U.S. Steel Corp. v. N.L.R.B.
| Decision Date | 30 June 1983 |
| Docket Number | No. 82-2714,82-2714 |
| Citation | 113 LRRM 3227,711 F.2d 772 |
| Parties | 113 L.R.R.M. (BNA) 3227, 98 Lab.Cas. P 10,302 UNITED STATES STEEL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
S.G. Clark, Pittsburgh, Pa., for petitioner.
Edward S. Dorsey, Elliott Moore, N.L.R.B., Washington, D.C., for respondent.
Before BAUER and WOOD, Circuit Judges, and ROSENN, Senior Circuit Judge *.
The question in this case is whether the United States Steel Corporation (U.S. Steel or the Company) committed unfair labor practices violating the National Labor Relations Act (the Act) by suspending employee Eugene Goldenfeld for a total of 38 days because Goldenfeld refused to report for work on September 26 and 27, 1978, and urged other employees to do likewise.
On the dates in question, employees of the Elgin, Joliet and Eastern Railroad (EJE) were picketing at U.S. Steel's facility in Gary, Indiana (Gary Works), where Goldenfeld was employed. To demonstrate his support for the EJE employees' strike, Goldenfeld reported absent from work and distributed leaflets to his U.S. Steel co-workers, urging them to honor the EJE employees' picket line. Although an arbitrator determined that the Company was justified in suspending Goldenfeld for his actions, the Board found that the discipline violated section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) (1976), because it interfered with Goldenfeld's right to engage in protected concerted activity. 1
The Company petitions for review of the Board's order, contending that Goldenfeld was not engaged in concerted activity and that his actions were not protected by the Act because the employees' right to strike had been waived by an express no-strike clause in the collective bargaining agreement between the Company and the United Steelworkers Union. The Company also argues that the Board should have deferred to the arbitration award. Because we agree with the Company's waiver argument, we grant the petition for review and deny enforcement of the Board's order.
In September 1978, Eugene Goldenfeld was employed by U.S. Steel as a journeyman motor inspector at the Company's Gary Works steel mill. He was a member of Steelworkers Union Local 1014. All Gary Works employees, as well as employees at the Company's other basic steel mills, were covered by a collective bargaining agreement between the Company and the Steelworkers (the basic labor agreement) dated August 1, 1977. This agreement contained a broad no-strike clause. The contract also provided for a four-step grievance procedure, culminating in binding arbitration, that was to be followed for the settlement of all complaints and grievances. The preamble to the contract indicated that the purpose of the agreement was "to promote orderly and peaceful relations with the employees, to achieve uninterrupted operations in the plants, and to achieve the highest level of employee performance consistent with safety, good health, and sustained effort."
On September 26, 1978, employees of the EJE Railroad belonging to the Brotherhood of Railway and Airline Clerks (BRAC) set up a picket line at U.S. Steel's Gary Works facility. EJE operates tracks, offices, and switching equipment at the Gary Works and BRAC's picketing was aimed at EJE. The purpose of the EJE employees' picket line was to protest EJE's decision to contribute to a fund that was being used to aid the Norfolk and Western Railroad, which was resisting a strike. The picketing by EJE employees apparently constituted lawful protected concerted activity under the Act.
Goldenfeld observed the EJE pickets as he arrived for work shortly before 7:00 A.M. on September 26. After speaking with the striking EJE employees, Goldenfeld decided to honor their picket line in order to further labor solidarity. Goldenfeld telephoned his supervisor and informed him that he would not enter the U.S. Steel plant to report for work. He also telephoned Jack Parton, president of Steelworkers Local 1014. Goldenfeld asked Parton to encourage other Gary Works employees to honor the EJE picket line, but Parton refused this request.
While at home on September 26, Goldenfeld drafted and typed a leaflet explaining his views on the EJE employees' strike and urging other U.S. Steel employees to honor the picket line. He mimeographed this leaflet himself and distributed it to the Company's employees at the Gary Works later that day.
The following morning, September 27, Goldenfeld again encountered the EJE strikers at the Gary Works and telephoned his supervisor to report off from work for a second day. He spoke to a foreman who informed him that he had been suspended for three days on the ground of absence from duty without permission or excuse. Goldenfeld distributed more leaflets at the plant later on September 27. As a result of his leafleting, one other Gary Works employee elected not to work.
The picketing ended on September 29, 1978, the last day of Goldenfeld's suspension. When Goldenfeld reported for work on September 30, however, he was informed that the Company had suspended him for an additional 35 days for engaging in "activities designed to encourage other employees to violate" the no-strike provision of the collective bargaining agreement between U.S. Steel and the Steelworkers Union.
Goldenfeld filed two grievances with the Company regarding his suspensions. The grievances progressed through the grievance procedure and ultimately were presented to an arbitrator. At the arbitration hearing, the Union contended on Goldenfeld's behalf that Goldenfeld was engaged in protected concerted activity when he honored the EJE picket line and distributed the leaflets. On May 30, 1979, the arbitrator upheld Goldenfeld's suspensions, reasoning that Goldenfeld's conduct was not protected by the Act because the no-strike clause in the collective bargaining agreement prohibited employees from participating in and promoting sympathy strikes.
Notwithstanding the arbitrator's decision, the Board's Regional Office issued a complaint against U.S. Steel, alleging that the Company committed unfair labor practices by disciplining Goldenfeld. The case was transferred directly to the Board which, in a 3-2 decision, found that the suspensions violated section 8(a)(1) of the Act. The Board majority declined to defer to the arbitrator's decision upholding the suspensions, believing that the arbitration award was repugnant to the policies of the Act. 2
On appeal, the Company raises a three-pronged challenge to the Board's finding that its suspension of Goldenfeld interfered with Goldenfeld's right to engage in protected concerted activity. First, the Company contends that Goldenfeld was not engaged in concerted activity because he acted alone and on the basis of his personal beliefs about strikes. Second, the Company argues that Goldenfeld's activity was not protected because the contractual no-strike clause effectively waived his right to participate in sympathy strikes. Finally, the Company argues that the Board never should have decided the unfair labor practice question but instead should have deferred to the arbitrator's decision upholding the Company's disciplinary actions. 3
Section 8(a)(1) of the Act prohibits employers from interfering with employees' participation in union and other concerted activity protected by section 7 of the Act. The Company argues that the suspensions of Goldenfeld did not violate this provision because Goldenfeld's activities were neither concerted nor protected.
The Company contends that Goldenfeld was acting alone when he honored the BRAC picket line and leafleted in support of the picket line. This argument need not detain us. It is true that Goldenfeld's activities were unassisted by other U.S. Steel employees. He wrote, typed, and printed his leaflet alone, and of all the employees who received the leaflet, only one elected not to report to work. Nonetheless, Goldenfeld's activities were clearly "concerted" within the meaning of the Act. Because the whole purpose of his conduct was to further labor solidarity by demonstrating support for the EJE employees who had established the picket line, Goldenfeld was acting in concert with the strikers. Section 2(3) of the Act, 29 U.S.C. § 152(3), expressly provides that an employee may act "in concert" with persons employed by another employer. See Eastex, Inc. v. NLRB, 437 U.S. 556, 564-65, 98 S.Ct. 2505, 2511-12, 57 L.Ed.2d 428 (1978). Moreover, to the extent that Goldenfeld's leafleting was an attempt to induce group action on the part of his fellow U.S. Steel employees, his activities constituted concerted activity. See NLRB v. Town & Country LP Gas Service Co., 687 F.2d 187, 191 (7th Cir.1982); Indiana Gear Works v. NLRB, 371 F.2d 273 (7th Cir.1967). That another U.S. Steel employee joined Goldenfeld in honoring the picket line evidences the concerted nature of Goldenfeld's actions. 4
Among the activities protected by section 7 of the Act is the right of an employee to honor a lawful picket line at his employer's place of business. See NLRB v. Union Carbide Corp., 440 F.2d 54, 56 (4th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 58, 30 L.Ed.2d 55 (1971). This right applies even when the employee refusing to cross the picket line is not a member of the picketing union, see NLRB v. Difco Laboratories, Inc., 427 F.2d 170, 171-72 (6th Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 65 (1970); NLRB v. Southern Greyhound Lines, 426 F.2d 1299, 1301 (5th Cir.1970). In addition, this court has held that an employee may refuse to cross a picket line that he encounters in the course of his duties at the premises of his employer's customer. NLRB v. Browning-Ferris Industries, Chemical Services, Inc., 700 F.2d 385 (7th Cir.1983). See also NLRB v. Southern California Edison Co., 646...
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