Metropolitan Edison Co.

METROPOLITAN EDISON CO. Metropolitan Edison Company and Local 803, Inter- national Brotherhood of Electrical Workers, AFL-CIO. Cases 4-CA-12309 and 4-CA- 13068 17 July 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 11 February 1983 Administrative Law Judge Marvin Roth issued the attached decision. The Re- spondent filed exceptions, a supporting brief, and answering briefs; the General Counsel filed cross- exceptions and a supporting brief; and the Charg- ing Party filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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. This case involves two complaints consolidated for hearing. The judge found in Case 4-CA-12309 that the Respondent violated Section 8(a)(1) of the Act in June 1981 when it threatened employees with discipline if they failed to cross a picket line at a customer's plant. In addition, the judge found in Case 4-CA-13068 that the Respondent violated Section 8(a)(3) and (1) of the Act by disciplining 14 employees who refused to cross a picket line at the Respondent's headquarters in June 1982. For rea- sons set forth below, we reverse the judge's find- ings and conclusions, and we dismiss the complaint in its entirety. The Respondent is a public utility which pro- vides electricity throughout southeastern Pennsyl- vania. The Respondent and the Union have been parties to a series of collective-bargaining contracts covering the operating employees at issue. The rel- evant contract here, effective from 1 May 1981 through 30 April 1983, contains the following clause: ARTICLE XI NO STRIKES-NO LOCKOUTS 11.1 The Brotherhood and its members agree that during the term of this agreement there shall be no strikes or walkouts by the Brother- ' The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 313 hood or its members, and the Company agrees that there shall be no lockouts of the Brother- hood or its members, it being the desire of both parties to provide uninterrupted and con- tinuous service to the public. This language has appeared in all previous con- tracts between the parties for at least 25 years, and was not discussed during the prior three contract negotiations in 1978, 1980, and 1981. Arbitration awards issued in 1973 and 1979 which interpreted the no-strike/no-lockout clause to bar sympathy strikes and refusals by the Respondent's employees to cross picket lines established by stranger labor organizations. There have been no arbitral deci- sions to the contrary. In addition to the no-strike/no-lockout clause, the contract contains other references to the need for the Respondent to provide continuous service to its customers. Specifically, article II provides that employees will abide by the Company's rules and regulations in the interest, inter alia, of "conti- nuity of service"; articles III and VI permit the Company to allocate personal holidays and vaca- tion periods, "in order to insure orderly operations and adequate continuous service to the public"; and article V provides that employees shall not be re- quired to work out-of-doors in inclement weather unless such work is required to protect life or property or to maintain service. With the foregoing as background, we turn to the two cases consoli- dated in this proceeding. Case 4-CA-12309 The facts in this case were stipulated by the par- ties. During June 1981 crews of the Respondent's employees working at the Berks County TV Cable Company were confronted by an informational picket line established by the Reading Building and Trades Council. On several occasions the crews, after consultation with their supervisors, withdrew from the site because of the picketing. On 22 June the Respondent's officials advised the Union's president and employees that if the em- ployees refused to cross the picket line at the site on the following morning, they would be subject to disciplinary action, including suspension. The work was completed between 23 and 28 June, and no disciplinary action was taken against any em- ployee because of the picketing at the project. The judge found that the contractual no-strike clause did not waive the employees' statutory right to refuse to cross picket lines of other unions. Ac- cordingly, he concluded that the Respondent's threats of disciplinary action violated Section 8(a)(1) of the Act. In so finding, the judge relied 279 NLRB No. 47 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on Board precedent applicable at the time which held that a no-strike clause barred refusals to cross stranger picket lines only if the clause expressly re- ferred to such lines or there was extrinsic evidence clearly showing that the contracting parties intend- ed to bar such refusals.2 The Board, however, in Indianapolis Power & Light Co., 273 NLRB 1715 (1985), held that a broad no-strike clause, such as that presented here, waives the employees' right to honor stranger picket lines, absent evidence that the parties intend- ed to exclude sympathy strikes from the no-strike clause's scope. Here, the judge correctly found no evidence, either in bargaining history or past prac- tice, demonstrating that the parties expressly ex- cluded sympathy strikes from coverage of the no- strike clause. Accordingly, we find that the Re- spondent did not violate the Act when it threat- ened to discipline employees if they engaged in un- protected refusals to cross the picket line at the Berks County TV Cable Company in June 1981. Case 4-CA-13068 This case involves picketing by Roofers Local 30 on the morning of 2 June 1982 at the Respondent's headquarters in Reading to protest the presence of a nonunion firm which was performing roofing renovation work on the Respondent's building. The Respondent established a two-gate system to insu- late its employees from the picket line, but the Roofers did not honor the system and picketed at the entrance reserved for the Respondent's employ- ees. On 2 June, Local 30 picketed the headquarters' premises from 6:30 to 11 a.m. with approximately 150 to 200 individuals. Pickets carried signs which clearly identified the nonunion roofing contractor as the employer with whom Local 30 had its area standards dispute. The judge found that the picket- ing was characterized by mass picketing and block- ing of entrances, damage to vehicles, and threats and abusive language directed against the Respond- ent's personnel. Roofing nails dumped onto the driveways by the pickets caused flat tires on nu- merous cars. Pickets also dented several cars by kicking them, and scratched some cars as they tried to enter the premises. Nevertheless, 566 of the headquarters' 625 employees crossed the picket line and reported to work on time. Another 45 employ- ees crossed the line and reported to work up to I hour late. Only 14 employees did not report to work until after the picketing ceased. They did not cross the line because of fear of injury to themselves or to 2 Gary-Hobart Water Corp, 210 NLRB 742 (1974), enfd 511 F 2d 284 (7th Cir 1975), cert denied 432 US. 925 (1975), Southern California Edison Co, 243 NLRB 372 (1979), enfd 646 F 2d 1352 (9th Cir 1981) their vehicles. Instead of crossing the line and going to work, these employees met with the Union's president at a swimming pool about a mile from the headquarters facility to discuss what they should do. The 14 employees who attended this meeting returned to headquarters in the late morn- ing, reporting for work after the pickets had dis- persed. About a week later, each of the 14 employ- ees was issued a written "record of disciplinary action" slip which formally warned the employee because "[y]ou failed to report to work at your scheduled time and place until the pickets had cleared the area or the picketing activity had ceased." The warnings added that the employees failed to adhere to the Respondent's "longstanding position that it is each and every employee's re- sponsibility to report to work at their scheduled time and place despite the presence of picket lines." The employees were told that additional in- fractions could result in more severe disciplinary action. They were not paid for the hours they did not work. In finding that the Respondent's disciplining of the 14 employees was unlawful, the judge did not analyze the case under the waiver principles uti- lized in Case 4-CA-12309. As a threshold matter, the judge found that Roofers Local 30's picketing was unlawful secondary conduct under Section 8(b)(4) of the Act and therefore, even absent a waiver, the Respondent's employees' refusal to cross the picket line did not constitute protected sympathy strike activity under Section 7 of the Act. Nevertheless, the judge found that the em- ployees were engaged in protected activity by virtue of Section 502 of the Act, which provides that "the quitting of labor by an employee or em- ployees in good faith because of abnormally dan- gerous conditions for work at the place of employ- ment of such employee or employees [shall not] be deemed a strike under this Act." In this regard, the judge cited Local 30's mass blocking of entrances, property damage, and threats of violence. He also took into consideration the Respondent's inability to provide security for employees attempting to report to work, and what he found to be Local 30's "demonstrated and reported proclivity for engag- ing in picket line violence." In addition, the judge found that the further delay of the 14 disciplined employees in returning to work, even after the ces- sation of the "abnormally dangerous" picketing, was a consequence of the employees' exercise of what the judge deemed a protected corollary right under Section 502 to consult among themselves to decide what collective action to take with respect to the dangerous conditions. Accordingly, he held that the Respondent violated Section 8(a)(1) of the METROPOLITAN EDISON CO Act by disciplining the 14 employees. Further, the judge concluded that because the pool meeting was an ad hoc union meeting , the Respondent's disci- pline also violated Section 8(a)(3) of the Act. We disagree . Assuming, arguendo, that picket line violence and threats of such violence may con- stitute "abnormally dangerous conditions" under Section 502, we find that the evidence does not support the judge's conclusion that the Roofers' picketing presented abnormally dangerous working conditions for the 14 employees. The test for deter- mining if conditions are "abnormally dangerous" under Section 502 is an objective one; the state of mind of the employees invoking Section 502's pro- tection is not what is controlling.3 Here, Local 30's unlawful picketing , although reprehensible and clearly unprotected , did not pose any "abnormally dangerous" condition for employ- ees seeking to report to work. We note that there is no evidence of physical assault against any person. Pickets did not swing at, kick, or follow any employee attempting to cross the line and report to work. The threats and damage to em- ployees' vehicles in this case do not rise to the level of danger contemplated under Section 502.4 In addition, while not dispositive , it is significant that 611 of the Respondent 's 625 employees report- ed to work before the picketing ceased. On the basis of the foregoing, we find that the General Counsel has failed to sustain the burden of showing by ascertainable, objective evidence that abnormal- ly dangerous working conditions existed at the site on 2 June 1982,5 Accordingly, we find that the em- ployees' failure to report to work was not protect- ed by the Act, and therefore the Respondent's dis- cipline meted out to them was not unlawful. ORDER The complaint is dismissed. 9 Gateway Coal C o Y Mine W o r k e r s , 414 U S 368, 386-387 (1974), Redwing Carriers, 130 NLRB 1208 , 1209 (1961), enfd as modified 325 F 2d 1011 (DC Cir, 1963), cert denied 377 U S 905 (1964), Goodyear Tire & Rubber Co, 269 NLRB 881 (1984) 4 Prior Board decisions finding that Local 30 had engaged in picket line violence, cited by the judge, are irrelevant in determining whether abnormally dangerous conditions for work existed in the situation at issue here 5 In view of this confusion, we find it unnecessary to pass on whether the meeting at the swimming pool involved the exercise of any protected rights under the Act, and we do not rely on the judge's discussion in that regard Joel H. Levinson, Esq. and Carol F. Laskin, Esq., for the General Counsel. George A. Burnstein, Esq., of Philadelphia, Pennsylvania, for the Respondent. Alaine S. Williams, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE 315 MARVIN ROTH , Administrative Law Judge. These consolidated cases were heard at Reading , Pennsylvania, on November 9, 1982 . The charges were filed , respec- tively, on August 7, 1981, and July 8, 1982 , by Local 803, International Brotherhood of Electrical Workers, AFL-CIO (the Union). The complaint in Case 4-CA- 12309, which issued on September 22, 1981 , alleges that Metropolitan Edison Company (Respondent or the Com- pany) violated Section 8(a)(1) of the National Labor Re- lations Act. The gravamen of the complaint is that about June 22, 1981 , the Company allegedly unlawfully threat- ened its employees represented by the Union with sus- pension and other reprisals if they refused to cross a picket line established by Reading Building and Trades Council at Berks County TV Cable Company in Read- ing, Pennsylvania. The complaint in Case 4-CA-13068, which issued on August 12 and was amended on October 25, 1982, alleges that the Company violated Section 8(a)(1) and (3) of the Act. The gravamen of this com- plaint is that about June 11, 1982, the Company allegedly unlawfully issued disciplinary warnings to 14 named em- ployees, represented by the Union , because they refused to cross a picket line established by Local 30, Composi- tion Roofers, Damp and Waterproof Workers at the Company's headquarters in Muhlenberg Township, Pennsylvania . By its respective answers, the Company denies the commission of the alleged unfair labor prac- tices. By its answer in Case 4-CA-13068, the Company also raises three affirmative defenses . Two of these de- fenses are also pertinent to Case 4-CA-12309 and, indeed, present the principal issues in that case , namely, (1) whether the Union contractually waived any right of the employees to refuse to cross the picket line, and (2) whether the General Counsel , by reason of a stipulation in a prior unfair labor practice case , is precluded from asserting that there was no waiver . As will be discussed, Case 4-CA-13068 presents a more complex situation, in- volving other asserted questions of fact and law. All par- ties were afforded full opportunity to participate, to present relevant evidence , to argue orally, and to file briefs. The General Counsel, the Union, and the Compa- ny each filed a brief. On the entire record in this case' and from my obser- vation of the demeanor of the witnesses , and consider- ation of the arguments of counsel and the briefs submit- ted by the parties , I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, a Pennsylvania corporation , is a public utility engaged in providing electricity throughout south- eastern Pennsylvania. The Company's corporate head- quarters are located in Reading , Pennsylvania. In the op- eration of its business, the Company annually derives i The General Counsel's motion to correct the transcript is noted and corrected 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gross revenues in excess of $250,000, and annually re- ceives at its Pennsylvania facilities goods and materials valued in excess of $50,000 directly from points outside of Pennsylvania. It is undisputed, and I so find, that the Company is an employer engaged in commerce withing the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background: the Company's Operation, the Collective-Bargaining Relationship, Pertinent Contract Provisions, and Litigation Involving the No-Strike Clause The Company is a public utility and regulated as such by the Commonwealth of Pennsylvania. The Company, like other public utilities, is required by state law to "Furnish and maintain adequate, efficient, safe, and rea- sonable service and facilities, and to make all such re- pairs, changes, alterations, substitutions , extensions and improvements in or to such service or facilities as shall be necessary or proper for the accommodation, conven- ience and safety of its patrons, employees and the public." State law further requires that: "such service shall be reasonably continuous and without unreasonable interruptions or delay" 66 Pa. C.S.A. 1501. The company structure starts with the main corporate headquarters lo- cated in Reading (Muhlenberg Township), Pennsylvania, and it has four operating divisions headquartered in York, Lebanon, Reading, and Easton, Pennsylvania, re- spectively. The Company's operating employees are rep- resented by the International Brotherhood of Electrical Workers Union, and they are organized into five local unions: Local Union 1261 in York, Local Union 563 in Middletown, Local Union 1482 in Lebanon, Local Union 803 (the Union) in Reading, and Local Union 603 in Easton, Pennsylvania. These five locals bargain together through a Systems Council, U-9, with the Company for one unified collective-bargaining agreement that covers the entire system. The Company has approximately 1900 employees, of whom 1600 are represented by the IBEW. At the headquarters facility, which has a large number of clerical employees, there are approximately 625 employ- ees, of whom about 200 are represented in the bargaining unit. The current collective-bargaining contract was execut- ed on June 19, 1981, and is effective by its terms from May 1, 1981, through April 30, 1983. Article XI of the contract, captioned "no strikes-no lockouts" provides as follows: 11.1. The Brotherhood and its members agree that during the term of this agreement , there shall be no strikes or lockouts by the Brotherhood or its mem- bers, and the Company agrees that there shall be no lockout of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public The identical language has appeared in all prior con- tracts for at least a period of 25 years. The current con- tract also provides (art. IX) for a grievance procedure and submission of unresolved grievances to binding arbi- tration by a board of arbitration , consisting of a company representative, a union representative, and a third, impar- tial member. Article IX defines a grievance as a "viola- tion of the law governing employer-employee relation- ship, or a violation of the terms of this agreement, or any type of supervisory conduct which unjustly causes any employee to lose his/her job or any benefits arising out of his/her job." Article IX further provides with respect to the arbitration procedure: "A decision made by a ma- jority of the members of such a Board of Arbitration shall be binding upon the Company and upon the Broth- erhood for the term fo this agreemeent." Likewise, iden- tical language has appeared in all prior contracts for at least a period of 25 years. Article X of the contract pro- vides for submission of unresolved company complaints to binding arbitration in accordance with the procedure established under article IX, specifically "because of any matter in connection with this agreement , or because of failure of members of the Brotherhood to comply with the terms of this agreement." The contract does not ex- pressly relate the grievances and arbitration and the no- strikes-no-lockouts provisions. In addition to the no- strikes-no-lockouts article, the contract contains other references to continuous service. Specifically: article II provides that employees will abide by the Company's rules and regulations in the interest, inter alia , of "conti- nuity of service": articles III and VI permit the Compa- ny to allocate personal holidays and vacation periods, re- spectively, "in order to insure orderly operations and adequate continuous service to the public"; and article V provides that employees shall not be required to work out-of-doors in inclement weather unless such work is re- quired to protect life or property or maintain service. Union President John Burkhart testified without contra- diction that there was no discussion of the no-strikes-no- lockouts article in any of the contract negotiations in which he participated (1978, 1980, and 1981 ). No evi- dence was presented concerning discussions, if any, of the above-described provisions in any contract negotioa- tions. The no-strikes-no-lockouts clause and, specifically, the right or alleged right of unit employees to refuse to cross picket lines of other labor organizations have been the subject of two contractual arbitration proceedings. In 1972 employees represented by Local 603 (the Easton local) refused to cross a picket line established by a building trades council at a motel construction site. The council was protesting that the motel was being built with nonunion labor The Company was in the process of installing a transformer at the site. The Company sus- pended each of the employees for 1-1/2 days because of their refusal to cross the picket line. The Company also gave written warnings to other employees who engaged in a work stoppage in protest of the suspensions. Griev- ances were filed, and the matter was submitted to con- tractual arbitration. Local 603 did not argrue that the no- strikes-no-lockouts clause was inapplicable to such picket METROPOLITAN EDISON CO. 317 lines. Rather, Local 603 argued that the employees could not be required to cross the picket line if they believed it was unsafe to do so . However, Local 603 argued in sum that the test of safety was a subjective one, i .e., depend- ing on the state of mind of the employee , and that there was no assurance of safety even if the line appeared to be peaceful or the Union tested the line to determine if it could be crossed safely . The Company contended that the employees violated the no-strike clause, although as a matter of policy, it would not require employees to cross a picket line if there was evidence that it would be unsafe, or if the pickets were members of a striking union. Impartial Arbitrator S. Stanley Alderfer, with the con- currence of the company arbitrator (the union arbitrator dissenting), denied the grievances . In his opinion, Arbi- trator Alderfer held that : "In the absence of provision which specifically states that employees are not required to cross a picket line the no-strike provision must be upheld." In sum, he proceeded on the premise that the no-strike clause, on its face and without consideration of any extrinsic evidence , prohibited the unit employees from engaging in sympathy strikes or refusals to cross other unions' picket lines . Arbitrator Alderfer found on the evidence that the picket line was "peaceful " and did not pose "any latent danger or threat to safety in cross- ing it." He concluded that the Company had "proper cause" to discipline the employees who refused to cross the picket line and those who struck in protest of their suspension In 1977 some 137 company employees represented by Local 563 (Middletown Local) failed or refused to cross a picket line established by the Operating Engineers' union at the Company 's Three Mile Island nuclear gener- ating plant. Operating Engineers was protesting the fail- ure of a maintenance contractor to employ members of their union for certain tasks. The Company disciplined the employees . Suspensions were given to 121 employees ranging from 5 to 25 days. Local 563 President Lang and Vice President Light were given the greatest discipline (25 days' suspension). Local 563 filed grievances on behalf of all the suspended employees except Lang, and the matter proceeded through arbitration . Impartial Arbi- trator S . Harry Galfand ruled that the grievance on behalf of Light was not processed in a timely manner, and therefore was not arbitrable. Consequently the arbi- trator did not rule on the merits of the discipline given Lang and Light . In this arbitration proceeding, Local 563 unequivocally asserted that the employees were priv- ileged to refuse to cross the picket line. Local 563 argued that the failure of employees to cross the picket line did not constitute a work stoppage within the meaning of the contract, and that, in any event, the employees were jus- tified, either because they feared violent reprisals from the pickets , or because they were not adequately ap- prised by the Company that they were obliged to cross. The Company restated its position previously asserted before Arbitrator Alderfer . Arbitrator Galfand held, on the authority of and in agreement with Arbitrator Al- derfer's decision , that: "The term `strikes or walkouts' must be considered as comprehending an unwarranted refusal to cross a stranger picket line , particularly in the context in which it appears," i.e., the reference to unin- terrupted and continuous service . Like Arbitrator Al- derfer, he did not consider any extrinsic evidence on the applicability of the no-strike article. Arbitrator Galfand found on the evidence that the Company made clear its position that the employees were required to cross the picket line, that the line did not present any real danger to safety, and that the alleged fear of violence was a pre- text for employee unwillingness to cross the picket line. The arbitrator held that the Company had "proper cause" for disciplining the employees , but that the sus- pensions were excessive in some cases . He directed that the discipline be reduced accordingly. In the meantime, Local 563 filed an unfair labor prac- tice charge on behalf of its officers Lang and Light, and a complaint was issued . (Case 4-CA-9144.) The com- plaint in that case is not a part of the record in the present case . However the issue presented, as defined by Administrative Law Judge Michael O . Miller, was whether the Company violated Section 8 (a)(1) and (3) of the Act "when it disciplined union officers [Lang and Light] more severely than rank-and-file union members for their participation in an unlawful work stoppage." At the hearing , Judge Miller asked whether "there is any question but that the work stopage was a breach of the collective-bargaining agreement ." Counsel for the Gener- al Counsel answered : "No, that is not an issue of the liti- gation . We stipulate that it was in contravention of the no strike clause." After counsel for Respondent ex- pressed concern that "I do not want to present my case and find myself defending a new theory," counsel for the General Counsel again confirmed his stipulation concern- ing the "illegality of the work stoppage," and asserted in his opening argument that the employees participated in a "work stoppage in contravention of a no-strike clause in the contract." No evidence, beyond the General Counsel's stipulation, was presented on this aspect of the case. Local 563 was not represented at the hearing. Sub- sequently Judge Miller held that the Company 's disci- pline of Light and Lang, "to the extent that it exceeded the discipline given to rank-and-file employees who re- fused to cross the picket line on August 30, 1977, consti- tuted discrimination based on their holding of union office and violated Section 8(a)(3) and ( 1) of the Act." On the basis of the General Counsel's stipulation, Judge Miller found, in his decision , "that the refusal of the members of [Local 563] to cross the picket line and report to work was a violation of the no-strike clause." (252 NLRB 1030 (1980).) (See also fn. 4 at 1035.) On September 30, 1980, the Board, in agreement with Judge Miller, held that the Company unlawfully discriminated against Lang and Light "by disciplining them more se- verely than rank-and-file employees for breaching the no-strike clause in the contract." (252 NLRB at 1030 fns. I and 2.) The Court of Appeals for the Third Circuit subsequently granted enforcement of the Board's Order (663 F.2d 478 (1981)). The Supreme Court granted certi- orari, and the case is now pending before that Court. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts in Case 4-CA-12309 The facts in this case were stipulated by the parties. During the spring of 1981,2 the Company was engaged in the installation of a three-phase hag mount transformer to provide three-phase service for the new operating headquarters building at the Berk's TV Cable Company at 400 Riverfront Drove , Reading, Pennsylvania. Early in April, the general contractor erecting the building called and advised that the Company could commence with the installation of the conduit and switching volt necessary to connect the new building up with the exist- ing Metropolitan Edison underground distribution lines. Between April 8 and June 22, several crews of company employees represented by the Union encountered an in- formational picket line established by the Reading Build- ing and Trades Council at the building site . On June 15 the crew was confronted by the informational pickets. On that occasion, the Company waited until the pickets left prior to installing a transformer. On June 18 a crew assigned to the project to install cable and connecting devices in the switching volt was confronted by the in- formational pickets , and, after consultation with their su- pervisor, withdrew from the construction site. On June 22 the crew assigned to make cable connections to the switching volt and transformer were again confronted by informational pickets. After conferring with their super- visor, they withdrew from the site. On the afternoon of June 22, Charles E. Herkert, man- ager of labor relations for the Company, via telephone told Union President John Burkhart (himself an employ- ee) that if the employees represented by the Union re- fused to cross the picket line at the Berks County TV Cable Company on the following morning, they would be subject to disciplinary action, which could include days off. Also on the afternoon of June 22, the Company conducted a meeting in the EC & M department charged with the work of completing the installation . William Shelly, superintendent of construction , advised the em- ployees that the Company had attempted to contact the Union to ensure that the work would not be interfered with. Shelly further stated that it was the Company's po- sition that it had no choice but to serve the new custom- er. He then told the employees that if they refused to do the work on the project on the following morning, that they would be subject to disciplinary action, which could include days off. Thereafter the work was com- pleted during the period between June 23 and 28. No disciplinary action was taken against any employee as a result of the incident involving the Berks TV Cable project. C. Analysis and Concluding Findings with Respect to Case 4-CA-12309 This case presents, without complicating factors, the issue of contractual waiver, and the related question of whether the prior Metropolitan Edison case precludes litigation of that issue. Therefore I shall use this case as the vehicle for resolving these questions. 2 All dates in sec B are in 1981 First, I agree with the General Counsel's position (Br. 11-17) that the doctrines of res judicata and collateral es- toppel do not preclude litigation of the waiver issue in the present case.3 Under the doctrine of res judicata, "a judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955). Under that doctrine, once a final and valid judgment on the merits is ren- dered, "the parties to the suit are thereafter bound not only as to every matter which was offered and received to sustain or defeat the claim or demand but to every other admissible matter which might have been offered for that purpose." Commissioner v. Sunnen, 333 U.S. 591, 597-598 (1947). Thus res judicata precludes the relitiga- tion of issues germane to a cause of action without regard to whether they actually were raised or deter- mined in the original litigation. However, res judicata operates only for litigation arising out of the same "cause of action, " which has been defined for res judicata pur- poses as "a situation or state of facts which would entitle a party to sustain an action and give him the right to seek judicial interference on his behalf." Thompson v. Zurich Insurance Co., 309 F.Supp. 1178, 1181 (D. Minn. 1970). The prior Metropolitan Edison case involved events in 1977 and, specifically, the Company's action in disciplining two union officials more severely than other members of Local 563 for their refusal to cross the Oper- ating Engineers' picket line at Three Mile Island. The present case involves the Company's threats of discipli- nary action against members of the Union who refused to cross the Building Trades' picket line at Berks TV Cable Company in June 1981. There is no allegation of disparate treatment of union officers. Therefore the present case involves a different cause of action from that in the prior case, and the doctrine of res judicata is not applicable. Under the doctrine of collateral estoppel, a judgment on the merits in a prior suit involving the same parties or their privies "precludes relitigation of issues actually liti- gated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit." Lawlor v. National Screen Service, supra (emphasis added). Therefore, the doctrine of collateral estoppel would be applicable if the stipulation in the prior case were viewed as a matter "litigated and deter- mined" in the prior case. The case authorities differ on whether and to what extent the doctrine of collateral es- toppel applies to a judgment based on stipulated facts. The American Law Institute has adopted the position that a judgment should conclusively establish stipulated facts for the purpose of collateral estoppel only if that in- tention is evidenced by the stipulation. See IB Moore, Federal Practice ¶ 0.444 at fn. 4. That position was en- dorsed and adopted in Anderson Clayton & Co. v. U.S., 562 F.2d 972, 992-993 (5th Cir. 1977), cert. denied 436 3 The Company has by its answer to the complaint in Case 4-CA- 13068, and in its brief (Br 9) invoked the stipulation in the prior case as a defense in this proceeding However the Company has not explained whether and if so why that stipulation should preclude litigation of the contractual waiver issue METROPOLITAN EDISON CO U.S. 944 (1977). In Anderson, which was a tax case, the Court held that: "The presumption is that an issue re- solved by stipulation of concession in one suit is not con- clusively established in a subsequent suit on a different cause of action unless it is clear that the parties so in- tended." The Anderson approach is particularly appropri- ate to Board litigation, involving as it does, litigation by a Government agency in furtherance of a statutory scheme of regulation. The processing of Board cases through investigation, litigation, and decision may well involve the exercise of selective discretion to avoid issues which might be more appropriately considered in a dif- ferent context. Therefore, in determining whether the stipulation in the prior case precludes litigation of the issue of contractual waiver in the present case, we should look to the evident purpose of the stipulation. I find, on consideration of the evidence with respect to the prior proceeding, that the General Counsel did not intend, by the stipulation, to finally resolve the question of whether the contract prohibited sympathy strikes or refusals to cross other unions' picket lines. At the time of the unfair labor practice hearing, that question (arising out of the same series of events) was pending before Ar- bitrator Galfand, with Local 563 taking the position that its members were not contractually prohibited from re- fusing to cross the Operating Engineers' picket line. Local 563 was not represented at the unfair labor prac- tice hearing, and no charge was filed on behalf of any of the disciplined employees except Lang and Light. That charge was based solely on the premise that the Compa- ny acted unlawfully by disciplining the two union offi- cials more severely than rank-and-file union members If Lang and Light engaged in activity which was contrac- tually prohibited or otherwise unprotected by the Act, the General Counsel could have contended that any dis- cipline against them was unlawful. However, the Gener- al Counsel contended (and correctly so under Board law) that the Company violated the Act by disciplining Lang and Light more severely than other employees, without regard to whether the contract prohibited them from refusing to cross the picket line. In these circum- stances, it is unlikely that the General Counsel would have nullified Local 563's position in the pending arbitra- tion proceeding by entering into a stipulation which fi- nally resolved the question of contractual waiver. More- over, the General Counsel may have wished to avoid liti- gation of other questions. Thus, the Company might have contended in the alternative that the picket line was unlawful, e.g., that it was violative of Section 8(b)(4)(B) or (7)(C) of the Act. Indeed, the General Counsel gave no explanation of why the work stoppage "was in con- travention of the no strike clause." I find that the Gener- al Counsel, by the stipulation, indicated an intention to avoid litigation of the question of contractual waiver. Therefore the stipulation in the prior case and the Board decision, insofar as based on that stipulation, does not preclude litigation of the question in the present case. With regard to the question of waiver, the applicable principles were restated in ACF Industries, 247 NLRB 1056 (1980), enf. denied on other grounds 641 F.2d 561 (8th Cir. 1981). The right to strike, including the right to engage in sympathy strikes or in refusals to cross other 319 unions' picket lines, is a right guaranteed by the Act. The right may be waived by appropriate provisions in a collective-bargaining agreement. However, such waivers will not be readily inferred. Rather, such a waiver must be "clear and unmistakable." Contractual waiver of the right to engage in sympathy strikes or to honor the picket lines of other unions will only be found if such an intent is embodied expressly in the parties' collective-bar- gaining agreement or is clearly evident from the parties' bargaining history. At "the very least," the parties must "have discussed the question and, preferably, have es- pressly embodied in their agreement their intent to extend a strike ban to sympathy strikes." Operating Engi- neers Local 18 (Davis-McKee, Inc.), 238 NLRB 652, 653 (1978). Moreover, no-strike clauses which proscribe work stoppages or strikes, but do not expressly refer to sympa- thy strikes or refusals to cross another union's picket line, cannot, standing alone, be deemed as an express waiver of the statutorily protected right to cross another union's line. The rationale for this rule, in sum, is that or- dinally no-strike clauses are a quid pro quo for binding arbitration of disputes between the parties. Therefore if the dispute is arbitrable, it is presumed that the no-strike agreement prohibits employees from engaging in work stoppages in furtherance of that dispute. However, as a sympathy strike involves a dispute or disputes which are not subject to arbitration between the parties to the no- strike agreement, the no-strike agreement will not, absent other evidence, be deemed as a waiver of the right of unit employees to honor the other unit's picket line. In the present case, the no-strike clause does not con- tain any express reference to sympathy strikes or refusals to cross other unions' picket lines. The clause, on its face, prohibits only "strikes or lockouts by the Brother- hood or its members." The record is devoid of evidence concerning discussions, if any, of the no-strike clause or other arguably related contract provisions. The Compa- ny, in its brief, places great emphasis on its status and ob- ligations as a public utility, and on the reference in the no-strike clause to the parties' desire to provide uninter- rupted and continuous service to the public. However, in the absence of extrinsic evidence concerning the intent of the parties in inserting this language, it cannot be as- sumed that the IBEW and its locals thereby waived rights which they would otherwise have under the Act. Employees of public utilities are not exempt from the protection of the Act, and the Board has not established separate rules for that industry. Rather, the Board has applied the foregoing principles to public utilities as well as other employers. Gary-Hobart Water Corp., 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir 1975), cert. denied 432 U.S. 925 (1975), like the present case, in- volved a public utility. The no-strike clause expressly provided that there would be "no strike, stoppages of work or any other form of interference with any of the production or other operations of the Company by the Union or its members," and that this commitment was "in consideration of".the parties' understanding that "the services to be and being performed by the employees covered by this agreement pertain to and are essential to 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the operation of a public utility and to the welfare of the public dependent thereon." Nevertheless, the Board, with court approval, held that the signatory union did not thereby waive the statutory right of its members to engage in sympathy strikes See also Southern California Edison Co., 243 NLRB 372 (1979), enfd. 646 F.2d 1352, 1365 (9th Cir. 1981), also involving a public utility, in which the court rejected the same kind of argument presently advanced by the Company. The present record fails to indicate that the signatory unions, either by word or action, ever acquiesced in the Company's position that the no-strike clause prohibits sympathy strikes or refusals to cross other unions' picket lines On the contrary, the evidence indicates that this has been a matter of dispute for many years. In the 1972 arbitration proceeding, Local 603 argued that its mem- bers could not be required to cross a picket line if they believed it was unsafe to do so. However Local 603's concept of safety was so broad as to effectively leave the employees free to refuse to cross even a peaceful and or- derly picket line In the later proceeding before Arbitra- tor Galfand, Local 563 flatly contended that the failure of employees to cross the Operating Engineers' picket line did not constitute a work stoppage under the con- tract. The stipulation in the concurrent unfair labor prac- tice case cannot be considered as evidence of a waiver by the signatory unions. As discussed, Local 563 was not a party to the stipulation, the stipulation reflected an intent to avoid litigation of the question, and Local 563 was concurrently arguing in the arbitration proceeding that the employees did not violate the contract. The 1973 and 1979 arbitration awards cannot be viewed as extensions of the current contract. As indicat- ed, the arbitration clause expressly provides that an arbi- tration award shall be "binding upon the Company and the Brotherhood for the term of this agreement." As the grievances in those proceedings were filed under prede- cessor contracts, the awards do not constitute a part or extension of the current 1981-1983 contract. I further find, on consideration of the evidence and applicable principles of Board policy, that the awards are also not entitled to deference as valid precedent or controlling authority on the meaning of the current contract The Board, in the exercise of its jurisdiction to hear and decide unfair labor practice cases, may properly resolve questions of contract interpretation and, in so doing, may invoke its "superior authority" over the arbitration proc- ess. Casey v. Westinghouse Electric Corp., 375 U S. 261, 268, 272 (1964). However, as a matter of policy, the Board will defer to an arbitration award if (1) the pro- ceedings appear to have been fair and regular, (2) all par- ties had agreed to be bound, and (3) the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955) In the present case, both arbitration awards fail to meet the third standard. Both Arbitrator Alderfer and Arbitrator Galfand based their decisions on the premise that the no-strike clause, on its face, prohibited unit employees from refusing to cross the picket lines of other unions. Neither arbitrator considered extrinsic evi- dence on the meaning of the clause The arbitrators thereby interpreted the article in a manner contrary to the Act, as interpreted by the Board, and which in- fringed on rights protected under the Act Therefore the arbitration awards, insofar as pertinent to the issues pre- sented in this case, were "clearly repugnant to the Act," and deferral would not be appropriate. Inland Steel Co., 264 NLRB 84 (1982).4 In sum, the evidence fails to indicate that the signatory unions to the contract waived the statutory right of unit employees to refuse to cross picket lines of other unions. Therefore the Company violated Section 8(a)(1) of the Act by threatening its employees with suspension or other disciplinary action if they refused to cross the Building and Trades Council picket line at Berks County TV Cable Company. D. The Facts in Case 4-CA-13068 This case involves picketing by Local 30, the Roofers' union, on the morning of June 2, 1982,5 at the Compa- ny's headquarters building in Reading. The building is lo- cated on a large tract of land which is bounded on the east by Route 61 (Pottsville Pike), on the south by Hart- man Road, and on the west by Leitz' Bridge Road. The main entrance, which leads to the front entrance of the headquarters building, is located on Route 61, opposite George Street. There is also a diner which is located across Route 61 from the headquarters building A second entrance is located on Hartman Road There are also two entrances on Leitz' Bridge Road, just north of a building used by the telephone company for servicing of vehicles, and northwest of the headquarters building. The first is known as the pole yard gate. The two en- trance roads converge at a point about 60 feet within the Company's premises. There is a fence along Leitz' Bridge Road, and the two entrances are normally locked. There is also an internal fence where the two roads con- verge. The Company's customers and employees normal- ly use either the main entrance or the Hartman Road en- trance, although all entrances lead to the parking area behind the headquarters building. The headquarters building is visible from the entrances on Leitz' Bridge Road, although those entrances are much farther from the headquarters building than the main and Hartman Road entrances. Leitz' Bridge Road is heavily traveled, although less so than Route 61 and Hartman Road. In May, the Company contracted with Acoustical Supply Insulators (ASI), a nonunion firm, to perform roofing renovation work on the headquarters building. The work was to provide labor and material to apply polyurethane foam roof installation to sections of the building. The evidence fails to indicate either that the work was related to the Company's normal operations, or involved any curtailment of those operations. ASI commenced work on May 17 and completed the job on June 23. At the time ASI commenced work, the Compa- ny, anticipating labor trouble, posted the following sign * The Company's reliance on Fournelle v NLRB, 670 F 2d 331 (D C. Cir 1982) (Br 12-13), is misplaced In that case , unlike the prior Metro- politan Edison case, neither the Board not the court of appeals discussed the applicability of Spielberg standards 5 All dates in this sec D are in 1982 unless otherwise indicated METROPOLITAN EDISON CO at the second entrance on Leitz' Bridge Road (sometimes referred to as the "reserved gate"): RESERVED GATE Employees, Suppliers, Contractors and Visitors of Metropolitan Edison Company, except those work- ing on the Roof Repair Project, are prohibited from using this entrance. Those working on the Roof Repair Project, including employees & suppliers of Acoustical Spray Insulators, are to use this gate ex- clusively. ASI was informed of the reserved gate. However the sign was not uniformly honored even before the picket- ing which took place on June 2. Specifically, ASI em- ployees sometimes entered and left the premises through the Hartman Road entrance. Company Labor Relations Manager Charles Herkert and Superintendent Paul Winter each admitted, in their respective testimony, that on the morning of the picketing they entered the Compa- ny's premises through the reserved gate. No signs were posted at any other entrance until after the picketing.6 On June 1 Labor Relations Manager Herkert and his assistant, Supervisor of Labor Relations Edmund Zubey, met with four representatives of Local 30 (the Roofers' Union) 7 Business agent Steve Trate acted as spokesman 6 After the picketing ceased, the Company posted signs at other en- trances, indicating that ASI and its suppliers were not to use those en- trances, but must use the reserved gate marked for their exclusive use ' The General Counsel contended at the hearing and again contends in its brief (Br 34-36) that testimony by company officials concerning their conversations with representatives of Local 30 without the presence of the Union constitute hearsay, and therefore cannot be considered as evi- dence on the question of whether Local 30's picketing was secondary and violative of Sec 8(b)(4)(B) of the Act I do not agree with this con- tention The testimony was admitted for the fact of the conversations, and not necessarily for the truth of assertions made by Local 30 in those conversations, e g , that ASI did not adhere to OSHA standards or proper standards with regard to minority hiring Therefore, insofar as pertinent to the issue at hand, the testimony did not constitute hearsay Moreover, insofar as pertinent, the statements by Local 30 officials con- stituted admissions against interest, which fall within an exception to the hearsay rule Specifically, it is unlikely that the Local 30 officials would have admitted a secondary object, and subject their union to potential monetary and other liability, unless in fact Local 30 actually had a sec- ondary object Therefore there is present at least that the prima facie guarantee of reliability which forms the basis of exceptions to the hearsay rule The portion of Chevron, USA, Inc, 244 NLRB 1081, 1085 (1979), relied on by the General Counsel (Br 36) is dicta The thrust of the Board's holding is that in cases such as these, the respondent employer cannot be deprived of an opportunity to prove, by way of defense, that the picket line was violative of Sec 8(b)(4)(B), simply because no charge was ever filed against the picketing union The Board noted that all par- ties, including the picketing union, were present at the unfair labor prac- tice case However the Board did not hold that such presence was an indispensible prerequisite to litigation of the question Indeed, a respond- ent employer could or would be effectively precluded from questioning the legality of picketing if it could do so only by utilizing the testimony of the picketing union's agents In the present case, the representatives of Local 30 were not presented as witnesses, although both the Company and the General Counsel presented evidence of statements made by Local 30's agents, including its pickets The absence of testimony by Local 30 agents might be considered on the weight to be accorded to the testimony by the company officials However, the General Counsel never requested leave to produce the Local 30 representatives, and the testimo- ny of the company officials (like that of the General Counsel's witnesses concerning statements made by pickets) stands unrefuted 321 for Local 30. He complained that ASI was nonunion and did not observe proper health and safety and minority hiring standards. Herkert answered that Local 30's prob- lem was with ASI and questioned whether he could do anything. Trate replied that the Company could "get these people off the property or make it possible for us to get together with them so that we can work some- thing else." Herkert said that he had no authority to remove ASI, but would speak to its president Herkert also said that the Company had designated a gate for ASI's use, and that any picketing should be confined to that gate The Local 30 representatives indicated that they were aware of the reserved gate. As they left, Trate said that they were not getting anywhere and that the Company would be hearing form them In the meantime, even prior to June 1, at least some company supervisors informed employees that if there was picketing, they should try to report to work. In the meantime also, the Union attempted to resolve the problem. Local 30 Presi- dent Fox told Union President Burkhart that the Compa- ny had hired a nonunion contractor With the Compa- ny's assistance, Burkhart tried to set up a meeting, but the effort failed when ASI failed to show up at the meet- ing. Fox then informed the Company and the Union that Local 30 would probably put up a picket line. On June 2, after the picketing commenced, Company Officials Herkert and Zubey spoke to Local 30 business agent Carlton Brown on the picket line. Herkert complained that Local 30 did not give him a chance to contact ASI President Jones. Brown asserted that it was useless, be- cause he had also been trying to contact Jones. Brown asked Herkert to "give us the work," and then Local 30 would remove the pickets. Herkert answered that he had no authority to remove ASI. On June 2, Local 30 picketed the headquarters prem- ises from 6:30 to approximately I 1 a in. and did not resume thereafter. There were 150 to 200 pickets. Picket- ing took place at all entrances. Pickets carried signs which clearly indentified ASI as the employer with whom Local 30 had its dispute.8 The picketing was characterized by mass picketing and blocking of en- trances (principally at Route 61 and Hartman Road), damage to vehicles, and threats and abusive language di- rected against company personnel. However there was no actual physical assult against any person. ASI em- ployees arrived at their jobsite, but did not work because of the picketing. Local 30's actions were substantially di- rected against the Company's personnel, and the pickets were aware of that fact. The pickets dumped roofing nails onto the driveways, as a result of which numerous employees' cars suffered punctured tires. Pickets also kicked (causing dents) or scratched employees' cars as they entered or tried to enter the premises The Compa- ny discovered that prior to the commencement of picket- ing, rocks had been thrown through its front windows. The resulting damage was visible to persons approaching the main entrance. However, responsibility for this van- dalism was never established. Most of the Company's a The signs stated that "[ASI] does not pay area wages No dispute with any other employer [Local 301 " 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees reported to work before the picketing ceased. Many parked their cars elsewhere and walked to work. As indicated, most of the headquarters personnel were nonunit supervisors or clerical employees. Most of the latter were women. The testimony of witnesses for both sides indicates, in sum, that the pickets tended to grudg- ingly permit these personnel through their lines, but were more determined to dissuade unit employees from crossing their picket line. The General Counsel presented the testimony of 8 Reading unit employees, 6 of whom were among the 14 employees who were subsequently disciplined by the Company.9 The parties stipulated that seven of the remaining alleged discriminatees, if called by the General Counsel, would have testified substantial- ly as those who did testify. The employee witnesses testi- fied, in sum, that they initially attempted to but did not cross the picket line because of fear for their personal safety and/or damage to their vehicles. Union President Burkhart (who was not disciplined) testified that when he sought out Local 30 President Fox on the picket line pickets gathered around, told him he could not go through, called him scab, and asked how he would like to be shot in the foot. A picket told lineman Daniel Bor- rell that he should not get involved with the picket line because "we are for real." Barry Seidel and Marvin Newpher were stopped by a group of 25 to 30 pickets, I of whom said: "If you want to go in, go ahead. We can mess your truck up, or mess you up." The alleged discri- minatees also observed acts of picket line misconduct previously described. Union President Burkhart assumed a leadership role in the situation. He went to the office of Central Division Manager Ernest Elliehausen and Central Operating Su- perintendent Paul Winter. Burkhart asked if his members could take a day's vacation if they could not get through the picket line. The supervisors gave their approval.10 Burkhart then contacted Labor Relations Manager Her- kert, learned that Herkert was consulting with the Com- pany's attorney, and thereupon told Local 30 President Fox that "the lawyers would do the talking." There is no direct evidence why Local 30 withdrew its pickets. However, in the circumstances, the inference is warrant- ed that Local 30 withdrew its pickets after discussion among the lawyers for the parties. In the meantime, Burkhart made what turned out to be a fateful decision He went across Route 61 to the diner where a number of employees had gathered, and asked the union members to meet with him at a swimming pool about 1 mile away. Some 20 to 25 employees, including all of the alleged 9 The alleged discnmmatees are employees Richard Merkle, Richard Christ, Harley Moyer, Joseph Rodriguez, Curtis Conrad, Daniel Sorrell, Barry Seidel, Craig McAlveye, Carl Nuding, J Marvin Newpher, Rodney Roeder, K William March, R Walter Drumheiser, and Glenn Sillhart 10 I credit the testimony of Burkhart in this regard The testimony of the supervisors was contradictory and vague on the matter Elliehausen testified that one employee, on his request, was permitted to use vacation time, but that there was no general promise However Winter testified that they discussed at least four employees whose supervisors told them that they could take vacation time I also find it unlikely that Burkhart would have agreed to vacation time for some, but not all union members, at least not without putting up an argument or questioning the reason for such a policy discriminatees, went to that meeting. At the meeting, Burkhart told the employees that if they could not get through the picket line, he would talk to the Company, and it would be all right for them to take a day's vaca- tion. The meeting was brief, and the employees then re- turned to the headquarters building. However, by the time they returned, the pickets had withdrawn, and all other employees had returned to work. Consequently the employees who attended the meeting were the last to return to work, and they did so after the pickets dis- persed. In the meantime, the Company, already well versed in litigation involving the effect of picket lines by outside unions, was carefully monitoring the reactions and re- sponses of its employeees to the Local 30 picketing. On the morning of June 2, Labor Relations Manager Herkert met with other supervisory personnel and discussed the facts with respect to those employees who were late for work. The supervisors prepared a "detailed history on each individual" known to be late for work, including their names, what was said to them, what they said to the Company if they called in, and what action was taken by the employees. According to Herkert, a about 45 employees were late for work, but to its knowledge, only the 14 disciplined employees failed to report to work until after the pickets dispersed. Additional evi- dence further indicated that the Company was aware of the impromptu union meeting. When lineman Curtis Conrad returned to work, his supervisor, Roy Schoen- gard, asked if he was one of those at the diner. Conrad answered that he was. When lineman Richard Christ re- turned to work, his supervisor asked: "Are you one of them?" Christ professed not to understand, whereupon the supervisor replied: "[Y]ou know what I'm talking about." Christ then said: "Well, if you mean did I just come in, I said I did." On the afternoon of June 2, Herkert told Union Presi- dent Burkhart that those employees who reported to work after the pickets left would receive disciplinary action. Burkhart argued that Elliehausen and Winter promised that the employees could take a day's vacation. Herkert responded that this was not appropriate. Later in the day, Elhehausen and Winter promised that the em- ployees could take a day's vacation. Herkert responded that this was not appropriate. Later in the day, Elliehau- sen and Winter told Burkhart that there would not be disciplinary action, but that in the future employees would have to report to work. However at a meeting be- tween the Company and the Union on June 11, the Com- pany informed the Union that it was disciplining the 14 previously named employees. Each employee was given a written "record of disciplinary action," indicating that the employee was being warned because: "You failed to reprot to work at your scheduled time and place until the pickets had cleared the area or the picketing activity had ceased." The Company asserted that the employees failed to adhere to the Company's "longstanding position that it is each and every employee's responsibility to report to work at their scheduled time and place despite the presence of picket lines." The employees were fur- ther warned that future infractions could result in more METROPOLITAN EDISON CO severe disciplinary action. It was stipulated that the disci- plinary warnings were placed in the employees' person- nel files and, pursuant to the warnings, the employees were docked pay for the hours they did not report to work on June 2. Employee David Ray, who was not disciplined, testi- fied that he reported to work after the pickets left. The General Counsel waived further opportunity to present evidence that other employees reported to work after the pickets left, but were not disciplined. Ray did not indi- cate whether he attended the meeting at the pool. So far as is indicated by the present record, the only employees who reported to work after the pickets left were those who attended the meeting , and they were late in return- ing to work because of their attendance at that meeting. I am not persuaded that the evidence demonstrated knowing disparate treatment among employees who re- ported to work after the pickets left. Rather the infer- ence is warranted that the Company did not discipline other employees who failed to report until after the pick- ets left, because the Company did not have definite infor- mation that such was the case. However, I find that the Company knew of the inpromptu union meeting, knew or had reason to believe that the 14 disciplined employ- ees attended that meeting, and knew or had reason to be- lieve that they were the last to return to work because of they attendance at that meeting. The significance of these findings will be discussed in the next section of this decision. E. Analysis and Concluding Findings in Case 4-CA- 13068 This case, unlike Case 4-CA-12309, cannot be re- solved simply on the question of waiver. The Company contends, by way of affirmative defense, that Local 30's picket line was not a lawful or primary picket line, and therefore that the employees were not privileged to honor such picket line. For the reasons next discussed, I find that the picketing was secondary and violative of Section 8(b)(4)(i) and (ii) first part (B) of the Act. There- fore, a voluntary and uncoerced refusal by company em- ployees to cross the picket line would not constitute ac- tivity protected under Section 8(a)(1) of the Act. At the time of the picketing, ASI, the "primary" em- ployer with whom Local 30 had its dispute, was tempo- rarily engaged in performing work on the Company's premises. That work was unrelated to the normal oper- ations of the Company and did not involve any actual or potential curtailment of the Company's normal oper- ations. Therefore, for purposes of applying secondary boycott law, the headquarters' premises constituted a "common situs," i.e., a situation where two employers are engaged in performing separate tasks on common premises. See Electrical Workers IBEW Local 761 v. NLRB, 366 U.S. 667 (1961 ). In these situations, unlike those involving picketing at a primary site, e.g., ASI's permanent place of business, the picketing union's right to publicize its dispute must be carefully accommodated to the right of neutral or "secondary" employers and em- ployees to remain uninvolved in that dispure. If the evi- dence indicates that by its picketing, the picketing union is coercing or restraining neutral employers or inducing 323 neutral employees to engage in work stoppages to force neutral employers to cease doing business with other neutrals or with the primary employer, then the picket- ing is secondary and unlawful . In making the determina- tion of whether common situs picketing is lawful or pro- scribed, the Board, with Court approval, has developed certain evidentiary standards . The starting point is the four standards set forth in Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). Additionally, the Board has developed what might be described as a fifth Moore Dry Dock standard, namely, the reserved gate doctrine. How- ever, outward compliance with these standards does not immunize the picketing from the proscription of Section 8(b)(4)(B), if the picketing union demonstrates in any other manner that the intent and purpose of the picketing is to appeal to employees of neutral employers or to oth- erwise pressure the neutral employers. See Electrical Workers IBEW Local 480 v. NLRB, 413 F.2d 1085, 1089 (D.C. Cir. 1969); Teamsters Local 126 (Ready Mixed Con- crete), 200 NLRB 253, 254 (1972). In the present case, the picketing complied with three of the Moore Dry Dock standards, and superficially com- plied with the fourth. ASI was engaged in work on the Company's premises and therefore the premises constitut- ed a situs of the dispute. At the time of the picketing ASI was engaged in its normal business on the situs (ASI was absent only because of the picketing itself). Third, the picketing was limited to entrances to the situs. Fourth, the picket signs clearly disclosed that Local 30's dispute was with ASI. I further find that the reserved gate standard is not applicable in this case. An employer has the right, in order to minimize the impact of picket- ing on neutral employers and employees, to mark and set aside a separate entrance for the exclusive use of the pri- mary employer, its deliverymen, and suppliers, and thereby confine the picketing union to that entrance. General Electric, supra, 366 U.S. at 681-682. In the present case, the Company attempted to do this. Howev- er the reserved gate was not honored, because ASI per- sonnel used other entrances, and therefore Local 30 was privileged to picket those entrances in a lawful manner. i i Notwithstanding this surface compliance with Moore Dry Dock standards, the evidence demonstrates that Local 30's picketing was secondary and unlawful. First, when Local 30 Business Agent Brown spoke to the Company's officials on the picket line, he made clear that Local 30 had given up on its efforts to deal directly with ASI, and that the pickets would be removed only if the Company replaced ASI with a union contractor. Local 30 thereby demonstrated that the picketing had a second- ary and unlawful object. See Electrical Workers IBEW Local 480 v. NLRB, supra, 413 F.2d at 1089; Chevron, U.S.A., supra, 244 NLRB at 1086. Second, Local 30 con- ducted its picketing in such a manner as to deliberately 11 However, I do not agree with the General Counsel's argument (Br 37-38) that the reserved gate on Leitz ' Bridge Road was inadequate to enable Local 30 to legitimately publicize its dispute The reserved gate was properly posted, located on a well-traveled road, and reasonably close to the headquarters building where ASI was performing its work See Plumbers Local 398 (Robbins Plumbing), 261 NLRB 482 (1982) 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enmesh neutral employers and employees. Specifically, Local 30 engaged in mass picketing and blocking of en- trances, acts of property damage indiscriminately direct- ed at all persons seeking to enter the Company's prem- ises, and oral appeals and threats which were specifically and knowingly directed against neutral employees, i.e., the Company's employees. It would be an understate- ment to say that when a union engages in mass picketing, blocking or entrances, and acts of violence at a common situs, that union is thereby inducing and encouraging all employees, whether primary or neutral, to refrain from crossing its picket line. t 2 Local 30's conduct plainly demonstrated that the picketing was violative of Section 8(b)(4)(B). See NLRB v. Teamsters Local 107, 300 F.2d 317, 322 (3d Cir. 1962). As the picketing was secondary and unlawful, it fol- lows, under Board law, that a voluntary and uncoerced refusal by company employees to cross Local 30's picket line would not constitute protected activity under Sec- tion 7 of the Act. See Chevron, U.S.A., Inc., supra, 244 NLRB at 1086. The General Counsel does not dispute this proposition of law. However the General Counsel has advanced additional arguments in support of its con- tention that the employees were unlawfully disciplined. First, the General Counsel contends that the employees were engaged in protected activity by virtue of Section 502 of the Act, which provides that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike under this Act." Second, the General Counsel contends that the Company acted unlawfully in the mistaken belief that the employees were engaged in an unprotected sympathy strike, where- as in fact they were engaged in the protected activity of refraining from joining Local 30's picketing.' 3 The General Counsel's Section 502 argument rests on the validity and applicability of several propositions of law advanced by the General Counsel. First, I agree that a work stoppage under the conditions spelled out in Sec- tion 502 constitutes activity protected under the Act; and that consequently an employer violates the Act by dis- charging or otherwise disciplining employees for engag- ing in such activity. Combustion Engineering, Inc., 224 12 The General Counsel's reliance on International Rice Milling Co, 341 U S 665 (1951), and Ironworkers Local 455 (Stokvis Multi-Ton Corp), 243 NLRB 340 (1979), is misplaced These cases involved picketing at a primary sous, i.e, the permanent place of business of the employer with whom the picketing union has its dispute Since International Rice Mill- ing, it has been established law that picketing at the primary situs does not become secondary simply because it is characterized by mass picket- ing, violence, or other conduct directed at neutral employees who seek to approach the primary employer's place of business However at a common situs, mass picketing and violence constitutes the strongest kind of evidence that the picketing is directed against neutral employers and employees is I do not agree with the Company 's contention (Br 20-21) that such alternative theories should not be considered in this case The theories advanced by the General Counsel are fairly encompassed by the language of the complaint, and the Company is not pleading surprise While parties may be desirous of having a "test case," we are not here dealing with a law school exam Rather the present case presents a real situation involv- ing the rights of employees and the parties If there is an arguable basis on which the employees may be found to have been engaged in protect- ed activity, then the employees are entitled to consideration of that basis NLRB 542, 550 (1976), citing NLRB v. Knight Morley Corp., 251 F.2d 753 (6th Cir. 1957), cert. denied 357 U.S. 927 (1958). Second, I agree that "abnormally dangerous conditions" under Section 502 may include picket line vi- olence and threats of such violence. Although the Board has not squarely passed on this question, there is persua- sive court authority to this effect. See Plain Dealer Pub- lishing Co. v. Typographical Union Local 53, 88 LRRM 2155, 2161 (1974), affd. 520 F.2d 1220 (6th Cir. 1975).14 Moreover, in Combustion Engineering, supra, the Board affirmed the administrative law judge's holding that "nei- ther Section 502, nor the legislative history, limits the kind of danger that may be considered abnormal, and danger at the place of employment from violence and the threat of violence (as was involved in that case) are well within the reach of Section 502." 1 further agree that the good-faith test under Section 502 requires that there be "ascertainable, objective evidence" on which the employees base their belief that the conditions were abnormally dangerous. Gateway Coal Co. v. Mine Work- ers, 414 U.S. 368, 386-387 (1974). Applying the foregoing principles to the facts of the present case, I find that at the time that the disciplined employees initially attempted to report to work, they had a good-faith belief that abnormally dangerous condi- tions for work existed, within the meaning of Section 502 of the Act. As described, Local 30 engaged in mass pick- eting, blocking of entrances, property damage, and most significantly threats of violence which were particularly directed at the Company's unit employees. The pickets demonstrated a grudging reluctance to suffer managerial and clerical personnel to cross the picket line, but were demonstrably determined to prevent the unit employees from going to work. Therefore the fact that most mana- gerial and clerical personnel reported to work during the picketing takes on less significance than it might other- wise have. See also Union Boiler Co., 213 NLRB 818 (1974), enfd. 530 F.2d 970 (4th Cir. 1975), holding with respect to Section 502 that employees cannot be penal- ized for refusing to work in conditions they believe are unsafe "just because other employees tolerated such con- ditions, or because by some external standard, they were too safety conscious." I have also taken into consider- ation the short duration of the picketing, during which time the Company was unable, either through private or police means, to provide security for employees attempt- ing to report to work. To the extent that unit employees were in contact with their supervisors, they were simply instructed, in sum, to try to get through the picket line on their own. Indeed, the Company did not send out any of its vehicles during the picketing. I have also taken into consideration Local 30's demonstrated and reported 14 In Red Wing Carriers, 130 NLRB 1208 (1961), supplemented 137 NLRB 1545 (1962), affd sub nom Teamsters Local 79 v. NLRB, 325 F 2d 1011 (D C Cir 1963), cert denied 377 US 905 (1964), the Board on re- consideration resolved the case in part by concluding without explanation that the employees were engaged in protected activity when they refused to cross the picket line Therefore the Board's initial holding that abnor- mally dangerous conditions did not exist cannot be viewed as viable precedent See also Combustion Engineering, supra, 224 NLRB 550 fn 19 METROPOLITAN EDISON CO. proclivity for engaging in picket line violence. 15 1 do not attach controlling significance to the fact that the same employees testified that they did not persist in attempting to report to work out of fear for damage to their vehi- cles, as distinguished from immediate fear for their per- sonal safety. Violence begets violence and fear of proper- ty damage cannot be neatly compartmentalized and sepa- rated from a reasonably based fear of personal injury. The employees were in constant communication with each other (including their union president, who was personally threatened with violence) and were aware of the general situation. However, this is not yet the end of the inquiry. The 14 disciplined employees did not report to work as late as they did, i.e., after all other employees returned to work, because of a continuing dangerous situation. Rather they were late because they adjourned to a location away from the Company's premises to discuss the situation and, consequently, did not return to work until after the pickets dispersed. Therefore the next question presented is whether the meeting at the pool constituted protected activity under the Act As discussed, a work stoppage under the conditions spelled out in Section 502 constitutes activity protected under the Act. The Act also protects the right of em- ployees to consult among themselves in order to decide what action to take with respect to adverse working con- ditions. Washington Aluminum Co. v. NLRB, 370 U.S. 9 (1962) I am not aware of any case decisions which deal with the problem posed by the facts of the present case. However, I am of the view that a corollary to the right of employees under Section 502 is a right of the employ- ees to meet and consult with each other to decide what if any collective action should be taken with respect to the apparently dangerous conditions, even if, by reason of unanticipated developments, the danger abates while they are engaged in such activity. I am not saying that the employees have a right to absent themselves from work for an unreasonable or prolonged period of time for this purpose. In the present case, the employees who attended the meeting did not act unreasonably. They went only a short distance from the Company's premises, and their meeting was beef. I find that the meeting at the swimming pool constituted activity protected under Sections 7 and 502 of the Act, and that therefore the em- ployees could not be lawfully disciplined for engaging in such activity. The Company knew that the employees conducted an ad hoc meeting to discuss the picket line situtation. The Company may well have believed that the meeting was for the purpose of or as a means of hon- oring an unlawful picket line. However, the Company would be wrong in this belief, because the employees never made such a decision. Rather, the result of the 15 See Roofers Local 30 (Associated Builders), 227 NLRB 1444 (1977), and Roofers Local 30 (Kitson Bros), 228 NLRB 652 (1977) I also accept the representation of the General Counsel that on February 20, 1980, Local 30 was adjudicated in civil contempt by the United States Court of Appeals for the Third Circuit by reason of such continuing conduct The Company does not dispute that there was such adjudication, but contends that I should disregard same because no Board action was instituted on the basis of the picketing involved in the present case However no charges were ever filed based on the instant picketing 325 meeting was that Union President Burkhart informed his members that if they could not get through the picket line he would talk to the Company and it would be all right to take a day's vacation.16 The Company cannot excuse its actions on the basis of such mistaken belief. The employees engaged in protected activity (the meet- ing at the pool), the Company knew that they were en- gaged in such activity, and that they were late in return- ing to work because of that meeting, the Company may have believed that the meeting was an excuse to volun- tarily honor an illegal picket line, but the Company would be mistaken in that belief. Therefore the Company violated Section 8(a)(1) of the Act by disciplining 14 em- ployees who attended the meeting. NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964). As the meeting was an ad hoc union meeting, the Company also violated Section 8(a)(3) of the Act by its actions. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, AFL-CIO and its affiliated local unions, including Local 803, the Union herein, are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening its employees with suspension or other disciplinary action if they refused to cross a picket line established by Reading Building and Trades Council at Berks County TV Cable Company in Reading, Penn- sylvania, the Company has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 4. By disciplining employees Richard Merkle, Richard Christ, Harley Moyer, Joseph Rodriquez, Curtis Conrad, Daniel Borrell, Barry Seidel, Craig McAlveye, Carl Nuding, J. Marvin Newpher, Rodney Roeder, K. Wil- liam March, R. Walter Drumheiser, and Glenn Sillhart because they failed or refused to cross a picket line es- tablished by Local 30 at the Company's headquarters in Myhlenberg Township, Pennsylvania, the Company has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Sections 7 and 502 of the Act, and discriminated in regard to terms and conditions of employment in violation of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and from like or related conduct, and to take affirmative action designed to effectuate the policies of the Act. I 16 The General Counsel's analysis of the facts is also incorrect The employees did not make a collective decision to refrain from joining the picketing Rather, as indicated, Burkhart informed them of his under- standing of what could be done in the situation 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall recommend that the Company be ordered to post appropriate notices; remove form its records any refer- ence to the unlawful discipline given to Richard Merkle, Richard Christ, Harley Moyer, Joseph Rodriquez, Curtis Conrad, Daniel Borrell, Barry Seidel, Craig McAlveye, Carl Nuding, J. Marvin Newpher, Rodney Roeder, K. William March, R. Walter Drumheiser, and Glenn Sill- hart; and give written notice of such removal to each of them and inform each of them that its unlawful conduct will not be used as a basis for further personnel actions against them. As indicated, the parties stipulated that pursuant to the written warnings issued to each of the discriminatees, the employees were docked pay for the hours that they did not report to work on June 2, 1982. It follows that but for the unlawful disciplinary warn- ings, the discriminatees would not have been docked pay for those hours. Therefore I am recommending that the Company be ordered to make whole each of the discri- minatees for any loss of earnings as a result of the unlaw- ful discipline, with interest computed in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 651 (1977),17 and preserve and make available to the Board or its agents, on request, payroll and other records to fa- cilitate the compution of backpay due. [Recommended Order omitted from publication.] 17 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)