Indianapolis Power & Light Co.

INDIANAPOLIS POWER CO 1039 Indianapolis Power & Light Company and Local 1395, International Brotherhood of Electrical Workers, AFL-CIO Case 25-CA-15784 December 9 1988 SUPPLEMENTAL DECISION AND ORDER ON REMAND BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 31 1985 the National Labor Rela tions Board issued a Decision and Order' in this proceeding finding that the Respondent did not violate Section 8(a)(1) and (3) of the National Labor Relations Act by suspending and threatening to discharge employee Herbert King because he re fused to cross a stranger picket line to perform as signed work The Board concluded that sympathy strikes were prohibited by the broad no strike pro vision in the parties collective bargaining agree ment and the Respondent was therefore free to take disciplinary action against King The Union filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit On August 8 1986 the court re manded the case to the Board for further consider ation of certain evidence the Board failed to ad dress 2 On December 5 1986 the Board advised the parties that it accepted the remand and that they might submit statements of position Thereafter all parties filed statements of position The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has reconsidered its original decision the administrative law judge s decision and the record in light of the court s remand and the state ments of positions and for the following reasons has decided to adopt the judge s recommended Order 3 I BACKGROUND Since 1972 the Respondent and the Union have been parties to a series of collective bargaining agreements that have all contained the following provision ' 273 NLRB 1715 Electrical Workers IBEW Local 1395 v NLRB 797 F 2d 1027 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) [T]he Union and each employee covered by the agreement agree not to cause encourage permit or take part in any strike picketing sit down stay in slow down or other curtail ment of work or interference with the oper ation of the Company s business and the Com pany agrees not to engage in a lock out On August 17 1983 the Respondent assigned em ployee King to read a meter and change a tape at a local telephone company whose employees were picketing the premises When King arrived he re fused to cross the picket line The Respondent sus pended him for 2 1/2 days and warned him that re fusing to cross a picket line to perform assigned work was cause for immediate termination In construing the parties no strike clause the Board overruling contrary precedent held as fol lows If a collective bargaining agreement prohibits strikes we shall read the prohibition plainly and literally as prohibiting all strikes including sympathy strikes If however the contract or extrinsic evidence demonstrates that the parties intended to exempt sympathy strikes we shall give the parties intent controlling weight [273 NLRB at 1715 ] Finding the parties bargaining history and conduct insufficient to demonstrate an intent to exclude sympathy strikes from the no strike provision the Board concluded that the provision clearly and un mistakably waived the right to participate in sym pathy strikes and the Respondent was therefore free to discipline King for refusing to cross a third party picket line and perform his assigned work II THE COURT S DECISION As stated above the Union filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit The court reject ed every legal argument the Union could muster against the Indianapolis Power rule 4 First the Union contended that the Board s ap proach was inconsistent with the principle that a waiver of rights under the Act must be clear and unmistakable The court however examined the leading cases and found no merit in the Union s po sition In particular the court relied on the Su preme Court s decision in Rockaway News as being directly on points 4 The court remanded the case to the Board for reconsideration of a factual issue i e whether the extrinsic evidence reveals that the parties intended to exclude sympathy strikes from the no strike ban See the dis cussion infra 5 Electrical Workers IBEW Local 1395 supra 797 F 2d at 1034 (foot note omitted) 291 NLRB No 145 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [I]n determining the meaning to be ascribed to a general no strike clause our starting point must be Rockaway News In that case the Su preme Court held a sympathy strike to be within the purview of a general no strike clause The Court s conclusion appears to have rested primarily on the language of the clause itself See 345 U S at 79-80 73 S Ct at 524- 25 Rockaway News thus establishes at a min imum that nothing in the Act prevents the Board or a court from finding a waiver of the right to honor picket lines in a contractual no strike clause of sufficient breadth Second relying on cases stating that a no strike clause is the quid pro quo for an agreement to arbi trate the Union argued that a no strike clause does not cover sympathy strikes because such strikes are not over arbitrable disputes In rejecting this con tention the court distinguished between cases in volvmg implied and express no strike clauses The court pointed out that when a no strike clause is implied it is certainly reasonable to presume that the no strike obligation is no broader than the duty to arbitrate from which it is inferred This common sense notion however offers less guidance in inter preting an express no strike clause 6 The court continued as follows 7 In some situations it will be apparent from the language and structure of an agreement that its no strike and arbitration clauses are functional ly linked In other contexts the inclusion of an express no strike clause may evidence the parties intent to reach beyond strikes over arbitrable matters (which would be banned by implication from an arbitration clause even absent an express no strike clause) The question [u]ltimately depends on the intent of the contracting parties Gateway Coal 414 U S at 382 94 S Ct at 639 And in discerning the intent of the parties underlying an express no strike clause Rockaway News is directly on point Third the Union argued that the no strike clause must be interpreted in light of the Boards prior Davis McKee decision 8 which the Union asserted was the law at the time the contract was execut ed The court however was not persuaded that Davis McKee ever enjoyed such stature The court 6Id at 1034 ' Ibid 8 Operating Engineers Local 18 (Davis McKee) 238 NLRB 652 654 (1978) which was overruled by the Board s original decision in the in scant case held that broad no strike clauses without more are insuffi cient to establish waiver of the right to engage in sympathy strikes Former Member Penello concurred in the result but completely dis agreed with the decisions reasoning observed that Davis McKee was inconsistent with an earlier Board case and that a subsequent court case rejected the Davis McKee approach 9 The court s distinct impression was that Davis McKee represents something of a sport among the corpus of the law of collective bargaining agreements viewed as a whole 10 Regarding the facts of this case the court exam fined the language of the no strike clause and the contract as a whole and found that this evidence if it stood alone would be sufficient to establish waiver of the right to engage in a sympathy strike 11 Thus the court stated Were we faced only with the language of the agreement itself we would have little trouble upholding the Board s order 12 The court remanded the case to the Board however because the record does contain extrinsic evidence of the parties intent that the Board failed to address In not discussing this evi dence the Board failed to do what its opinion ac knowledges it must do in interpreting a no strike clause give the parties intent controlling weight whether that intent is established by the Ian guage of the clause itself by inferences drawn from the contract as a whole or by extrinsic evi dence 13 Accordingly the court remanded the case to the Board for examination of the extrinsic evidence specifically evidence of bargaining histo ry III DISCUSSION In agreement with the court of appeals we be lieve that the Indianapolis Power rule is sound and we continue to adhere to it We note in this con nection that the Third Circuit relying on the opin ion of the District of Columbia Circuit in the in stant case approved the Board s Indianapolis Power approach and rejected all arguments to the con trary 14 However we take this opportunity to clar ify one aspect of the Indianapolis Power decision we agree with the concern expressed by both courts that careful consideration be accorded ex trinsic evidence bearing on the parties intent such 8 Electrical Workers IBEW Local 1395 supra 797 F 2d at 1035 10 Ibid i Id at 1034-1035 The court stated inter alia as follows The [no strike] clause has extraordinary breadth in the style of the draftsman determined to allow no loopholes it refers to any strike picketing sit down stay in slow down or other curtailment of work or interference with the operation of the Company s business The no strike clause moreover is contained in a section of the agreement separate from the arbitration clause and appears to be fully independent of that clause one cannot readily infer that the no strike clause covers only arbitrable disputes 12 Id at 1036 13 Ibid 14 Electrical Workers IBEW Local 803 v NLRB 826 F 2d 1283 (3d Cir 1987) affg Metropolitan Edison Co 279 NLRB 313 (1986) INDIANAPOLIS POWER CO as bargaining history and past practice under the no strike clause 15 As the District of Columbia Cir curt stated the issue here turn [s] on the parties actual intent 16 The Indianapolis Power decision must not be applied as if it established on irrebuta ble presumption that a broad no strike clause bars sympathy strikes To summarize we continue to believe that a broad no strike clause should properly be read to encompass sympathy strikes" unless the contract as a whole or extrinsic evidence demonstrates that the parties intended otherwise In deciding the issue whether sympathy strikes fall within a no strike provisions scope the parties actual intent is to be given controlling weight and extrinsic evi dence should be considered as an integral part of the analysis Guided by these principles we now turn to the facts of the instant case Both the Board and the court found and we agree that the language of the parties agreement standing alone is sufficient to cover sympathy strikes Therefore we proceed to examine the extrinsic evidence as the court in structed us to do "I The bargaining history shows that the parties no strike provision has remained unchanged since it first appeared in the 1972 collective bargaining agreement From the outset the Respondent main 16 Electrical Workers IBEW Local 803 supra 826 F 2d at 1296 fn 24 Electrical Workers IBEW Local 1395 supra 797 F 2d at 1036 19 Electrical Workers IBEW Local 1395 supra 797 F 2d at 1036 17 Contrary to our concurring colleague we do not regard this as tan [amount to ignoring the clear and unmistakable waiver standard We are simply finding that when parties agree to no strike clause language such as that contained in the contract at issue here i e an agreement not to cause encourage permit or take part in any strike (emphasis added) they can reasonably be found-absent contrary evidence-to have clearly and unmistakably intended to bar sympathy strikes which logically come within the category of any strike i 9 The courts remand did not focus on the evidence of the parties past practice under the clause and we agree with the judge that this evi dence of the parties intent was uncertain and inconclusive The judge credited the testimony of a number of employees that prior to 1983 the Respondent did not require them to cross stranger picket lines or threat en them with discipline when they refused to do so Instead the Re spondent accommodated its employees by permitting them to postpone the work Yet the record also shows that on several occasions employees obeyed direct instructions to cross picket lines including in two in stances picket lines established by other unions claiming that certain work should be performed by their members rather than by the Respond ent s employees and in a third a picket line established at a company facility by an independent union representing the Respondents clerical employees We hesitate to draw any firm conclusions from this evidence The Re spondent s failure consistently to require employees to cross third party picket lines may have been due simply to a desire to avoid unnecessary confrontations with its employees and their bargaining representative in instances where immediate completion of a work assignment was not considered vital Concerning those instances where employees crossed stranger picket lines the Union explains that under its interpretation of the collective bargaining agreement employees are prohibited from join ing a strike against the Respondent but are not prohibited from support ing a strike against another employet (unless an emergency exists) In short the evidence recited above is insufficient to demonstrate a mutual intent to treat sympathy strikes at a customers premises as falling either within or outside the scope of the no strike clause 1041 tamed that the no strike provision encompassed all types of strikes and the Union insisted that the clause did not necessarily prohibit sympathy strikes Although the no strike clause became part of the parties contract the judge credited Interns tional Representative Bailey s testimony that there was no agreement as to what the language meant [T]he Company never did accede to our ar gument nor did we to theirs 19 In 1973 the Union proposed adding a phrase that its policy was not to cross picket lines established by other unions and in 1975 proposed that the no strike provision be limited to the Respondents property The Re spondent rejected both proposals and the Union withdrew them In the 1975 negotiations the Re spondent insisted that there would be no contract without an agreement to ban sympathy strikes to which the Union replied that it would not waive employees sympathy strike prerogative At no time did either party acquiesce to the other s view of the matter nor did the parties change the word ing of the no strike clause As the court recognized the bargaining history evidence is conflicting On the one hand the court stated that the Union s unsuccessful 1973 and 1975 proposals could well be thought to provide proba tive evidence that sympathy strikes were covered by the no strike clause ab initio 20 On the other hand the court expressly took note of the testimo ny the judge credited that the parties had expressed different interpretations of the no strike clause in the 1972 negotiations and stated that the judge found that the parties had agreed to disagree over whether sympathy strikes were covered by the clause 21 The court continued as follows 22 If accepted this factual finding would be control ling absent mutual consent on the issue there could be no binding contractual commitment and a fortiori no clear and unmistakable waiver of the right to honor picket lines Having reviewed the record we see no reason to disturb the judge s crediting of Bailey s testimony and the resulting finding that the bargaining history evidences an agreement to disagree over the scope of the no strike clause Accordingly we find that there was no waiver of the right to honor stranger picket lines Consequently we conclude that the Respondent violated Section 8(a)(1) and (3) of the Act by suspending and threatening to discharge employee King for his protected conduct of refus 19 273 NLRB at 1718 20 Electrical Workers IBEW Local 1395 supra 797 F 2d at 1036 fn 10 21 Id 797 F 2d at 1036 22 Ibid (Emphasis added) 1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing to cross a picket line at the premises of one of the Respondents customers ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Indianapolis Power & Light Company Indianapolis Indiana its officers agents successors and assigns shall take the action set forth in that Order MEMBER JOHANSEN concurring I agree with the majority that there was no waiver of the right to engage in sympathy strikes and consequently that the Respondent violated Section 8(a)(1) and (3) by taking action against em ployee King for his refusal to cross a stranger picket line I write separately however because contrary to my colleagues I do not subscribe to the rule in the Board s original decision in Indian apolls Power i and further I question how my col leagues reached the result here by applying the Board s Indianapolis Power rule to the facts of this case The appropriate starting point for any waiver analysis must be the Supreme Court s landmark Metropolitan Edison decision 2 In that decision the Court endorsed the use of the clear and unmistak able test for judging whether parties intended to waive statutory rights This rule demands clarity and thus in my view any ambiguity as to the ex istence of a contractual waiver of the right to engage in sympathy strikes must be resolved against finding parties intended such a waiver For this reason unlike my colleagues I would find that a general no strike provision as is involved here standing alone is insufficient to find a clear and un mistakable waiver of the right to engage in sympa thy strikes under that exacting standard The majority however embraces the Indianapo its Power rule without analysis pursuant to the rele vant standard and states that a broad no strike clause [will] be read to encompass sympathy strikes unless the contract as a whole or extrinsic evidence 273 NLRB 1715 (1985) z Metropolitan Edison Co v NLRB 460 U S 693 708 (1983) demonstrates that the parties intended otherwise The majority thus allocates the burden to the union of demonstrating that by negotiating a broad no strike clause the parties did not intend to waive sympathy strikes 3 I question how allocating the burden in this manner can be reconciled with the demanding standard that requires that the union s intent to waive a statutory right must affirmatively be demonstrated clearly and unmistakably That is under the majority s approach mutual intent to ex elude sympathy strikes must be shown while Met ropolitan Edison mandates that mutual intent to in elude sympathy strikes must be demonstrated by a showing that the union clearly and unmistakably waived the right to engage in sympathy strikes Moreover if under the majority s view the burden is on the union to show the parties did not intend to include sympathy strikes within the scope of a broad no strike clause I question what meas ure of proof the majority would find sufficient to overcome the Indianapolis Power presumption In this regard the majority s analysis purporting to follow Indianapolis Power sheds no light on precise ly how it reached a finding of no waiver here Thus it would seem that an agreement to dis agree such as was found here would be insuffi dent to constitute a mutual intent to exclude sym pathy strikes from the purview of a broad no strike clause and therefore insufficient to rebut the broad no strike presumption Nevertheless the ma jority concluded that the agreement to disagree here is sufficient to support a finding that there is no waiver and it is apparent that this result can only derive from application of the clear and un mistakable waiver standard Thus it appears to me that the majority s analysis constitutes an implicit rejection of the allocation of burdens set forth in the original Indianapolis Power decision in favor of a straightforward Metropolitan Edison analysis Accordingly although I join with my colleagues in the result here I do so by analyzing all the rele vant evidence of the parties intent pursuant to Metropolitan Edison and reject their endorsement of the Board s original Indianapolis Power decision 8 The Board s allocation of the burden of proof to the union in its original Indianapolis Power decision was discussed by the Ninth Circuit in Oil Workers Local 1 547 v NLRB 842 F 2d 1141 1145 (1988)