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International Brotherhood of Electrical Workers v. National Labor Relations Board

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: August 19, 1987.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 803, AFL-CIO, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, METROPOLITAN EDISON COMPANY, INTERVENOR

On Petition for Review of Decision and Order of the National Labor Relations Board, No. 3628.

Higginbotham and Becker, Circuit Judges, and Dumbauld, District Judge.*fn*

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This appeal arises from the decision and order of the National Labor Relations Board ("Board") dismissing the complaint of petitioner, Local 803, International Brotherhood of Electrical Workers, AFL-CIO ("Local 803" or "the union"). Petitioner's complaint alleged that the Metropolitan Edison Company ("Metropolitan" or "the Company") violated § 8(a)(1) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 158(a)(1) (1982), when it threatened to discipline Local 803 employees for their refusal to cross a picket line established by another union. The central issue on this appeal is whether the Board reasonably concluded that the general no-strike clause in the parties' collective bargaining agreement waived the employees' right to engage in a sympathy strike. In making this determination, we are asked to consider the continued vitality of the decision of this Court in Delaware Coca-Cola Bottling Co. v. General Teamster Local Union 326, 624 F.2d 1182 (3d Cir. 1980) (" Delaware Coca-Cola "). For the reasons set forth below, we will affirm the decision and order of the Board.

I.

The facts of this case are essentially undisputed. Metropolitan Edison Company is an electric utility licensed and regulated by the Commonwealth of Pennsylvania. The Company provides electricity to approximately 300,000 customers in Eastern Pennsylvania. Its main corporate headquarters are located in Reading, Pennsylvania. Four operating divisions are located in York, Reading, Lebanon and Easton, Pennsylvania. Approximately 1,600 of Metropolitan's operating employees are represented by the International Brotherhood of Electrical Workers, AFL-CIO. These employees are organized into five local unions -- Local 1261 in York; Local 803 in Reading; Local 1482 in Lebanon; Local 603 in Easton; and Local 563 in Middletown -- which bargain jointly for one unified bargaining agreement applicable to the entire utility system.

The collective bargaining agreement between Metropolitan and the Union relevant to this appeal was effective from May 1, 1981, through April 30, 1983. Article IX of the agreement, entitled " GRIEVANCES AND ARBITRATION " provides in pertinent part:

9.1 A Grievance is hereby defined as a violation of the law governing employer-employee relationship, or a violation of the terms of this agreement, or any type of supervisory conduct which unjustly causes any employee to lose his/her job or any benefits arising out of his/her job.

9.2 Should a dispute arise between the Brotherhood and the Company as to any unadjusted grievance or as to the rights of either party under this agreement, both parties shall endeavor to settle such matters, as promptly and timely as possible under the circumstances, in the simplest and most direct manner . . . .

Joint Appendix ("Jt. App.") at 57. A four-step grievance procedure, culminating in arbitration "binding upon the Company and upon the Brotherhood for the term of th[e] agreement" is also set forth in Article IX. Id. Article XI of the agreement, entitled " NO STRIKES-NO LOCKOUTS ", provides:

11.1 The Brotherhood and its members agree that during the term of this agreement there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public.

Id. at 58. Identical language has appeared in all prior contracts between the parties for a period of at least twenty-five years. See id. at 2, 117, 140.

During the spring of 1981, Metropolitan was engaged in the installation of a transformer to provide service to the new operating headquarters building of the Berks TV Cable Company ("Berks TV") in Reading, Pennsylvania. Between April 8 and June 22, 1981, the Reading Building and Trades Council maintained an informational picket line at the building site. On June 15, 1981, a crew of Metropolitan employees, represented by Local 803 and assigned to perform work at the Berks TV site, was confronted by informational pickets. On that occasion, the crew chose to wait until the pickets had departed before entering the site and completing the assigned installation. On June 18, a second crew of Metropolitan employees assigned to install connecting devices there withdrew from the work site when confronted by the construction union's picket line.

On June 22, a Company representative advised Local 803 that a continuing refusal by its members to cross the picket line at the Berks TV work site would result in disciplinary action, including suspensions. Thereafter, the employees represented by Local 803 crossed the picket lines at the work site. The work was completed during the period between June 23 and June 28, 1981. No disciplinary action was taken against any employee as a result of the incident at the Berks TV project.

On August 5, 1981, Local 803 filed a charge against Metropolitan alleging that, in violation of § 8(a)(1) of the NLRA,*fn1 Metropolitan had interfered with, restrained, and coerced the employees in the exercise of their rights under § 7 of the NLRA, 29 U.S.C. § 157 (1982),*fn2 when it threatened to discipline the employees for their refusal to cross the informational picket line. A hearing on this charge was conducted before an Administrative Law Judge ("ALJ") on November 9, 1982.

On February 11, 1983, the ALJ issued his decision that Metropolitan's conduct constituted a violation of § 8(a)(1) of the NLRA. Relying on Operating Engineers Local Union 18 (Davis-McKee, Inc.), 238 N.L.R.B. 652 (1978) (" Davis-McKee "), the ALJ reasoned that, absent extrinsic evidence concerning the parties' intent, the general no-strike clause contained in the parties' contract could not be read to clearly and unmistakably waive the employees' statutorily protected right to engage in a sympathy strike. Specifically, the ALJ found that an earlier stipulation by the General Counsel for the union, in a separate unfair labor practice proceeding involving Local 563, -- one of Local 803's sister locals -- that a sympathy strike by Metropolitan employees was in contravention of the no-strike clause in the parties' contract,*fn3 was not intended to and did not "finally resolve the question whether the contract prohibited sympathy strikes or refusals to cross other unions' picket lines."*fn4 Jt. App. at 122. In addition, the ALJ noted that the clause itself made no specific reference to sympathy strikes; that "the record was devoid of evidence concerning discussions, if any, of the no-strike clause or any other arguably related contract provisions," Jt. App. at 123; and that there was no evidence concerning the parties' intent when they agreed to contractual language indicating their mutual desire to provide uninterrupted and continuous service to the public. Consequently, the ALJ determined that a waiver of statutorily protected rights could not be inferred. See Jt. App. 122-23.

The ALJ also expressly found that "the evidence indicates that [the question whether the no-strike clause prohibits sympathy strikes] has been a matter of dispute for many years." Jt. App. at 124. To support this observation, the ALJ cited the positions advanced by two of Local 803's sister locals in prior arbitration proceedings, viz., that (1) Local 603 members could not be required to cross a picket line if it were unsafe to do so,*fn5 and (2) the refusal by Local 563 members to cross a picket line established by another union did not constitute a work stoppage under the collective bargaining agreement. Finally, the ALJ found that two prior arbitration awards in which the no-strike provision at issue was construed as prohibiting sympathy strikes could not be viewed as extensions of the current contract. This determination was based on the ALJ's view (1) that the prior awards were binding only for the term of predecessor contracts, and (2) that, in any event, the awards were entitled to no deference on the issue of contract interpretation. As to the latter point, the ALJ found that because the arbitrators in the two prior proceedings "based their decisions on the premise that the no-strike clause, on its face, prohibited unit employees from refusing to cross the picket lines of other unions[,] . . . [and failed to] consider[] extrinsic evidence on the meaning of the clause[,] . . . [they] thereby interpreted the article in a manner contrary to the Act, as interpreted by the Board, and [in a manner] which infringed upon employee rights protected under the Act." Jt. App. at 124. Finding, therefore, no indication that the union waived the right of its members to refuse to cross picket lines of other unions, the ALJ held that Metropolitan's threat of discipline violated the rights of Local 803 employees.

Upon review, the Board issued its decision reversing the ALJ and dismissing the complaint. The Board cited its decision in Indianapolis Power & Light Co., 273 N.L.R.B. 1715 (1985), remanded sub nom. Local Union 1395, Electrical Workers v. NLRB, 254 U.S. App. D.C. 360, 797 F.2d 1027 (D.C. Cir. 1986) (" Indianapolis Power "), which held that, absent extrinsic evidence that the parties intended otherwise, a broad no-strike clause waives the employees' right to engage in sympathy strikes. Indianapolis Power overruled the Board's previous holding in Davis-McKee that, absent extrinsic evidence or express contractual language to the contrary, a broad no-strike clause would not constitute a waiver of employees' statutorily protected right to sympathy strike. In reversing the determination of the ALJ, the Board here determined that there was "no evidence, either in bargaining history or past practice, demonstrating that the parties expressly excluded sympathy strikes from coverage of the no-strike clause." Jt. App. at 142. Accordingly, applying the Indianapolis Power rule, the Board concluded that by agreeing to a general no-strike clause, Local 803 waived its members' rights to engage in a sympathy strike. Consequently, Metropolitan did not violate § 8(a)(1) when it threatened its employees with discipline if they continued to refuse to cross the construction union's picket line. This appeal followed.

We have jurisdiction pursuant to § 10(f) of the NLRA, 29 U.S.C. § 160(f) (1982). An order of the Board is customarily entitled to enforcement if its findings are supported by substantial evidence and the order is consistent with the policies of the NLRA. The Board's interpretation of the Act must be upheld unless it represents "an unreasonable or an unprincipled construction of the statute . . . ." Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 60 L. Ed. 2d 420, 99 S. Ct. 1842 (1978). Although the Board may interpret collective bargaining agreements when raised as defenses in unfair labor practice proceedings, see NLRB v. C & C Plywood Corp., 385 U.S. 421, 17 L. Ed. 2d 486, 87 S. Ct. 559 (1967), in this Circuit "courts 'owe no particular deference to the Board' on matters of contract interpretation." Pacemaker Yacht Co. v. NLRB, 663 F.2d 455, 458 (3d Cir. 1981) (quoting Dow Chemical Co. v. NLRB, 636 F.2d 1352, 1358 (3d Cir. 1980)).

II.

Local 803 advances two principal arguments: first, that the Indianapolis Power rule is inconsistent with the statutory protection accorded employees' § 7 right to honor stranger picket lines and with settled principles governing the interpretation of collective bargaining agreements; and, second, that under the law of this Circuit, Local 803 has not waived its members' statutory rights to honor a stranger picket line. We begin our analysis of petitioner's contentions with an overview of the relevant legal principles and applicable case law.

Section 7 of the NLRA protects the right of employees to observe lawful picket lines. 29 U.S.C. § 157 (1982). This right, however, may be waived in a collective bargaining agreement. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 18 L. Ed. 2d 1123, 87 S. Ct. 2001 (1967); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 290, 100 L. Ed. 309, 76 S. Ct. 349 (1956) (" Mastro Plastics "); NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73, 97 L. Ed. 832, 73 S. Ct. 519 (1953) ("Rockaway News"); Delaware Coca-Cola, 624 F.2d at 1184. The waiver of the employees' statutory right to engage in sympathy strikes must be "clear and unmistakable." Metropolitan Edison Co. v. NLRB, 663 F.2d 478, 482 (3d Cir. 1981), aff'd, 460 U.S. 693, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983); see also United Steelworkers v. NLRB, 536 F.2d 550, 555 (3d Cir. 1976) ("a waiver of a statutory right must be clearly and unmistakably established, . . . and express language will not be read expansively"). "The extent of the waiver . . . '"turns upon the proper interpretation of the particular contract . . . [which] must be read as a whole and in light of the law relating to it when made."'" Delaware Coca-Cola, 624 F.2d at 1184 (quoting Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 395 (3d Cir. 1974) (quoting Mastro Plastics, 350 U.S. at 279)). Thus, any analysis of the waiver issue must begin with an identification of the no-strike obligation in the parties' contract and a determination of its scope. As this Court recognized in Delaware Coca-Cola, the complexity of the waiver determination is compounded by the fact that "the union's no-strike obligation may be created in one of two ways: by implication from the arbitration clause or by an express clause in the contract."*fn6 624 F.2d at 1185. We are concerned here with the scope of an express no-strike obligation in the collective bargaining agreement.

Before focusing on the waiver issue with regard to the particular contract before us, it is necessary to review briefly the evolution in this Circuit of the standards governing the identification and interpretation of the union's no-strike obligation. In United States Steel Corp. v. UMW, 548 F.2d 67 (3d Cir. 1976) ("U.S. Steel II"), cert. denied, 431 U.S. 968, 97 S. Ct. 2926, 53 L. Ed. 2d 1063 (1977), this Court considered "whether a union can be held liable to an employer in money damages for the refusal of union members to cross a stranger picket line when the collective bargaining agreement between the union and the employer provides a detailed grievance-arbitration procedure but contains no express no-strike clause." Id. at 69. We held that whether the union could be held liable depended upon whether there existed a contractual duty on the union not to strike. Examining Supreme Court precedent, we noted that the Court's then recent decision in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 49 L. Ed. 2d 1022, 96 S. Ct. 3141 (1976) (" Buffalo Forge "),*fn7 made clear that the duty not to engage in sympathy strikes was not implicit in the existence of a mandatory arbitration clause. Id. at 73 & n.13. Thus, we concluded that, in the absence of an express no-strike clause, from which the duty could arguably arise, a union could not be liable for monetary damages resulting from a sympathy strike, unless the collective bargaining agreement provided for arbitration procedures and the dispute that precipitated the stoppage was subject to binding arbitration under the terms of the agreement. Id. at 72.

Subsequently, in Delaware Coca-Cola, we considered the question left open by U.S. Steel II : "whether an express no-strike clause . . . would waive the right to engage in a sympathy strike." 624 F.2d at 1185. Focusing on the notion of coterminous interpretation employed by the U.S. Steel II Court, we stated that that reasoning "le[d] us to the conclusion that general language, by itself, is not explicit enough to waive the right to sympathy strike." 624 F.2d at 1185. Thus, "the quid pro quo rationale underlying coterminous interpretation also applies where the union actually gives up its right to strike instead of having it implied from the arbitration clause." Id. at 1186.

Finally, in Pacemaker Yacht, faced again with the question whether an express no-strike clause waived the right of employees to engage in a strike over a nonarbitrable issue, we held that the express no-strike clause there involved constituted a "clear and unmistakable" waiver of the employees' right to engage in the challenged strike. Clarifying our prior holding in Delaware Coca-Cola, we explained that "the principle of coterminous interpretation . . . is not a rule of law, but merely a tool of contract interpretation, . . . which 'must be applied to the facts of each case.'" 663 F.2d at 457-58. Accordingly, we specifically declined to read Delaware Coca-Cola for the proposition that "a general no-strike clause may never waive the right to strike over unspecified, nonarbitrable disputes." Id. at 459-60.

A.

We turn now to the discrete issues raised by this appeal. Petitioner first maintains that the Board, in its decision in Indianapolis Power, has erected an intransigent presumption that is inconsistent with the policies and principles of the NLRA and is irrational. Specifically, petitioner contends that the Indianapolis Power rule is "utterly inconsistent with the solicitude for statutory rights embodied in the 'clear and unmistakable' waiver standard," Brief for Petitioner at 19, because it "dispenses with individualized findings of intent to relinquish the rights to honor stranger picket lines, and impermissibly substitutes a presumption based on a particular type of language." Id. The union further cautions that an endorsement of the Indianapolis Power rule will result in "a substantial risk of inadvertent relinquishment" of statutory rights. Id. at 19. Additionally, the union maintains that the Indianapolis Power rule violates settled principles governing the interpretation of collective bargaining agreements.

At the outset, we cannot conclude that the Indianapolis Power rule is inconsistent with the policies and protections afforded employees under the NLRA. The primary purpose of the Act, "to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made," S. Rep. No. 106, 80th Cong., 1st Sess. 15 (1947), quoted in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 453, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957), is not frustrated by a rule allowing the parties to embody, in broad contractual terms, their mutual desire to include sympathy strikes as part of their no-strike agreement. Accord Local 1395, 797 F.2d at 1034; Pacemaker Yacht, 663 F.2d at 460. This conclusion is reinforced by the decision in Rockaway News, where the Supreme Court, relying primarily on a broadly worded no-strike provision, enforced the Board's order dismissing a newspaper delivery man for his refusal to cross a picket line.*fn8 " Rockaway News thus establishes, at a minimum, that nothing in the Act prevents the Board or a court from finding a waiver of the right to honor picket lines in a contractual no-strike clause of sufficient breadth." Local 1395, 797 F.2d at 1034.*fn9

Local 803 argues, nonetheless, that the clear and unmistakable standard requires more than a broad statement of waiver. Under the union's view, a broad no-strike clause can never constitute a clear and unmistakable waiver of the right of employees to honor a picket line. This position, however, was considered and soundly rejected by the District of Columbia Circuit upon review of the Board's decision in Indianapolis Power. See Local Union 1395, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, 254 U.S. App. D.C. 360, 797 F.2d 1027 (D.C. Cir. 1986) (" Local 1395 "). Noting that "one might well think that finding a 'clear and unmistakable waiver' of a statutory right requires more elaborate evidentiary support than simply placing an objective construction on a contract," the court nevertheless concluded that, "the relevant cases simply do not support the proposition that waiver hinges upon employees' subjective intent rather than the mutual consent reflected in a contractual commitment." Id. at 1031. Moreover, we find absolutely absurd Local 803's suggestion that subjective intent may stem only from the individual employees, and not from the union as an entity. This position is completely at odds with "the premise of fair representation," NLRB v. Magnavox Co., 415 U.S. 322, 325, 39 L. Ed. 2d 358, 94 S. Ct. 1099 (1974), under which Local 803's authority to negotiate contract terms arises. The possibility that "in securing the good of the entire bargaining unit, some differences in the treatment of individual union members might occur," Metropolitan Edison Co. v. NLRB, 460 U.S. at 707, does not invalidate a clear and unmistakable waiver by the union of its members' statutory rights.

As we observed in Pacemaker Yacht, "freedom of contract is the 'fundamental premise' on which the National Labor Relations Act is based." 663 F.2d at 460 (citations omitted). To the extent that Local 803's position seeks to minimize the force of the actual contractual language employed and agreed to by the parties whenever a waiver of statutory rights is at issue, it threatens to undermine the free and open bargaining process.*fn10 To be certain, determining the proper construction of a particular broadly worded no-strike provision is distinct from determining whether such a clause, consistent with the clear and unmistakable standard, may ever constitute a waiver of statutory rights.*fn11 As to the former determination, whether a particular broadly worded no-strike clause encompasses sympathy strikes, appropriate safeguards must be honored. See infra. As to the latter, however, whether such a clause may ever constitute a waiver, we find no indication in the case law that the clear and unmistakable standard precludes a finding of waiver from a broad no-strike clause. Cf. W-I Canteen Serv. v. NLRB, 606 F.2d 738, 744 (7th Cir. 1979) ("the parties may by express language indicate their intent to interpret the no-strike and arbitration clauses differently").

Local 803 next maintains that settled principles of contract interpretation are violated by the new Board rule. Local 803 relies, as did the petitioner before the D.C. Circuit in Indianapolis Power, upon cases applying the doctrine of coterminous interpretation, see Brief for Petitioner at 20 (citing Buffalo Forge, Gateway Coal and Boys Market),*fn12 and its underlying theory that "a no-strike obligation, express or implied, is the quid pro quo for an implied undertaking by the employer to submit grievance disputes to the process of arbitration." Boys Market, 398 U.S. at 248. Unlike the situation in Local 1395,*fn13 however, Local 803's argument, and respondent's counterargument, calls into question the scope and vitality of this Court's decision in Delaware Coca-Cola. Applying the doctrine of coterminous interpretation to sympathy strikes, this Court has held that a refusal to cross a picket line of a stranger union is not barred by either an implied no-strike obligation arising out of an arbitration clause, U.S. Steel, II, 548 F.2d 67, or by an express, generally worded, broad no-strike clause, Delaware Coca-Cola, 624 F.2d 1182. Thus, whether coterminous interpretation, "an idea that grew up largely in the area of implied no-strike obligations," Delaware Coca-Cola, 624 F.2d at 1185, applies in the instant case depends on the scope of Delaware Coca-Cola as it has been interpreted by this Court in Pacemaker Yacht. Accordingly, we turn now to petitioner's claim that, under the law of this Circuit, Local 803 cannot be deemed to have waived its members' statutory rights to honor a stranger picket line.

III.

A.

In Delaware Coca-Cola, this Court considered whether a sympathy strike by production and maintenance employees at the Delaware Coca-Cola Bottling Company violated an express no-strike clause in the parties' agreement and thus entitled the employer to damages under § 301 of the LMRA, 29 U.S.C. § 185 (1982). Focusing on the language of the no-strike clause,*fn14 we concluded that

a broad no-strike clause that is generally worded does not constitute a clear and unmistakable waiver of the right to a sympathy strike. Absent some contrary evidence, the notion that the no-strike clause is the quid pro quo for the arbitration clause applies with equal force where there is an express no-strike clause.

624 F.2d at 1187. Finding no extrinsic evidence indicating that the parties had intended the no-strike clause to be broader than the arbitration clause, we proceeded to examine other factors relevant to the determination whether a waiver of the right to engage in a sympathy strike was intended by the parties. First, we noted that since there was no evidence concerning the negotiation of the contract at issue, we would not consider whether evidence of bargaining history could constitute a clear and unmistakable waiver of the right to engage in a sympathy strike. Id. at 1188. Second, we looked at the structure of the contract and concluded that a no-strike clause is presumed to be "functionally related" to the arbitration clause and that, therefore, "physical separation or lack of cross-reference in the contract cannot constitute clear waiver of the right to sympathy strike." Id. Third, we determined that the law at the time the contract was made did not support a finding of clear waiver. Id. Finally, we declined to hold that evidence of the parties' conduct prior to and during the challenged strike evinced a clear and unmistakable waiver of the right to sympathy strike. Id. at 1189.

Local 803 argues that this case "is on all fours with the holding and rationale of Delaware Coca-Cola," Brief for Petitioner at 30, and that "under the standards [of that decision] . . ., unless Met[ropolitan] can point to 'contrary evidence,' it is plain that the 'broad general no-strike clause in and of itself is not a clear and unmistakable waiver of the right to sympathy strike. '" Id. at 31 (quoting Delaware Coca-Cola, 624 F.2d at 1185, 1887). The Board counters that our subsequent decision in Pacemaker Yacht, while reaffirming the coterminous interpretation doctrine relied upon in Delaware Coca-Cola, limited its application to the "'facts of each case.'" Pacemaker Yacht, 663 F.2d at 458 (citations omitted). In other words, the Board maintains that Pacemaker Yacht creates some flexibility in the application of the doctrine of coterminous interpretation to express no-strike provisions.

Pacemaker Yacht commenced, as did the instant appeal, as an unfair labor practice proceeding. There, the union charged that the company's discharge of several employees who went on strike when a health and welfare fund defaulted on claims by the employees' beneficiaries violated § 8(a)(1) of the NLRA. As in Delaware Coca-Cola, the central question in Pacemaker Yacht was whether an express, broadly worded no-strike clause barred a strike over a nonarbitrable issue. Writing for the Court in Pacemaker Yacht, Judge Seitz, who also authored this Court's decision in Delaware Coca-Cola, explained:

When limited by the principle of coterminous interpretation, a no-strike clause encompasses only arbitrable disputes. Therefore, a claim that the collective bargaining agreement waives the right to strike over a particular nonarbitrable dispute must be established clearly and unmistakably in order to rebut the presumption that the employees' waiver is no greater than the employers obligation under the arbitration clause. When, however, a no-strike clause is not limited by the arbitration clause, the employer need not introduce evidence that the parties intended the no-strike clause to prohibit precisely the type of strike that actually occurred. All that is required is that a comprehensive waiver extending beyond the arbitration clause be "clear and unmistakable."

Pacemaker Yacht, 663 F.2d at 458 (citation omitted). Proceeding from this premise, the Pacemaker Yacht Court first read the language of the collective bargaining agreement as a whole, and determined that the express, broadly worded no-strike clause did establish a clear and unmistakable intention to waive the employees' right to engage in the challenged strike. Id. As additional support, the court noted that extrinsic evidence and the state of the law at the time the agreement was made reinforced the inference, drawn from the contract language, that the parties intended to bar strikes over both arbitrable and non-arbitrable disputes. Id. at 459.

Both the union and the Board emphasize various distinctions between Pacemaker Yacht and Delaware Coca-Cola, and each party urges that, to the extent those opinions are inconsistent, they should be overruled.*fn15 Specifically, Local 803 stresses the factual similarity between this case and Delaware Coca-Cola and contends that application of the coterminous interpretation doctrine is mandated here. Local 803 further suggests that Pacemaker Yacht did not affect the holding in Delaware Coca-Cola and that, at any rate, it is inapplicable on these facts. Conversely, the Board maintains that Delaware Coca-Cola developed the coterminous interpretation doctrine independently in a § 301 proceeding and therefore may be disregarded by this Court in the instant action. Instead, it asserts that Pacemaker Yacht should be applied to these facts or Delaware Coca-Cola should be overruled.

Two primary questions are raised by the parties' contentions: first, whether Pacemaker Yacht legitimately modified our prior holding in Delaware Coca-Cola ; and second, whether we may properly disregard newly articulated Board policy and apply the principles of federal contract law previously and independently developed by this Court in a § 301 proceeding.

Under the Internal Operating Procedures of this Court, no panel is authorized to overrule a prior decision of this Court.*fn16 Particularly here, where Judge Seitz authored both opinions at issue and specifically addressed the prior decision -- Delaware Coca-Cola -- in rendering the opinion of the Court in the latter -- Pacemaker Yacht, -- there is no basis for an inference of infidelity to our IOPs. Accordingly, we decline all invitations to read Pacemaker Yacht as inconsistent with Delaware Coca-Cola.*fn17 Moreover, a close reading of both opinions establishes that Pacemaker Yacht legitimately interpreted and clarified the prior panel's opinion in Delaware Coca-Cola.

Delaware Coca-Cola recognized that, "with an express [no-strike] clause, the court can determine its meaning by looking to the language of the contract, the bargaining history, and any other relevant conduct that shows their understanding of the contract." 624 F.2d at 1185. Consistent with that general approach, the Delaware Coca-Cola Court first looked to the language of the particular clause before it*fn18 and determined that " without evidence to the contrary, it is proper to presume that the no-strike clause is not broader than the arbitration clause." Id. at 1187 (emphasis added).*fn19 Recognizing that in the field of labor relations it is necessary to go beyond mere interpretation of contractual language, see 624 F.2d at 1188, the Court then proceeded to examine other extrinsic evidence to determine whether a clear and unmistakable waiver had been made.

Similarly, in Pacemaker Yacht, this Court began with an assessment of the language of the no-strike provisions in the parties' agreement.*fn20 There we found that the language in Article X of the collective bargaining agreement did not implicate the quid pro quo rationale underlying the doctrine of coterminous interpretation; rather, under that clause "the no-strike pledge . . . was given in exchange for the Company's no-lockout pledge." 663 F.2d at 458-59. Reading the contract as a whole, we concluded that "the no-strike clause in Article IX alone bars strikes over arbitrable disputes, [whereas] Article X must be construed to bar strikes over nonarbitrable disputes . . . ." Id. at 459. Having determined that the collective bargaining agreement itself manifested an intent to waive the employees' right to strike over nonarbitrable issues, the Pacemaker Yacht Court, like the panel in Delaware Coca-Cola, also examined other extrinsic factors, including certain statements made by Union officials and the state of the law at the time the contract was made, to determine whether a clear and unmistakable waiver was effected. 663 F.2d at 459.

The standard that emerges from reading Delaware Coca-Cola in light of Pacemaker Yacht is that the applicability of the coterminous interpretation doctrine is an independent, preliminary determination, separate and distinct from the ultimate question whether an express, broadly worded no-strike clause constitutes a clear and unmistakable waiver of employees' statutory rights. In either instance -- where the doctrine of coterminous interpretation applies to raise the presumption that the no-strike clause is no broader than the arbitration clause, and where it does not apply -- the Board should consider extrinsic evidence as an integral part of its determination of the parties' intent on the issue of waiver. Accord Local 1395, 254 U.S. App. D.C. 360, 797 F.2d 1027 (D.C. Cir. 1986); International Bhd. of Electrical Workers, Local 387 v. NLRB, 788 F.2d 1412 (9th Cir. 1986).

Reading Delaware Coca-Cola in conjunction with Pacemaker Yacht also resolves the second issue raised by the parties' arguments for overruling those decisions. The Board argues that "this Court's authority to develop labor law policy within its own sphere of primary jurisdiction does not require it to reject a different but equally reasonable policy developed by the Board in the course of exercising the Board's primary jurisdiction over alleged violations of the Act." Brief for the National Labor Relations Board at 26. Under the Board's view, we owe the usual deference to the Board's newly articulated policy in Indianapolis Power if we find that that policy is reasonable.*fn21 Accordingly, the Board maintains that the applicability of Delaware Coca-Cola is limited to § 301 suits. We disagree. As noted by the D.C. Circuit in Local 1395, "[a] divergence of interpretive standards 'would inevitably exert a disruptive influence' on the voluntary collective bargaining process central to federal labor policy . . . . [Rather,] a uniform approach to the interpretation of labor agreements is necessary to a healthy system of voluntary collective bargaining." 797 F.2d at 1032. Indeed, the Board's approach would produce a dual system of law under which Board decisions could effectively undermine federal policy developed by the courts in § 301 proceedings. Moreover, this Court's consideration of Delaware Coca-Cola in Pacemaker Yacht clearly reflects our preference for uniformity in the standards governing the issue of waiver in unfair labor practice proceedings before the Board and in § 301 proceedings before the courts. Accordingly, we find no impediment to the consideration of Delaware Coca-Cola and Pacemaker Yacht in our assessment of the Board's application of its Indianapolis Power rule in the instant action. Thus, to the extent Indianapolis Power is consistent with our precedent, it will apply to these facts.

B.

The final question then is whether under the law of this Circuit the particular no-strike agreement between Local 803 and Metropolitan Edison effectively waives the employees' right to honor stranger picket lines. The operative language in the parties' contract contains an agreement by the union that "there shall be no strikes or walkouts by the Brotherhood or its members . . . ." Jt. App. at 58. Unlike the clause examined in Delaware Coca-Cola, the no-strike pledge here is clearly in exchange for the Company's pledge not to lockout union members. Accord Pacemaker Yacht, 663 F.2d at 458-59. The coterminous interpretation doctrine therefore does not operate to limit the scope of the union's no-strike obligation only to arbitrable disputes. Indeed, the doctrine here has no application at all. That tool of contract interpretation is only useful where a no-strike clause is not readily amenable to an alternative construction. Here, however, the language of the no-strike clause clearly indicates that the union's promise was not simply given in exchange for the Company's pledge to arbitrate disputes arising under the contract.

This conclusion is buttressed by the physical separation of the no-strike provision from the arbitration clause. See also United States Steel Corp. v. NLRB, 711 F.2d 772, 777-78 (holding that "in cases where an arbitration clause and an express no-strike clause are closely interwoven, it may be reasonable to infer that the parties intended the two provisions to have the same scope," but where the no-strike clause is "functionally independent" of the arbitration clause no such inference arises). While we recognize that physical separation alone is not conclusive, see Delaware Coca-Cola, 624 F.2d at 1188, we find in the structure of this contract a strong indication that the parties did not intend the no-strike and arbitration clauses to be coextensive.*fn22 For example, as found by the Board, in addition to the expression in the no-strike clause of "the desire of both parties to provide uninterrupted and continuous service to the public," Jt. App. at 58, "the contract contains other references to the need for . . . [Metropolitan Edison] to provide continuous service to its customers." Id. at 140.*fn23 The parties' repeated expression of their mutual purposes to maintain service without interruption, in conjunction with the functional independence of Article XI, is thus consistent with the view that the no-strike clause encompasses all actions, including sympathy strikes, that would frustrate that purpose. In sum, we conclude that the no-strike clause is not limited by its own terms or by any other contractual language to arbitrable disputes. Indeed, a fair reading of the collective bargaining agreement as a whole establishes an intention to waive the employees' right to engage in sympathy strikes.

Contractual language evincing an intent to bar sympathy strikes does not end our inquiry, for "the words parties use in drafting contracts are only evidence of their intent; the words are not themselves the parties' intent."*fn24 Local 1395, 797 F.2d at 1036. Intervenor Metropolitan Edison maintains, however, that extrinsic evidence also demonstrates an intention by the parties to prohibit all strikes during the term of the agreement, including sympathy strikes. Specifically, in addition to express language that clearly exchanges the union's no-strike pledge for the Company's no-lockout pledge, the physical separation of that clause from the arbitration clause, and the repeated references in the collective bargaining agreement to the desire for continuity of services, Metropolitan Edison contends that (1) the prevailing case law at the time the no-strike clause was negotiated; and (2) past arbitration awards interpreting the no-strike clause and the parties' conduct thereafter, demonstrates an intent to waive the right to sympathy strike. We agree.

The record establishes that the no-strike clause of Article XI has appeared unchanged in all of the contracts between Metropolitan Edison and the union for at least twenty-five years, see Jt. App. at 2-3, and was not discussed during the previous three contract negotiations in 1978, 1980, and 1981. See id. at 140. Local 803 responds that, at the time this provision initially was adopted, "general contractual language was not deemed to waive rights guaranteed under the Act, including the right to refuse to cross a picket line." Brief for Petitioner at 22 (emphasis in original). We simply find that Local 803's contention is not sustainable; the authority cited in support thereof is inapposite.*fn25 Indeed, prior to the Board's decision in Davis-McKee, it appears that the courts, the Board and arbitrators consistently interpreted broad no-strike provisions to waive the right of employees to engage in sympathy strikes.*fn26 See, e.g., Rockaway News, 345 U.S. at 79 (newspaper deliveryman's refusal to cross picket line not guaranteed right under broad no-strike clause); Local 12419, United Mine Workers (National Grinding Wheel Co.), 176 N.L.R.B. 628 (1969) (discipline of union members for crossing picket line was proper since the right to honor a stranger picket line was barred by the broad no-strike provision in the parties' agreement); Scranton-Spring Brook Water Serv., 29 Lab. Arb. 733 (BNA) (1958) (discharge of employee for honoring stranger picket line upheld since employee violated broad no-strike agreement); Eastern Electric, Inc., 19 Lab. Arb. 741 (BNA) (1952) (limitation on union's duty to arbitrate unrelated to broad prohibition of all strikes, including sympathy strikes); New England Master Textile Engravers Guild, 9 Lab. Arb. 199 (BNA) (1947) (sympathetic work stoppage forbidden by broad no-strike clause). The union offers no contrary decisional authority on point.

Finally, we find probative two arbitration awards where the no-strike language in the parties' contract was interpreted as encompassing a prohibition against sympathy strikes. In 1973, Arbitrator Stanley Alderfer upheld disciplinary action against ten employees for refusal to cross a picket line. See Jt. App. at 85-94. Interpreting the same no-strike clause at issue here, the arbitrator found the actions of the employees "a clear violation of Article XI," id. at 93, and further noted that "this provision is eminently clear and the Union does not claim that it is ambiguous."*fn27 Id. Indeed, the union there did not contend that the no-strike provision categorically excluded sympathy strikes, but only the that employees were entitled to honor picket lines where they reasonably believed crossing to be unsafe. We find persuasive the argument by Metropolitan Edison that "if the state of the law at that time was as the Union now contends, it is incredible that the Union did not make this argument to Arbitrator Alderfer in defending its members . . . refus[al] to cross stranger picket lines." Brief for Intervenor at 29.

The 1979 Award of Arbitrator S. Harry Galfand also interpreted Article XI as prohibiting sympathy strikes. See Jt. App. at 95-113. Arbitrator Galfand reached his conclusion "not only because Arbitrator Alderfer said so in 1973, and made it the accepted interpretation of the Contract, which, in that respect, . . . remained unchanged through subsequent negotiations[, but also,] . . . because Alderfer's interpretation was unquestionably correct." Id. at 105-06. In addition, Arbitrator Galfand observed that in a prior, similar incident, Metropolitan Edison had clearly articulated its view that sympathy strikes and refusals to cross picket lines were in violation of the union's no-strike pledge. The arbitrator stated that "it was fair and reasonable to assume that the Officers, who put their signatures on the contract which contained Article XI, and who undoubtedly knew how that Article had been interpreted in the past, would convey the Company-stated policy to their membership." Jt. App. at 107. He further noted that "if the Union Officers believed . . . that the policy was wrong, they could have used the grievance procedure to resolve the issue." Id. at 107 n.5.

Following these decisions, the union did not seek to renegotiate the terms of the contract defining its members' no-strike obligation. Nevertheless, Local 803 urges this Court to disregard both the arbitration awards and the union's inaction thereafter in assessing the intent of the parties' with respect to the scope of the no-strike clause. First, Local 803 relies on the conclusion of the ALJ in the instant action that "'the 1973 and 1979 arbitration awards cannot be viewed as extensions of the [operative] contract,'" see Brief for Petitioner at 34 (quoting Jt. App. at 124), because arbitration awards are binding on the parties only during the life of the contract. We agree with the conclusion of the ALJ. That the awards are not extensions of the parties' contract, however, does not deprive them of their evidentiary value in ascertaining the parties' intent. In Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983), the Supreme Court recognized the probative value of prior arbitration awards. Although the Court rejected the argument that past arbitration decisions, combined with union inaction thereafter, could independently constitute a clear and unmistakable waiver of a statutory right, it noted that

an arbitration decision may be relevant to establishing waiver of this statutory right when the arbitrator has stated that the bargaining agreement itself clearly and unmistakably imposes an explicit duty on [the] union . . . .

Even if the arbitration decisions do not state that there is a specific and explicit duty, they still may be relevant in determining the parties' intent.

Id. at 709 n.13. We read the awards of both arbitrators as interpreting the "bargaining agreement itself" as imposing on the union and its members the "specific duty" not to engage in sympathy strikes. It is irrelevant whether those interpretations were correct or adequately supported. What is relevant are the inferences reasonably drawn from this extrinsic evidence about the parties' understanding of the scope of Article XI. We emphasize that we do not find that the two arbitration awards "establish a pattern of decisions clear enough to convert the union's silence into binding waiver." Id. at 710. At a minimum, however, they are "relevant in determining the parties' intent." Id. at 709 n.13.

For similar reasons, we reject Local 803's straw man argument that, under Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955), deferral to the 1973 and 1979 arbitration awards is improper.*fn28 Metropolitan Edison "do[es] not urge that the Board should have deferred to these awards during its investigation of the Union's unfair labor practice charge here. Rather, [they merely maintain that] these awards represent indicia of the parties' intent and are relevant in ascertaining whether the Union has waived its statutory right to engage in sympathy strikes." Brief for Intervenor at 33.

Conclusion

In sum, we conclude that Article XI by its terms does not manifest an intent to exclude sympathy strikes from its coverage. While we recognize the desire of certain Metropolitan employees to engage in acts of solidarity with other unions, we find further that the extrinsic evidence demonstrates an intent to waive the employees' right to honor stranger picket lines. "When, . . . [as here,] a no-strike clause is not limited by the arbitration clause, . . . all that is required is that a comprehensive waiver extending beyond the arbitration clause be 'clear and unmistakable.'" Pacemaker Yacht, 663 F.2d at 458 (citations omitted). On this record, that standard has been met. Accordingly, for the foregoing reasons, the petition for review will be denied.


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