Montana-Dakota Utilities Co. v. NLRB, 71-1224.

• Citation: 455 F.2d 1088
• Decision Date: 15 March 1972
• Docket Number: No. 71-1224.,71-1224.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: MONTANA-DAKOTA UTILITIES CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and System Council U-13, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor.

455 F.2d 1088 (1972)

MONTANA-DAKOTA UTILITIES CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and System Council U-13, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor.

No. 71-1224.

United States Court of Appeals, Eighth Circuit.

March 15, 1972.

Dale E. Beihoffer, Faegre & Benson, George D. McClintock, Minneapolis, Minn., for petitioner.

Elliott Moore, Atty., N.L.R.B., Washington, D. C., Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Marjorie S. Gofreed, Atty., N.L.R.B., for respondent.

Before VAN OOSTERHOUT, ROSS and STEPHENSON, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This case is before us upon the application of Montana-Dakota Utilities Co. (hereinafter the Company) to review and set aside an order of the National Labor Relations Board issued on April 19, 1971, reported at 189 NLRB No. 111, and upon the Board's cross-application for the enforcement of its order. The jurisdiction of the Board is not contested; our jurisdiction is established by § 10(e) and (f) of the National Labor Relations Act as amended. The charging party System Council U-13, International Brotherhood of Electrical Workers, AFL-CIO, (hereinafter the Union) has intervened and filed brief in support of the Board's position.

The Board, in agreement with its Trial Examiner with member Kennedy dissenting, found that the Company violated § 8(a)(1) of the Act by suspending eight employees for thirty days by reason of their refusal to cross a peaceful informational picket line set up at the worksite of another employer. The picketing union had no relationship with the union here involved and had no grievance against the petitioner. The Board's order requires the Company to cease and desist from the unfair labor practices found and requires the Company to make whole the eight suspended employees for wages lost for the period from March 4, 1970, (the date the picket line was withdrawn) through March 26, 1970, (the day prior to the reinstatement of the employees) less sums earned in other employment during the period.

The primary issue presented is whether the Board properly determined upon the facts of the case that the Company violated § 8(a)(1) by imposing the thirty-day suspension on the eight employees who refused to cross the picket line to carry out a work order.

It is the contention of the Company that the Union, as the employees' authorized bargaining representative in a bargaining agreement in force at the time here material, contracted away any right the employees might have to refuse to cross the picket line. The basic facts are not in dispute and are fairly set out in the Trial Examiner's opinion.

The Company is a public utility primarily engaged in providing electricity and natural gas to consumers in North and South Dakota, Nebraska and Minnesota. The Union is an association of twelve sister locals representing the Company's employees. The Company and the Union have a long-established collective bargaining relationship with the bargaining agreement here pertinent covering the period from December 15, 1969, through June 30, 1971. The bargaining contract contains a no-strike clause reading as follows:

"Article III

Public Obligation

Section 1. It is recognized that the Company is engaged in public service requiring continuous operation, and it is agreed, in recognition of such obligation of continuous service that, during the term of this Agreement there shall be no collective cessation of work by members of the Union and that the Company will not lock out the employees covered by this Agreement on account of any controversy respecting the provisions of this Agreement. All such controversies shall be handled as provided for herein."

Article IV to the extent material reads:

"Section 1. The right to employ, promote, discipline and/or discharge employees and the management of the Company are reserved by and shall be vested in the Company, subject, however, to the full terms of this Agreement."

Article VIII sets out grievance procedure. Article IX provides for compulsory arbitration of disputes which arise "respecting the interpretation, construction, intent or meaning of the provisions of this Agreement, which cannot be settled by mutual agreement as hereinbefore provided."

The no-strike clause in its present form had been incorporated in previous bargaining agreements. During the bargaining leading to the contract here involved the Union proposed a picket line clause reading:

"It shall not be a violation of this agreement, and it shall not be cause for discharge or discipline if any employee or employees refuse to go through any authorized picket line of any Union." (Brackets and emphasis added.)

The parties had previously agreed on all other portions of the contract. They were initially unable to agree on the picket line clause. The problem of drafting a mutually agreeable picket line clause was delegated to Union attorney Weinberg and Company attorney Murray. After some negotiations, Weinberg by letter of December 13, 1969, to Murray proposed the picket line clause heretofore set out including the bracketed portion. This was rejected by Murray who by letter proposed that the parts of the proposed picket line clause set out in brackets be deleted. This was agreed to by Weinberg and by the contracting parties and the picket line clause with the portions in brackets omitted was adopted and made a part of the bargaining agreement. Each attorney in the correspondence indicated that by agreeing to the picket line clause they were not waiving any rights of their clients under applicable state or federal law. The Company during the negotiations had consistently expressed a willingness to waive the right to discharge but had persistently refused to waive the right to discipline. The picket line clause must be read in the light of the no-strike and compulsory arbitration provisions previously agreed upon.

The facts leading up to the thirty-day suspension of the eight Company employees who refused to cross the picket line to carry out a work order may be summarized as follows:

Early in 1970 the eight employees here involved were regularly assigned to install underground pipelines to some one hundred homes in a federally subsidized housing project which was being developed by Buckingham Wood Products Company as general contractor in Rapid City, South Dakota. On February 25, 1970, as the eight employees approached the assigned worksite to carry out their work order they encountered a peaceful information picket line set up by West River Building Trades Council. The pickets carried signs which read:

"THIS HOUSING PROJECT IS BEING BUILT BY BUCKINGHAM WOOD PRODUCTS COMPANY UNDER

SUBSTANDARD WAGES, HOURS AND WORKING CONDITIONS FOR ALL EMPLOYEES."

West River had no relationship whatsoever with the eight employees or the Union representing them. West River had no contract with the Buckingham Wood Products Company nor did it have any dispute with the petitioner. The employees were advised by West River that the picketing was purely informational directed exclusively at Buckingham Wood Products Company.

The eight employees, after refusing to cross the picket line to carry out their work orders, returned to the Company's warehouse for instructions. The Company manager, Lawellin, met with the eight employees and told them it was important for them to return to their assigned work as the completed line would bring in one hundred new gas customers and the Company could not afford to reschedule work every time a picket line was encountered. The Company was advised that the men would not cross the picket line. Later that afternoon Lawellin, after consulting with Company officials, called another meeting with the eight employees. He ordered them to report for the work previously assigned to them at eight o'clock the next morning and told them that if they failed to do so they would be suspended without pay for thirty days. None of the employees reported for work the following day, whereupon each was suspended for thirty days without pay.

On March 3 the pickets were withdrawn. Union Steward McLean advised Lawellin of this and suggested that he might desire to recall the suspended employees the next morning. The employees had not been replaced. The next day Lawellin advised McLean the suspension would remain in effect. When the thirty-days suspension period expired, the eight men were recalled without pay for the suspension period. The unfair labor practice charged was filed on March 9 which led to the Board's order heretofore set out.

We shall assume for the purposes of this case that the employees have a protected right under § 7 of the Act to refuse to cross a peaceful picket line set up by a union in which they have no direct interest. The dispositive issue is whether the Union has contracted away or waived the right to refuse to cross a picket line to carry out a work order. The Board held that the right of the eight employees to refuse to cross the picket line under the undisputed facts was not relinquished by the bargaining agreement. The Company contends that the Union and the employees, by the terms of the...