American Telephone & Telegraph Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Telephone & Telegraph Co. and Robert D. Berkey. Case 27-CA-4608 August 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 28, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and a supporting brief and a brief in opposition to the General Counsel's exceptions.1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint is dismissed in its entirety. I Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Denver, Colorado, on September 21-24, 1976, based on a charge filed August 4, 1975, and complaint issued May 26, 1976, alleging that American Telephone & Telegraph Co., herein called Respondent or AT&T, violated Section 8(a)(1) and (3) of the Act by imposing disciplinary suspension on 31 employees for their refusal to cross a picket line on July 24, 1975. Upon the entire record, my observation of the witnesses, and consideration of briefs filed by General Counsel and Respondent, I make the following: I All dates and named months hereafter are in 1975, unless indicated otherwise. 231 NLRB No. 110 FINDINGS OF FACT AND RESULTANT CONCLUSION OF LAW Respondent is a New York corporation engaged at its Denver, Colorado, facility in providing long distance interstate and international telecommunications services. Such operations annually yield a gross volume of business in excess of $100,000, while causing purchase and receipt of goods and materials valued in excess of $50,000 directly from sources outside Colorado. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The case involves Respondent's Long Lines Department housed in several interconnected Denver office buildings owned by The Mountain States Telephone and Telegraph Company, herein called Mountain Bell.' This separately incorporated affiliate of AT&T leases space to Long Lines, and employees of each entity are unsegregated with respect to building entrance and general movement in and about the jointly occupied premises. Identifying street level addresses are 1425 Champa Street, 931 14th Street, and 930 15th Street, while a small public office is situated at the Champa and 14th Streets corner. The immediate vicinity is downtown metropolitan in character; the buildings occu- pying most of a square block, with a miscellany of stores, restaurants, parking lots, and offices, plus a large conven- tion center adjoining and usual vehicular traffic passing by. Reflecting collective-bargaining relationships of long duration, current contracts exist between Long Lines and Communications Workers of America (CWA) Local 8050 and between Mountain Bell and CWA Local 8412. These contracting unions are herein called Local 8050, Local 8412, or the Union(s) as context warrants. The Long Lines contract covers defined administrative, construction, oper- ations, and service employees; that of Mountain Bell recognizes the contracting Union as exclusive bargaining agent for all eligible employees over a multistate area. Both Unions are components of CWA's geographically pertinent District 8. I find they are each labor organizations within the meaning of Section 2(5) of the Act. The contract between Mountain Bell and Local 8412 contains comprehensive phraseology for successive articles headed "Grievance Procedure" and "Arbitration." As part of such language, paragraph 5.6 provides: It is agreed that neither the Company or its representatives, nor the Union, its local, representatives or members will attempt by means other than the grievance procedure, to bring about the settlement of any issue which is properly a subject for disposition through the grievance or arbitration procedures. The Long Lines/Local 8050 contract, less detailed as to such subject matter, contains paragraph 17.10 within article 17 - Arbitration, reading: If, at any time, a difference arises between the Union and the Company regarding the true intent and meaning of a provision of this Contract, or a question as to the performance of any obligation hereunder, a 556 AMERICAN TELEPHONE & TELEGRAPH CO. conference shall be held between representatives of the Union and the Company in an effort to settle said differences. If, after such conferences, the matter is not settled, either party may institute arbitration proceed- ings pursuant to the provisions of this Article to determine the issue in question, it being understood that, except where this Contract expressly provides otherwise, the right to require arbitration does not extend to any matter other than those expressly set forth in this Article. A vague rumor circulated among certain Mountain Bell management personnel late on July 23 to the effect that labor trouble might occur the next day. It separately reached both Denver Main District Plant Manager William Ford and his immediate subordinate, Customer Service Manager Gerald Byers. They did not, however, communicate until evening when Ford telephoned Byers to request he arrive next morning at the extraordinarily early time of 6 a.m. Both did so, found nothing untoward at that particular hour, and proceeded to have coffee at a nearby restaurant where they were joined by Staff Supervisor (for second stage grievance handling) Brice Hodgkins, Jr.2 Byers and Hodgkins went to their respective offices, while Ford remained at street level to observe. He saw originat- ing activity at the Champa Street entrance, as several persons started to carry homemade appearing signs. The first of the staggered employee starting times for his district was 7 a.m.3 As this hour passed he could see a high percentage of early reportees not starting the shift. Ford contacted second-level supervisors, directing them to galvanize first-level supervisors in concerted efforts to wheedle Mountain Bell employees into the building. This occurred about 7:45 a.m., just before "the general employ- ee body should start coming in to work." Ford then observed Supervisors Gayle Baker, Mel Burger, and Terri Hooker in "off-and-on" activity spanning the next 45 minutes instructing Mountain Bell employees to trust the grievance procedure for settlement of gripes, that the apparent "strike" was unsanctioned, and they should report for work. About 7:30 a.m., Ford telephoned Local 8412's Denver Chief Plant Steward Virgil Truelove, asking him to deal with the picketing situation in front of the building and clarify the problem. Truelove proceeded downtown immediately, picking up Local 8412 District 2 Ford testified that Hodgkins had been his tipster the day before, a role not now recalled by the latter. While the point is of little consequence, I believe Hodgkins was forgetful of having called Ford with such news. Ford had. additionally, conversed late on July 23 with Stan Minarsky, district steward for motorized employees of Mountain Bell. Minarsky had acknowledged that indefinite rumor was afloat, but was noncommittal concerning what he might do. It suffices to proceed with description of events proving the rumor well founded. 3 Over 2,000 employees work in the building complex. This facility is Mountain Bell's general headquarters and a large portion of such overall total is attributable to that necessary staffing. Ford's own district operations amounted to 375 employees. including 62 who were supervisory. Long Lines employees, dispersed into work stations throughout the three buildings, were predominantly assigned to the Denver Metro District for which District Operations Manager Mary Flavin was in charge. A lesser number of Long Lines personnel were also physically housed in the facility, as part of district operations and network services for outstate Colorado under appropriately titled Manager Joe Headrick. The total Long Lines complement was 156 on July 24. Organizational and operational setup of Mountain Bell's occupancy is further described, for background purposes, in The Mountain States Steward Diana Gee on the way. They arrived shortly after 8 a.m. and began exhorting Mountain Bell employees to commence work.4 Within minutes Truelove engaged picketer Mike Fields, area steward of Local 8412, who said the picketing Mountain Bell line assigners and reports clerks would not go back to work in protest of union slowness in processing grievances. Truelove spoke briefly and heatedly with Fields, telling him all "had to go by the union grievance procedure." Ford joined this discussion briefly to add he thought the strike was "illegal," but offered attention to the claimed dissatisfaction if the work stoppage would end. In the general time frame this was occurring, Local 8412 Vice President (representing traffic department employees) Karen Vannoy busied herself telling appearing Mountain Bell traffic employees they should go to work notwith- standing the unusual activity. Vannoy also prevailed on District Steward Trudy Hollis to similarly greet arriving personnel at a 14th Street entrance. Ultimately, many Mountain Bell employees reported for work; 44 did not and were administered a I-day disciplinary suspension the following day. Staggered starting times also applied to Long Lines personnel, the earliest at 7 a.m. with more due at 7:30 a.m. and the majority scheduled at 7:45 a.m.5 Confronted with the overt demonstration, numerous arriving Long Lines employees held up near their usual entrances, preferring for at least a time not to cross the picket lines. The phenomenon soon reached a dimension that exacted particular attention from both Local 8050 officers and Long Lines management. For its part the Union was beseiged with questions, the key ones of what employees should do (or not do) and why going unanswered for lack of information. On the company side, the focus was on convincing Local 8050 officials that the job action was intrinsically improper and a mere repetition of unwarrant- ed self-help in repudiation of a sister Local's contract. Communications Craftsman Robert Berkey, the Charging Party herein, arrived for his customary shift start of 7 a.m. and found a picket line at the 931 14th Street entrance with participants bearing signs worded "8412" which alluded to an "unfair" posture of Mountain Bell. Robert Berkey spoke to pickets, determined they were CWA members, and decided he would "honor this thing... and kind of stay out of the way" until more was known. He soon Telephone and Telegraph Company, 220 NLRB 516 (1975). Additionally. an unspecified number of Western Electric Company employees work at or out of this location. Western Electric, a manufacturing, selling, servicing, and installation arm of AT&T, is party to collective-bargaining agreements with CWA, including one covering certain employees in the industrial field forces of the Service Division in Colorado. See Communications Workers of America, AFL-CIO, 204 NLRB 782 (1973); CWA v. Western Electric Co.. 93 LRRM 2176 (1976). As elimination of obvious inadvertence, I correct the transcript at p. 843, I. I to show Ford's overall estimate of persons as "2 or 3 thousand." 4 At this point in time congestion had increased and the pickets, while concentrated at the Champa Street entrance, were present at, or ambulated to, the other entrances. The peak of picketing, occurring around 8 a.m. with gradual phasing down until discontinued at 10 a.m., was variously estimated by the witnesses as comprising from 6 to 20 persons. 5 As of July 24 Communications Craftsman Robert Running Bear was on experimental schedule starting 9:30 a.m., while Communications Craftsman Robert Martinez had prior permission to come in late that day because of personal business. 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moved around to the Champa Street entrance where a "bunch of people" congregated. Berkey saw Local 8050 Secretary-Treasurer Kermit Clark seeming "kind of busy," chose not to speak with him and did not see either Executive Vice President Gary Kubat or Denver District Vice President Jesse Lewis before leaving the area about 8:30 a.m. Kubat and Lewis had in fact first arrived on the scene shortly after 7:30 a.m. Neither had any prior hint of the activity under way. They assessed the situation and went to the nearby office of Local 8050 to attempt telephone contact with Local 8412. This was unsuccessful and they remained officially unsatisfied as to the character of picketing until 11 a.m., when a District 8 functionary verified it was unauthorized.6 By 8:30 a.m. Kubat learned from Long Lines Special Services Staff Supervisor Forest "Skeet" Bomar that management had established a cutoff time of 8:45 a.m. for hesitant employees to report to work. This fulfilled an earlier understanding reached between Kubat and Bomar in a conversation on the street about 8 a.m. that affected managers would urgently caucus and determine a cutoff time beyond which employees not yet in would be barred from work for the day. As intended Bomar, acting district operations manager for July 24 because the regular incumbent planned to be away, quickly solicited opinions and chose 8:45 a.m. as the time best avoiding jeopardizing operations while still according some leeway for Local 8050 officers to communicate with members yet honoring the picket lines. 7 Acting on this advice Kubat circulated among his members (by then somewhat dispersed from near the Champa Street en- trance, down the block and over into a coffeeshop at the 14th and Champa intersection), attempting to contact "all of the people on the cutoff time." In the course of doing this, Kubat stated to listeners that, "they should report to work." Lewis' course upon leaving the union office was to speak "randomly" with pickets, learning from this they were in protest of Mountain Bell's refusal to meet on 6The record refers vanously to "unauthorized," "unsanctioned," "unprotected," "illegal," "illegitimate," "unlawful," "wildcat," and "bad" in characterization of the picketing. For convenience I shall generally hereafter term it "unauthorized," an expression to be given fuller meaning in my further rationale. See United Parcel Service, Inc., 205 NLRB 991 (1973), in light of Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975). I here, also, note that contract language such as that of Mountain Bell's paragraph 5.6 is routinely entitled to Sec. 301 suit compelling arbitration, should there be actionable breach. Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957); Hanna Mining Company v. United Steelworkers of America, 464 F.2d 565 (C.A. 8, 1972); Local Union 77, International Brotherhood of Electrical Workers v. Puget Sound Power and Light Company, 506 F.2d 523 (C.A. 9, 1974), cert denied 420 U.S. 992 (1975); Carpenters District Council of Denner and Vicinity, etc. v. Brady Corporation, 513 F.2d I (C.A. 10, 1975). 7 Reference arose from certain witnesses that the ultimately understood cutoff time was expressed as I hour following an employee's scheduled start. Lewis testified he took the information this way and was later to telephone Running Bear's supervisor inquiring how his special instance was interpret- ed with "his hour not up." In contrast, Kubat testified expressly to the other meaning and Bomar plainly described picking a clock-reckoned point, primarily because this associated most directly to the usual morning surge of user communications activity. I readily credit this latter version and expressly find that 8:45 a.m. as a fixed moment in time was the managerially imposed cutoff from entry to work by honorers. r A detailed unravelling of certain ambiguous or garbled aspects of the record is necessary at this point. The transcript is accurate where Innes names Darwin Berkey and Bob Berkey as the two individuals of his organizational function who each had a scheduled starting time on July 24 of 7 a.m., and, coincidentally, the same surname. The latter (Bob Berkey) is grievances. Lewis participated in a second effort to contact Local 8412, and failing this as the cutoff time approached began responding to "numerous" questions from about 25 Long Lines employees congregated in front of 1425 Champa Street that reliable information was sparse and as an officer of Local 8050 he was "not recommending that they stay out; that if they stay out, it was a personal judgment on their part." The earliest significant tactic of Long Lines management was Denver Special Services Operations Manager Reed Innes' call about 7 a.m. to the home of Denver District Operations Manager Mary Flavin, advising her of unex- pected picketing which at the time he doubted would be honored by many employees within his department. However, immediately after the call one of Innes' nine first-line supervisors reported to him that Robert Berkey was not in to work at his regular showup time.8 Absentee- ism accelerated as scheduled starting times were reached and passed, a final consequence being that 23 of Innes' employees (from among 60) failed to report to work.9 Paralleling this in point of time, four employees of Eyre's department did not report and Martinez failed to be in at the time expected following his completion of personal business. Additionally, Tom Bock from Headrick's opera- tion did not report and Clark, regularly assigned to McCurdy's department, failed to appear for a day of continuing ETS schooling within the building. Functional coverage was successfully made by maintenance/repair deferral, by supervisors performing certain craft tasks, and by craft reassignment, coupled with the fact that local circumstances made July 24 a light day at the center. Flavin was telephoned again shortly before 8 a.m., this time by Administrative Supervisor Edward Lupe advising that "several" Long Lines employees were still in front of the building and inquiring whether they should be given a grace period. She asked that Headrick become involved to establish (and notify Local 8050 of) "a reasonable amount Charging Party for this case. Ambiguity arises where Robert Berkey's testimony is shown to name a Darwin "Berkin" and, more significantly, where the testimony of Denver 4A #4 Machine Operations Manager Gordon Eyre names a "Bob" Berkey as one of two employees in his activity that, following delay, ultimately crossed the picket line. This testimony is also relative where the name "Berkey" is listed among several persons of Eyre's department who were reported as not in to work by about 8 a.m., and were then observed to be grouped outside near the Champa Street entrance during the final three-quarter hour running of the precutoff period. It might be concluded from this that the Berkey here referred to was Darwin, except that Robert Berkey believed this person's reporting time was 7 a.m., while Eyre referred to his group having no earlier reporting time than 7:30 a.m. A further complication is that Innes' group included "H. L. (Harry) Middleswort" as a first-line supervisor (at that time), and a name presumably meaning the same person is given by Denver 4A #3 Machine Operations Manager Gerald McCurdy as one of his five immediate subordinates ("Mr. Middleswart"). Thus, some inexplicableness remains, the resolution of which is suggested by a probability of internal functional sharing (or overlapping) of craft and supervisory personnel. It is positive that Charging Party Robert Berkey, hereafter referred to only as Berkey, fully honored the picket line and was disciplined the following day for it by his immediate supervisor. This is apparent although the variable spelling "Harvey (L.) Middleswart/Middleswort" is shown. Subsumed in this clarification is the further inadvertence of Berkey's testimony being reported under the spelling "Berke." 9 The majority of these were due in at 7:45 a.m. The total of 23 includes Running Bear, whose status shall be separately treated below. I correct the transcript at p. 394, 1. 12, by changing, in reference to Running Bear (and that of non-honorer Joe Duke), the inadvertence showing their starting time as "7:30" a.m. rather than the intended 9:30 a.m. S58 AMERICAN TELEPHONE & TELEGRAPH CO. of time for people to make up their minds." In fact, as described above but unknown to Lupe or Flavin as they conversed at this point in time, Bomar was already into that very course of action. Flavin then soon left home for her office, arriving about 9 a.m. She implemented adminis- trative instructions concerning emergency work stoppages, then proceeded into day-long conferencing from which a decision emanated that evening to discipline any absent Long Lines employees with I-day suspension. She testified that the particular degree was chosen because it mirrored what Mountain Bell was doing, harmonized generally with past instances, and seemed equitably fair considering ample notice under the circumstances to Local 8050. Such discipline was visited on 28 Long Lines employees the following day, or as soon as they were available for contact, by their immediate supervisors and on Dave McKay, Martinez, and Clark by their respective operations managers. Management's explicit reason for imposing discipline was because employees "had not reported for work." The picketing activity inspired prompt media coverage. By about 7:45 a.m., the first of two local TV stations had photographer/reporter teams at work and telecasting of the event was first aired by noon. While circumstances changed rapidly, the essential scene was approximately 10 picketers, each a Mountain Bell employee, demonstrating at the Champa Street entrance with signs, some of which read: '0 Respect & be respected. The people are fighting together. Why can't we work together. Is the Union owned by Mountain Bell. Who will help us. Who can we turn to. Are we under a dictator, or do we have representation. If the people are unhappy who is to blame. Ma Bell does not follow the contract. Each of the 31 honoring Long Lines employees is placed generally within congregations near to the picketing or that formed close by as spontaneous group behavior. Lewis, referring to this group as named alleged discriminatees in paragraph V of the complaint, testified that he had seen about "everybody on that list ... at some time during that day." Kubat testified that he recognized nine named persons in the group of members he addressed about 8:30 a.m. with advice that they go in. Communications Craftsman Charles Wycoff testified credibly that shortly before the cutoff time was reached he saw 10 named Long Lines employees grouped on the sidewalk about 50 feet south of the Champa Street entrance. Bomar credibly testified that from among the disciplined 31, he could recognize 16 named persons upon deliberate viewing, and reviewing, of the TV films. (Resp. Exh. 8.) The composite total of this testimony from Kubat, Wycoff, and Bomar to It was stipulated that the handwntten words "Local 8412" were written on the backs of some signs by the pickets. This identification appeared as early as 7:30 a.m. names, only with respect to persons not appearing as witnesses, 18 different persons from the paragraph V listing. Various ones of the 18 were also named in more particularized testimony of who was seen proximate to the picketing or in the coffeeshop to which other honorers and officers of Local 8050 went. Those so named are J. Patrias, Ron Cox, Ron Hunter, Al Rios, and R. A. Biggs. Outside these 18, and referring only to persons not appearing as witnesses, the names Tom Bock, T. McGary, Del Evans, and R. Martinez remain. Bock was identified repeatedly as present on the Champa Street sidewalk in the hour before 8:45 a.m., while Eyre testified without contradiction that on July 25 Martinez admitted reaching the scene of picketing at 9 a.m. on July 24 and choosing not to cross without stated reason. This leaves McGary and Evans, neither of whom was expressly named by any witness, but both of whom were employed within Innes' group.1" I find adequate basis to infer, and do so, that these two individuals were both among the congregated Long Lines employees and exposed in the same manner to the overt happenings nearby. I make this inference because several witnesses depicted a likelihood that any employee of the Innes group not shown to have failed to report for any reason other than the picketing was present in an ordinary sensory mode. Communications Craftsman Terry Hill testified credibly that he observed generally "the ones who work together sort of [stuck] together that way." Commu- nications Craftsman McKay, a fellow member of Local 8050, recalled that upon his arrival at Champa Street between 7:30 and 8 a.m. the Long Lines employees were "located mostly in two big groups [of] ten or twelve individuals" each. [Emphasis supplied.] Eyre testified credibly that a "larger" group was around the TV filming, which he recognized as Innes' "specialists." Communications Craftsman Ron Saager (a job steward of Local 8050) arrived at the Champa Street entrance at 7:40 a.m., saw the picket line, and abided by his personal inclination not to cross it because it was not reliably shown to be invalid. Wycoff had arrived for work at 7:05 a.m., spoke first with pickets at the 931 14th Street entrance who said they were "unhappy with the conditions," proceeded around to observe "a few pickets" at the 930 15th Street entrance, and continued to his regular work location entering from Champa. There he watched "argumentative" discussion between a picketer and someone from Mountain Bell management, was quietly advised by Clark around 8 a.m. to go in to work, but spent more time inquiring of pickets who told him the activity pertained to a pending grievance. Eventually he crossed to go in work, influenced by Clark's friendly guidance and the "supposed" attention being accorded a grievance at issue. Hill arrived at the Champa Street entrance around 7:15 a.m., spoke to an apparent picket leader who stated working conditions were being protested, and then joined a group of 15-18 coworkers of Denver 4A # I Machine group who were "milling around" near the entrance about 7:25 a.m. He opined to them the strike was illegal, and most joined him in going in to work. After his arrival at Champa Street " This is apparent from the configuration of stipulated disciplinary interviews conducted on July 25 by Charles Whitehead and Wayne Humiston, both first-line supervisors under Innes. 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKay spoke with two different pickets, learning from them that their action was in protest of a particular Mountain Bell supervisor and lack of progress on at least one grievance. During this same timespan McKay was in contact with Kubat, but was otherwise waiting on "what was going to happen." He saw Eyre and Bomar, but denied that either made any verbal characterization of the strike's legitimacy. McKay harbored an understanding that such activity during mid-term of the labor contract would be unauthorized, recalled hearing a member of Mountain Bell's management saying "it was an illegal line," but chose not to cross as a personal matter. Communications Craftsman Robert Norton arrived at the 931 14th Street entrance at 7:15 a.m. and observed people standing around that area with a few carrying signs. He spoke to certain pickets, finding them "disturbed at both the company and the union." About six other Long Lines employees were also nearby at this time who were joined sporadically over the next hour or more by Clark, Kubat, and Lewis. Norton also recalled that Bomar approached at one point, saying to the grouped Long Lines employees the strike was "unsanctioned" and a specific "lock-out time" was fixed. Before this time was reached either Kubat or Lewis told their members present the strike was "probably unsanc- tioned," and the matter of whether to cross was an individual decision. Norton chose not to cross because to him necessary determination had not been "officially" reached. Communications Craftsman Gerald Domagala arrived at the 931 14th Street entrance at 7:30 a.m., also saw six pickets with signs, and approached Local 8050 officers for information. They were unsure and Domagala, believing the unexpected, spontaneous nature of the picketing signified its illegality, crossed to work. In fact, a grievance challenging the expectancy that plant reports clerks perform plant line assigner duties had been filed by Fields on April 11. A step-one meeting was held April 23, at which the grievance was denied with recorded indication it was being carried to the second step by the Union. Robert Thompson, Mountain Bell's assistant vice president for personnel labor relations, testified without contradiction that his general duties involved overseeing grievance machinery of the contract, and this matter had not reached the third step at which he is personally involved. This extensive background need be capped only by the obvious; that a small band of Mountain Bell employees sprung an unannounced demonstration on July 24 to vent their dismay over Mountain Bell's not granting the "assignment" grievance, coupled with apparent lack of pursuit by Local 8412. In the course of their activity, the pickets made no attempt to block ingress by anybody. Adjudication here turns on whether "prior knowledge" of the picket line's nature, meaningful in content and universal (or near universal) among the sympathiz- 12 In writing that concerned N.L.R.B. v. Illinois Bell Telephone Company, 189 F.2d 124 (C.A. 7. 1951), denying enforcement of 88 NLRB 1171 (1950), it was queried at the time whether the court's decision did not leave unresolved a "troublesome situation .. . where the employer is under contract with a majority representative, but the contract contains no provision concerning the grievances of some minonty group in the bargaining unit land I II If the minority cease work and/or set up a picket line, not attempting to challenge the general status of the majority union or er/honorers, is germane. General Counsel argues it is; Respondent argues it is not, but alternately that even so it was shown to have existed from total fact situation and, in any event, employees were nevertheless vulnerable to discipline because an effective waiver extinguished other- wise applicable protection. I first treat significance of contract language involved. All parties concede that paragraph 5.6 of the Mountain Bell/Local 8412 contract is a no-strike clause. The picketers acted to protest lack of resolution over a specific grievance originally filed by Fields himself on April 11. At a step-one meeting 12 days later, the dispute was readily identifiable as involving two employees within the plant department and their division of time spent in plant reports clerk duties and plant line assigner duties vis-a-vis extensive contract language on the subject of "classification of employees and changes in assignment." Minutes of that meeting, attended by both Truelove and Fields, show the grievance to have been denied with notice of the Union's appeal to step two. It reposed at that level as of July 24. Significantly, the time procedures of article 5 set forth one in which to timely initiate a grievance and one of 7 days, or any extension of time mutually agreed upon, for adjust- ment at each step. Respondent did not claim, nor the Union concede, that the grievance was withdrawn (or abandoned), but neither had it advanced to step three. Its status must be viewed as dormant at the time, a situation not uncommon along the grievance pipeline of a major bargaining relationship. For decisional purposes here, the matter was clearly within the "any issue" wording of paragraph 5.6 and improvidently dealt with by "means" other than the grievance procedure itself. This removed picketers from protection otherwise extended by the Act, and discipline meted them went unchallenged.t 2 Signifi- cantly, paragraph 5.6 bound "members" of the contracting Union, a factor expressly termed the "critical phrase" for determination in Kellogg Company, 189 NLRB 948 (1971) (there a Sec. I 1101(a)); equally influential to the enforcing court of appeals in Kellogg Conpany v. N.L R.B., 457 F.2d 519 (C.A. 6, 1972). Conversely the language of paragraph 17.10 reached by Long Lines/Local 8050 neither bound members nor expressly negated other means of "[settling] differences." It is doubtful the clause is intrinsically of no- strike implication; but unarguably sympathy striking, a matter of right conferred by law and as subject matter utterly devoid in this contract, could not be "a difference . . . regarding the true intent and meaning of a provision [or] a question as to the performance of any obligation hereunder." On this basis Respondent's reliance on Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962), is misplaced; while W. L Mead Inc., 113 NLRB 1040 (1955), is distinguishable.13 See instead Kellogg Company, supra; Newspaper Production Company, 205 NLRB 738 (1973). Waiver of Section 7 rights must be clear and unmistakable, its contract, but simply to gain favorable attention to their grievance, may the employer discharge or discipline employees who respect the picket line?" Petro, "National Labor Policy and Respect for Picket Lines," 3 Labor Law Journal 83 (1952). 13 The opinion in Lucas Flour, supra, at 106, states, "[W hat has been said is not to suggest that a no-strike agreement is to be implied beyond the area which it has been agreed will be exclusively covered by compulsory terminal arbitration." 560 AMERICAN TELEPHONE & TELEGRAPH CO. conjunctive characteristics absolutely lacking in the high- lighted contract language. Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270 (1956); Gary-Hobart Water Corpo- ration, 210 NLRB 742 (1974); Newspaper Production Co., supra. It follows, abstractly, that whatever rights obtained for Long Lines employees engaging in sympathetic strike action were unaffected by terms of their own collective- bargaining agreement. Cf. Keller-Crescent Company, 217 NLRB 685 (1975). If "prior knowledge" is germane, numerous questions need resolution. These include whether reasonable belief of Local 8050 officers was imputable to their members, with or without reference to communication between the groups, whether conduct of Long Lines management affected the standing of employees, whether constructive or actual knowledge of the nature of Mountain Bell picketing made failure to appear for work unjustified, and whether in any such event each honoring Long Lines employees was chargeable with "prior knowledge" at a point in time reasonably providing opportunity to respond before cutoff from entering for the day. I believe Respondent is correct on this basic legal issue, because essential circumstances of the eventful morning are themselves an adequate basis for decision. A contrary holding would contemplate that employees be aware of labor-management matters collater- al to their own employment, that each accurately fathom the legalities of a jarringly unique situation come upon at the verge of their workplace, that standardized behavior values apply to each from the moment sensory receptors flashed awareness of unconventionality to the moment each consciously chose retreat, and that the coupled mixture of management imperative and union equivoca- tion elevate to notice of constructively sufficient advice binding on all, and assimilable in a timespan here often as short as I hour, that failure to work was tantamount to aligning oneself with clearly unauthorized action. I decline this assessment, one tending to appeal to those expert in labor relations and sensitive to fluctuation in its rhythms. While natural to such specialists, the same degree of interest is not realistically chargeable to employees as a general matter. Even where individual occupational skills lend to typical job evaluation factors showing demonstra- ble mental acuity, ability to comprehend technical and nontechnical communication, and daily interfacing with the functionally sophisticated workings of a major commu- nications center, this is all subordinate to whether the particular personal absorption of approaching employees was on matters so wholly unrelated to work as to foster genuine surprise, bemusement, irritation, and indecisive- ness. The abruptness of this scene, its animation, the verbal confrontations, the hampered leadership of recognizable union officers are all starkly in contrast with circumstances of Pacific Telephone and Telegraph Company, 107 NLRB 1547 (1954). There an adequate pattern of conduct had emerged and a sufficient period of time passed for the responsibility of evaluation to be assigned upon union ' A statutory rarity is found in the Occupational Safety and Health Act of 1970 where each covered employee "shall comply with occupational safety and health standards and all rules. regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct." 29 U.S.C.A. § 654(b). 'r, Such as commission of assault. batter), theft. etc., in the employment setting. members; a mantle unwarranted by the peculiar, brief episode here in which each person was essentially cast by circumstances to best fend for himself. There are embellishments to the employment relation- ship as it relates to union representation, labor statute, and applicable doctrine. The object of employment is work, not a vortexed panoply of legalisms. Individual employees must make many choices within Taft-Hartley purview: To authorize union representation, to vote, to support decerti- fication/deauthorization, to grieve without union represen- tation under Section 9(a), to "ride freely" under open shop provisions, to choose a course of conduct during en- trenched primary strike picketing, etc. Each choice has significance. It comes down to whether a doctrine of worker accountability is implicit in law or otherwise present in this case. Ordinarily, such is unknown.' 4 An employee's duty to the employer is without dimension as to time and otherwise affected only by ordinary societal strictures.'5 As a contract terminable at will, no person need toil a moment beyond their personal resolve; sacrificing only, should they stop, entitlement to remunera- tion as continued moments of time would unite into measurable hours, days, weeks, or months of labor. But no sanction would impinge-no obligation to rectify lost expenditure in terms of emergency operational coverage of employer-incurred costs of ability grooming. In this context there must be a line drawn. The first amendment right of expression is so broad, if not completely untrammeled, that persons could in jest, through mischief, intermeddling, or with "stranger" causes infest the proximal access to a work place in such manner physically resembling labor picketing. Farcical results must not arise. It could not be intended that caricature equal convention; that, for example, appearance of a coached young child be tantamount to a work-age adult (albeit solitary) engaging in the basic activity of picketing. Thus, the case presents an unsuitable basis to consider extending the Pacific Telephone rationale and indeed must be decided on other grounds according to seemingly uniform view of the law. The Long Lines employees were not themselves on strike, because no dispute existed between them (or Local 8050 on their behalf) and AT&T. Patently all had work as their destination on July 24, and were persuaded only by what was at least a demonstration having at least some indicia of a labor dispute. The honorers acted purely in sympathy with Mountain Bell activists, a course of conduct basically imbued with concertedness and indirectly purposeful of one's own interest in maintaining benefits of occasional collective action designed to improve terms and conditions of employment. See Canada Dry Corporation, 154 NLRB 1763 (1965). Since derivative in nature, the rights of such actors are deemed to be those, and only those, with whom they sympathize.16 The principle is frequently treated as arising by implication from N. L R.B. v. Southern Greyhound Lines, 426 F.2d 1299 (C.A. 5, 1970), enfg. 169 NLRB 627 (1968). "I Although General Counsel did not senriously contend that union membership motivated Respondent here, nor was there evidence that Respondent had immediate practical knowledge of particular employee's union membership at the point discipline was determined. this combination of factors makes it unnecessary to weigh business justification underlying (Continued) 561 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also true the yet-unmodified decision in Pacific Telephone states, "Because they joined in the unprotected strike of the traffic employees . . . the tollmen also removed themselves from the protection of the Act." The doctrine of sympathy strikers "standing in the same shoes" as primary strikers was expressly articulated before Pacific Telephone and has been frequently adhered to thereafter. Cinch Manufacturing Corporation, 91 NLRB 371 (1950) ("same protection"); Cyril de Cordova & Bro., 91 NLRB 1121 (1950) ("except where the means used ... are otherwise illegal or improper"); N. LR.B. v. Louisville Chair Company, 385 F.2d 922 (C.A. 6, 1967) ("same statutory protection"); Newspaper Production Company v. N.L.R.B., 503 F.2d 821 (C.A. 5, 1974) ("same protection afforded the workers with whom they [sympathy strikers] sympathize"). Plainly the underlying Mountain Bell strike was unprotect- ed in this context; those who chose to compound its effect did so without protection of law.17 This applies with equal force to Running Bear and Martinez, both of whom arrived at a later time, but whose reaction differed not in principle from the main group of 29. In reaching this conclusion I find it unnecessary to treat several points briefed by Respondent, including any claimed duty of Local 8050 to effectively inform its members of the strike's character, the efficacy of steps by Long Lines management to convince Local 8050 that an unprotected strike was underway, the clear visibility of Local 8412 officials as they circulated about in overt effort to guide their own members in to work, and application of the Union's constitution and the cutoff hour and operational adjustments thereafter. Cf. N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). Additionally, the claimed "lock-out" occurring July 24 is illusory as an issue of the case, since it was purely the failure of Long Lines employees to report that necessitated their replacement for the day. 17 Literature on the subject assumes through a variety of' esoteric phrasing that honorers of a picket line at their own employer's premises act consonantly with those with whom they sympathize. Thus: The legislative history of the Wagner Act indicates that Congress intended that Act to protect the worker who refused to cross a primary picket line legitimately erected at his place of employment. [Emphasis suppliedl Carney and Florsheim, Refusals to Cross Picket Lines, 55 Cornell L. Rev. 940 (1969-70). We are referring, however las a fundamental principle of trade unionism ], only to peaceful picket lines legitimately established which proclaim a labor dispute between employer and employees over wages, hours and working conditions. [Emphasis supplied.] Thatcher and Finley. Respect for Picket Lines, 32 Neb. L. Rev. 25 (1952-53). [A n employee's principled refusal to cross a laaful picket line will be held to be protected activity under § 7. [Emphasis supplied.] Connolly and Connolly. Employers' Rights Relative to Sympathy Strikes, 14 Duq. L. Rev. 121 (1975-76). It has been established [citing the Fifth Circuit Decision in Southern Greyhoundl that an employee who refuses to cross a lawful [emphasis supplied ] picket line at his own employer's premises and remains totally bylaws to this situation with particular reference to members' duty to cross unauthorized picket lines. How- ever, a significant factual contradiction is present from the testimony, which I resolve in the interests of thoroughness. Bomar claims, and Kubat denies, that around 8 a.m. the latter verbally conceded the picketing to be unauthorized. Both witnesses are forthright and convincing, however, on this particular point I discredit Bomar in the belief that he erroneously construed remarks made under difficult circumstances. Kubat's denial is persuasively consistent with his overall course of action at that time. Respondent injected a Freedom of Information Act issue by prehearing demand for contents of General Counsel's investigative file. I reject this contention as appropriate authority holds such material to be privileged and, further, I am bound to follow Board policy in this regard which is to resist such disclosure under the exemption provided by 5 U.S.C. § 552(bX7)(A). Title Guarantee Co. v. N.L.R.B., 534 F.2d 484 (C.A. 2, 1976); Climax Molybdenum Co. v. N.LR.B., 539 F.2d 63 (C.A. 10, 1976); Maremont Corpora- tion v. N.LRB., 93 LRRM 2799 (C.A. 10, 1976). Accordingly, I render a conclusion of law that Respon- dent has not violated the Act as alleged and issue the following recommended: ORDER 18 The complaint is dismissed in its entirety. out of work is to be treated as a striker, even if he is not a member of the picketing union or part of the bargaining unit involved." Picket Line Observance: The Board and the Balance of Interests, 79 Yale L. J. 1369 (1969-70). In commenting on Pacific Telephone Company, 107 NLRB 1547 (1954), a legal note characterized the holding as one where "the Board went further and stated that an employee who refuses to cross a picket line that is unprotected by the act loses the protection of section 7, whether or not he had knowledge that the line was unprotected." [Emphasis supplied.] Respect for Picket Lines, 42 Ind. L. J. 536 (1966-67). See also, Connolly, Section 7 and Sympathy Strikes: The Respective Rights of Employers and Employees, 25 Lab. L. J. 760 (1974); Haggard, Picket Line Obserbance as a Protected Concerted Activity, 53 N. C. L. Rev. 43 (1974-75). A pragmatically succinct summarization of the entire notion involved is found in O'Connor, Respecting Picket Lines: A Union View, Seventh Annual N.Y.U. Conference on Labor, 235 at 274 (1954): Finally, although there are some difficulties with it, it is best for a person respecting a picket line to have his status determined by the character of the picket line he respects. 18 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 562