein are a signifi-

cant departure from that practice and in open conflict

with relevant authority of this Court and circuit courts of

appeals.

Under limited circumstances, reviewing courts have

remanded a case to the Board to clarify the Board’s posi-

tion on the reasons for a particular decision. The example

cited by the Panel in its opinion is United Food & Commer-

cial Workers v. NLRB, 880 F.2d 1422 (D.C. Cir. 1989). In

5 The inherent illogic in the Panel’s holding that the Plu-

rality was not “discernable,” 46 F.3d at 84 and 92, is underscored

by the fact that, by eliminating one of the two grounds support-

ing the majority vote, the Panel actually made it crystal clear

which rationale should subsequently by relied upon in any

future Section 502 cases.

that case, the Board had summarily affirmed an Adminis-

trative Law Judge’s recommended decision and order

without specifying which of three equally plausible legal

tests were being relied upon for the decision. In this

regard, the Board stated tersely:

Members Babson and Stephens find that,

under any of the views expressed in Otis Eleva-

tor Co., 269 NLRB 891 (1984), the Respondent

was not obligated to Bargain with the Union

over its decision to relocate unit work from its

Dubuque plant to its Rochelle plant.

Dubuque Packing Co., Inc., 297 N.L.R.B. 499, n. 1 (1987). On

a petition for review, the D.C. Circuit was, not sur-

prisingly, unable to ascertain the Board’s legal standard

regarding an employer’s duty to bargain with its

employees over a relocation decision because none was

articulated in the decision and order. See United Food, 880

F.2d at 1423, 1436. The court was simply left with a Board

conclusion that was consistent with some past decisions

but inconsistent with others. See id. at 1437-38.

None of the considerations supporting remand to the

Board in United Food and similar cases are present in the

case sub judice. Most notably, there was no attempt in this

case by either the Plurality or the Concurrence to reach a

result by summary affirmance or similar artifice designed

to avoid precisely indicating the policy underlying the

decision. Indeed, unlike United Food, the Plurality and the

Concurrence provided fully “discernable” and well

developed explanations for “which test [each] was rely-

ing on .. . [and] how the same result could be reached

under each of those tests.” Oil, Chemical and Atomic

Workers Union, 46 F.3d at 91.6 Moreover, because the

Section 502 applications discussed in the Board’s Decision

herein were issues of first impression, this is not a situa-

tion in which the Board was deviating from prior practice

or taking a position without attempting to distinguish

what appears to be controlling precedent. See, e.g., Avecor,

Inc. v. NLRB, 931 F.2d 924, 933 (D.C. Cir. 1991). Thus

uncertainties in Board reasoning which have previously

supported a remand to the Board are entirely absent from

this case. Had this been a situation in which later Board

decisions had wavered between the policies espoused in

the Plurality and Concurrence and failed to explain

coherently the legal standard purportedly being applied,

remand to the Board of those decisions might have been

justified under general remand practice.”

Moreover, not only does the Panel’s remand repre-

sent a serious deviation from remand precedents, but the

Panel’s approach in this regard cannot be reconciled with

6 As alluded to earlier in Note 5, by eliminating one of the

two grounds supporting the majority vote, the Panel actually

made next to impossible for even the most casual observer not

to be able to “discern” which test for Section 502 coverage

should be relied upon in any future such cases. In this context,

the Panel’s characterization of the Board’s reasoning as

“unfathomable”, id. at 88, is empty sophistry.

7 The Panel’s instructions to the Board on remand further

illustrate its deviation from accepted practice in this area. In

United Food, the D.C. Circuit urged, but did not require the

Board “to attempt to articulate a majority-supported statement

of the rule that the Board will be applying now and in the

future.” Id. at 1436-37. Here by contrast, the Panel has indicated

that it will not recognize as Board action anything short of a

majority-supported statement.

the principles recognized by this Court and several other

circuits concerning agency reliance on multiple grounds

for an action. For example, in Bowman Transportation, Inc.

v. Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974),

this Court reviewed a particular determination of the

Interstate Commerce Commission which was based upon

two independent grounds. While agreeing with the court

below that the first of these two grounds was insufficient

to support the Commission’s actions on the issue, this

Court held that the second reason permitted enforcement

of the Commission’s order. Id. at 287-88. Similarly, in

Communist Party of the United States v. Subversive Activities

Control Board, 367 U.S. 1 (1961), this Court held that

remand to an administrative agency for further proceed-

ings is necessary only when it is clear that the agency’s

action would not have been the same without the unsus-

tainable of several grounds for the underlying adminis-- ~~

trative determination. Id. at 67. Clearly, the Panel’s

remand of this case because of the invalidity of the sub-

sidiary reason of two offered by the Board majority for its

action conflicts with the preceding authority. As dis-

cussed above, the Plurality’s opinion is sufficient stand-

ing on its own to support final action of the Board. See

NLRA Section 3(b), 29 U.S.C § 153(b). Thus the fact that

the Panel below invalidated the reasons supporting the

Concurrence’s position, which were in no way relied

upon in the legally defensible Plurality opinion, simply

does not warrant the conclusion that remand for further

proceedings is at all proper. See also Communications

Workers of America, Local 5008 v. NLRB, 784 F.2d 847,

850-851 (7th Cir. 1986) (agency action should be sustained

if either of two independent grounds is correct; remand

only necessary when Board states single incorrect

ground); NLRB v. Internat’! Union of Operating Engineers,

Local 138, 293 F.2d 187, 199 (2d Cir. 1961) (enforcing

portions of cease-and-desist order which had basis inde-

pendent of invalid reasoning of Board); NLRB v. Reed &

Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir. 1953) (remand

not required where court satisfied agency's ultimate find-

ing likely to have been arrived at independent of erro-

neous findings) (cited with approval in NLRB v. Milgo

Industial, Inc., 567 F.2d 540, 545-46 (2d Cir. 1977)). TNS

submits that the Panel’s meager reasoning is simply too

slight a foundation to support its drastic and destructive

expansion of doctrines permitting limited remand to an

agency.

CONCLUSION

in view of the preceding, Supreme Court intervention

is necessary in this case under the Court's supervisory

jurisdiction to prevent the D.C. Circuit from establishing —

a particularly pernicious form of remand to an adminis-

trative agency. The Panel’s partial-review-and-discard

approach permits a reviewing court to ignore the statu-

tory mandates for judicial review and jettison without

comment legally defensible rationales for an otherwise

final agency action. Further, the Panel’s remand of a

Board decision for a new vote is based upon consider-

ations which are patently insufficient to overcome the

strong presumption in favor of review of administrative

actions. Bowen, 476 U.S. at 670-71. Finally, the Panel's

approach to remand conflicts with the practice of this

Court and circuit courts of appeals regarding agency

decisions based on multiple, independent grounds. See

Communist Party, 367 U.S. at 67. The parties on both sides

of the this unfair labor practice dispute have awaited a

final resolution of the matter for nearly fourteen years,

only to have the Panel reopen the case under the guise of

a standard of judicial review which should not be sanc-

tioned by this Court.

Respectfully submitted,

WituiaM M. Earnest,

Counsel of Record

Rosert L. THOMPSON

Of Counsel

Mark D. HALverson

Of Counsel

ELARBEE, THOMPSON & TRAPNELL

229 Peachtree Street, N.E.,

Suite 800

Atlanta, Georgia 30303

(404) 659-6700

Attorneys for Petitioner TNS, Inc.

APPENDIX

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197

199

App. 1

OIL, CHEMICAL AND ATOMIC

WORKERS INTERNATIONAL

UNION, AFL-CIO, Petitioner

Vv.

NATIONAL LABOR RELATIONS

BOARD, Respondent.

TNS, Inc., Intervenor.

No. 93-1299.

United States Court of Appeals,

District of Columbia Circuit.

Argued Nov. 30, 1994.

Decided Feb. 14, 1995.

Union petitioned for review of National Labor Rela-

tions Board (NLRB) decision which dismissed unfair

labor practice (ULP) complaint against employer based

on hiring of permanent replacements for employees

engaged in strike which allegedly began as protest over

abnormally dangerous working conditions. The Court of

appeals, Harry T. Edwards, Chief Judge, held that: (1)

workplace health and safety conditions did not have to be

“sole cause” of walkout in order for work stoppage to be

protected by Labor Management Relations Act (LMRA),

and (2) remand to NLRB was required for articulation of

majority-supported statement of rule it would apply.

Remanded.

On Petition for Review of an Order of the National

Labor Relations Board.

George H. Cohen, argued the cause for petitioner.

With him on the briefs were Jeremiah A. Collins and

Susan L. Carney.

App. 2

John H. Fawley, Atty., N.L.R.B., argued the cause for

respondent. With him on the brief were Howard E. Perls-

tein, Deputy Asst. Gen. Counsel, Linda R. Sher, Acting

Associate Gen. Counsel, and Aileen A. Armstrong, Dep-

uty Associate Gen. Counsel.

On the brief for intervenor were Robert L.

Thompson, William M. Earnest and Nancy F. Reynolds.

Douglas S. McDowell, entered an appearance for

amicus curiae Labor Policy Ass'n.

Mona C. Zeiberg, entered an appearance for amicus

curiae Chamber of Commerce.

Before: EDWARDS, Chief Judge, GINSBURG and

TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge

EDWARDS.

HARRY T. EDWARDS, Chief Judge:

The underlying question in this case is whether

employees who engage in a strike, which allegedly began

as a protest over “abnormally dangerous” working condi-

tions within the meaning of section 502 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 143

(1988), should be deemed unfair labor practice strikers, in

which case the employer would violate the National

Labor Relations Act (“Act” or “NLRA”), 29 U.S.C.

§ 158(a)(1), (3) (1988), by hiring permanent replacements.

In dismissing the complaint at issue, over the dissent of

one member, the Board’s decision was supported by a

two-member plurality opinion and a one-member concur-

rence. We find, however, that the concurring opinion is

founded on a construction of section 502 that is wrong as

App. 3

a matter of law. We are confronted, then, with a situation

in which the result reached by the Board is not supported

by defensible opinions from a majority of its members.

Because the Board’s position on the underlying substan-

tive issue cannot be discerned, we are constrained to

remand the case for further proceedings.

The initiating charges in this case were filed in 1981

and 1982 by the Oil, Chemical and Atomic Workers Inter-

national Union, AFL-CIO (“OCAW” or “Union”), against

TNS, Inc., for alleged unfair labor practices. The Union

claimed that TNS violated sections 8(a)(1) and (3) of the

NLRA 29 U.S.C. § 158(a)(1), (3), when the company per-

manently replaced a number of bargaining unit

employees engaged in a prolonged work stoppage,

allegedly precipitated by working conditions perceived to

be “abnormally dangerous” by the workers. A divided

NLRB dismissed the Union’s unfair labor practice

charges, ruling that the strike was not a section 502 work

stoppage and that, because the employees were economic

strikers, TNS had lawfully hired permanent replace-

ments.

Faced for the first time with applying section 502 to

the occupational hazards of the nuclear industry, the two-

member plurality and the concurring member developed

separate tests for demonstrating section 502 coverage in

the context of employee exposure to radioactive or toxic

substances. The plurality determined under its test that,

when the employees ceased working, they did not rea-

sonably believe that working conditions at TNS’s plant

were “abnormally dangerous” under section 502. The

concurrence found section 502 inapplicable because the

disputed health and safety conditions, even if abnormally

App. 4

dangerous, were not the “sole cause” of the work stop-

page. See TNS, Inc., 309 N.L.R.B. 1348, 1348-71 (1992)

(“NLRB Decision”). The Union now petitions for review

of the Board’s decision.

Because we conclude that the “sole-cause” test devel-

oped by the concurring Board member is clearly an

impermissible construction of section 502, we are left

with only the plurality’s interpretation of that section,

which is supported by less than a Board majority. As a

result, we are unable to discern the policy of the Board ina

case in which the entire Board purported to address the

underlying issue.’ We therefore hold that the Board has

not adequately articulated its policy in this case and that

its decision is thus not properly reviewable in this court.

I. BACKGROUND

A. Factual Background

TNS, Inc., an intervenor in this appeal, operates a

plant in Jonesboro, Tennessee. In 1981, when the present

dispute arose, TNS produced various forms of ammuni-

tion made from depleted uranium (“DU”). Approx-

imately one-hundred employees of TNS were members of

the bargaining unit represented by the Union. The collec-

tive bargaining agreement between OCAW and TNS was

effective through April 30, 1981.

1 At the time when this case was decided by the NLRB,

there were only four members on the Board.

App. 5

DU dust particles present in TNS’s manufacturing

process posed hazards to its employees as both a carcino-

genic and chemically toxic material. The inhalation or

ingestion of these radioactive particles exposed internal

tissues to the cancer risks associated with cumulative,

low-level radiation and were a toxic threat to the kidneys.

As a result, TNS’s plan was subject to the jurisdiction of

the United States Nuclear Regulatory Commission

(“NRC”). Pursuant to an agreement between the NRC

and the State of Tennessee, the Tennessee Division of

Radiological Health (“TDRH”) was responsible for licens-

ing Tennessee nuclear facilities and for promulgating reg-

ulations designed to protect workers from occupational

hazards in such facilities.2 TDRH also inspected subject

facilities to ensure compliance with its safety standards

and had authority to close a facility through license sus-

pension or revocation. As part of its oversight authority

over TDRH, NRC officials periodically accompanied

TDRH officials during plan inspections.

In order to comply with TDRH regulations, TNS uti-

lized a physical engineering airborne contaminant control

system to eliminate DU dust particles at their source.

Because the escape of some radiation into the work envi-

ronment is inevitable, TDRH also adopted standards for

* The agreement between the NRC and Tennessee was sub-

ject to termination or suspension if the NRC determined that

such action was necessary to protect the public health and

safety or that the state failed to comply with any requirement set

forth in the Atomic Energy Act’s provision providing for state

agreements. See 42 U.S.C. § 2021(j)(1) (1988).

App. 6

the maximum permissible concentration (“MPC”) of air-

borne DU particles. MPC represents the amount of air-

borne radioactive material beyond which no worker is to

be exposed for 40 hours per week for 13 weeks. TDRH

regulations required licensees, to the extent practicable,

to keep airborne contaminant levels below 25% of MPC.

If an employer’s engineering system was unable to

achieve such levels, TDRH authorized the use of respira-

tors to protect employees. In that event, TDRH required

that employers conform to NRC guidelines governing the

safe use of respirators.

In September 1979, TDRH began regular, semiannual

inspections of the TNS plant. These inspections revealed

a number of areas of noncompliance with TDRH regula-

tions at the TNS plant, which TDRH instructed TNS

management to rectify. In January 1981, in response to

airborne contamination levels at the plant in excess of

MPC, as well as a number of employee urine samples

with uranium content in excess of TNS’s own safety

standards, TNS instituted a mandatory program of con-

tinuous, full-time respirator use for employees in various

sections of the plant. TNS intended to maintain the pro-

gram until the following August, when it planned to

install new ventilating and shielding equipment. Various

aspects of the respirator program, however, were carried

on in violation of TDRH regulations.

During the winter of 1980/1981, relations between

the Union and TNS management became increasingly

strained over the health and safety conditions at the

plant. As early as October or November of 1980,

employees had expressed a desire to strike to protest

health and safety conditions. The Union had advised

App. 7

against such a strike, however, explaining that employees

would jeopardize their jobs if they struck before the

collective bargaining agreement, which contained a no-

strike clause, expired. On March 10, 1981, the Union

informed TNS that bargaining unit employees would not

return to work after the April 30 expiration of the con-

tract until TNS corrected the safety problems discovered

by TDRH’s past inspections, as well as any violations

discovered during its upcoming April inspection. Also in

March, a number of plant employees had engaged in a

wildcat strike to protest the respirator program, but the

Union persuaded them to return to work.

Negotiations between the Union and TNS over a

successor contract were unsuccessful. Agreement could

not be reached in a number of areas, including health and

safety. On May 1, 1981, bargaining unit employees began

a work stoppage at the TNS plant. Subsequent negotia-

tions between TNS and the Union, which primarily

focused on health and safety issues, also yielded no

agreement. Inspections by TDRH and the federal officials

in the summer and fall of 1981, after TNS employees had

begun their work stoppage, revealed that employee expo-

sure levels at the TNS plant, while substantially higher

than nuclear indusiry norms, were generally within legal

limits. See NLRB Decision, 309 N.L.R.B. at 1350-55. After

closing down operations for several months, TNS hired

permanent replacements for the “striking” workers. This

action, as well as TNS’s subsequent refusal to bargain

with the Union after TNS’s replacement employees voted

to decertify OCAW as their exclusive representative,

prompted the Union to file unfair labor practice charges

with the NLRB.

App. 8

The Union charges to the Board alleged, inter alia,

that the permanent replacement of workers engaged in a

work stoppage under section 502 of the LMRA violated

sections 8(a)(1) and 8(a)(3) of the NLRA. Section 502

provides that the good faith “quitting of labor” because

of abnormally dangerous working conditions shall not be

deemed a “strike” under the Act, 29 U.S.C. § 143. Under

established principles of labor law, workers who strike in

response to an employer's unfair labor practices normally

may not be permanently replaced. See, e.g., Mastro Plastics

Corp. v. NLRB, 350 U.S. 270, 279-84, 76 S.Ct. 349, 356-59,

100 L.Ed.2d 309 (1956). Under the Union’s theory of the

case, workers who engage in a work stoppage pursuant

to section 502 should be deemed the equivalent of unfair

labor practice strikers, in which case TNS would have

violated the Act by hiring permanent replacements. In

August of 1982, the NLRB’s General Counsel adopted the

Union’s theory and brought an unfair labor practice com-

plaint against TNS. See Complaint and Notice of Hearing,

reprinted in Joint Appendix 726.

B. The Board’s Decision

The hearing before the Administrative Law Judge

(“ALJ”) began in November 1983 and concluded in April

1985. In a 161-page decision, the ALJ first found that the

TNS employees had engaged in their work stoppage pur-

suant to section 502. The ALJ stated that, under control-

ling precedent, employees seeking to obtain the

protections of section 502 must prove (1) that they

believed in good faith that their working conditions were

abnormally dangerous and that this belief caused the

work stoppage; (2) that ascertainable, objective evidence

App. 9

supports the reasonableness of the employees’ belief; and ~

(3) that the dangers were greater than those which nor-

mally existed in the work place and posed a presently

existing threat affecting all who engaged in the work

stoppage. See NLRB Decision, 309 N.L.R.B. at 1435

(reprinting ALJ decision). Concluding that the TNS

employees satisfied these standards, the ALJ next found

that employees who engage in section 502 work stoppage

enjoy “special protections” akin to those provided unfair

labor practice strikers. Id. at 1454. Accordingly, the ALJ

held that TNS’s permanent replacement of and refusal to

reinstate the bargaining unit employees violated sections

8(a)(1) and (3) of the NLRA.

Called upon for the first time to apply section 502 in

the context of occupatior al exposure to low-level radia-

tion, a divided NLRB reversed the AL]’s ruling and dis-

missed the complaint. The two-member plurality opinion

found that, at the time TNS’s employees ceased working,

they did not reasonably believe that working conditions

were abnormally dangerous within the meaning of sec-

tion 502. Id. at 1359-61. Accordingly, the plurality held

that the employees were economic strikers and that TNS

had lawfully hired permanent replacements. Id. at

1365-66.

In construing section 502, the plurality turned to

Supreme Court and Board precedent for guidance,

because “neither Section 502 nor its legislative history

offers any definition of ‘abnormally dangerous.’ ” Id. at

1356. Based upon Board precedent and the Supreme

Court’s decision in Gateway Coal Co. v. United Mine

Workers, 414 U.S. 368, 386-87, 94 S.Ct. 629, 640-41, 38

L.Ed.2d 583 (1974), the plurality developed a two-part

App. 10

test for parties “attempting to demonstrate Section 502

coverage in the context of employee exposure . . - to

radioactive and/or toxic substances.” NLRB Decision, 309

N.L.R.B. at 1357. Noting that section 502 is a limited

exception to the rules governing strikes, the plurality

initially stated that its test imposes a heavy burden of

‘objective proof on employees. The test requires

employees seeking to invoke section 502 to show that

they

reasonably believed, on the basis of objective

evidence, either (1) that inherently dangerous

conditions in the subject workplace had

changed significantly for the worse, so as to

impose a substantial threat of imminent danger

if exposure were continued at the time the

employees began to withhold their services, or

(2) that the cumulative effects of exposure to

those substances had reached the point at which

any further exposure would pose an unaccept-

able risk of future injury to employees.

Id. at 1357-58 (footnote omitted).

3 Section 502 provides in relevant part:

{NJor shall the quitting of labor by an employee or

employees in good faith because of abnormally dan-

gerous conditions for work at the place of employ-

ment of such employee or employees be deemed a

strike under this [Act].

29 US.C. § 143. The Supreme Court has stated that “{t}his

section provides a limited exception to an express OF implied

no-strike obligation.” Gateway Coal, 414 U.S. at 385, 94 S.Ct. at

640.

App. 11

The plurality explained that the first part of its test

reflects the rationale that, absent the emergence of cir-

cumstances that change the character of the danger nor-

mally faced by employees, inherently dangerous working

conditions do not become abnormally dangerous merely

because emplo;ees no longer wish to accept those same

dangers. See id. at 1358 (citing Anaconda Aluminum Co.,

197 N.L.R.B. 336, 344 (1972)). The plurality further stated

that, in accord with Board precedent, “the appropriate

benchmark of normalcy for evaluating the claim of abnor-

mal danger is set by the prevailing conditions at the TNS

plant, rather than by conditions in the nuclear industry at

large or in the industrial subgroup of employees working

with DU.” Id. (internal quotations omitted). The plurality

then concluded that the first part of its test had not been

satisfied in this case because, “[i]n the few months pre-

ceding the work stoppage, there were no significant new-

. circumstances changing the character of the

prevailing danger involved in working at the TNS plant.”

Id. In reaching that conclusion, the plurality noted that

both the Union and employees had complained about

health and safety conditions at the plant for several

months and yet had not walked off the job. The plurality

found that these actions were inconsistent with a reason-

able belief that abnormally dangerous working condi-

tions existed at the plant. See id. at 1359.

The second part of its test, the plurality explained, was

intended to allow for the possibility that employee exposure

to radioactive substances may build over time to a point

where further exposure would pose unacceptable health

App. 12

risks, notwithstanding the fact that no material change in

working conditions may have occurred.‘ See id. at 1358. In

determining whether that threshold has been reached, the

plurality stated that it would give “substantial weight” to

the actions and assessments of the agencies “charged-

_.. with the responsibility for monitoring radiation haz-

ards in plants such as TNS.” Id. at 1360. Thus, based

largely on the fact that TDRH and the NRC had never

indicated that conditions at the TNS plant were so unsafe

as to require removal of employees at the time of the

walkout, or even considered taking such action, and that

there was no evidence that those agencies had failed to

carry out their regulatory responsibilities in an appropri-

ate manner, the plurality found that the danger threshold

of the second part of its test had not been met. See id. at

1360-61.

One Board member concurred in the judgment dis-

missing the Union’s complaint, but on grounds that were

significantly divorced from the plurality opinion. In fact,

the concurrence strongly criticized the plurality’s test,

claiming that it imposed “unrealistic barriers” to showing

abnormal danger in the context of occupational exposure

to unsafe levels of radiation. Id. at 1368. The concurrence

agreed with the plurality that the employees’ walkout

was not protected by section 502, but on the narrower

ground that health and safety conditions at the TNS

4 In a footnote, the plurality also “allow[ed] for the possi-

bility of exceptional circumstances in which the place of

employment presents abnormally dangerous conditions that are

evident virtually from the time that employees begin work

there.” NLRB Decisions, 309 N.L.R.B. at 1358 n. 36.

App. 13

plant, even assuming that they were abnormally dan-

gerous, were not the “sole cause” of the work stoppage.

See id. In developing a “sole-cause” test, the concurrence

relied on both the language of section 502 and a state-

ment in Gateway Coal. The concurrence first noted that, in

order to fall within the compass of section 502, a work

stoppage must occur “because of” abnormally dangerous

working conditions. 29 U.S.C. § 143. Thus, the concur-

rence stated, there must be a causal connection between

the abnormally dangerous conditions and the work stop-

page. See NLRB Decision, 309 N.L.R.B. at 1368. The con-

currence then pointed to the Supreme Court’s statement

in Gateway Coal that “a work stoppage called solely to

protect employees from immediate danger is authorized

by § 502.” 414 U.S. at 385, 94 S.Ct. at 640. From this

statement, the concurrence concluded that a work stop-

page is covered by section 502 only if abnormally dan-

gerous working conditions are the “sole cause” of the

walkout. Finding that the work stoppage was caused, “at

least in part, by a desire to achieve a satisfactory collec-

tive bargaining agreement, rather than solely by a reac-

tion to abnormally dangerous conditions in the plant,”

NLRB Decision, 309 N.L.R.B. at 1370, the concurrence

concluded that section 502 did not apply in this case.

Because both the plurality and the concurrence found

that section 502 did not apply in this case, neither opinion

reached the issue of whether employees who stop work-

ing pursuant to section 502 should be protected from

permanent replacement. Member Devaney, in dissent,

would have sustained the Union’s complaint in its

entirety. See id. at 1371-88.

App. 14

II. ANALYSIS

On petition for review, the Union raises a number of

challenges to the Board’s decision. We need not reach

most of these issues, however, for we find one to be

dispositive. Because we find that the concurring mem-

ber’s “sole-cause” test is wrong as a matter of law, we are

‘left with a plurality test supported by only two of four

Board members. Normally, the Board’s construction of

the Act is subject to deferential review under Chevron

U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.

837, 842-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984);

the problem here is that the Board’s position is unfathom-

able. A majority of the Board agreed on a result, but the

plurality, concurring, and dissenting opinions have no

other common ground (and the concurring opinion is

patently meritless). In this circumstance, where the result

hinges on the Board’s definition of the underlying legal

right at issue, we will not defer to the Board’s disposition

because we cannot comprehend a basis for the result

reached.

A. Applicable Legal Principles

As the Supreme Court has repeatedly emphasized,

“(t]he function of striking [the] balance to effectuate

national labor policy is often a difficult and delicate

responsibility, which the Congress committed primarily

to the National Labor Relations Board, subject to limited

judicial review.” American Broadcasting Cos. v. Writers

Guild, 437 U.S. 411, 431, 98 S.Ct. 2423, 2434, 57 L.Ed.2d

313 (1978) (internal quotations omitted); see also NLRB v.

Curtin Matheson Scientific, Inc., 494 U.S. 775, 786, 110 S.Ct.

App. 15

1542, 1549, 108 L.Ed.2d 801 (1990) (“This Court has

emphasized often that the NLRB has the primary respon-

sibility for developing and applying national labor pol-

icy.”); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1249

(D.C.Cir.1994) (“It is up to the Board, not the courts, to

make labor policy.”). Therefore, courts have accorded

considerable deference to policy judgments of the Board.

See Curtin Matheson, 494 U.S. at 786, 110 S.Ct. at 1549;

Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 662

(D.C.Cir.1992) (“We are mindful of the deference we owe

the Board’s expertise and judgment.”). And where a

Board policy rests on a construction of an ambiguous

provision in the Act, we must uphold that construction so

long as it is “reasonable.” Chevron, 467 U.S. at 843-44, 104

S.Ct. at 2781-83; accord Hammontree v. NLRB, 925 F.2d

1486, 1491 (D.C.Cir.1991) (en banc).

Under the Chevron doctrine, “[t]he power of an

administrative agency to administer a congressionally

created . . . program necessarily requires the formulation

of policy and the making of rules to fill any gap left,

implicitly or explicitly, by Congress.” 467 U.S. at 843, 104

S.Ct. at 2782 (internal quotations omitted); see also

National Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563, 1569

(D.C.Cir.) (“When Congress leaves gaps . . . , either

explicitly by authorizing the agency to adopt implement-

ing regulations, or implicitly by enacting an ambiguously

worded provision that the agency must interpret it has

explicitly or implicitly delegated to the agency the power

to fill those gaps. That delegation requires the courts to

defer to an agency’s decision about how to exercise its

power.”), cert. denied, 484 U.S. 869, 108 S.Ct. 200, 98

L.Ed.2d 151 (1987); Investment Co. Inst. v. Conover, 790 F.2d

App. 16

925, 935 (D.C.Cir.) (“The overriding principle is that as

long as Congress has no clearly discernable intent on the

point in question, it is the agency which is vested with

primary responsibility for interpreting the statute. Chev-

yon teaches that Congress may delegate interpretative

authority implicitly - by failing to legislate in sufficient

detail as to resolve a particular question of interpreta-

tion.”), cert. denied, 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d

372 (1986).

The adoption of this unitary principle in Chevron

represented a dramatic change in the law of judicial

review of federal agency decisionmaking. Prior to Chev-

ron, courts did not adhere to any one standard in review-

ing agency constructions of the statutes they

administered. See Mark Seidenfeld, A SYNCOPATED CHEV-

RON: EMPHASIZING REASONED DECISIONMAKING IN REVIEWING

AGENCY INTERPRETATIONS OF STATUTES, 73 Tex.L.Rev. 83, 93

(1994) (referring to pre-Chevron doctrine as “schizo-

phrenic”). As Judge Friendly wrote in 1976:

We think it is time to recognize . . . that there are

two lines of Supreme Court decisions on this

subject which are analytically in conflict, with

the result that a court of appeals must choose

the one it deems more appropriate for the case

at hand. Leading cases support[ ] the view that

great deference must be given to the decisions

of an administrative agency applying a statute

to the facts and that such decisions can be

reversed only if without rational basis. . - -

However, there is an impressive body of law

sanctioning free substitution of judicial for

administrative judgment when the question

involves the meaning of a statutory term.

App. 17

_ Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49

(2d Cir.1976) (footnote omitted), aff'd sub nom. Northeast

Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348,

53 L.Ed.2d 320 (1977). Indeed, as late as 1984 (the year

Chevron was decided), this court noted that the case law

has not crystallized around a single doctrinal

formulation which captures the extent to which

courts should defer to agency interpretations of

law. Instead, two opposing platitudes exert

countervailing gravitational pulls on the law. At

one pole stands the maxim that courts should

defer to reasonable agency interpretive posi-

tions. . . . Pulling in the other direction is the

principle that courts remain the final arbiters of

statutory meaning... .

Natural Resources Defense Council v. EPA, 725 F.2d 761, 767

(D.C.Cir.1984) (internal quotations and citations omitted).

In deciding whether to defer to agency determina-

tions or to substitute their own judgment for that of the

agency, pre-Chevron courts frequently looked to the rela-

tive competence of the agency and the court in deciding

the matter in question. For example, courts that accepted

reasonable agency interpretations often referred to the

agency's expertise, its familiarity with the history and

purposes of the legislation at issue, and its practical

knowledge of what will best effectuate the purposes of

the statute. See, e.g., NLRB v. Hearst Publications, Inc., 322

U.S. 111, 130-31, 64 S.Ct. 851, 860-61, 88 L.Ed. 1170 (1944);

Process Gas Consumers Group v. United States Dep’t of Agric,

694 F.2d 778, 791-92 (D.C.Cir.1982) (en banc), cert. denied,

461 U.S. 905, 103 S.Ct. 1874, 76 L.Ed.2d 807 (1983). On the

App. 18

other hand, when courts substituted their own interpreta-

tions for those of the agencies, they usually did so on the

ground that the courts are the final arbiters in matters of

statutory interpretation. See, e.g., Barlow v. Collins, 397

U.S. 159, 166, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970);

Packard Motor Car Co. B. NLRB, 330 U.S. 485, 492-93, 67

‘S.Ct. 789, 793-94, 91 L.Ed. 1040 (1947).

In Chevron, the Court opted in favor of the line of

cases holding that, absent plain meaning in a statute,

reviewing courts must defer to reasonable agency inter-

pretations of the statutes they are charged with adminis-

tering. This is not to say that any claimed ambiguity in a

statute requires a court to accept any agency action prem-

ised on that ambiguity. As we have noted:

[D]eference is warranted only when Congress

has left a gap for the agency to fill pursuant to

an express Or implied “delegation of authority

to the agency.” Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837,

843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694

(1984). ..-

To suggest, as the Board effectively does,

that Chevron step two is implicated any time a

statute does not expressly negate the existence of

a claimed administrative power - - - » is both

flatly unfaithful to the principles of administra-

tive law . . . and refuted by precedent. See, €.§-,

Natural Resources Defense Council v. Reilly, 983

F.2d 259, 266 (D.C.Cir.1993) (“ ‘[I]t is only legis-

lative intent to delegate such authority that enti-

tles an agency to advance its own statutory

construction for review under the deferential

second prong of Chevron.’ ”) (quoting Kansas

City v. Department of Housing & Urban Dev., 923

App. 19

F.2d 188, 191-92 (D.C.Cir.1991)) (emphasis

added). Were courts to presume a delegation of

power absent an express withholding of such

power, agencies would enjoy virtually limitless

hegemony, a result plainly out of keeping with

Chevron and quite likely with the Constitution as

well.

Railway Labor Executives’ Ass’n v. National Mediation Bd.,

29 F.3d 655, 671 (D.C.Cir.1994). In a case such as this one,

however, there can be no doubt that Congress delegated

authority to the Board to construe provisions of the

NLRA, especially those implicating alleged unfair labor

practices. The only question here is whether the Board

has articulated a defensible policy.

“Judicial deference under Chevron to an agency’s

interpretation . . . cannot occur in a vacuum.” Leeco, Inc. v.

Hays, 965 F.2d 1081, 1085 (D.C.Cir.1992). In order for the

reviewing court properly to perform its task under Chev-

ron, it must be able to discern the rationale underlying an

agency’s construction of the statute. See Acme Die Casting

v. NLRB, 26 F.3d 162, 166 (D.C.Cir.1994); Leeco, 965 F.2d at

1085 (“In the absence of any explanation justifying [the

agency’s position] as within the purposes of the Act...,

we are unable to sustain the Commission’s decision as

reasonably defensible.”) (internal quotations omitted);

City of Kansas City v. HUD, 923 F.2d 188, 192

(D.C.Cir.1991) (“[W]here the agency’s administrator has

failed to provide . . . a reasonable construction to which

we can defer, we must remand to the agency for consider-

ation of the statutory question in the first instance.”);

International Longshoremen’s Ass'n v. National Mediation

Bd., 870 F.2d 733, 736 (D.C.Cir.1989) (agency’s failure to

App. 20

articulate basis for its decisions “frustrate[s] effective

judicial review” because court “cannot defer to what [it]

cannot perceive”) (internal quotations omitted); see also

United Food & Commercial Workers Int'l Union v. NLRB, 880

F.2d 1422, 1436 (D.C.Cir.1989) (“[T]he [NLRB] must

accept responsibility for clarifying and identifying the

standards that are guiding its decisions.”). We insist upon

such an articulation by the agency “to avoid ‘propel[ing]

the court into the domain which Congress has set aside

exclusively for the administrative agency.” Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 169, 83 S.Ct.

239, 246, 9 L.Ed.2d 207 (1962) (quoting SEC v. Chenery

Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995

(1947)).

Our assessment of an agency’s statutory construction

becomes more complicated where, as here, we are con-

fronted with a Board rvling that is supported by more

than one rationale. For example, in United Food and Com-

mercial Workers, 880 F.2d at 1436-37, the NLRB had ruled

without explanation that an employer’s refusal to bargain

over a plant relocation was lawful under any one of three

separate tests for determining whether such a decision

was a mandatory subject of bargaining, each of which

had been articulated in a previous Board decision. Id.

Notwithstanding the reasonableness of the three separate

tests, the court held that the Board’s failure to articulate

which test it was relying on, or, at a minimum, to explain

how the same result could be reached under each of those

tests, did not reflect the reasoned decisionmaking

required of administrative agencies. Id. We stated:

As disputes arise, such as the current one, that

force the Board to chart a course in the more

App. 21

ambiguous or disputed territory of . . . [a legal]

test, the Board must accept responsibility for

clarifying and identifying the standards that are

guiding its decisions.

Id. at 1436. While not requiring it, we “urge[d] the Board

- on remand .. . to attempt to articulate a majority-

supported statement of the rule that the Board will be

applying now and in the future.” Id. at 1436-37.

The problem in the instant case is even more difficult

than the situation that the court faced in United Food and

Commercial Workers, for here the result reached by the

Board is not supported by reasonable opinions from a

majority of its members.5 In such a circumstance, we are

constrained to return this case to the Board to allow for

the articulation of a legal test upon which a judgment

may rest.

B. The Legal Flaws in the Concurrence’s “Sole-Cause”

Test

As already noted, the dilemma posed in this case

arises because the concurring opinion is founded on a

construction of section 502 that is wrong as a matter of

law. The concurrence held that a work stoppage is not

protected by section 502 unless workplace health and

safety conditions, even if abnormally dangerous, are the

5 In a somewhat analogous situation, the Board itself has

noted: “In [a prior case] the Board plurality opinion rejected this

doctrine, but there was no holding on the issue because the vote

was split 2-2 on this point.” Mowhawk Liqueur Co., 300 N.L.R.B.

1075, 1075-76 n.3 (1990), enforced sub nom. General Indus.

Employees Union, Local 42 v. NLRB, 951 F.2d 1308 (D.C.Cir.1991).

App. 22

“sole cause” of the walkout. NLRB Decision, 309 N.L.R.B.

at 1368.

The concurrence’s sole-cause test is purportedly

drawn from language in the Supreme Court's Gateway

Coal decision, which stated that “a work stoppage called

Solely to protect employees from immediate danger is

authorized by § 502.” But the concurrence reads too much

into the Court’s language. To say that a strike called

“solely to protect employees from immediate danger is

authorized by § 502,” is not the same as saying that “a

strike is not protected by § 502 unless the sole reason for

it is to protect employees from immediate danger.” The

fatal problem with the concurrence’s reliance on the cited

language from Gateway Coal is that the concurring opin-

ion completely fails to acknowledge the different contexts

involved in Gateway Coal and this case. Gateway Coal

involved an employee strike that occurred while an

implied no-strike obligation was still in effect. 414 U.S. at

373, 380-87, 94 S.Ct. at 634-35, 638-41 (finding that con-

tractual agreement to submit disagreements to binding

arbitration included disputes over safety and thus gave

rise to implied obligation not to strike over such dis-

putes). Here, however, the bargaining unit employees

ceased working after the collective bargaining agreement

had expired, so there was no no-strike obligation in

effect. The sole-cause test cannot reasonably be applied in

both of these situations, for this would lead to absurd

results.

For example, in a situation where a union contract

has expired and employees may lawfully engage in an

economic strike, the sole-cause test would have the effect

of precluding application of section 502 where employees

App. 23

strike because they want higher wages and because fires

break out at their work stations whenever they attempt to

operate their equipment. Because it could always be said

that the employees’ concern for their safety was mixed

with desires for a better economic package, the sole-cause

test would preclude such a walkout from the protections

of section 502. This is a ridiculous result, however,

because there could be no doubt in this hypothetical that

the employees were protesting abnormally dangerous

conditions — that they also desired better wages is irrele-

vant.

The concurrence states that if the union simply

informs the employer that the work stoppage will termi-

nate upon the correction of the abnormally dangerous

conditions, this would satisfy the sole-cause test “at least

primate facie.” See NLRB Decision, 311 N.L.R.B. at 1369.

However, the concurrence’s position is hopelessly short-

sighted: the federal labor laws give employees the right

to engage in lawful economic strikes upon expiration of

the parties’ agreement. See 29 U.S.C. § 157 (1988); see

generally NLRB v. Washington Aluminum Co., 370 U.S. 9,

14-18, 82 S.Ct. 1099, 1102-04, 8 L.Ed.2d 298 (1962).

Employees cannot be made to promise to return to work

from a lawful economic strike in order to prove the

legitimacy of their concern over the unsafe conditions.

Accordingly, in cases such as this, the sole-cause rule

would clearly achieve results contrary to federal labor

policy.®

employees to strike or cease working while a no-strike obliga-

tion is in effect, see Mastro Plastics, 350 U.S. at 280, 76 S.Ct. at

———————————————

App. 24

C. Legal Principles Applied to this Case

With only the plurality opinion remaining to justify

the Board’s result in this case, we are left with a position,

rational or not, supported by only two of four Board

members. It is thus clear that the Board as a whole has

failed to articulate an appropriate legal standard for the

resolution of this case. Because we cannot discern a Board

position, we are compelled to remand the case for recon-

sideration. The Board must “articulate a majority-sup-

ported statement of the rule that [it] will be applying now

and in the future,” United Food & Commercial Workers, 880

F.2d at 1436-37, in determining the applicability of section

502 in the context of occupational exposure to low-level

radiation.

356-57, the concurrence’s concern about mixed motives in such

situations would be more appropriate. Even here, however, the

sole-cause rule could lead to anomalous results. In Mastro Plas-

tics, 350 U.S. at 279-84, 76 S.Ct. at 356-59, the Supreme Court

suggested that, at least in some circumstances, a general no-

strike clause may not waive the employees’ right to strike in

response to unfair labor practices committed by the employer.

Notwithstanding Mastro Plastics, the sole-cause test would have

the effect of precluding section 502 coverage where employees

walked off the job in response to egregious employer unfair

labor practices and abnormally dangerous working conditions.

As in the context where the union contract has expired, how-

ever, this would be an absurd result, for the employees certainly

walked off the job because of abnormally dangerous working

conditions, regardless of whether the employer had also com-

mitted unfair labor practices. Thus, the sole-cause rule might

make sense only where a walk-out occurred while a no-strike

obligation was in effect and in the absence of employer unfair

labor practices (of the sort contemplated by Mastro Plastics),

which was the case in Gateway Coal.

App. 25

Board counsel objects to a remand, arguing that the

agency’s decision in this case is entitled to deference

because the judgment dismissing the Union’s complaint

was supported by a majority of Board members. This

contention is well wide of the mark, however, for, given

its legal infirmity, the concurring opinion can count for

nothing in this case. Lest we are misunderstood, we

should state the obvious: Our decision in this case does

not deprecate, but rather vindicates, the administrative

process, as well as the Board’s primary authority and

responsibility for making federal labor policy. When, as

here, the agency has failed to take a position, we do not

substitute our judgment for that of the agency or attempt

to surmise what the agency’s position might have been.

See Burlington Truck Lines, 371 U.S. at 169, 83 S.Ct. at 246

(“[T]he purpose of th[is] rule is to avoid propelling the

court into the domain which Congress has set aside

exclusively for the administrative agency.”) (internal quo-

tations and alterations omitted). Rather, we insist that the

agency, to which Congress has delegated principal poli-

cymaking authority, choose and clearly articulate its rule.

See Acme Die Casting, 26 F.3d at 166 (while reviewing

court “will be bound [under Chevron] to accept any rea-

sonable rule that the Board selects . . . [, it is] the Board

[which] must select the rule”) (emphasis added); City of

Kansas City, 923 F.2d at 192 (where agency has offered no

interpretation of statutory provision, agency not entitled

to deference on review, because “[d]eference under Chev-

ron... can be accorded only to a judgment of the agency

itself”).

App. 26

III. CONCLUSION

This case is hereby remanded to the Board for further

proceedings consistent with this opinion.

So ordered.

App. 27

TNS, Inc. and Oil, Chemical and Atomic Workers

International Union, AFL-CIO. Cases 10-CA-17709

and 10-CA-18785

December 23, 1992

SUPPLEMENTAL DECISION AND ORDER

By CHAIRMAN STEPHENS AND MEMBERS DEVANEY,

OVIATT, AND RAUDABAUGH

The principal issues in this case! involve application

of Section 502 of the Act in determining whether the

Respondent violated Section 8(a)(3) and (1) by perma-

nently replacing employees who engaged in a work stop-

page which the General Counsel asserts was caused by

the existence of “abnormally dangerous” working condi-

tions. Other issues are: (1) Did the Respondent violate

Section 8(a)(3) by failing to reopen its penetrator shop

operations at the conclusion of the work stoppage? (2)

Did the Respondent violate Section 8(a)(1) in making

statements about the seniority of employees reinstated

after the work stoppage? (3) Did the Respondent violate

Section 8(a)(5) by withdrawing recognition of the Union

as the unit employees’ representative? The judge found

each of the unfair labor practices alleged in the com-

plaint.

? On July 31, 1987, Administrative Law Judge Arline Pacht

issued the attached decision. The Respondent filed exceptions

and a supporting brief and the General Counsel and the Charg-

ing Party filed answering briefs. The United States, on behalf of

the Department of Energy and Nuclear Regulatory Commis-

sion, filed an amicus curiae brief as did the U.S. Chamber of

Commerce, the American Nuclear Insurers (ANI), the Mutual

Atomic Energy Liability Underwriters (MAELU), Lapp Inc., and

Lauritson S. Taylor, an individual.

App. 28

The Board has considered the decision and the

record? in light of the exceptions and briefs? and has

2 The hearing in this case took place between November

1983 and April 1985 consuming a total of 67 hearing days and

consisting of 12,630 pages of testimony and hundreds of

exhibits.

Subsequent to the hearing a panel of the Board initially

deferred to private non-Board settlement agreements submitted

on behalf of 56 alleged discriminatees and dismissed portions of

the complaint as to them. The Board’s Order approving the

settlement agreements was reversed by the United States Court

of Appeals for the District of Columbia. On remand from the

court, the Board vacated its prior Order approving the settle-

ment agreements and reinstated the complaint allegations per-

taining to the 56 alleged discriminatees. See TNS, Inc., 288 NLRB

20 (1988).

3 The Respondent's brief is 413 pages, the Charging Party’s

answer brief is 311 pages, the General Counsel’s answer brief is

128 pages, the combined brief of amici ANI and MAELU is 87

pages, and the briefs of amici United States and the Chamber of

Commerce are 13 and 34 pages respectively.

The General Counsel and the Charging Party filed motions

to reject the Respondent's exceptions and brief. They allege that

the Respondent failed to comply with Sec. 102.46(b) and (c) of

the Board’s Rules and Regulations. Specifically, they contend

that the exceptions fail to designate by precise page citation the

portions of the record relied on and that some exceptions

improperly contain argument which, together with the support-

ing brief, also constitute a violation of the Board’s allowable

page limit for argument. With respect to the Respondent’s brief,

the General Counsel and the Charging Party contend that it

does not contain a specification of questions involved or sup-

porting fact and law relating to each exception and that the

argument section fails to make reference to specific exceptions.

We agree that certain of the Respondent’s exceptions inap-

propriately include argument. Accordingly, we shall grant the

motions in part and disregard any argument found in the excep-

tions. In all other respects, the motions are denied as the

App. 29

decided to affirm the judge’s rulings, findings, and con-

clusions only to the extent consistent with the Decision

and Order.

For the reasons set forth in section I of this decision,

we reverse the judge and find that the General Counsel

has failed to prove that abnormally dangerous working

conditions existed at the time the employees walked out.

Consequently, regardless whether or not an employer

may permanently replace employees engaged in a Section

502 work stoppage (an issue we do not decide), the

Respondent did not commit an unfair labor practice by

permanently replacing the employees in this case. Fur-

thermore, for the reasons set forth in sections II, III, and

IV below, we reverse the judge’s other unfair labor prac-

tice findings and dismiss the complaint in its entirety.

Respondent’s exceptions and supporting brief, although not

conforming in all particulars with Secs. 102.46(b) and (c), are not

so deficient as to warrant their rejection.

The General Counsel and the Charging Party also filed

motions to reject the amicus brief filed by Lauriston S. Taylor,

and the Charging Party filed a Separate motion to reject the

amicus brief of Lapp Inc. on grounds, inter alia, that the briefs

attempt to add evidence to the record well after the trial pro-

ceedings have closed. We find merit in this contention and,

accordingly, we grant the motions to reject the briefs.

The Respondent has requested oral argument. The request

is denied as the record, exceptions, and briefs adequately pre-

sent the issues and the positions of the parties.

App. 30

I. THE ALLEGED SECTION 502 WORK STOPPAGE

A. Factual Findings

1. The Respondent’s business and the nuclear

safety regulatory framework

The Respondent, TNS, is a corporation which, at the

time of the instant dispute, was engaged in the manufac-

ture of radioactive depleted uranium (DU) metal prod-

ucts at a plant in Jonesboro, Tennessee. Manufacturing

operations took place in two buildings — the foundry and

the penetrator shop. Workers in the foundry manufac-

tured uranium ingots known as “derbies.” Workers in the

penetrator shop manufactured the “GAU-8 penetrator

core.”

The safety of the Respondent's use of radioactive

materials in the manufacturing process is subject to the

jurisdiction by the United States Nuclear Regulatory

Commission (NRC). The NRC has entered into agreement

with the State of Tennessee for the latter to exercise

primary regulatory responsibility over facilities within

that State, including the TNS plant, in a manner consis-

tent with the Atomic Energy Act. The Tennessee Division

of Radiological Health (TDRH) is the state agency respon”

sible for the protection of workers from occupational

radioactive hazards through the promulgation of regula-

tions complying with Federal standards, the licensing of

facilities using radioactive materials, and the inspection

of facilities to assure compliance with safety standards.

In oversight of TDRH's compliance with the Federal

radiation protection program, NRC officials periodically

acco:npanied TDRH officials during plant inspections.

App. 31

The NRC was authorized to terminate or suspend all or

part of its agreement with Tennessee if, in its judgment,

such action was necessary to protect the public health

and safety, or if Tennessee failed to comply with any

requirement set forth in the Federal statute providing for

state agreements.* The NRC was also authorized to sus-

pend temporarily all or part of its agreement with Ten-

nessee if an emergency situation arose with respect to any

radioactive material that created danger requiring imme-

diate action, and if Tennessee failed to take the necessary

steps within a reasonable time to contain or eliminate the

danger.

TDRH had the police authority to effect a shutdown

of a subject facility through license suspension or revoca-

tion. Following each plant inspection, TDRH prepared an

internal agency report and issued a letter to the licensee

citing any observed violations and directing corrective

action. Failure to follow such directives authorized TDRH

to seek a “Commissioner’s Order” to obtain compliance.

Failure to comply with a Commissioner’s Order

empowered TDRH to initiate a judicial proceeding to

close a facility.®

DU poses hazards to TNS employees as both a carci-

nogenic and a chemically toxic material. The inhalation or

ingestion of radioactive DU-dust particles exposes inter-

nal tissues to the cancer risks associated with cumulative,

4 42 U.S.C. § 2021(j)(1).

5 42 U.S.C. § 2021(j)(2).

“very, very difficult” to seek license revocation.

App. 32

low-level alpha radiation. In addition, dust particles of

DU, an extremely dense and heavy metal, represent a

toxic threat to the kidneys.

To protect employees from the potential hazards of

exposure to DU, TDRH has adopted the dose limits set by

the NRC. Whole body external exposures should not

exceed 1.25 rems’ per calendar quarter or 5 rems per year.

Internal lung exposure limits are 15 rems per year. TNS

employees wear thermoluminescent dosimeters (TLD

badges) to measure external exposures. Internal exposure

levels are measured by “invivo” lung scans administered

semiannually to employees.

The NRC had no official regulation governing the

allowable amount of DU in the kidney. It published a

proposed regulatory “guideline” (Reg. Guide 8.22) for

urine bioassays in uranium mills. This proposed guide-

line® stated that kidney damage may occur if any single

urine sample was greater than 130 micrograms of ura-

nium per liter of urine (ug/l), or if four or more consecu-

tive samples were greater than 30 ug/l. It set “notice”

and “action” levels at 15 ug/1 and 30 ug/1 respectively.”

7 A rem is defined in the Federal regulations as a unit for

measuring a dose of radiation received by an individual and

which takes into account differing biological effects of different

types of radiation. 10 CFR § 20.4(c).

8 Reg. Guide 8.22 was published for notice and comment in

1978 but was never issued in final form.

9 A notice level served the purpose of an alarm system for

investigating the causes of elevated urine samples so that cor-

rective action could be taken. Urine samples reaching action

levels result in the removal of an employee from his work area

pending subsequent urinalysis readings below the notice level.

App. 33

The Respondent collected bimonthly urine specimens

from its employees. In evaluating the urine bioassay data,

it did not follow the legally nonbinding Reg. Guide 8.22.

Instead, it applied, and TDRH approved, alternate guide-

lines published by the U.S. Army’s “DARCOM” Manual,

which specifically addressed exposures to DU. The DAR-

COM guidelines set respective notice and action levels at

50 and 100 ug/l. They did not, however, contain any

danger level analogous to the 130 ug/I level set forth in

Reg. Guide 8.22.

In addition to the foregoing regulations and guide-

lines, TDRH mandated that subject employers adhere to

the concept that all exposures to DU should be kept “as

low as is reasonably achievable.” This philosophy, known

as the ALARA doctrine, operates on the principle that if

an exposure level below the legal limit can be achieved

without the expenditure of unreasonable funds, such

levels should be adopted and maintained.!°

10 As defined in the Federal regulations, ALARA “means as

low as is reasonably achievable taking into account the state of

technology, and the economics of improvements in relation to

benefits to the public health and safety, and other social and

socioeconomic considerations, and in relation to the utilization

of atomic energy in the public interest.” 10 CFR § 20.1(c).

The ALARA concept is illustrative of a debate about

whether there is an acceptable level of occupational exposure to

low-level radiation, such as DU emits. Considerable expert tes-

timony has been entered into the record in this case by propo-

nents of opposing theories: one set of witnesses holds that there

is no “safe” threshold level of exposure; the other set of wit-

nesses holds that there can be a safe threshold level. Although

scientific in its origin and methodology, this debate has found a

second forum in tort litigation. Compare Allen v. U.S., 588

F.Supp. 247 (D. Utah 1984), revd. 816 F.2d 1417 (8th Cir. 1987),

App. 34

Elimination of DU dust particles at their source is the

best defense against exposure to its hazards. Conse-

quently, TDRH mandated a physical engineering airborne

contaminant control system using equipment shields, bar-

rier seals, and ventilation. Acknowledging that some

radiation escape into the working environment is inevita-

ble, TDRH followed the NRC in adopting standards set

by the National Commission on Radiological Protection

(NCRP) for the maximum permissible concentration

(MPC) of airborne DU particles. MPC is defined as the

amount of airborne radioactive material beyond which no

worker is to be exposed for 40 hours per week for 13

weeks.!1 To monitor air quality, the Respondent utilized

various types of air samplers throughout the plant.

In the event that engineering controls became

impracticable in achieving MPC, TDRH regulations

authorized the use of respiratory protection, provided

that such use conformed with NRC Regulatory Guide

8.15 and its supplemental manual on respiratory protec-

tion, NUREG 0041 (NUREG). These regulations required:

a written policy statement on respirator usage; selection

of respirators with a protection factor (PF) greater than

MPC; medical approval of and fit testing for employees

wearing respirators; procedures for the proper selection,

supervision, and training of personnel in respirator use; a

program ensuring proper cleaning, maintenance, and

storage of respirators; and notice to employees that they

cert. denied 484 U.S. 1004 (1988), with Johnston v. U.S., 597

F.Supp. 374 (D. Kans. 1984).

11 10 CFR § 20.103(a)(1).

App. 35

are free to leave their work station if their respirators

malfunction or they experience discomfort.

Chapter 2 of the NUREG manual set forth the con-

trolling standard for durational limits on the use of respi-

rators. For operations like the Respondent's, the manual

stated that “when engineering controls are not feasible or

cannot be applied, the use of respiratory protective

devices may be appropriate . . . [not] as a substitute for

practicable engineering controls . . . [but] while engineer-

ing controls are being instituted or evaluated.” Speci-

fically, the manual states that while the “periods of time

respirators are worn continuously and the overall dura-

tions of use should each be kept to a minimum. .. it is

difficult to realistically assign specific time limits on res-

pirator use because of wide variations on job require-

ments and in the physical capacities and psychological

attitudes of individuals.” Nonetheless, “such factors must

be taken into account in establishing a respirator pro-

gram.”

2. The events at TNS

The Union has represented the Respondent's

employees there since 1978. The parties negotiated a

3-year collective-bargaining agreement effective from

May 1, 1978, through April 30, 1981. This contract

included a brief health and safety clause, with a provision

for monthly labor-management health and safety tours,

and the posting on employee bulletin boards reports by

union members of potential hazards needing corrective

action.

App. 36

In September 1979, TDRH began regular semiannual

inspections of the TNS plant. The first inspection resulted

in a November 12, 1979 letter finding that the Respon-

dent’s “activities were not conducted in full compliance

with ‘State Regulations for Protection Against Radiation’

and certain conditions of your License” including, inter

alia:

1. The radiation safety program as refer-

enced in... our [state] license, did not appear

to be administered adequately to provide the

maximum degree of protection for your

employees.

4. Personnel training in precautions or pro-

cedures to minimize radiation exposure was

inadequate, contrary to [state regulations].

9. An individual was exposed to radiation

in excess of applicable limits contrary

to. . . [state regulations].

11. Proper notification was not made to the

Department concerning the exposure of person-

nel to radiation in excess of applicable limits,

contrary to [state regulations].

12. Proper notification was not made to per-

sonnel exposed to radiation in excess of applica-

ble limits, contrary to [state regulations].

15. Adequate surveys for evaluating radia-

tion hazards were not being conducted, contrary

to [state regulations].

App. 37

The inspection letter listed 16 violations in all and con-

cluded with the admonition that “it appears that a severe

laxity in your facility’s radiation safety program has

developed. Immediate attention should be given to the

upgrading of this program.”

On April 10, 1980, TDRH agents visited the TNS

plant to investigate a complaint about one employee’s

alleged overexposure to airborne radioactive contami-

nants. An internal TDRH memorandum about this visit

stated: “There appeared to be conditions that such an

exposure of this type could have occurred.” A September

17, 1980, TDRH letter cited the Respondent for inade-

quate training of employees and deficiencies in both

urine bioassay and air quality control procedures.

In the meanwhile, TDRH conducted another semian-

nual inspection in May 1980. On August 25, 1980, the

state agency cited 11 specific areas of noncompliance. Six

of these had also been noted after the September 1979

inspection. In addition, TDRH noted, inter alia, that

“Radiation and contamination levels in unrestricted areas

were in excess of the limits for uncontrolled areas.”

As part of NRC’s oversight function, NRC Official

Edgar Ashley accompanied TDRH personnel during its

next inspection of the Respondent in November 1980. At

the conclusion of the inspection, Ashley and TDRH

Inspector Johnny Graves met with TNS officials. Accord-

ing to Ashley’s notes of the meeting, Graves discussed an

assortment of “main items” of noncompliance from past

TDRH inspections and “what had been done to correct

them.” Graves further discussed new items of noncom-

pliance, such as the reduction in managerial rank of the

App. 38

TNS radiation safety officer, the absence of health staff

during the night shift, an ALARA concept in need of

strengthening, and the failure to post radiation warning

symbols at appropriate plant entrances. These and other

deficiencies were officially noted in an enforcement letter

- gent by TDRH to the Respondent on January 29, 1981.12

The letter concluded that “several of the items of non-

compliance indicated above have been called to your

attention in letters reflecting the result of previous

inspections. It appears that sufficient effort is not being

exerted to prevent the recurrence of these items.” Nev-

ertheless, in the “Summary” section of its internal report

of this inspection, TDRH indicated that the Respondent's

“radiation safety program is making progress.”

Several significant events took place at the TNS plant

prior to the next TDRH inspection. In January, the

Respondent implemented a mandatory program of con-

tinuous, full-time respirator use in various sections of the

foundry and penetrator shop in response to excessive

MPC levels, which admittedly were not being controlled

by the Respondent's engineering processes. The respira-

tor program was intended to continue until approx-

imately August, when new ventilating and shielding

equipment, which had been ordered, would be

installed.13 By the winter of 1981, Local Union President

John Bettis had increased the Union’s emphasis on health

12 All dates hereafter are in 1981, unless otherwise indi-

cated.

13 Thus, contrary to the dissent, the respirator program was

not intended to be of indefinite duration.

App. 39

and safety concerns and had revived the neglected con-

tractual procedure for monthly joint labor-management

tours and the posting of reports of potential hazards

identified by union members. The items listed in these

reports were, for the most part, ordinary industrial safety

infractions unrelated to DU hazards, such as faulty elec-

trical wiring, blocked fire lanes, leak in roof, etc. Com-

plaints related to radiation safety consistently referred to

malfunctioning or ineffective shielding and ventilation

equipment, excessive dust, and unsanitary conditions in

the employee clothing change rooms.

March 9 and 10 marked the last TDRH inspection

visit prior to the employee walkout on May 1. This

inspection, as described in the agency’s internal report of

April 2, was less comprehensive than previous ones and

had as its “main purpose . . . to review and check on the

responses TNS had made to the last compliance letter,

look at and discuss their environmental program . . . and

tour the site to observe the present operations.”14 During

this inspection, TDRH officials first observed employees

wearing respirators pursuant to the Respondent’s manda-

tory full-time program. According to the internal report,

“The use-overuse of respirators was discussed. .. . I

stated that studies should be conducted to look for ways

to reduce use. I stated that to me the routine (full 8 hours

14 This was a special inspection, made in response to an

employee’s anonymous complaint concerning conditions at the

TNS plant. During this visit, TDRH officials did not ask to

review the Respondent's exposure records. It is thus misleading

for our dissenting colleague to suggest that the Respondent

“failed to disclose” the data contained in its files.

App. 40

shifts) use of masks is not to be done. Their use should be

for unusual, emergency OF short duration jobs.”

The TDRH internal report concluded that the

“inplant site is not as contaminated as noted several years

ago... - There are many areas that need improvement

and constant updating but it appears that at the present

time no crisis or eminent [sic] threat to health and safety

exist.” Rather than citing any violations, the TDRH

enforcement letter of May 4 provided “comments, sug-

gestions, and requirements” to be observed. Regarding

respirator use, the letter advised the Respondent to con-

duct studies of ways to substitute engineering safeguards

for respirator use.

Also on March 10, as TDRH was finishing its last

prewalkout inspection, the Union delivered the following

message to the Respondent:

[T]he employees will not return to work after

April 30 until the items which are on the health

and safety report have been corrected and TNS

is safe and healthy for the employees to work.

This includes the items from past inspections as

well as items which will be listed during the

April inspection.

On March 24, the parties began formal negotiations

by presenting their respective comprehensive proposals

for a successor collective-bargaining agreement.15 The

15 The Respondent's chief negotiator was George Kriska,

vice president of industrial relations at Aerojet General Corpo-

ration, the Respondent's parent corporation in Compton, Cali-

fornia. Representing the Union were Local President Bettis,

Business Agent Larry Abel, and, on occasion, International

Union District Director John Williams.

App. 41

Respondent made a proposal which included provisions

for: $1-dollar-an-hour wage increase; extension of the

permissible temporary layoff period from 24 hours to 10

days; extension of the probationary period from 90 days

to 180 days; and retention of the existing health and

safety clause. The Union’s proposal included a much

lengthier health and safety clause requiring, among other

things: retention of the joint union-management health

and safety tours; plant inspection by union officials; inde-

pendent health surveys to be paid for by the Respondent;

a commitment by the Respondent to maintain adequate

health and safety facilities; and a statement that no

employee would be required to perform work which

endangered health or which violated health and safety

rules.

The parties met eight more times prior to the con-

tract’s April 30 expiration. Sessions held on March 25 and

April 8 and 9 focused mainly on noneconomic issues.

There was little discussion of health and safety. The

Union expressed suspicions, however, that the Respon-

dent’s proposed extensions of the probationary and tem-

porary layoff periods entailed a scheme by which the

Respondent could more freely remove employees with

high radioactivity exposure levels and thereby avoid

responsibility for their health. Abel warned that this was

a “strike issue.”

It was not until the April 24 bargaining session that

health and safety became a principal topic of discussion.

This meeting began with Abel charging that the Respon-

dent’s “safety stinks” and that the Union had “people in

Washington working on your damn license.” After some

acrimony, the parties returned to a clause-by-clause

App. 42

review of their respective proposals. The Union contin-

ued to oppose the Respondent’s probation and layoff

proposals. The Respondent continued to oppose the

Union’s health and safety proposal. As the session drew

to a close, Williams castigated the Respondent for requir-

_ ing employees to wear respirators. Abel concluded the

meeting with the warning that: “we can ‘guar-damn-tee’

we are going to strike on April 30 on health and safety.”

Talks resumed the next day and centered almost

entirely on the Union’s protest against the full-time wear-

ing of respirators. The Respondent attempted to justify its

respirator policy as a temporary measure that was being

implemented only until engineering or equipment

changes could be made to reduce airborne contamination

and to comply with the ALARA philosophy. When told

that employees had been on respirators for about 2

months, Williams replied that “we are not going to work

under those conditions.” He rejected the Respondent's

contention that the empioyees are protected when wear-

ing respirators and stated that “if I had known about all

this, we’d been on the street. If you don’t think I will put

you on the street, under health and safety you are mis-

taken.”

The next meeting was held on April 27 under the

auspices of the Federal Mediation and Conciliation Ser-

vice (FMCS).1¢ At the behest of the FMCS mediator, dis-

cussion was restricted to noneconomic matters.

Agreement was reached on a number of proposals and

counterproposals, put the parties remained apart on the

16 All subsequent negotiations were mediated by FMCS.

App. 43

temporary layoff and health and safety issues. They did

modify initial proposals on the probationary period issue.

The Respondent proposed 150, rather than 180 working

days; the Union proposed 40, rather than 30 calendar

days. The Respondent indicated that it would agree to

submit to an independent evaluation of its safety pro-

gram and asked the Union for the names of available

consultants. The Union suggested its own experts or the

National Institute of Occupational Safety and Health

(NIOSH).

The parties met again the next day. After a brief

discussion of several proposals, including the Respon-

dent’s offer to reduce the probationary period to 120

working days, the Union declared that negotiations were

a “waste of time” and requested that the Respondent

submit its final offer the next day. As requested, the

Respondent submitted a final contract offer to the Union

on April 29 with an explanation of some of its terms,

highlighting again that it contained an across-the-board

hourly raise for all unit employees. The Union’s immedi-

ate response, expressed by Abel, was that a strike was

likely. He accused the Respondent of bargaining in bad

faith and of “trying to buy a damn contract” with an offer

that the Union considered was “still $2.00 low.” Williams

added that “our biggest problem is health and safety. You

have overexposed every one at this table, and everybody

at the plant.” Referring to the health and safety strike

ultimatum of March 10, Abel declared that “we are going

to have a strike tomorrow night.”

The strike option was also a subject of union and

employee discussion away from the bargaining table.

App. 44

Employee Mike Elam testified that he told Abel in Octo-

ber or November 1980 that employees wanted to strike

then to protest health and safety conditions. Abel advised

against doing so, explaining that employees would jeop-

ardize their jobs if they struck before the contract expired.

(The contract contained a no-strike clause.) Minutes of

the Union’s November 1980 meeting contain the entry

“ April 30 strike!” Some employees did not wait, however.

In March, a group from the penetrator shop engaged in a

wildcat strike to protest the mandatory respirator pro-

gram. Bettis persuaded them to return to work.

On April 4, the employees authorized a strike action.

On April 29, they gathered again to discuss what they

were going to do when the contract expired. Various

individual employees voiced dissatisfaction with the

Respondent's hourly wage raise offer and with the health

and safety conditions at the TNS plant. The employees

voted to strike. At midnight on April 30, virtually the

entire work force of 100 men and women engaged in a

work stoppage.

The Respondent made no attempt to continue opera-

tions during the first 3 months of the strike. While the

plant sat idle, it continued to negotiate with the Union

and submitted to inspections by TDRH and by Radiation

Management Consultants (RMC), a private consulting

firm hired by the Respondent. TDRH conducted a 2-day

inspection on May 5-6 in response to a telegram sent by

the Union on April 29 warning of “eminent danger” [sic]

due to high urine counts received by some employees

and the mandatory use of respirators for “the full 8 hour

shift.” RMC conducted its investigation on May 13 and

' 14.

App. 45

RMC sent its report to the Respondent on May 29.

The report found that air concentrations within the plant

were “slightly in excess of MPC” and that the Respon-

dent’s engineering controls were inadequate to reduce

airborne contamination. The report found particular fault

with the mandatory respirator program, which was

deemed to be too long in projected duration (until

August, when new ventilation and shielding equipment

was to be installed) and not in compliance with the

requirements of Reg. Guide 8.15 relating to employee

training and the proper use, fit, cleaning, storage, and

maintenance of respirators. Although indicating that

lower urine bioassays began to occur after implementa-

tion of the respirator program, RMC stated that the fail-

ure of bioassay levels to fall even lower supported the

inference that the discomfort of prolonged shift-long res-

pirator use had led employees “to cheat on the wearing of

masks.”

The RMC report’s conclusion was mixed. While not-

ing “many areas of noncompliance [which] should be of

great concern to management” and a “lack of manage-

ment commitment to a radiation safety program,” RMC

also found “DU is a rather innocuous radioisotope and

with exposure limits to radiation and airborne concentra-

tions based on 50 years of exposure, short periods of

exposure to radiation or airborne concentrations slightly

in excess of MPC presents no real hazard.”

One week later, on June 4, TDRH reported on its May

5-6 inspection. In a one-page letter to the Respondent,

TDRH identified virtually the same deficiencies found by

RMC, i.e., inadequate engineering controls and airborne

App. 46

concentrations of DU dust exceeding MPC.’7 In its sepa-

rate reply to the Union’s April 29 complaint, TDRH stated

that “some employees have been ‘relocated’ because

urine sample results exceeded the action levels

_. . [which] appear to be in line with those utilized at

_other facilities within the industry . . . [and which] appear

to have been set at values below those levels at which

hazards to employees have been shown to exist.”18 As for

the allegation of excessive respirator use, TDRH told the

Union that it was requiring the Respondent to establish

the basis for such use and to explain why engineering

controls were inadequate to reduce concentrations of air-

borne DU.

On June 3, the parties met for the first bargaining

session since the beginning of the strike. The Union made

a health and safety proposal that the Respondent discon-

tinue respirator use by December 1 and hire an outside

consultant to make a study of TNS plant safety. In

response to the respirator use deadline, the Respondent

acknowledged that it had “areas where air contamination

is outside the limits” and explained that it was currently

making efforts to correct its engineering controls. It

17 The letter did not cite the Respondent for overuse of

respirators even though the underlying TDRH report echoes a

prior report in finding that “there were individuals in the pene-

trator shop who were being required by management to wear

respirators for the duration of 8 hour working shifts” and that

the Respondent admitted that “there were eleven other

areas ... as requiring additional respiratory protection” but not

according to the Respondent, for an entire shift.

18 TDRH apparently was referring to DARCOM’s action

levels, rather than those set out in Reg. Guide 8.22.

App. 47

declined t» commit to a specific deadline for termination

of the mandatory respirator program until such correc-

tions were made. With respect to the suggestion of an

independent inspection, the Respondent failed to disclose

that it had commissioned the RMC study. It stated that it

was amenable to an inspection by an outside consultant if

the Union split the cost. The Union refused, claiming it

could not afford this arrangement.

By the end of June, the Respondent decided to

resume production in August. Hoping to avoid the neces-

sity of hiring replacements, TNS officials met with the

Union’s International president during the weekend of

July 4 in an unsuccessful attempt to reach a settlement to

the work stoppage. On July 8, the Respondent notified its

employees by letter that it would begin hiring permanent

replacements on July 16. The letter further stated that

TNS had “been thoroughly inspected and advised that

our employees face no imminent health-safety danger.”

On July 16, the parties met again. This session started

with a closed-door meeting between the Union and the

Federal mediator. When bilateral discussions resumed,

the Union accepted the Respondent's original $1-an-hour-

wage raise proposal. It soon became clear that the only

two issues dividing the parties were the Respondent's 10-

day layoff proposal and the Union’s health and safety

proposal. Abel’s “biggest fear” was that “the 10-day lay-

off is completely tied to health and safety” because of the

possibility that the proposal would be used by the

Respondent to put overexposed workers “out to pasture.”

In Abel’s view, “if these items were straightened out, we

App. 48

might have a contract.” Although there was some move-

ment on the layoff issue, the parties were unable to

conclude an agreement.

The parties’ final negotiation session in 1981 took

place on September 3. The only subject discussed was the

number of bargaining unit jobs remaining after the hiring

of permanent replacements. The Respondent informed

the Union that no vacancies existed. The meeting ended

with dim prospects for settlement.

Accompanied by an NRC official, TDRH investigated

the TNS plant over a 3-day period in mid-October and

another 2 days on December 17 and 18.19 In a letter dated

January 28, 1982, the Respondent was cited with a list of

familiar violations, including air contamination above

MPC in the foundry throughout the last and first quarters

of 1981 and the failure to notify employees of “their

exposure to excessive levels of airborne radioactivity.” In

a concluding paragraph, TDRH stated “it appears that

your safety program was inadequate to protect workers

from unnecessary radiation.” The Respondent was urged

to direct its attention “toward revamping [its] pro-

gram .. . to insure that employees will no longer be

unnecessarily exposed to radiation.”

At the request of TDRH, NIOSH investigated the

Respondent's facilities on November 20 and December

19 As noted in the internal report, “the primary purpose of

the visit was to attempt to collect enough data to determine each

employee’s exposure to radiation and radioactive material at

least per quarter over the past year (October 1, 1980, to Septem-

ber 30, 1981).”

App. 49

14-17 in order to provide technical assistance in evaluat-

ing potential health hazards of exposure to DU at TNS.

NIOSH examined TNS employees’ TLD readings of exter-

nal whole body exposure, in-vivo lung scans, and urine

bioassays. NIOSH found that “whole body doses for pro-

duction workers from 1975 to 1980 ranged from 1.06 rems

to 2.16 rems,” with none having “ever exceeded 5 rems

per year whole body dose” since 1978.20 NIOSH con-

cluded that these doses, “while for the most part within

legal limits, were higher than doses observed among

workers in other parts of the uranium fuel cycle and

other U.S. nuclear industries.” From in-vivo testing data,

NIOSH determined that between 1978-1981 “32% of the

hourly work force had a yearly dose to the lung of 5.3 to

15.9 rems per year” which, although within “the accepted

radiation guidelines allow[ing] a maximum annual lung

dose of 15 rems,” represented “an inadequate margin of

safety.” NIOSH did not make any independent conclu-

sion based on these readings.

With respect to urine bioassays, which NIOSH “con-

sidered the critical factor in calculating safe [internal]

exposure levels,” it recommended that TDRH and TNS

follow the nonmandatory NRC Reg. Guide 8.22 notice

and action levels. It also found that between 1977 and

1981 an annual average of 52 percent of the TNS produc-

tion work force had one or more bi-monthly urine sam-

ples greater than the higher DARCOM notice levels of 50

ug/l and 19.5 percent had one or more samples greater

than 100 ug/l NIOSH concluded that

0 Findings pertaining to whole body exposure in 1981

were not included.

App. 50

[U]rine uranium concentrations exceeded NRC

guidelines for bioassay at uranium mills, but not

the less stringent [DARCOM] standards

enforced by the state. Because the NRC guide-

lines are set to protect workers from the toxic

effect of uranium to the kidneys, we may infer

that that [sic] there is some possibility of renal

damage among TNS workers who had urine

uranium concentrations exceeding this

level. ... Since the majority of TNS workers had

very short durations of employment it is

unlikely that they have measurably altered

changes in renal function. We have therefore

concluded that a medical study of renal function

in this population would not be useful.

The situation at the TNS plant was the subject of a

Congressional hearing on December 8. Among the wit-

nesses at the hearing were TDRH Director William

Graham and NRC Office of State Programs Director G.

Wayne Kerr. Graham reviewed his agency’s actions vis-

a-vis TNS. In specific reference to the mandatory respira-

tor program, he stated

Since the levels of dust monitored in the

penetrator shop exceeded the maximum allow-

able by only a small fraction, we felt fairly confi-

dent that workers were being protected,

provided respirators were being worn correctly

and consistently. The effective use of personal

protective equipment — and I think this has been

demonstrated here today in testimony — such as

respirators is difficult for the Division to moni-

tor and the company to enforce.*?

21 H.R. Rep. No. 102, 97th Congress, Ist Sess. at 232 (“Gore

_ Report”).

App. 51

Kerr generally reviewed NRC’s authority and the

“Agreement State” program. He specifically described

NRC’s oversight of the TDRH program and its handling

of the TNS safety situation. He concluded that “we

believe that Tennessee is carrying out its regulatory

responsibilities in the TNS case in an appropriate man-

ner.”22 Kerr also commented about references made dur-

ing the hearing to NRC regulatory guides. He noted that

each guide specifically states that “[rlegulatory guides

are not substitutes for regulations and compliance with

them is not required. Methods and solutions different

from those set out in the guides will be acceptable if they

provide a basis for the findings requisite to the issuance

or continuance of a permit or license by the commis-

sion.”?> Kerr also stated that uranium mill bioassay levels

described in NRC Reg. Guide 8.22 were “inappropriate to

the [TNS] case being discussed.”24

On February 15, 1982, 10 months after the strike

began, the Union submitted to the Respondent an uncon-

ditional offer to return to work on behalf of the

employees. The Respondent replied that there were no

job openings at that time as all positions were currently

held by permanent replacements. The parties continued

to meet and negotiate until, on May 3, 1982, the Respon-

dent received a decertification petition signed by 70 of

the 73 employees then working at the plant stating they

no longer wished to be represented by the Union. Soon

22 Id. at 245.

23 Id. at 246.

24 Id.

App. 52

thereafter, the Respondent withdrew recognition from the

Union and since that time has refused to bargain.

B. Contentions of the Parties

The General Counsel and the Charging Party Union

submit that the employees ceased work because they

believed in good faith and on an objective basis that

conditions at their workplace had become abnormally

dangerous, within the meaning of Section 502 of the Act,

because of hazards associated both with exposure to DU

and with the mandatory respirator program. The General

Counsel and the Union further contend that employees

who quit work pursuant to Section 502 have rights and

privileges equivalent or superior to unfair labor practice

strikers; therefore, when the Respondent advised its

employees that it was going to hire permanent replace-

ments and thereafter refused to reinstate the employees

immediately after their unconditional offer to return to

work, it violated Section 8(a)(3) and (1).

The Respondent contends that the employees were

engaged in an economic strike in support of the Union’s

position in negotiations for a successor agreement and

that they were therefore not engaged in a good-faith

safety protest within the meaning of Section 502. Further-

more, the Respondent and amici United States, ANI, and

MAELU contend that the radiation exposures received by

the employees were acceptable under Federal and state

regulatory standards to which the Board should defer

and thus, by definition, abnormally dangerous conditions

within the meaning of Section 502 did not exist at the

plant. Finally, the Respondent and amicus Chamber of

App. 53

Commerce submit that, even if abnormally dangerous

conditions did exist, Section 502 operates solely to

exempt employees from adherence to a contractual or

statutory no-strike provision when they cease work

because of such conditions; it does not create a separate

employer unfair labor practice for maintaining unsafe

conditions, nor does it confer upon employees engaged in

such a work stoppage the right to reinstatement imme-

diately upon their unconditional offer to return to work.

C. The Judge’s Decision

The judge found that the employees ceased working

in a good-faith protest of working conditions which, on

the basis of objective evidence, were abnormally dan-

gerous within the meaning of Section 502. Preliminarily,

she expressed the view, inter alia, that under the applica-

ble objective evidence test: the General Counsel must

prove that employees’ “perceptions were reasonably

based on verifiable grounds,” rather than prove danger-

in-fact; an employer’s failure to take available abatement

actions may be a factor; and the applicable regulatory

standards, including the ALARA concept, were relevant,

but there is no prima facie requirement to prove that the

Respondent consistently exceeded those standards. She

then identified the following as objective evidence of

abnormally dangerous working conditions:

(1) air quality of the facility exceeded MPC at 11

work stations for at ast the last quarter preced-

ing the strike; (2) the protracted use of respira-

tors by a substantial number of employees was

deleterious to their health; (3) the employees’

average whole body uranium exposures were

App. 54

far greater than those typical for the nuclear

industry; and (4) that repeated and excessive

uranium-in-urine levels indicated serious risk of

kidney damage. I further conclude that these

conditions came about and were not soon

abated because Respondent failed to comply dil-

igently with governmental codes prescribing

sound health physics practices.

The judge further concluded that although

employees who engage in a Section 502 work stoppage

are not strikers, the provision bestows on them “special

protections,” akin to those enjoyed by unfair labor prac-

tice strikers, which prohibit their suffering “any penalty”

including the penalty of permanent replacement. Accord-

ingly, she found that by permanently replacing and refus-

ing to reinstate the employees when they offered to

return to work without condition, the Respondent vio-

lated Section 8(a)(3) and (1).

D. Analysis

1. Failure to meet test for “abnormally dan-

gerous”

Contrary to the judge, we find that the General

Counsel has failed to prove that, at the time of the May 1,

1981 employee walkout at TNS, the totality of available

evidence supplied a sufficient basis for a reasonable

good-faith belief that the employees’ working conditions

were “abnormally dangerous” within the meaning of Sec-

tion 502. Thus, the General Counsel has failed to show

25 Judge’s decision, slip op. at 116.

App. 55

that the TNS employees reasonably believed, on the basis

of objective evidence, either that conditions at the

Respondent's plant had changed to an extent necessitat-

ing a walkout or that the employees’ cumulative expo-

sure to DU had reached the point at which further

exposure would have posed unacceptable hazards. In the

latter regard, we give substantial weight to the fact that

TDRH never sought, or even considered seeking, meas-

ures available to it that could have required any shut-

down of all or part of the TNS operations. Because we

find that Section 502 does not cover the May 1 walkout,

we need not pass on whether an employer can lawfully

hire permanent replacements for employees who are

engaged in a Section 502 work stoppage.

As we explain in more detail below, in applying the

“abnormally dangerous” clause of Section 502 to

employee walkouts assertedly prompted by conditions in

industrial operations that use or generate nuclear mate-

rials posing radioactive hazards, we do not, contrary to

the suggestion of our dissenting colleague, require the

proponents of Section 502 coverage to prove that condi-

tions were in fact abnormally dangerous at the time of the

walkout or that employees were actually manifesting

physical injury or on the verge of doing so as a result of

conditions in the plant. We recognize that the issue is

more complex than that presented by the case of, for

example, an apparently imminent mine roof collapse.

In applying our test, we also do not, contrary to our

dissenting colleague’s suggestion, abdicate to TDRH or

any other agency our responsibility to decide the legal

App. 56

and factual issues in this case. We simply take the posi-

tion that, in a highly regulated industry like that involv-

ing nuclear materials, an individual cannot form a

reasonable belief concerning whether conditions in a par-

ticular plant are abnormally dangerous without giving

due consideration to the views of the agency that is

charged under the Federal scheme with monitoring safety

conditions, that is empowered to secure shutdowns or

changes in plant procedures if the safety of the workers

requires it, and that is required to consider complaints

filed by any person about safety conditions in the plant.

We see this as essential lest we allow the invocation of

Section 502 as an end run around the statutes directly

applicable to worker safety in this industry, at least

where, as here, there was no evidence that the monitoring

agency was failing to do its job and no objective evidence

at the time of the walkout from which a reasonable per-

son could conclude that hazards were being actively con-

cealed from the monitoring agency.

In this regard, we are struck by the undisputed evi-

dence that the Union, as the employees’ representative,

stated an intention to strike over safety issues as early as

March 10, but evidently perceived no need at that time

either to walk out immediately or to seek answers con-

cerning its complaints from TDRH, the agency with

power to undertake unannounced inspections and to

require the submission of safety data. It was not until

April 29 - virtually on the eve of contract expiration and

the walkout - that the Union sent a telegram to TDRH

regarding the complaints that were said to justify the

strike (which had been formally authorized by the

employees on April 4). We see nothing occurring or made

App. 57

known to the Union and the employees between March

10 and May 1 that provided a reasonable basis for con-

verting a belief that conditions were not abnormally dan-

gerous (i.e., so dangerous as to call for immediate

departure from the workplace) into a belief that they

were. Indeed, although one of the Union’s chief com-

plaints concerned the Respondent’s implementation of

the respirator program, as late as June 3, the Union was

willing for the use of respirators to continue until Decem-

ber 1. In this respect, not only the Union’s actions, but

even its very bargaining position, are inconsistent with

our dissenting colleague’s arguments.

a. The meaning of “abnormally dangerous con-

ditions” in light of the legislative history of

Section 502

We begin with the language of the statute. Added as

part of the 1947 Labor Management Relations Act, com-

monly called the Taft-Hartley Act, Section 502 reads in

full:

SAVING PROVISION

Sec. 502. Nothing in this Act shall be construed

to require an individual employee to render

labor or service without his consent, nor shall

anything in this Act be construed to make the

quitting of his labor by an individual employee

an illegal act; nor shall any court issue any

process to compel the performance by an indi-

vidual employee of such labor or service, with-

out his consent; nor shall the quitting of labor

by an employee or employees in good faith

because of abnormally dangerous conditions for

App. 58

work at the place of employment of such

employee or employees be deemed a strike

under this Act.

We are concerned here with interpreting the final

clause of Section 502. Its plain meaning is that one or

more employees who quit labor because of abnormally

dangerous conditions for work are not engaged in a

strike. Neither Section 502 nor its legislative history offers

any definition of “abnormally dangerous.” Senate debate

culminating in proposal of the historical antecedent of the

final clause of Section 502 indicates that Congress focused

on the simple concept of protecting employees from

being compelled to work by no-strike sanctions in situa-

tions of obvious and immediate physical danger, such as

task of defining the term “abnormally dangerous” has

therefore been left to the Board and reviewing courts.

26 The origin of the final clause of Sec. 502 is traceable to

Senate floor debate about the Case bill, legislation which was

passed by Congress but successfully vetoed by President Tru-

man in 1946. Provisions of that bill would have imposed manda-

tory mediation and cooling-off periods for parties engaged in

certain types of labor disputes. Individuals striking during the

cooling-off periods would have forfeited their status as

employees under the Act. As a result of expressions of concern

for employees confronted with abnormally dangerous working

conditions during the cooling-off period, language identical to

the final clause of Sec. 502 was added to the Case bill, Legisla-

tive History of the Case bill; H.R. 4908, 79th Cong., 2d Session,

Cong. Rec. — Senate, 5678-5679, 5680-5681, 5711-5712, 5794.

App. 59

In Redwing Carriers,?” the Board stated:

We are of the opinion that the term contem-

plates, and is intended to insure, an objective, as

opposed to a subjective, test. What controls is

not the state of mind of the employee or

employees concerned, but whether the actual

working conditions shown to exist by competent

evidence might in the circumstances reasonably

be considered “abnormally dangerous.”

The Supreme Court approved the Board’s objective

evidence test in Gateway Coal Co. v. Mine Workers, 414 U.S.

368 (1974). The Court stated “that a work stoppage called

solely to protect employees from immediate danger is

authorized by Sec. 502,”28 but it disagreed with the lower

court majority’s conclusion “that an honest belief, no

matter how unjustified, in the existence of ‘abnormally

dangerous conditions for work’ necessarily invokes the

protection of Sec. 502.”29 Instead, quoting from the dis-

senting opinion below and citing Redwing Carriers, inter

alia, the Court held that a party seeking to prove cover-

age by Section 502 “must present ‘ascertainable, objective

evidence supporting its conclusion that an abnormally

dangerous condition for work exists.’ ”%°

As we discuss further below, the definition of

“abnormally dangerous” does not turn on a standard

27 130 NLRB 1208, 1209 (1961), mod. 137 NLRB 1545, enfd,

sub nom. Teamsters Local 79 v. NLRB, 325 F.2d 1011 (1963), cert.

denied 377 U.S. 905 (1964).

28 414 U.S. at 385.

29 Id. at 386.

30 Id. at 387 (citation omitted).

App. 60

degree of deviation from a single norm of industrial

safety. Evaluation of objective evidence of abnormally

dangerous conditions must therefore proceed on a case-

by-case basis.

Consistent with the manifest congressional intent of

drawing a narrow “saving” exception to the broad defini-

tion of the term “strike” in Section 501(2) of the Act,

and any consequent no-strike obligation imposed by law

or by contract, the burden of objective proof imposed

under Section 502 is a heavy one. Indeed, in over 40 years

since the passage of Section 502, the Board has found

abnormally dangerous working conditions in only six

contested cases.32 Each of those cases involved objective

proof of tangible and immediate physical dangers which

were substantially greater than those presented by nor-

mally existing conditions at the subject workplace.

31 That section states:

(2) The term “strike” includes any strike or other

concerted stoppage of work by employees (including

a stoppage by reason of the expiration of a collective-

bargaining agreement) and any concerted slowdown

or other concerted interruption of operations by

employees.

32 Richmond Tank Car, 264 NLRB 174 (1982); Combustion

Engineering, 224 NLRB 542 (1976); Roadway Express, 217 NLRB

278 (1975); Fruin-Colnon Construction Co., 139 NLRB 894 (1962),

enf. denied 330 F.2d 885 (8th Cir. 1964); Philadelphia Marine Trade

Assn., 138 NLRB 737 (1962), enfd. 330 F.2d 492 (3d Cir. 1964),

cert. denied sub nom. Longshoremen ILA v. NLRB, 379 U.S. 833

and 841 (1964); Knight Morley Corp., 116 NLRB 140 (1956), enfd.

251 F.2d 753 (6th Cir. 1957), cert. denied 357 U.S. 927 (1958).

App. 61

In the present case, we address for the first time the

applicability ef Section 502 to the intangible threat of

occupational exposure to carcinogens and chemical

toxins. Although there is no indication that Congress had

this kind of hazard in mind in 1947, we find that the

protective intent expr: ssed through Section 502 is appli-

cable to hazards such __ those posed by the use of DU at

the TNS plant. Object proof of abnormally dangerous

conditions in this co: is complicated, however, by the

insidious nature of 1. ible hazards which may not

result in ascertainable physical injury for years.

We reject any motion that objective proof of abnor-

mally dangerous conditions in this context must include a

showing of present injury by cancer or poisoning,** and

we agree with the judge that the General Counsel need

not prove abnormal danger-in-fact under the Gateway

Coal test. On the other hand, the mine disaster paradigm

which motivated the proposal of the Case bill’s “abnor-

mally dangerous” language, the Court’s references in

Gateway Coal to “immediate danger” and “identifiable,

presently existing threat,”>4 and Board precedent apply-

ing the objective test under Section 502 all support the

view that there must be some manifest present need for

employees to quit the workplace. Consistent with that

requirement, we find that a party attempting to demon-

strate Section 502 coverage in the context of employee

33 Such a requirement would be inconsistent with long-

settled Board law. See, e.g., Roadway Express, supra, 217 NLRB at

280; Fruin-Colnon, supra, 139 NLRB at 905; Knight Morley Corp.,

supra, 116 NLRB at 144.

34 414 U.S. at 385 and 386.

App. 62

exposure in the workplace to radioactive and/or toxic

substances may do so by showing that the employees

reasonably believed, on the basis of objective evidence,55

either (1) that inherently dangerous conditions in the sub-

ject workplace had changed significantly for the worse,

so as to impose a substantial threat of imminent danger if

exposure were continued at the time the employees began

to withhold their services, or (2) that the cumulative

effects of exposure to those substances had reached the

point at which any further exposure would pose an unac-

ceptable risk of future injury to employees.

The first prong of our test reflects the following

reasoning set out by the Board in Anaconda Aluminum Co.,

197 NLRB 336,344 (1972):

Absent the emergence of new factors or circum-

stances which change the character of the dan-

ger, work which is recognized and accepted by

employees as inherently dangerous does not

become “abnormally dangerous” merely

because employee patience with prevailing con-

ditions wears thin or their forbearance ceases.

Our second prong allows for the fact that, in the case of

exposure to radioactive or toxic substances, an

employee’s entry into the zone of “abnormally dan-

gerous” conditions, e.g., exposure levels, may in some

circumstances be foreseen as occurring not as a result of

any change in the workplace but simply as the result of

crossing a cumulative exposure threshold.

35 See Red Wing Carritrs, supra.

36 We also allow for te possibility of exceptional circum-

stances in which the place of employment presents abnormally

App. 63

As discussed below, we find that the General Counsel

has failed to establish the applicability of Section 502

under either of the foregoing alternative tests. First, there

is insufficient proof that the employees reasonably

believed that the dangers which were inherent in the TNS

workplace had changed materially for the worse at or

around the time of the walkout. Second, the record does

not indicate that the TNS employees reasonably believed,

on the basis of objective evidence, that their cumulative

exposure to DU had reached a level at which any further

exposure would have been unacceptably risky. As indi-

cated at the outset, in evaluating the reasonableness of

the employees’ professed belief, we find of some signifi-

cance the fact that the employees could have consulted

TDRH before the walkout and that it was the view of that

monitoring agency, as well as the NRC, that conditions at

the TNS plant, although plainly in need of improvement,

were not so dangerous as to require removal of

employees from the plant pending corrective action by

the Respondent. ;

dangerous conditions that are evident virtually from the time

that employees begin work there. In such circumstances, how-

ever, employees acting on a reasonable belief would not stay

long in the workplace. As explained below, we would not find,

under any assumption-of-the-risk theory, that a Sec. 502 walk-

out would be unavailable to such employees who walked out as

soon as objective evidence of abnormally dangerous conditions

was apparent.

App. 64

b. Application of first prong of the “abnormally dan-

gerous” test in this case

In applying the first of our two alternative means of

establishing Section 502 coverage, we note that the inher-

ent dangers of working with DU, even in a state-of-the

art environment of physical engineering controls, are

undisputed. Indeed, evidence in this case concerning the

no-safe-threshold view of occupational exposure to low-

ievel radiation, and the related ALARA cost-benefit con-

cept serves more to underscore those inherent industry

wide dangers than to prove the abnormality of dangerous

conditions at TNS. As a normal working condition,

employees engaged in the kind of production work per-

formed at the TNS plan prior to the work stoppage faced

a greater likelihood of cancer or kidney damage than

most other worker populations. Furthermore, in accord

with Anaconda Aluminum, supra, the appropriate

benchmark of normalcy for evaluating the claim of abnor-

mal danger is set by the “prevailing conditions” at the

TNS plant, rather than by conditions in the nuclear indus-

try at large or in the industrial subgroup of employees

working with DU. This is true even if the existing dan-

gers of the subject workplace are significant.%”

37 See, e.g., NLRB v. Fruin-Colnon Construction, supra, 139

NLRB at 904; L. E. Meyers Co., 270 NLRB 1010, 1011 (1984);

Anaconda Aluminum, supra, 197 NLRB at 344. Of course, under

our second test (sec. c, infra), the General Counsel may seek to

establish that at some point the existing conditions would likely

produce whole body radiation exposures and urine bioassay

levels that would cross an abnormal danger threshold. As we

explain below, however, there is no objective evidence on which

the employees could have concluded that they were closely

approaching such a threshold when they walked out on May 1.

App. 65

It is apparent that the DU-exposure prevention pro-

gram at the TNS plant was less than state-of-the art. For

several years prior to the May 1, 1981 work stoppage, the

Respondent's facility had a level of airborne DU-contami-

nants, and consequent employee exposure, higher than it

could have been had the Respondent faithfully followed

the ALARA concept.5* The degree of exposure levels

remained relatively constant however, although data for

whole body radiation exposures and uranium in urine

had shown a gradual upward trend since 1979.

In the few months preceding the work stoppage,

there were no significant new factors or circumstances

changing the character of the prevailing danger involved

in working at the TNS plant. In this regard, we disagree

with the judge’s characterization of the Respondent's

mandatory respirator program, introduced in January

1981, as a change constituting independent evidence of

abnormal danger. The prolonged wearing of respirators

created discomfort for certain employees and was an

inadequate long-term substitute for physical engineering

controls against DU-exposure hazards, particularly in

light of the Respondent’s failure to comply with NRC

Regulatory Guide 8.15 and the supplemental NUREG

manual. But the respirator program did not itself create

or exacerbate any health and safety hazards.3° Indeed, the

38 The substandard conditions listed in the dissent, e.g.,

leakage and spillage of greensalt, were among the factors that

contributed to the elevated exposure levels.

% There was, for instance, no objective evidence that the

mandatory respirator program created abnormal cardio-pul-

monary risks.

App. 66

RMC report, which was highly critical of the respirator

program, indicated that it may have contributed to a

reduction of urine bioassay levels. Finally, and perhaps

most significantly for the purposes of judging whether

the employees reasonably believed - or even actually

believed — that the mandated use of the respirators cre-

ated an abnormally dangerous condition as of May 1, it is

undisputed that on June 3, the first negotiating session

after the strike began, the Union’s nealth and safety pro-

posal included a proposed requirement that would have

permitted the Respondent to continue using respirators

until December 1.

In the judge’s opinion, which is evidently shared by

our dissenting colleague, the Respondent’s administra-

tion of its health and safety program was also a factor in

considering whether the continuing level of DU-exposure

hazards was abnormally dangerous. Indeed, the crux of

the judge’s decision appears to be her concern that the

Respondent did not take timely, reasonable, and available

corrective measures in reaction to governmental direc-

tives and a substantial body of scientific opinion indicat-

ing a direct incremental correspondence between DU-

exposure levels and the incidence of cancer or kidney

damage. Although, like our colleague, we share the

judge’s disapproval of the Respondent’s conduct in main-

taining inherently dangerous working conditions that

could reasonably have been made safer, we find that they

have misconstrued the precedent interpreting the narrow

scope and protective intent of Section 502.4¢ Contrary to

40 We note that the judge’s rationale would have dictated a

different result in Gateway Coal itself. As characterized by dis-

senting Justice Douglas, that case involved “the most dangerous

App. 67

the judge and our colleague, the Respondent’s mere

maintenance of prevailing conditions in the TNS work-

place did not transform existing dangers there into abnor-

mal dangers on or around May 1, 1981, absent either

some “ascertainable, objective proof” that employees con-

fronted a substantial change in the risk of cancer or

kidney injury from DU exposure if they remained at work

or proof under our alternative test that cumulative expo-

sures had reached a critical threshold. There is no such

evidence. The only change of consequence occurring on

or near the date of the work stoppage was the expiration

of the collective-bargaining agreement at midnight on

April 30, an event irrelevant to workplace safety, and as

we explain in section c below, the record evidence is also

insufficient to satisfy the second test.

We also find the conduct of the employees and their

Union in the months preceding the strike relevant in

determining whether they had a reasonable belief that

significant changes in working conditions rendered work-

ing conditions abnormally dangerous as of May 1, when

occupation in America,” as measured by the Bureau of Labor

Statistics, and a mining operation classified by the United States

Buieau of Mines as “especially hazardous.” Congressional testi-

mony about prevailing conditions at this mine had detailed a

history of supervisory negligence in safety matters, 414 U.S. at

388. Mining employees engaged in a work stoppage to protest

the employer’s reinstatement of two foremen who faced crimi-

nal charges of falsifying mine airflow records essential to the

monitoring of deadly methane gas levels in the mine. The Court

majority nevertheless found that the work stoppage was not

protected by Sec. 502, because the Union’s claim did not concern

“some identifiable, presently existing threat to the employees’

safety.” Id. at 386.

App. 68

they walked out. In October-November 1980, and again

in March 1981, some employees considered striking to

protest working conditions. They were dissuaded from

doing so by union officials. At least by January 1981,

those officials, particularly Local Union President Bettis,

wére more specifically aware of the invisible dangers

attendant to the physically manifest working conditions

at TNS. They repeatedly referred to health and safety

problems in monthly labor-management plant tours and

in contract negotiations. Although periodically threaten-

ing strike action upon expiration of the contract, they

made no attempt to relate May 1 to any objective evi-

dence that conditions by that date would become unrea-

sonably dangerous. Of equal importance, they made no

effort until virtually the eve of the strike to bring TDRH

into the plant to make an inspection that might have

confirmed any suspicions.

In sum, we find that the General Counsel has failed

to show that the employees reasonably believed, on the

basis of objective evidence, that abnormally dangerous

working conditions existed on the date of the walkout, as

measured by reference to the inherently dangerous condi-

tions which had prevailed at the TNS plant for a long

time. There were no “new factors or circumstances”

which changed the character of the prevailing danger on

May 1. All that occurred on that date was expiration of

the contract and a walkout by employees in protest of

conditions that, at least in one important respect (urine —

bioassay levels), may actually have been improving.

App. 69

¢. Application of second prong of the “abnormally dan-

gerous” test in this case

Although the General Counsel has not shown that

the employees reasonably believed that any material

change in the degree of danger inherent in working at the

TNS plant had occurred at or near the time of the walk-

out, that failure alone is not dispositive of the Section 502

issue. As we have indicated, in a workplace such as the

TNS plant, at which employees are subjected to repeated

exposure to radioactive or toxic substances, the cumula-

tive exposure level may build, over time, to a point at

which further exposure may pose unacceptable risks to

the work force, even though no material change in the

employees’ working conditions may have occurred. In

such a case, the fact that the employees may have worked

under inherently dangerous conditions for a long time

without protesting or quitting work would not-preclude a

finding that the Section 502 protection applies. It is likely

that only by “accepting” such conditions over a period of

time would employees reach the levels at which further

exposure would pose excessive risk. To deny employees

the protection of Section 502, even though they have

reached a critical exposure threshold because they had

previously “accepted” dangerous conditions, would be a

Catch-22 result that obviously would vitiate the purposes

of Section 502.

For the foregoing reasons, we hold that the General

Counsel also may demonstrate the presence of abnor-

mally dangerous conditions by showing that employees

had a reasonable belief, grounded in objective evidence,

that such a danger threshold had been reached. In this

App. 70

case, however, the General Counsel has made no such

showing. The record does not even establish what that

threshold level of exposure is, let alone that the

employees reasonably believed that it, or any such level,

was reached or exceeded at the TNS plant at any material

time.

In assessing the employees’ objective grounds for a

reasonable belief on this matter, we are of the view, as

noted at the outset, that we should take account of the

actions of the agencies charged under the nuclear safety

program originally established under the Atomic Energy

Act with the responsibility for monitoring radiation haz-

ards in plants such as TNS. As recited in our statement of

facts, this regulatory authority is vested in the NRC and

in “agreement state” agencies such as TDRH. We give

substantial weight to those agencies; assessment of the

dangers of DU-exposure at the TNS plant under relevant

safety regulations.4! We recognize that there is no exact

equivalent of the term “abnormally dangerous” working

41 We also find it appropriate to accord the same degree of

weight to actions by NIOSH, which was requested to investigate

the Respondent’s plant by TDRH, except to the extent that

NIOSH’s actions are premised on standards which TDRH and

NRC did not apply to the Respondent’s operations. In this

regard, we do not accord substantial weight to findings and

recommendations by NIOSH which are based on urine bioassay

standards set forth in proposed Regulatory Guide 8.22. In con-

gressional testimony, NRC Official Kerr expressly rejected the .

view that this uranium mill guideline, which was in any event

nonmandatory, was applicable to TNS plant operations. Gore

Report at 246.

—_—

App. 71

conditions in the NRC/TDRH regulatory lexicon. Conse-

quently, the critical inquiry in evaluating the investiga-

tory findings and recommendations of those agencies is

whether they ever indicated that conditions at the TNS

plant were so unsafe as to require removal of employees

from the plant on May 1, 1981, or even serious consider-

ation of taking such action.‘2 The record is bereft of any

such evidence.

As detailed in the preceding narrative of events,

TDRH officials conducted seven separate investigations

of nuclear safety conditions at the TNS plant from Sep-

tember 1979 through December 1981. One of these inves-

tigations took place on March 9 and 10, 1981, less than 2

months prior to the May 1 work stoppage. Another inves-

tigation took place on May 5 and 6, in direct response to

the Union’s complaints. Although some data relevant to

contemporaneous employee exposure levels were not

considered during the investigations that were conducted

close to the date of the work stoppage, supplemental data

covering the immediate prestrike period were reviewed

* As indicated below, however, we allow for the possibility

that it might be shown in a given case either that conditions had

been concealed from the monitoring agencies or that there had

been a significant abdication of regulatory responsibilities. And,

of course, as also indicated above, if there is a showing that the

employees had an objective reasonable basis for believing that

their cumulative exposure levels were close to exceeding a

known danger threshold, then the requirements of Sec. 502

would be met without regard to the monitoring agencies’ failure

to act.

as:

App. 72

during the complementary, extensive investigations by

TDRH and NIOSH in late 1981.

Viewed in conjunction, the testimony of agency offi-

cials, internal agency memoranda, official reports, and

letters based on the aforementioned investigations pro-

vide objective evidence of the agencies’ expert view that

on May 1: (1) numerous aspects of the Respondent's

safety practices remained in noncompliance with agency

standards; (2) average airborne Du-contaminant levels

were slightly in excess of MPC; (3) whole body and lung

dosage radiation exposure levels were within Federal

standards; and (4) urine sample results were frequently

above DARCOM action levels, but the Respondent's

relocation policies and the short employment tenure of

the average TNS employee made kidney damage

unlikely. There is no evidence of any significant change

for the worse in DU-exposure hazards proximate to the

date of the work stoppage. In fact, the TDRH internal

report of the March 9-10, 1981 investigation stated that

the “inplant site is not as contaminated as noted several

years ago. .. . There are many areas that need improve-

ment and constant updating but it appears that at the

present time no crisis or eminent [sic] threat to health and

safety exist.”44 Most significantly, there is no evidence

43 As we have noted, TDRH did not request the Respon-

dent’s exposure records during its March 1981 inspection, and

there is no basis for concluding that the Respondent would have

declined to produce the records if asked.

“4 Thus, although Member Devaney is correct in noting that

there had been some increase in exposure to radiation at the

TNS plant (at least prior to the use of respirators), there is no

record evidence indicating that exposure levels had become

App. 73

that either TDRH or the NRC ever considered exercising

their authority to seek suspension or revocation of the

Respondent's operating license, effectively shutting down

the TNS plant, to protect employees from these hazards.

The judge has indicated her view that TDRH’s regu-

lation of the Respondent's operations is entitled to less

weight in determining the existence of abnormally dan-

gerous working conditions because relevant regulations

were too lenient, TDRH lacked effective enforcement

authority, and its findings and recommendations

reflected a failure to seek independent verification of the

Respondent's exposure data and representations about its

dangerous. Whole body exposures, though somewhat elevated,

never approached 5.0 rems per year, and, as the RMC report

suggests, urine bioassays began to decrease after the respirator

program was implemented in January 1981. Although TNS was

faulted by the authorities for relying on such measures as respi-

rators and employee relocation rather than moving more

quickly to reduction of contaminants through engineering con-

trols (the record indicates that the equipment for engineering

controls was on order and due to arrive in August 1981), there

was no evidence that these measures placed the employees at

unreasonable risk. In this regard, it is noteworthy that the NRC

“Standards for Protection Against Radiation” permit the use of

“precautionary procedures, such as increased surveillance, lim-

itation of working times, or provision of respiratory equipment”

when “it is impracticable to apply process or other engineering

below [allowable levels].” 10 CFR § 20.103(b)(2). This would

suggest that using such measures when Process and engineer-

ing controls are not “impracticable” is a violation of regulations

but not one that the NRC would regard as Producing unaccepta-

bly dangerous working conditions.

App. 74

safety program. We disagree. There may well be an occa-

sion when a regulatory agency’s review of safety condi-

tions is so patently inadequate to identify hazards

requiring removal of employees from the workplace that

the Board should give little or no weight to agency action

in assessing the objective evidence available to support a

reasonable belief that conditions are abnormally dan-

gerous. Clearly, however, this is not such a case.

The massive amount of conflicting scientific evidence

and opinion in the record demonstrates that there is a

considerable debate about safety standards (and the

imposition of tort liability) in the nuclear industry. This

does not prove, however, that the governing regulatory

process is so clearly unreliable that the Board should not

rely on it as an objective factor in deciding whether

employees reasonably believed abnormally dangerous

conditions existed at the TNS plant. Furthermore, in spec-

ific reference to TDRH’s execution of its responsibilities,

we note that NRC officials accompanied TDRH officials

during both the November 1980 and October-December

1981 inspections of the TNS plant. In testimony at the

Congressional hearing on December 8, 1981, NRC Office

of State Programs Director Kerr said “[W]e believe that

Tennessee is carrying out its regulatory responsibilities in

the TNS case in an appropriate manner.”

We recognize that TNS production employees were

not privy to most of the voluminous scientific data, opin-

ion, and analyses in the record of this proceeding relating

to DU-exposure hazards in their workplace and may have

lacked the educational skills necessary to gain full com-

prehension of the specific meaning of such information

on their own. It is clear, however, that TNS employees

App. 75

had a fundamental appreciation of the potential risks of

working with uranium products. In addition, they daily

confronted working conditions which required no special!

expertise to interpret: visible DU-dust, inadequate ven-

tilating and shielding equipment, furnace blowouts, and

unsanitary changing rooms. If in the months or weeks

before the strike they believed that these, or unseen haz-

ards, might pose abnormal dangers, the employees, act-

ing individually or through their Union could have

brought this evidence to the attention of either TDRH or

the TOSHA (the state agency enforcing occupational

safety and health standards) or both. They did neither

until they had voted on the strike and were on the verge

of walking out. ;

Based on the foregoing analysis, we find that the

General Counsel has also failed to satisfy the alternative

test for Section 502 coverage, namely that working condi-

tions at TNS were such that the cumulative effects of

exposure to radioactive or other toxic substances had

reached the point at which any further exposure would

pose an unacceptable risk in t

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