N.L.R.B. v. Southern California Edison Co.
| Citation | 646 F.2d 1352 |
| Decision Date | 01 June 1981 |
| Docket Number | No. 47,No. 79-7435,AFL-CI,I,47,79-7435 |
| Parties | 107 L.R.R.M. (BNA) 2667, 91 Lab.Cas. P 12,797 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local Unionnternational Brotherhood of Electrical Workers,ntervenor, v. SOUTHERN CALIFORNIA EDISON COMPANY, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
William Z. Carr, Jr., Los Angeles, Cal., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before MARKEY, * Chief Judge, WALLACE and SKOPIL, Circuit Judges.
The National Labor Relations Board ("the Board") seeks enforcement of its order, 243 NLRB No. 62 (1979), holding that Southern California Edison Company ("SCE") violated sections 8(a)(1) and (3) of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 151 et seq., by threatening to discipline employees who honored a lawful picket line established by another union representing SCE employees, and by disciplining an employee who refused to cross a lawful picket line at a customer's place of business. The Board rejected SCE's primary defense that the union waived the employees' right to engage in sympathy strikes by accepting a no-strike pledge in the collective bargaining agreement.
We must decide whether the Board's interpretation of the Act to protect employees who refuse to cross lawful picket lines is reasonably defensible. If such action is protected, we must determine whether the Board permissibly concluded that the protection was not waived by the parties' collective bargaining contract. If the protection was not waived, we must examine the Board's finding that SCE did not have legitimate business justifications for its actions.
SCE is a public utility engaged in transmitting and selling electric power in California and Nevada. It serves millions of customers including several hundred thousand commercial and industrial establishments.
At the time of the alleged violations, SCE employed 13,318 people. The intervenor in this case, Local 47, International Brotherhood of Electrical Workers ("IBEW" or "the union") represented 6,754 employees. Local 246, Utility Workers Union of America ("UWUA") represented 1,265. SCE has had successive collective bargaining agreements with IBEW since 1945, and with UWUA since 1947.
The first contract between IBEW and SCE was entered into in 1945 and provided inter alia:
A. It is recognized that the Company is engaged in rendering a public service and is under the duty to the public of operating and maintaining its services subject to the rules, regulations, and orders of the California State Railroad Commission, and, therefore, nothing contained in this agreement shall be construed to conflict or be inconsistent or incompatible with such rules, regulations, and orders.
B. Neither the Union nor its officers or agents while this contract is in effect shall call or engage in, sanction or assist in a strike against or any slow-down or stoppage, in whole or in part, of the work or operations of the Company, and while this agreement is in effect the Company
shall not cause or permit any lockout of employees.
A. In the event any grievance arises concerning a claim by an employee or a group of employees or the union that any of the terms of this Agreement have been violated, or any other grievance relating to rates of pay, wages, hours of employment, or other conditions of employment, such matters shall be adjusted according to the following (grievance) procedure:
B. If the contention is made that the grievance is not a proper one for arbitration as defined in Section A of this Article V, said question of jurisdiction shall be determined by the (Arbitration) Board.
A. The Company has and will retain the right and power to manage the plant and direct the working forces, including the right to hire, to suspend, or discharge for just cause, to promote, demote, and transfer its employees, subject to the provisions of this Agreement. Any claim that the Company has exercised such right and power contrary to the provisions of the Agreement may be taken as a grievance
The Waiver of any breach or condition of this Agreement by either party does not constitute a precedent for any further waiver of such breach or condition.
The union's proposals in the 1948 negotiations led to the following modifications of the collective bargaining agreement:
B. The Company agrees to recognize the rights of employees as set forth in Section 7 of the National Labor Relations Act The Company or the Union will not interfere with, restrain or coerce the employees in the exercise of their rights as set forth in the National Labor Relations Act or any amendments thereto.
A. It is agreed that there shall be no strike, slow-down, or lockout until all methods provided for the settlement of disputes in this agreement have been fully utilized, and further, that the parties shall have exhausted the remedies provided under the Labor-Management Relations Act.
Following a strike by IBEW in 1953, the union and SCE entered into a strike settlement agreement that provided inter alia:
PREAMBLE
The Company is a public service agency charged under the laws of the United States of America, of the State of Nevada and of the State of California with the Inherent in the relationship established between the Company and its employees is the obligation on the part of the Company to deal justly and fairly with its employees; and on the part of the employees, to cooperate with their fellow employees and with the Company, in the performance of said public service obligation, and in the preservation of the good name and the good will of the property and the Company requisite thereto.
duty of maintaining electric service under public regulations of its activities and of its rates. The Company is engaged in a public service requiring continuous operation, and the recognition of such obligation of continuous service during the term of this Agreement is imposed upon both the Company and the Union. The obligation and the duty of the Company and its working forces to maintain continuous electric service, insofar as possible within human limitations, is a basic condition of the Company's franchises and rights under law.
The Preamble became part of the collective bargaining agreement. The agreement has remained materially unchanged and was in effect at the time of the alleged unfair labor practices.
During the 1947 contract negotiations the union unsuccessfully proposed that the following be added to Article II, paragraph B:
B. Employees covered by this agreement shall not be required to pass picket lines in the performance of their duties.
During the 1970 contract negotiations, the Union proposed that the following paragraph be added to Article I:
No employee shall be required to cross a picket line that is sanctioned by the AFL-CIO Central Labor Council. Employees who exercise their right not to cross a picket line may be assigned to other work.
SCE opposed the change on the ground that it would interfere with its continuous service commitment imposed by various regulatory agencies. SCE noted that it had been able to work out picket line problems with the union. The union withdrew the proposal.
In 1972 the union again sought to add a provision to Article I that "no employee shall be required to cross a picket line that is sanctioned by the AFL-CIO Central Labor Council". The union acknowledged SCE's prior cooperation, but expressed concern over instances where supervisors forced unwilling employees to cross picket lines. SCE again cited the obligation imposed on it by regulatory agencies. Discussion moved to other proposals. The union did not submit picket line clauses in later negotiations.
Over the last 20 years SCE has required employees to cross picket lines under threat of discharge. In some instances SCE has made accommodations by rescheduling, deferring, or reassigning work, or obtaining permission to cross from the striking union. SCE apparently did not require its employees to cross a picket line when there was a threat of physical harm.
The union has filed grievances over the company's forcing employees to cross picket lines of stranger unions. Two were filed in 1969. Both were denied. SCE did not rely on the no-strike clause. The union dropped both grievances short of arbitration.
Seven such grievances were filed in 1971. In each instance, employees unwillingly crossed picket lines to perform work. SCE denied six, alleging that "timely installation" was necessary to the customer. SCE denied the other grievance on the ground that contractual and legal obligations precluded delay in the work. SCE did not rely on the no-strike clause. The union did not pursue the grievances to arbitration.
Two such grievances were filed in 1978. They led to the disputes in this case and are
detailed below. For the first time SCE relied on the no-strike clause to deny the grievances.
In 1978, in anticipation of a strike by UWUA, IBEW claimed that the Act gives employees the right to honor a lawful picket line, and that the right was reaffirmed by Article I, paragraph B of the collective bargaining agreement. SCE notified the...
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