N.L.R.B. v. Gould, Inc., 79-1025

• Decision Date: 18 December 1980
• Docket Number: No. 79-1025,79-1025
• Citation: 638 F.2d 159
• Parties: 105 L.R.R.M. (BNA) 2788, 89 Lab.Cas. P 12,343 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOULD, INC., Switchgear Division, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 159

638 F.2d 159

105 L.R.R.M. (BNA) 2788, 89 Lab.Cas. P 12,343

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOULD, INC., Switchgear Division, Respondent.

No. 79-1025.

United States Court of Appeals, Tenth Circuit.

Argued May 7, 1980.

Decided Oct. 7, 1980.

Rehearing Denied Dec. 18, 1980.

Paul J. Spielberg, Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Sandra Shands Elligers, Atty., N. L. R. B., Washington, D. C., with him on brief), for petitioner.

Richard L. Barnes, of Kothe, Nichols & Wolfe, Inc., Tulsa, Okl., for respondent.

Before BARRETT, PECK ^* and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This case is before the court on the petition of the National Labor Relations Board for enforcement of its order against Gould, Inc. The Board found that Gould violated section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), by discharging two Union officials, Virginia Beekman and Clifford Edgar, for participating in a sympathy walkout. The walkout was prompted by the Gould employees' refusal to cross an informational picket line directed against Houchin Electric, a nonunion contractor performing remodeling work on Gould's premises. The Board found that the picketing was lawful primary activity and that the Gould employees' sympathy walkout in support of the picket line was concerted activity protected by sections 7 and 8(a)(1) of the Act. 29 U.S.C. §§ 157, 158(a)(1). We agree.

Gould's manufacturing employees are represented at its Tulsa, Oklahoma plant by the manufacturing division of the International Brotherhood of Electrical Workers Local Union 584 (the Union). At the time of the walkout, the Company and the Union were bound by a collective bargaining contract which included a grievance procedure leading to arbitration. In addition, the contract contained the following general no-strike clause (Article XXII), which is linked to the grievance-arbitration machinery:

"In view of the procedure for the orderly settlement of grievances provided under the terms of this Agreement, the Union agrees that there will be no strike, work interference, or other work stoppage or slowdown of work, total or partial, during the term of this Agreement.

"An employee or employees who participate in any such action in violation of this Agreement may be disciplined or discharged from the Company's service, subject to the employee's right to submit a grievance alleging improper discharge in accordance with the provisions of Article XX, Section 3, paragraph (c) of this Agreement."

Rec., vol. II, at 237 (emphasis added).

In addition to the manufacturing division, the Union has two other autonomous divisions, construction and maintenance. The informational picket which triggered the walkout was set up by the Union on behalf of its construction division as part of its two-year campaign to organize the employees of electrical construction contractors. The picket sign contained the word "Information", and warned readers that Houchin Electric Company did not have an agreement with Local 584.

When Beekman, the Shop Steward for Gould's manufacturing employees, became aware of the picketing at around 9:30 a. m. on March 1, 1977, she telephoned Union Business Manager Stroufe to inquire about it. Stroufe informed her that Houchin Electric, a nonunion construction contractor, was working in the plant. He stated that the picketing was directed at Houchin and was purely informational. He emphasized that it was not related to any violation by Gould of the collective bargaining contract covering the plant employees. He said he could not advise her or the other employees what to do and that any actions by the employees were "up to each individual, what they decide to do." Rec., vol. I, at 28.

During the morning break, Clifford Edgar called the attention of his fellow employees so that Beekman could relate what she had learned about the picketing. Beekman explained to the group what Stroufe had told her and advised the employees that "whatever action was taken it would be up to each individual, how they felt about what was going on." Rec., vol. I, at 33. Subsequently most of the employees walked out.

That afternoon the company sent a telegram to Stroufe and the employees in the bargaining unit, asserting that the strike not only violated the no-strike clause in the collective bargaining agreement but was an unlawful secondary boycott. The employees were warned that if they did not return to work the next day, they would be discharged.

Before Stroufe received the telegram, Jeff Ott, the employee representative on the second shift, called to inquire what to do. Stroufe told him to proceed with his second shift duties and the second shift went to work as scheduled. Ellis finally called Stroufe late that afternoon to discuss the morning walkout. Stroufe told Ellis he did not feel the contract had been violated "because Article 22 of the contract between IBEW and Gould pertained to the orderly settlement of grievances" and "there was no grievable offense that prompted the picket or the activity that followed." Rec., vol. I, at 114.

The next day all the first shift employees returned to the plant and all except Beekman and Edgar were put back to work without discipline. Beekman and Edgar received suspension letters pending an investigation into their roles in what the Company termed an "illegal wildcat strike." Rec., vol. II, at 244. On March 10, Gould terminated them, stating they had led the walkout and violated the no-strike clause.

The Union filed unfair labor practices charges against Gould. It also filed grievances on behalf of the two discharged employees, which ended in arbitration prior to the unfair labor practice hearing. In his award, the arbitrator ignored the Union's contention that a no-strike clause such as Article XXII does not constitute a waiver of the right to engage in sympathy strikes. He simply assumed without explanation that the walkout violated Article XXII and focused his attention on the appropriate penalty. The arbitrator found the penalty of discharge to be excessive and reduced the discharges to sixty-day suspensions. The Company refused to comply with the arbitration award, asserting that the arbitrator was without authority to tamper with the penalty.

Notwithstanding its refusal to obey the arbitration award, Gould urges on appeal that the Board erred in failing to defer to the arbitrator's finding that the sympathy walkout violated the no-strike clause. In addition, Gould contends the sympathy walkout did not constitute protected concerted activity and, even if it did, the Union waived its right to engage in sympathy strikes by having agreed to the no-strike clause. We find these contentions without merit and affirm the Board's decision.

I.

Sections 7 and 8(a)(1) of the Act ¹ protect the rights of employees to engage in "concerted activities ... for mutual aid or protection." 29 U.S.C. § 157. The threshold question here is whether the Gould employees' refusal to cross their fellow union members' picket line was protected under sections 7 and 8(a)(1).

An employee has a statutory right to honor any lawful picket line set up against his employer at his employer's place of business, Delaware Coca-Cola Bottling Co. v. Teamsters Local 326, 624 F.2d 1182, 104 L.R.R.M. 2776 (3d Cir. 1980), even though the employee is not a member of the picketing union. See, e. g., NLRB v. Difco Laboratories, Inc., 427 F.2d 170, 171-72 (6th Cir. 1970), 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). Furthermore, an employee's refusal to cross a lawful picket line directed at a stranger employer at such employer's place of business is protected, Teamsters Local 657 v. NLRB, 429 F.2d 204 (D.C. Cir. 1970), even though the picket line is established by a stranger union. NLRB v. Alamo Express, Inc., 430 F.2d 1032 (5th Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 584, 27 L.Ed.2d 633 (1971).

Today, we must decide whether an employee has the right to honor the lawful picket line of his own union which is set up at his employer's place of business but is directed at a stranger employer doing work on the premises. ² To deny this right "would be to hold that, although Congress protected the fundamental right of labor organizations to engage in primary picketing, it withheld this protection from the normal employee response which makes this right effective." West Coast Casket Co., 97 N.L.R.B. 820, 823 (1951), enf'd, 205 F.2d 902 (9th Cir. 1953). As the Fourth Circuit pointed out: "It cannot be denied that respect for the integrity of the picket line may well be the source of strength of the whole collective bargaining process in which every union member has a legitimate and protected economic interest." 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). Consequently, we hold that the Gould employees' refusal to cross the picket line is protected concerted activity under section 7. ³

Gould, however, argues that the Union waived this protection by agreeing to the no-strike clause contained in Article XXII of the Agreement. The Board disagreed, and "(i)f the Board's interpretation has a reasonable basis in the contract terms, the Act's policies and the Board's expertise, it is entitled to deference." NLRB v. C. K. Smith & Co., 569 F.2d 162, 167 (1st Cir. 1977), cert. denied, 436 U.S. 957, 98 S.Ct. 3070, 57 L.Ed.2d 1122 (1978).

Although the right to honor picket lines and engage in sympathy strikes may be waived by agreement, NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1952), "clear and unmistakable" language is required to effect such a waiver. E. g., Delaware Coca-Cola...