Oil, Chemical and Atomic Workers Intern. Union, Local 1-547 v. N.L.R.B.

• Decision Date: 28 March 1988
• Docket Number: No. 85-7574,85-7574
• Citation: 842 F.2d 1141
• Parties: 127 L.R.R.M. (BNA) 3164, 56 USLW 2567, 108 Lab.Cas. P 10,396 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 1-547, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Chevron, USA, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1141

842 F.2d 1141

127 L.R.R.M. (BNA) 3164, 56 USLW 2567,

108 Lab.Cas. P 10,396

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 1-547, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Chevron, USA, Respondent-Intervenor.

No. 85-7574.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1987.

Decided March 28, 1988.

Wallace B. Knox, Karp & Mooney, Los Angeles, Cal., for petitioner.

John H. Ferguson, Deputy Asst. Gen. Counsel, Washington, D.C., for respondent.

Richard D. DeLuce, Lawler, Felix & Hall, Los Angeles, Cal., for respondent-intervenor.

Jeffrey B. Demain, Altshuler & Berzon, San Francisco, Cal., for amicus.

On Petition for Review of an Order of the National Labor Relations Board.

Before HUG and WIGGINS, Circuit Judges, and PRICE, ^* District Judge.

HUG, Circuit Judge:

This case involves the interpretation of a no-strike clause in a collective bargaining agreement, and its application to a sympathy strike. Chevron U.S.A., Inc. ("Chevron") suspended members of the Oil, Chemical and Atomic Workers International Union, Local 1-547 ("the Union" or "Local 1-547") for one day when they engaged in a sympathy strike. The Union filed an unfair labor practice complaint with the National Labor Relations Board ("NLRB" or "the Board"), alleging violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 158(a)(1) and 158(a)(3) (1982). The Union petitions for review of the NLRB's dismissal of its complaint.

I.

On January 28, 1980, approximately 240 Local 1-547 members refused to cross a picket line at the Chevron plant where they were employed. The picket line was formed by another Union local from the Chevron plant. Chevron suspended the Local 1-547 members for one day, claiming they had violated the no-strike clause included in their collective bargaining agreement. Article XXI of the agreement provided:

ARTICLE XXI--STRIKES AND LOCKOUTS

During the term of this Agreement there shall be no strikes, stoppages of work, slowdowns, or other intentional interferences with production. The company agrees there will be no lockouts.

This clause was in the collective bargaining agreement between the Union and Chevron since at least 1959. In recent years, the only discussions concerning its effect took place during the negotiations for the 1977-79 agreement. The Union introduced a clause specifically allowing sympathy strikes, but then withdrew it. Throughout the negotiations, the Union maintained it was merely trying to reinforce a right it felt it already had under the collective bargaining agreement and the NLRA.

In 1977, after negotiations were complete, Chevron disciplined employees who engaged in another sympathy strike. The Union took a grievance to arbitration. The arbitrator decided that the broad no-strike clause in the agreement waived the Union's statutory right to engage in sympathy strikes.

However, in 1978, the NLRB held that broad no-strike language does not in itself constitute a waiver of the right to engage in sympathy strikes. The burden fell on the employer to show clearly and unmistakably that the union intended to waive this right. Davis-McKee, Inc., 238 NLRB 652 (1978).

The parties entered into a new agreement in 1979, maintaining the previous no-strike clause without discussion. This 1979-81 agreement was in effect at the time of the 1980 sympathy strike at issue in this case.

On July 22, 1981, an administrative law judge ("ALJ") found that the no-strike clause in the collective bargaining agreement did not waive the statutory right to engage in sympathy strikes, following Davis-McKee. He also found it inappropriate to defer to the earlier arbitration decision, finding it "clearly repugnant" to the NLRA under then-current law. Since the Union's right to strike had not been waived, he found that Chevron had violated sections 8(a)(1) and 8(a)(3) of the NLRA. Chevron filed exceptions to the decision and the Union filed cross-exceptions. Almost four years later, the NLRB reversed the ALJ's decision, deferring to the 1978 arbitrator's decision, which construed the agreement's no-strike clause as a waiver of sympathy strike rights. The Board also relied on its recent decision in Indianapolis Power & Light, 273 NLRB 1715 (1985), which overruled Davis-McKee. Indianapolis held that a broad no-strike clause bans all strikes, including sympathy strikes, unless there is clear evidence that the parties intended otherwise.

II.

The right to engage in a sympathy strike is guaranteed by section 7 of the NLRA, 29 U.S.C. Sec. 157 (1982). This right can be waived by a collective bargaining agreement if the waiver is "clear and unmistakable." See Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 (1983); NLRB v. Southern California Edison Co., 646 F.2d 1352, 1364 (9th Cir.1981).

"Whether the contract waives the employees' right to strike 'turns upon the proper interpretation of the particular contract before us. Like other contracts, it must be read as a whole and in light of the law relating to it when made.' " IBEW Local 387 v. NLRB (Arizona Public Service Co.), 788 F.2d 1412, 1414 (9th Cir.1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279, 76 S.Ct. 349, 356, 100 L.Ed. 309 (1956)). The language of the no-strike clause does not specify whether sympathy strikes are included or excluded from the prohibition. ¹

The Union argues that the phrase "or other intentional interferences with production" is significant. The argument is that the use of the word "intentional" in the phrase means that any strike would also have to be an intentional interference with production. The Union contends that a sympathy strike is not an intentional interference with production but, instead, an intention to achieve solidarity with another union. We disagree. The clear intention of a sympathy strike is to interfere with production, in order to achieve solidarity. Thus, we do not agree that the plain language of the clause compels a conclusion that sympathy strikes were omitted from the operation of the no-strike provision.

The intent of the parties cannot be determined from the language of the clause itself, without examining pertinent, extrinsic evidence. Relevant considerations include the bargaining history, the parties' interpretation of the contract, the conduct of the parties, and the legal context in which the contract was negotiated. Arizona Public Service Co., 788 F.2d at 1414. Another factor is the doctrine of coterminous interpretation, which states that a no-strike obligation is limited to arbitrable issues. Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 381-82, 94 S.Ct. 629, 638-39, 38 L.Ed.2d 583 (1974). If the arbitration clause and the no-strike clause in a contract are functionally linked, strong evidence exists that the parties did not intend a waiver of the sympathy strike right. NLRB v. Sav-On Drugs, Inc., 728 F.2d 1254, 1257 (9th Cir.1984) (en banc); Southern California Edison, 646 F.2d at 1367; accord Gary Hobart Water Corp. v. NLRB, 511 F.2d 284, 287-88 (7th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975).

This analysis--examining the statutory language in conjunction with extrinsic evidence--is equally applicable in each of the Board's rulings concerning no-strike clauses. In Indianapolis, the Board established that a general no-strike clause waives the right to engage in sympathy strikes, unless there is extrinsic evidence that the parties intended otherwise. 273 NLRB 1715 (1985), rev'd, Local Union 1395, IBEW v. NLRB, 797 F.2d 1027, 1030 (D.C.Cir.1986) (Board's decision was reversed due to its failure to address the relevant extrinsic evidence of the parties' intent). This decision overruled established Board precedent that broad no-strike language does not in itself constitute a waiver of the right to engage in sympathy strikes; the burden fell on the employer to show clearly and unmistakably that the union intended to waive this right. Davis-McKee, 238 NLRB 652. Thus, Indianapolis shifts the presumption to benefit the employer. See Arizona Public Service Co., 788 F.2d at 1414.

An analysis of the various indicators of intent is necessary in this case given the inconclusive nature of the clause's language itself. The Board's decision, however, is cursory, and suffers the same general defects which have led the courts in earlier cases to reverse and remand Board cases which apply the Indianapolis standard. See Local Union 1395, 797 F.2d at 1027; Arizona Public Service Co., 788 F.2d at 1412.

Furthermore, it is inappropriate to apply retroactively the new Indianapolis standard to interpret the collective bargaining agreement in this case, since the new placement of the presumption could not have been anticipated by the parties and thus could not have been their intent. ²

The Ninth Circuit has adopted a five-part analysis to balance the interests in considering retroactive application of a new rule of law. Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir.1982), citing Retail, Wholesale and Dept. Store Union v. NLRB, 466 F.2d 380, 390-93 (D.C.Cir.1972). The relevant factors are:

(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Id.

The Indianapolis decision shifted the presumption that the Board applies to no-strike clauses, and the corresponding burden of proof, 180 degrees. The extent to which the Union relied on prior law is unclear, and is precisely the type of extrinsic evidence...