United States Steel Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Steel Corporation and Eugene Golden- feld. Case 13-CA-18198 September 24, 1982 DECISION AND ORDER Upon a charge filed on November 7, 1978, by Eugene Goldenfeld, herein called the Charging Party, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint and notice of hearing on February 28, 1980, against United States Steel Corporation, herein called Respondent. The com- plaint alleges that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by suspending the Charging Party be- cause he refused to cross a picket line and because he distributed leaflets urging other employees not to cross said picket line. Copies of the charge and the complaint and notice of hearing were duly served on Respondent and the Charging Party. On March 10, 1980, Re- spondent filed an answer to the complaint denying the commission of any unfair labor practices. On July 29, 1980, Respondent, Charging Party, and counsel for the General Counsel filed with the Board a motion to transfer proceedings to the Board and a stipulation of facts, with certain exhib- its attached. The parties agreed that the stipulation and the exhibits constitute the entire record in this case and that no oral testimony or other exhibits are necessary or desired to be introduced by any of the parties. The parties waived a hearing before an administrative law judge and the issuance of a deci- sion and recommended order by an administrative law judge, and they moved that the case be trans- ferred directly to the Board for findings of fact, conclusions of law, and a Decision and Order. On October 1, 1980, the Board issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereaf- ter, the General Counsel and Respondent filed briefs. Upon the basis of the stipulation and the briefs, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is engaged in the manufacture of steel and related products at its facility in Gary, Indiana, herein called the Gary Works. In the operation of its business, Respondent annually purchases and receives from points locat- ed outside the State of Indiana materials and sup- 264 NLRB No. 10 plies valued in excess of $50,000. It is admitted, and we find, that at all times material herein, Respond- ent is, and has been, an employer within the mean- ing of Section 2(2) of the Act, engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. Ac- cordingly, we find that it will effectuate the poli- cies of the Act for the Board to assert jurisdiction herein. II. THE I.ABOR ORGANIZATIONS INVOI.VED The parties stipulated, and we find, that Local Union No. 1014 of the United Steelworkers of America, herein called Steelworkers, and Brother- hood of Railway and Airline Clerks, herein called BRAC, are labor organizations within the meaning of Section 2(5) of the Act. 111. THI ALI.EGED UNFAIR LABOR PRACTICES A. The Stipulated Facts At all times material herein, Charging Party Eugene Goldenfeld was employed as a journeyman motor inspector by Respondent at its Gary Works facility. Goldenfeld was a member of a bargaining unit represented by Steelworkers Local 1014 and covered by a collective-bargaining agreement be- tween the Steelworkers and Respondent. The agreement contains no-strike and grievance and ar- bitration provisions. the pertinent language of which reads as follows: SECTION 4-RESPONSIBILITIES OF THE PARTIES * * * * In addition to the responsibilities that may be provided elsewhere in this Agreement, the fol- lowing shall be observed: 3. There shall be no strikes, work stoppages, or interruptions or impeding of work. No offi- cer or representative of the Union shall au- thorize, instigate, aid. or condone any such ac- tivities. No employee shall participate in any such activities. 4. The applicable procedures of the Agree- ment will be followed for the settlement of all complaints or grievances. 8. There shall be no lockouts. 9. All complaints or grievances shall be con- sidered carefully and processed promptly in 76 UNITED STATES STEEL CORPORATION accordance with the applicable procedures of this Agreement. * * SECTION 6-ADJUSTMENT OF COMPLAINTS AND GRIEVANCES B. Definitions 1. "Complaints" as used in this Agreement shall be interpreted to mean a request or com- plaint. 2. "Grievance" as used in this Agreement is limited to a complaint of an employee which involves the interpretation or application of, or compliance with, the provisions of this Agree- ment. The contract then outlines a four-step complaint and grievance procedure, with appeal from the fourth step to arbitration. "Complaints" are proc- essed through the first two steps of the procedure, but only "grievances" may proceed beyond the second step. The Elgin, Joliet and Eastern Railroad, herein called EJE, maintains tracks, offices, and switching facilities at Respondent's Gary Works facility. On September 26, 1978,' members of BRAC employed by EJE set up picket lines at several of the en- trances to the Gary Works. The picket lines were established to protest EJE's contributions to a strike insurance fund which was being used to sup- port the Norfolk and Western Railroad in resisting a strike by BRAC. There is no contention here that the BRAC picket lines at the Gary Works were unlawful. 2 Goldenfeld was scheduled to work the 7 a.m. to 3 p.m. shift on September 26. When he arrived at work that morning, Goldenfeld noticed the picket- ing and, after ascertaining its source, decided not to cross the lines and report for duty. 3 After Golden- feld telephoned his supervisor to inform him that he would not work behind the BRAC picket lines, Goldenfeld called Jack Parton, president of Steel- workers Local 1014. Goldenfeld, who is an active participant in union affairs, tried unsuccessfully to persuade Parton that the Steelworkers should honor the BRAC picket lines and encourage its members to do the same. Goldenfeld did not ask I Unless other wise indicated. all subsequent dates refer to 1978. 2 EJE and other railroads were denied Injunctive relief from the pick- eting. 3 It is unclear from the record whether there were pickets at all en- trances In any event. Goldenfeld testified at the arbitration hearing in this proceeding that. because of the picketing, he would not have go, e to work inside the plant, ceen if it would have been possible for him to enter the plant without actually crossilng a picket line. Parton for his interpretation of the no-strike clause in the collective-bargaining agreement. Later on the morning of September 26, Golden- feld prepared a leaflet concerning the picketing for distribution to Respondent's employees. The leaflet reads: Picket Lines mean: Don't Cross! VICTORY TO THE RAIL STRIKE! Union members at Gary Works were confront- ed Tuesday by picketing E J & E workers, members of the Brotherhood of Railway and Airline Clerks (BRAC). BRAC has been on strike against the Norfolk and Western (N & W) railroad for 78 days and Tuesday's nation- wide picketing of over 70 rail lines was de- signed to force the N & W to the bargaining table. At U.S. Steel Gary Works and South Works (Chicago), United Transportation Union (UTU) members on the "J" have been honoring the pickets, while scabbing foremen are trying to keep a few trains running. I will not cross these lines. Honoring a picket line is the most elementary duty of union members. The hard fight to organize unions in this country was victorious because workers refused to cross each others' strike lines. They learned that a picket line is a battle line in the class struggle and crossing that line sabotages the fight for the unrestricted right to strike. It is outrageous that while rail employees are refusing to cross, our Steelworkers Union Leadership has refused to instruct members to stay out and respect the lines. This scab policy divides the labor movement and strengthens the companies. As a Steelworker honoring the BRAC lines, I call on our union to defend all workers who may be victimized by the Com- pany for their act of solidarity with the strike. 1978 is the year of the coal miners' strike. They learned from bitter experience the im- portance of honoring picket lines. Their strike showed that militant labor solidarity-mass picketing, honoring picket lines, refusing to handle struck goods and equipment-can suc- cessfully defy no-strike restrictions and gov- ernment strikebreaking. Right now, the rail companies are getting anti- strike injunctions from the federal courts. Rail workers must not allow this government's strike-breaking attempt to intimidate them. Carry the strike through to victory! The USWA and the rest of the labor movement must come to the aid of the BRAC strike with 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whatever acts of militant labor solidarity that are necessary to win the strike. VICTORY TO THE RAIL CLERKS! DOWN WITH GOVERNMENT STRIKE- BREAKING INJUNCTIONS PICKET LINES MEAN: DON'T CROSS! Gene Goldenfeld, Coke Plant----Septem- ber 26, 1978 labor donated Goldenfeld distributed this leaflet to Respond- ent's employees at the Gary Works on both Sep- tember 26 and 27. During the morning of Septem- ber 27, Goldenfeld again called a supervisor and reported off from work upon encountering BRAC pickets at some entrances of the Gary Works plant. The supervisor informed Goldenfeld that he was suspended for 3 days-September 27, 28, and 29. The suspension notice stated that the discipline was assessed for violating plant rule 7, which provides: The following offenses may be cause for sus- pension preliminary to discharge .... 7. Absence from duty without notice to, and permission from, Superintendent or Foreman, except in case of sickness or cause beyond the employee's control of a nature that prevents his giving notice. The BRAC picketing at the Gary Works ended on the evening of September 29. Goldenfeld re- turned to work on September 30, his suspension period having been completed. On that day, how- ever, Respondent issued a second suspension to Goldenfeld, for a period of 35 days. This additional suspension resulted from Goldenfeld's distribution of the "Victory" leaflet described above, and the suspension notice identified Goldenfeld's "offense" as engaging in "activities designed to encourage other employees to violate" the no-strike provi- sions of the contract. With the support of Local 1014, Goldenfeld filed and pursued grievances regarding his suspensions. Ultimately, the grievances were presented to an ar- bitrator. At the arbitration hearing, the Union con- tended that Goldenfeld was engaged in protected concerted activity when he honored the BRAC picket lines and distributed his leaflet, and, there- fore, Respondent's disciplining of him violated the National Labor Relations Act. Respondent took the position that the broad no-strike clause of the collective-bargaining agreement constituted a waiver by the Union of Goldenfeld's right to engage in sympathy strikes or to honor a picket line. The arbitrator denied the grievances, finding that Goldenfeld's activity was not protected by the Act inasmuch as the collective-bargaining contract prohibited unit employees from engaging in sympa- thy strikes and from encouraging other employees to do so. The arbitrator reasoned that since the parties agreed that the question of whether the no- strike clause covered sympathy strikes was an arbi- trable issue, it necessarily followed that sympathy strikes were encompassed within the contractual arbitration provision, and as such were covered by the no-strike obligation. B. Contentions of the Parties Respondent contends that the Board, pursuant to the Spielberg doctrine,4 should defer to the arbitra- tion award, since the parties have stipulated that the proceedings were "fair and regular," the parties to the arbitration agreed to be bound by the arbi- ter's decision, and the arbitrator considered and ruled on the statutory issue involved. Further, Re- spondent asserts that the arbitrator's finding is to- tally consistent with the purposes and policies of the Act. Nevertheless, in the event the Board declines to defer to the arbitration award, Respondent main- tains that its suspension of Goldenfeld did not vio- late the Act because he was not engaged in pro- tected concerted activity. Respondent argues that Goldenfeld's activity was not protected since the contractual no-strike clause effectively waived his right to participate in sympathy strikes, and that his activity was not concerted inasmuch as he acted alone and on the basis of his personal beliefs about picket lines. The General Counsel contends that deferral is unwarranted because the arbitrator's finding that Goldenfeld's activity was unprotected is repugnant to the Act as it is in direct conflict with Board and court precedent on the issue of the applicability of broad no-strike clauses to sympathy strikes. On the merits, the General Counsel argues that the absence of any contractual language concern- ing sympathy strikes or evidence of bargaining his- tory supporting a waiver of the right to strike in sympathy clearly shows that the obligations under the no-strike clause do not extend to Goldenfeld's actions taken in support of the picketing BRAC members. C. Discussion and Conclusions There are, as the parties stipulated, no significant factual issues to be resolved. The threshold legal issue to be decided is whether the arbitration 4 Spielberg Manufaciuring Comnpany, 112 NLRB 1080 (1955) 78 UNITED STATES STEEL CORPORA TION award satisfies the Spielberg standard for deferral. We conclude that it does not because we find that the award is clearly repugnant to the purposes and policies of the Act. It is well established that the Board does not defer to an arbitration award where it contravenes unfair labor practice princi- ples of the Act. Alfied M. Lewis, Inc., 229 NLRB 757 (1977). The Board, however, "will not refuse to defer to an arbitrator's award simply because we would have reached a different result." Hawaiian Hauling Service, Lid., 219 NLRB 765, 766 (1975); see, e.g., Lorain Division of Koehring Co., 234 NLRB 1060 (1978). For the reasons set forth below, we find that the arbitrator's award in the in- stant case conflicts with Board law regarding con- tractual waivers of the right to strike. Accordingly, we refuse to defer to that award. The Board and the courts repeatedly have held that a waiver of the right to engage in sympathy strikes will not be inferred simply from a broad, general no-strike clause in a contract, but that such a waiver must be clear and unmistakable. 5 Where, as here, the contractual no-strike language does not expressly prohibit sympathy strikes, a waiver of the right to engage in such strikes may be established by bargaining history or other extrinsic evidence showing the parties' clear intent. The arbitrator in this case found such extrinsic evidence merely from the willingness of the parties to litigate the strike waiver issue under the arbitration provisions of the collective-bargaining agreement. There is no legal basis for this mode of analysis. A no-strike clause normally will be read to pro- hibit only those strikes which are over disputes covered by the contractual arbitration procedure. Under this principle, known as the doctrine of co- terminous application, the Board and the courts consistently have refused to find sympathy strikes to be encompassed in broad no-strike pledges on the ground that the dispute which sparks the sym- pathy strike is not arbitrable under the sympathy strikers' contract with their employer.6 The Board utilized the coterminous application doctrine in Gary-Hobart Water Corporation, 210 NLRB 742 G(ary-Hobart H'a.,r (orporarion. 210 NI.RB 742 (1974). enfd 511 F.2d 284 (7th Cir. 1975), cer denied 423 U.S. 925; Suburban Transit Corp., 218 NLRBi 1228 (1975): VI..RB. v. C K Smith & Co. Inc., 569 F2d 162 (Ist Cir 1977); International Union of Operating Engineers. Local Union 18 (IDavi--AMK,, IncL 238 NLRB 652 (1978); Delaware Coca-Cola Bottling Company. Inc'. * (;eneral reamnsers Local Union 326, 624 F.2d 1182 (3d Cir 19810); \L R.B. v. Southern California Edison Company, 646 F.2d 1352 (91h Cir. 1981) I It is ob. ious frolnl Ihc disenting opinion that Chairman Van de Water and Member Hunter disagree with this well-established Board and judicial principle Accordlugl. Ithey erroneously begin their analysis of the arbitrator's award .ilh the assumption that. based solely on the broad no-strike language of the contract. the arbitrator had "at least a reason- able basis for fitiding that the right to refuse to cross a picket line had been swaived" (On the conrlrars loard and judicial precedent hold that. without more. Ihlc arhtluatlr had no re;lsonable basis for finding a waiver (1974), to find that a broad no-strike clause similar to the one involved here only covered matters which were arbitrable under the contract, and therefore did not ban sympathy strikers. In this case, the arbitrator distinguished Gary- Hobart on the ground that the employer there had refused to arbitrate the dispute, while here-ac- cording to the arbitrator-"the parties have agreed that the dispute is arbitrable and they have thereby showed their understanding that whatever protec- tion [Goldenfeld'sj conduct might otherwise have had under the National Labor Relations Act was waived for the life of the contract and its no-strike clause." This process of logic is totally at odds with the type of analysis required by the Board's prior deci- sions construing the breadth of no-strike provisions. It is nothing more than an exercise in circular rea- soning to determine, as the arbitrator did here, that the parties' willingness to arbitrate the issue of whether sympathy strikes are covered by the no- strike clause ineluctably leads to the conclusion that the no-strike language was applicable to the sympathy strike in question because the issue was subject to the arbitration clause. Thus, rather than undertaking the correct ap- proach of attempting to discern whether there was any evidence indicating a waiver of the right to engage in sympathy strikes, the arbitrator focused on the arbitrability of the scope of the no-strike provision. In this and in most cases involving as- serted sympathy strike waivers, the dispute as to the meaning of the no-strike clause presents an ar- bitrable issue. That fact. however, does not auto- matically bring sympathy strikes within the ambit of such clauses. The arbitrator framed the question presented to him in such a manner as to make only one answer possible, and therefore did not, in fact, resolve the issue before him. It is thus apparent that the arbitrator did not apply the "clear and unmistakable waiver" test, and, contrary to the Board's clear holding that no- strike language is not sufficient, per se, to establish a waiver, he relied solely on such language as the basis for finding a waiver.7 Since we find the arbi- trator's mode of analysis unacceptable, we reject the result he reached by way of that invalid rea- soning. Accordingly, as the arbitrator's award is based on a standard which conflicts with Board law, the award is clearly repugnant to the policies 7 Thus, in his dclision. the ,trhilrator tIlled that the no-strike clause was "plainly worded and sv*ceepilg in scope," al thai the collective-bar- gaining agreement appeared "on Ie ttlrfacil and in straight-forward lan- guage" to prohibit C tldenfeld frl tii rlefusinig to w rk hec all.e of the pres- ence of a pic kct ine 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and purposes of the Act and is not a proper basis for deferral under Spielberg. 8 Support for our refusal to defer here is found in the recent decision of the U.S. Court of Appeals for the Tenth Circuit in N.L.R.B. v. Gould, Inc., Switchgear Division, 638 F.2d 159 (1980). There, in affirming the Board's refusal to defer, the court stated: The employees' statutory right to strike lies "at the core" of the Congressional scheme for promoting collective bargaining. .... The Board need not defer to an arbitral decision which is inconsistent with the policies underly- ing section 7, and which is thereby repugnant to the purposes and policies of the Act.... In particular, where an arbitrator's award clearly ignores a long line of Board and court precedent, the Board's refusal to defer to the award under Spielberg is proper.... In this case, the arbitrator assumed that a general no- strike clause ipso facto effected a waiver of the right to engage in sympathy strikes, despite the lack of any extrinsic evidence to support that conclusion. Under these circumstances, we conclude the Board properly refused to honor the award as repugnant to the purposes and policies of the Act.9 Likewise, the arbitration award in the instant case does not comport with our unfair labor practice decisions, and therefore is not entitled to deference. Chairman Van de Water and Member Hunter, in substance, if not in so many words, take the posi- tion that, as long as there exists some conceivable mode of analysis by which the arbitrator's award could be justified, they do not care what analysis was, in fact, used by the arbitrator. Despite their assertion that there is a "reasonable basis" for the award here, our dissenting colleagues do not point to anything which indicates that the arbitrator reached his conclusion by any means other than the circular reasoning discussed above. Instead, they focus entirely on the ultimate award in finding the arbitrator's analysis acceptable. Contrary to our dissenting colleagues' assertion, we are not refusing to defer because we would interpret the contract differently from the arbitrator. We refuse to defer because we know from the arbitrator's reasoning that he applied the relevant legal precedent to the facts presented to him in a manner that is repug- nant to the purposes and policies of the Act. By fo- cusing entirely on the ultimate award, the Chair- R8 he Union Fork aond Hloe Company, 241 NLRB 907 (1979), Brewery Delivery Employees Local Union 46 (Pori Distributing Corp.), 236 NLRB 1175 (1978) 9 Gould, Inc., supra at 167 man and Member Hunter would find that the mere existence of the award is sufficient reason to defer. Their protestations to the contrary notwithstand- ing, our colleagues' willingness to defer here indi- cates that they would defer to any arbitration award, provided that there is some abstract set of circumstances under which the Board could arrive at the same result. Unlike our dissenting colleagues, we cannot ignore the means employed in reaching an arbitration award. To do so would improperly abdicate our statutory responsibility to uphold the rights accorded employees by the Act. Indeed, were we to accept our colleagues' view that we should defer to the award because there may or could have been some tenable ground on which to reach the arbitrator's result, even where the ground actually used is plainly repugnant to the Act, we would negate Spielberg itself. The Supreme Court has held that employees' statutory rights are not to be so subordinated to contractual arbitration proce- dures. Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981); Alexander v. Gardner- Denver Co., 415 U.S. 36 (1974). Although Barren- tine and Alexander involve statutory rights arising under the Fair Labor Standards Act and Title VII of the Civil Rights Act of 1964, at the very least they stand for the proposition that the mere fact that a contractual issue has been resolved in arbi- tration does not end the inquiry into related statu- tory issues by the authority charged with enforce- ment of that statute. Turning to the merits, we perceive no express contractual language or evidence of bargaining his- tory to support a waiver of Goldenfeld's right to engage in sympathy strikes. The contract does not refer to sympathy strikes, nor does it contain a picket line clause. There is no evidence that the parties ever discussed sympathy strikes during bar- gaining, and the parties' history of implementation of the grievance-arbitration provisions does not show a waiver of the employees' right to strike in sympathy. Similarly, we discern no waiver of Gol- denfeld's right to distribute leaflets regarding the BRAC picketing. The relevant contractual lan- guage prohibits only officers and representatives of the Union-not employees-from authorizing, insti- gating, aiding, or condoning strikes and work stop- pages. Goldenfeld was neither an officer nor a rep- resentative of the Union at the time he distributed his leaflets. In any event, since the sympathy strike is not encompassed by the contractual prohibitions, the leafletting concerning that strike also is not covered. It is well settled that leaflets urging em- 80 UNITI-It) STAIFES STEE[ CORP()RAT1ION ployees to engage in protected activities are them- selves protected. n We also find no merit in Respondent's argument that Goldenfeld was not engaged in concerted ac- tivity. Goldenfeld was acting in concert with the employees he was seeking to have join him in hon- oring the picket lines when he refused to cross those lines and when he distributed his leaflet in support of the striking workers. In sum, we conclude that Goldenfeld was en- gaged in protected concerted activity when he honored the BRAC picket lines and distributed his leaflet, and that the no-strike provisions of the col- lective-bargaining agreement did not waive his right to engage in those activities. II Accordingly, we find that Respondent's suspension of Golden- feld violated Section 8(a)(l) of the Act. Till, REMNEI)EY Having found that Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Accordingly, we shall order Respondent to make Eugene Goldenfeld whole for any loss of earnings or employment benefits that he may have suffered as a result of Respondent's unlawful suspensions of him which were issued on September 27 and 30, 1978. Backpay shall be computed with interest thereon in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NL.RB 651 (1977).12 In addition, Respondent shall be ordered to ex- punge from its files any reference to said suspen- sions, and to notify Goldenfeld that this has been done and that evidence of these unlawful suspen- sions will not be used as a basis for future discipline against him. If Goldenfeld has been counseled or assessed with any other form of disciplinary action as a result of having been unlawfully suspended, "' Dri, & A'rlv fit ,,fltftult l ritr.,'t 1,C., 221 Nl RB 309 (1975), enid 544 F2d 321 (7til Cir 1["7h) v We likcv sic ricjkct R.ol'pndcli'- relaited conttenlion Ihat (Goldenfeld was lnol engalil in protecred l is iIn, lla ituch as the collective-bargain- ig agreencilt d ai cd hiiis Iight It gOi IO the Board The contractual lan- guage relied oi k? R l lid. nt it sitpprrti of this assertion reads as fol- lows: "liil prosiliollr f thl -Xgrecicmtllnt coilinusle the sole procedure for the preiessing :Illd setlemelt of any claim by an employee or the Union of a viholanoll hb, the Company of this Agreement " It is well es- tablished thai the Board sill nlt apply the Spielberg deferral doctrine to issues invoilming ciplo.ce'.' access Io she Board's processes as protected by Sec. 8a1)(4) tf' the Act .tinaionl .4siirailcs. Inc., 227 NLRB 1721 (1977). Morco'. er, ithe , ;aivr l anguage in question clcarl) does ntit pur- port to coner statlutors' clainls. ol I) contractual oles. 12 See, gcnerally. i Pi lnumhtilr & l.aloting Co. 138 NLRB 716 (1962). Member Jenkins ssoulld cormpile the interest due on backpay in accord- ance with his partial diststit ill O/lnptC M.eddical Corporation. 250 NL RI 146 (19'80) Respondent shall restore him to the status he other- wise would have occupied. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, United States Steel Corporation, Gary, Indiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Suspending, or otherwise discriminating against, employees because they engage in their statutory right to refuse to cross picket lines estab- lished by labor organizations other than their col- lective-bargaining representative. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Make Eugene Goldenfeld whole for any loss of earnings or employment benefits he may have suffered as a result of its discrimination against him, in the manner prescribed in the section of this De- cision entitled "The Remedy." (b) Expunge from its files any reference to the disciplinary suspensions issued to Goldenfeld on September 27 and 30, 1978, and notify him in vwrit- ing that this has been done and that evidence of these unlawful suspensions will not be used as a basis for future discipline against him. (c) Preserve and, upon request. make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Gary, Indiana, copies of the attached notice marked "Appendix."'" Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. 1:l II the cs-ent that this Order is enforced hb a Judgment of a United Statcs Court of Appeals. the olrd, itn the notice reading "Posted by Order of tht Nat, ial I L abr ReKlatiolns B, itrd" shall read "Po,ted Pursu- ant to a Jutidgmilt of Iltl Inlnlcd Stilacs C~ourt il' Appeals Enfiercing an Order of the Naltiond I tabor R itioils Boardi DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 9, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. CHAIRMAN VAN DE WATER and MEMBER HUNTER, dissenting: Contrary to the majority decision, we would defer to the arbitration award upholding the sus- pensions of employee Eugene Goldenfeld. Respondent suspended Goldenfeld for refusing to cross a picket line at Respondent's plant established by employees of the Elgin, Joliet, and Eastern Rail- road, a subsidiary of Respondent, to support a strike of the Brotherhood of Railway and Airline Clerks against the Norfolk and Western Railroad. Respondent further suspended Goldenfeld for dis- tributing leaflets to Respondent's employees in sup- port of the picket line. Pursuant to the provisions of the collective-bargaining agreement, the griev- ances over Goldenfeld's suspensions were heard before an arbitrator for the board of arbitration. In due course, the arbitrator made his recommended findings and award which were approved by the chairman of the board of arbitrators. The collective-bargaining agreement between Respondent and the United Steelworkers of Amer- ica contains the following no-strike provision cited by the arbitrator: There shall be no strikes, work stoppages, or interruption or impeding of work. No officer or representative of the Union shall authorize, instigate, aid, or condone any such activities. No employee shall participate in any such ac- tivities. The arbitrator found that "the contract appears to prohibit the conduct in which the Grievant was en- gaged when he refused to work because of the presence of the picket line" and concluded that "since the Grievant's otherwise protected right to observe the picket lines established on behalf of the Norfolk Western strikers was waived by his bar- gaining agent when it executed this Agreement, with its broad no strike and arbitration clauses, his conduct was a work stoppage which breached Sec- tion 4 of the Agreement." Based in part on the lan- guage of the leaflet handed out by Goldenfeld, in- cluding, "Picket Lines Mean: Don't Cross!" the ar- bitrator found that Goldenfeld intended to induce fellow employees to honor the picket lines. Ac- cordingly, the arbitrator found that the leaflet was tantamount to an "impeding of work" in violation of the no-strike provision and concluded, "The protection which might otherwise be applicable to such activity under the National Labor Relations Act was waived when the Union agreed to the no strike provisions of the Agreement, and the Corn- pany was justified in disciplining him for his ac- tions." The majority declined to defer because in their view the award "contravenes unfair labor practice principles of the Act," because "the arbitrator's mode of analysis [is] unacceptable" and because the award "does not comport with our unfair labor practice decisions." The majority decision, in our opinion, applies an improper deferral standard rather than the "clearly repugnant standard" of Spielberg Manufacturing Company, 112 NLRB 1080 (1955), which we would apply. See our dissents in Professional Porter & Window Cleaning, Co., Division of Propoco, Inc., 263 NLRB 136 (1982). Although, as stated by the majority, the Board does not infer that a general no-strike provision waives the right of employees to honor third-party picket lines, 14 the question of waiver ultimately turns on the interpretation of the contract. From the broad language of the no-strike provision herein, the arbitrator had at least a reasonable basis for finding that the right to refuse to cross a picket line had been waived. That the majority would in- terpret the contract differently from the arbitrator is not grounds under Spielberg for refusing to defer. Indeed, it is the arbitrator's interpretation that Re- spondent and the Union have bargained for and that Goldenfeld, by filing a grievance, has request- ed. For the foregoing reasons, we would find that the arbitrator had an arguable basis for finding waiver and, accordingly, that Goldenfeld's honor- ing the picket line was arguably unprotected. Simi- larly, Goldenfeld's leafletting to induce other em- ployees to honor the picket line was arguably un- protected. As the arbitrator's award is susceptible to a permissible interpretation, it cannot, in our opinion, be characterized as clearly repugnant to the purposes and policies of the Act.'5 According- ly, we would defer to the grievance arbitration award and dismiss the complaint in its entirety. 14 A position with which we do not agree. See our dissent in Stevens Ready-Mix Concrete Corp., 263 NLRB 1280 (1982), and Member Hunter's dissent in Consolidation Coal Company, 263 NLRB 1306 (1982). Member Hunter does not find the arbitrator's decision here clearly repugnant for the reasons stated in his dissent in Stevens, supra. 'a Contrary to the majority, we find that the arbitration award, when examined as a whole, gives a reasonable basis for the arbitrator's finding that the no-strike provision was intended by the parties to prohibit em- ployees from honoring third-party picket lines. We would defer where, as here, the award is subject to a permissible interpretation, because in our view this is the standard established by Spielberg. 82 UNITED STATES STEEL CORPORATION APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend, or otherwise dis- criminate against, employees because they engage in their statutory right to refuse to cross picket lines established by labor organi- zations other than their collective-bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL make Eugene Goldenfeld whole for any loss of earnings or employment bene- fits which he may have suffered as a result of the disciplinary suspensions issued to him on September 27 and 30, 1978, because he refused to cross picket lines at our Gary Works facili- ty and distributed leaflets urging other em- ployees to honor said picket lines, together with interest. WE WILL expunge from our files any refer- ence to the disciplinary suspensions of Eugene Goldenfeld issued on September 27 and 30, 1978, and WE WILL notify him that this has been done and that evidence of these unlawful actions will not be used as a basis for future discipline against him. UNITED STATES STEEL CORPORATION 83 I