Inland Steel Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inland Steel Company and Keith Anwar. Case 13- CA-18759 September 24, 1982 DECISION AND ORDER On January 29, 1982, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, Respondent and the Gener- al Counsel filed exceptions and supporting briefs. In addition, Respondent filed an answering brief to the General Counsel's exceptions, and the Charg- ing Party and the General Counsel filed answering briefs to Respondent's exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. We agree with the Administrative Law Judge that deference to an arbitration award upholding Respondent's discharge of alleged discriminatee Keith Anwar is not warranted under Spielberg Manufacturing Company, 112 NLRB 1080 (1955), because the award was clearly repugnant to the purposes and policies of the Act. The arbitrator found that the general broad no-strike language in the collective-bargaining agreement applicable to Anwar constituted an effective waiver of his right to engage in sympathy strikes. Consequently, he concluded that Respondent had just cause to dis- charge Anwar when he refused on and after May 3, 1979, to cross a picket line established by em- ployees of another company on Respondent's premises. In interpreting the contract, the arbitrator re- ferred both to the face of the no-strike provisions and to collateral evidence of the parties' conduct during their 35 years of coverage by those provi- sions. He based his waiver finding on three factors: (1) Until Anwar's actions, no employee-member of the Union had ever refused to cross a picket line established by employees of another company per- forming services on Respondent's premises; (2) the Union had never contended that it had the right to engage in sympathy strikes; and (3) the Union had never urged its members to engage in sympathy strikes on numerous occasions when employees of other companies legally picketed their employers on Respondent's premises. During his analysis of the waiver issue, the arbi- trator opined that "very few of the [Board and ju- dicial] decisions cited by the parties in support of their respective positions would have direct appli- cability to the facts in this case." By going beyond the face of general broad no-strike provisions to 264 NLRB No. 15 find a sympathy strike waiver based on extrinsic evidence of bargaining history, however, the arbi- trator in effect engaged in a mode of analysis which was not clearly repugnant to the purposes and policies of the Act as interpreted by the cases which the parties had cited. See Gary-Hobart Water Corporation, 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423 U.S. 925 (1975); Keller-Crescent Co., a Division of Mosler, 217 NLRB 685 (1975), enforcement denied 538 F.2d 1291 (7th Cir. 1976); International Union of Operat- ing Engineers, Local 18 (Davis-McKee, Inc.), 238 NLRB 652 (1978). On the other hand, the totality of bargaining his- tory evidence relied on by the arbitrator was, as a matter of law, insufficient to warrant finding a waiver of a statutory right. In particular, it is well established that past failure by a union to assert a statutory right does not stop subsequent assertion of that right. E.g., Peerless Publications, Inc. (Potts- town Mercury), 231 NLRB 244, 258 (1977), enforce- ment denied on other grounds 636 F.2d 550 (D.C. Cir. 1980). Because the arbitrator did not follow this clear precedent interpreting the Act, we find that the arbitrator's interpretation of the parties' no-strike agreement was palpably wrong. Accord- ingly, we adopt the Administrative Law Judge's finding that deferral is inappropriate because the arbitrator's award is clearly repugnant to the Act.' For reasons set forth fully in the Administrative Law Judge's Decision, we also adopt her finding that Respondent violated Section 8(a)(1) of the Act when it discharged Keith Anwar for engaging in a sympathy strike. As part of the remedy for Anwar's unlawful dis- charge, the Administrative Law Judge recommend- ed that Respondent make him whole for any loss of earnings he may have suffered from the date the Apex Baler strike terminated on June 18, 1979, to the date that reinstatement is offered. This remedy does not accord with the Board's rule that a dis- charged striker is entitled to backpay from the date of discharge until the date the discharged striker is offered reinstatement. See Abilities and Goodwill, Inc., 241 NLRB 27 (1979). Accordingly, Respond- ent shall be required to make Anwar whole for any Chairman Van de Water and Member Hunter vwould defer solely on the basis of the broad language of the no-strike clause. even though Board and judicial precedent hold--and the arbitrator recognized-that such language, standing alone, is insufficient to find a sympathy strike waiver. See United States Sreel Corporatrion. 264 NLRB No 10 (1982), at fn. 5 and accompanying text. This position belies our dissenting col- leagues' assertion that deferral is warranted because the arbitrator simply was engaged in resolving factual issues In truth, the Chairman and Member Hunter would find a waiver regardless of the extrinsic facts of any particular case, merely because there may he some abstract set of facts under which a waiver could be found. This sie'v of the law is itself clearly repugnant to the purposes and policies of the Act 84 INLAND STEEL COMPANY loss of earnings he may have suffered from the date of the discharge to the date that reinstatement is of- fered, with backpay and interest thereon to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Inland Steel Company, East Chicago, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraphs 2(a) and (b), and reletter subsequent paragraphs according- ly: "(a) Offer Keith Anwar full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights and privileges and make him whole with interest for any loss of earnings he may have suffered from the date of the discharge to the date that reinstatement is offered. "(b) Expunge from its files any references to the suspension and subsequent discharge of Keith Anwar on May 18, 1979, and notify him in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel actions against him." 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN VAN DE WATER and MEMBER HUNTER, dissenting: Contrary to the majority decision, we would defer to the arbitration award upholding the dis- charge of employee Keith Anwar. Respondent suspended and discharged Anwar for refusing to cross a picket line established by employees of Apex Baler, one of numerous con- tractors which lease space at the Company's Indi- ana Harbor Works. Pursuant to the provisions of the collective-bargaining agreement, the grievance over Anwar's discharge was heard before an arbi- trator. In due course, the arbitrator issued his award upholding the discharge. The collective-bargaining agreement between Respondent and Local 1010 of the United Steel- 2 In accordance with his dissent inl Olvnipic .fIdircal Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the fiormula set forth therein workers of America contains the following no- strike provision cited by the arbitrator:3 The Union agrees that neither it nor its offi- cers, agents, representatives, or members will authorize, instigate, cause, aid, sanction or take part in any strike, work stoppage, sit-down, stay-in, slowdown, or other interruption or im- peding of work. The arbitrator found that "the language of the Contract, supported by the uniform and consistent application thereof by the parties themselves, con- stitutes an effective bar to an Inland Steel employ- ee's right to engage in a sympathy strike and to withhold his services to the Company." Accord- ingly, he concluded that "the Company had the right to apply its uniform and consistent practice of terminating employees who are absent from work for reasons that have never been considered to be acceptable." The majority declined to defer because in their view "the totality of bargaining history evidence relied on by the arbitrator was, as a matter of law, insufficient to warrant finding a waiver of a statu- tory right." They noted, in this regard, that the ar- bitrator did not follow precedent because he failed to rely on the "well established [principle] that past failure by a union to assert a statutory right does not stop subsequent assertion of that right." Thus, they concluded that "[b]ecause the arbitrator did not follow this clear precedent interpreting the Act . . . the arbitrator's interpretation of the parties' no-strike agreement was palpably wrong." The ma- jority's decision, in our opinion, applies an improp- er deferral standard rather than the "clearly repug- nant standard" of Spielberg Manufacturing Compa- ny, 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). Notwithstanding that the Board does not infer that a general no-strike provision waives the right of employees to honor third-party picket lines,4 the question of waiver is one which ultimately turns on the interpretation of the contract. From the broad I The collective-bargaining agreement contains the following no-strike reference as well: It is th, desire of the parties . to provide procedure for the prompt and equitable adjustment of grievances arising hereunder to the end that there shall be no interruptions or impeding of work, work stoppages, slow downs, strikes, lockouts or other interferences with production and maintenance of the company's plant during the term hereof 4 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 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD language of the no-strike provision herein,5 the ar- bitrator 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 interpret the contract differently than 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 Anwar, by filing a grievance, has requested. Thus, it is not the Board's role to second-guess the arbitrator, as our colleagues elect to do by criticiz- ing the arbitrator's analysis. For the foregoing reasons, we would find that the arbitrator had an arguable basis for finding waiver and, accordingly, that Anwar's honoring the picket line was arguably unprotected. As the arbitrator's award is susceptible to a permissible in- terpretation, it cannot, in our opinion, be character- ized as clearly repugnant to the purposes and poli- cies of the Act. Accordingly, we would defer to the grievance arbitration award and dismiss the complaint in its entirety. s The arbitrator noted that the same no-strike provision has appeared in collective-bargaining agreements between the parties since 1947. In the past 35 years, he observed, neither the Union nor individual members have ever asserted the right to engage in a sympathy strike, APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NOT discharge, 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 the rights guaranteed them in Section 7 of the Act. WE WILL offer Keith Anwar reinstatement to his former position or, if such position no longer exists, to a substantially equivalent posi- tion, and make him whole for any loss of earn- ings he may have suffered by giving him back- pay with interest from the date that Keith Anwar was discharged. WE WILL expunge from our files any refer- ence to the suspension and subsequent dis- charge of Keith Anwar on May 18, 1979, and WE WILL notify him in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel actions against him. INLAND STEEL COMPANY DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge: Pursuant to a charge filed on May 29, 1979, a complaint issued on May 5, 1981, alleging that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (hereinafter the Act), by terminating the Charging Party because of his refusal to cross a picket line established by a stranger union. Respondent's timely answer denies any wrongdoing and affirmatively pleads that the Board should defer to an arbitrator's decision upholding the dis- charge. The case was heard before me on November 16 and 17, 1981, in Chicago, Illinois, at which time all parties were represented and were afforded full opportunity to be heard and to present evidence and argument. Upon the entire record, including my observation of the wit- nesses' demeanor, and after giving due consideration to the briefs, I enter the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, has maintained at all material times herein an office and place of business at 3210 Watling Street, East Chicago, Indiana (herein- after called Indiana Harbor Works), where it manufac- tures steel and related products. During the past calendar year a representative period, Respondent in the course and conduct of its business operations purchased and re- ceived at that facility materials and supplies valued in excess of $50,000 which goods were shipped to said fa- cility directly from points outside the State of Indiana. The complaint alleges, the Respondent concedes, and I, therefore, find that Respondent is now, and has been at all material times herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local Unions 8180 and 1010, United Steelworkers of America, are, and have been at all material times herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent employs approximately 19,000 workers who are assigned to one of four plants at its Indiana Harbor Works.' For many years, the production and maintenance employees have been represented by Local I The facility is comprised of separate but adjacent buildings designat- ed Plants 1, 2. 3, and 4. 86 INLAND STEEL COMPANY 1010 of the United Steelworkers while a small number of masons who work throughout the facility are represent- ed by Bricklayers Local 6 of Indiana. In addition to Re- spondent's own work force, 30 or more contractors also maintain crews regularly assigned to the Indiana Harbor Works. One such contractor, Apex Baler, 2 which leases space in Plant 2, compresses Inland's scrap steel into bales for resale to Respondent. Apex Baler's employees are represented by a separate Steelworkers local, No. 8180. On May 1, at the expiration of their collective-bar- gaining agreement, Apex Baler employees struck in sup- port of their demands for a new contract and established pickets at two locations. B. The Location of Picketing Picketing by employees of contractors at the Inland Steel facility is not an uncommon phenomenon, occur- ring on an average of two or three times a year. Wit- nesses for both Respondent and the General Counsel agreed that the two favored locations for picketing were near each end of approaches to an overpass and clover- leat leading to the Plant 2 entrance. One such site was at Commonwealth Avenue, the other near an intersection of Michigan and Guthrie approximately 1.2 miles from Plant 2, and four to five blocks from Plant I. These were the points at uwhich the Apex Baler pickets were sta- tioned in 1979.3 Richard Bogash, president of Local 8180, testified that, at the outset of an Apex Baler strike in 1975, Inland Steel security guards ordered the pickets to leave their initial positions outside Plant 2. Picket lines then were estab- lished at Commonwealth Avenue and in the area of Michigan and Guthrie where they experienced no fur- ther harassment from the guards. Four years later, the Apex Baler pickets returned to these same locations. James Tewell, an Inland employee and member of Bricklayers l.ocl 6 of Indiana, also testified that, during a 1978 strike by his union, pickets were stationed at the same sites used by I.ocal 8180. He, too, related that plant security guards drove the pickets away from the gate to Plant '2. They then shifted to Aldis Avenue, a public thoroughfare approximately 50 to 75 yards away, which lies beneath the overpass.4 When guards again ordered them to move, they finally took up posts at Common- wealth and Michigan Avenue. Tewell acknowledged that he learned Aldis Avenue was public property but not until he complained to the police about the guards' ha- rassment on the final morning of the strike. In 1972, ac- cording to Tewell, Inland guards had specifically direct- ed them to move from the Plant 2 entrance to the Com- monwealth and Michigan Avenue location. Subsequent to An\var's discharge. Teamsters, whose members work 2 The contractor's correct title is Apex Steel and Supply Compan). but is comrinminl\ referred to as Apex Baler ' Although emnployees working for such contractors are required to park their cars at a designated lot and then are drie.en by bus to the Harbor Works, no elidence "as adduced that picketing exer occurred at the entrance to that lot. 4 Indiana Harbor Works is situated o(n :i ast tract of land, bordered hi city and state roads Aldkh AS.,tllle. ti road which bisects the property, ail, dedicated by Inland to public use in 1956 to 1957 Respondent called upon its chief enginetr to sort out the prisate frontm lie public sectors im and around Inland's propertr in Plant 1, also posted pickets at the Michigan and Guth- rie area. C. The Charging Party's Concerted Activity The events leading to Keith Anwar's discharge, stem- ming from his refusal to cross the Apex Baler picket line, are largely undisputed. Anwar, a member of Local 1010, was hired by Respondent in 1978 and assigned to Plant I as an apprentice vocational mechanic. As he approached the facility at the start of his regular workshift on May 3, 1979, he observed pickets at Michigan and Guthrie. On speaking with them, he learned that they were on strike against Apex Baler which was housed in Plant 2. He also obtained a leaflet from them which announced that the Apex Baler strike was for better wages, a cost-of-living increase, and insurance, and that the strikers "would ap- preciate Local 1010 support." Acting upon his belief in labor solidarity, Anwar telephoned his supervisor and advised him that he would not report to work as he in- tended to honor the Apex Baler picket line. Respondent notified Anwar by letter dated May 4 that the reason offered for his absence was unacceptable and that if he failed to report to work within 5 days he would be suspended prior to discharge. Anwar did not return and continued to observe the Apex Baler picket line. Consequently, he was suspended on May 10. By letter of May 14, Anwar requested a hearing but asked that it be postponed until the strike had concluded or, al- ternatively, that it be held at a neutral location away from Inland Steel's premises so that he would not be compelled to cross the Apex Baler picket line. 5 Denying his request, the suspension hearing was conducted on May 17 at Respondent's labor relations offices located in Plant I with two union officials attending the meeting on Anwar's behalf. The Company adhered to its position that his absence was unjustified and discharged him on May 18. Throughout each step of the grievance procedure, the Company maintained that Anwar's sympathy strike was prohibited by a no-strike provision in the collective-bar- gaining agreement. Local 1010, on the other hand, insist- ed that Anwar's conduct was lawful. On May 29, 1979, Anwar filed the instant charge with the Board's Region 13. The Regional Director deferred processing the matter pending arbitration in accordance with the principles set forth in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). At the subsequent arbitration hearing, this issue was squarely presented: Did Anwar's honoring a stranger local's picket line violate the no-strike provision of the collective-bargaining agreement between Inland Steel and Local 1010? In upholding Anwar's discharge, the ar- bitrator reasoned that, since the no-strike language had appeared in the parties' collective-bargaining agreements for some 35 years, The parties have, by their conduct, construed the provisions in a manner which would constitute a waiver of an employee's otherwise protected right a The Apex Baler strike concluded oit June 18. 1979. 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the National Labor Relations Act to refuse to cross a picket line.... The conduct upon which the arbitrator relied to find support for a waiver was: . . .that within the knowledge of the Company, no Inland Steel employee who is a member of Local 1010 . . . has ever refused to report for work be- cause he did not wish to cross a picket line estab- lished by striking employees of a company that per- formed services on Inland Steel premises.... [T]he Union has never raised a contention that it should be permitted (by virtue of external law or by virtue of the terms of the Collective Bargaining Agree- ments) to honor picket lines.... There have been innumerable instances when employees of compa- nies who perform services on Inland Steel Compa- ny's premises have engaged in legal picketing. In no instance, however, did Local 1010 ever urge or sug- gest to the membership that they should or could engage in a sympathy strike. Commenting on Board and courts of appeals cases sub- mitted to him by the parties, the arbitrator stated that: "Very few of the decisions cited by the parties . . . would have direct applicability to the facts in this case." D. Collective-Bargaining History During Respondent's and Local 1010's extensive col- lective-bargaining relationship, they have been parties to a series of contracts which, since 1947, have contained several no-strike provisions. Article 1, section 1, titled "Purpose And Intent of The Parties," sets forth the first such commitment: It is the desire of the parties . . . to provide proce- dure for the prompt and equitable adjustment of grievances arising hereunder to the end that there shall be no interruptions or impeding of work, work stoppages, slow downs, strikes, lockouts or other in- terferences with production and maintenance of the Company's plant during the term hereof. A second no-strike undertaking is contained in article 4, section 5.a: The Union agrees that neither it nor its officers, agents, representatives, or members will authorize, instigate, cause, aid, sanction or take part in any strike, work stoppage, sit down, stay in, slowdown, or other interruption or impeding of work. Section 5.b adds that: Should there be a violation of subsection 5.a there shall be no discussion or negotiation regarding the difference or dispute during the existence of such a violation or before normal work has been resumed. Section 5.c states in pertinent part: The Union representative will take affirmative action to prevent employees from engaging in the prohibited activities set forth in this section 5.... Section 6 concludes with a no-lockout pledge. The collective-bargaining agreements also have includ- ed provisions outlining a grievance-and-arbitration proce- dure. The contract in effect at the time of the instant dis- putes defines a grievance in article 6, section 2, as "limit- ed to a complaint or request which involves the interpre- tation or application of or compliance with the provi- sions of this Agreement." In addition, the contract provided for binding arbitra- tion with the qualification that "the arbitrator shall have the jurisdiction and authority only to interpret, apply or determine compliance with the provisions of this agree- ment. He shall have no power to add to, detract from or alter in any way the provisions of this agreement." No evidence was adduced as to Inland Steel's or Local 1010's intentions at the time the above-quoted clauses originally were proposed, nor was testimony offered re- garding any subsequent negotiations on these matters. However, in an effort to shed some light on the reach of the no-strike provisions, Robert Ayers, labor relations su- perintendent, testified that during his 25 years' employ- ment with Respondent, to his knowledge, no member of Local 1010 refused to cross a picket line established by another union at the facility although employees of out- side contractors assigned to the Indiana Harbor Works picketed the plant on an average of two to three times a year. Ayers further testified that, on past occasions, he obtained assurances from officers of Local 1010 that its members would not refuse to cross another union's picket line at the facility. Contrary to Ayers' belief, there were a few exceptions to Local 1010's record of noninvolvement. James Tewell explained that, when Bricklayers Local 6 struck Re- spondent in 1972 and again in June 1978, several mem- bers of Local 1010 supported them by refusing to cross their picket line. In fact, in 1978, one such sympathetic striker was Anwar, who, after a few days' illness, ad- vised his supervisor that he would continue on leave be- cause he was honoring the Bricklayers picket line. When Anwar subsequently received a disciplinary letter warn- ing him about his absenteeism, he protested and explicitly attributed his absence to sympathetic activity. His griev- ance was favorably resolved at the second step and the warning letter was withdrawn with a terse explanation on the grievance form that his attendance had improved. Although other members of Local 1010 did not join Anwar in sympathetic activity in 1979, the Union never- theless supported the propriety of his position through- out the grievance and arbitration proceedings. In addi- tion, at its annual conference in June 1979, District 31 of the United Steelworkers (which includes Local 1010) adopted a floor resolution which referred to the disci- pline imposed upon Anwar and several members of other locals who had engaged in sympathetic strikes and pledged to use "all available resources to reverse these attacks by defending all union members victimized for honoring picket lines .... " 88 INLAND STEEL COMPANY IV. DISCUSSION A. Deference to Arbitration Is Nor Warranted At the outset, a question is presented as to whether the decision reached by the arbitrator below precludes a de- cision on the merits in this forum. Since Spielberg Manufacturing Companv, 112 NLRB 1080 (1955), the Board, in preferring the voluntary reso- lution of labor disputes, has deferred to arbitration results where (1) the proceedings were fair and regular; (2) the parties agreed that the proceedings were final and bind- ing; and (3) the award was not clearly repugnant to the purposes and policies of the Act. 6 At the hearing in this matter, the General Counsel and Respondent stipulated that the first two Spielberg criteria were satisfied, leaving as the only issue to be resolved here whether the arbitra- tor's award was clearly repugnant to the Act's pur- poses.' Resolution of that type of question in decided cases has involved considerations such as whether the ar- bitrator followed an established line of Board and court precedent or arrived at a palpably incorrect conclusion. See Dreis & Krunmp Manufacturing, Inc., 221 NLRB 309 (1975), enfd. 544 F.2d 320 (7th Cir. 1976); International Harvester Company (Indianapolis Works), 138 NLRB 923, 929 (1962), enfd. 327 F.2d 784 (7th Cir. 1964), cert. denied 377 U.S. 1003. Applying these standards to the arbitration decision in Anwar's case, I conclude that deferral is inappropriate, since there was no showing there that the pertinent case law was properly analyzed or applied. Consequently, the result reached was totally at odds with the protections otherwise afforded to a sympathy striker under the Act. Although the arbitrator stated he had considered the Board and court cases which the parties presented to him, there is no way of testing this assertion since his de- cision contains no citation to those cases nor any analysis of the reasoning in them. He also stated, without further explanation, that none of the cases was relevant to the facts in the matter before him. Although facts in one case vary considerably from those in another, discussion of the contract language in decisions such as Gary-Hobart Water Corporations or Keller-Crescent Co.9 is extremely relevant to an analysis of the contract language in the collective-bargaining agreement at issue here. Regardless of divergent factual patterns, broad legal principles were articulated in those decisions which should have been ap- plied to the grievance before the arbitrator. Reliance on precedent, which is the essence of sound legal method- ology, played no apparent role in his decision. A review 6 The Board also has engrafted onto the Spielberg doctrine the require- ment that evidence bearing on the unfair labor practice must have been presented to and considered by the arbitrator if the Board is to refrain from hearing the matter. Raytheon Company, 140 NLRB 883 (1963); Sub- urban Motor Freight. Inc., 247 NLRB 146 (1980). 7 Counsel fol the Charging Party did not join in this stipulation on the grounds that a determination of whether the proceedings were fair and regular called for a legal conclusion to be made in this forum Since I conclude that the arbitrator's decision was repugnant to the Act, it is un- necessary to reach this other issue. 8 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied 423 U S. 925. 9 217 NLRB 685 (1975), enforcement denied 538 F.2d 1291 (7th Cir. 1976) of his decision plainly shows that he did not analyze the submitted cases or apply the reasoning set forth in them to the no-strike language in the Inland Steel labor con- tract.' ° Had he done so, he could not have concluded that Local 1010 forfeited the right to engage in sympa- thy strikes. The arbitrator based his ruling on evidence that unit members had not refused to cross other unions' picket lines, that the Union had failed to contend "that it should be permitted . . . to honor picket lines established by employees of a different company," and that the Union failed to suggest to its members "that they should or could engage in a sympathy strike." Finding a waiver by implication in such circumstances is antithetical to the time-honored principle that a waiver of a statutory right must be expressed in clear and unmistakeable language or arise from unequivocal bargaining history. See Gary- Hobart Water Corporation, 210 NLRB at 744; Keller-Cres- cent Co., 217 NLRB at 687. Thus. the arbitrator's deci- sion "clearly ignores a long line of Board and court precedent." .V.L.R.B v. Gould. Inc.. Switchgear Division, 638 F.2d 159 (10th Cir. 1980). Accordingly, I conclude that the arbitral award in Anwar's case is repugnant to the purpose and policies of the Act and is not entitled to deference by the Board. B. The Charging Party Honored a Lawful Picket Line It has long been established that sympathy strikers are accorded no greater protection than is available to pri- mary strikers. Therefore, if a sympathy striker honors a picket line which is illegal, whether or not he has knowl- edge of its illegality he, like the primary striker, is en- gaged in unprotected activity. Chevron U.S.A., Inc., 244 NLRB 1081, 1085 (1979); Pacific Telephone and Telegraph Company, 107 NLRB 1547 (1954). Respondent contends, for the first time here, that the Apex Baler picket line was illegal secondary activity vio- lative of Section 8(b)(4)(A) of the Act. The Supreme Court has made it clear that this provision does not outlaw the secondary incidents of primary activity. Rather, in an effort to reconcile the competing interests of primary strikers with those of neutral employers, pick- eting will be held unlawful only if secondary employees are induced to engage in a strike or other concerted ac- tivity an object of which is to compel their employer or another person to cease doing business with the struck employer. Local 761. International Union of Electrical Workers [General Electric Co.] v. N.L.R.B., 366 U.S. 667, 675-677 (1961). Recognizing that a fine line often exists between lawful primary and unlawful secondary activity, the Board, with court approval, has formulated criteria by which to evaluate the legality of picketing at a common situs. See Sailors Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950). Thus, picketing will be presumed primary if (a) it is limited to times when the situs of the dispute is located on the secondary premises; (b) the primary employer is engaged in his normal business at the situs; (c) the picketing takes place '0 It is noteworthy that the arbitrator referred solely to the second no- strike obligation set forth in art 4. sec. 5. apparently overlooking the per- linent no-strike language In art i. %co 1. o1f the labor cointract 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasonably close to the situs, and (d) the picketing clear- ly discloses that the dispute is solely with the primary employer. Id. at 549. The case law further instructs that these guidelines are not to be applied rigidly or indis- criminately. Rather, they are simply evidentiary aids used to evaluate the union's conduct in its totality. See V:.L.R.B. v. Local 307. Plumbers, United Association of Journevymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, AFL-CIO [Myvers Plumbing], 469 F.2d 403 (7th Cir. 1972). Respondent submits that the Apex Baler picketing had an unlawful object under the third Moore Dry Dock test. Before turning to the evidence upon which Respondent relies to support its position. it is important to bear in mind in assessing the totality of Local 8180's picketing that the first two Moore Dry Dock criteria are not at issue. Moreover, Respondent does not deny that the picketing was peaceful and that apparently no effort was made to impede the Inland employees from reporting to o r k. Respondent contends, however, that Local 8180 did not picket reasonably close to the situs since it could have established its line on Aldis Avenue which is closer to Plant 2 than either of the locations chosen by the Union. Alternatively, pickets could have been posted at the entrance to the employees' parking lot used by out- side contractors employees. Establishing pickets at Com- monwecalth and at Michigan and Guthrie was, Respond- ent posits, cvidence of an intent to enmesh Inland Steel and its employees in Local 8180's dispute with Apex Baler. I find no merit in Respondent's contention. If. as Respondent contends, pickets were stationed at unreasonably distant places, then the responsibility for that lies largely with Respondent. The record plainly shows that, oil numerous past occasions, Respondent's security guards permitted and even encouraged pickets to situate themselves at the very sites which it now con- demns. It is true that Respondent is not precluded from raising a Moore Dry Dock defense for the first time against an unfair labor practice complaint. See Chevron U.S..4. Inc., vapra at 1085. That defense may not be so mechanistically applied. however, as to overcome Re- spondent's condonation of identical conduct on numer- ous past occasions. Further, I find no precedent which holds that the "reasonably close" standard means that pickets must be stationed at only one location or only the closest loca- tion, as long as the objectives of the picketing are not aimed at coercing secondary employees. Respondent ac- knowledged in its brief to the arbitrator that the Apex Baler "pickets were posted at the two entrances to Plant 2 off of Commonwealth and Michigan Avenues" and that the picketing "at the two Plant 2 entrances was peaceful." Thus, Respondent tacitly acknowledged that the picketing sites were appropriate. Moreover, if Local I Respondent asserts that the evidence about favored picket line loca- tions pertained principally Io the Bricklayers who worked throughout the facility and therefore lawfully could picket the entire plant, This assertion is simpl conltraidicted by the record When Respondent's assistant direc- ior of saflel and plant protect ion lestified as to the frequency of picket- ing at the Commonnsealth and Michigan locations, he clearly was refer- ring to tie activity of employees who s.worked for contractors at Inland Steel. 8180 hoped to publicize its cause with suppliers or other persons having business with Apex Baler, as it was per- mitted to do,'2 then posting pickets near the principal routes leading to that plant was altogether reasonable. Respondent argues, alternatively, that the conduct and statements made by Apex Baler pickets also revealed an illegal aim. Here, too, the evidence fails to support Re- spondent's argument. The record shows that, while con- versing with the pickets, Anwar was told that Local 8180 was striking against Apex Baler and that the dispute was over economic issues with that employer. Further, the signs which the pickets carried and the leaflets they distributed identified them as Apex Baler employees. Moreover, the leaflets asked only for Local 1010's sup- port. No evidence was presented as to the manner or form such support should take. Alternatively, Respondent suggested that Local 8180 could have picketed at the parkiig lot reserved for em- ployees of outside contractors. However, employees need riot accept a picketing situs designated by the sec- ondary employer for its convenience. In addressing a similar issue in Local Union 323. International Brother- hood of Electrical Workers (J. F. Hoff Electric Co.), 241 NLRB 694 (1979), enfd. 642 F.2d 1266 (D.C. Cir. 1980), the Board and the court rejected the employer's argu- ment that, since a gate existed at which all Hoff employ- ees could be reached, picketing at two other sites was in- dicative of an unlawful secondary intent. In conclusion, on reviewing Local 8180's picketing conduct in its entirety, I am convinced that it was not attempting to embroil Inland Steel in its economic dis- pute with Apex Baler. It follows, therefore, that Anwar was honoring a lawful picket line. C. The Contract Does Not Bar Sympathy Strikes Absent a clear and unmistakeable waiver, the right of unit employees to participate in sympathy strikes is activ- ity protected by Section 7 of the Act See Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428 U.S. 397, 407-408 (1976); Gary-Hobart Water Corporation, 210 NLRB at 744; Keller-Crescent Co., 217 NLRB at 687. Nowhere in the relevant provisions of the collective-bar- gaining agreement at issue in this case is there an express waiver of the right of unit employees to honor a stranger union's picket line. Therefore, if a commitment not to engage in sympathy strikes is to be found in this agree- merit, it must be by implication. The law is well settled that a surrender of the right to engage in sympathy strikes will not be implied from a general no-strike clause in a labor contract. In defining the reach of a contractual no-strike clause, the Board, with judicial approval, consistently has held that the pro- hibition on self-help is "only as extensive as the griev- ance-arbitration procedure" which the contract affords. Gary-Hobart Corporation, supra, at 745. In other words, '2 See Local 761, IUE v. N.LR.B., supra at 672. See also United Steel- workers of America, AFL-CIO [Carrier Corp.] v. NL.R.B.. 376 U.S. 492, 499 (1964), where the Court stated that, if the work perlormed by a sec- ondary employer was connected with the normal operations of the struck employer, picketing directed at the secondary was considered primary activity nonetheless. 90 INLAND STEEL COMPANY when a union forgoes the right to strike, it does so only with respect to disputes that are arbitrable. Sympathy strikers do not strike over the meaning of the no-strike language in their collective-bargaining agreement. Rather, their conduct is precipitated by and aligns them with another union's dispute with either the same or a separate employer. That dispute raises no issues which can be resolved by resort to the sympathy striker's griev- ance procedure. It follows, therefore, that the sympathy strike is presumptively excluded from the no-strike clause. See International Union of Operating Engineers, Local Union 18, AFL-CIO (Davis-McKee, Inc.), 238 NLRB 652, 653-655 (1978); Gary-Hobart Water Corpora- tion, supra at 745-746. See also Hyster Company v. Inde- pendent Towing and Lifting Machine Association, 519 F.2d 89 (7th Cir. 1975), cert. denied 428 U.S. 910 (1976). Upon evaluating the parties' agreement in light of the principles set forth in the above-cited cases, I find no basis for inferring that the Inland Steel employees' right to engage in sympathetic activity was relinquished. The no-strike prohibition in article I, section 1, of the con- tract clearly is posed as the quid pro quo for recourse to a grievance procedure. By definition, grievances are limit- ed to those matters which come within "the provisions of this agreement" (emphasis supplied). Of course, the eco- nomic issues at the root of the Apex Baler strike were not cognizable under Inland Steel's grievance machinery. Consequently, by making common cause with the Apex Baler strike, Anwar's sympathetic activity was not arbi- trable and, therefore, not proscribed by the no-strike clause. The other provisions of the Inland Steel-Local 1010 labor contract provide no basis for implying that the em- ployees are precluded from exercising their sympathetic rights. For instance, in article 4, section 5.a, a no-strike commitment is set forth followed by a proviso in section 5.b that, if a violation of 5.a occurs, no discussions or ne- gotiations regarding the dispute will occur before normal work is resumed. A no-lockout pledge appears in section 6 of the same article. Since Inland Steel and Local 1010 obviously cannot discuss or negotiate the subject matter of a dispute between other employers and unions, it is clear that sections 5.a and b refer solely to discussions or negotiations concerning the subject matter of disputes be- tween Inland Steel and Local 1010.13 Thus, both a grievance procedure and a no-lockout pledge serve as consideration for the Union's no-strike undertaking in ar- ticle 4. The presence of the qualifying language in sec- tion 5.b clearly distinguishes this case from American Cyanamid, 246 NLRB 87, 89 (1979), where the Board found that a no-strike, no-lockout commitment, unrelated to an arbitration clause, supported an inference that the no-strike clause precluded sympathy strikes. Article 7, section I.a, further rules out a finding that sympathetic activity was waived. That provision express- ly prohibits the arbitrator from adding to, detracting from, or altering in any way the provisions of the agree- ment. The Board observed that almost identical language in the Keller-Crescent collective-bargaining agreement 'a "[Dliscussion" appears to be a reference to art. 6, sec. I, which states that the purpose of the grievance procedure is "to provide oppor- lunity for discussion of any request or complaint." (Emphasis supplied.) buttressed "the conclusion that the grievance machinery here was intended to resolve only disputes arising under the contract." Keller-Crescent Co., supra at 687, fn. 4. In the absence of an express or implied waiver of sym- pathy strikes within the terms of the collective-bargain- ing agreement itself, a waiver may nevertheless be found where there is evidence "that the parties have . . . at a minimum discussed the question." The Board scrutinizes such discussions strictly, requiring that they amount to "unequivocal bargaining history evidencing an intent to waive the right to engage in sympathy strikes." Interna- tional Union of Operating Engineers, Local 18, supra at 653. Here, the record is barren of any evidence that the parties ever discussed an alteration of or amendment to the no-strike clause during the negotiations which took place throughout their lengthy collective-bargaining rela- tionship. Cf. American Cyanamid, supra at 87-88, where the Board found unequivocal evidence that the union representatives repeatedly and consistently assured man- agement during contract negotiations that its members would cross another union's picket line. Surely, it would have been a simple matter for Re- spondent and Local 1010 to eliminate any ambiguity in their agreement by adopting language which simply and clearly prohibited or permitted sympathy strikes. See Gary-Hobart Water Corporation v. N.L.R.B., 511 F.2d at 289. Alternatively, the parties could have enlarged the scope of the grievance-arbitration provisions. This Re- spondent certainly knew the legal consequences which attach to comprehensive language. The first clause of the arbitration provision in its contract with the United Mine Workers was tied to the meaning and application of the no-strike provision. Two additional clauses extended the duty to arbitrate to differences about matters not specifi- cally mentioned in the agreement and "local trouble of any kind" Inland Steel Company v. Local Union No. 1545, United Mine Workers of America, 505 F.2d 293, 297, 298 (7th Cir. 1974). On reviewing what it characterized as an exceptionally broad arbitration provision, the court of appeals found that clauses two and three were expansive enough to cover sympathy strikes. Id. at 298. The 1977 Inland Steel-Local 1010 contract, which governed during the instant dispute, contained no such expansive clauses and Respondent admits that no propos- als to revise the general no-strike and narrow arbitration provisions were made during negotiations which took place that year. Thus, neither the text of the contract nor the parties' collective-bargaining history affords a basis for concluding that the contract forbade sympathy strikes. Respondent further contends, however, that a commit- ment not to engage in sympathy strikes arises from other collateral evidence. Specifically, Respondent relies on the following: (I) that for 35 years the same no-strike language appeared in the collective-bargaining agree- ment, and no member of Local 1010 refused to cross an- other union's picket line at the Inland facility; (2) that union officials orally assured management on various oc- casions that its members would work behind other unions' picket lines; and (3) that Local 1010's president 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advised Anwar that his sympathy strike was in violation of the contract. Contrary to Respondent's assertion, evidence showed that, as recently as 1978, Inland employees other than Anwar refused to cross a Bricklayers picket line.' 4 Re- spondent's effort to disclaim knowledge of Anwar's sym- pathetic activity at that time is not persuasive since it submitted documents into the record which plainly show it had notice that Anwar's absence in 1978 was due in part to his sympathy strike. Moreover, even assuming that Respondent's factual assertion was correct, an adop- tion of its argument would mean that a waiver could be premised on the Union's silence or failure to act. A burden of affirmatively denying that it relinquished the right of its employees to engage in sympathy strikes would then be imposed on the Union. Neither the Board nor the courts have found the requisite clear and unmis- takeable waiver in such circumstances, and I decline to do so here. Testimony that, on past occasions, Local 1010's offi- cers assured Respondent that unit members would cross stranger union's picket lines at the facility also falls short of the proof needed to establish an unequivocal waiver. If the general no-strike clause in the labor contract was as unambiguous as Respondent contends, it would have had no need to seek reassurance more than once that such sympathy strikes would not occur. Agreement to cross particular picket lines on an ad hoc basis cannot be converted into a permanent divestiture of a statutorily guaranteed activity. Respondent is on no firmer ground in relying upon testimony that the Local's president advised Anwar that a resolution endorsing his sympathetic activity would violate the Union's obligations under its collective-bar- gaining agreement. An unofficial communication such as this is entitled to little weight in determining that a waiver occurred. 15 Compare Amrcar Division, ACF Indus- tries, Incorporated, 247 NLRB 138 1056 (1980) (private discussions between union officials and management which were never communicated to membership insuffi- cient to demonstrate waiver) with St. Regis Paper Com- pany, 253 NLRB 1224 (1981) (extensive extrinsic evi- dence of uniform attitude and conduct of parties estab- lished that no-strike clause in collective-bargaining agree- ment waived sympathy strikes). Moreover, the unofficial expression of one union agent's view must be contrasted with substantial evidence in the record which suggests that Local 1010 and the Steelworkers District Council supported Anwar's position. Thus, the Local represented Anwar throughout the various stages of the grievance- arbitration procedure and the Steelworkers District Con- ference adopted a resolution pledging support for Anwar and other sympathetic strikers. Throughout the process- "4 Respondent suggested that no proof existed that the Local 1010 members who honored the Bricklayers picket line were scheduled to report to work. It is unlikely. however, that these sympathizers appeared at the facility for some purpose other than to perform their jobs. 11 Respondent contends that, by crossing the Apex Baler picket line to attend Anwar's grievance hearing, Local 1010 officials manifested their belief that the no-strike clause barred sympathy strikes. I find nothing in the parties' agreement which mandates participation in a sympathy strike. In the absence of an express prohibition of such conduct, sympathetic ac- tivity remains a matter of individual conscience ing of Anwar's discharge, the Union not only endorsed his conduct, it also committed itself to the position that sympathy strikes were not covered by the no-strike clause. In sum, there was no express contract language, no bargaining history, or any definitive past conduct by union representatives which would est.'-Iish that the em- ployees' right to engage in sympathy strikes was con- sciously yielded. Thus, there was nothing in the collec- tive-bargaining agreement which prevented Anwar from pursuing a statutorily protected right to honor a brother local's lawful picket line. His discharge for engaging in such activity thereby violated Section 8(a)(1) of the Act. 1 6 CONCI USIONS OF LAW 1. Inland Steel Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Unions 8180 and 1010, United Steelworkers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has interfered with, restrained, and co- erced employees in the exercise of rights guaranteed by Section 7 of the Act by suspending and thereafter dis- charging its employee, Keith Anwar, thereby violating Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(l) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. In finding that Keith Anwar was unlawfully suspended and dis- charged for engaging in protected concerted activities, I also conclude that, in order to effectuate the purposes of the Act, Respondent shall be required to offer him full and immediate reinstatement to his same or substantially equivalent position and make him whole for any loss of earnings he may have suffered from the date the Apex Baler strike terminated on June 18, 1979, to the date that reinstatement is offered, 17 with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).18 Upon the foregoing findings of fact, conclusions of law, and the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i6 While an employee may honor another union's picket line, an em- ployer may replace but not discharge that employee. if the evidence clearly discloses that the sole purpose of that replacement swas the contin- ued efficient operation of the business. See Gould Inc. Switchgear Divi- sion, 238 NLRB 618, fin. 2 (1978). No evidence was adduced here that Anwar's sympathetic activity had a disruptive effect on the conduct of Inland Steel's operations. J See Gary-Hobart Water Corp., supra at 747. is See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 92 INLAND STEEL COMPANY ORDER' 9 The Respondent, Inland Steel Company, East Chica- go, Indiana, its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act by suspending and thereafter discharging its em- ployee, Keith Anwar, because he engaged in protected concerted activity. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer Keith Anwar full reinstatement to his former position or, if such position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or other rights and privileges and make him whole for any loss of earnings he may have suffered, in the manner set forth in the section of this Decision entitled "The Remedy." '9 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 w&aived for all purposes. (b) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its East Chicago facility copies of the at- tached notice marked "Appendix."' 2 0 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the appropriate representative of Respondent, shall be posted by Re- spondent immediately upon receipt thereof, in conspicu- ous places, including all places where notices to employ- ees are customarily posted, and be maintained by Re- spondent for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 93