Petition for Writ of Certiorari — Paper, Allied-Industrial, Chemical & Energy Workers International Union v. TNS, Inc.

Supreme Court, US.

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02 557 OCT -8 mez

IN THE

Supreme Court of the United States

PAPER, ALLIED-INDUSTRIAL, CHEMICAL & ENERGY WORKERS

INTERNATIONAL UNION,

Petitioner,

We

TNS, INC.,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

LYNN AGEE *

General Counsel

PACE INTERNATIONAL UNION

Post Office Box 1475

Nashville, Tennessee 37202

(615) 834-8590

HELEN DE HAVEN

602E Longview Road

Knoxville, Tennessee 37919

* Counsel of Record (865) 602-2336

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

® <<

Og RETA SP ELIE LE IR LER NOPE GINE BE A LTE

QUESTION PRESENTED

Whether a court of appeals has the authority to vacate a

National Labor Relations Board decision that an employer

has violated the National Labor Relations Act and must rein-

state employees with backpay solely on the ground that the

Board engaged in inexcusable delay in reaching its decision.

(1)

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TABLE OF CONTENTS

Page

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STATUTORY PROVISIONS INVOLVED.................. 2

DEAL EMEINE OF THE CASE. ........ccecccsssoosesescsecsvescsses 2

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2. The Court of Appeals Decision.................... 10

REASONS FOR GRANTING THE WRIT..............000. 14

THE SIXTH CIRCUIT’S VACATUR OF THE

BOARD’S BACKPAY ORDER IS CONTRARY

TO APPLICABLE PRECEDENTS OF THIS .

COURT AND IN CONFLICT WITH THE

DECISIONS OF OTHER CIRCUITS ...........ccecceeeees 14

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TABLE OF AUTHORITIES

CASES Page

Allen v. United States, 588 F. Supp.-247 (D. Utah

IIE saiccakinnahericieantanineushnbanaessntaleataaiiniediasaneiabe munis 12

Consolidated Freightways v. NLRB, 892 F.2d

PR Cn: Gets. CID xcneretonesncinnsootensieiiciniicinnhnnes 17

Emhart Indus. v. NLRB, 907 F.2d 372 (2d Cir.

PUP scsisccisssvnntnehicipaintsaieioncdnlipumaeeshasiialieneauadaemaceton 17, 18

J.H. Rutter-Rex Manufacturing Co., Inc. v.

NLRB, 399 F.2d 356 (Sth Cir. 1998)............0008 15

NLRB vv. International Assoc. of Bridge,

Structural & Ornamental Ironworkers, Local

GOD. GEG US. TEFO CI ev iicevesccscescensnsnsicenvnen 18

NLRB v. J.H. Rutter-Rex Manufacturing Co., -

Pe LG Et a 14, 15, 16, 18

NLRB vy. Mastro Plastics Corp., 354 F.2d 170 (2d

Ra: Ieee casisaiisincainicesenninebaniatetanlcaanuemmanaaaneiaias 16

NLRB v. Seven-Up Bottling Co., 344 U.S. 344

EID ic tensvensccnereiutanenisnaciiniianssadiimeenasaiaiaiubiainios 15

NLRB vy. Thill, Inc., 980 F.2d 1137 (7th Cir.

POUT) scssisseshsninisnsetsnipusintehaniasiisnicioaesnmpianaatevauaamniats 17, 18 :

OCAW v. NLRB, 46 F.3d 82 (D.C. Cir. 1995)....... 8 .

Olivetti Office U.S.A., Inc. v. NLRB, 926 F.2d @

RE Ce. FIFE iinctirecccesontionens 18 4

Southwest Merch. Corp. v. NLRB, 943 F.2d 1354

SER Sle ROE D sciscscsinreicnnennnenmnneiienins 16, 17

STATUTES

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IN THE

Supreme Court of the Gnited States

No.

—_

PAPER, ALLIED-INDUSTRIAL, CHEMICAL & ENERGY WORKERS

7 INTERNATIONAL UNION,

Petitioner,

V.

TNS, INc.,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner PACE International Union (the Intervenor

below) prays that a writ of certiorari issue to review the

decision of the United States Court of Appeals for the Sixth

Circuit, entered on July 10, 2002.

OPINIONS BELOW

The opinion for the United States Court of Appeals for the

Sixth Circuit is reported at 296 F.3d 384 and is reprinted in c

the Appendix to this Petition at la-34a. The opinion of the :

National Labor Relations Board is reported at 329 N.L.R.B.

602 and is reprinted at Pet. App. 35a-83a.

JURISDICTION e

The decision of the Court of Appeals was issued on July e.

10, 2002. The jurisdiction of this Court is invoked pursuant E.

to 28 U.S.C. § 1254(1). :

2

STATUTORY PROVISIONS INVOLVED

Section 502 of the NLRA, 29 U.S.C. § 143 (2002), is re-

printed in full at Pet. App. 84a. It provides, in pertinent part:

Nor shall the quitting of labor by an employee or

employees in good faith because of abnormally

dangerous conditions for work at the place of

employment of such employee or employees be deemed

a strike under this Act.

STATEMENT OF THE CASE

A. Factual Background

When Petitioner PACE International Union (formerly

OCAW) organized the TNS employees in 1977, TNS (for-

merly Tennessee Nuclear Specialties) was a small foundry in

the Appalachian mountains of Tennessee that employed

fewer than 30 unskilled production and maintenance workers,

mostly young, male, and poorly educated. Recommended

Decision and Order of the Administrative Law Judge (ALJD)

at 7, 90, 24.' The facility manufactured depleted uranium

metal (DU) from greensalt, a by-product of the uranium

enrichment process. /d. at 7. DU, which is over ten times

heavier than steel and ignites spontaneously in air, is ideal for

armor-piercing warheads.” Within a year after the Union

negotiated the first collective bargaining agreement, TNS was

purchased by Aerojet, a subsidiary of General Tire and

Rubber, which had a contract with the Department of Defense

to manufacture anti-tank ordnance. /d. at 5, 7. Within

another year, TNS had more than tripled the size of its

workforce and had added a “penetrator shop,” including a

metal casting process and a machine shop for manufacturing

' Ten copies of the 160 page ALJD have been lodged with the Clerk’s

Office.

2 DU ordnance was used on the battlefield for the first time in the Gulf

War in 1991 and later by U.S. troops in Kosovo. -

3

GAU-8 missile cores. /d. at 5, 7-8, 91. TNS continually

increased its production quotas to meet its contract deadlines.

Id. at 7, 50.

DU is considered mildly radioactive in comparison to

enriched uranium because it emits primarily alpha particles, a

form of radiation-that, unlike beta and gamma rays, is not

capable of penetrating human skin. /d. at 32. For that reason,

DU does not pose a significant danger in a facility with

adequate containment processes. As long as a worker does

not breathe or swallow DU or ingest it through cuts or open

sores, there is little reason for concern. However, once DU

enters the body, alpha particles are by far the most dangerous

form of radiation, causing lung cancer, colon cancer, and

genetic damage. /d. at 36. DU also causes damage to the

kidneys because it is a heavy metal, like lead and arsenic. /d.

Here, by May 1981, when the TNS workforce went out on

strike over what they perceived to be abnormally dangerous

conditions, 80% of them had been exposed to more radiation

than 90% of workers in the entire U.S. nuclear industry,

according to the National Institute of Occupational Safety and

Health (NIOSH). /d. at 45.

The record in this case comprises over 23,000 pages

of testimony and exhibits. The ALJD exhaustively docu-

ments that Respondent TNS expanded its production without

installing engineering controls that would have contained, or

shielded workers from, the large amounts of radioactive

greensalt and DU dust that its manufacturing equipment

created, and discusses the sources of contamination asso-

ciated with each of Respondent’s fifteen production proc-

esses. Together, these processes produced extraordinary

amounts of airborne and surface radiation in the form of

uranium dust, fumes, and vapors. /d. at 7-27. The decision

also chronicles in great detail the inadequacies of the venti-

lation, suction, and mist-containment equipment that should

have captured the contaminants before they entered the air the

4

workers breathed. /d. It documents rising exposure levels as

measured by semi-annual in-vivo monitoring and bimonthly

urine bioassays of employees and by the data from in-plant

monitors that measured concentrations of airborne radiation

in the atmosphere—all of which radiation measurements were

required by the nuclear regulatory agencies. /d. at 43-47.

The decision also documents the inadequacy of Respondent’s

decontamination procedures, both of its workplace and of its

workers, who could not, in the overcrowded change room,

wash off all the radioactive black dust that made them look

like coal miners at the end of the day or monitor themselves

for residual contamination before they went home to their

families. /d. at 25-26. Respondent gave production quotas a

far higher priority than worker health and, as its own

consultant informed it, lacked commitment to a radiation

safety program. /d. at 60-62.

As dust and exposure levels increased throughout the last

half of 1980, the employees became increasingly alarmed

about the conditions in which they were working, and

increasingly active in voicing their concerns through their

union representatives. Id. at 90-93. Monthly union-manage-

ment health and safety tours documented contamination and

faulty containment equipment in all production areas of the

plant and the change rooms, and were posted for employees

to read. /d. at 91-92. Month after month the same problems

appeared without correction, increasing employees’ alarm

and frustration. /d. at 92. Respondent also ignored the rec-

ommendation of its health and safety manager that the pene-

trator shop be shut down until it could be decontaminated and

proper engineering controls installed to contain the radio-

active dust and mist. /d. at 50.

The ALJD also found that TNS failed to correct defi-

ciencies in its engineering controls and radiation safety

program, pointed out numerous times by the Tennessee

Department of Radiological Health (TDRH), which, by

5

agreement with the United States Nuclear Regulatory Com-

mission (NRC), had regulatory oversight of Respondent’s

facility. /d. at 39. Between late 1979, when Respondent —

started operating the penetrator shop, and May 1981, when

the workers went on strike, TDRH inspected the plant several

times and in each case reported serious and worsening

airborne contamination problems, inadequate health and

safety training of employees, and lack of commitment to the

important regulatory principle that requires nuclear employers

to keep exposures “as low as reasonably achievable”

(ALARA). /d. at 78-84. Though TDRH had virtually no

civil enforcement power short of shutting down the operation,

which the Tennessee Attorney General had strongly advised

against attempting, TDRH repeatedly found Respondent in

violation of specific regulations and guidelines with respect to

the dusty air and the use of respirators, and, most importantly,

in violation of ALARA. /d. Under the ALARA principle

TNS was not allowed to expose its employees to greater

levels of radioactive dust than it could reasonably avoid, even

if the exposures were not above the maximum permissible

limits set by the regulatory agencies for internal doses. /d. at

38. As the principle informing all nuclear safety regulatory

standards, ALARA required Respondent to install adequate

radiation containment equipment on its production processes

rather than place its employees in respirators; required it to

hire an adequately trained radiation safety staff; required it to

instruct its employees adequately about radiation protection;

and required it diligently to correct the deficiencies observed

by TDRH. /d. at 123-28. Respondent complied with none of

these requirements. /d. As a result, even though Respondent

placed its air monitors in positions that did not measure the

air in the employees’ breathing zone, and even though TDRH

did not have access to Respondent’s air quality data for the

first quarter of 1981, the agency frequently expressed grave

concerns about the employees’ working conditions. /d. at

42, 78-84.

6

In January 1981, rather than installing engineering controls

or cutting back on production to reduce the dust as TDRH

had ordered and its health and safety manager had rec-

ommended, Respondent instituted a mandatory respirator

program that required most of the employees to spend their

entire workday in hot, heavy rubber masks through which

they had difficulty breathing and which hurt their faces,

impaired their vision, and prevented them from speaking. /d.

at 49, 50. Nuclear regulations do not permit the use of

respirators either as a substitute for engineering controls or

for long periods of time. /d. at 53. In addition, Respondent’s

respirator program did not comply with regulatory standards

with respect to physical examination of employees, fitting

and sealing procedures, decontamination and storage of

respirators, or allowing employees unrestricted breaks for

relief. Jd. at 50-52. Respondent intended to require the full-

time use of respirators by virtually all of its employees for at

least eight months. /d. at 61-62. The employees suffered so

much from the masks that a number of them walked out. /d.

at 93. The Union persuaded them to return until after contract

negotiations that were soon to begin. Jd.

Union-Company negotiations failed to resolve the employ-

ees’ concerns. TNS rejected all of the Union’s health and

safety proposals. /d. at 92, 95-98. On April 30, 1981, the

contract expired and the employees began a work stoppage.

Id. at 101. In September, Respondent hired permanent

replacements. /d. at 104-05. In February 1982, the Union

made an unconditional offer to return to work, but Respon-

dent refused to reinstate the workers except as vacancies

occurred. /d.

The strike generated national attention and media coverage.

The National Institute on Occupational Safety and Health

(NIOSH) studied the employee exposure records and deter-

mined that exposure levels reflected “an inadequate margin of

safety” and “were higher than doses sustained by workers in

7

other facilities in the U.S. nuclear industries.” /d. at 45. The

Oversight Subcommittee of the U.S. House of Representa-

tives Committee on Science and Technology (the Gore

Committee), chaired by then-Congressman Albert Gore, Jr.,

held a hearing on TNS at which internationally recognized

radiation expert Dr. Paul Morrow testified that “all the

biological data . . . would support the employees’ contention

of excessive uranium exposures and possible renal injury

among workers” and added that “exposure conditions in the

TNS plant have been excessive for at least 2 years.” Jd. at

120. As a result of the congressional hearing, the Tennessee

General Assembly passed legislation that increased the civil

enforcement powers of TDRH, and Respondent immediately

undertook the installation of proper engineering controls,

hired a competent health and safety staff, decontaminated its

facility, enlarged its change rooms, and discontinued the

respirator program. /d. at 27, 53, 125, 127-28.

In August 1982 the General Counsel of the National Labor

Relations Board issued a complaint charging that Respondent

had violated the Act by hiring permanent replacements for the

TNS strikers, who, the complaint alleged, “ceased work in

good faith because conditions at their place of employment

were abnormally dangerous by virtue of their long-term

exposure to unprecedented levels of uranium dust in con-

junction with Respondent’s inadequate health and safety

programs, within the meaning of Section 502 of [the Act].”

Id. at 1-2. The hearing before Administrative Law Judge

Arline Pacht (ALJ) required more than sixty days of trial over

eighteen months and generated a massive record. Because

analysis of the dangers with which the employees had been

threatened in the six months preceding the strike required

understanding nuclear health physics, the ALJ admitted

testimony from several nationally recognized medical and

scientific experts in that field, as well as testimony from

officials of the Tennessee Department of Radiological Health

(TDRH), the transcript of the Gore hearing, the NIOSH

8

report, and the report of Respondent’s own consultant. After

allowing the parties a full year in which to brief the numerous

complex issues litigated at the hearing, the ALJ issued a

lengthy recommended decision in July 1987, upholding the

complaint in all respects relevant here.

The case went to the NLRB for review, and the Board took

five years to issue a decision dismissing the complaint.’ TNS,

Inc., 309 N.L.R.B. 1348 (1992). In OCAW v. NLRB, 46 F.3d

82, 92 (D.C. Cir. 1995), the United States Court of Appeals

for the District of Columbia remanded the case to the Board

with instructions to issue a position upon which a majority of

its decision makers could agree.

In 1999, four years later, the Board issued a supplemental

decision and order that articulated its statutory interpretation

of Section 502 to protect from permanent replacement

employees who strike in the good faith belief, based upon

objective evidence, that conditions at their workplace are

abnormally dangerous. The Board also articulated the

standard to be applied and the factors to be taken into account

when assessing the claim of employees that their good faith

belief was founded on objective evidence. Applying the

standard to the facts, the Board adopted the findings of the

ALJ in their entirety and agreed with all but one of her

conclusions.’ The Board ordered Respondent to reinstate the

strikers and make them whole with respect to backpay, its

standard remedy. Respondent petitioned the Sixth Circuit for

review, and the Board petitioned for enforcement. On July

10, 2002, the court issued the decision that gives rise to this

petition for certiorari.

>The Board noted that “The Respondent’s brief is 413 pages, the

Charging Party’s answer brief is 331 pages, [and] the General Counsel’s

answer brief in 128 pages... .” 309 N.L.R.B. at 1348 n.3.

* The Board shortened the backpay period the ALJ had recommended.

Pet. App. 65a n.40.

B. Proceedings Below

1. The Board Decision

The Board’s 1999 decision addressed the D.C. Circuit’s

instruction to determine “the applicability of section 502 in

the context of occupational exposure to low-level radiation.”

Pet. App. 38a (internal quotation marks omitted). This issue

was a matter of first impression for the Board.

The Board held that the General Counsel need not prove

that employee working conditions were abnormally danger-

ous in fact, and it agreed with the ALJ that an employer’s

failure to correct or abate a reasonably-perceived danger may

be used as evidence of abnormally dangerous conditions.

Pet. App. 46a. The Board held that the abnormally dangerous

threat caused by cumulative exposures need not have resulted

in immediate injury. /d. The Board also held that “abnormal

danger” in the context an employer’s exposure of its

employees to latent, cumulative toxins, means “beyond what

might or should reasonably be expected in such a plant.”

Pet. App. 53a.

With respect to the kinds of evidence that will satisfy the

requirement that the employees’ perception of danger must be

reasonably objective, the Board held:

[W]e will consider whether employees’ observations

- of their workplace and its practices as they related to

exposure to toxic and radioactive substances reasonably

led them to conclude that the dangers they faced in the

workplace had reached a level beyond those reasonably

to be expected in the industry and that their continued

exposure to harmful substances subjected them to a risk

of future serious illness or injury. We will also consider

evidence of significant deviation from industry standards

for a workplace safe for employees, expert testimony as

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to the risks faced by employees, and analyses of the

level of exposure employees had reached at the time

they walked out.

Pet. App. 53a-54a. The Board found that all the above indica-

tors of risk were present at the TNS workplace and that the

employees were reasonably alarmed for their health and

safety. The Board also determined that scientific testing and

regulatory oversight confirmed the employees’ perception

that Respondent was not willing to provide its workforce with

an adequately safe workplace. /d. at 56a.

Having determined that the TNS employees engaged in a

work stoppage within the meaning of Section 502, the Board

held that TNS committed an unfair labor practice by hiring

permanent replacements, and ordered that they be reinstated

with backpay, its standard remedy.

2. The Court of Appeals Decision

On Respondent’s petition for review and the Board’s cross-

petition for enforcement, the Sixth Circuit first deferred to the

Board’s interpretation that Section 502 applies to employees

even in the absence of contractual no-strike provisions. Pet.

App. 10a. Next, the court deferred to the Board’s interpreta-

tion of the Act not to require that a workplace be abnormally

dangerous in fact before employees may invoke the protec-

tions of Section 502. Pet. App. 14a. Third, the court upheld

the Board’s interpretation of the Act to prohibit permanent

replacement of employees engaged in a work stoppage within

the meaning of Section 502. /d.

Respondent raised several challenges to the Board’s

conclusion that the General Counsel had successfully proved

first, that the TNS strikers believed in good faith that their

working conditions were abnormally dangerous; second, that

their belief was a contributing cause of the strike; third, that

their belief was supported by ascertainable, objective evi-

dence; and fourth, that the perceived danger posed an imme-

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diate threat of harm to their health or safety. The court held

that substantial evidence supported the Board’s findings with

respect to the first, second, and fourth factors. /d. at 22a-25a.

Although Respondent did not argue that the evidence

weighed in its favor with respect factor three, the court dis-

agreed with the Board’s conclusion that the strikers’ good

faith belief was supported by ascertainable objective evi-

dence.” /d. at 24a-25a. The court raised this issue sua

sponte. Id.

First, the court considered it irrelevant that the air in the

employer’s facility contained uranium dust in excess of

maximum permissible regulatory limits, because “the use of

ventilators is better read as a response to potentially danger-

ous conditions rather than a dangerous condition itself.” Jd. at

28a. The Board and the ALJ had found that the unprece-

dented production of airborne contaminants, which had

continued at TNS for over five months without abatement and

was worsening all the time, was objective evidence of danger,

clearly observable by the workers and the regulatory agency;

that the employees’ exposure data confirmed the danger; and

that Respondent not only ignored the danger but tried to

conceal it from TDRH. Pet. App. 37a, 4la-42a; ALJD at

12, 40-42.

With respect to the court’s view that the respirator program

constituted proper abatement of the excessive airborne con-

tamination, the Board and ALJ concluded that the mandatory

respirator program was a separate objective indicator of dan-

ger, because it was a clear signal that Respondent’s engineer-

ing processes for containing airborne contaminants were out

° Instead, Respondent argued that as a matter of law the Board could

not find objective evidence of abnormal danger when the nuclear

regulatory agencies that oversaw Respondent had not seen fit to close the

plant or declare an emergency there. The court deferred to the Board’s

contrary interpretation. Pet. App. 20a-26a.

a

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<

12

of control; because long-term respirator use is so difficult,

painful, obtrusive, and unhealthy for employees that the reg-

ulatory agencies do not permit it as an acceptable substitute

for engineering controls; and because at TNS the respirator

program was managed in violation of applicable regulatory

standards for respirator programs. Pet. App. 37a, 42a; ALJD

at 48-55. Based on data from the workers’ urine bioassays

between January and April 1981, the ALJ also found that the

respirator program did not protect the workers from excessive

exposures. ALJD at 120.

‘The court also disagreed that the employees’ abnormal

whole-body exposures were dangerous when the exposure

levels were still within regulatory limits “established with a

considerable margin for safety” (id. at 11, 13), and the court

disagreed that the employees’ urine-uranium counts were evi-

dence of danger because they did not exceed the DARCOM

standard used by Respondent. The ALJ found that in 1980,

80% of Respondent’s hourly production employees received

whole body doses in excess of the doses received by 90% of

other nuclear workers in the nation. ALJD at 44. She found

that ““‘a reasonable person exercising great care in light of the

best of available scientific knowledge would err on the side of

caution by assuming no “safe” threshold exposure to atomic

radiation. . . .”” /d. at 30 (quoting Allen v. United States, 588

F. Supp. 247, 362 (D. Utah 1984)). She also relied on the

NIOSH report, which concluded that “the data from in-vivo

monitoring suggests an inadequate margin of safety. . . . “ (id.

at 45) and which stated that Respondent had no justification

for adopting the permissive DARCOM standard (id. at 120).

Finally, the court deemed significant that the regulatory

agency had not taken action to shut down Respondent’s

operations, Pet. App. 31a-32a, notwithstanding that the ALJ

had found, “The TNS employees had good reason to resort to

self-help when the Agency charged with protecting them

lacked the power or the will to do so.” ALJD at 128.

Pe aoe a te

13

In concluding that the objective evidence did not appear to

support the employees’ alarm at their exposure levels or

justify a work stoppage, and that “the NLRB is not free to

discount these facts completely and find evidence of abnor-

mal dangers in the face of them without further support,” Pet.

App. 3\a-32a, the court allowed that “there could be egre-

gious evidence simply not addressed or understood by the

regulator, or the regulator could have been moving too slowly

for the circumstances, or it could be that the regulator was not

fully apprised of or in control of the situation,” id.

The ALJ, however, had found that the TDRH inspector

was only vaguely familiar with the respirator regulations used

by his Agency (ALJD at 48) and was unaware of the duration

or breadth of the TNS mandatory respirator program (id. at

54). She found that TDRH knew that Respondent was

misplacing air monitors and that Respondent refused TDRH

access to air monitoring data. Jd. at 42. She found that TDRH

had a “regrettable incapacity to effectuate reforms.” /d. at

127-28.

The court did not address the fifth evidentiary factor relied

upon by both the ALJ and the Board in finding that

the employees had objective evidence of abnormal dan-

ger, viz., that “[rjespondent failed to comply diligently with

governmental codes prescribing sound health physics

practices.” In that regard the ALJ and the Board found that

Respondent’s health and safety program was inadequate to

protect employees to whom Respondent owed a duty,

imposed by federal regulation, to keep exposures as low as

reasonably achievable (ALARA). ALJD at 123. The ALJ

cited numerous equipment and process failures with respect

to which corrective action was feasible, deficiencies in

Respondent’s health and safety staff, and lack of management

commitment to the radiation safety program as objective

evidence that TNS was exposing its employees to abnormal

dangers. /d. at 123-128.

14

The Sixth Circuit acknowledged that it would remand the

case to the Board for further consideration of its sua sponte

concerns, but for Respondent’s contention that the order

could not be enforced because of the Board’s “inexcusable

delay” in reaching a decision. Pet. App. 33a-34a. Respond-

ent argued that because the litigation in this case has been

ongoing for over 18 years, its potential liability for backpay is

too great, and reinstatement of the strikers is too unrealistic,

given (unnamed) changes in its operations. The court held

that it did “not see a reasonable way to hold the Company

responsible for damages accruing over all of this time... .”

Id. at 34a. Accordingly, instead of remanding the case, the

court vacated the Board’s decision in its entirety. Jd.

REASONS FOR GRANTING THE WRIT

THE SIXTH CIRCUIT’S VACATUR OF THE

BOARD’S BACKPAY ORDER IS CONTRARY TO

APPLICABLE PRECEDENTS OF THIS COURT

AND IN CONFLICT WITH THE DECISIONS OF

OTHER CIRCUITS.

The Sixth Circuit vacated the Board’s decision that the

employer violated the Act on the sole ground that the Board’s

“inexcusable delay” rendered the Board’s decision unreason-

able. The holding by the Sixth Circuit flies in the face of

this Court’s controlling precedent, NLRB v. J.H. Rutter-Rex

Manufacturing Co., Inc., 396 U.S. 258 (1969), and has

deepened an existing conflict among the circuits regarding the

division of authority under the Act between the Board and

reviewing courts of appeals. Given the reality that lengthy

and delayed Board proceedings are common, it is important

for the Court to resolve the conflict between the circuits and

to address this often-repeated issue that affects the rights of

innocent employees to redress their wrongs under the Act,

notwithstanding delays by the agency empowered to enforce

the Act’s mandate.

15

1. This Court has previously addressed the effect of exces-

sive delay in the NLRB administrative process in Rutter-Rex,

which involved an unfair labor practice strike in which, as

here, the employer was prohibited from hiring permanent

replacements. At the conclusion of the strike, which began in

1954, the employer refused to reinstate all of the strikers who

made an unconditional offer to return to work. In February

1956 the Board ordered reinstatement and backpay of the

strikers, and the United States Court of Appeals for the Fifth

Circuit enforced the Board’s order in 1957. The Board did

not conclude compliance proceedings until 1966, nine years

later. Finding the Board guilty of “inordinate delay” to the

prejudice of the company, “which had been ‘lulled into the

belief that the Board was satisfied and that no further action

was to be expected,” the Fifth Circuit modified the Board

order to eliminate all back pay accruing after 1959. 396 U.S.

at 261 (quoting J. H. Rutter-Rex Mfg. Co. v. NLRB, 399 F.2d

356, 363 (Sth Cir. 1968)). Holding that the Court of Appeals

had “exceeded the narrow scope of review provided for the

Board’s remedial orders when it shifted the cost of the delay

from the company to the employees in this case,” this Court

reversed. /d. at 266.

As the Rutter-Rex Court noted, Section 10(c) of the NLRA

commands that upon finding that an unfair labor practice

has been committed, the Board must order the respondent

“to take such affirmative action including reinstatement of

employees with or without back pay, as will effectuate the

policies of the Act.” Jd. at 262. Acknowledging its prior

decisions recognizing the broad discretionary powers of the

Board to fashion appropriate remedies, subject only to limited

judicial review, the Court held, “[t]he legitimacy of back pay

as a remedy for . . . unlawful failure to reinstate is beyond

dispute” and “‘should stand unless it can be shown that the

order is a patent attempt to achieve ends other than those

which can fairly be said to effectuate the policies of the Act.’”

Id. at 263 (quoting NLRB v. Seven-Up Bottling Co., 344 U.S.

le ida Sad int ali a i Bia a y gis ot rid tH gn

16

344, 346-47 (1953)). The Court held that the back pay

remedy is a tool provided to the Board by the NLRA not

simply to punish an unfair labor practice “but also is a

remedy designed to restore, so far as is possible, the status

quo that would have obtained but for the wrongful act.” /d.

at 265.

Thus, even when the Board’s “delay in the administrative

process is . . . deplorable,” the Court nevertheless concluded

that a reviewing court of appeals does not have the authority

to “shift [] part of that cost from the wrongdoing company to

the innocent employees.” /d. at 263-64:

Wronged employees are at least as much injured by the

Board’s delay in collecting their back pay as is the

wrongdoing employer. In view of ‘the economic hard-

ship caused by many years of undeservedly substandard

earnings,’ lengthy delays ‘must render the back pay

award a wholly inadequate and unsatisfactory remedy’

to the employees for the company’s refusal to rein-

state them.

Id. at 264 (quoting NLRB v. Mastro Plastics Corp., 354 F.2d

170, 180 (2d Cir. 1965). Thus, the Court held, “the Board is

not required to place the consequences of its own delay, even

if inordinate, upon wronged employees to the benefit of

wrongdoing employers.” /d. at 265.

2. Nearly two decades after Rutter-Rex, the District of

Columbia Circuit rejected an employer’s argument that laches

permitted a court of appeals to vacate the Board’s decision

finding a violation of the Act, in spite of the unreasonable

delay between the ALJ’s decision and the Board’s order, a

delay that the employer contended rendered the backpay

remedy prejudicial and unenforceable. Southwest Merch.

Corp. v. NLRB, 943 F.2d 1354, 1358 (D.C. Cir. 1991). The

D.C. Circuit held that where “there is no suggestion that

the employees are to blame for the delay,” the Board’s

remedy effectuates the purposes of the Act, as identified in

17

Rutter-Rex, and may not be disturbed by a court of appeals -

based on the court’s notion of equity. /d. Indeed, the D.C.

Circuit interpreted Rutter-Rex to “prohibit this use of judicial

power,” despite the importance of promoting prompt

decisionmaking by the Board. Jd. See also Consolidated

Freightways v. NLRB, 892 F.2d 1052, 1059 (D.C. Cir. 1989)

(“While we do not condone the Board’s extraordinary delay,

we conclude that enforcement of its order is appropriate

because the remedy fashioned by the Board was well within

its discretion, and our failure to enforce it would return the

burden to the wrong shoulders.”).°

By contrast, the Second Circuit—which the court below

followed in vacating the Board’s decision—has held that it

may refuse to enforce a Board reinstatement and back pay

award based on the Board’s inexcusable delay in deciding the

case upon review. See Emhart Indus. v. NLRB, 907 F.2d 372

(2d Cir. 1990). There, although the court recognized that “the

majority view seems to have been that denying enforcement

on the ground of delay alone unfairly ‘punishes employees

for the Board’s nonfeasance,’” it nonetheless held that pass-

age of time between the practices complained of and the

° In a similar vein, the Seventh Circuit followed Rutter-Rex in rejecting

an employer’s argument that the Board’s excessive delays justified setting

aside interest on a backpay award arising from the employer’s violation of

the Act. See NLRB v. Thill, Inc., 980 F.2d 1137, 1141 (7 Cir. 1992)

(Posner, J.) (“The company argues that the amount of interest [on the

back pay] is due largely to the Board’s inexplicable delays in deciding the

company’s appeal from the administrative law judge’s decision and the

company’s motion to reconsider the Board’s decision in that appeal. That

is true. The Board took eight years to decide those two matters; it should

have taken far less time. But the company was not harmed, so far as the

backpay order is concerned. The Board’s delays meant that the company

had that much more time to enjoy the use of the money that it should have

given its workers back in 1981. The interest component of the backpay

order merely transfers the fund built up by the Board’s delays to its

rightful owners.”)

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remedy granted by the Board could so change the underlying

situation that a full reinstatement and back pay remedy would

be contrary to the policies of the Act. /d. at 379-80 (quoting

NLRB vy. International Assoc. of Bridge, Structural & Orna-

mental Ironworkers, Local 480, 466 U.S. 258, 266 (1984).

The Second Circuit’s decision did not reference this Court’s

emphasis on the Board’s right and duty to order backpay so to

make wronged employees whole, see Rutter-Rex, 398 U.S. at

365, and did not even cite to the D.C. Circuit’s decision in

Consolidated Freightways, supra, in which the court read

Rutter-Rex to prohibit such shifting of the cost of the Board’s

delay from the guilty employer to the innocent employees.

See also Olivetti Office U.S.A., Inc. v. NLRB, 926 F.2d 181

(2d Cir. 1991) (limiting extent of the Board’s backpay order

to three years because of Board’s excessive delay in proc-

essing case, basing decision on the impact upon the affected

workers of the continuing bargaining relationship between the

company and the union and finding that full enforcement

would not effectuate the policies of the Act).

3. Here, by vacating the Board’s entire decision, the Sixth

Circuit has done more than merely follow the Second

Circuit’s interpretation of Rutter-Rex, an interpretation that

itself conflicts with the D.C. Circuit’s application of this

Court’s precedent; rather, the Sixth Circuit has deepened the

conflict, and has done so in a manner that violates this

Court’s precedent in Rutter-Rex. This is so because none of

the prior cases that have refused to enforce a Board-ordered

remedy because of inexcusable delay has gone so far as to

vacate the Board’s decision entirely—the step taken by the

Sixth Circuit. Here, based on a finding that “[t]his court does

not see a reasonable way to hold the Company responsible for

damages accruing over all of this time, especially when its

” See also NLRB vy. Thill, Inc., supra, 980 F.2d at 1142-43 (refusing to

enforce Board’s bargaining order based on court of appeals’ “equitable

discretion’’).

19

structure and business have changed in the interim,” the Sixth

Circuit determined to “VACATE the Board’s decision finding

TNS to have breached its obligations under § 502, rather than

remanding it for further consideration.” Pet. App. 34a. This

application of inexcusable delay not only to deny the innocent

employees the make-whole remedy provided as a tool to the

Board to effectuate the Act’s policy, but to invalidate the

Board’s finding of a violation altogether, thereby excusing an

employer’s violation of the Act, is an error demanding

correction by this Court.

As the decisions above demonstrate—both those by courts

of appeals permitting the Board’s delay to cut short

employees’ remedies under the Act, and those by courts of

appeals holding that they may not take such a step under the

Act—the Board often takes many years to conclude a case.

Here, the TNS employees have been waiting more than 18

years for a remedy. The question whether inexcusable delay

on the Board’s part permits a court of appeals to vacate the

Board’s finding of a violation of the Act is one that will recur

and that will have a potentially devastating impact on all

employees who count on the Board to vindicate their rights

under the Act. Accordingly, the Court should accept

certiorari to clarify the proper division of authority between

the Board and the courts of appeals in enforcing the letter and

the policies of the Act.

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20

CONCLUSION

The Sixth Circuit’s decision to vacate the Board’s order

because of the Board’s inexcusable delay undermines one of

the fundamental purposes of the Act, the protection of

employees from victimization by their employer for engaging

in legitimate concerted activity. The decision is in conflict

with this Court’s prior interpretation of the Act, and that of

the D.C. Circuit. For these and all the foregoing reasons, the

writ should be granted.

Respectfully submitted,

LYNN AGEE *

General Counsel

PACE INTERNATIONAL UNION

Post Office Box 1475

Nashville, Tennessee 37202

(615) 834-8590

HELEN DE HAVEN

602E Longview Road

Knoxville, Tennessee 37919

* Counsel of Record (865) 602-2336

APPENDICES

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed July 10, 2002]

Nos. 99-6379: 00-5433

TNS, INC.,

Petitioner/Cross-Respondent,

V.

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner,

PAPER, ALLIED-INDUSTRIAL, CHEMICAL & ENERGY WORKERS

INTERNATIONAL UNION,

Intervenor.

September 21, 2001, Argued

July 10, 2002, Decided

Before: KENNEDY, GUY, and BOGGS, Circuit Judges.

OPINION

BOGGS, Circuit Judge. This case is before the court upon

the petition of TNS, Inc. (“TNS” or “the Company”) to

review, and the cross-application of the National Labor

Relations Board (“NLRB” or “the Board”) to enforce, an

NLRB order finding that TNS breached obligations under

Section 502 of the National Labor Relations Act (“NLRA”)

(29 U.S.C. § 143 (2002)) and ordering TNS to reinstate and

pay back pay to employees affected by the Company’s

violation. Section 502 protects employees who take job action

due to “abnormally dang-rous” working conditions at their

2a

place of employment. In 1981, at the expiration of the

collective bargaining agreement they had with the Company,

employees at TNS’s Jonesboro, Tennessee plant walked out,

claiming § 502 protection. When negotiations eventually

failed, the Company hired permanent replacement workers;

when the previous employees later sought reinstatement, the

Company refused.

An infrequently used provision of the NLRA, the

applicability, scope, and protections afforded to workers by

§ 502 are not facially clear. As a result, the Board, in the

course of this case, has had to engage in several acts of

statutory interpretation to clarify the meaning of § 502 before

it could be applied to this set of facts. Having done so, the

Board found that § 502 did apply to the 1981 job action and

that TNS had violated § 502 by hiring permanent replacement

workers and refusing to reinstate its previous employees.

On appeal, TNS makes several arguments in support of

overturning the Board decision, including: (1) that the Board

erred in interpreting § 502 to protect workers who were not

prohibited from striking by either a statutory or contractual

no-strike provision; (2) that the Board erred in interpreting

§ 502 to require only a good faith belief in dangerous

conditions (supported by objective evidence) on the part of

workers, aS opposed to a more stringent requirement that

abnormally dangerous conditions actually exist; (3) that the

Board erred in interpreting § 502 to prohibit companies from

permanently replacing workers who take job action pursuant

to it; (4) that the Board erred in its factual determinations that

the TNS employees believed in good faith that their working

conditions were abnormally dangerous and that their belief

was a contributing cause of the work stoppage; (5) that the

Board erred in finding objective evidence of abnormal danger

to exist in a plant regulated, monitored, and permitted to

continue operation by the Nuclear Regulatory Commission

- 3a

and its state counterpart; and (6) that the Board inexcusably

delayed the proceedings such that this court should not

enforce its award.

TNS’s arguments to this court can fairly be divided into

three categories. The first three arguments are challenges to

the Board’s acts of statutory interpretation. The fourth and

fifth arguments are challenges to the Board’s factual deter-

minations. The final argument is an equitable one, asking this

court to refuse to enforce the Board’s award due to the

Board’s delay in this case. We reject TNS’s statutory inter-

pretation arguments because the Board’s constructions of

§ 502 withstand the deferential review we are bound by

Supreme Court precedent to give them. We reject in part and

accept in part TNS’s challenges to the Board’s fact-finding.

We also agree with TNS’s inexcusable delay argument.

Accordingly, we VACATE the Board’s decision.

I

TNS manufactures armor-piercing projectiles called “pene-

trators” at its plant in Jonesboro, Tennessee. The principal

ingredient in penetrators is depleted uranium (“DU”), a

radioactive substance with carcinogenic properties when

inhaled or ingested over long periods of time. DU also may

pose a toxic risk to the kidneys.

The Paper, Allied-Industrial, Chemical and Energy Work-

ers Union (the “Union”) represented the employees at TNS.

During the relevant time, a joint management-labor health

and safety committee undertook monthly inspections of the

plant and reported various problems with the levels of DU

dust to which employees were exposed and with the

functioning of safety procedures and devices intended to keep

DU exposure low. On March 10, 1981, allegedly in response

4a

to these problems and allegedly after the Company had

failed to rectify them, the Union sent the following ultimatum

to TNS:

Employees will not return to work after April 30 until

the terms which are on the health and safety report have

been corrected and [the Company] 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, 1981, the Union and TNS commenced

negotiations over a new collective bargaining agre sment.

Initially, TNS made an offer including a wage increase, an

extended layoff period, an extended probationary period for

new workers and retention of the Company’s existing health

and safety clause in the contract (protecting health concerns).

The Union responded with a lengthy new health and safety

clause, a proposal for new safety inspections, and objections

to extending the layoff and probationary periods, among other

things. There were eight more meetings before the contract

expired on May |, 1981. During these meetings, the Union

claims it was concerned only with the safety issues, while

TNS claims the Union fought over economic issues.

On May |, 1981, TNS employees who were members of

the Union began a work stoppage at the expiration of their

collective bargaining agreement. The Union alleged that the

work stoppage was not a strike as defined by the NLRA,

because it fell under the § 502 exemption for “quitting of

labor by an employee or employees in good faith because of

abnormally dangerous conditions for work at the place of

employment of such employee or employees.”!

' Section 502 (29 U.S.C. § 143 (2002)) reads:

Saving provision Nothing in this Act shall be construed to require

an individual employee to render labor or service without his con-

sent, nor shall anything in this Act be construed to make the quitting

fer

Ke Sy Ade ERNIE ah eS sha eens

ia

5a

On July 7, 1981, TNS notified the employees engaged in

the work stoppage that it would hire permanent replacements

on July 16, 1981. The employees did not relent. On Febru-

ary 15, 1982 the Union made an unconditional offer to return

to work on behalf of the employees engaged in the work

stoppage. However, TNS refused to reinstate the employees.

On August 18, 1982, the Union filed a complaint with the

NLRB, alleging that TNS engaged in unfair labor practices by

hiring permanent replacement workers to replace employees

engaged in the work stoppage and then refusing to reinstate

the Union employees after the Union made an unconditional

offer to return to work. TNS filed a motion to dismiss the

complaint, relying on the fact that the complaint alleged that

the employees were engaged in a work stoppage because of

the “good faith belief that their conditions for work at their

place of employment were abnormally dangerous” rather than

for the reason allegedly required by § 502, that the employees

ceased work “in good faith because conditions for work at

their place of employment were abnormally dangerous.” In

other words, the Union alleged belief that the conditions were

dangerous rather than that the conditions were dangerous.

Judge Schlesinger, an Administrative Law Judge (“ALJ”) of

the NLRB, granted a motion to amend the complaint on

August 11, 1983, and the Union changed its allegation

accordingly. On August 18, 1983, TNS filed with the NLRB

a request to appeal the granting of the motion to amend,

which the NLRB rejected.

of his labor by an individual 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 dangerous conditions for work at the place of

employment of such employee or employees be deemed a strike

under this Act.

6a

After the appeal, another ALJ (Judge Schlesinger was

recused) undertook a hearing de novo, as per the NLRB order,

and found TNS liable for violating § 502’s requirements in an

opinion dated July 31, 1987. More than five years later, on

December 23, 1992, the Board issued a Supplemental Deci-

sion and Order wherein three out of four Board members

voted to reverse the ALJ, dismissing all unfair labor allega-

tions. See TNS, Inc. and Oil, Chem. and Atomic Workers Int'l

Union, 309 N.L.R.B. 1348 (1992). However, the Board was

fractured on the analysis of § 502, and no single reasoning

commanded a majority.

The Union appealed and on February 14, 1995, the D.C.

Circuit remanded the case to the Board, stating that it could

not discern a Board position, and that the Board had failed to

articulate an appropriate legal standard for the resolution of

the case. The court held that “the Board must ‘articulate a

majority-supported statement of the rule that [it] will be

applying now and in the future.’ Oil, Chem. & Atomic

Workers Int’l Union v. NLRB, 310 U.S. App. D.C. 217, 46

F.3d 82, 92 (D.C. Cir. 1995) (quoting United Food &

Commercial Workers Int'l Union v. NLRB, 279 U.S. App.

D.C. 349, 880 F.2d 1422, 1436-37 (D.C. Cir. 1989)).

More than four years later, on September 30, 1999, the

Board issued its Second Supplemental Decision and Order,

329 N.L.R.B. No. 61, reaching a decision contrary to its

earlier position. The second decision found § 502 applicable

to the job action, and it found that TNS had engaged in unfair

labor practices by hiring permanent replacement workers and

refusing to rehire the employees involved. In finding § 502

applicable to the present case, the decision set up a new four-

part test for determining the applicability of § 502 in cases

involving cumulative slow-acting dangers to employee health

and safety:

The General Counsel must demonstrate by a prepon-

derance of the evidence that the employees believed in

7a

good faith that their working conditions were abnor-

mally dangerous; that their belief was a contributing

cause of the work stoppage; that the employees’ belief is

supported by ascertainable, objective evidence; and that

the perceived danger posed an immediate threat of harm

to employee health or safety.

TNS, Inc. and Oil, Chem. and Atomic Workers Int’l Union,

329 N.L.R.B. 602, 329 N.L.R.B. No. 61, 1999 WL 818610, at

*2 (Sept. 30, 1999). As mentioned above, the decision

ordered that TNS reinstate and provide back pay to the

employees who took part in the work stoppage. It is from this

order that TNS appeals to this court, and it is this order that

the Board asks this court to enforce.

II

TNS’s Challenges to the Board’s Statutory Interpretation

We first address TNS’s challenges to the Board’s various

acts of statutory interpretation. In reviewing NLRB

interpretations of the NLRA, this court follows the standard

set out by the Supreme Court in Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-

43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). See NLRB v.

Webcor Packaging, 118 F.3d 1115, 1119 (6th Cir. 1997)

(applying Chevron to NLRB interpretations of the NLRA);

Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99, 134 L.

Ed. 2d 593, 116 S. Ct. 1396 (1996) (applying Chevron to a

Board decision). Under this standard, the court first asks

“whether Congress has directly spoken to the precise question

at issue.” Chevron, 467 U.S. at 842. If so, the court must give

effect to Congress’s interpretation. /d. at 842-43. However, if

Congress has not clearly spoken to a question, this court is

limited to determining “whether the agency’s answer is based

on a permissible construction of the statute.” /d. at 843.

Accord Holly Farms, 517 U.S. at 398-99. In applying this

“permissible construction” standard, this court must uphold

8a

the Board construction if it is “permissible” and “reasonable,

even if it is not the only construction the Board might have

adopted and even if it is not the one that this court would

have adopted if faced with the question de novo. Chevron,

467 U.S. at 843-44 and n.11.

”

1. Whether the Board erred in interpreting § 502 to apply

in situations where there is no “no-strike” provision

TNS first argues that § 502 does not apply to this situation

at all, because § 502 only applies to situations where

employees are bound by either a contractual or implied “no-

strike” provision. Accordingly, TNS contends that the Board

erred in interpreting § 502 to cover situations—such as the

present case—where the relevant employees are not bound by

such a provision. There is both case law and logical support

for the argument that § 502 should apply only to situations

involving a “no-strike” provision, thereby making it a diffi-

cult question; however, since there is also support for the

Board’s interpretation, and because we are to review the

Board’s statutory interpretations under the deferential Chev-

ron standard, we must affirm the Board’s interpretation.

TNS cites several cases as support for the proposition that

§ 502 applies only in the context of a “no-strike” provision.

See, e.g., Whirlpool Corp. v. Marshall, 445 U.S. 1, 18 n.29,

63 L. Ed. 2d 154, 100 S. Ct. 883 (1980) (the “effect of this

section is to create an exception to a no-strike obligation in a

collective-bargaining agreement.”); Gateway Coal Co. v.

United Mine Workers of America, 414 U.S. 368, 385, 38 L.

Ed. 2d 583, 94 S. Ct. 629 (1974) (“This section provides a

limited exception to an express or implied no-strike obli-

gation,” thereby insulating participants from injunctions,

liability for damages, or termination when a cessation of work

is necessary “to protect employees from immediate danger.”’);

Plain Dealer Publ’g Co. v. Cleveland Typographical Union

No. 53, 520 F.2d 1220, 1228 (6th Cir. 1975) (“This recog-

nition of a right to refuse to work provides a limited

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9a

exception to an express or implied no-strike obligation.”

(citing Gateway Coal)); NLRB v. Tamara Foods, Inc., 692

F.2d 1171, 1183 (8th Cir. 1982) (finding § 502 inapplicable

in a case where there was no collective bargaining agree-

ment); Knight Morley Corp., 116 N.L.R.B. 140, 146 (1956),

enforced, 251 F.2d 753 (6th Cir. 1957) (holding that § 502’s

purpose was to give employees a right to walk off the job

because of abnormally dangerous conditions “even in the face

of a no-strike clause in their contract with an employer”).

Further, there is logical support for the idea that § 502 only

applies when employees are faced with either a contractual or

implied “no-strike” provision. If § 502 were so interpreted,

the section would exempt workers who quit work out of

concern for their safety from the injunctions and damage

actions that usually follow work stoppages in contravention

of these provisions. One might argue that an employee not so

constrained is free to make a decision as to whether he wants

to work in a potentially dangerous situation without the threat

of an injunction or damage action, and so he is not in need of

the protections of § 502.

However, as both sides admit, there is nothing in the

legislative history of either § 502 or the NLRA more

generally that addresses “‘no-strike provisions.” As explained

above, in the absence of an express congressional imperative

one way or the other, the Chevron standard serves to protect

the Board’s interpretation as long as it is “reasonable.” See

Chevron, 467 U.S. at 843-44. In this case, the Board has a

reasonable answer to almost all of the support cited by TNS.

First, all of the cases discussing the issue, except Tamara

Foods, 692 F.2d at 1183, were dealing with situations where

either an express or implied “no-strike” provision was in

effect. It is a different thing to say that § 502 is an exemption

to “no-strike” provisions when there is a no-strike provision

than it is to say that § 502 applies on/y when there is a “no-

strike” provision. The only case that even arguably says

10a

“only” is the Eighth Circuit’s Tamara Foods decision. How-

ever, this case is distinguishable in that, although it discusses

no-strike clauses and § 502, it actually finds the section

inapplicable because there was no “collective bargaining

agreement,” not because there was no “no-strike” clause.

Ibid. Further, Tamara Foods merely quotes without dis-

cussion the language of Whirlpool Suggesting that § 502 is an

exception to a no-strike provision (which, as already

mentioned, makes its assertion in a case where a “no-strike”

provision was in effect). [bid.

From a logical standpoint, there is also an argument

favoring the Board’s position. If § 502 is interpreted to

provide job protection to employees engaged in a protected

work stoppage, it would seem somewhat anomalous to

provide this protection to unionized employees subject to a

collective bargaining agreement that includes a no-strike

clause but deny it to unionized employees not working under

such a collective bargaining agreement and to all non-

unionized employees. Further, while it is true that several

. administrative law judges have held § 502 to be limited in

this way, up until now the Board has expressly reserved

ruling on the issue. See Beker Industries Corp., 268 N.L.R.B.

975, 975 n.1 (1984); Gibraltar Steel Corp., 273 N.L.R.B.

1012, 1012 n.2 (1984). Now, however, the Board has so ruled

and this court is bound to uphold its determination under the

Chevron standard of review, because Congress has not

spoken on the issue and the Board’s interpretation is

reasonable.

2. Whether the Board erred in interpreting § 502 to

require only a good faith belief on the part of the

employees that abnormally dangerous conditions exist,

as opposed to requiring that abnormally dangerous

conditions actually exist

The Board’s newly adopted test for § 502 applicability is

premised on the idea that § 502 requires a good faith belief in

lla

the existence of abnormally dangerous working conditions

and that the belief be supported by ascertainable, objective

evidence. TNS argues that this is incorrect—that abnormal

danger-in-fact is required before § 502 will apply to a work

stoppage. While, again, there are arguments supporting

TNS’s interpretation of § 502, Chevron again compels this

court to affirm the Board’s contrary-interpretation.

In support of its position, TNS states that the Supreme

Court in Gateway Coal dictated an approach requiring such a

standard. It is true that Gateway Coal can be read this way, as

it requires “objective evidence that [abnormally dangerous]

conditions actually obtain.” Gateway Coal, 414 U.S. at 386

(emphasis added). Gateway Coal goes on to state that “a

union seeking to justify a contractually prohibited work

stoppage under § 502 must present ‘ascertainable, objective

evidence supporting its conclusion that an abnormally

dangerous condition for work exists.’ /d. at 386-87 (quoting

Gateway Coal Co. v. United Mine Workers of America, 466

F.2d 1157, 1162 (3d Cir. 1972) (Rosenn, C.J., dissenting)).

TNS also cites NLRB v. Fruin-Colnon Construction Co.,

330 F.2d 885, 892 (8th Cir. 1964), which held that employees

leaving their jobs because of dangerous conditions risk

discharge because of their no-strike clause “should proof later

of the physical facts fail to support their prior belief.” Further,

TNS points out that the Board has followed this view in the

past, holding that “it is well settled that Section 502 applies

only where it has been objectively established that the

working conditions are abnormally dangerous.” Goodyear

Tire & Rubber Co., 269 N.L.R.B. 881, 881 (1984) (Board

overruling an ALJ decision holding that § 502 protects

employees with only a good faith belief that abnormally

dangerous conditions exist).

However, there are again responses to TNS’s arguments.

For example, though the language quoted above from Gate-

way Coal seems to support TNS’s reading of § 502, Gateway

12a-

Coal actually deals with a situation where a striking union

claimed § 502 protection based solely on their claim of

subjective belief of abnormal danger. The union offered no

objective evidence to back up this claim, and it was on this

basis that the Court held that § 502 did not apply. /bid. As for

the Eighth Circuit’s Fruin-Colnon decision, this too was a

situation virtually devoid of any evidence of abnormal

danger. See Fruin-Colnon, 330 F.2d at 892 (rejecting § 502

applicability when evidence of abnormal danger was “based

upon isolated testimony of the alleged discriminatees and

unreasonable inferences which are unsubstantial considering

the record as a whole’’).

Further, while there is case law tending to support TNS’s

reading of § 502, there is also case law that clearly supports

the Board’s interpretation. For example, this circuit has held

that the important question in a § 502 situation is not whether

abnormal danger actually existed, but whether it was shown

by objective evidence that the employees’ working conditions

“might reasonably be considered ‘abnormally dangerous.’”

Knight Morley, 251 F.2d at 759. In so holding, this court

wrote that § 502 “expressly limits the right of management to

require continuance of work under what the employees in

good faith believe to be ‘abnormally dangerous’ condi-

tions.” /bid.

There is also persuasive authority to support the Board’s

position. For example, in Banyard v. NLRB, 164 U.S. App.

D.C. 235, 505 F.2d 342, 348 (1974), the District of Columbia

Circuit rejected the notion that § 502 sets up an unsafe-in-fact

standard. Instead, the Banyard court explained that the issue

in § 502 cases is whether, “in the Board’s own language, ‘the

actual working conditions shown to exist by competent

evidence might in the circumstances reasonably be con-

sidered “abnormally dangerous.” /bid.

Finally, although the Board has used language in prior

cases suggesting the use of a danger-in-fact standard, the

13a

Board has also found § 502 applicable to work stoppages

where it was determined that the complained-of working

conditions were not in fact abnormally dangerous. However,

objective evidence of abnormal danger was required to

support the employees’ belief. See Roadway Express, 217

N.L.R.B. 278, 280 (1975) (an experienced truck driver’s

opinion that a truck was unsafe, when that opinion was shared

by other drivers, was “objective enough” evidence under §

502 “to lead a person to reasonably determine that he should

not drive such a truck”); Redwing Carriers, Inc., 130

N.L.R.B. 1208, 1209 (1960) (“What controls is not the state

of mind of the employee . . . concerned, but whether the

actual working conditions shown to exist by competent evi-

dence might in the circumstances reasonably be considered

‘abnormally dangerous.’’’).

In short, again, there is evidence to support the inter-

pretations adopted by both sides. Therefore, the question

comes down to one of standard of review. TNS argues that

the Board is not entitled to deference in its statutory

construction here, because it contends Congress has spoken

on this issue. The Company points to the text of § 502, which

provides its protection to the “quitting of labor by an

employee or employees in good faith because of abnormally

dangerous conditions for work.” According to TNS, this

language clearly expresses Congress’s intent that § 502

only cover cases where abnormally dangerous conditions

actually exist.

While it is true that Congress could have drafted a clearer

expression of its intent, it is not true that it did in the present

case. The text of § 502, taken as a whole, is open to both

interpretations, as is evident from the extensive case law

discussed above attempting to interpret the statute (and

coming out on both sides). As the Supreme Court has

explained, “if the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must give

l4a

effect to the unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 842-43. However, “if the statute is

silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is based

on a permissible construction of the statute.” /d. at 843. In

this case, Congress’s intent on this specific issue is

ambiguous, and therefore this court must apply the deferential

Chevron standard of review to the Board’s interpretation.

Since the construction put forward is both permissible and

reasonable, this court must uphold the Board’s determination

that § 502 requires only a good faith belief—supported by

ascertainable, objective evidence—in the existence of

abnormally dangerous working conditions.

3. Whether the Board erred in interpreting § 502 to pro-

hibit companies from permanently replacing workers

who quit work because of abnormally dangerous

conditions

TNS’s final challenge to the Board’s statutory interpre-

tation is that the Board incorrectly interpreted § 502 to

preclude employers from permanently replacing workers

engaged in a § 502 work stoppage. TNS argues that an

employer should have the same right to replace workers who

participate in a § 502 work stoppage as it does to replace any

other employees who engage in work stoppages not caused or

prolonged by employer unfair labor practices. See NLRB v.

Mackay Radio & Tel. Co., 304 U.S. 333, 345-46, 82 L. Ed.

1381, 58 S. Ct. 904 (1938) (holding that an employer may

replace striking workers with others to carry on business so

long as the employer is not guilty of unfair labor practices).

See also Belknap, Inc. v. Hale, 463 U.S. 491, 504 n.8, 77 L.

Ed. 2d 798, 103 S. Ct. 3172 (1983) (holding that absent

evidence of an independent unlawful purpose, it is to be

presumed that an employer’s motive in permanently replacing

its employees is to serve the legitimate business interest of

continuing its operation). TNS claims that because it has not

Sa

engaged in an unfair labor practice (governed by § 8 of

NLRA), it should be permitted to permanently replace

workers striking under § 502.

This argument fails in this court, once again, because of the

(Chevron doctrine. In the absence of a clear textual description

of what protections are to be offered to employees engaged in

§ 502 actions, the Board has interpreted § 502 to protect

covered employees from being permanently replaced. Since

this interpretation is supported by logic, it is reasonable and

must be upheld.

This interpretation is supported by reason in several ways.

First, as the Court recognized in Gateway Coal, 414 U.S. at

387, § 502 confers “special protection” on employees who

quit work in the good faith belief that their workplace is

abnormally dangerous; however, this protection is meaning-

less if companies can simply replace these employees as if

they were normal economic strikers. Though this court has

not discussed this issue specifically, the Board’s determi-

ration that employers may not permanently replace employ-

ees who engage in § 502 job actions conforms with this

court’s holding that “when a work stoppage properly results

from abnormally dangerous working conditions, an employer

cannot resort to the weapons available to him in an

economically-motivated work stoppage.” Clark Eng’g &

Constr. Co. v. United Bhd. of Carpenters & Joiners, 510 F.2d

1075, 1080 (6th Cir. 1975).

More generally, the Supreme Court has held that a

company’s refusal to reinstate strikers is unlawful unless it is

based on a legitimate and substantial business justification.

See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 19 L.

Ed. 2d 614, 88 S. Ct. 543 (1967). As TNS points out, the

Court in Mackay Radio, 304 U.S. at 345-46, held that per-

manent replacement of economic strikers is a legitimate

business purpose. However, the Board concluded as a matter

of statutory interpretation that this is not legitimate in the case

l6a

of a § 502 action, because it would defeat part of the purpose

of allowing workers faced with abnormal danger to take job

action if they could simply be replaced with new workers

who may not be aware of the dangerous conditions. As

mentioned, Congress has not spoken on this issue and the

Board’s interpretation is reasonable; as such, we are bound by

Chevron to uphold the Board’s interpretation.

TNS’s Challenges to the Board’s Application of its § 502

Test to the Facts of the Present Case

This court having rejected TNS’s various arguments for

why the Board’s four-part test is not a permissible inter-

pretation of § 502, we now turn to TNS’s challenges to the

Board’s application of its test to the facts of this case. As

noted above, in determining that § 502 applied to the TNS

employees’ work stoppage, in a situation involving “cumu-

“lative, slow-acting dangers to employee health and safety,”

the Board held that the NLRB General Counsel had

successfully proven by a preponderance of the evidence that

(1) the employees believed in good faith that their working

conditions were abnormally dangerous; (2) the belief was a

contributing cause of the work stoppage; (3) the employees’

belief was supported by ascertainable, objective evidence;

and (4) the perceived danger posed an immediate threat of

harm to employee health or safety. TNS, 329 N.L.R.B. 602,

1999 WL 818610, at *2. However, with respect to the last

requirement, the Board noted that, due to the nature of

cumulative, slow-acting dangers, “there will probably not be

a single moment when ‘immediate’ departure from the

workplace is obviously necessary.” 329 N.L.R.B. 602, /d. at

*11. Defined so loosely, the fourth requirement is not

difficult to fulfill; possibly for this reason, TNS principally

argues that the Board erred in finding that the first, second,

and third requirements were fulfilled.

On review by this court, findings of fact made by the Board

are conclusive if supported by substantial evidence on the

17a

record considered as a whole. See 29 U.S.C. § 160(f) (2002).

Though deferential, this standard of review is not trivial. As

the Supreme Court has pointed out, it is not enough merely to

verify that there is evidence to support the Board’s deter-

mination “without taking into account contradictory evidence

or evidence from which conflicting inferences could be

drawn.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

487, 95 L. Ed. 456, 71 S. Ct. 456 (1951). Instead, the review

must also “take into account whatever in the record fairly

detracts from its weight.” Jd. at 488. The Supreme Court has

described this standard of review as “requiring a court to ask

whether a ‘reasonable mind might accept’ a_ particular

evidentiary record as ‘adequate to support a conclusion.””

Dickinson v. Zurko, 527 U.S. 150, 162, 144 L. Ed. 2d 143,

119 S. Ct. 1816 (1999) (quoting Consol. Edison Co. v. NLRB,

305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).

4. Whether the Board erred in its factual determinations

(1) that the TNS employees believed in good faith that

their working conditions were abnormally dangerous

and (2) that their belief was a contributing cause of the

work stoppage

The first two factual challenges made by TNS are best

addressed together, as it is impossible to separate the proof of

one from the proof of the other. Therefore, we first look at

whether there is substantial evidence on the record as a

whole to support the Board’s factual findings that the TNS

employees believed in good faith that their work conditions

were abnormally dangerous and that this belief was a

contributing cause of the work stoppage. We find that there is

such evidence.

TNS makes a well-documented argument that the danger-

ous working condition claims were only a pretext for the

striking employees’ actual, economic motivations. In support

of this contention, TNS points to the timing of the job action

(at the expiration of the employees’ collective bargaining

| SET

18a

agreement, at a time when negotiations with management

seemed stalled). The Company also alleges that it received no

official challenges by employees or the Union to health and

safety conditions at the plant until after the March 1981 strike

vote. Further, the Company cites Union discussions and

graffiti placed on TNS property as evidence that the Union

was focused on economic matters, and not workplace safety,

at the time of the vote. Finally, the Company alleges that rank

and file Union members were unaware of much of the

“objective evidence” of danger that the Board cites, and so

even if there were such evidence, it could not have been a

motivating factor for the walkout.

The picture painted by the Board’s proffered evidence

could not be more different. The Board cites frequent safety

inspections and reports of complaints made by the Union

since October 1980 as evidence of the employees’ concern

for their safety. Further, the Board notes that the ultimatum

sent by the Union to the Company on March 10, 1981 stated

that if the employees walked out, it would be because of

alleged dangers in the workplace. The Board cites numerous

discussions at Union meetings and numerous. worries

expressed by employees about the dangers caused by DU dust

in the factory. The Union in its brief states:

In the period leading up to the work stoppage,

employees knew that, due to the Company’s woefully

inadequate dust control program, they were ingesting

inordinate quantities of DU, and that several of them

were experiencing disturbing medical symptoms asso-

ciated with kidney dysfunction. TNS itself began to

inform some employees that they had high levels of

uranium in their urine. . . . The step TNS took in

response to these developments . . . was to implement an

19a

obviously inadequate respirator program, which only

made it more apparent that the employees’ health was in

grave peril.”

In short, the evidence is strongly set out by both sides in

twenty years of documents, transcripts, and _ testimony.

However, given the standard of review that constrains this

court in examining factual determinations of the Board, the

> Another description (though an admittedly one-sided one), based

largely on evidence in the record, can be found in C. John Cicero, TNS,

Inc.—The National Labor Relations Board's Failed Vision of Worker

Self-Help to Escape Longterm Health Threats from Workplace Carcin-

ogens and Toxins, 24 Stetson L. Rev. 19, 22 (1994):

At the end of a workday in the company’s foundry, the

employees’ ‘faces and other exposed portions of their bodies were

black from the dust, soot, and smoke. During one phase of the

production process, employees packed depleted uranium in the form

of “greensalt,” a powdery, heavy radioactive compound, into pots

by hand. The radioactive mixture routinely flew up from the pots

and settled into employees’ ears, nostrils, and mouths. Many

employees discharged black mucus when they sneezed or blew their

noses. An operator testified that “the black soot would make his hair

stiff as brillo; he wore plugs to prevent dirt from entering his ears.”

Another employee kept a toothbrush at his work station to remove

dusty particles which lodged in his teeth. Yet another testified how

she “scrubbed her skin with a buffing pad at the end of the day to

remove the black specks from her pores.” When she asked TNS’

Resident Safety Officer, Jim Barlow, whether tests could be

performed to sample the black material that infiltrated the workers’

nostrils, he told her that “such a test would be too costly.” TNS’

plant engineer acknowledged “that at the end of the workday, the

foundry employees looked like coal miners.”

Conditions were no better in the penetrator shop. One employee

testified that with the shop door opened, he “could see dust motes

suspended in the air.” He could not, however, see “the invisible

concentrations of alpha particles which emanated from the airborne

contaminants.” Smoke from the furnace and the torge contributed to

the “hazy and contaminated atmosphere,” an atmosphere cooled by

“mists bearing uranium metal specks which sprayed the operators’

faces and clothing.”

20a

mere fact that evidence goes both ways does not help TNS’s

case. Instead, in order to overturn the Board’s factual findings

with respect to the employees’ beliefs and motivations, we

would have to be able to say that the Board’s determination is

not supported by “substantial evidence on the record con-

sidered as a whole.” 29 U.S.C. § 160(f) (2002). We are

unable to do that here.

5. Whether the Board erred in finding objective evidence

of abnormal danger to exist in a plant regulated,

monitored, and permitted to continue operation by the

Nuclear Regulatory Commission and _ its state

counterpart

As mentioned above, in the course of finding that § 502

applied to the work stoppage at TNS, the Board found that the

employees’ good faith belief in the existence of abnormally

dangerous conditions was supported by “ascertainable, objec-

tive evidence” of abnormal danger. The Board did this in a

situation where, although the relevant nuclear regulatory

agencies sent non-compliance letters and cited violations, the

agencies did not see an immediate and serious danger

warranting decisive action. With that in mind, TNS argues in

its final challenge to the Board’s factual findings that this

court should overturn the Board’s finding that evidence

supported the employees’ belief in abnormal danger.

TNS can be read to be making two different arguments on

this score, and we will deal with each in turn. First, TNS

argues that, as a matter of law, the Board can not find that

objective evidence supports the employees’ belief in

abnormal danger when the relevant nuclear regulatory agen-

cies are actively monitoring the Company’s operations and

find no cause to order closure or any type of emergency

remedial action. We reject that argument. Alternatively, TNS

might argue that, in the present case and given the monitoring

and inaction by the regulatory bodies, the actual findings

of facts relied upon by the Board as providing evidence

2la

supporting the employees’ belief were insufficient to support

the Board’s finding. Utilizing the standard of review with

which this court examines NLRB fact-finding, this argument

would require us to hold that the Board’s determination was

not supported by “substantial evidence on the record con-

sidered as a whole.” 29 U.S.C. § 160(f) (2002). We agree

with this argument.

We first address TNS’s argument that the Board could not,

as a matter of law, find objective evidence to support the

employees’ belief in the face of regulatory non-action.

However, before addressing this argument, it is necessary to

review the nuclear regulatory scheme in general and the

agencies’ actions with respect to TNS’s operations.

As part of the complete federal preemption of nuclear

safety, Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249, 78

L. Ed. 2d 443, 104 S. Ct. 615 (1984) (federal government

occupies entire field of nuclear safety); Pac. Gas and Elec.

Co. v. State Energy Res. Conservation & Dev. Comm'n, 461

U.S. 190, 208, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983)

(“the safety of nuclear technology [is] the exclusive business

of the Federal Government”), Congress delegated exclusive

licensing and regulatory authority to the Atomic Energy

Commission, which was replaced by the Nuclear Regulatory

Commission (NRC) in 1974. See Duke Power Co. v. Carolina

Envtl. Study Group, Inc., 438 U.S. 59, 63, 57 L. Ed. 2d 595,

98 S. Ct. 2620 (1978). Specifically, Congress gave the NRC

authority to regulate nuclear materials to protect “public

health and safety.” 10 C.F.R. § 1.11(b) (2002).

In turn, pursuant to 42 U.S.C. § 2021, Congress provided

that the NRC may delegate certain aspects of nuclear

regulation to states. See 42 U.S.C. § 2021 (2002). Under this

provision, state regulatory agencies may assume regulatory

authority for low-level radiation, subject to NRC regulations.

Tennessee became such an “agreement state” in 1965 and, as

a result, the Tennessee Division of Public Health, Division of

22a

Radiological Health (TDRH) regulates facilities such as TNS,

although it utilizes NRC guidelines to accomplish the regu-

lation. The TDRH conducts periodic inspections of the

nuclear facilities it regulates to ensure that they are in com-

pliance with regulations, and NRC officials join TDRH

inspectors on occasion. The TDRH has the legal authority to

close a facility by suspending or revoking its license to

operate in the state.

From 1979 onwards, the TDRH conducted semi-annual

inspections of TNS’s operations. There is conflict between

the parties as to whether TNS was _in full compliance with

NRC and TDRH regulations. However, if nothing else, there

seems to be no contention that the agencies found conditions

at the plant to be immediately dangerous, as evidenced by the

fact that they might have taken decisive regulatory action

against the Company and did not. Even the Board recognizes

this, having quoted in its first decision language from the

report of the last TDRH inspection of the TNS plant prior to

the job action: “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 exists.” TNS, 309 N.L.R.B. at 1351 (quoting TDRH

Inspection Report from March 9-10, 1981 inspection).

TNS argues that where an expert agency, monitoring the

situation, and having authority to shut down the workplace or

remove employees from their jobs for safety or health

reasons, has not taken such action, appropriate deference to

that agency’s expertise requires that the Board apply a

presumption that no “abnormal danger” exists.

The Board responds that it did not find that working

conditions were in fact abnormally dangerous; rather it found

that employees possessed a good faith belief that their work-

place was abnormally dangerous and that objective evidence

supported that belief. So, as the Board states in its brief to this

<=

23a

court, even if the NRC and the TDRH found that no abnormal

danger existed at TNS, the NLRB “still would not have been

compelled to dismiss the complaint, provided that the

objective record evidence before it showed that conditions at

the time of the work stoppage might reasonably be considered

abnormally dangerous.” NLRB Br. at 37. Further, the Board

contends that it did not, by its finding, make the findings of

the NRC and the TDRH irrelevant; on the contrary, the Board

used citation letters from the TDRH, charging TNS with

violations of radiation’ safety standards, as the basis for its

finding that there was enough objective evidence to support

the employees’ good faith belief.

In general, courts have held that scientific regulatory

agencies such as the NRC should be given extreme deference

within their area of expertise. See Baltimore Gas & Elec. Co.

v. NRDC, 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct. 2246

(1983); Fed. Power Comm'n v. Florida Power & Light Co.,

404 U.S. 453, 463, 30 L. Ed. 2d 600, 92 S. Ct. 637 (1972);

Browning-Ferris Indus. v. Muszynski, 899 F.2d 151, 160 (2d

Cir. 1990) (“Courts should be particularly reluctant to

second-guess agency choices involving scientific disputes

that are in the agency’s province of expertise.”). As one

amicus brief pointed out, this deference promotes efficiency,

avoids unnecessary duplication of effort and helps to avoid

the situation where an agency without expertise in an area

countermands the determinations of agencies with that

expertise, and thereby frustrates broader purposes. See LPA,

Inc. and the Nat’! Ass’n of Mfrs. Br. at 7-8. As an example, in

speaking particularly of the NRC, the Sixth Circuit has joined

with almost every other circuit in holding that NRC safety

regulations conclusively establish the duty of care owed by

defendants in radiation safety personal injury cases governed

by the 1998 amendments to the Price-Anderson Act. See

Nieman v. NLO, Inc., 108 F.3d 1546, 1552-53 (6th Cir. 1997).

24a

As for the Board, it has in the past accepted agencies’

standards and regulations governing the agencies’ areas of

concern in determining whether a claim of abnormal danger

was proven by objective facts. See Goodyear, 269 N.L.R.B.

at 881 (Board rejected § 502 claim of abnormal danger,

relying in part on manufacturer’s statements that federal

regulatory agencies had not restricted use of product); Daniel

Constr. Co., 264 N.L.R.B. 770 (1982) (Board affirmed that

employee’s refusal to work in radiation area did not fall under

§ 502, because no objective evidence was found to support

danger claim and there was apparent full federal regulatory

compliance); Baker Marine Corp., 258 N.L.R.B. 680 (1981)

(Board rejected § 502 claim of abnormal danger after ALJ

noted procedures within OSHA safety standards).

However, in the present case, the Board did not find

“abnormally dangerous” a condition that the NRC did not

find dangerous. It found merely that there was objective

evidence to support the employees’ belief that their working

conditions were abnormally dangerous. There is a practical

concern that this is merely splitting hairs and that by

permitting employees § 502 protection for work stoppages in

cases where regulatory agencies have not seen the need to act

decisively, the Board would effectively be setting higher (and

different) standards for nuclear safety than those set by the

expert agencies. One might argue accordingly that companies

would then be forced to continue to comply with the nuclear

agencies’ requirements, but at the same time make sure that -

despite the companies’ compliance - employees were not able

to build a credible case that abnormal danger existed, thereby

providing a basis for a protected job action (which, of course,

might be used manipulatively to secure unrelated conces-

sions). Some may argue that the NRC’s bright line rules and

radiation guidelines would therefore be undermined by

companies having to worry not just about the NRC but

also about the NLRB in their radiation programs. However,

this practical consideration is for the time being merely

25a

speculative, as the Board argues rightly that it did not make a

decision contrary to NRC findings, but merely found objec-

tive evidence (in part based on NRC & TDRH non-

compliance letters) to support the employees’ good faith

belief that their workplace was abnormally dangerous. |

Further, leaving policy decisions aside, there is at least

some support for the Board’s determination that it need not

defer completely to the NRC. In the Supreme Court’s

Whirlpool decision, 445 U.S. at 8-11, the Court was asked to

decide the validity of a rule promulgated by the Secretary of

Labor, which allowed workers to refuse to engage in work

they in good faith believed to be dangerous. Arguments

against the rule included the facts that the Occupational

Safety and Health Act (OSH Act) did not explicitly provide

for this type of protected refusal, and that the employees

already had an avenue for redress of safety concerns through

the OSH Act by direct complaint to OSHA, the agency

charged with enforcing the act. The Court found that, despite

the existence of an administrative agency charged with

evaluating safety, there were times when it would be

necessary for employees to take matters into their own hands.

Discussing the validity of the rule allowing employees to

refuse certain jobs, even when OSHA had not prohibited

workers from performing them, the Court wrote:

Circumstances may sometimes exist in which the

employee justifiably believes that the express statutory

arrangement [the OSH Act] does not sufficiently protect

him from death or serious injury. Such circumstances

will probably not often occur, but such a situation may

arise when (1) the employee is ordered by his employer

to work under conditions that the employee reasonably

believes pose an imminent risk of death or serious bodily

injury, and (2) the employee has reason to believe that

26a

there is not sufficient time or opportunity either to seek

effective redress from his employer or to apprise OSHA

of the danger.

Nothing in the Act suggests that those few employees

who have to face this dilemma must rely exclusively on

the remedies expressly set forth in the Act at the risk of

their own safety. But nothing in the Act explicitly

provides otherwise. Against this background of legis-

lative silence, the Secretary has exercised his rulemaking

power under 29 USC §§ 657(g)(2), and has determined

that, when an employee in good faith finds himself in

such a predicament, he may refuse to expose himself to

the dangerous condition, without being subjected to

‘subsequent discrimination” by the employer.

Whirlpool, 445 U.S. at 10-11. While there are certainly

differences between this case and Whirlpool (for example,

here there is no express rule from the Secretary of Labor

permitting the action based on good faith belief and the

provisions are under different statutes with different purposes

and goals), this case represents analogous support for the

proposition that the Board can find a permissible basis for

employees to engage in a work stoppage based on radiation

safety even in the absence of decisive action by the NRC.

Having rejected the proposition that the NLRB can not, as

a matter of law, find that objective evidence supports em-

ployees’ belief in abnormally dangerous working conditions

when relevant regulatory agencies have chosen not to take

immediate or emergency action, we must consider whether

the Board’s factual finding of objective evidence in this case

is supported by substantial evidence.

As would be expected in a case with the complicated

procedural history of this one, there is extensive evidence in

the record. However, in finding that its third requirement was

fulfilled, namely that objective evidence supported the TNS

27a

employees’ good faith belief that their workplace was

abnormally dangerous, the Board merely cited without expla-

nation four factors listed by the ALJ in her decision:

(1) air quality at the facility exceeded MPC [maximum

permissible concentration] at 11 work stations for at

least the last quarter preceding the strike; (2) the pro-

tracted use of respirators by a substantial number of

employees was deleterious to their health; (3) the em-

ployees’ average whole body uranium exposures were

far greater than those typical for the nuclear industry;

and (4) that repeated and excessive uranium-in-urine

levels indicated serious risk of kidney damage.

TNS, 329 N.L.R.B. 602, 1999 WL 818610, at *12. The Board

held that this evidence “constitutes objective proof supporting

[the employees’] belief that their workplace had become too

unsafe an environment to continue working.” /bid.

One must go back to the ALJ’s decision in this case to fill

out the details of the facts cited by the Board as supporting

the employees’ belief that their workplace was too dangerous

to work in.

The first piece of evidence cited by the Board dealt with

the amount of DU dust in the facility’s air. Since the DU used

in the manufacturing process at TNS is a_ low-level

radioactive material, the TDRH set a standard for the MPC of

airborne DU particles, defined as the amount of airborne

radioactive material beyond which no worker is to be exposed

for 40 hours per week for 13 weeks. Though there is a great

deal of back and forth in the record with respect to its

significance, it is undisputed that both company records and

TDRH inspections revealed DU dust in excess of MPC at

some workstations in the TNS plant.

However, the second piece of evidence cited by the Board,

that employees were wearing respirators, was in direct

response to the high levels of DU dust found to be in the air.

CO ——

28a

Engineering controls, such as ventilation equipment, should

keep the amount of DU dust in the air below MPC. In the

event that these controls were ineffective at keeping dust

below MPC, TDRH regulations called for the use of

respirators to keep the dust out of employees’ lungs. In

January 1981, TNS had instituted a program of respirator use

for areas of its plant with excessive dust levels. New equip-

ment to reduce dust levels in the air had been ordered, and the

ventilator program was set to continue until August 1981,

when that equipment would be installed. The ALJ discussed

at length TNS’s ventilator use, noting likely violations of

TDRH ventilator policies and the discomfort experienced by

employees forced to wear them. See TNS, 309 N.L.R.B. at

1410-12 (the ALJ decision is reprinted in the Board’s first

TNS decision, beginning at 1388). However, the use of

ventilators is better read as a response to potentially dan-

gerous conditions rather than a dangerous condition itself; in

this way, TNS’s ventilator policy is either unrelated to, or

an amelioration of, a potentially dangerous condition facing

the employees.

Therefore, both airborne dust levels and ventilator use are

only tangential to the real focus of the Board’s inquiry—

objective evidence of danger to the employees’ health. The

third factor underlying the ALJ and Board decisions, the

contention that average whole body uranium exposures at

TNS were greater than typical for the nuclear industry, speaks

directly to employee health concerns. The Board summarized

the basis for this factor in its first TNS decision. The Board

explained that the TDRH called in the National Institute of

Occupational Safety and Health (NIOSH) to investigate the

TNS facility in late 1981, and quoted from the resultant

NIOSH report in noting:

NIOSH found that “whole body doses for production

workers from 1975 to 1980 ranged from 1.06 rems to

2.16 rems,” with none having “‘ever exceeded 5 rems per

ORO

29a

year whole body dose” since 1978. NIOSH concluded

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.”

Id. at 1354. The TDRH had adopted NRC regulations stating

that external exposure to radiation was not to exceed 5 rems

per year. Therefore, according to the Board’s reading of the

facts, TNS’s workers—while apparently receiving higher

than average exposure for United States nuclear industries -

did not receive radiation exposure above that permitted by

NRC/TDRH regulations.”

Finally, the Board mentioned the uranium-in-urine levels

of TNS’s employees. Since the DU used in the manufacturing

process at TNS’s facility is both a low-level radioactive

material and a toxic heavy metal, the TDRH monitored safety

levels at the plant with respect to exposure to radiation and

intake of uranium. There was no NRC regulation on

permissible uranium levels in employees’ kidneys; there was

only a non-binding guideline, the usefulness of which the

parties dispute. The NRC guideline stated that workers face a

“possibility of kidney damage” if any single urine sample

shows greater than 130 micrograms of uranium per liter of

urine (ug/l). See NRC Reg. Guide 8.22 (1987). The guide-

line set a “notice” level of 15 ug/l and an “action” level of

30 ug/l. The “notice” level is essentially an alarm signal, at

> In so concluding, the Board focused on average whole body uranium

levels. However, the NIOSH report recognized that individual exposure

levels were a more accurate consideration. A review of the NIOSH report

upon which the Board based its factual conclusions reveals that one TNS

worker in 1977 and two workers in 1978 had whole body exposures equal

to or greater than 5 rems. However, according to the report, no TNS

worker was exposed to 5 rems or more after 1978. Therefore, according

to the NIOSH report, TNS was in complete regulatory compliance in

this regard.

30a

which the cause of the elevated sample should be inves-

tigated; when the “action” level is reached, the employee is to

be removed from his or her work area until their uranium-in-

urine level falls.

However, the guideline had never been adopted by the

NRC, and the TDRH used the more permissive standard

published by the United States Army for testing uranium

levels in employees’ kidneys (the DARCOM standard). The

DARCOM manual set a “notice” level of 50 ug/l and an

“action” level of 100 ug/l. Again, there was a great deal of

discussion in the record in this case about varying results at

varying times; however, both parties and the Board agree

with the conclusion of the NIOSH report that from 1977-

1981, 52% of TNS employees had one or more urine samples

greater than the DARCOM notice level of 50 ug/1 and 19.5%

had one or more samples above the action level of 100 ug/1.

The NIOSH report did not set forth statistics illustrating

whether any employees had uranium-in-urine concentrations

at or above the danger level of 130 ug/l set by the NRC

guideline. However, the report summarily stated that “urine

uranium concentrations exceeded NRC guidelines for bio-

assay at uranium mills, but not the less stringent [DARCOM]

standards enforced by the state’ So, just as with the whole

body exposure data, the uranium-in-urine data relied upon by

the Board as providing objective evidence to support the

employees’ belief that their workplace was abnormally

dangerous consisted of scientific measurements within the

limits set by the relevant nuclear regulatory agency.

These facts are important not because they show TNS

complying with regulatory rules, but because the limits as set

by the NRC and adopted by the TDRH are established with a

considerable margin for safety, such that when complied

with, no injury would be expected in the exposed workforce.

See Johnston v. United States, 597 F. Supp. 374, 424-25 (D.

Kan. 1984). As the NRC itself has explained, its dose limits

3la

incorporate a “significant safety factor” so that substan-

tial injury or damage should not occur unless exposure

exceeds those limits by a “significant multiple.” 10 C.F.R.

§ 140.81(b)(1) (2002). Indeed, even the ALJ recognized the

value of reference to the limits set out by the regulatory

agencies. She wrote, “I can conceive of no more objective

means to assess whether the TNS employees were subjected

to abnormal dangers than to examine the evidence in this case

in light of the administrative standards.” TNS, 309 N.L.R.B.

at 1437. While the urine samples pointed to by the Board

exceed the non-binding guideline set out by the NRC, they

are within the standard promulgated by the U.S. Army and

adopted by the TDRH, and there is no evidence in the record

to suggest that the Army guidelines are not equally good

measures of safety.

So, in other words, the pieces of evidence relied upon by

the Board as providing objective evidence to support the TNS

employees’ belief that their workplace was abnormally

dangerous merely show that TNS had largely complied with

regulatory limits set with a considerable margin for safety.

As we explained above, a lack of emergency action by the

NRC or its state counterpart does not prohibit, as a matter of

law, an NLRB finding that objective evidence existed to

support the employees’ belief that their workplace was too

dangerous to work in. However, at the same time, the

existence of regulatory oversight, the power of the regulator

to take emergency remedial action, and the decision not to do

so must count for something. In the same way, concrete

health measurements within the limits promulgated or

adopted by those agencies also must count. The NLRB is not

free to discount these facts completely and find evidence of

abnormal danger in the face of them without further support.

For instance, there could be egregious evidence simply not

addressed or understood by the regulator, or the regulator

could have been moving too slowly for the circumstances, or °

32a

it could be that the regulator was not fully apprised of or in

control of the situation. Non-action by the relevant regulator

is certainly not ipso facto proof of a lack of abnormal danger,

but it must weigh against a finding that the employees’ belief

that their workplace was too dangerous to work in was

supported by objective proof.

As mentioned above, the Supreme Court has instructed that

when reviewing fact-finding by the Board, courts are to

determine whether the findings of fact are supported by

substantial evidence by taking into account the evidence upon

which the Board relies and “contradictory evidence or

evidence from which conflicting inferences could be drawn.”

Universal Camera, 340 U.S. at 487. In the present case, three

of the four pieces of evidence relied upon by the Board are

not terribly persuasive, and one piece of evidence (the

respirator use) is either irrelevant to the danger inquiry or

evidence of improved conditions. When we also take into

account the NRC and TDRH standards and those agencies’

lack of decisive regulatory action as evidence contradicting

that evidence, it becomes clear that the Board’s conclusion -

that objective evidence supported the employees’ belief that

their workplace had become too dangerous to work in - is

simply not supported by substantial evidence on the record

considered as a whole.

Inexcusable Delay

Since courts are to be deferential in reviewing agency

determinations, denying enforcement of an order solely on

the basis of delay is inappropriate. See, e.g., NLRB v. Int'l

Ass'n of Bridge, Structural & Ornamental Ironworkers, Local

480, 466 U.S. 720, 725, 80 L. Ed. 2d 715, 104 S. Ct. 2081

(1984) (per curiam); NLRB v. J.H. Rutter-Rex Mfg. Co., 396

U.S. 258, 265-66, 24 L. Ed. 2d 405, 90 S. Ct. 417 (1969).

This is because, in situations where the questioned award

would be payment or action in favor of the company’s em-

ployees, “the Board is not required to place the consequences

33a

of its own delay, even if inordinate, upon wronged employees

to the benefit of wrongdoing employers.” J.H. Rutter-Rex

Mfg. Co., 396 U.S. at 265.

Still, the Administrative Procedures Act holds, “with due

regard for the convenience and necessity of the parties or

their representatives and within a reasonable time, each

agency shall proceed to conclude a matter presented to it.”

5 U.S.C. § 555(b) (2002) (emphasis added). Accordingly,

courts sometimes refuse to enforce agency awards when

undue delay has made their enforcement inequitable. See, e.g.

Emhart Indus. v. NLRB, 907 F.2d 372, 378-80 (2d Cir. 1990)

(refusing enforcement after six-year delay).

This circuit has followed a rule under which it will enforce

Board decisions, even if delayed, when there is ““no

allegation that the delay has in any way prejudiced [the

Company], or given the Board, or union, an unfair advan-

tage.” NLRB v. Hub Plastics, 52 F.3d 608, 614 (6th Cir.

1995) (quoting NLRB v. Mich. Rubber Prods., Inc., 738 F.2d

111, 113 (6th Cir. 1984)); see also NLRB v. Taylor Mach.

Prods., 136 F.3d 507, 513-14 (6th Cir. 1998) (same). In the

present case, TNS submits that it would be prejudiced by the

Board’s decision, in that the decision orders back pay and

reinstatement. Since this case dragged on for 18 years

between filing and the Board’s second decision, the back pay

that the Board ordered has potentially been mounting since

then. Further, the Company allegés that its operations have

so changed that ordering reinstatement of workers would

be unrealistic.

In a case with a Board-ordered remedy similar to this one,

the Second Circuit modified the Board’s award of back pay

and reinstatement because the case had dragged on for six

years, during which time the back pay figure had mounted

and the company had changed its internal structure to the

extent that reinstatement was unrealistic. See Olivetti Office

U.S.A., Inc. v. NLRB, 926 F.2d 181, 189-90 (2d Cir. 1991).

34a

The Board contends that there was no inexcusable delay, in

that the case presented novel issues, produced a voluminous

record and resulted in a lengthy 16l-page decision by the

ALJ, two comprehensive Board decisions, and a court of

appeals remand, as well as time spent by the Board trying to

reach a settlement between the parties. This is all true.

However, the undisputed fact is that the case was filed with

the Board in 1982. The Board’s ALJ did not issue a decision

until 1987. The Board did not issue its decision affirming the

ALJ until 1992, more than five years later. After remand by

the District of Columbia Circuit in 1995, the Board did not

issue its second decision until September 1999, more than

four years later. This court does not see a reasonable way to

hold the Company responsible for damages accruing over all

of this time, especially when its structure and business

changed in the interim. Accordingly, we VACATE the

Board’s decision finding TNS to have breached its obli-

gations under § 502, rather than remanding it for further

consideration.

35a

APPENDIX B

DECISIONS OF THE NATIONAL LABOR

RELATIONS BOARD

TNS, INC.

329 N.L.R.B. 602

TNS, INC. AND OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, AFL-CIO.

Cases 10-CA-17709 and

10-CA-18785

September 30, 1999

SECOND SUPPLEMENTAL DECISION AND ORDER

BY MEMBERS FOX, LIEBMAN, AND HURTGEN

The principal issue in this case, on remand from the United

States Court of Appeals for the District of Columbia Circuit,’

is whether the Respondent violated Section 8(a)(3) and (1) of

the Act by permanently replacing, and thereafter refusing to

reinstate, employees who engaged in a work stoppage which

the General Counsel asserts was in response to “abnormally

dangerous” working conditions involving exposure to

radioactive and toxic substances in the Respondent’s plant. A

' TNS, Inc. v. Oil Workers, 46 F.3d 82 (1995). The Board’s prior

decision is reported at 309 NLRB 1348 (1992). Subsequent to the court’s

remand, the Respondent and the Charging Party Union filed statements of

position. The Labor Policy Association and the Chamber of Commerce of

the United States of America filed a statement of position as amici curiae.

The Respondent filed a reply brief to the Union’s statement of position

and the Union filed a reply to the amici statements of position.

The National Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

36a

corollary issue is whether the Respondent violated Section

8(a)(5) by withdrawing recognition from the Union on the

basis of a decertification petition signed by a majority of the

replacement work force.

The General Counsel and the Charging Party argue that

Section 502 of the National Labor Relations Act’ protects the

employees from permanent replacement because their work

stoppage was a “quitting of work . . . in good-faith because of

abnormally dangerous conditions” and therefore, does not

constitute an economic strike. The Respondent contends that

the employees were never exposed to abnormal health risks

and were economic strikers. Thus, it was entitled to hire

permanent replacements, which in turn provided a legitimate

business justification for its refusal to reinstate the

employees. The judge agreed with the General Counsel and

Charging Party, found that the Respondent had violated

Section 8(a)(5), (3), and (1), and ordered the Respondent,

among other things, to reinstate the employees and bargain

with the Union. The Respondent excepted to the judge’s

findings and analysis.

In the subsequent Board Decision and Order, a two-

member plurality of a four-member Board reversed the judge

and dismissed the complaint, tn pertinent part, on the grounds

729 U.S.C. 143. Sec. 502 states:

SAVING PROVISION

Sec. 502. Nothing in this Act shall be construed to require an

individual employee to render labor or service without his consent,

nor shall anything in this Act be construed to make the quitting of

his labor by an individual employee an illegal act;"nor shall any

court issue any process to compel the performance by an individual

employee of such service, without his consent; nor shall the quitting

of labor by an employee or employees in good-faith because of

abnormally dangerous conditions for work at the place of em-

ployment of such employee or employees be deemed a strike under

this Act.

37a

that the General Counsel had failed to prove that, at the time

of the walkout, “the totality of available evidence supplied a

sufficient basis for a reasonable good-faith belief that the

employees’ working conditions were ‘abnormally dangerous’

within the meaning of 502.”° In so finding, the plurality

articulated and applied a test requiring the General Counsel to

prove that employees exposed to radioactive and/or toxic

substances, 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 unacceptable

risk of future injury to employees. [309 NLRB 1357-1358.]

A third Board member concurred with the plurality’s

dismissal of the complaint allegations, but he relied on a

different test. In his view, a work stoppage was covered by

Section 502 only if it was the “sole cause” of a walkout. In

this case, he found that the work stoppage was motivated at

least in part by the employees’ desire to obtain favorable

terms in a new collective-bargaining agreement.

The dissenting fourth Board member maintained that the

judge had correctly determined that Section 502 applied to

slow-acting, cumulative health risks, that the General Counsel

had demonstrated that the employees’ walkout was in good-

faith and based on objective evidence of cumulative

overexposure to radioactive and toxic chemicals which

rendered the TNS plant an abnormally dangerous, presently

> 309 NLRB at 1355. The plurality therefore found it unnecessary to

decide whether an employer could lawfully hire permanent replacements

for employees engaged in a Sec. 502 work stoppage.

38a

existing threat to their safety, and that employees who quit

work because of abnormal dangers under Section 502 cannot

be permanently replaced.

In remanding the case, the court specifically rejected the

sole-cause test for Section 502 set forth in the concurring

opinion. It was then left with only the plurality’s inter-

pretation 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 in a case in which the entire Board

purported to address the underlying issue. We therefore hold

that the [Board’s] . . . decision is thus not properly reviewable

in this court.

The court remanded the case to the Board for

reconsideration, with instructions 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.”

The Board has accepted the court’s remand.° In accord-

ance with the court’s instructions, and for the reasons set

forth here, we adopt the following test to be applied in this

and future cases involving cumulative, siow-acting dangers to

employee health and safety. In order to establish that a work

stoppage is protected under Section 502, the General Counsel

must demonstrate by a preponderance of the evidence that the

* 46 F.3d at 85 (emphasis in original).

* Id. at 92 (citation omitted). The court made it clear, however, that in

declining to defer to the plurality view and remanding the case to the

Board, it was deferring to the Board’s judgment and Congressionally-

mandated “principal policymaking authority.”

° The Respondent has filed a motion to disqualify and recuse former

Chairman Gould from consideration of this case. The motion has become

moot as a result of the expiration of the former Chairman’s term as a

Board member on August 27, 1998.

39a

employees believed in good-faith that their working con-

ditions were abnormally dangerous; that their belief was a

contributing cause of the work stoppage, that the employees’

belief is supported by ascertainable, objective evidence; and

that the perceived danger posed an immediate threat of harm

to employee health or safety.’ Applying this test, we find, as

explained below, that the General Counsel met the burden of

proving that the Respondent’s employees engaged in a

Section 502 work stoppage. Further, we hold that employees

who quit work under circumstances governed by Section 502

are not economic strikers and are not subject to permanent

replacement. We therefore conclude that the Respondent

violated Section 8(a)(3) and (1) by failing to reinstate the

employees when they offered to return to work and violated

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

and refusing to bargain with it.

As the court noted, this case involves the definition of a

legal right under the Act. Further, the facts of the case render

it one of first impression before the Board. As we will discuss

below, however, we do not view the Act’s language, judicial

interpretation of it, or underlying principles of labor law as

- requiring the enunciation of a novel “rule” involving

exposure to slow-acting radiation and toxins as distinct from

other, more obviously immediate dangers to employee health

or safety. The Board has found Section 502 applicable in a

number of factual settings, some of which will be discussed

below, but it has never faced the issue of how the provision

' We have considered the two-prong test set forth by the plurality in the

Board’s previous decision. We reject that test because it places an

unreasonably heavy burden on employees to substantiate their good-faith

belief that working conditions are abnormally dangerous. We also reject

the position of the amici that Sec. 502 applies only when the General

Counsel has proved that working conditions were in fact abnormally

dangerous. As noted by the judge, the D.C. Circuit in Banyard v. NLRB,

505 F.2d 342 (1974), has held that Sec. 502 does not require proof of

abnormal danger-in-fact.

40a

applies to dangers that are not sudden, readily apparent, or

self-limited in time-in other words, to insidious dangers

involving a latency period before the harm manifests itself.

This latency period is the factual variable that makes this case

one of first impression. Pursuant to the court’s remand, our

task is to define the type of evidence that will prove a good-

faith belief of the existence of “abnormally dangerous

conditions for work” in such circumstances.

Thus; our order of business is to examine the facts as fully

developed by the judge and to evaluate her analysis; to state

our own formulation of the circumstances under which the

Board will find a work stoppage protected by Section 502 and

the standards we will apply; to relate these standards to the

facts of this case; and finally, to state our policy respecting

the relationship between Section 502 and the permanent

replacement of economic strikers.

A. Factual Background

The facts of this case are more fully developed in the

preceding judge’s, Board, and court decisions. We summarize

them below. During the relevant period of 1980-1981, the

Respondent manufactured nonnuclear ammunition made from

depleted uranium (DU) in a facility in Tennessee. The Union

represented about 100 employees in a production and main-

tenance bargaining unit. The relevant collective-bargaining

agreement between the Respondent and the Union terminated

on April 30, 1981.°

The manufacturing process at TNS involved the release

into the air of DU dust. When ingested or inhaled, this

substance presents two potentially life-threatening hazards to

humans. It is a low-level radioactive carcinogen. It is also a

toxic heavy metal that poses a threat to the kidneys.

® Unless otherwise noted, all further dates shall be in 1981.

4la

Because DU is mildly radioactive, the Respondent’s plant

was under the jurisdiction of the United States Nuclear

Regulatory Commission (NRC), which, pursuant to an

agreement with the State of Tennessee, delegated its

oversight of the Respondent’s operations to the Tennessee

Division of Radiological Health (TDRH). Among TDRH’s

duties were licensing Tennessee nuclear facilities and

devising and enforcing regulations to protect workers and the

public from the hazards of the nuclear industry. The

NRC/TDRH agreement provided that NRC could terminate

or suspend TDRH’s authority if necessary to protect public

health and safety, or if the state failed to comply with

requirements of the Atomic Energy Act.” On occasion, NRC

officials accompanied TDRH employees on their inspections

of the Respondent’s plants. In furtherance of its mandate,

TDRH periodically inspected nuclear facilities to insure

compliance with its safety standards. TDRH had the legal

authority to close a facility through suspension or revocation

of the facility’s license to operate a nuclear plant in the state.

To protect against potential injury or illness from exposure

to DU, TDRH adopted the official dose limits set by the NRC

for both external and internal exposure. Employees’ external

exposure (also referred to as “whole body” exposure) was not

to exceed 5 rems'? per year or 1.25 rems per calendar

quarter. Internal exposure, measured by “in vivo” lung scans,

was not to exceed 15 rems per year. With respect to the

allowable amount of DU in the kidneys, the NRC maintained

only published “guidelines” but had no official limits. The

guidelines (reg. guide 8.22) stated that kidney damage may

occur if an employee had a single urine sample with more

than 130 micrograms of uranium per liter of urine (ug/l), or 4

or more samples with levels exceeding 30 ug/l. The proposed

9 42 U.S.C. Sec. 202(j)(1).

'0 A “rem” is a measurement of radioactive exposure.

42a

“notice” level was 15 ug/l and the “action” level was 30

ug/I.'' Rather than these guidelines, however, the Respondent

followed TDRH-approved standards set by the U.S. Army

(“DARCOM”), which had notice and action levels of 50 and

100 ug/i respectively. In addition, TDRH required facilities

under its jurisdiction to subscribe to the ALARA principle,

which required that they keep all exposures to DU “as low as

is reasonably achievable.””'”

To comply with TDRH regulations, the Respondent used a

contaminant control system to reduce DU dust in the plant’s

atmosphere. Because radiation inevitably escapes into the

work area, TDRH had established standards for the

“maximum permissible concentration” (MPC) of airborne DU

particles, beyond which no worker is to be exposed for 40

hours a week for 13 weeks. TDRH required licensees to keep

airborne DU dust to a maximum of 25 percent of MPC. If an

employer was unable to reduce emissions to the 25 percent

level, TDRH authorized the use of respirators, provided that

their use conformed with TDRH regulations.

TDRH used NRC Regulatory Guide 8.15 as a standard for

respirator use. These regulations required a written statement

of policy; use of respirators yielding a certain level of

protection; medical approvals and fittings for all employees

using respirators; established procedures for choosing,

supervising, and training employees who will use them;

proper facilities and procedures for cleaning, maintaining,

'' See TNS, Inc., 309 NLRB 1348, 1349 fn. 9 (1992) for the definition

of action and notice levels.

'? ALARA is a cost-benefit analysis defined in federal regulations as

maintaining levels “as low as is reasonably achievable taking into account

the state of technology, and the economics of improvements in relation to

benefits to the puhlic health and safety, and other societal and

socioeconomic considerations, and in relation to the utilization of atomic

energy in the public interest.” 10 CFR Sec. 20.1(c).

43a

and storing respirators, and notice to employees that they can

leave their work stations if their respirators malfunction or are

uncomfortable.

Some aspects of the Respondent’s respirator program were

admittedly in violation of TDRH regulations, as detailed in

the judge’s findings. In March, some employees staged a

brief wildcat strike in protest of the respirator program, but

the Union persuaded them to return to work.

In the fall of 1979, TDRH began to make regular, semi-

annual inspections of the Respondent’s facility, which

revealed that the Respondent was failing to comply with

TDRH regulations in certain respects. Between September

1979, and the employees’ walkout on May I, 1981, TDRH

conducted eight inspections of varying detail at TNS. Each

inspection disclosed deficiencies in the Respondent’s com-

mitment to the ALARA concept and to employee safety in

general, as well as specific instances in which the Respondent

was failing to meet the minimum standard set for exposure to

DU.'? In October or November 1980, some employees

pressed the Union for a strike to protest health and safety

conditions, but the Union cautioned against it in the belief

that because the contract contained a no-strike clause, a

walkout might jeopardize the employees’ jobs.

Meanwhile, TDRH instructed the Respondent’s manage-

ment to correct the deficiencies uncovered during the

inspections. In January, after a finding of airborne DU

concentrations above MPC levels, the Respondent instituted

compulsory, full-time respirator use for employees in certain

areas of the plant. The Respondent planned to continue the

respirator program until August, at which time new air

filtering equipment as well as shielding devices to minimize

airborne DU particles were to be installed.

"3 The Board’s previous decision sets out in fuller detail a description

of these inspections. See 309 NLRB at 1350-1351.

44a

In March, the parties commenced negotiations for a

contract to succeed the current one set to expire on April 30."

On March 10, the Union notified the Respondent that unit

employees would stop work after the contract expired at

midnight on April 30, and would stay out until the

Respondent corrected the safety violations discovered by past

TDRH inspections and any new violations uncovered during

its upcoming April inspection. On May |, unit employees

began a work stoppage and the Respondent discontinued

operations.

The Respondent’s facility underwent further inspections

following the walkout. In May, the Respondent hired radia-

tion management consultants (RMC), a private consulting

firm, to survey its plant. RMC reported that the Respondent

was deficient in “six areas of noncompliance”: limiting con-

centrations of airborne materials to restricted areas; respira-

tory protection; surveys of emissions; release of effluents to

unrestricted areas; personnel monitoring; and training and

calibration. The report also stated that

[T]here seems to be a lack of management commitment

to a radiation safety program . . . . We observed many

areas of noncompliance. These coupled with the past

history of whole body and extremity overexposure

should be of great concern to management. The plant

health physics staff . . . is working to improve the

program. However, plant management has to support

these changes and has to pay strict attention to the

program.

TDRH and NRC conducted investigations of the plant in

mid-October and December, which resulted in citations for

several violations, including air contamination above MPC in

the foundry during the first and last quarters of 1981, and the

'* The history of these negotiations is set forth at 309 NLRB

1351-1352.

45a

failure to notify employees of exposure to excessive levels of

airborne radioactivity. The investigative report concluded that

“it appears that your safety program was inadequate to protect

workers from unnecessary radiation.” In addition, the

National Institute of Occupational Safety and Health

(NIOSH) inspected the facilities in November and December,

at TDRH’s request. NIOSH examined employees’ exposure

readings and found that external whole body exposure levels,

while “for the most part within legal limits” of 5 rems per

year, were higher than doses sustained by workers in other

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

NIOSH further determined that between 1978-1981 32

percent of the employees had exposure levels that, while

below the maximum annual dose of 15 rems per year,

reflected an “inadequate margin of safety.” Finally, NIOSH

concluded from its review of urine bioassays that 52 percent

of the employees had one or more urine samples greater than

the DARCOM notice level of 50 ug/l and 19.5 percent had

one or more samples above the action level of 100 ug/l.’°

In February 1982, the Union unconditionally offered on

behalf of all employees to return to work. The Respondent,

which had partially resumed operations in August, declined

the offer because all positions were held by permanent

replacements. After receiving a decertification petition on

'S Thus, NIOSH concluded that uranium in urine was above NRC

guidelines, but not those set by DARCOM. The NIOSH report stated that:

Because the NRC guidelines are set to protect workers from the

toxic effect of uranium to the kidneys, we may infer that 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.

46a

May 3, 1982, signed by a majority of employees then

working at the plant, the Respondent withdrew recognition

from the Union and has since refused to bargain.

B. Discussion

1. Abnormally dangerous conditions in the TNS

plant

The threshold issue in this case is whether the work

stoppage was protected by Section 502 of the Act. As

previously stated, the judge found that the TNS employees

quit work in the good-faith belief, based on objective

evidence, that conditions at the plant were abnormally

dangerous within the meaning of Section 502. She interpreted

precedent as placing on the General Counsel the burden of

showing that the employees’ perceptions were reasonably

based on verifiable grounds; rejected a test placing on the

General Counsel the burden of demonstrating danger in fact;

found that the General Counsel could cite an employer’s

failure to correct or abate the danger as evidence of

abnormally dangerous conditions; and found that, although

the standards and judgments of regulatory agencies and other

expert opinions are relevant to whether there is an objective

basis for the belief that abnormally dangerous conditions

exist, the General Counsel does not have the burden of

showing consistent violations of such standards to establish a

prima facie case.

We agree with the judge that Section 502 is applicable to

abnormally dangerous threats to employee health and safety

caused by cumulative exposure to radioactive and toxic

substances, even where, as here, there may be no immediate,

quantifiable physical injury. We further agree that the factors

on which the judge relied in finding that the walkout at TNS

was protected by Section 502 are relevant and sufficient for a

finding of abnormally dangerous conditions; and that her

formulation of the General Counsel’s burden of proof was

legally correct.

47a

We see no reason to limit the protection of Section 502

because of the peculiar risks inherent in working with

radioactive or cumulatively toxic substances, despite the

length of time it may take for injury to employees to become

evident, provided that the General Counsel can demonstrate

that Section 502 applies at the time of their walkout.

Although no legislative history exists to facilitate inter-

pretation of Section 502, its broad and absolute language

excepting certain types of work stoppages from the definition

of a strike gives no indication that Congress intended the

provision to cover only certain types of abnormally dangerous

threats to employee safety or that it would apply only in

certain circumstances. Thus, as the court noted in remanding

the case, the Board’s responsibility, guided by the general

policies underlying the labor laws and by the Supreme

Court’s interpretation of the statute, is to give the provision

concrete meaning and scope in terms of the realities of

the workplace.

With those principles as our starting point, we look first to

the Supreme Court’s only discussion of Section 502 in its

Gateway Coal decision.'° In that case the Supreme Court

held that a union must arbitrate a dispute over the employer’s

continued employment of foremen who had been criminally

negligent in monitoring safety conditions. The Court further

held that Section 502, in the circumstances of that case, did

not prohibit the issuance of an injunction to enforce a

contractual no-strike clause,’ because the district court

below had conditioned the injunction on the suspension of the

foremen, thus mooting the safety issue. In the context of

determining Section 502’s effect on a no-strike clause, the

Court interpreted it as “(providing] a limited exception to an

'© Gateway Coal v. Mine Workers, 414 U.S. 368 (1974).

7 See Boys Market, Inc. v. Retail Clerks, Local 770, 398 U.S. 235

(1970).

48a

express or implied no-strike obligation. . . . [A] work

stoppage called solely to protect employees from immediate

danger is authorized by [Section] 502 and cannot be the basis

for either a damages award or a Boys Markets injunction.”

Gateway Coal, 414 U.S. at 385. The Court found Section 502

inapplicable to the facts in Gateway Coal because the “claim

concerns not some identifiable, presently existing threat. . .

but rather a generalized doubt in the competence and integrity

of company supervisors.” /d. at 386. The Court expressly did

not pass on whether the presence of the foremen would have

been sufficient to block the injunction, noting that the action

of the lower court had removed any immediate danger and

mooted the issue.

In Gateway Coal, the Court quoted with approval the

dissent’s analysis in the underlying circuit court case. The

majority in the Third Circuit Court of Appeals had denied

injunctive relief to the employer, in part on the basis that

Section 502 applied, concluding that “an honest belief, no

matter how unjustified, in the existence of ‘abnormally

dangerous conditions for work’ necessarily invokes the

protection of Section 502."'5 The Court agreed with the

dissenting judge that a union seeking Section 502 justification

for an unprotected work stoppage “must present

‘ascertainable, objective evidence supporting its conclusion

that an abnormally dangerous condition for work exists.””"”

Although the actual Section 502 issue became moot in

Gateway Coal, the case and the Court’s comments on Section

502 are significant and have been consistently useful to the

Board in applying the provision to various factual scenarios.

The test that we today announce for work stoppages

protesting exposure to radioactive or toxic substances is

'§ See Gateway, supra at 386-387.

'° Id. at 387 (citation omitted).

49a

derived in large part from the language of Gateway Coal, and

its progeny. To repeat, we held that in order to establish that a

work stoppage is protected under Section 502,

(T]he General Counsel must demonstrate by a pre-

ponderance of the evidence that the employees believed

in good-faith that their working conditions were

abnormally dangerous; that their belief was a contrib-

uting cause of the work stoppage; that the employees’

belief is supported by ascertainable, objective evidence;

and that the perceived danger posed an immediate threat

of harm to employee health or safety.

Under the test we have announced today, it is only

necessary that the abnormally dangerous conditions be a

contributing cause of the employee work stoppage. The

court’s opinion in this case fully explains why it is legally

unreasonable to require proof that the safety issue be the sole

cause of a work stoppage. 46 F.3d at 91-92. The same

reasoning applies to and warrants rejection of the dissent’s

view that Section 502 should apply “only where the

abnormally dangerous conditions are the proximate cause of

the work stoppage, i.e., but for the abnormally dangerous

conditions, the employees would not have stopped work.” We

find that the dissent’s proximate cause test is as “hopelessly

shortsighted” as the sole-cause test that the court harshly

criticized. It is particularly so in cases where abnormally

dangerous conditions result from cumulative exposure to

slow-acting conditions in the workplace where there is no one

exact moment at which employees can determine that those

conditions would justify a work stoppage within the meaning

of Section 502. If they simultaneously had a dispute with

their employer over bargaining demands, they would rarely, if

ever, be able to walk out in protest over abnormally

dangerous conditions without risking a finding that their

walkout would not have occurred “but for” the coincidental

existence of the economic dispute. As a result, under either

50a

the sole cause or proximate cause test, employees would have

to foreswear their statutory right to strike in support of

bargaining demands in order to secure their statutory right to

escape abnormally dangerous conditions in the workplace. As

the court stated, “[e]mployees 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.” /d. at 92.

Contrary to the dissent, we do not find that our test makes

it easy for a union and employees to insulate economic

protests from Section 8(d), contractual no-strike provisions,

or the risk of permanent replacement. Abnormally dangerous

conditions, as defined by the Board and courts, are, as stated,

abnormal and not readily available to confer what the dissent

calls “super-protection” when striking for economic gains. In

those few instances where the quitting of work because of

abnormally dangerous conditions may coincide with eco-

nomic objectives, the Congressional concern for employee

safety manifest in Section 502 should not be diminished by

the coincidence of these other causes for a work stoppage. As

the court has stated in this case, that “employees also desired

better wages is irrelevant.” /d. at 91. Cf. Teamsters Local 515

v. NLRB, 906 F.2d 719, 723 (D.C. Cir. 1990) (in an unfair

labor practice strike, “[t]he employer’s unfair labor practice

need not be the sole or even the major cause or aggravating

factor of the strike; it need only be a contributing factor”).

The dissent misconstrues the basis for our reference to the

causation test for unfair labor practice strikes. The common

thread between that test and the causation test for a Section

502 work stoppage is the statutory protection of employee

rights; i.e., the right to be free from unfair labor practices and

the right to quit work when faced with the risk of serious

illness or injury. In both instances, it is within the employer’s

control to eliminate the noneconomic causes of a work

stoppage, either by remedying the unfair labor practices or

SAEEEEEEE EERE til

Sla

abating the abnormally dangerous conditions. Any work

stoppage continuing after such employer action would

ordinarily revert to the status of an economic strike.

That the test we announce today closely tracks the lan-

guage of Section 502 should be readily apparent. Perhaps the

most difficult task in applying Section 502 to health and

safety risks such as those that existed at TNS is determining

the type of ascertainable objective evidence that will be

sufficient to support employees’ good-faith belief that the

perceived dangers at their workplace pose an immediate

threat of harm to their health and safety. one |

In Fruin-Colnon Construction a aay the Board adopted the

administrative law judge’s definition of “abnormal” as

“deviating from the normal condition or from the norm or

average.” We adhere to that settled and reasonable standard.

In the past, the Board has found abnormal danger in cases in

which risks that are ordinarily present have been intensified.

Examples include a natural seepage of water that became a

steady flow causing interference with footing at the base of a

mine shaft, coupled with an unusually forceful updraft of dust

and dirt which made it difficult for miners to keep their eyes

open;” an improperly operating exhaust blower which caused

the temperature in the workplace to rise to 110 degrees

Fahrenheit with “dust, lint, dirt, and abrasives . . . flying all

over the room, making it difficult for the [men] to breathe,”””

operation of equipment that was either inappropriate or

appeared to be dangerously impaired, i.e., unloading cargo

20 139 NLRB 894 (1962), enf. denied on other grounds 330 F.2d 885

(8th Cir. 1964).

7! Id. at 898.

22 Knight Morley Corp., 116 NLRB 140, 142 (1956), enfd. 251 F.2d

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

nt

52a

from pallets rather than customary slings;*> working in a

railyard with ineffectual stops for moving freight cars and

inadequately functioning respirators;”* and driving a truck

when the transmission appeared unsafe.” Generally, the

Board has found abnormally dangerous conditions in working

environments that-already contained some risks, such as the

coal shaft in Fruin-Colnon and the dock in Philadelphia

Marine where employees were routinely called on to unload

heavy, unwieldy cargo. However, the Board has also found

that abnormally dangerous conditions did not exist in

facilities in which the work carried inherent dangers. See,

e.g., Beker Industries C orp.,-° where the effects of a chemical

explosion had dissipated several hours before the employee

was to begin work at a neighboring plant; Mine Workers,

District 6,°’ where a supervisor’s safety violations, while a

genuine cause for concern, did not rise to the level of

abnormal danger; and Union Independiente de Empleados de

Servicios,* where the Board found that a fight between a

supervisor and an employee was not serious enough to give

rise to an “imminent and dangerous employee safety

condition.” The variety of the circumstances to be evaluated,

even in this small number of cases, demonstrates the wisdom

of a case-by-case approach within the guidelines set forth in

Gateway Coal.

We recognize that some jobs and worksites contain

inherent dangers that even the most careful employers may

find difficult to eliminate entirely. Such inherent routine

> Philadelphia Marine Trade Assn., 138 NLRB 737 (1962), enfd. 330

F.2d 492 (3d Cir. 1964).

*4 Richmond Tank Car Co., 264 NLRB 174 (1982).

*> Roadway Express, Inc., 217 NLRB 278 (1975).

*° 268 NLRB 975, 976-977 (1984).

7217 NLRB 541, 551 (1975).

** 249 NLRB 1044 (1980).

53a

dangers, however, do not fall under the aegis of Section 502.

It is when such risks escalate to the point, or are maintained at

a point, at which they pose a presently existing threat to

employee health or safety that Section 502 comes into play.

Such was the case in Philadelphia Marine: transferring

heavy, unwieldy objects from ships to wharves will never be

without risk; the additional element, however, of a

management decision to substitute an unreliable method of

performing the work transformed the “normal” danger into

the “abnormal” danger covered by Section 502.7’ In the case

at hand, it may be that manufacturing armor-piercing war-

heads out of depleted uranium cannot be made risk free.

However, the facts here, summarized above and presented

more fully by the judge, show that the risks the employees

faced at TNS went beyond what might or should reasonably

be expected in such a plant.

In assessing whether the employees believed in good faith

that their conditions of work were abnormally dangerous, our

standard will be, as noted above, whether ascertainable,

objective evidence exists to support their belief. As in

Gateway Coal, a purely subjective impression of danger will

not suffice; nor will a speculative doubt about safety in

general. The General Counsel, however, will not be required

to show that injury has already occurred; as the Board stated

in Knight Morley, the fact that employees were not actually

injured or made ill may simply reflect the fact they escaped

injury or illness by leaving when they did.’ Rather, the

reference point for assessing Section 502 coverage will be the

conditions in a facility as they presented themselves to the

employees. When presented with the dangers such as those

that existed at TNS, we will decide whether a work stoppage

is protected by Section 502 by examining, 9n a case-by-case

2% See also Fruin-Colnon, supra.

3° 116 NLRB 140, 144.

54a

basis, factors that, taken together or separately, would alert

employees to safety threats beyond the norm. Such indicators

would include, but would not be limited to, whether

conditions appeared to be deviating from the norm or from a

reasonable level of risk; whether equipment intended to

protect employees from exposure to toxic substances

appeared to be operating in a manner sufficient to afford such

protection; whether employees had received sufficient

instruction in the use of safety equipment to render that

equipment effective; and whether management policies

mandated and supported the proper use of safety equipment

and standards for handling dangerous substances; any

negative evaluations from regulatory agencies and any failure

of the employer to correct serious infractions. In short, we

will consider whether employees’ observations of their

workplace and its practices as they related to exposure to

toxic and radioactive substances reasonably led them to

conclude that the dangers they faced in the workplace had

reached a level beyond those reasonably to be expected in the

industry and that their continued exposure to harmful

substances subjected them to a risk of future serious illness or

injury. We will also consider evidence of significant devia-

tion from industry standards for a workplace safe for

employees, expert testimony as to the risks faced by

employees, and analyses of the level of exposure employees

had reached at the time they walked out.”

3) eas , : mone °

We recognize that, as in the present case, some of this evidence may

arise after the work stoppage takes place. None of the parties here have

objected to the after-the-fact nature of such evidence. In fact, the parties

have relied on such evidence in support of their opposing positions.

Where such objections are raised, we shall consider them in deciding the

relevance and weight to be accorded the evidence under the totality of

circumstances presented in that particular case. Such evidence could very

well be relevant, as in this case, in confirming that the employees’ belief

that they were being subjected to abnormally dangerous working

conditions was indeed supported by “ascertainable, objective” facts. In

55a

With respect to the issue of whether the employees were

facing an “immediate, presently existing danger,” we

emphasize that the danger must have been presently existing

and direct, but we do not interpret the term “immediate” as

meaning that the employees had to depart the workplace in

one moment or face grave injury in the next. In the case of

cumulative exposure to radioactive and toxic substances,

there will probably not be a single moment when

“immediate” departure from the workplace is obviously

necessary. Where the danger is cumulative, the issue will not

be whether employees should suddenly leave, but rather

whether a presently existing, reasonable possibility of serious

incipient or future illness or injury existed. In some instances,

when latency periods have run their course, historical analysis

may sadly prove that employees waited far too long to cease

work in order to protect themselves from such immediate

dangers.

In accord with the foregoing standards, we examine in this

case the conditions of the Respondent’s facility from the

perspective of the employees to determine whether they

believed in good faith that their working environment had

become abnormally dangerous. Although, as the judge noted,

employees had little insight into how the radiation and

chemically toxic properties of DU affected the body, they did

understand that working with the substance presented

potential health risks which were best avoided by minimal

contact with it. Employees testified, however, that the

Respondent’s production process involved frequent exposure

to DU. “Greensalt,” the powdered form of DU prior to its

transformation to a metallic state following a pressurized

heating or “firing’-process, often spilled on them as it was

delivered to the plant and unloaded and transported to other

addition. after-the-fact evidence could be helpful in determining whether

the General Counsel has met the burden of showing that the perceived

danger posed an immediate threat of harm to employee health or safety.

ne "rented

IT

56a

departments. Left uncleaned, the spilled greensalt was tracked

through the plant, including into the employees’ locker room

resulting in further contact by employees to DU. The “firing”

process exposed employees to additional DU in the form of

contaminated smoke and vapors that escaped from furnaces

and other machinery. Protective equipment enclosures

designed to prevent emission of the contamination during the

firing stage and subsequent stages of the production process

either did not exist or were in disrepair.

There is no dispute that the greensalt spills and the airborne

emissions of DU were the source of the hazardous

contamination at the Respondent’s facility. There is also no

dispute that employees considered this hazard as the principal

threat to their well being. They made this clear during joint

labor-management safety tours conducted each month by

repeatedly referring to the spilled greensalt and atmospheric

DU dust. Written reports of the tours summarizing these

perceived dangers were posted for review by all employees

above their timeclock. Further, in union meetings held during

the weeks immediately prior to their walkout, the main topic

of discussion among employees centered on their fears of

continuous exposure to DU-specifically, the Respondent’s

failure to correct the deficiencies highlighted in the health and

safety reports and its imposition of a mandatory respirator

program which the employees considered an inadequate

measure to protect them from exposures. As one employee

put it, “[o]n the last date when they took the final strike vote,

we all discussed the unsafe dirty conditions in the plant and

decided we needed to do something if we were going to work

there. We had to do something to get it cleaned up.”

As did the judge, we cannot conclude from the record

before us that the employees’ stated beliefs regarding their

working conditions were not genuine, i.e., held in good-faith.

A question remaining to be answered affirmatively to gain

57a

coverage under Section 502 is whether their good-faith belief

was supported by objective evidence. The judge found that it

was, citing the following four factors:

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

stations for at least the last quarter preceding the strike;

(2) the protracted use of respirators by a substantial

number of employees was deleterious to their health; (3)

the employees’ average whole body uranium exposures

were far greater than those typical for the nuclear

industry; and (4) that repeated and excessive uranium-in-

urine levels indicated serious risk of kidney damage....

[And] that these conditions came about and were not

soon abated because Respondent failed to comply

diligently with governmental codes prescribing sound

health physics practices.

We find this evidence, confirmed by either scientific testing

or regulatory oversight, and some of which was readily

observable and thus known to employees in the months

leading up to their walkout, constitutes objective proof

supporting their belief that their workplace had become too

unsafe an environment to continue working. The evidence

likewise substantiates the immediacy of the danger presented.

When TNS employees ceased work on May 1, 1981, they had

already endured a substantial period of sustained exposure to

conditions which they reasonably believed were abnormally

dangerous. For that reason, we find that there was a presently

existing, reasonable possibility of serious incipient or future

illness or injury. In agreement with the judge, therefore, we

conclude that abnormally dangerous working conditions were

a cause of the work stoppage and that the employees were

therefore engaged in a work stoppage protected by Section

502.

58a

2. Permanent replacement of employees engaged in a

Section 502 work stoppage

We agree with the judge that, under Congress’ explicit

language and policy, employers are not free to hire permanent

replacements for employees who cease work under Section

502. Section 502’s broad and positive language establishes a

significant policy: employees who engage in Section 502

work stoppages are not strikers; thus, they are not subject to

the risk faced by economic strikers that their struck employer

will invoke the privilege announced in NLRB v. Mackay

Radio & Telegraph, 304 U.S. 333 (1938), ard permanently

replace them. Stated differently, because a Section 502 work

stoppage is for the purpose of escaping abnormally dangerous

working conditions, it is not an economic weapon in support

of bargaining demands, and there can therefore be no basis

for Mackay’s balancing of employers’ economic interests

against employees’ interests in their own health and safety.

As the Sixth Circuit observed in Clark Engineering v.

Carpenters,** “[w]hen a work stoppage propery results from

abnormally dangerous working conditions, an employer

cannot resort to the weapons available to him in an

economically motivated work stoppage”-including permanent

replacement. Effectuating Section 502’s_ policies, as

expressed in the provision’s language, requires that the Board

protect the right of employees, forced to leave their jobs

because of abnormally dangerous conditions, to return to

work. To rule otherwise could even result in tae anomaly of

permanent replacements benefiting from improvements in

* $10 F.2d 1075, 1080 (6th Cir. 1975) (citations omitted). Clark

Engineering further describes the purpose of Sec. 502: “When an

employee is exposed to abnormally dangerous working conditions and

quits work in good-faith because of such conditions the Section protects

him or her from employer retaliation. The employee cannot be discharged.

. . . The employer cannot resort to a lockout.” /d. at 1079 (citations

omitted).

59a

working conditions denied to those who walked out. We view

anything less than full protection of the right of employees

engaged in a Section 502 work stoppage to return to work as

contradicting both Section 502’s plain language and the basic

principles of the Act at work both at the time Congress passed

the provision and today.

Section 502 was part of the 1947 Taft-Hartley amendments

to the 1935 National Labor Relations Act. Congress

considered and passed these amendments in the context of a

widespread reexamination of the strike as an economic

weapon. One major element of Congress’ purposes in passing

Taft-Hartley was to remove certain kinds of strikes, such as

secondary boycotts, from the protection of the statute in order

to protect the public from interruptions in the flow of

commerce. Taft-Hartley’s declaration of purpose and policy

states in part that it should “promote the legitimate rights of

both employees and employers in their relations . . . to define

and proscribe practices on the part of labor and management

which affect commerce and are inimical to the general

welfare, and to protect the rights of the public in connection

with labor disputes affecting commerce” (emphasis added).

Taft-Hartley also added to the Wagner Act’s original

“flindings and declaration of policy” the observation that

Experience has . . . demonstrated that certain practices

by some labor organizations . . . burden . . . or obstruct . .

commerce . . . through strikes and other forms of

industrial unrest or through concerted activities which

impair the interest of the public. . . . The elimination of

such practices is a necessary condition to the assurance

of the rights herein guaranteed.” ;

33 99 U.S.C. §151. Congress had not expressed such a view when the

Act was passed in 1935. In the Act’s original statement of findings and

policies, Congress had, while acknowledging that the purpose of the Act

was to promote industrial peace and the free flow of commerce, seen fit to

60a

The amendments define a strike broadly as “any strike or

other concerted stoppage of work by employees (including a

stoppage by reason of the expiration of a _ collective-

bargaining agreement) and any concerted slowdown or other

concerted interruption of operations by employees.””*

It is in the context, then, of Congressional sensitivity to the

interruptions in commerce caused by certain types of eco-

nomic actions, that Section 502 excepts from the definition of

a strike the “quitting of labor by an employee or employees in

good-faith because of abnormally dangerous conditions for

work at the place of employment of such employee or

employees.” It is particularly significant that Congress, in

outlawing some forms of economic weaponry that it had

come to view as potentially deleterious to the public good,

explicitly excepted quitting of work because of abnormally

dangerous conditions.

In passing Section 502, Congress knew that, when

employees strike over economic issues, they risk permanent

replacement. Fifteen years earlier, and only 3 years after

Congress had passed the Act, the Supreme Court stated in

Mackay that, although the Act expressly protects the right to

strike, “it does not follow that an employer, guilty of no act

denounced by the statute, has lost the right to protect and

continue his business by supplying places left vacant by

strikers. And he is not bound to discharge those hired to fill

the places of strikers . . . to create places for them.”**

In Mackay, the Court interpreted the Act as leaving open to

employers who have not committed unfair labor practices the

further those goals only by setting out and protecting the rights of

employees to self-organization, collective bargaining, and concerted

~ activity, among other things. No mention was made of the need to limit

employee or union access to economic weapons.

429 U.S.C. §142(2).

*$ 304 U.S. at 344-345.

ee

6la

powerful economic weapon of permanent replacement.

Mackay thereby balanced the right of employees to strike

over economic demands with a corresponding economic

privilege of employers to continue business operations during

the strike by replacing economic strikers.

Mackay extends a limited privilege only to employers

engaged in economic warfare who have not committed unfair

labor practices. Early cases involving unfair labor practice

strikes make clear that Mackay sets out an exception to the

Act’s general prohibition on interference with the right to

strike and to engage in protected activities involving the

cessation of work.*° After Mackay and before Taft-Hartley,

the Board consistently ordered backpay and reinstatement for

strikers who had walked out because of their employer’s

unfair labor practices, and the courts consistently enforced

these orders.

Moreover, the Taft-Hartley Congress was well acquainted

with the distinction between the strike as economic action as

opposed to a reaction to noneconomic causes, 1.e., an

employer’s unfair labor practices. As the Supreme Court

noted in Mastro Plastics Corp. v. NLRB?’

The record [of Taft-Hartley’s legislative history] shows

that the supporters of the bill were aware of the

established practice which distinguished between the

effect on employees of engaging in economic strikes and

36 See, e.g., NLRB v. Poultrymens’ Service Corp., 138 F.2d 204, 210

(3d Cir. 1943) (Strike caused by employer’s unfair labor practices; Board

authorized to order that strikers be reinstated with backpay); NLRB v.

Carlisle Lumber Co., 99 F.2d 533 (9th Cir. 1938) (Board can remedy

unfair labor practices with backpay and reinstatement

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