United Food And Commercial Workers Union, Local No. 1439

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers Union, Local No. 1439 and Joe Hagood and Rosauer's Super- markers, Inc. Cases 19-CB-4778, 19-CB-4772, and 19-CB-4797 February 28, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The issue in this case is whether the Respondent unlawfully threatened employees with discipline for refusing to participate in a sympathy strike. That finding rested in part on a determination that the collective-bargaining agreement covering the most employees and unmistakable waived the em- ployees' right to engage in sympathy strikes and that therefore honoring the delicatessen unit's picket line would be unprotected. On April 9, 1985, the National Labor Relations Board issued a Deci- sion and Order' finding that the Respondent violat- ed Section 8(b)(1)(A) of the Act by threatening employees it represents in separate meat and food units with fines and other sanctions for failing to honor picket lines of striking delicatessen employ- ees, who were also separately represented by the Respondent. Thereafter, the Respondent petitioned the United States Court of Appeals for the Ninth Circuit to review the Board's Decision and Order. While the instant case was pending before the Ninth Circuit, the court remanded Electrical Work- ers IBEW Local 387 (Arizona Public Service) 2 to the Board for consideration of extrinsic evidence bear- ing on whether a broad no-strike provision encom- passed sympathy strikes. Like Arizona Public Serv- ice, the present case involves application of the Board's Indianapolis Power3 rule that a broad no- strike clause prohibits all strikes, including sympa- thy strikes, unless the contract or extrinsic evi- dence shows the parties intended otherwise. Ac- cordingly, the Board requested the Ninth Circuit to remand the present case, which by joint motion of the parties had been held in abeyance pending the court's decision in Arizona Public Service. The court granted the Board's remand request, and on August 13, 1986, the Board notified the parties of its deci- sion sua sponte to reconsider the original Decision and Order. Thereafter, all parties filed statements of position. ' 275 NLRB 30 (1985). 2 273 NLRB 1757 (1985), remanded 788 F.2d 1412 (1986). ' Indianapolis Power Co., 273 NLRB 1715 (1985) (Indianapolis Power 1), remanded 797 F.2d 1027 (D.C. Cir. 1986), decision on remand 291 NLRB 1039 (1988) (Indianapolis Power II). The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. We have reconsidered the portion of the Deci- sion and Order that is before us in light of the entire record.4 For the reasons stated below, we reverse our original finding and conclude that the Respondent did not violate Section 8 (b)(1)(A) by threatening meat unit employees with disciplinary action. On April 8 , 1983, while employees in the delica- tessen unit were on strike, the Respondent wrote a letter to meat unit employees who are also mem- bers of the Respondent requesting them not to cross the picket lines at Rosauer 's, threatening that if they did they were subject to "censorship, fine, suspension, and expulsion," and stating that mem- bers had been fined $ 100 a day for crossing picket lines during a previous strike. The Respondent sub- sequently sent another letter to certain meat unit members asserting that they had been charged with refusing to honor the lines and were subject to dis- cipline if found guilty in internal trial proceedings. The meat unit contract states: 12.2 It is agreed that during the life of this Agreement there will be no strike by the Union or lockouts by the Employer unless the other party to the Agreement is refusing to comply with a final decision or an arbitrator reached in accordance with the provisions of this Agreement. Local 1439 agrees that during the life of this Agreement they will not en- courage or perform any picketing, boycotting, or handbilling at the Employer's place of busi- ness. 24.1 During the life of this Agreement there will be no strikes or other economic action by the Union, nor lockouts by the Employer, unless the other party is refusing to comply with a final decision of an arbitrator reached in accordance with the provisions of this Agreement . Sympathy strikers shall not be ac- corded any greater rights under law or con- tract than the rights of a striking employee. Noting that the contract prohibited "picketing, boycotting, strikes, or other economic action," and relying on the Indianapolis Power rule, the Board originally concluded that the parties' no-strike pro- vision banned all strikes, including sympathy ' The issue before the court was limited to the Respondent 's threats to meat unit employees who were union members. The Respondent has agreed to comply with the Board's Order as it affects food unit members. We shall revise our original Order and notice to accord with this agree- ment and today's decision. 293 NLRB No. 4 FOOD & COMMERCIAL WORKERS LOCAL 1439 (ROSAUER S SUPERMARKETS) strikes, unless other evidence established a contrary intent Because the Board found no such contrary intent in the contract or in the extrinsic evidence, it held that the Respondent waived meat unit em- ployees' right to participate in sympathy strikes, and that the Respondent therefore violated Section 8(b)(1)(A) by threatening to discipline those who refused to engage in the sympathy strike At approximately the same time the Ninth Cir- cuit granted the Board's remand request in the in- stant case, the District of Columbia Circuit re- manded Indianapolis Power I for further consider- ation of certain evidence the Board failed to ad dress 5 On December 9, 1988, we issued Indianapo- lis Power II in which we concluded that "the Indi- anapolis Power rule is sound, and we continue to adhere to it "6 However, we cautioned that in ap- plying the Indianapolis Power rule "careful consid eration [must] be accorded extrinsic evidence bear- ing on the parties' intent, such as bargaining history and past practice under the no strike clause "? We restated the rule in the following terms 8 To summarize, we continue to believe that a broad no-stnke clause should properly be read to encompass sympathy strikes unless the con- tract as a whole or extrinsic evidence demon- strates that the parties intended otherwise In deciding the issue of whether sympathy strikes fall within a no-strike provision's scope, the parties' actual intent is to be given controlling weight and extrinsic evidence should be con- sidered as an integral part of the analysis Applying Indianapolis Power II to the facts pre- sented here, we find that the parties did not intend to bar sympathy stnkes The parties' no-strike clause states that "there will be no strikes or other economic action by the Union " and that the Union "will not encourage or perform any picketing," but continues, "Sympathy strikers shall not be accord- ed any greater rights under law or contract than the rights of a striking employee " Because we must interpret the contract as a whole, we read the phrases in conjunction Although the first two phrases suggest a prohibition against sympathy strikes, the addition of the third statement, for the reasons the judge enumerates,9 makes the parties' ' Electrical Workers IBEW Local 1395 (Indianapolis Power) Y NLRB 797 F 2d 1027 (D C Cir 1986) ' 291 NLRB 1039 1040 r Id at 1040- 1041 (fn omitted) ' Id at 1041 (fn omitted) ' The judge correctly observed that the third statement could either ban sympathy strikes or merely memorialize Rosauer s right to perms nently replace sympathy strikers to the same extent it had the right to permanently replace employees engaged in a primary economic strike 275 NLRB at 34 In other words as applied to the circumstances of this case it could mean that Rosauer s would be able to replace striking meat unit employees to the same extent that it could replace those whose strike 27 contractual intent ambiguous We therefore find that the no-strike clause, read as a whole, is not sufficient to bar sympathy strikes Further, the bargaining history suggests that the parties did not intend to prohibit sympathy strikes The sympathy strikes provision first appeared in the 1978-1981 contract, after the employer associa- tion bargaining on Rosauer's behalf unsuccessfully proposed language that would have barred honor- ing strikes established by unions other than the Re- spondent 10 After that proposal was rejected, the parties agreed on the current language limiting sympathy strikers to no "greater rights" than those of a "striking employee " Reviewing the bargaining history evidence, the judge found that management's initial no-strike pro- posal prohibited honoring picket lines around Ro- sauer's premises established by a "person or organi- zation" other than the Respondent, that the propos- al was characterized by management as "much more comprehensive" than the language ultimately agreed on, and that the "more comprehensive" proposal would not have prohibited employees from joining the sympathy strike in the present set ting, given the fact that the picket lines were the Respondent's rather than another Union's We agree with the judge's assessment of the extrinsic evidence, I e, that the agreed-on, "narrow" fan guage was not intended to bar sympathy strikes that would have been permitted even under the re- jected, "more comprehensive" proposal In sum, after reviewing the contract as a whole and the extrinsic evidence, we conclude that there was no clear and unmistakable waiver of the meat unit employees' right to engage in a sympathy strike Therefore, the meat unit employees were contractually free to engage in a sympathy strike, and the Respondent did not violate the contract by threatening meat unit employees who were union members with discipline for refusing to exercise that right Accordingly, we dismiss the complaint allegations that Respondent violated the Act by its conduct involving meat unit members ORDER The National Labor Relations Board modifies the prior Order in this proceeding as set forth below and orders that the Respondent, United Food and Commercial Workers Union, Local No the meat unit employees were supporting (i e the delicatessen unit em ployees who were lawfully striking for a new collective bargaining agreement) 10 In pertinent part the proposal read as follows No picket line at or around the Company s place of business established by any other person or organization shall be sanctioned or honored during the term of this agree ment (emphasis supplied) 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1439, Spokane, Washington, its officers, agents, and representatives, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(a) "(a) Threatening to discipline union members who refused to join a sympathy strike in contra- vention of a provision relating to sympathy strikers contained in the Respondent's contract covering food unit employees " 2 Substitute the following for paragraph 2(a) "(a) Remove from the files of food unit employ- ees who were members who were threatened with discipline any reference to the unlawful disciple nary threats and all related documents, and notify each threatened food unit employee who was a union member in writing that it has done so " 3 Substitute the attached notice for that in 275 NLRB 30 MEMBER JOHANSEN, concurring As stated in my Indianapolis III concurrence, I do not subscribe to the veiw that a general no- strike clause standing alone is sufficient to waive the right to engage in sympathy strikers For this reason, I disagree with my colleagues that the first two phrases of the parties' no strike clause suggest a prohibition against sympathy strikes Even if these provisions were the totality of the parties' contractual prohibition against strikes, which they are not, the language would be insufficient, in my view, to bar sympathy strikes I agree, however, with my colleagues that an analysis of all relevant evidence of the parties' intent supports the finding of no clear and unmesta- 1 291 NLRB 1039 1042 (1988) keable waiver of the meat unit employees' right to engage in sympathy strikes-a finding that I con sider to be mandated by the Supreme Court's Met- ropolitan Edison2 decision 2 Metropolitan Edison Co v NLRB 460 U S 693 708 (1983) APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten to discipline members be- cause they refuse to honor our picket lines and par ticipate in a sympathy strike, in contravention of our contractual promise not to discipline them for crossing the lines WE WILL NOT in any like or related manner re strain or coerce you in the exercise of the rights guaranteed you in Section 7 of the Act WE WILL remove from the files of food unit members who were threatened with discipline any reference to our threats to take disciplinary action, including all documents relating to the threatened disciplinary proceedings, and WE WILL notify each threatened member in writing that this has been done UNITED FOOD AND COMMERCIAL WORKERS, LOCAL No 1439