# Petition for Writ of Certiorari — TNS, Inc. v. Oil, Chemical & Atomic Workers International Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1933%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 516 U.S. 821 ## Text TIL aD 942067 WH 19/a ¥ — ee 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 7 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? ii 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 iv 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 Vv 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 1 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). = vy 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 3 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 10 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. 11 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. 12 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) 13 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. 14 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. 15 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 16 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. 17 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 18 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 19 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 Appearing in the order shown are the following: PN MES a ends Sec eeMas. ce veil cos. App MN I 6 Woks Ch obndece ce becuse ne, App PM wea iwedpiS socks ca diceer scl cack App ACERS ESE SES AIRE FR e App Judgment of the United States Court of Appeals for the District of Columbia Circuit......... App. ERTS Ft ee re rere ee App. 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 Oe 4 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.® © Of course, since it is normally impermissible for 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). © TDRH Official Charles West testified that it would be “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). a 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 r [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1933%3A1. Public record. Not legal advice.