Chevron, U.S.A.., Inc.

CHEVRON, U.S.A, INC - 949 Chevron, U.S.A., Inc. and Oil, Chemical & Atomic Workers International Union Local 1-547 and International' Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local No. 351, AFL-CIO. Cases 31- CA-9778, 31-CA-9786, and 31-CA-10307" 28 June 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 22 July 1981 Administrative Law Judge Tim- othy D. Nelson issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and his posthearing brief in support of the judge's decision; and the Respondent filed a telegram response. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that-the Respondent violated the Act by disciplining employees separately repre- sented by Local 1-547 (OCAW) and Local 351 (Boilermakers) because they - honored stranger picket lines. Because the judge failed to defer to an arbitration award that found that the OCAW con- tract's no-strike provision, prohibits -sympathy strikes, and failed to defer to the Boilermakers, con- tract's grievance-arbitration procedures, we re- verse. For at least 20 years the Respondent's contracts with OCAW and Boilermakers have contained un- changed broad no-strike provisions.' On '28 Janu- ary 1980 certain OCAW- and Boilermakers-repre- sented employees honored a stranger picket line at the Respondent's refinery. The Respondent sus- pended them for refusing to work. On 29 May, fol- lowing OCAW's contract 'expiration, OCAW struck the Respondent's refinery and some Boiler- makers-represented employees honored the picket line. The Respondent suspended them. In- 1977 the Respondent suspended OCAW-rep- resented employees who refused to cross-a stranger picket line. OCAW grieved the discipline, and in 1978 an arbitration board ruled that the contractual no-strike provision encompassed sympathy strikes r The OCAW no-strike provision reads as follows - During the term of this Agreement, there shall be no strikes, stop- pages of work, slowdowns, or other intentional interferences with production The Company agrees there will be no lockouts The Boilermakers no-strike provision reads as follows There shall be no cessation of work through strikes, nonproductive holidays or sit-downs on the part of the Union, nor shall there be any lockouts, etc , on the part of the Employer during the period of this agreement. - and therefore the-Respondent was free--to levy dis- cipline against sympathy strikers. - . -.- The judge concluded that it would be inappro- priate to honor the 1978 arbitration award constru- ing the OCAW rio-strike clause because under Board precedent OCAW had' not clearly and un- mistakably waived the right to engage in sympathy strikes, and therefore the award was. repugnant to the Act. In Spielberg Mfg. Co., 11-2 NLRB 1080 (1955), the Board held that it would defer to-arbi- tration awards if (1) the arbitration proceedings ap- peared to be fair and regular, (2) the parties had agreed to be bound, and (3) the decision was not clearly repugnant to the Act. In Indianapolis Power Co., 273 NLRB 1715 (1985), the Board held that a broad -no-strike- clause - bans 'all strikes, including sympathy strikes, absent clear evidence that the parties intended otherwise. Thus, we cannot agree the arbitration award was clearly repugnant to the Act.2 No party contends the arbitration - proceed- ings failed to satisfy the first two Spielberg criteria '.3 Accordingly, because the contractual issue is factu- ally parallel to the unfair labor practice issue, and the parties presented the arbitration panel with facts relevant to resolving the issue, we will_defer to the arbitration award. Olin Corp., 268 NLRB 573 (1984). - - . I . The judge found deferring an 8(a)(3) -issue to the Boilermakers arbitration procedures was - barred under General American Transportation Corp., 228 NLRB ' 808 - (1977). In -United Technologies Corp.; 268 NLRB 557 (1984), the Board overruled Gener- al American Transportation and held it' would defer cases alleging 8(a)(1) and (3) violations to the par- ties' grievance-arbitration provisions. We therefore conclude that the issues raised in Cases 31-CA- 9786 and 31-CA-10307 should be deferred to the grievance-arbitration provisions in the Boilermak- ers contract.4 ORDER - The complaint regarding Case 31-CA-9778 is dismissed. The complaint regarding Cases 31-CA-9786 and 31-CA-10307 is dismissed provided that: 2 See, e g, Ohio Edison Co.; 274 NLRB 874 (1985) . 3 The General Counsel contends that the 1978 award is repugnant, but does not otherwise contend that it is not controlling on the parties in this proceeding See generally Furr's, Inc, 264-NLRB 554 (1982), where the Board found deferral to prior arbitration awards appropriate under Spiel- berg In that case, as here, although the prior arbitration awards did not involve the employees named in the Board proceeding, they involved the same contractual issue relevant to those employees - 4 See Collyer Insulated Wire, 192 NLRB 837°(1971) The Respondent must, of course, waive any timeliness provisions of the grievance-arbitra- tion clauses of the collective-bargaining agreement so that the Union's grievance may be processed in accordance with the following-Order 275 NLRB No. 132 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jurisdiction of this proceeding is retained for the limited purpose of entertaining an, appropriate and timely motion for further consideration ' upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedures have not been fair and regular or have reached a result which is re- pugnant to the Act. - DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge.. I heard these consolidated cases on trial at Los Angeles, California, on December 16, 1980. Oil, Chemical & Atomic Workers International Union Local 1-547 (OCWA) and International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers (Boilermakers), Local No. 351, AFL-CIO duly filed and timely served on-'Chevron, U.S.A., Inc. (Respondent) unfair labor practice charges with the Regional Director for Region 31 of the National Labor Relations Board (Board). Following an investigation, the Regional Direc- tor issued an • order consolidating cases, consolidated complaint and notice of hearing against Respondent in the above-captioned cases on March 27, 1980.1 The complaint alleges that Respondent violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act (Act) by disciplining employees represented by OCAW Local-1-547 and Boilermakers' Local 351 because they refused to cross picket lines established during a lawful economic strike against Respondent by other labor orga- nizations (i.e., because they engaged in a "sympathy strike"). Respondent duly answered, admitting in substance that its operations are subject to the Board's jurisdiction, and that it imposed certain discipline against employees sub- stantially as alleged in the complaint,2 but denying'that its disciplinary actions violated the Act. Respondent averred as an affirmative defense that it was entitled to discipline the. employees because they acted in deroga- tion of no-strike commitments contained in current labor agreements. Citing the fact that OCAW Local 1-547 lost an arbitration decision upholding Respondent's right to issue such discipline, Respondent also urges that the Board should defer to that decision under the Spielberg doctrine;3 that the Board should direct Boilermakers Local 351 to avail -itself of contractual opportunities simi- larly to arbitrate the challenged discipline; and that the Board should defer to the results of such arbitration.,- - i_ An amended consolidated complaint issued against Respondent on September 22, 1980 ' 2 See fn 6 3 Spielberg Mfg. Co, 112 NLRB 1080 (1955) ' • - I. ISSUES The central question is whether -the Boilermakers and OCAW bargained away the conceded right otherwise enjoyed by employees under Sections 7 and 13 of the Act to engage in sympathy strikes. Resolution of this question requires reference to "no-strike" language in the labor agreements between Respondent and those Unions and consideration of certain extrinsic evidence pertaining to those Unions' unsuccessful efforts at the bargaining table to obtain different language from that which ulti- mately was adopted. A separate issue is raised by Respondent's discipline against employees in the Boilermakers-represented bar- gaining- unit : Is Respondent collaterally estopped by the Board's decision in a prior case involving those parties4 from relitigating the same questions which were litigated and arguably decided by the Board in that case? Finally, there is the issue whether the Board should re- frain from analyzing the significance of the no-strike lan- guage in the respective labor agreements and should, in- stead, defer resolution of those issues to an arbitral forum (i.e., in:the-case of OCAW, to an arbitration decision al- ready rendered; in the case of the Boilermakers, to a forum which is available, but which has not yet been used). .All parties had full opportunity to appear, to present evidence and argument, and to file posttrial briefs.5 On the entire record,6 I make the following II. -FINDINGS OF FACT AND PRELIMINARY CONCLUSIONS A. General Background and Overview Respondent operates a petroleum refinery at El Se- gundo, California.7 It employs about 850 employees rep- resented by OCAW Local 1-547, who operate the plant and perform most of the maintenance work. It also em- ploys about 75 employees represented by Boilermakers Local 351, who perform boiler maintenance and welding. 4 Chevron USA, Inc, 244 NLRB 1081 (1979) (Chevron 1) 6 I have fully considered the timely filled and helpful briefs submitted by the parties 6 The record includes a written joint stipulation of the parties (re- ceived in evidence as G C Exh 2) and the testimony of various witnesses pertaining to bargaining history The joint stipulation received at trial sets forth, inter alia, the names of most employees who received discipline for sympathy sinking, the dates on which such discipline was imposed, and the specific disciplinary action taken Because the parties did not have at hand at the trial.the names of all persons thus disciplined, nor in some cases other pertinent details, the record was held open until the due date for receipt of briefs for the submission of an updated stipulation Such a document was timely submitted to me in the form of a joint stipulation and motion, which I received in evidence as ALI Exh I A-typed copy of the same is attached hereto as Appendix "B " (Appendix B omitted from publication) It should be noted, as is set forth on the preamble page thereof, that the information in it has been updated from that contained in the original G C Exh 2, and that it is now acknowledged that some of the names included therein were included by inadvertence The General Counsel has amended the ultimate complaint to conform to the informa- tion in the stipulation pertaining to the names of disciplined employees, the discipline which they received, and the dates of such discipline Respondent, a California corporation with principal headquarters in San Francisco, annually sells and ships goods or services valued in excess of $50,000 directly to customers outside California I CHEVRON, U.S.A., INC. 951 In addition, about 10 employees at the -El Segundo refin- ery are part of a larger unit of Respondent's marketing employees at various locations . These latter employees have been represented by OCAW Local 1-1978 since 1979. - 1-. 1980 discipline The allegedly wrongful discipline arose in connection with two lawful primary stnkes in '19 80. In the first, there was picketing at the El Segundo refinery by OCAW . Local 1-1978 on January 28, 1980, in further- ance of an economic strike called by that union to obtain a new labor agreement for Respondent's marketing em- ployees. This was done while labor agreements contain- ing no-strike language between Respondent and OCAW Local 1-547 and Boilermakers Local 351 were still in effect. Some employees in units represented by those latter unions honored the picket line established by OCAW Local 1-1978. They were issued disciplinary sus- pensions by Respondent for their refusal to work, in al- leged violation of the no-strike clauses, and were warned that similar violations in the future would result in fur- ther discipline, including discharge. On February 22, 1980, the labor agreement between Respondent and OCAW Local 1-547 expired. Thereaf; ter, until about May 29, 1980, that Union picketed • all employee entrances at the El Segundo refinery in fur- therance of a strike for a new agreement. This was,done while the labor agreement with Boilermakers Local 351 was still in effect. Some employees- represented by that latter Union honored , the OCAW Local 1-547 picket line. They were similarly disciplined, with similar warn- ings. 2. Background to Respondent's 1980 discipline of OCAW Local 1-547 unit employees OCAW Local 1-547 and Respondent were parties to a contract containing, the -following , no-strike language when employees represented by it were disciplined for honoring the January 28 picketing at the El Segundo re- finery by OCAW Local 1-1978: ARTICLE XXI-STRIKES AND LOCKOUTS -! During the 'term of this Agreement , there shall be no stnkes, stoppages of work, slowdowns, or other intentional interferences with production . The Com- pany agrees there will be no lockouts., This language ' liad' appeared in labor agreement's be- tween; those parties for'at least 20 ,years. No,extrinsic, evi- dence was introduced as to the parties' intent regarding the scope' of such, language when it first - became part of the agreement.' Thereafter ' from the ,record's silence on the; ,subject, .1 infer that - this language was continued without debate as successive agreements were reached (except during negotiations -for the pertinent 1977-1981 agreement discussed below). - The record shows that Respondent did not seek to dis- cipline certain employees in the OCAW Local-1-547 unit when in the early 1970's they honored-picket lines estab- lished by a sister local of OCAW.B - During negotiations in 1966 and early 1977 for the per- tinent 1977-1981 agreement, however, the question''of sympathy work stoppages became a subject for specific discussions between the parties. In the 'early stages ` of bargaining in December 1976 OCAW Local' l-547, acting on instructions from the parent' International body, presented this-demand as it,appeared in, a docu- ment tendered to Respondent by _OCAW; captioned "U.S. National Oil Bargaining Policy 1977-78":9 9. A clause shall be negotiated-into each contract providing that: "Each, employee shall have the right to refuse to cross-or work behind any picket line es- tablished at the Employer's-premises or elsewhere. The Employer shall not threaten or actually disci- pline or discharge any employee who exercises such right, nor shall the exercise of such right be deemed to be a violation of this Agreement by the, Union::' Manager of Employees Relations Collings, testifying for Respondent about the -surrounding discussions' when the above-quoted proposal was -presented, credibly stated: I do recall . '.. that the 'union when it,presehted the proposal ..: said that-it felt it was putting into the contract what they already had--as a legal•right.' Collings also testified 'that Respondent's. bargainers "emphatically" opposed. the-inclusion of such proposed language or "any article of, this type," stressing, that its refinery, equipment must be maintained on,aregular, basis in order to maintain -the safety,,of the refinery operation. The issue was-not debated further after-the. parties ex changed their opening positions as',just outlined. About January 7, 1977, OCAW, representatives. withdrew the above-quoted proposal on instructions, from the, Interna- tional, based on a settlement that had been reached with another major oil company which did not include ) the proposed `;picket line`,t language. - It is agreed, by, both parties that when OCAW Local 1-547 withdrew its a proposed- picket line language, its representative informed Respondent that"OCAW contin- ued to believe 'that'employees it :represented already en- joyed the right to' which it had' sought to put into the contract. Thus, Respondent's bargaining agent Collings acknowledged ' that'- the `parties' "tendered' to' reiterate their [earlier] -position's" at • the- tithe that 'OCAW `repre- sentatives withdrew th'e'picket line 'clause;' acid" `OCAW Representative Leonard,'Fye' testified''that- OCAW's' -he' gotiating spokesman' Walter Hubei. •"made a: presenta- tion" :to' the effect -that"' OCAW's; picket line clause t was being' withdrawn -"without, =prejudice'. -ands that'' `-`the s Respondent's manager of empl'oyee'-r'elations' Kenneth' Collings' ex- plained that tactical and practical considerations-mcludmg the relatively brief duration of the observance by employees in the OCAW Local 1- 547 unit of the sister local's picket line-caused Respondent to refrain from exercising what it deemed to be its right to discipline employees during that picketing 9 R Exh 4 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union still retains the right to honor the picket line as in- dividuals."10 - 3. OCAW'S unsuccessful arbitration over 1977 discipline In August 1977, after the above-described negotiations had resulted in the continuation of the traditional no- strike language in the labor agreement, Respondent issued disciplinary suspensions to certain employees in the OCAW Local 1-547 unit because they had honored a picket line erected by a local of the International Union of Operating Engineers (IUOE) at the El Segundo refinery which was (as the Board ultimately found") di- rected against Bragg, a maintenance contractor working on the refinery premises. OCAW filed a grievance over that discipline and the dispute was submitted for arbitra- tion under the labor agreement. On June 12, 1978, the board of arbitration issued a ruling favorable to Respond- ent. 12 I summarize below the key aspects of the arbitration decision: The main issue submitted for arbitration was: "Did the Company violate the Articles of Agreement dated Feb- 1° Fye recalled that Huber's presentation of the withdrawal was done with the aid of a lengthy telegram from the International (received in evidence as G C Exh 5) That telegram contains instructions to local spokesmen that certain language be read in connection with withdrawal of the demand for the picket line clause. Included in the statement which , local bargainers were instructed to make was the following language: Inasmuch as the National Oil Bargaining Policy Committee has this date authorized an amendment to the National Oil Bargainin• [sic] Policy which provides that settlements may be agreed to which do not contain this [picket line] language, the Union is hereby with- drawing its demand for the inclusion of this language in the contract This language was proposed for the purpose of clarifying the rights of the Union, the employers and the employees in the event that any employees are called upon to cross or work behind any picket line It was not proposed nor ever intended to infer that the Union be- lieved that it did not have the right under certain circumstances to instruct its members to refuse to cross or work behind a picket line, nor was there any belief or intention by making such a proposal that individual members would not have the right to make such refusals Fye recalled that Huber had the telegram containing the quoted language with him when he made a statement about the withdrawal of the picket line language, but Fye was not sure that Huber had read it "verbatim " In the absence of any testimony by Huber or by other OCAW witnesses to Huber's remarks, and considering Fye's hesitancy on the point, I am not prepared to find that the quoted text was literally transmitted to Re- spondent on January 7 I find merely, consistent with the harmonious tes- timony of Fye and Collings, that OCAW agents withdrew the picket line clause while stating that OCAW adhered to the view that its members already had the rights which it had simply wished to be reflected in the labor agreement i i Respondent similarly disciplined Boilermakers-represented employ- ees for honoring that picket line The Boilertnakers -unlike OCAW, filed an unfair labor practice charge .over that disciplining of its members. This was the subject of the Board's decision in Chevron I, the significance of which is further discussed below 12 The board of arbitration consisted of a three-member panel, two of whom were designess of the Employer and the Union, respectively (known as "partisan members" ) The third member (the "chairman") evi- dently functions as a neutral tie-breaker The chairman wrote the opinion (received in evidence as R Exh 11 ), noting, in closing "The statements, conclusions and findings of fact expressed herein are those of the Chair- man and not those of the partisan members " Indeed , the union-designat- ed member expressly noted his dissent (id p 13) ruary 23, 1977, when is [sic] suspended employees listed in [the underlying grievance]?" 113 The chairman concluded that: .. since there is a no-strike-no lock-out clause in the Articles of Agreement . .. grievants are re- quired to report for work as scheduled by the Com- pany during the term of the Agreement . There is no provision in the Agreement which would permit ab- senteeism because of picketing . Although the griev- ants feel that they had the right of their own convic- tions as to honoring a strike , their feelings are mis- placed when they agree to a no-strike . . . clause which in essence states they will cross a picket line. . . . [I]t would seem that a refinery employee faced with the question of having to cross a picket line, either takes the benefit Of his contract and crosses, or takes the consequences of his act in violating the contract . ..." 14 Discussing OCAW's argument that Respondent's past practice was not to discipline employees under the no- strike clause for honoring another union 's picket line, the chairman stated : "The Union however has the burden of establishing that the Company has .. . waived its right to discipline its employees for not fulfilling the no-strike obligation. There are insufficient facts . . . to show a waiver. . . .11 15 OCAW had also argued that the Boilermakers' unfair labor practice complaint was pending before the Board (in Chevron 1) and (apparently) that the chairman should therefore take into account the statutory considerations which underlay that cause of action in determining the matter submitted to arbitration. The chairman expressly refused to do so, stating: .. . such evidence [of the pending Chevron I com- plaint] is insufficient to warrant sustaining this grievance without conducting a full scale hearing as to the merits and similarities of their charge which is collateral to this matter . In any event this Board of 'Arbitration is charged with -interpreting the con- tract at bar and would not be affected by a determina- tion in the Boilermaker [i.e., Chevron 1] matter... Furthermore, there is no evidence in this record which would lead the chairman to' conclude that the external law would not uphold a determination by this Board of Arbitration that a refusal to cross a picket line in the face of a contractual no-strike clause when there is peaceful picketing . is a viola- tion of the Agreement between the parties.' 6] Summarizing the foregoing : When OCAW Local 1- 547 unit members were disciplined in connection with their honoring of the January 28, 1980 picket line erected by a sister local, this was the second instance of Re- spondent's issuance of such discipline against employees in that unit since Local 1-547 had sought unsuccessfully 13 Id pp 3-4 14 Id at 8-9, emphasis added. 15 Id at 11, emphasis added 16 Id at 11-12, emphasis added CHEVRON, U.S A:, INC. to obtain its "clarified" picket-line language in the 1977- 1981 labor agreement. Before the imposition of the 1980 discipline, an -arbitrator had determined in 'connection with the 1977 discipline that the traditional no-strike lan- guage in the OCAW agreement applied to such "sympa- thy" 'activities as the hononng of the IUOE picket line and, therefore, that the discipline was privileged by the labor agreement. Accordingly, OCAW'L"ocal 1-547 now turns to the Board for relief from the similar discipline by Respondent in- 1980 against employees in the unit it represents. 4. Background to Respondent's 1980 discipline of Boilermakers-represented employees: The Board's disposition of Chevron I When employees in the unit represented by Boilermak- ers Local 351 -were disciplined in 1980 for honoring picket lines erected first by OCAW Local 1-1978, and later, by OCAW Local 1-547, there was still in effect a labor agreement between the Boilermakers and Respond- ent containing no-strike language which -had been the subject of negotiations in 1977.17 The same agreement, with the same no-strike lan- guage, was in effect in 1977 when Respondent disci- plined Boilermakers-represented employees for honoring- the IUOE picket line against Bragg. This was the language in the no-strike clause of the Boilermakers' agreement which was in effect -at all times material herein: There shall be no cessation of work through strikes, non-productive holidays or sit-downs on the part of the Union; nor shall there be any lockouts, etc., on the part of the Employer during the period of this agreement. This no-strike language had been traditionally carried over in successive agreements between Respondent and Boilermakers Local 351 for at least 20 years. Before the language had been included in the 1977 contract, howev- er, Boilermakers Local 351 had attempted at the bargain- ing table to obtain a new clause which would have had the effect, as the Board found- in Chevron I, of permitting those covered by the agreement to honor a picket line established by any union representing Respondent's em- ployees. Boilermakers Local 351 eventually withdrew that proposal, however, and the above-quoted provision continued to be the sole no-strike language in the con- tract which was in effect, at, the time Respondent issued the 1977 discipline against employees in the Boilermak- ers' unit for refusing to cross the IUOE picket line. Following charges similar to those filed in the instant case by Boilermakers Local 351, the Regional Director for Region 31: issued a complaint against Respondent which resulted in a trial before an administrative law 17 The agreement (R Exh 3) was effective by its terms from a point in 1977 to May 1, 1979 Crediting Collings, however, that agreement had been extended by the parties without further bargaining, pending negotia- tions for a replacement contract , and was in effect during January and February 1980 when Respondent disciplined Boilermakers members for hononng OCAW's picket lines A replacement agreement was not reached until April or May 1980 953 judge and consideration by the Board. Respondent de- fended its 1977 disciplinary action on two grounds: First, that Boilermakers Local 351 had waived employees' rights to'engiige in such sympathy strikes by agreeing to inclusion of the above-quoted no-strike language which, Respondent argued, constituted a prohibition against such sympathy work stoppages-especially in the light of the bargaining history just summarized. Second, and independent of the foregoing, that the IUOE picket line was an illegal "secondary" picket line and, therefore, em- ployees who observed it were not protected in that ac- tivity by Sections 7 and 13 of the Act. - The administrative law judge reasoned that Respond- ent was substantially correct in its first defense (contract waiver of right to engage in sympathy strike where pick- eting union did not represent Respondent's employees), but he concluded that the evidence was insufficient to decide the merits of the second defense (that the IUOE picketing was secondary in character). The Board" a reached a virtually opposite result, ulti- mately sustaining Respondent's disciplinary action on the ground that it was -privileged in disciplining employees who had refused to cross what the Board found to be a secondary picket line, but rejecting (two members to one) the argument that there had been a waiver by Boil- ermakers Local 351 of the right to engage in any sympa- thy strikes. - - In sum,, Respondent "won" its case in Chevron I, but only on a ground which is not available to it in the in- stant case. And, although it was not ultimately necessary to the result, two of the three panel members devoted substantial attention to an analysis of the sympathy strike-waiver issue and determined that there had been no such waiver. i 9 It will be useful to summarize the position of the Board's panel majority (as defined above) on the ques- tion whether Boilermakers Local 351 had waived em- ployees' rights to engage in sympathy strikes by its agreement to the continuation of the traditional no-strike language in the 1977-1979 labor agreement, and under circumstances where it had first attempted to get Re- spondent's agreement to include an additional clause pro- tecting employees' rights to honor picket lines estab- lished by any unions representing Respondent's employ- ees. 18 That is, the panel majority (see fn 19) 19 The deciding panel consisted of then Chairman Fanning, Former Member Penello, and Former Member Truesdale As is more fully set forth below, Member Truesdale, with the concurrence of Member Pen- ello, concluded for the "result" majority that the complaint must be dis- missed because the IUOE picket line was unlawfully secondary in char- acter, and, hence, the Boilermakers-represented employees who honored it were not protected in such activity and could ,lawfully be disciplined therefor Chairman Fanning dissented on these points Member Trues- dale, with the concurrence of Chairman Fanning, also concluded, howev- er, that the no-stoke language did not, either alone, or even under the -particular facts of the surrounding bargaining history, amount to a waiver of the right to engage in sympathy strikes. Member Penello dissented on these points Accordingly, in the discussion below of the "Board major- ity's" consideration of the waiver issue in Chevron I, I am referring to the position taken by Member Truesdale and Chairman Fanning-a position which did not affect, and which was therefore not necessary to, the result. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the no-strike language standing alone, the major- ity concluded: The no-strike language ; .. does not refer specif- ically to prohibition of sympathy strikes, and thus, on its face, is insufficient to be read as a waiver of the right to participate in such work"stoppages. [2O] As to the extrinsic evidence bearing on the' parties' •ititent regarding the meaning of the-on-strike clause (i:e., the unsuccessful attempt by Boilermakers- to include spe- cific language permitting employees to honor picket lines erected by unions representing Respondent's employees), the majority concluded that this bargaining history did not provide. evidence of a "clear and unmistakable waiver" of the right to engage in 'sympathy strikes (nei- ther as to in-house picket lines, nor as to "stranger" pick- eting). First, as to the withdrawal of proposed language regarding picket lines established by in-house unions, the Board agreed with the judge that this did not waive any rights, since the evidence showed that "the Union was merely attempting to place in the contract a right which it believed its ;employees already possessed by statute ... ."21 As to the honoring of 'stranger picket lines, such as that maintained by IUOE, the majority disagreed with the -judge, who had found that the Boilermakers' proposal _for limited rights to honor in-house -picket lines implied a concession that no right to honor stranger picket lines existed. Here, the majority noted first that the statute equally. protects work stoppages.by employ- ees in sympathy with employees of employers other than their own; and, adapting language 'in the -'closely analo- gous" holding in Keller-Crescent,22 the Board concluded implicitly that the Boilermakers' reference in its pro- posed picket line clause to in-house picket lines did not reflect an intention to limit the broader statutory right to engage in sympathy strikes-(regardless of the identity of the picketing union) so much as it merely reflected "a general intent to memorialize . .. the statutory right." Accordingly, the majority reasoned that there was no basis for assuming that the Boilermakers had waived the right to honor lawful picket lines even when erected by strangers.2 3 _- B. Estoppel Effect on Chevron I • . - In answering the complaint in the instant . proceedings, Respondent affirmatively defended its. 1980 discipline of Boilermakers-represented employees on the ground that- their conduct violated the no-strike clause.in the applica- ble labor agreement with the Boilermakers (i.e., the same clause and contract construed in Chevron; 1). The General Counsel made no' pretrial -motion to strike this defense, nor for summary judgment in As favor as to the 1980 dis- cipline of employees in -the : Boilermakers' unit . At .the 20. Cheveron I,.supra at 1084 citing Board holding in-Operattng'Engt- neers Local 18, (Davis-McKee), 238 NLRB 652 (1978),,and Gary-Hobart water Corp, 210 NLRB 742 (1974), enfd..511 F 2d 284 (7th Cir 1975), cert'dented 423 U.S 925 (1975i. 21 Ibid. . 22 Keller-Crescent Co, 217 NLRB 685, 688 (1975), enf denied 538 F 2d 1291 (7th Cir 1976) 23 Id at 1084-85 opening of the trial, however,, correctly anticipating that Respondent would seek to "relitigate" the "extrinsic" evidence pertaining to the Boilermakers' unsuccessful at- tempts during 1977. bargaining ,to obtain a "picket line" clause, the General Counsel sought a ruling from me to prohibit such "relitigation" on the ground that the Board's holding in Chevron I barred such an effort under the doctrine of.collateral estoppel. After learning for the first time of'the Cheveron I back- ground,. and after lengthy colloquy between and among counsel and the bench, I denied the General Counsel's motion-primarily on the ground that it should have been properly noticed in. advance and' properly briefed by the parties in order to be ripe for an informed disposi- tion.24 I denied the General Counsel's motion without preju- dice to its being renewed on brief; the net effect of my ruling therefore being that Respondent was permitted to litigate the facts underlying its defense that the Boiler- makers had waived the right to engage in sympathy work stoppages by entering into the agreement in 1977 which contained the quoted no-strike clause, but that such relitigation was subject to a full briefing as to the effect of Chevron I, and a possible ultimate ruling that Respondent was estopped by that decision from having its defense reconsidered on a new factual record. The General Counsel has renewed. its motion on brief, and both parties have submitted helpful arguments and cita- tions to authority on the question. I conclude, in agreement with Respondent, that the authorities clearly favor Respondent's position that Chev- ron I does not bar relitigation of its defense as to its 1980 discipline of employees in the Boilermakers unit-espe- cially under circumstances - where Respondent, as the prevailing- party in Chevn I, was without power to obtain review in a United States court of appeals of the Board majority's adverse disposition of its alternative "waiver" defense in that case. It is, 'of course, critical to - reaching this result that I conclude as a threshold matter-that the discussion by the panel majority of the waiver' issue in Chevron I reflected a determination by that majority which was not neces- sary to the Board's judgment or result- in'that case. Thus, to the extent that the Board ultimately concluded- that the employees who honored the IUOE picket line were not engaged in conduct protected by the Act, it never needed to reach the question whether the no-strike lan- guage in the. Boilermakers' labor agreement amount to `a waiver of the right to engage in conduct which was pro- tected, by the Act. 'For this reason, the discussions in Cheveron -I on that latter question are- classic obiter dicta. As another threshold matter, it is clear that when the Board dismissed the complaint against, Respondent in Chevron' J; ^ Respondent was not aggrieved by a, "final order" of the Board 'and,- therefore, under Section 10(f) of the Act,25 it had no right, to appeal.ioa United-States 24 On inquiry, it developed that the General Counsel had not re- searched the issue and' was not prepared to cite authorities . Respondent, of course, was similarly unprepared, having received no advance notice of the motion 25 29 U S.C § 160(f) CHEVRON, U.S A, INC. court of appeals on the Board panel majority's adverse determination of its "waiver" defense.26 e . With these dual features, in mind, it is apparent that Respondent is not barred by the doctrine of collateral es- toppel from litigating anew the merits of its defense to its discipline of Boilermakers-represented employees in 1980, even though it litigated the same defense in Chev- ronL The generally accepted . . . rule in this situation is that the judgment is conclusive of only those issues whose determination supports the judgment. The unavailability of appellate review is a substan- tial consideration in support of the majority rule that determinations adverse to the winning litigant do not have conclusive effect as collateral estop- pel.[27] The General Counsel concedes on brief that there is "precedent in the general body of law for Respondent's contention that no estoppel should apply in these circum- stances,"28 but cites other authority which would argu- ably support application of collateral estoppel herein. The General Counsel here relies on the 1881 Supreme Court decision in Railroad Companies v. Schutte, 103 U.S. 118, and certain other cases which have followed it.29, Suffice it to observe here that Schutte, supra, and the cases which follow it have been criticized as,unsound, and as reflecting confusion, between the doctrines of stare decists and collateral estoppel30;, and they are not reflec- tive of the current approach by the circuit, courts in Boeing, supra, and United Aircraft, supra-both of them having more direct applicability to decisions of the Board. Indeed the General Counsel's position is seeming- ly inconsistent with the position argued by that office before the Fourth Circuit in Boeing, -supra. 3 1 - .Accordingly, there being. no bar under, the doctrine of collateral estoppel to Respondent's-litigation in these pro- ceedings of facts underlying its defense that in 1977 the Boilermakers, waived the, right to engage in sympathy strikes, I turn now to specific findings relating to that de- fense. 26 The Board successfully argued that this was the proper construction of the "review" provisions of Sec 10(f) of th Act in Boeing Co. v NLRB, 526 F 2d 587 (4th Cir 1975) See also, e g,-Deacon Truck Line Y NLRB, 337 F 2d 697, 698 (5th Cir 1964), cert denied'381 U S 903 (1964) 27 IB Moore; Federal Practice 9 0 443 [5] (2d ed) at 3922-23, cited with approval in Boeing, supra,' 526 F 2d at 590. Accord i46 Am .Jur 2d, Agency,§§ 423, 464, at 593-94, and 631 Compare. United.Aircrgft Corp Y NLRB, 440 F 2d 85 (2d Cir 19.71), wherein the Second Circuit found the general rule quoted above to be inapplicable in the circumstarices of that case since the union seeking review of an--adverse Board older had had an earlier opportunity as•an "aggrieved" party in a prior- Board proceed- ing to seek review of,the same adverse, determination and had failed to do so, and was thus barred by collateral estoppel from raising the ques= tion' anew on review of'the'subsequent 'Board proceeding Id, 440 F 2d at 99, and authorities cited. - 28GC Br at7 , 29 Cold Metal Process Coy v Bliss Co , 285 F' 2d 231 (6th Ctr _ 1960), Choctaw Nation v U.S, 135 F Supp 536 (Ct Cl 1955), cert denied 352 U S 825 (1956) ao IB Moore's Federal Practice, supra at 3925-27 . , , 31 See 526 F.2d at 590 955 C. Findings Regarding the 1977 Negotiations Between Respondent and Boilermakers Local 351 My review of the substantive record made by Re- spondent at trial on the subject of its 1977 negotiations with the Boilermakers causes me to, conclude that it in- troduced no facts which would warrant findings more favorable to it than those made in Chevron I regarding those same- negotiations. Indeed, Respondent's agent Collings recalled32 -that in April 1977 when the Boiler- - makers first proposed an amendment to,the existing no- strike language: 3 3 The position of the Boilermakers was that they felt they had the legal right to observe sympathy strikes, and wanted' the contract to reflect that right. Collings stated, and I find, that Respondent's bargain- ers resisted this proposal on grounds similar to those. interposed when OCAW had similarly sought contrac- tual language which would clarify the rights of employ- ees to engage in sympathy strikes, i.e., that Respondent could not tolerate -uncertainty in its ability to maintain refinery equipment and that it would present a safety hazard to allow such equipment to go untended during a sympathy work stoppage by employees in the Boilermak- ers unit' - . ' Just as was the case in the bargaining with OCAW, however, there was no further substantive discussion of the Boilermakers' proposed "picket line" clause after the parties initially stated their respective positions on the subject. And, again consistent with the pattern in the bargaining with OCAW, the Boilermakers eventually withdrew the picket line clause proposal at a bargaining meeting in June, but asserted at the time that it still be- lieved that the employees it represented had a "legal" right to engage in sympathy strikes.34 ,32 Testimony of Collings at Tr 51 22 The Boilermakers' proposal (R Exh 1) was to amend the existing no-strike language quoted earlier by adding a clause (B) which stated -Notwithstanding any provision of this section , it shall not be a viola- ition of this agreement nor'cause for discipline of any employee cov- ered by this agreement, to refuse to cross a picket line established by any union representing'employees at the represented plants 94 I_ make this finding based on Collings' acknowledgment during ad- verse examination that when the Boilermakers withdrew the proposed picket line clause, "both parties reiterated their positions" (i e, the ones summarized above which the parties advanced when the clause was first proposed at: the bargaining table ) From Collings' account of that initial meeting, including his statement that "The position of the Boilermakers was that they felt they had the legal right to observe sympathy strikes" I find that the Boilermakers made a similar statement when the picket line clause 'was withdrawn ' Respondent's counsel also concedes , generally, that 'neither ' OCAW nor Boilermakers ever expressly departed from the position that employees had the right to honor another union's picket line (Tr 139 11-15), and that it is not disputed that whenever the subject was raised, both unions took the position that their picket line clause propos- als merely reflected an intention to have their respective contracts reflect a right which already exsited (Tr 157 13-19) 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. ANALYSIS AND CONCLUSIONS. the no-strike - clause, the arbitrator failed to employ a mode of analysis required by the statute (as interpreted by the Board); and; therefore,. the result which he reached was 'tainted39 by his failure to apply or to accord proper weight to those statutory considerations. The Board has clearly held, with the concurrence of reviewing courts of appeals,40 that the appropriate test in an unfair labor practice forum for determining wheth- er a union has waived employees' statutory rights to ,engage in sympathy strikes is whether or not there has been "clear -and unmistakable" conduct showing an intent to waive such rights.4 i As amplified by the Board, this has meant that the Board "will not infer a waiver of the protected right to engage in sympathy strikes solely from an agreement to refrain from `all stoppages of work.' Rather [the Board], shall require that the parties, at the very least, have discussed the questions and, pref- erably, have expressly embodied in their agreement their intent to extend a strike ban to sympathy strikes."42 The arbitrator failed to apply the standards thus out- lined by the Board in, resolving the arbitration issue. Rather, he merely inferred, contrary to the required mode of analysis in a statutory forum, that the "no- strike"- language in the contract "required" the-OCAW- represented'employees to "report for work" even though they might "feel that they have the right to their own convictions as to -honoring [another union's] strike." 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, 'the arbitrator relied solely on' such language as the basis for his deci- sion. It is equally clear that the arbitrator's resolution of the arbitration issue involved an apportionment of the burden of coming forward which is at odds ' with the manner in which-the burden'would be apportioned were the matter heard. in a' statutory, forum. Thus, the arbitra- tor concluded that "The Union has the burden of estab-' lishing that the Company has'. . '. waived its right to dis- cipline its'employees for not fulfilling the no-strike obli- gation." By contrast, in a statutory forum where, as here, the challenge is directed at Respondent's disciplining of employees for engaging in presumptively protected ac- tivity, it is Respondent's burden to establish its defense' that OCA W waived the employees' statutory rights. Ac- cordingly, because the arbitrator's analysis failed 'to employ' statutory' standards for resolving , the 'question whether OCAW waived the right to engage in sympathy stri kes; the arbitrator's decision is repugnant to the pur- pose of the Act and is not a proper basis for-deferral under Spielberg. - • ' 9' Tainted,. that is, as a construction of employees' statutory rights No suggestion is intended'that the Chairman failed qua arbitrator,in his tradi- tional narrow function of deciding what the contract between the parties meant It is by no: means settled within-arbitration circles that arbitrators should extract-and apply-statutory or public policy considerations in ful- filling their primary function of deciding what contract language means 40 See, e g , NLRB v Southern California Edison Co, 646 F 2d 1352 (9th Cir 1981), and cases collected at 1364 41 Gary-Hobart, 210 NLRB at 744-745 ' - 42 Davis-McKee, 238 NLRB at 652-653 (emphasis added) A. As to the Discipline of Employees in the OCA W Unit I consider here two questions: 1. Should the Board refuse to determine the merits of the OCAW case and, instead, defer to the 1978 arbitra- tion decision in which it was concluded that the tradi- tional no-strike clause, banned sympathy strikes? If not, on the merits: . 2. Did OCAW waive employees' rights to engage in sympathy strikes by entering into the pertinent no-strike agreement and under circumstances where it had sought a clause more clearly reflecting the right to, engage in sympathy strikes, but later withdrew that proposal and contended itself with the traditional no-strike language? B. Deferral Question I conclude that it would not be appropriate under the Spielberg policy to defer to. the` arbitration decision. Under Spielberg, deferral is not appropriate, inter alia, where the result reached is "clearly repugnant" to the purposes of the Act.35 Further, as the Board made clear in Suburban Motor Freight, 36 necessary condition to the application of deferral -under Spielberg is that the, "statu- tory" or -the "unfair labor practice" issue be "both pre- sented to and. considered by the arbitrator," the burden being on the, party urging deferral to "prove that,the issue of discrimination was litigated before the arbitra- . _ •_ , - tor." Here, the text of the arbitration award introduced by Respondent arguably shows, that the-statutory issue- was presented to the arbitrator. 37 , But it is equally clear from that text that the arbitrator `(the chairman)'reflised to ad- dress that statutory, issue, viewing his role as being limit- ed to "interpreting the contract at bar" and 'concluding that his interpretation "would not-be affected by" a deter- mination [by the NLRB] in the- Boil'er'maker matter." Accordingly, where the arbitrator 'expressly' refused to consider the statutory question posed•by the disciplining, of employees for engaging in the presumptively protect- ed activity of sympathy-striking, deferral is not appropri- ate. It is also my judgment that the +arbitration decision should not be deferred to because' it is ",clearly repug- nant" to the purposes of the Act within the.meaning, of- Spielberg, even assuming, arguendo, that the arbitrator's "interpreting the contract at bar", was tantamount to. a statutory unfair labor practice. consideration- . of the. ,statutory' issue.38 For`it is, clear that ' in construing the breadth of as 112 NLRB- at 1082.:: ,36 Suburban 'Motor Freight, 247 NLRB 146 (1980) r • - . i37' That is, by OCAW's effort to have the board of arbitration take, into account the fact that the NLRB 'had pending' before it in Chevron,! the, statutory-issue of the legality of Respondent's discipline .of•Boilermakers- represented employees 38 I-anticipate here the potential argument , that,the "statutory". issue is really no more than-a "contract interpretation" issue, i e, that, arrespec-• tive of the label, the task for the decision maker in eithei the statutory or the contractual forum is, ultimately, to determine whether the no-strike clause was intended by the parties to encompass sympathy strikes See, for example, Servair, Inc v NLRB, 607 F 2d 258 (9th Cir 1979) - , CHEVRON;, U.S A.,' INC 957 C. The Merits My resolution of the merits is foreshadowed to some degree by the commentary above. In substance, Re- spondent defends itself in the disciplining of OCAW em- ployees on the ground that OCAW waived the right to engage in sympathy strikes by entering into a broad no- strike agreement, particularly under circumstances where OCAW first tried, but without success, to obtain a clause which would have expressly permitted employees' to honor "any picket line established at the Employer's premises or elsewhere." To the extent that Respondent -relies merely on the language in the applicable no-strike clause which was in effect when it disciplined OCAW-represented employees in 1980, Respondent's defense may not. be sustained. Davis-McKee, supra. Similarly, where it is admitted that OCAW proposed its picket line clause in the first in- stance with the stated view that it merely wished to have the contract reflect the rights guaranteed to employees by the Act, and where OCAW withdrew that. proposal while continuing to insist that employees possessed those rights whether or not they were set forth in the contract, this "extrinsic" evidence did not establish a "clear and unmistakable waiver" of the right to engage in sympathy' strikes. Keller-Crescent, 217 NLRB at 688; NLRB v. Southern California Edison, 646 F.2d at 1366 supra.43 It therefore follows that Respondent violated Section 8(a)(1) and (3) of the Act by disciplining employees'in the OCAW Local 1-547 unit for respecting the January 28, 1980 picket lines established by OCAW Local 1-1978 in furtherance of a lawful primary strike. D. As to Discipline of Employees in the Boilermakers' Unit ' Respondent argues that the statutory merits of its"1980 discipline of Boilermakers-represented employees- need,.. not be decided since "the issue is one of contract inter- pretation and should be, left to the parties-a'nd,the arbitra- tion procedures of the contract."44 The issue may arguably be one of "contract interprets ;, tions" (see fn. 38) but, more fundamentally, the-case re-, quires a resolution of employees', statutory rights.under, circumstances where it is alleged that Respondent violat- ed Section 8(a)(1) and (3) of the Act. The Board will not; defer to a potentially, available arbitration forum the res- olution of complaints alleging, as herein, that: employees' , rights under Section 7i of. the- Act have, been ' violated General American Transportation Corp.,, 228- .NLRB 808 (1977); cf. Roy Robinson Chevrolet,., 228(.NLRB _ 828. 43 As the Ninth Circuit 's opinion noted (ibid, emphasis . added) ! • ; r ; The failure to obtain a contractual confirmation of- a right is evi- dence of waiver, e g , Rockaway News Supply Co, supra,-345 U S at 80 [parallel citation omitted],ionly 'iif it shows'that the : union thought the right had been waived -by other'provisions of the contract and sought to regain the right (Emphasis added ] i'i ' : ' _ 1 11 ' .- Where, as here, there is no evidence that 'OCAW - believed ! that it had elsewhere waived the right of employees to•engage in'sympathy.stnkes,- and especially where it expressly insisted at all times'that such right exist- ed whether nor not it was embodied in the contract , the bargaining histo- ry relied on by Respondent is plainly inadequate in law to establish its waiver defense 44 R Br 20"..'- (1977). Accordingly, Respondent's first argument must be rejected.. Addressing the merits , I conclude on this de novo record, as did the "waiver" majority in Chevron I, and for substantially the same reasons, that the Boilermakers did not clearly and unmistakably waive the right of em- ployees, under Sections 7 and 13. of the Act to engage in sympathy- strikes merely by agreeing to continue the tra- ditional no-strike language in, the labor agreement, and under circumstances where its failure to obtain its -pro- posed picket line • clause was accompanied by statements at the .bargaining table that it still believed that the stat- ute conferred such rights even if the labor agreement did not expressly acknowledge the same. The only difference that I can discern between the record before the Board on this issue in Chevron I and the record before me is, as I noted earlier , the presence here of affirmative' evidence that the ' Boilermakers always took the position at the bargaining table in con- nection , with their proposed picket line clause (even when withdrawing the proposal ) that they believed that employees - had the legal right to engage in sympathy work stoppages.45 On this record , therefore, the Boilermakers did not waive employees' rights to engage in sympathy strikes. It therefore follows that Respondent violated Section 8(a)(1) and •(3) 'of the Act by disciplining employees in the Boilermakers unit for- respecting the picket lines es- tablished in 1980 by the OCAW locals in furtherance of their respective lawful primary strikes. CONCLUSIONS OF. LAW 1. Respondent is an employer' engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. - Oil, Chemical & Atomic Workers International Union, Local 1-547 and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, Local- No..351, AFL-CIO each are labor organizations within ,the meaning of Section 2(5) of the Act. , -, , , .3:' Neither : of ' the ' above-named labor organizations waived the rights under Sections 7 and 13 of the Act of employees -in the units- which each represented to refuse to,cross or work behind picket lines at Respondent's El Segundo . refinery established by other labor organiza- 45 Apparently, it was'not as clear on the record in Chevron I that this was the case There, the Board adverted only to the testimony of Boder- makers" agent Bowlin, regarding what the union "wanted" (244 NLRB 1083 fn 11) This was arguably a mere statement of the Boilermakers' subjective intent, and, to that extent, was of doubtful probative value Keller-Crescent, 217 NLRB at 690 For this reason, I rejected similar testi- mony and documentary evidence about the subjective ;'understanding" or "intentions', which OCAW's and the Boilermakers' bargaining agents brought 'with them to 'the bargaining table, and I pronounced that what the-parties actually said to one another on the subject would-be of con- siderably greater value in determining the waiver issue (see, e g, Tr 15915-20, 168-15-169-3, 170 3-19) Whether those evidentiary rulings were correct would not seem to affect the result herein since it is estab- lished, as noted, supra , that the Boilermakers specifically communicated to Respondent their position that employees had sympathy strike rights, even if Respondent was unwilling to have those rights reflected in the labor agreement , - - - ' 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions who were themselves picketing lawfully in further- ance of a lawful, economic strike. 4. By disciplining employees represented by the above- named labor organizations because they refused to cross or work behind lawful primary picket lines established by other labor organizations, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and has fur- ther discriminated against employees in order to discour- age membership in, or activities on behalf of, labor orga- nizations, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. THE REMEDY Inasmuch as the record reflects that Respondent issued wrongful disciplinary suspensions and warnings to each of the employees named on the attached Appendix B, with the exceptions of C. Cigliano, Chris K. Colby, W. P. Heacock, Paul D. Kleinman, V. A. McNamara, G. A. Peters, A. D. Pulido, G. Y. Shinsato, and H. N. Miller'46 I have included in my recommended remedial order that Respondent cease and desist from engaging in such wrongful actions, that it -expunge from its records the warnings thus issued or any references thereto, that it take no further disciplinary action against those employ- ees based thereon or linked thereto, that it make employ- ees thus disciplined whole, with interest, for any losses of wares or benefits which they may have suffered as a consequence of Respondent's unlawful conduct,47 and that it post a remedial notice to employees at its El Se- gundo refinery. [Recommended Order omitted from publication.] 46 As is recited in the preamble to the Appendix B Joint Stipulation and Motion (omitted from publication), these named employees received discipline for reasons unrelated to the cases at bar and their names were included in the Joint Stipulation by inadvertence Accordingly, they are not included in the recommended 'remedy 40 All amount necessary to make employees whole in accordance with the provisions of the recommended Order are to be computed in accord- ance with the general guidelines and principles established in F W. Wool- worth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 657 (1977) 1