797 F.2d 1027 (D.C. Cir. 1986), 85-1164, Local Union 1395, Intern. Broth. of Elec. Workers, AFL-CIO v. N.L.R.B.

Docket Nº:85-1164.
Citation:797 F.2d 1027
Party Name:LOCAL UNION 1395, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Indianapolis Power & Light Company, Intervenor.
Case Date:August 08, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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797 F.2d 1027 (D.C. Cir. 1986)


WORKERS, AFL-CIO, Petitioner,



Indianapolis Power & Light Company, Intervenor.

No. 85-1164.

United States Court of Appeals, District of Columbia Circuit

August 8, 1986

Argued March 10, 1986.

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Robert D. Kurnick, with whom Laurence J. Cohen, Washington, D.C., D. William Heine, Jr., Los Angeles, Cal., Edward J. Fillenwarth, Jr., Indianapolis, Ind., and Marsha S. Berzon, Washington, D.C., were on brief, for petitioner.

Patrick J. Szymanski, Atty., with whom Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, and Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., were on brief, for respondent.

Herbert C. Snyder, Jr., with whom Alan K. Mills, Indianapolis, Ind., was on brief, for intervenor, Indianapolis Power & Light Co.

Before STARR and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Local Union 1395, International Brotherhood of Electrical Workers, AFL-CIO, petitions for review of an order of the National Labor Relations Board dismissing an unfair labor practice complaint. The complaint charged that the Indianapolis Power & Light Company violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3) (1982), by suspending an employee who had refused to cross a picket line in the course of his duties. The Board held that the employee's right to engage in this "sympathy strike" 1 had been waived in Local 1395's collective bargaining agreement with Indianapolis Power, which contained a no-strike clause. Because the Board failed to address relevant evidence of the parties' intent underlying this no-strike clause, however, we reverse the Board's decision and remand the case to the Board for further consideration.


Since 1972, Local 1395 and Indianapolis Power have entered into a series of collective bargaining agreements. Each of these agreements has contained a clause providing:

During the term of this agreement, and any extension or renewal thereof, the Union and each employee covered by the agreement agree not to cause, encourage, permit, or take part in any strike, picketing, sit-down, stay-in, slow-down, or other curtailment of work or interference with the operation of the Company's business, and the Company agrees not to engage in a lock-out.

In August 1983, employee Herbert King was assigned to read the meters on the premises of one of Indianapolis Power's customers. Arriving on the scene, however, King encountered a picket line set up by workers on strike against the company. King refused to cross the picket line despite his supervisors' instructions to do so. As a result, King was threatened with termination and suspended from work for two-and-one-half days. In response, Local

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1395 filed an unfair labor practice charge, and, subsequently, the NLRB's General Counsel issued a complaint alleging that the discipline imposed upon King violated Sections 8(a)(1) and 8(a)(3) of the Act.

After a hearing, an administrative law judge issued a decision sustaining the complaint. The ALJ noted that the Board, in Operating Engineers Local 18 (Davis-McKee, Inc. ), 238 N.L.R.B. 652 (1978), had held that "broad no-strike clauses, without more, are insufficient to establish waiver of the right to engage in sympathy strikes." Id. at 654. Accordingly, the ALJ concluded that the collective bargaining agreement's no-strike clause would not effectively waive the right to honor picket lines unless extrinsic evidence of the parties' specific intent (such as bargaining history and past practice under the agreement) conclusively established such a waiver. The ALJ regarded the evidence on this point as equivocal at best; he found that the parties had expressed different views at the bargaining table over whether the no-strike clause covered sympathy strikes and had, in effect, agreed to disagree on the issue. Thus, the ALJ held, the right had not been waived, King's refusal to cross the picket line was protected conduct, and Indianapolis Power's sanctions against him ran afoul of the Act.

On January 31, 1985, the Board issued a decision reversing the ALJ. Rejecting the basic approach announced in Davis-McKee, the Board maintained that it could "discern no logical or practical basis for the proposition that the prohibition of all 'strikes' does not include sympathy strikes merely because the word 'sympathy' is not used." 273 N.L.R.B. No. 211, 1984-85 NLRB Dec. (CCH) p 17,040 (1985) slip op. at 2-3. A broadly-phrased no-strike clause, according to the Board, should properly be read to encompass sympathy strikes unless the contract as a whole or extrinsic evidence demonstrates that the parties intended otherwise. See id. The Board stated generally that it agreed with the ALJ that the extrinsic evidence of the parties' intent was uncertain and inconclusive; but the Board did not discuss the ALJ's specific finding that the parties had expressed different meanings about the scope of the no-strike clause at the time they entered the agreement. Instead, the Board regarded the no-strike clause's plain meaning as dispositive. The Board held that employees had waived their right to honor picket lines, and so concluded that Indianapolis Power was entitled to discipline King for refusing to carry out his work assignments.

Local 1395 filed this petition for review. This court has jurisdiction pursuant to Section 10(f) of the Act, 29 U.S.C. Sec. 160(f) (1982).



We begin with settled principles. Under Section 7 of the Act, 29 U.S.C. Sec. 157 (1982), employees enjoy the right to observe lawful picket lines that they encounter in the course of their duties. See, e.g., United States Steel Corp. v. NLRB, 711 F.2d 772, 775-76 (7th Cir.1983); NLRB v. Southern Cal. Edison Co., 646 F.2d 1352, 1363-64 (9th Cir.1981). This right, however, may be waived by employees in collective bargaining agreements. See NLRB v. Rockaway News Supply Co., 345 U.S. 71, 79-80, 73 S.Ct. 519, 524-25, 97 L.Ed. 832 (1953); News Union of Baltimore v. NLRB, 393 F.2d 673, 677 (D.C.Cir.1968). Still, waiver of the right to engage in sympathy strikes, like waiver of other rights under the Act, must be "clear and unmistakable." Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 (1983); IBEW Local 1466 v. NLRB, 795 F.2d 150, 153 (D.C.Cir.1986).

In this proceeding, the Board altered its basic approach toward analyzing collective bargaining agreements for a waiver of the right to honor picket lines. Under Davis-McKee, the Board apparently would find such a waiver only if a contractual no-strike provision specifically referred to sympathy strikes or if extrinsic evidence unambiguously established that the parties intended such a waiver. Now the Board

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regards a broadly-phrased, comprehensive no-strike clause as sufficiently "clear and unmistakable" evidence that employees intended to waive the right to engage in sympathy strikes, unless the contract as a whole or extrinsic evidence demonstrates the contrary.

In reviewing the Board's orders, courts customarily defer to the Board's exercise of its "special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963). This deference is not withheld simply because the Board has departed from a prior policy. See NLRB v. Local Union 103, Iron Workers, 434 U.S. 335, 350-51, 98 S.Ct. 651, 660-61, 54 L.Ed.2d 586 (1978). However, while it is settled that the Board may interpret collective bargaining agreements when they are raised as defenses in unfair labor practice proceedings, see NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967), it is less clear whether such interpretations are entitled to judicial deference. Compare, e.g., NLRB v. Southern Cal. Edison Co., 646 F.2d 1352, 1362 (9th Cir.1981) (deference is appropriate), with Pacemaker Yacht Co. v. NLRB, 663 F.2d 455, 458 (3d Cir.1981) (deference is inappropriate). 2 The approach reflected in cases of this Circuit appears to be that deference is extended to the Board's factual findings on matters bearing on the intent of the parties, see News Union of Baltimore v. NLRB, 393 F.2d 673, 677-78 (D.C.Cir.1968), but not to the ultimate legal conclusion attached to the parties' words and conduct. See Retail Clerks Int'l Ass'n Local 455 v. NLRB, 510 F.2d 802, 805 (D.C.Cir.1975).

The reason for this approach is not simply that contract interpretation simpliciter has traditionally been thought to be peculiarly within the expertise of the judiciary. Courts have often found it appropriate to give weight to the interpretation of regulated parties' agreements by an administrative agency charged with the primary enforcement of a statutory mandate. See, e.g., Kansas Cities v. FERC, 723 F.2d 82 (D.C.Cir.1983). The added factor here is that the courts' role under the labor laws goes beyond merely seeing that the Board stays within the bounds of its delegated authority. Congress has authorized the courts independently to entertain suits brought to enforce collective bargaining agreements under Section 301 of the Labor-Management Relations Act, 29 U.S.C. Sec. 185 (1982), and has directed them to formulate the principles of federal contract law to be applied in these suits. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-57, 77 S.Ct. 912, 917-18, 1 L.Ed.2d 972 (1957).

If deference were afforded...

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