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International Brotherhood of Electrical Workers v. National Labor Relations Board

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 ...


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