Indianapolis Power & Light Co. v. N.L.R.B., s. 88-3503
| Decision Date | 15 March 1990 |
| Docket Number | Nos. 88-3503,89-1735,s. 88-3503 |
| Citation | 898 F.2d 524 |
| Parties | 133 L.R.R.M. (BNA) 2921, 58 USLW 2619, 14 Lab.Cas. P 12,034 INDIANAPOLIS POWER & LIGHT COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Local Union 1395, International Brotherhood of Electrical Workers, Intervenor. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Herbert C. Snyder, Jr., Richard P. Steele, Barnes & Thornburg, Fort Wayne, Ind., for Indianapolis Power and Light Co.
Aileen A. Armstrong, Robert F. Mace, N.L.R.B., Appellate Court--Enforcement Litigation, Barbara A. Atkin, Rosemary M. Collyer, Gen. Counsel, N.L.R.B., Washington, D.C., William T. Little, N.L.R.B., Indianapolis, Ind., Robert D. Kurnick, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D.C., for N.L.R.B.
Laurence J. Cohen, Robert D. Kurnick, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D.C., for Local Union 1395, Intern. Broth. of Elec. Workers.
Peter G. Nash, Dixie L. Atwater, Ogletree, Deakins, Nash, Smoak & Stewart, Stephen A. Bokat, Mona C. Zeiberg, Washington, D.C., for Chamber of Commerce of U.S., amicus curiae.
Before CUMMINGS, FLAUM and MANION, Circuit Judges.
Indianapolis Power & Light Company appeals the National Labor Relations Board's finding that it violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by disciplining a union employee for his refusal to cross a picket line at the premises of one of the Company's customers. In reaching this conclusion, the Board found that extrinsic evidence revealed that the parties intended to exclude sympathy strikes from the no-strike provision in the Company's collective bargaining agreement with the Union. The Board cross-petitions for enforcement of the order, and Local Union 1395, International Brotherhood of Electrical Workers, has intervened on behalf of the Board. Because the Board's findings are supported by substantial evidence, we grant enforcement.
This case is before us in a somewhat unusual posture. After the Board's initial decision in this matter, Indianapolis Power & Light Company, 273 NLRB 1715 (1985) (Indianapolis Power I ), the District of Columbia Circuit denied enforcement of the Board's order and remanded the case back to the Board. Electrical Workers IBEW Local Union 1395 v. NLRB, 797 F.2d 1027, 1036 (D.C.Cir.1986). The Board then rendered a supplemental decision in favor of the Union, Indianapolis Power & Light Company, 291 NLRB 145 (1988) (Indianapolis Power II ), the appeal of which is now before us.
The facts of this case are uncontested. Since 1972, Indianapolis Power & Light Company (the "Company" or "IPALCO") and Local Union 1395, the International Brotherhood of Electrical Workers (the "Union"), have entered into a series of collective bargaining agreements, each of which contained a broad no-strike provision. 1 On August 17, 1983, IPALCO assigned employee Herbert King, a member of the Union, to read a meter and change a tape at a local telephone company. When King arrived at the telephone company, he encountered a lawful picket line by employees of the telephone company. When he refused to cross the picket line, the Company suspended him for two and one-half weeks and warned him that refusal to cross a picket line to perform work was cause for immediate termination.
The Union filed unfair labor practice charges against IPALCO on King's behalf alleging that the Company violated Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (3) (1982) (the "Act"). After a hearing, the Administrative Law Judge (the "ALJ") issued a ruling sustaining the complaint. The ALJ noted that "under current Board authority, broad no-strike clauses without more are insufficient to establish a waiver of the right ... to engage in sympathy strikes." See Operating Engineers Local 18 (Davis-McKee, Inc.), 238 NLRB 652 (1978). Accordingly, the ALJ concluded that the parties' no-strike provision would not effectively waive the right to honor picket lines unless extrinsic evidence of the parties' specific intent conclusively established such a waiver. To determine whether such a waiver existed here, the ALJ examined the extrinsic evidence of the parties' bargaining history and past practices and found that it "falls far short of establishing the parties' clear intent to waive this statutory right." The ALJ concluded that the extrinsic evidence was "equivocal and uncertain" and supported the conclusion "that the parties [had] never reached agreement on whether or not employees would have the right to refrain crossing picket lines." Therefore, since the Union had not clearly and unmistakably waived the right to engage in sympathy strikes, the ALJ concluded that the Company had violated the Act by disciplining King.
On January 31, 1985, the Board issued a decision reversing the ALJ and finding that the Company did not violate Sections 8(a)(1) and 8(a)(3) of the Act by disciplining King because the Union had waived the statutory right to engage in sympathy strikes. Indianapolis Power I, 273 NLRB 1715, 1715-16 (1985). The Board held that a broad no-strike clause should be properly read as 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 that the parties intended otherwise. In so holding, the Board overruled Operating Engineers Local 18 (Davis-McKee, Inc.), 238 NLRB 652 (1978), and its progeny, which held that "broad no-strike clauses, without more, are insufficient to establish waiver of the employee's right to engage in sympathy strikes."
In reaching its decision, the Board agreed with the ALJ's determination that the extrinsic evidence of the parties' intent was uncertain and inconclusive. The Board did not, however, discuss or analyze the ALJ's findings that the parties had expressed different meanings about the scope of the no-strike provision at the time they entered into the agreement. Instead, the Board regarded the no-strike clause's plain meaning as dispositive. Finding the extrinsic evidence insufficient to demonstrate a mutual intent to exclude sympathy strikes from the no-strike provision, the Board concluded that the no-strike provision clearly and unmistakably waived the employees' right to participate in sympathy strikes.
Upon petition for review of the Board's order by the Union, the United States Court of Appeals for the District of Columbia Circuit agreed with the Board that the language of the no-strike provision and the collective bargaining agreement, standing alone, could be construed as a waiver of the right to engage in sympathy strikes. Electrical Workers IBEW Local Union 1395 v. NLRB, 797 F.2d 1027, 1036 (D.C.Cir.1986). The court found, however, that the Board, in holding that the language of the no-strike clause excluded sympathy strikes, had failed to give the parties' intent controlling weight. In warning that "the intent of the parties to collective bargaining agreements is not to be discerned by reference to 'abstract definitions unrelated to the context in which the parties bargained,' " the court cautioned that "The Board may not, in the guise of enforcing the 'plain meaning' of contractual language, erect an inflexible presumption on an issue turning on the parties' actual intent." Id. at 1036 (citation omitted). The court went on to state that to properly discern the parties' actual intent, the Board must look to whether that intent is established by the language of the clause itself, by inferences drawn from the contract as a whole, or by extrinsic evidence. The court observed that in the Board's three-page decision it had failed "to discuss relevant and perhaps dispositive evidence of the parties' intent," thereby apparently "assum[ing] the very point at issue, i.e., whether sympathy strikes fall within the [no-strike] clause's purview." Id. The court particularly noted the Board's failure to address the ALJ's factual finding that during contract negotiations "the parties had agreed to disagree over whether sympathy strikes were covered by the [no-strike] clause." "If accepted," the court stated, "this factual finding would be controlling: absent mutual consent on the issue, there could be no binding contractual commitment ... and a fortiori, no clear and unmistakable waiver of the right to honor picket lines." Accordingly, the court remanded the case to the Board for a determination of the parties' actual intent through an examination of extrinsic evidence, in particular, evidence of the parties' bargaining history.
In its supplemental decision on remand, the Board reaffirmed its conviction that a broad no-strike clause should properly be read to encompass sympathy strikes unless the contract as a whole or extrinsic evidence demonstrates otherwise. In light of the District of Columbia Circuit's interpretation of the Indianapolis Power rule, the Board also clarified the role to be played by extrinsic evidence: "In deciding the issue of whether sympathy strikes fall within a no-strike provision's scope, the parties' actual intent is to be given controlling weight and extrinsic evidence should be considered an integral part of the analysis." With these principles serving as its guide, the Board found, in agreement with the ALJ, that the extrinsic evidence established that the parties had "agreed to disagree" throughout negotiations over the collective bargaining agreement regarding whether sympathy strikes were covered by the no-strike clause. Based on this finding, the Board concluded that the Union had not clearly and unmistakably waived the right of company employees to engage in sympathy strikes and thus the right was not included within the scope of the broad no-strike clause. Accordingly, the Board found that the Company violated Sections 8(a)(1) and (3) of the Act by...
To continue reading
Request your trial
-
Pope v. Shalala, 92-1084
... ... twenty-five to fifty pounds, which is classified as light to medium levels of lifting. Prior to that she worked as ... Deep tendon reflexes and motor power were unremarkable. A myelography and CT scan proved ... Sullivan, 933 F.2d 598, 602 (7th Cir.1991); NLRB v. Kemmerer Village, Inc., 907 F.2d 661, 663 (7th ... ...
-
U.S. Marine Corp. v. N.L.R.B.
...though the court might justifiably have reached a different conclusion had it considered the matter de novo. Indianapolis Power & Light Co. v. NLRB, 898 F.2d 524, 529 (7th Cir.1990); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); Universal Ca......
-
R.L. Coolsaet Const. Co. v. Local 150, Intern. Union of Operating Engineers
...sympathy strike 5 because the National Agreement did not specifically prohibit it. Relying on our decision in Indianapolis Power and Light v. NLRB, 898 F.2d 524 (7th Cir.1990), the union argues that without extrinsic evidence of an intention to waive sympathy strikes, it may still engage in......
-
Montgomery Ward & Co., Inc. v. N.L.R.B., s. 88-2165
...the court might justifiably have reached a different conclusion had it considered the matter de novo." Indianapolis Power & Light Co. v. NLRB, 898 F.2d 524, 529 (7th Cir.1990). I would therefore enforce the bargaining 1 The Decision and Order of the Board is reported at 288 NLRB No. 20 (198......