ON PETITION FOR REVIEW OF ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board No. 6-CA-10586)
Before Adams, Van Dusen and Garth, Circuit Judges.
Wheeling-Pittsburgh Steel Corporation (the Company) petitions this court for review of the April 30, 1979, decision and order of the National Labor Relations Board (the Board). The Board cross-applies for enforcement of its order. The Board found that the Company had committed unfair labor practices in violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1), (3),*fn1 by suspending two employees for invoking their contractually protected right not to work under conditions they believed to be unsafe. The Board also found that the Company had violated § 8(a)(1) of the Act due to a remark made by a foreman concerning the length of the suspension. Based on the findings of unfair labor practices, the Board ordered the Company to rescind the suspensions, to delete any references to the suspensions from the personnel files, to compensate the two employees for the earnings they lost while suspended, to cease and desist from engaging in the unfair labor practices, and to post notices informing the employees that they will not be subjected to these or similar unfair labor practices. We will deny the petition for review and enforce the Board's order insofar as it relates to the suspension of the two employees. We will grant the Company's petition and deny enforcement of those portions of the order relating to the foreman's remark.*fn2
The Company produces steel and steel products. Its facility at Allenport, Pennsylvania, converts semifinished steel into sheet and tubular products. Approximately 2600 employees work at the Allenport facility; of these, 2400 are represented by the United Steelworkers of America (the union). Section 14(C) of the 1977-1980 collective bargaining agreement between the Company and the union provides that employees who believe their working conditions are abnormally unsafe or unhealthy are entitled to refuse to work without losing their right to return to their jobs.*fn3 This provision has been included in the collective bargaining agreements since the Company was formed in 1969. The agreement also contains a grievance and arbitration procedure, a no-strike clause, and a provision that an employee cannot be suspended more than five days without a hearing.
In Building Number 5 at the Tube Mill at Allenport, tubes and pipes are received, cut, threaded, painted, tested, inspected, and loaded onto railroad cars for shipment. Building Number 5 operates three shifts a day, seven days a week, with one crane operator and approximately 35 employees per shift. It contains an electric overhead crane which rides on rails mounted 30 feet above the floor, 115 feet apart from each other, and which extend the length of the building. The bridge of the crane spans the 115-foot width and rests on wheels which roll along the rails. The crane can lift loads weighing up to 71/2 tons. Loads of pipe are either tied to, or cradled in,*fn4 the crane's hoist mechanism by employees known as "hookers" who work on the production floor.
On September 19, 1977, Edmond Semancik was operating the crane in Building Number 5. Semancik had operated that crane on a regular basis for three years. He had never before refused to operate the crane for safety or any other reasons. On this particular morning Semancik observed that the crane was riding more roughly than usual. The crane was bumping and sliding along the rails, causing the loads of pipe to rock and sway. Semancik stopped the crane to investigate and discovered a hole in the tread face of one of the wheels. The hole measured approximately 31/2 inches long, 21/2 inches wide, and 1/2 inch deep. Semancik had never seen such a hole in a crane wheel.*fn5 He testified that when the hole met a joint in the rail it caused the crane to slide suddenly, which in turn caused the load of pipes to sway. Semancik reported this to the production foreman and asked him to call the crane repairman. When the repairman arrived, Semancik showed him the wheel. When the repairman asked if Semancik wished to have the wheel changed, Semancik answered in the affirmative. The repairman left to get the equipment necessary to change the wheel and to report to his supervisor, Charles Michaels, the general foreman of shop services. The repairman returned and informed Semancik that Michaels had decided not to halt production and change the wheel. Semancik said that Michaels must not have understood the situation and, accompanied by the two employees who were working as "hookers" on that shift, walked to Michaels' office. Michaels told Semancik that the wheel was not going to be changed and ordered Semancik to run the crane or to go home. Semancik stated that he was invoking his right under § 14(C) of the collective bargaining agreement to be relieved of an unsafe job.
Semancik returned to the crane where he met the crane repairman and the crane repair foreman. Semancik operated the crane while they stood on the bridge observing the wheel. The repair foreman declared that the rails appeared to be slippery and needed sanding, but that the wheel was safe. During the sanding process one of the foremen noticed that the crane was out of alignment, "which could cause bumping, thumping and other noises." App. at 446a. He proceeded to realign the crane. After the wheels were sanded and the crane realigned,*fn6 the foremen concluded that any previous rough operation of the crane had been remedied and asked Semancik to resume operating the crane. When Semancik said that he was invoking his § 14(C) rights, the production foreman told him he was suspended. Semancik telephoned the union president. Semancik then told the general foreman that he was relying on § 14(C) in refusing to operate the crane. The general foreman reiterated that Semancik was suspended and ordered a replacement crane operator. At that point the union president arrived and told Semancik that he had a right under § 14(C) to inform the replacement of the condition which he believed to be unsafe, but not to attempt to persuade the replacement to refuse to work. Semancik described the condition of the wheel to the first replacement, who inspected the wheel and then invoked his § 14(C) right not to work.*fn7 When the second replacement, Francis Roberts, arrived, Semancik again pointed out the hole, visible from the production floor, and stated that he had asked to be relieved from his job under § 14(C) because the crane was not operating properly. Roberts decided that he too would invoke his § 14(C) rights. Although the foreman told Roberts that management believed the crane was safe and urged him to operate the crane, Roberts insisted on his right under § 14(C) to refuse to work under unsafe conditions. Roberts was then suspended. Shortly thereafter, he and Semancik left the building and went home.
The union president left, stating that he was going to file a safety complaint with the Occupational Safety and Health Administration. The union grievance committeeman, who had arrived a short time earlier, remained. When a third replacement crane operator reported, the committeeman informed him about the hole in the wheel and the suspension of Semancik and Roberts. The division superintendent assured him the crane was safe. This operator inspected the wheel and briefly operated the crane. He agreed to operate it at a slow speed on the condition that he not be held responsible if anything went wrong due to the hole in the wheel. He operated the crane without incident for the rest of the day.*fn8
The general foreman telephoned Semancik and Roberts on the afternoon of September 19 and informed them that they had been suspended for five days, the longest period of suspension without a prior hearing permitted by the collective bargaining agreement. Disciplinary hearings for both employees were held on September 23. Semancik, represented by the union committeeman and the acting union president, contended that he had properly invoked his contractual right, had been unjustly suspended, and was entitled to reinstatement with back pay. The Company charged that no hazardous condition had existed on September 19, that Semancik had been unreasonable in not accepting management's opinion that the crane was safe, and that he had unjustifiably refused to work, causing a loss in the scheduled production. The hearing became heated. Semancik insisted he had not been unreasonable in refusing to operate the crane.
Roberts' hearing followed. The same union and management representatives were present. The same matters were discussed, but the verbal exchange was less heated.
After the hearings the management representatives conferred and decided to suspend Semancik and Roberts for an additional 30 days to punish them for being inflexible and unreasonable and refusing to concede that they had been wrong. See App. at 452a. The employees were notified of their extended suspensions. They returned to work on October 30, 1977. Shortly thereafter, Roberts told Michaels, the general foreman, that he and Semancik had not deserved 30-day suspensions. Michaels responded by saying that the additional discipline would not have been imposed if Semancik had "kept his mouth shut at the meeting". App. at 113a-114a.
In its petition for review, the Company argues that the dispute here concerned contract interpretation, rather than violations of the national labor laws. Consequently, it is the Company's position before this court that the Board should have refrained from acting and allowed the arbitration machinery to resolve the issues. The Board asserts that the contract issue was only incidental to the alleged unfair labor practice. Moreover, according to the Board, even when the resolution of a contract issue is more central to a case, the Board is not pre-empted by the overlapping domain of the arbitrator. In this the Board is correct. As the Supreme Court stated in National Labor Relations Board v. Strong, 393 U.S. 357, 360-61, 89 S. Ct. 541, 544, 21 L. Ed. 2d 546 (1969):
"In some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre-empting the other. Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. It may also, if necessary to adjudicate an unfair labor ...