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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1106

## Text

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

® 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

OPS aS ENE Sap ORR eREOR ee

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s 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.”

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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

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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

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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

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.

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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

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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; these remedies
apply to employees who struck because of unfair labor practices).

37 Mastro Plastics Corp. v. NLRB, 350 US. 270, 288, 289 (1956)
(citations omitted).

Se
ender Ae RT am aa RE SS Sn

62a

that of engaging in unfair labor practice strikes. If
Congress had wanted to modify that practice, it could |
readily have done so by specific provision. |

- Further, the Court emphasized that, despite Taft-Hartley’s
removal of statutory protections from certain types of strikes,
it did not alter the “affirmative emphasis that is placed by the
Act upon freedom of concerted action.””®

Section 502 must be read in light of Congress’ continuing
affirmative emphasis on employee concerted action and the
distinction between economic action, with its attendant risks,
and noneconomic work stoppages. In Mastro Plastics, the
Supreme Court reaffirmed this distinction in holding that an
employer may not replace employees whose strike is caused
by unfair labor practices. Even Section 8(d), which deprives
strikers of their status as employees under the Act for
violating the waiting period before striking, does not apply if
the strike is in response to their employer’s serious unfair
labor practices. The Court noted that to find otherwise would
deprive strikers of statutory protection when their need for
representation is greatest and would remove their freedom to
strike against unfair labor practices aimed at their repre-
sentative rights. The Court emphasized the “inherent in-
equity” that would result from penalizing employees for
engaging in “conduct induced solely by the unlawful conduct
of the [employer].” 350 U.S. at 287.” Thus, under Board and
court law, permanent replacement is an economic weapon
and can be used as a defense against a strike under one
circumstance only: the strike over economic issues.

8 Id. at 287.

*° “Unfair labor practice strikers are ordinarily entitled to reinstatement
even if the employer has hired permanent replacements,” NLRB vy.
Fleetwood Trailer Co., 389 U.S. 375, 379 fn. 5 (1967), explaining Mastro
Plastics.

————————————————————————

63a

We view the Court’s analysis in Mastro Plastics as a
valuable guide to our determination of whether it is appro-
priate to balance an employer’s interest in continuing
operations by permanently replacing employees against the
right of employees to leave their jobs without economic
consequences under Section 502. If, in the Court’s view, there
would be an “inherent inequity” in permitting an employer to
hire permanent replacements for unfair labor practice strikers,
even when they strike during a statutorily-mandated waiting
period, it would be equally inequitable to permit an employer
to hire permanent replacements for employees engaged in a
statutorily-sanctioned work stoppage to escape abnormally
dangerous working conditions. To permit the hiring of
permanent replacements for employees engaged in a Section
502 work stoppage would essentially render meaningless the
special protections afforded employees by that statutory
provision.

While we do not suggest that TNS committed an unfair
labor practice, analogous to Mastro Plastics, it is nonetheless
solely responsible for the maintenance of working conditions
at the plant, and it is those working conditions that the
employees reasonably perceived to be abnormally dangerous,
driving them to quit work. Correspondingly, the TNS
employees are innocent of responsibility for these conditions.
Contrast this to the economic strike where both sides bear
some responsibility for the situation that leads to the
employees’ decision to walk out. Where economic warfare
results because both parties, despite good-faith bargaining,
cannot reach agreement, then, and only then, does the
employer have a right to employ the economic weapon of
permanent replacement.

In sum, as a matter of statutory interpretation and
Congressional policy, we hold that an employer cannot
permanently replace employees engaged in a Section 502
work stoppage. The Mackay employer privilege, and its

annem
) ,

64a

underlying rationale, apply only to the circumstances of a
pure economic dispute. It would be particularly inappropriate
to extend it to employers whose employees are forced to
leave their workplace because of potentially life-threatening,
abnormally dangerous working conditions, such as those
which prompted the TNS employee work stoppage.

CONCLUSION

We have found that the work stoppage at TNS was
protected by Section 502 and that the Respondent was not
entitled to hire permanent replacements for the employees
who walked off the job because of conditions that they
reasonably believed were abnormally dangerous. Accord-
ingly, we find that the Respondent was without a legitimate
business justification when it refused to reinstate the unit
employees upon their unconditional offer to return to work
and, thereby, violated Section 8(a)¢3) and (1). In addition, by
withdrawing recognition from and refusing to bargain with
the Union based on the contention that the decertification
petition signed by the replacement employees evidenced the
Union’s loss of majority support, the Respondent further
violated Section 8(a)(5) and (1).

THE REMEDY

Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5), (3), and (1) of
the Act, we shall order the Respondent to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.

Specifically, with respect to the 8(a)(3) violations, the
Respondent shall be ordered to offer full reinstatement to all
employees who participated in the Section 502 work stoppage
to their former positions or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously enjoyed.

65a

The Respondent shall also make these employees whole for
any loss of earnings and other benefits they may have
suffered as a result of the discrimination practiced against
them from February 15, 1982, the date that their uncon-
ditional offer to return to work was rejected by the
Respondent, until the date that the Respondent makes them a
valid offer of employment, less net interim earnings.”
Backpay shall be computed, with interest, in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest
on or after January 1, 1987, shall be computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173 (1987).
Interest on amounts accrued prior to January 1, 1987, shall be
computed in accordance with Florida Steel Corp., 231 NLRB
651 (1977).

With respect to the Respondent’s withdrawal of ‘recog-
nition from, and refusal to bargain with, the Union on or
about May 4, 1982, in violation of Section 8(a)(5) and (1), the

40 The commencement date of this make-whole remedy is different
from the one ordered by the judge. She treated the employees herein as
unlawfully discharged unfair labor practice strikers and ordered backpay
beginning from the date of discharge in accord with Abilities & Goodwill,
Inc., 241 NLRB 27 (1979). However, the violation which she found and
which we adopt is the permanent replacement of employees. The
commencement date of make-whole relief for such a violation is the date
on which a respondent refuses an unconditional offer by permanently
replaced employees to return to work. Ancor Concepts, Inc., 323 NLRB
742 (1997). That date in this case was February 15, 1982.

‘| The foregoing remedial provisions do not apply to the employees
who were working in the penetrator shop on the day of the work stoppage.
In its original decision the Board dismissed the complaint allegation that
the Respondent violated Sec. 8(a)(3) by failing to reopen and reinstate
penetrator shop employees to their positions after the Sec.502 walkout.
309 NLRB 1366-1367. This issue is not before us on remand, nor is the
independent Section 8(a)(1) complaint allegation, also dismissed by the
Board, regarding the Respondent’s statement to employees pertaining to
the seniority status of employees returning to work after the walkout. Id.
at 1367.

PR NR ROE RPNIRIREREND Nene

66a

Respondent shall be ordered, on request, to bargain in good-
faith with the Union and to incorporate in an executed
agreement any understanding which may be reached. This is
the traditional and appropriate remedy for an unlawful
withdrawal of recognition from an incumbent union. See, e.g.,
NLRB vy. Williams Enterprises, 50 F.3d 1280, 1289 (4th Cir.
1995), enfg. 312 NLRB 937 (1993) (“when a... company
refuses to recognize or bargain with an incumbent union,
only an affirmative bargaining order can restore the status

quo ante’”’).
ORDER

The National Labor Relations Board orders that the
Respondent, TNS, Inc., Jonesboro, Tennessee, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Discouraging membership in the Oil, Chemical and
Atomic Workers International Union, AFL-CIO, or in any
other labor organization, by threatening to permanently
replace and, upon their unconditional offer to return to work,
refusing to reinstate its employees who engaged in good-faith
in a work stoppage over abnormally dangerous conditions, or
by discriminating in any other manner in regard to their hire
or tenure of employment or any other term or condition of
employment.

(b) Refusing to bargain collectively with respect to rates
of pay, wages, hours and terms and conditions of employment
with the Union as the exclusive bargaining representative of
all hourly paid production and maintenance employees
employed by Respondent at its Jonesboro, Tennessee facility,
but excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act.

(c) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of their
rights under Section 7 of the Act.

67a

.. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer to all
employees who participated in the work stoppage which
commenced on May Il, 1981, immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges and make them whole for any loss of pay they
may have suffered as a result of the discrimination practiced
against them in the manner set forth in the remedy section of
this decision.

(b) On request, bargain collectively with the Union as the
exclusive representative of all its employees in the above-
described unit with respect to rates of pay, wages, and hours
of employment, and other conditions of employment and, if
an understanding is reached, embody such understanding in a
signed agreement.

(c) Preserve and, within 14 days of a request, make
available to the Board and its agents, for examination and
copying, all payroll and other records necessary to compute
the backpay due under the terms of this Order.

(d) Within 14 days after service by the Region, post at its
Jonesboro, Tennessee facility, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 10, after being
signed by its authorized representative, shall be posted by the
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to

42 1¢ this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”

68a

employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the
Respondent at any time since February 15, 1982.

(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

Dated, Washington, D.C. September 30, 1999
Sarah M. Fox, Member
Wilma B. Liebman, Member

69a
(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER hURTGEN, dissenting.

Unlike my colleagues, I do not find that the Respondent
violated Section 8(a)(3) and (1) of the Act by permanently
replacing, and later refusing to reinstate, employees who
engaged in a work stoppage allegedly in response to
abnormally dangerous conditions. I would therefore dismiss
the complaint.

1. Abnormally dangerous conditions were not the
proximate cause of the strike Section 502 provides that “the
quitting of labor by an employee or employees in good-faith
because of abnormally dangerous conditions for work” shall
not be deemed a strike. (Emphasis added.) Clearly, there must
be a causal nexus between the abnormally dangerous
conditions and the “quitting of labor.” The Board must decide
the appropriate test for determining such causality. As set
forth below, I believe that Section 502 applies 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. That
causality test is not met here. !

I disagree with the causation test propounded by my
colleagues for determining the applicability of Section 502 of
the Act. With respect to causation, my colleagues find it
sufficient that “abnormally dangerous working conditions
were a contributing cause of the work stoppage.” (Emphasis
added.) In my view, this sets the causation bar too low. Under
the majority test, a work stoppage would enjoy protection
under Section 502 even if the abnormally dangerous

' I accept arguendo the validity of my colleagues’ definition of
“abnormally dangerous conditions.” My point is that such a condition, if it
existed, was not the proximate cause of the work stoppage.

70a

condition were only a minor or insignificant cause of the
work stoppage.

In support of their view, my colleagues rely on a supposed
analogy between an unfair labor practice strike and a 502
work stoppage. Thus, inasmuch as a work stoppage can be an
unfair labor practice strike if only one of its causes is an
unfair labor practice, so too, it is said, a work stoppage falls
within the ambit of Section 502 if only one of its causes is an
abnormally dangerous condition.

The analogy does not withstand scrutiny. There is an
important difference between a Section 502 work stoppage
and an unfair labor practice strike. One of the Act’s
fundamental purposes is to prevent and remedy unfair labor
practices. If an employer commits unfair labor practices, and
this unlawful conduct is a cause of a strike, it would be
inconsistent with a fundamental purpose of the Act for the
Board to let the wrongdoer operate with permanent
replacements during a strike caused at least in part by his own
unlawful conduct. In contrast, the Board has no statutory duty
to prevent or remedy abnormally dangerous working
conditions. These matters are outside the Board’s remedial
province. Thus, there is no showing that the conditions in this
case were unlawful under the Act or under any other law.
Accordingly, there is neither need nor warrant for the Board
to transplant the lenient causality test employed in unfair
labor practice strike cases to the context of Section 502. My
colleagues say that the “common thread” between the “ulp”
strike and the Section 502 work stoppage is the statutory
protection of employee rights. However, the issue is not
whether the strike and work stoppage are protected. Clearly
both are protected. The issue is whether there are special
protections for Section 502 work stoppages, as there are for
“ulp” strikes. The answer is in the negative, for only “ulp”
strikes protest unlawful conditions.

Tla

In addition, the majority’s test would permit needless
departure from the sanctity of no-strike clauses. If, during a
contract, a dispute arose as to non-safety contractual matters
and as to a perceived abnormally dangerous condition, the
majority would sanction a work stoppage and its attendant
industrial instability. Although arbitration would be available
as to the nonsafety contractual matters, and perhaps as to the
perceived abnormally dangerous condition, such arbitration
would occur in the context of industrial warfare. The very
goal that arbitration is supposed to achieve, viz. a peaceful
means of resolving disputes, would be undermined.

Similarly, after the expiration of the contract, the work
stoppage could occur without the salutary notice, waiting, and
mediation provisions of Section 8(d).

My approach would not foster such a relatively easy escape
from no-strike clauses and from Section 8(d). At the same
time, my approach does not deprive employees of their
Section 502 rights. Even in a situation where there are several
causes of the work stoppage, the employees will be accorded
Section 502 protection if they can show that the abnormally
dangerous condition was the proximate cause of the work

stoppage.

My colleagues say that their test is simpler to apply than
the proximate cause test. But mere simplicity of a rule is not
itself a reason for adopting it. We must take into account a
panoply of statwvory goals, including the sanctity of no-strike
clauses find ithe importance of Section 8(d).

My colleagues also note the difficulty of determining the
precise point in time at which employees will reasonably
perceive abnormally dangerous conditions. However, that
difficulty is inherent in the test that my colleagues themselves
have devised for defining that term. They also concede that
causation must be shown. The sole difference between my
colleagues and me is the test for causation. I am simply

72a

saying that where the work stoppage would have occurred in
any event for other reasons it cannot be meaningfully said
that the work stoppage is “because of’ the abnormally
dangerous conditions.

I also disagree with my colleagues’ contention that, under
my test, employees “would rarely, if ever” be able to engage
in a Section 502 work stoppage. If the employees had walked
out on March 10, and made it clear that they would return
when conditions improved, that would presumably be a
Section 502 work stoppage. In this regard, | am not saying
that the employees would have “to promise to return to work
from a lawful economic strike.” Because of the no-strike
clause, the work stoppage would not be a lawful economic
strike. It would be a lawful 502 work stoppage.

In my view, all of these considerations counsel in favor of
a higher causation standard than the one set forth by my
colleagues. Accordingly, I would require that the employees’
belief be the proximate (“but for’) cause of the work
stoppage.”

The General Counsel has not established such causality.
Indeed, the timing of the work stoppage supports the
conclusion that there were additional matters which, standing
alone, would have caused the work stoppage in any event.
Throughout the negotiations for a new contract, which began
in March 1981, as well as at the time of the work stoppage,
the parties remained far apart on various issues, many of
which did not concern health and safety matters. On March
10, the Union threatened to strike on April 30, the expiration
date of the contract. Clearly, if the Union wished to stop work
because of such conditions, it could have done so then, i.e.,
on March 10. The fact that the Union threatened that the work

> The D.C. Circuit rejected the view that the abnormally dangerous
condition must be the “sole cause” of the work stoppage. The court did
not pass on what lesser test of causality would be appropriate.

73a

stoppage would occur on April 30 speaks volumes as to the
cause of such work stoppage. That fact clearly demonstrates
that, even in the Union’s view, the work stoppage was not
proximately tied to abnormally dangerous conditions.

Further, there is no showing that plant conditions worsened
between the March 10 threat, and the April 30 work stoppage.
Thus, the proximate cause of the April 30 work stoppage, like
the March 10 threat, was the bargaining dispute between the
parties.

Finally, I note that the employees made an unconditional
offer to return to work, at a time when conditions had not
improved.

I recognize that the judge found that: “The overwhelming
weight of the testimony establishes that the employees
rejected the Respondent’s final proposal and voted to strike
because they believed that the working conditions at TNS
were endangering their health.”

However, that finding is based on the subjective testimony
of employees, given long after the work stoppage had
occurred. In my view, the causality test should be based on
objective evidence at the time of the work stoppage.

In sum, the “but for” causation standard is not met here.
Thus, the employees’ work stoppage did not meet the criteria
of Section 502.

2. Section 502 does not prohibit permanent replacement

Even if I found that the “but for” standard was met, or if I
agreed with my colleagues’ lower causation standard, I would
still find that the Respondent acted lawfully here. In this
regard, I disagree with my colleagues’ view that permanent
replacement is precluded by Section 502.

For purposes of this discussion, I will assume that,
whatever test is applied, wé confront here the quitting of
work by employees in good faith because of abnormally

74a

dangerous conditions for work. My colleagues’ view
essentially amounts to this syllogism: pursuant to Section
502, the employees at issue were not strikers; because they
were not strikers, they were not economic strikers; because
they were not economic strikers, they could not lawfully be
permanently replaced. It is, however, just as logical to hold
that because the employees at issue were not strikers they
were not unfair labor practice strikers and were therefore not
immune from permanent replacement. The fact is that they
were neither economic strikers nor unfair labor practice
strikers. Indeed, they were not strikers at all; they were
“quitters.” The issue is whether these “quitters” should be
immune from permanent replacement.

Section 502 was intended to permit employees to engage in
a work stoppage without running the risks of (1) being
discharged for breaching a no-strike clause or (2) losing all
protection of the Act because of the “loss of status” provision
of Section 8(d). These purposes are achieved without
according the employees the “superprotection” of immunity
from permanent replacement. That is, it is sufficient that these
employees can walk out and be protected from discharge,
even if there is a no-strike clause, and even though they failed
_to comply with Section 8(d).

As noted supra, there are good reasons for not treating
Section 502 stoppages like unfair labor practice strikes. That
is, the employer is not a wrongdoer at all, at least insofar as
the Act is concerned. Such an employer should be allowed to
attempt to persuade potential replacement employees to come
to work. And, such employees should be free to accept
permanent employment, if they are of the view that the
employees who walked out had an exaggerated view of the
danger (if any) at the workplace.

By contrast, a wrongdoing employer (i.e., one who has
committed unfair labor practices) should not be permitted to
benefit from his own malfeasance through the mechanism of

a arrestee

75a

permanent: replacement. Unfair labor practice strikers are
accorded the “superprotection” of immunity from permanent
replacement because their actions vindicate the most
fundamental policies of the Act. That is not true of those who
are not unfair labor practice strikers.

With respect to the legislative history adduced by my
colleagues, I will limit myself to a few observations. In my
view, although it is not certain what Congress intended by
enacting Section 502, my review of this provision and its
legislative context leads me to believe that the more
reasonable view is that Congress did not intend to protect
Section 502 work stoppage participants from permanent
replacement. This belief is founded on: the absence of
specific language conferring such protection; the historical
origin of the specific language of the third clause in Section
502 as a response to loss-of-employee-status sanctions of
Section 8(d), rather than to permanent replacement, the fact
that, among all work stoppage participants, only unfair labor
practice strikers enjoyed such special protection at the time of
the passage of Section 502; the failure of Congress to make
the maintenance of abnormally dangerous conditions an
unfair labor practice or to prevent an employer from
continuing operations under such conditions; the total
absence of any indication of Congressional intent to limit the
Mackay’ doctrine permitting permanent replacement of
employees engaged in work stoppages; and the identification
of protections accorded by Section 502 which give substance
and meaning to Congress’ protective intent without
prohibiting permanent replacement of 502 work stoppage
participants. These protections include the guarantee of
immediate reinstatement for Section 502 work stoppage
participants who are not replaced, upon their offering to
return to work, without fear of any retaliation by the

3 NLRB v. Mackay Co., 304 U.S. 333 (1938).

76a

employer, even if they quit work during an 8(d) notice period
or during the term of a contract with a no-strike provision.

Precedent also counsels a restrained reading of the scope of
Section 502. The cases suggest tha’ Congress was concerned
about the perceived evil of having a no-strike clause apply
under abnormally dangerous conditions. In Gateway Coal Co.
v. Mine Workers, 414 U.S. 368 (1974), the Supreme Court
held that the safety dispute at issue was not a Section 502
work stoppage. In discussing Section 502, the Court stated
that Section 502 “provides a limited exception to an express
or implied no-strike obligation.” /d. at 385. The Court
reiterated this view in Whirlpool Corp. v. Marshall, 445 U.S.
| fn. 29 (1980), stating that the “effect of [Section 502] is to
create an exception to a no-strike obligation in a collective
bargaining agreement.”

The Board has likewise interpreted Section 502 as being
confined to creating a limited defense for employees who
engage in work stoppages despite a no-strike ban. In Knight
Morley Corp., 116 NLRB 140 (1956), enfd. 251 F.2d 753
(6th Cir. 1957), cert. denied 357 U.S. 927 (1958), a blower
system in a plant buffing room broke down allowing dirt and
abrasives from plant machinery to be blown into employees’
faces and causing the temperature to rise to 110 degrees. The
Board found that the conditions were abnormally dangerous.
Accordingly, it held that employees who walked out in
response to such conditions were protected under Section 502
“even in the face of a no-strike clause in their contract with an
employer.” /d. at 146. The Board stated further that it could
“conceive of no other reasonable purpose” for Section 502
beyond the declaration by Congress that a 502 work stoppage
is “not to be a ‘strike’ in order to give protection to such a
walkout, without regard to limitations on strikes such as those
imposed by ‘no-strike’ clauses or by Section 8(d).” /d. The
prevalent view among the courts of appeals also is that
Section 502 simply provides a limited exception to a no-strike

EE

77a

obligation. See, e.g., NLRB v. Tamara Foods, Inc., 692 F.2d
1171, 1183 (8th Cir. 1982) (there was no collective-
bargaining agreement in this case, to make Section 502
applicable).*

In Philadelphia Marine Trade Assn., 138 NLRB 737
(1962), enfd. 330 F.2d 492 (3d Cir. 1964), the Board held that
the Respondents’ method for unloading cargo from the ship
Caribe was abnormally dangerous. Consequently, a refusal by
longshoremen to unload the ship “under Section 502 of the
Act was not a strike, even assuming the existence of a no-
strike contract.” /d. at 739. Furthermore, the Board held that
the Respondents violated Section 8(a)(3° when they retaliated
against the protected Section 502 work stoppage by locking
out all area longshoremen and by insisting that the lockout
would remain in effect until the Caribe longshoremen agreed
to return to work under the same abnormally dangerous
conditions. In my view, this case does not support a
prohibition of permanent replacement. The work stoppage
was not a strike. It was therefore not in breach of any no-
strike clause. And, the lockout was not in pursuit of a
bargaining objective but rather was in retaliation for the
protected work stoppage.

In the instant case, the judge originally dismissed as
unpersuasive the restrictive definition of Section 502 by the
Supreme Court in Gateway Coal and in Whirlpool by stating
that “neither of these cases hold that the sole effect of

* Clark Engineering v. Carpenters, 510 F.2d 1075, 1080 (6th Cir.
1975), is not to the contrary. There, the court stated in passing that
“[w]hen 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.” The court provided no
explanation of this dictum, including whether it was meant to encompass
the “weapon” of permanent replacement. It did state that “the policy of
LMRA Sec. 502 is not involved in the present case,” id., which was a Sec.
303 damages suit against the union for an alleged secondary boycott.

78a

[Section 502] is to create an exception to a no-strike
obligation in a collective-bargaining agreement.” I agree that
those cases do not so hold, but neither do they hold the
contrary. And, as discussed above, the legislative purpose of
Section 502 can be accomplished without denying the
employer the privilege of permanent replacement. Further,
the limited exception to a no-strike clause reinforces my
view, based on the language and legislative history of Section
502, that an employer is not prohibited from permanently
replacing employees who quit work pursuant to Section 502.

Although finding that the work stoppage was not a “strike”
and that the maintenance or failure to correct abnormally
dangerous conditions was not an unfair labor practice, the
judge found the Respondent’s hiring of permanent
replacements was “inherently destructive” of the employees’
Section 7 rights, in violation of 8(a)(3) and (1). In my view,
the judge has mischaracterized the legal presumptions arising
from the act of replacement during a lawful work stoppage.
As the Supreme Court first explained in Mackay, permanent
replacement, in and of itself, is not an unfair labor practice.
304 U.S. at 346. Rather, it has traditionally been regarded as a
permissible employer response to an employee walkout in
order to promote the fundamental right of an employer to
“protect and continue his business.” /d. Further. as noted by
the Supreme Court, absent evidence of an independent
unlawful purpose, the Board presumes that an employer’s
motive in permanently replacing its employees is to serve its
legitimate business interest of continuing operations. Belknap
v. Hale, 463 U.S. 491, 504 fn. 8 (1983), citing with approval,
Hot Shoppes, Inc., 146 NLRB 802 (1964). Given this interest,
the Board does not require employers to justify the choice of
permanent, as opposed to temporary, replacement.

NLRB vy. Erie Resistor Corp., 373 U.S. 221 (1963), relied
on by the judge, is not to the contrary. There, in addition to
hiring permanent replacements during a strike, the employer

79a

granted them 20 years of superseniority. It was this additional
independent act, not permanent replacement, which the court
found inherently destructive of employee rights and bearing
its own indicia of improper intent, suggesting that the
probable motive behind the replacement decision was to
punish the employees. Absent the unlawful grant of
superseniority, the court was unequivocal in reaffirming the
permanent replacement principle of Mackay. Particularly
pertinent here, the court stated that although “it may be.. .
that ‘such a replacement policy is obviously discriminatory
and may tend to discourage union membership’ . . . the
employer’s interest must be deemed to outweigh the damage
to concerted activities caused by permanently replacing
strikers. . . .” 373 U.S. at 232.

Thus, the Supreme Court in Erie Resistor has defined the
act of permanent replacement as less than inherently
destructive of the statutory right to strike, a right which lies at
the very core of Section 7. See United Steelworkers v. NLRB,
376 U.S. 492, 499 (1961). Assuming that the right to engage
in a Section 502 work stoppage is entitled to the same
deference as the right to strike, it is reasonable to conclude
that an employer’s decision to continue business with
permanent replacements during such a work stoppage is not
inherently destructive of this protected right.

I further disagree with the judge’s assessment that
permanent replacement is equivalent to discharge, and that
both acts operate as an unlawful “penalty” against the
exercise of the protected Section 502 right. The difference
between discharge and permanent replacement is now well
established in the law. The discharged striker has no rights to
reinstatement. The permanently replaced striker has a right to
reinstatement as soon as the replacement leaves or there is
otherwise a vacancy in his prior position. Thus, there is
meaning to the legal principle that the striker cannot be
discharged for striking but he can be permanently replaced.

80a

For these reasons, the act of permanent replacement of
strikers is not inherently destructive of employee rights. The
striker retains rights of reinstatement. As the Board stated in
Torrington Construction Co., 235 NLRB 1540, 1541 (1978),
“fajlthough earlier cases, including [Rockaway News], have
sought to diminish the distinction between discharge and
replacement,” in light of the preferential rehiring status given
there exists a substantial difference between replacement and
discharge.”

I do not gainsay the adverse impact of permanent
replacement, but it can no longer be reasonably maintained
that this action is equivalent to discharge. With the principles
of Fleetwood Trailer and Laidlaw now firmly established,” it
becomes even more reasonable to interpret Section 502 as
prohibiting retaliatory discharges but permitting the hiring of
permanent replacements. The remaining cases relied on by
the judge are consistent with this interpretation. For instance,
both Knight Morley, supra, and Combustion Engineering,
Inc., 224 NLRB 542 (1976), involved the unlawful discharge
of employees engaged in a Section 502 work stoppage. NLRB
v. Washington Aluminum Co., 370 U.S. 9 (1962), again
involved the discharge of striking nonunion employees who
ceased work in protest of uncomfortable, but not abnormally
dangerous, work conditions. Finally, as previously discussed,
Philadelphia Marine involved the punitive and retaliatory
lockout of employees, who had not previously participated in
any work stoppage, in order to compel the return to work
under continuing abnormally dangerous working conditions
of employees participating in a protected Section 502 work

stoppage.

It may well be that permanent replacement has some
impact on the right to engage in a Section 502 work stoppage.

> NLRB y. Fleetwood Trailer Co., 389 U.S. 375 (1967); Laidlaw Corp.,
171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969).

8la

However, as set forth in NLRB v. Great Dane Trailers, 388
U.S. 26 (1967), the employer’s interest in operating its
business during the work stoppage is an economic
justification that outweighs the limited impact on employee
rights.

In sum, I find that an employer, whose employees have
quit work because of abnormally dangerous working
conditions within the meaning of Section 502, does not
violate the Act by choosing to hire permanent replacements to
continue business. It is clearly reasonable to permit the hiring
of permanent replacements, in light of the foregoing review
of Section 502’s language, its legislative background, and
relevant Board and judicial precedent. Accordingly, I find
that the Respondent did not violate Section 8(a)(3) and (1) by
permanently replacing and failing to reinstate employees who
ceased work in protest of alleged abnormally dangerous
working conditions.° Consequently, I conclude that the
Respondent also did not violate Section 8(a)(5) by
withdrawing recognition from the Union based on the
decertification petition signed by the replacement employees.

I would dismiss the complaint in its entirety.
Dated, Washington, D.C. September 30, 1999
Peter J. Hurtgen, Member

° | take this position where, as my colleagues find here, it is shown that
employees have walked out because of their good-faith belief, supported
by ascertainable, objective evidence, that their working conditions are
abnormally dangerous. I express no view as to whether an employer who
maintains conditions that are, objectively, abnormally dangerous (i.e.,
“danger in fact”) may lawfully hire permanent replacements for
employees who have quit work because of those conditions.

82a
NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.

WE WILL NOT discourage membership in or adherence to
the Oil, Chemical and Atomic Workers International Union,
AFL-CIO, or to any other labor organization, by threatening
to permanently replace or, upon their unconditional offer to
return to work, failing to reinstate our employees who in good
faith engaged in a work stoppage over abnormally dangerous
working conditions, or discriminating in any other manner in
regard to their hire or tenure of employment or any term or
condition of employment.

WE WILL NOT refuse to bargain collectively with the
Union as the exclusive representative of employees in the
following appropriate unit:

All hourly paid production and maintenance employees
employed at our Jonesboro, Tennessee, facility, but excluding
all office clerical employees, professional employees, guards
and supervisors as defined in the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed by Section 7 of the Act.

83a

WE WILL offer all eligible employees who engaged in the
work stoppage protesting abnormally dangerous conditions
which commenced on May |, 1981, immediate and full
reinstatement to their former, or substantially equivalent,
positions without prejudice to their seniority or other rights
and privileges previously enjoyed, and WE WILL make them
whole-for any loss of pay they may have suffered by reason
of our discriminatory conduct.

WE WILL, on request, bargain collectively with the Oil,
Chemical and Atomic Workers International Union as_the
exclusive bargaining representative of all our employees in
the above-described appropriate unit with respect to rates of
pay, wages, hours, and other conditions of employment, and,
if an understanding is reached, embody such understanding in
a signed agreement.

84a
APPENDIX C

TITLE 29.—LABOR
CHAPTER 7.—LABOR-MANAGEMENT RELATIONS
GENERAL PROVISIONS

29 USCS § 143 (2002)

§ 143. Saving provisions

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 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.

HISTORY: (June 23, 1947, ch 120, Title V, § 502,
61 Stat. 162.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0551%3A1. Public record. Not legal advice.