Lear Siegler, Inc

446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lear Siegler, Inc , Energy Products Division and District Lodge 120, International Association of Machinists and Aerospace Workers , AFL-CIO Case 21-CA-24886 March 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 9, 1987, Administrative Law Judge David G Heilbrun issued the attached deci sion The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering 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 The judge found that the Respondent did not violate Section 8(a)(1) of the Act by telling em ployees that they would be disciplined or dis- charged if they continued to engage in picketing, during their own time, in support of another union's labor dispute with the Respondent We dis- agree The Respondent is a corporation engaged in the manufacturing of nuclear components at its Santa Ana, California facility The Charging Party, Dis- trict Lodge 120, International Association of Ma chinists and Aerospace Workers, AFL-CIO, repre sents approximately 400 of the Respondents em- ployees for collective bargaining purposes The United Automobile Workers separately represents approximately 100 of the Respondent's employees for collective-bargaining purposes Since approximately 1963, the IAM and the Re spondent's collective-bargaining agreements have contained a no-strike clause, which states Article 5 No Strike-No Lockout 5 1 During the life of this Agreement the Union will not cause, authorize, participate in, sanction, encourage or condone any strike, slowdown, or work stoppage, and the Compa- ny will not lock out any employee in connec- tion with labor disputes 5 2 In the event, however, that there is any strike, slowdown or work stoppage which is not authorized by the Union, the Company agrees that there shall be no liability on the part of the Union, its officers, representatives or members, provided that in the event of such unauthorized action they first meet the follow mg conditions (a) As soon as possible, but in any event within not more than twenty four (24) hours after the occurence of any such unauthorized action the Union shall publicly disavow the same by posting a notice on the bulletin board provided for the Union in the plant, stating that such action is unauthorized by the Union (b) The Union, its officers and representa- tives, shall promptly order its members to return to work, notwithstanding the existence of any wildcat picket line, (c) The Union, its officers and representa tives, shall refuse to aid or assist in any way such unauthorized action (d) The Union, its officers and representa tives will in good faith use every reasonable effort to terminate such unauthorized action The International officers, local officers and paid representatives of the Union will cooper ate fully with the Company in ending such oc- currence and returning the employees to work in regular production 5 3 Any employee who causes, authorizes, participates in, sanctions, encourages or con- dones any strike, slowdown, work stoppage, for any reason, whatsoever, shall be subject to discipline or discharge 5 4 In the event a question of fact exists as to whether or not an employee has been guilty of a violation of the Article, only such ques- tion of fact may be resolved through the grievance and arbitration procedure of this Agreement Over the course of the bargaining relationship, the parties made various attempts to modify the language of this provision For example, in the 1980 negotiations the IAM proposed modifying ar- ticle 5 explicitly to allow its member-employees to participate in sympathy strikes In the 1983 negotia- tions, the Respondent offered a proposal stating as follows Employees will not recognize, sanction or par ticipate in any picket line by any Union or in dividual, at or about the premises of the Em ployer during the duration of this Collective Bargaining Agreement, whether such strike or picket line relates to an alleged violation of State or Federal law or any other matter 293 NLRB No 48 LEAR SIEGLER INC In the most recent negotiations, the JAM attempted to eliminate all of article 5 All attempts to amend article 5 have been unsuccessful, however, and the provisions have remained in the collective bargain ing agreements as originally drafted In July 1986,1 the UAW began a lawful econom- ic strike at the Respondent's Santa Ana facility, which lasted for approximately 20 days During the strike, several IAM members picketed on their off- duty time Harold Williams, a test technician and an executive board member/trustee of the local lodge, testified that he picketed both before and after his scheduled work shift and on his own half- hour lunch period It is undisputed that neither Williams nor any other JAM represented employee engaging in such picketing failed or refused to per form any assigned tasks during scheduled work hours On July 17, the Respondent issued a letter to the attention of all JAM members who had picketed or were picketing in support of the UAW strike, stat ing that the Respondent viewed the picketing as a violation of the provisions of article 5 of the collec- tive-bargaining agreement The letter further stated that employees participating in the UAW strike would be subject to immediate discharge The complaint alleges that the Respondent vio- lated Section 8(a)(1) by notifying employees that they would be disciplined or discharged if they continued to picket in support of the UAW strike The General Counsel asserts that the IAM-repre sented employees were exercising their Section 7 rights when they picketed in support of the UAW strike and that the Respondent, in notifying them that they would be subject to discipline if they continued to support the strike, unlawfully inter fered with the exercise of such rights The Re spondent contends, however, that the IAM, by agreeing to article 5 of the collective-bargaining agreement, waived the employees' right to support the UAW strike The Respondent asserts that a plain and literal interpretation of clause 5 3 necessi tates a finding that off duty picketing in support of the UAW's strike violated the collective-bargaining agreement Therefore, the Respondent could law fully notify employees that those employees who continued to support the strike would be subject to discharge Section 7 of the National Labor Relations Act gives employees the right to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection Unions, in their representational capacity, may bargain away certain Section 7 rights such as the right to engage 1 All dates are in 1986 unless otherwise stated 447 in strikes during the contract term, Mastro Plastics Corp v NLRB, 350 U S 270, 280 (1956), and the right to sanction or encourage strikes, Fournelle v NLRB, 670 F 2d 331, 338 (D C Cir 1982) Such waivers of employee rights must, however, be ex plicitly stated, clear and unmistakable Metropolitan Edison Co v NLRB, 460 U S 693, 708 (1983) The question presented here is whether the JAM waived its member-employees' Section 7 right to support, while off duty, the UAW's strike when it agreed to article 5 of the collective bargaining agreement The answer to that question turns upon the proper interpretation of the parties' agreement In contract interpretation matters, the parties' intent underlying the language of the contract is always paramount The principle was recently reaf- firmed in Indianapolis Power & Light, 291 NLRB 1039, 1041 (1988), where the Board found that "[i]n 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 " To determine that intent, the Board will look to both the contract language and relevant extrinsic evi- dence such as bargaining history Id The specific issue in Indianapolis Power & Light was whether the phrase "any strike" in a no strike clause included a sympathy strike We held that if the only evidence bearing on intent were the lan- guage of the clause itself, then we would find the clause to show, clearly and unmistakably, the union's intent to waive the right to engage in sym- pathy strikes 2 Admittedly, the Respondent is making a similar plain language argument in the present case, contending that the language in arti cle 5 prohibiting the JAM from `encourag[ing] any strike" includes actions, by means other than work stoppages, of encouraging strikes by other unions and against other employers We need not, however, reach the question in this case of how such language, standing alone, must be read As we show below, both the internal structure of article 5 and the collective-bargaining history mdi cate that the article 5 language refers only to strikes or work slowdowns by employees who are represented by the JAM, thereby foreclosing its ap- plication to the present dispute Initially, clause 5 1 prohibits the JAM from caus- ing or encouraging "any strike, slowdown or work stoppage" and conversely prohibits the Respondent from locking out any employees When read within the context of the bargaining relationship, this 2 Member Johansen concurring stated that a general no stnke prove Sion standing alone is insufficient to find a clear and unmistakable waiver of the right to engage in sympathy strikes under the standard set forth by the Supreme Court in Metropolitan Edison Co v NLRB 460 US 693 708 (1983) 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clause prohibits the IAM from causing or encour- aging a strike or other work slowdown by the Re- spondent's employees whom the Union represents and further prohibits the Respondent from locking out any of those same employees We find no evi- dence to suggest that this clause was intended to reach beyond the parties' relationship with each other Additional language in article 5 supports an in terpretation that the focus of the article is to pro hibit strikes by the Respondent's IAM represented employees Clause 5 2, in outlining the IAM's re sponsibilities in the event of "any strike, slowdown or work stoppage" clearly contemplates that the strike or work stoppage will be by IAM-member- employees as evidenced by the language requiring the IAM to "order its members" back to work Im- plicit in the language "order its members" back to work is the understanding that it was the IAM's members who were actually striking or engaging in the work slowdown Clause 5 3 contains the same any strike, slow down or work stoppage" language as used in clauses 5 1 and 5 2 The Respondent asserts, how- ever, that in clause 5 3 the language should reach beyond the parties' relationship with each other and cover strikes by other work forces as well We are not persuaded by the Respondent's argument Initially, we find that the language in question- any strike, slowdown, or work stoppage-would likely have the same meaning throughout the entire contract article Thus, as the language referred to strikes or work slowdowns by the unit employees in the previous clauses, the parties likely intended for it to refer to strikes or work slowdowns by unit employees in clause 5 3 as well Furthermore, such an interpretation is logical Given this construction of "strike" and similar terms, clause 5 3 states that any employee who encourages or participates in any strike or work slowdown by the unit employ- ees, which would necessarily violate the earlier provisions of article 5, shall be subject to discipline or discharge 3 Thus, clause 5 3 binds the individual employees as well as the IAM to the agreement's no-strike provision 8 Clauses containing language similar to that of clause 5 3 have trade tionally been included in agreements to prohibit employees from starting wildcat strikes For example in Fournelle v NLRB supra the parties collective bargaining agreement contained a clause similar to the one set forth above There an off duty employee went to his union hall and met with his fellow unit employees who were engaged in a wildcat strike At the meeting the off duty employee spoke out in support of the wildcat strike The employer disciplined the employee for supporting the strike Although the employee asserted that he was exercising his Sec 7 rights in speaking out in support of the strike the court found that the employ er did not violate the Act by disciplining the employee reasoning that the union had waived the employees right to encourage a contractually forbidden strike The language of clause 5 3, considered within the context of article 5, indicates that the parties in tended that the "any strike, slowdown or work stoppage" language refer to strikes or work slow- downs by the Respondent's employees who are represented by the IAM Consequently, we find that the contract language does not support a find ing that the Union waived its member employees right, while off duty, to picket in support of an- other union's lawful strike against the Respondent We further find that the circumstances surround- ing the negotiation of the parties' collective-bar- gaining agreement fail to support a finding that the IAM waived its member employees' right to picket in support of the UAW strike Turning to the bar gaining history of the instant provision, we note that this provision has appeared in the parties' col lective bargaining agreements since the mid-1960's and that it has remained unchanged In negotiations leading up to the 1983 contract, the Respondent proposed that the no-strike clause be clarified to address the instant situation Specifically, the Re- spondent proposed that "[e]mployees will not rec ognize, sanction or participate in any picket line by any Union at or about the premises of the Em- ployer " The IAM rejected the Respondent's proposal and the Respondent withdrew it The Respondent now asserts in its brief that the proposed change was not an attempt to secure ad- ditional concessions from the IAM, but rather an attempt expressly to state the parties' mutual under- standing of the meaning of article 5 We find this characterization unlikely The IAM s refusal to accept the Respondent's proposal indicates that the proposal was not just a clarification of the parties' mutual understanding of article 5, but rather a sub- stantive change in the agreement that the IAM was unwilling to accept The Respondent's unsuccessful attempt to clarify article 5 to prohibit the type of activity engaged in by the IAM-represented em- ployees here weighs against a finding that the con- tract, as originally drafted, barred such activity Based on a review of the contract language and the circumstances surrounding the negotiation of the agreement, we find no clear and unmistakable contractual waiver of the employees' right to engage in picketing, on their own time, in support of another union's lawful strike against the Re spondent Since the IAM did not clearly and un mistakably waive its member employees' Section 7 right to support the UAW strike, we find that the Respondent's threat to discipline the employees for exercising that right is a violation of Section 8(a)(1) of the Act LEAR SIEGLER INC 449 ORDER The National Labor Relations Board orders that the Respondent, Lear Siegler, Inc, Energy Prod ucts Division, Santa Ana, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening to discipline or discharge em- ployees for picketing, on their own time, in support of another union's lawful strike (b) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Post at its facility in Santa Ana, California, copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply cise of the rights guaranteed you by Section 7 of the Act LEAR SIEGLER, INC, ENERGY PROD- UCTS DIVISION Jill P Glosser, for the General Counsel Kenneth E Ristau Jr (Gibson Dunn & Crutcher) of Newport Beach California for the Respondent DECISION STATEMENT OF THE CASE DAVID G HEILBRUN, Administrative Law Judge This case was tried at Los Angeles, California, on 29 May 1987 The charge was filed by District Lodge 120, Inter national Association of Machinists and Aerospace Work ers, AFL-CIO (the Union) on 8 August 1986, and the complaint was issued 16 September 1986 The primary issue is whether Lear Siegler, Inc Energy Products Di vision (Respondent) unlawfully notified employees they would be disciplined or discharged if engaging, or con tinuing to engage, in picketing to support a collateral labor dispute with the Employer, in violation of Section 8(a)(1) of the National Labor Relations Act On the entire record,' including my observation of the demeanor of the the witnesses, and after consideration of briefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT I JURISDICTION 4 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES 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 or discharge employees for picketing, on their own time, in sup- port of another union's lawful strike WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- Respondent, a corporation manufactures nuclear com ponents at its facility in Santa Ana California where it annually ships goods valued over $50,000 directly out side the State Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and, relatedly, that both the Union and the United Auto Workers Union, fully and formally the International Union United Automo bile Aerospace and Agricultural Implement Workers of America, Inc (UAW) are each a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Basis of Analysis These parties including predecessor business entities as an employer of the locale, have had successive collec tive bargaining agreements since approximately 1963 The current agreement, as effective from 28 June 1986 to 30 June 1989, contains as its article 5 a comprehensive No Stnke-No Lockout provision which has contin ued in this identical language without change since in ception of the Union s recognition Thus it now reads, as continually so over the course of all prior agreements I Transcript correction is noted and corrected 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 1 During the life of this Agreement the Union will not cause authorize participate in, sanction encourage or condone any strike, slowdown, or work stoppage, and the Company will not lock out any employee in connection with labor disputes 5 2 In the event, however, that there is any strike slowdown or work stoppage which is not au thorized by the Union, the Company agrees that there shall be no liability on the part of the Union, its officers representatives or members, provided that in the event of such unauthorized action they first meet the following conditions (a) As soon as possible, but in any event within not more than twenty four (24) hours after the oc currence of any such unauthorized action the Union shall publicly disavow the same by posting a notice on the bulletin board provided for the Union in the plant, stating that such action is unauthorized by the Union (b) The Union, its officers and representatives shall promptly order its members to return to work, notwithstanding the existence of any wildcat picket line, (c) The Union, its officers and representatives, shall refuse to aid or assist in any way such unau thorized action (d) The Union, its officers and representatives will in good faith use every reasonable effort to ter minate such unauthorized action The International officers local officers and paid representatives of the Union will cooperate fully with the Company in ending such occurrence and returning the employ ees to work in regular production 5 3 Any employee who causes authorizes, par ticipates in, sanctions, encourages or condones any strike, slowdown, work stoppage for any reason whatsoever, shall be subject to discipline or dis charge 5 4 In the event a question of fact exists as to whether or not an employee has been guilty of a violation of this Article only such question of fact may be resolved through the grievance and arbitra Lion procedure of this Agreement In the course of various past negotiations the parties exchanged proposals by which each sought some benefi cial modification to this portion of the contract Among these were efforts by the Union to eliminate lockout fea tures of the clause, or to neutralize or delete it, and in the 1983 negotiations, a proposal by Respondent to add the following phraseology Employees will not recognize, sanction or par ticipate in any picket line by any Union or individ ual, at or about the premises of the Employer during the duration of this Collective Bargaining Agreement whether such strike or picket line re lates to an alleged violation of State or Federal law or any other matter In keeping with the comment above that language on which this case focuses remained unchanged through the life of various contracts, none of the proposals for modi fication as advanced by either of the parties succeeded in achieving any form of change in wording whatsoever Apart from the Union s bargaining unit, which pre dominately includes approximately 400 employees of this industrial employer, the United Automobile Workers (UAW) separately represents approximately 100 On 2 July 1986 this smaller, secondary bargaining unit of the other labor organization commenced a lawful economic strike at the facility 2 As typically the case UAW mem bers picketed in support of their strike, which continued until at least 20 July During this timespan of the UAW strike several union (IAM) members picketed on their off duty time Harold Williams a test technician, mechanical and currently ex ecutive board member/trustee of the local lodge as well as formerly an officer of the Union s district lodge, was one such person engaging in this form of picketing Illus tratively he did so both before and after his scheduled work shift, and on his own half hour lunch period of 11 15 to 11 45 a in Most employees of the Union s bar gaining unit had the same lunchbreak as Williams, al though production requirements such as the need to con tinuously monitor a machining cut might cause occasion al variances on the part of particular employees Neither Williams nor any other IAM represented employee en gaging in this described form of picketing failed or re fused to perform any tasks within their own scheduled and assigned shifts or functions On 17 July Respondent caused the following letter to be issued for the attention of all union (IAM) members who had or were picketing only and during their own time This letter shall be your formal notification under our Collective Bargaining Agreement that your Union and its elected representatives and members are in violation of the provisions of the No Strike provision of Article 5 On July 16 and 17, Mr John Garcia Chief Stew and and Mr Harold Williams negotiating commit teeman and approximately eighteen (18) other I A M members joined the U A W picketers on the Redhill side of our facility, some including the elected representatives mentioned above carrying pickets which read U A W on Strike The action is a direct violation of Article 5 3 which states Any employee who causes, authorizes, participates in, sanctions, encourages or condones any strike, slowdown, work stoppage for any reason whatso ever, shall be subject to discipline or discharge The Company intends to hold the Union, its offs cers and representatives and its members to its' re sponsibilities as set forth in article 5 and any other articles which may apply, and will hold the Union responsible for any and all damages incurred by this willful breach of our contract You are hereby requested to comply with your obligations under Article 5 2 of the Agreement and are further advised that any I A M employee par 2 All dates are in 1986 unless otherwise indicated LEAR SIEGLER INC 451 ticipating in the strike should be notified that they are subject to immediate discharge This notification, or as the General Counsel pleaded it a "[telling] of imminent, potential employment adversity, is the challenged conduct from which the primary issue of this case is framed B Analysis Decision here must combine an assessment of contrac tual waiver principles as validly accepted by a labor or ganization, coupled with fair characterization of the con duct engaged in by IAM members to the displeasure of Respondent At the outset it is known that unions have a threshhold representational capacity to bargain away otherwise statutorily protected rights of employees N L R B v Allis Chalmers M f g C o, 388 U S 175, 180 (1967) Cf Mastro Plastics Corp v NLRB, 350 U S 270 (1956) The waiver in such an instance must be clear and unmistakable by expression Metropolitan Edison Co v NLRB, 460 U S 693, 708 (1983) From this guidance it is plain that any type of conduct clearly tantamount to the real and common meaning of chosen contractual verbs as associated to a strike context was potentially within the waiver authority of the Union here The various negotiating ploys of recent years do not affect this outlook, for as to them the parties attempt ed nothing more than ordinary institutional efforts at clipping or adorning, as the case might be, any phraseol ogy that might modifyingly result from an overall course of bargaining In this sense Insurance Workers Local 60 (Hancock Mutual), 236 NLRB 440 (1978) relied on by the General Counsel, is insufficiently germane both be cause of the distinctive facts of that case and because the industry involved was one touched prominently by other than orthodox tactics involving maximized economic pressure on an employer at minimized cost to the con testing labor organization Insurance Agents v NLRB, 361 U S 477 (1960) Relatedly Lewittes Furniture Enter prises 244 NLRB 810 (1979) and LaMesa Convalescent Hospital 217 NLRB 182 (1975) both cited by the Gener al Counsel, are distinguishable because these cases in volved fact situations of no contract and communicated ambiguity respectively The case the General Counsel would earnestly distin guish is Indianapolis Power & Light Co 273 NLRB 1715 (1985) In this recent holding the Board reconsidered earlier views by deciding that simple sympathy strike conduct of an employee in reference to crossing a picket line at an employers customer did violate a valid and densely worded no strike clause This draws principles of Indianapolis Power into an analogous evaluation of whether the conduct of Williams and others here was in breach of article 5 The General Counsels other cited authorities, Burns Ford, 182 NLRB 753 (1970), Sears Roebuck & Co, 168 NLRB 955 (1967) and Wolfie's, 159 NLRB 686 (1966), are each insufficiently germane or wholly inapplicable to these facts On the other hand, and as argued by Respondent, the Delaware Coca Cola and Fournelle cases3 are each per suasively in point Delaware Coca-Cola cautions only not to read assertedly explicit waiver language too expan sively, an edict that need not be offended here where the contractual verb encourages is, as it must be, looked to Such was directly involved in Fournelle where, apart from the separate issue of disparate disci pline imposed on a union official, the individual in ques tion had realistically lent support to an unprotected strike and thus became its participant Here the UAW was on economic strike in a tradition al, ordinary sense, and for the predictable objectives of such economic pressure The UAW membership was, aI though a minority, numerically significant in terms of creating or influencing operational disruption Thus viewed, Williams and his cohorts engaged in conduct of an auxiliary or accessonal character conduct that may better be termed ancillary to the UAW strike and cer tainly supportive of it by way of open encouragement It might be thought that Respondent verges on attaining, by bluff if not intimidation, what it could not obtain in bargaining But that would be an unschooled assessment of the significance attachable to its 1983 bargaining pro posal, because to attempt a wordy enlargement of what already exists, and for years has existed, does not vary article 5 in its basic form or impact There is no new or notable bargaining history (or intent) present simply because better semantics are envisioned by one party but apprehensively resisted by the adversary From the com peting choices of exoneration because waiver language is insufficiently explicit and a settled policy favoring fun damental statutory rights of employees I believe the former consideration predominates On the rationale of IAM members having violated the collective bargaining representative's contractual waiver as present without a straining of either words or the essential thrust of labor management tactics, I am satisfied and believe that the no strike language of article 5 was violated This in turn sheltered Respondents written threats of discipline or discharge, and leads to a result under which allegations of the complaint are not established CONCLUSIONS OF LAW 1 Respondent Lear Siegler, Inc, Energy Products Di vision is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union and the UAW are and at all times mate nal have been each a labor organization within the meaning of Section 2(5) of the Act 3 Respondent has not committed the unfair labor practices alleged in this complaint [Recommended Order for dismissal omitted from pub lication ] 8 Delaware Coca Cola Co v Teamsters Local 326 624 F 2d 1182 (3d Cir 1980) Fournelle v NLRB 670 F 2d 331 (D C Cir 1982) enfg as modified Bethlehem Steel Corp 252 NLRB 982 (1980)