United Brotherhood Of Carpenters And Joiners Of America, Afl--Cio, Local 1780

412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1780 and Theodore D. Mathews and Larry W. Johnson and Edwin Wielinski and Edwin A. Arnold and Winston Shrout and Frank P. Kraft and Dwight D. Har- dison and John D. Campbell and George S. Dukart and Douglas B. Excell and George W. Howard and William Mosier and John K. Sell- ers and Douglas Konold and Henry E. Flynn Sr. and Jesse McMurtry and Gary W. Hutch- croft and Reynolds Electrical & Engineering Co., Party to the Contract. Cases 31-CB-7332, 31-CB-7333, 31-CB-7334, 31-CB-7335, 31- CB-7341, 31-CB-7342, 31-CB-7343, 31-CB- 7344, 31-CB-7345, 31-CB-7346, 31-CB-7347, 31-CB-7348, 31-CB-7349, 31-CB-7350, 31- CB-7355, 31-CB-7356, and 31-CB-7536 August 31, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On December 14, 1988, Administrative Law Judge Richard D. Taplitz issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1780, its officers, agents, and representatives, shall take the action set forth in the Order as modified. ' The judge noted that the Board's decision in Indianapolis Power Co., 273 NLRB 1715 (1985), was remanded to the Board for further consider- ation by the United States Court of Appeals for the District of Columbia Circuit On December 9, 1988 , the Board issued its Supplemental Deci- sion and Order on Remand, reaffirming the Indianapolis Power rule 291 NLRB 1039 Member Devaney, without passing on the Indianapolis Power rule in this case, agrees that the Respondent 's conduct was unlawful because the evidence demonstrates that the parties clearly intended their no-strike clause to prohibit employees from honoring stranger picket lines 2 Although the judge found that the Respondent 's suspension of at least one discriminatee from membership for failure to pay the unlawful fine violated Sec 8(b)(1)(A) of the Act, the provisions of the judge's rec- ommended Order and notice refer to the Respondent's expulsion of mem- bers from membership We have modified the judge's recommended Order and notice accordingly 1. Substitute the following for paragraph 1(c). "(c) Suspending any member from membership for nonpayment of dues where it refuses to accept dues until such fines are paid." 2. Substitute the following for paragraph 2(c). "(c) Accept dues from those members without requiring that such fines be paid first and reinstate to membership any member who was suspended because of its refusal to accept dues until such fines were paid." 3. Substitute the attached notice for that of the administrative law judge. 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 fine or otherwise discipline any member for refusing to honor a sympathy strike where that sympathy strike is prohibited by the terms of a no-strike clause in a collective-bargain- ing agreement. WE WILL NOT refuse to accept dues from mem- bers until such fines are paid. WE WILL NOT suspend any member from mem- bership for nonpayment of dues where we refuse to accept dues until such fines are paid. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the fines we levied against the following members: James E. Allen Edwin A. Arnold John D. Campbell George S. Dukart Douglas Excell Henry E. Flynn Sr. Charles R. George Dwight Hardison George Howard Gary W. Hutchcroft Larry W. Johnson Douglas Konold Frank P. Kraft Jessie McMurtry Theodore D. Mathews William Mosier John K. Sellers Winston Shrout Dan Weaver Edwin Wielinski WE WILL return to those members any fines that they have paid together with an amount equal to the expenses those employees incurred as a result of those fines, plus interest. WE WILL accept dues from those members with- out requiring that such fines be paid first and we will reinstate to membership any member who was 296 NLRB No. 53 CARPENTERS LOCAL 1780 (REYNOLDS ELECTRICAL) 413 suspended because of our refusal to accept dues until such fines were paid. WE WILL remove from our records all reference to the charges, trials, fines, and other actions against those members and notify them in writing that we have done so. UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, AFL-CIO, LOCAL 1780 place of business in Las Vegas, Nevada, is in the business of providing construction, maintenance, and operational support for the United States Department of Energy at the Nevada Test Site and at the Tonopah Test Range. The Company annually purchases and receives goods and services valued in excess of $50,000 directly from customers located outside of Nevada. It is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent is a labor organization within the meaning of Section 2(5) of the Act. Julia A. Osborn, Esq., for the General Counsel. Hope J. Singer, Esq. (Taylor, Roth, Bush & Geffner), of Burbank, California, for the Respondent. Yelverton Cowherd Esq., of Las Vegas, Nevada, for Reyn- olds Electrical & Engineering Co. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. This case was tried in Las Vegas, Nevada, on August 4 and 5, 1988. The charges and amended charges were filed on various dates in December 1987 and January and February 1988. After a number of other pleadings, an order consolidating cases and a first amended consolidat- ed complaint issued on April 14, 1988, alleging that the United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, Local 1780 (Respondent or the Carpen- ters) violated Section 8(b)(1)(A) of the National Labor Relations Act. Issue The primary issue is whether the Carpenters violated Section 8(b)(1)(A) of the Act by disciplining members who worked during a sympathy strike under circum- stances where that union was bound by a contract con- taining a broad no-strike clause. All parties were given full opportunity to participate, to introduce evidence, to examine and cross-examine wit- nesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Carpenters. On the entire record' of the case and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Reynolds Electric & Engineering Co. (the Company) is the employer of the union members who were disci- plined for refusing to participate in a sympathy strike. The Company, a Nevada corporation with an office and ' The transcript of the record in this case is extremely poor and replete with errors. However, many of the facts were stipulated to or based on documentary evidence and most of the errors are self-correcting because of their context. In the absence of a motion to correct by any party, no further action will be taken on my part. The General Counsel should be aware that if the caliber of reporting is not drastically improved, a seri- ous risk will be run that such transcripts will result in trials de novo H. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company maintains collective-bargaining agree- ments with a number of different labor organizations in- cluding the Carpenters. Some of those agreements cover bargaining units of construction employees and others cover bargaining units of maintenance and operations employees. The Carpenters represents employees in two separate units, one, construction, and the other, mainte- nance and operations. On June 1, 1985, the Company and the Carpenters entered into a collective-bargaining agreement in the bargaining unit of construction carpen- ters (the construction agreement) which was effective by its terms from June 1, 1985, until June 1, 1990. Article II of that agreement provides: No Strikes or Lockouts SECTION 1. It is hereby agreed by the Union that there will be no strikes, stoppages of work or slowdowns of the Contractor's operations during the term of this Agreement. SECTION 2. It is hereby agreed by the Contrac- tor that there will be no lockouts during the term of this Agreement. SECTION 3. Any violation of Section 1 of this Article shall not be subject to the provisions of Ar- ticle XXI, Grievance and Arbitration procedure. That contract also has a preamble that reads: WHEREAS, the Contractor is engaged in the performance of construction work for the Nevada Test Site, Nevada Research and Development Area and the Tonopah Test Range, Nevada; WHEREAS, the work hereinbefore referred to is recognized by the parties to be of major national importance and of urgent priority and essential to the national defense and, for its prompt and efficient construction, large numbers of skilled craftsmen and workmen are required; and WHEREAS, it is the desire of the parties to es- tablish rates of pay, hours of employment and working conditions for workmen so employed; NOW, THEREFORE, in consideration of the premises, it is agreed: The Carpenters and the Company were also signato- ries to a separate collective-bargaining agreement in the unit of maintenance and operations carpenters (the main- 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tenance agreement). That agreement was effective by its terms from October 1, 1982, to October 1, 1987. There was no limitation on the right of the Carpenters to strike in the maintenance unit upon the expiration of that con- tract. However, the no-strike clause in the construction agreement was still in full force and effect at the time the maintenance contract expired . A number of maintenance contracts with various unions expired in the fall of 1987 and many of those unions went out on strike . Beginning about August 18, 1987, and continuing periodically to November 22, 1987, the Amalgamated Transit Union Local 1225 picketed the Nevada Test Site in furtherance of a labor dispute it had with LTR Stage Lines, an em- ployer who provided bus services to and from the Nevada Test Site. Commencing on about September 15, 1987, and continuing until November 22, 1987, the Culi- nary Workers Union Local 226 picketed the Nevada Test Site and Tonopah Test Range in furtherance of a labor dispute it had with the Company. Other unions representing maintenance and operations employees also picketed. The Carpenters sanctioned those picket lines. In addition the Carpenters established their own picket lines at the Nevada Test Site and Tonopah Test Range beginning on October 27, 1987, and continuing to No- vember 22, 1987. That picketing was in furtherance of the labor dispute that arose upon the expiration of the Carpenters maintenance agreement . The parties stipulat- ed and I find that there was no labor dispute at that time in the Carpenters construction unit. However, the Car- penters Union sanctioned all of the picketing and hon- ored the picket lines by refusing to work in both the maintenance and the construction units . The great major- ity of the construction carpenters were on strike and re- fused to work between October 27 and November 22, 1987. Some of the construction carpenters refused to honor the picket line and returned to work during that time. This case arose when the Carpenters attempted to discipline those employees for returning to work. B. The Discipline Imposed on Those Who Crossed the Picket Line On December 18, 1987, Clifford Kahle, the Carpenters business representative, filed internal union charges against 20 individuals. They were charged with viola- tions of the Carpenters' constitution and bylaws between October 22 and November 22, 1987, in that: "This man did cause dissension in the Brotherhood by working behind a picket line that was duly authorized by a subor- dinate body of the United Brotherhood. The picket line in question was our own and others at the Nevada Test Site and the Tonopah Test Range." The charged individ- uals were tried by the Carpenters and subsequently fined in the amounts set forth next to their names as follows: George Howard Gary Hutrdlcroft Larry Johnson Douglas Konold Frank Kraft Jessie McMurtry Theodore Mathews William Mosier John K. Sellers Winston Shrout Dan Weaver Edwin Wielinski 4,539.19 2,680.17 4,299.68 4,721.67 4,459.35 5,177.87 4,356.71 3,239.02 5,451.59 3,102.16 3,877.70 3,763.65 James E. Allen Edwin A. Arnold John D. Campbell George S. Dukart Douglas Excell Henry E. Flynn, Sr. Charles R. George Dwight Hardison $ 2,940.36 4,368.11 4,744.48 5,611.26 4,812.91 4,356.71 3,284.64 4,527.78 Clifford Kahle, the Carpenters business representative, acknowledged that all the fines were for crossing picket lines between October 22 and November 22, 1987, and that the picket lines were those of the Carpenters on the maintenance agreement and others that were sanctioned by the Central Laborers. A number of those individuals were informed by the Carpenters that dues would not be accepted until the fines were paid. They were also told that they could appeal but that the appeal would not be entertained unless they paid $50 on account to be held until the appeal was decided. In addition some of the individuals were told that they would be suspended unless dues were paid. One of the individuals, Jessie McMurtry, had his dues book returned to him with the notation "Sus- pended 7/31/88." All of the fined individuals named above were full members of the Carpenters. In addition the parties stipu- lated that all of those individuals except for James Allen were in the bargaining unit covered by the Carpenters construction agreement during the time the discipline was imposed. As to James Allen, the parties were in dis- pute and no stipulation could be agreed to. Evidence was introduced concerning his proper placement. The Company sometimes used individuals employed as maintenance carpenters to do construction agreement work and vice versa. Generally the Company let the Carpenters know when it took such action. James Allen was basically a maintenance carpenter. However, during the entire time relevant to this case, he was doing con- struction carpentry work. The Ccmpany records show that during the days in question, except for two leave- without-pay days and one holiday, he did nothing but construction work that was covered by the Davis-Bacon Act. He was paid under the construction agreement and received construction pay. However, some of the fringe benefits such as health and welfare and pension were paid under the provisions of the maintenance agreement. Allen spent all of his working time during the month in question doing carpenter construction bargaining unit work. His pay was based on the construction contract. His community of interest was with other employees doing the same work and during the period in question he had to be considered part of their bargaining unit. Even if he was considered a dual-function employee, the key issue would be whether he had a sufficient commu- nity of interest with the construction carpenters bargain- ing unit employees to be included in that unit. As he did CARPENTERS LOCAL 1780 (REYNOLDS ELECTRICAL) 415 no other work during that time, the answer would have to be yes.2 C. The History of the No-Strike Clause in the Carpenters Construction Agreement Prior to 1965 the Company did no individual bargain- ing. It bargained through various employer associations. One of those was the Southern Nevada General Contrac- tors Association which bargained with the Carpenters. At that time there was only one classification of carpen- ter-employee and that was journeymen construction car- penter. That was true even though some of the employ- ees did carpentry work other than construction such as maintenance and operations . in the period from 1961 through 1964, there were a great number of strikes on the Company's jobsites. During the 3-year period be- tween 1961 and 1964 there were about 36 strikes or work stoppages. In November 1964 IBEW Local 357 went on strike for 21 days and other unions, including the Car- penters, honored the picket line. The test site was virtu- ally shut down. That test site was the sole location in the continental United States where nuclear weapons were tested. As a result of that strike the Atomic Energy Commission, a predecessor agency of the U.S. Depart- ment of Energy, directed the Company to withdraw its delegation of bargaining authority from all of the em- ployer associations at the expiration of the collective-bar- gaining agreement. The Atomic Energy Commission had expressed concern well before that strike . In 1961 it had informed the Company of its concern with the number of legal and illegal work stoppages at the test site as well as with problems related to wages, hours, and working conditions. The President of the United States appointed a panel to study those conditions in 1961 and 1962. The Board found that there were uneconomic and discrimina- tory pay practices at the site and that there were signifi- cant problems resulting from the number of work stop- pages. After the panel report, the public member in the panel, John Dunlap, who later became United States Secretary of Labor, remained at the site and tried to remedy some of the problems. While that was happen- ing, the delegation of bargaining authority was still in effect and the 1962-1965 collective-bargaining agree- ments were negotiated and became binding on the Com- pany. The Department of Energy directed the Company to withdraw the delegation of bargaining authority at the end of those contracts and to negotiate directly with the unions. The Carpenters contract expired on June 1, 1965. Prior to the beginning of bargaining, the Department of Energy gave detailed instructions to the Company. One of those was that the Company was to separate the construction work from the maintenance and operation work. The Company was directed to bargain for a con- struction agreement and for a separate maintenance agreement. The Company was also told to obtain a broad no-strike clause that would prohibit unions from honoring picket lines of other unions at the test site. With regard to the separate bargaining units, the Compa- ny was told to have a construction agreement that would be keyed to prevailing wages for construction under the Davis-Bacon Act and a separate agreement for mainte- nance and operation work. With regard to the Depart- ment of Energy's insistence that there be a no-strike clause that would stop the kinds of shutdowns that had been giving problems in the past, the Company was led to believe that it would be replaced at the jobsite if it couldn't meet the Government's aims. The negotiations began with the Carpenters in August 1964 but little was achieved until March 1965 when seri- ous negotiations began for a project maintenance and op- erations agreement with various building trades unions. Bargaining was done in three separate groups, one with Teamsters Local 631, another with Local 12 Operating Engineers, and the third with a multiunion group that in- cluded the Carpenters. During negotiations for a maintenance and operations agreement, the Company proposed a broad no-strike clause in language identical to that which is quoted above and is contained in the 1985-1990 Carpenters con- struction agreement. 3 The Company representative ex- plained to the unions that the purpose of section 1 of the proposed no-strike clause , with its broad prohibition against strikes and work stoppages , was not only de- signed to prohibit all strikes but also designed to prohibit unions from honoring picket lines established by other unions or other bargaining units . He explained that sec- tion 3 of the no-strike clause excluded strike situations from the arbitration and grievance process so that the Company could go directly to Federal courts under a Section 301 suit rather than going through the grievance procedure if there was a strike . He told the unions that the no-strike proposal was made at the direction of the U.S. Atomic Energy Commission and he explained some of the advantages to the unions in preventing the prolif- eration of strikes. He said that the no-strike clause was something they had to achieve in negotiations or there wasn't going to be any agreement. There was prolonged discussion about the clauses and none of the union repre- sentatives indicated that their interpretation of the no- strike clause was any different from that described by the Company. Finally, the unions accepted the no-strike clause as it had been proposed by the Company. The final agreement was reached at the end of June 1965. However, the Carpenters were concerned with the impact of the no-strike clause on the bargaining for the carpenters construction agreement that was to follow as soon as agreement was reached in the maintenance and operations unit. Prior to that time there only had been one agreement and a package was being broken up. As a result, the Company and the Carpenters signed a letter of understanding to the effect that the employees covered by the maintenance and operations agreement that had just been agreed to would be able to honor any picket line that might result from the carpenters construction negotiations that were to begin immediately . That letter of understanding had application only to the 1965 negoti- ations. 2 See Fleming Industries, 282 NLRB 1030 ( 1987), and cases cited there- in. a Except that the word "company" was used instead of "contractor" and the article number of the arbitration provision was different. 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The negotiations for a construction agreement con- cluded after a 1-month strike, with a tentative agreement in November 1965. During negotiations for that agree- ment the parties used the maintenance and operations contract as a point of reference and went over the clauses one by one. The discussions about the no-strike clause were the same as the ones during the negotiation of the maintenance and operations agreement and the unions once again accepted the Company's proposal. An identical no-strike clause was agreed to. Successor collective-bargaining agreements were nego- tiated over the years in both the Carpenters construction and Carpenters maintenance bargaining units . The unions never proposed a change in the no-strike clause.4 Until the strike in the fall of 1987 which gave rise to these proceedings, both the Company and the Carpenters have acted as if they understood that the no-strike clause banned sympathy strikes. Kevin Efroymson, the Compa- ny's general counsel from 1965 until 1976, credibly testi- fied that during those years the Carpenters consistently crossed picket lines when it was not directly involved in the strike. Gerard Paul McGhee, who is now corporate director of labor relations for the Company's parent con- cern and who for many years held high level manage- ment positions with the Company in the labor relations field, credibly testified that from the time that he was concerned with labor relations in 1968 through his de- parture in 1984, construction and maintenance crafts rou- tinely crossed each other's picket lines during labor dis- putes. He credibly averred that he was aware of no breach of the no-strike clause until the events that gave rise to this case. For example, in 1974 the Teamsters maintenance employees and the maintenance carpenters struck during a contract wage reopener and the con- struction carpenters, whose contract was still in effect, worked. In 1980 the construction carpenters struck at the expiration of their contract but the maintenance agree- ment was still in effect and the maintenance carpenters continued to work. The situation changed in the fall of 1987 and a number of unions disregarded the no-strike clauses in their out- standing contracts. In mid-September 1987 the bus driv- ers and the Culinary Union went out on strike and the Carpenters Union honored that strike even though there were no-strike clauses in both of its contracts. However, some of the carpenters had crossed the picket line and gone to work. At a Carpenters meeting in mid-Septem- ber 1987, one of the employees asked Carpenters Busi- ness Representative Cliff Kahle what could be done about the people who worked behind the picket line. At that time the Carpenters construction agreement as well as the maintenance and operations agreement were in effect. Kahle responded that nothing could be done be- cause of a clause in the contract, that no fines could be imposed, and that the only thing that could be done would be harassment at work. 5 On September 24, 1987, while the Carpenters were en- gaging in a sympathy strike against the Company but had not yet put up their own picket line, the Company sent a letter to Kahle, the business representative of the Carpenters, demanding that the Carpenters cease its con- tract violations. The letter states in part: Section 1 of Article II-No Strikes or Lockouts of both the Project Construction and the Project Maintenance Agreements contains a broad no strike provision agreed to by your Union which prohibits all strikes and stoppages of work, including sympa- thy strikes. These provisions were incorporated into the first Project Construction and Project Mainte- nance Agreements between REECo and Local 1780 negotiated in 1965 with the express understanding that the broad no strike agreement by your Union barred all strikes, including sympathy strikes. The No Strike Article was a major issue in the 1965 ne- gotiations of first project labor agreements, and was designed to eliminate the rash of strikes which had occurred at the Nevada Test Site for years prior to that time. The Carpenters never responded to that letter. D. Analysis and Conclusions Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. One of those Section 7 rights is that of an employee to refrain from union or concerted activities except to the extent that union membership is required under a lawful union-security clause. Section 8(b)(1)(A) also contains a proviso which states that a labor organization has the right to prescribe its own rules with regard to the acquisition or retention of member- ship. But for that proviso any discipline of a union member for crossing a picket line would be a violation of Section 8(b)(1)(A). Under the proviso a union may, in the absence of an enforceable collectively bargained no- strike clause, discipline full members for refusing to honor a lawful strike. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). In Scofield v. NLRB, 394 NLRB 423, 430 (1969), the Supreme Court held: Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects legitimate union interest, impairs no policy Congress has im- bedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. 4 The current Carpenters maintenance agreement which is effective from November 23, 1987, to October 1, 1992, and was executed by the Company on February 17, 1988, changed the no-strike clause to ban sym- pathy strikes by name. The change appears to be a response to the events that led to the litigation in this case and I do not believe that an inference is warranted that the Company was attempting to change the intent or meaning of the clause S These findings are based on the credited testimony of W. Douglas Excell, a construction carpenter who attended the meeting, which was basically for maintenance carpenters. Kahle testified that he was asked a question concerning the no-strike clause in the construction agreement at the union meeting . He averred that he said that he would have to talk to his attorney before answering because he did not want to have a potential lawsuit problem I believe that Excell was the more credible witness. CARPENTERS LOCAL 1780 (REYNOLDS ELECTRICAL) 417 Following the principles set forth in the Scofield case, the Board has found that the proviso did not offer a defense against Section 8(b)(1)(A) violations where the internal enforcement of a union rule involved discipline imposed against union members for filing charges with the Board, for refusing to cross unlawful picket lines, for refusing to participate in conduct violative of the Act, or for refus- ing to act in contravention of a collectively bargained agreement. See Operating Engineers Local 39 (San Jose Hospital), 240 NLRB 1122 (1979), and cases cited therein at 1123. In Mine Workers Local 12419 (National Grinding Wheel), 176 NLRB 628, 632 (1969), the Board found that a union violated Section 8(b)(1)(A) by fining its members who refused to honor the picket line of a sister local under circumstances where the union was bound by a broad no-strike clause that proscribed any strike or slow- down, total or partial, of work at the company's plant. The Board adopted the administrative law judge's deci- sion which held: To hold that a union, despite the prohibition in Section 8(b)(1)(A) against restraining or coercing of employees in their rights under Section 7, could nevertheless with impunity penalize members for failing or refusing to participate in a violation of a no-strike clause is to provide an incentive to unions and members to violate contracts. This too runs counter to a basic policy of the statute. The Board also adopted the administrative law judge's conclusion that it was a violation of the no-strike clause to honor a sister local's picket line. In other words a "no-strike" clause meant all strikes including sympathy strikes.6 In the context of that situation a serious argu- ment could be made that the "intention" behind a no- strike clause is irrelevant . A reasonable person can cer- tainly come to the conclusion that a "no-strike" clause means literally "no strikes." A ban on "all" strikes in- cludes a ban on all types of strikes. There is no need to resort to formal Aristotelian logic to come to that common sense conclusion. However, it is difficult to dis- pute the validity of a syllogism where the major premise is "all strikes are prohibited," the minor premise is "a sympathy strike is one form of a strike," and the conclu- sion is "sympathy strikes are prohibited." The situation in the union fine cases are very different than those in the cases where an employer discharges an employee for engaging in strike activity. In the union fine situation the union, by agreeing to a broad no-strike clause, puts the employees in a position where they can reasonably be- lieve that all types of strikes are prohibited. The employ- ees have reason to believe that the labor law will not protect them if they engage in a strike and that the em- ployer can discharge them with impunity. It is the union 6In Operating Engineers Local 18 (Davis-McKee), 238 NLRB 652 (1978), the Board held that to the extent that National Grinding Wheel, supra, stood for the proposition that the right to engage in a sympathy strike is waived by a union's agreement to a broad no-strike clause, with- out more, it had been overruled sub silentio by later cases The Davis- McKee case must now be read in light of Indianapolis Power & Light Co., infra, which is discussed in detail below. that put them in that vulnerable position whatever the intention of the union was. In such circumstances it would not further Federal policy to allow a union to fine a member because the member takes reasonable steps to honor the apparent meaning of the contract, no matter what the real intention of the employer and union was. On the other hand the "intention" of the parties is of critical importance in interpreting a "no-strike" clause in a situation where an employer discharges an employee for striking. There we start with the premise that both a strike and a sympathy strike are protected activities under Section 7 of the Act. The right to strike may be waived but such waivers must be "clear and unmistak- able." Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). In determining whether a waiver of a statuto- ry right is "clear and unmistakable," an evaluation of the contract language must be made in the context of all sur- rounding circumstances to find the actual intention of the parties. The contract language is only one indicia of intent. The concept of a "clear and unmistakable waiver" of a statutory right that is the key to resolving the case involving an employer's discharge of an employee for striking has little application in a situation, such as we have here, where a union fines a member for refusing to honor a picket line in the face of a no-strike clause. However, the Board has not always drawn that distinc- tion. In Food & Commercial Workers Local 1439 (Ro- sauer's Supermarkets), 275 NLRB 30 (1985), the Board applied standards to a union fine case that had evolved from employer discharge situations, holding: In Indianapolis Power & Light Co., 273 NLRB 1715 (1985), we held that broad no-strike provisions prohibit all strikes, including sympathy strikes, unless the contract or extrinsic evidence establishes the parties intended to except sympathy strikes from the prohibition. The meat unit contract's no-strike provisions prohibit, inter alia, "picketing, boycott- ing, strikes, or other economic action." Nothing in the contract suggests an intent to create an excep- tion for sympathy strikes. Nor does the judge's dis- cussion of the parties' bargaining history establish that the parties intended to exclude sympathy strikes. We therefore hold that the Respondent clearly and unmistakably waived meat unit employ- ees' right to engage in sympathy strikes. According- ly, the Respondent violated Section 8(b)(1)(A) by threatening to discipline members who refused to participate in the sympathy strike. The Indianapolis Power & Light Co. case, ? the current controlling Board law, 8 is a culmination of a long string 273 NLRB 1715 (1985), revd. and remanded for further proceedings 797 F.2d 1027 (D.C. Cit. 1985). In reversing the Board, the court noted that evidence was presented that the parties during negotiations had as- serted different interpretations of the no-strike clause and that neither party had acquiesced in the other's view. The Court said that the admin- istrative law judge had concluded that the parties had agreed to disagree over whether sympathy strikes were covered by the clause and that the Board had not addressed that specific finding. The case was remanded because in the Court's opinion the Board had failed to discuss relevant and perhaps dispositive evidence of the parties' intent. 8It is noted that the parties entered into the current construction agreement on June 1 , 1985 and that Indianapolis Power & Light Co. was decided by the Board on January 31, 1985, some 5 months earlier. 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of cases involving the interpretation of no-strike clauses in the context of an employer's discharge of employees for engaging in a sympathy strike. In Indiana Power & Light Co., the Board reversed prior law which had held that a broad no-strike clause did not ban sympathy strikes unless sympathy strikes were expressly mentioned or extrinsic evidence clearly showed the parties intended to include them . In effect the Board simply reversed the presumptions. Under the current law a broad no-strike clause will include sympathy strikes unless extrinsic evi- dence indicates that the parties intended otherwise. As the Board held: Following Board precedent,' the judge reasoned that, because the contractual no-strike language did not expressly mention sympathy strikes, the con- tract would not bar them unless extrinsic evidence clearly showed the parties' intent to do so. He found the parties' bargaining history and past prac- tice regarding sympathy strikes equivocal and un- certain, and thus insufficient to establish a sympa- thy-strike waiver. We conclude that the broad no-strike clause bars employees from honoring stranger picket lines. We agree with former Member Penello, concurring in Operating Engineers Local 18 (Davis-McKee), 238 NLRB 652, 661 (1978), that a broad no-strike prohi- bition encompasses direct and indirect work stop- pages, including sympathy strikes: "Where the par- ties to a collective-bargaining contract embody in the agreement a clause stating essentially that there shall be no strikes during the term of the agreement, it means that there shall be no strikes during the terms of the agreement--unless extrinsic evidence in- dicates that the parties intended otherwise." Al- though previous Board decisions have held that sympathy strikes lie outside the scope of broad no- strike clauses, we can discern no logical or practical basis for the proposition that the prohibition of all "strikes" does not include sympathy strikes merely because the word "sympathy" is not used. As the District of Columbia Circuit stated, "[T]he practical relationship between work stoppages and the honor- ing of picket lines is so well understood in the in- dustrial climate that we think that a clause of this kind using only the word `strike' includes plant sus- pensions resulting from refusals to report for work across picket lines." News Union of Baltimore v. NLRB, 393 F.2d 673, 676-677 (1968). See also the Seventh Circuit's opinion in United States Steel, supra. We consider former member Penello's Davis- McKee concurrence a sound and straightforward guide to construing no-strike provisions. If a collec- tive-bargaining agreement prohibits strikes, we shall read the prohibition plainly and literally as prohibit- ing all strikes, including sympathy strikes. If, how- ever, the contract or extrinsic evidence demon- strates that the parties intended to exempt sympathy strikes, we shall give the parties' intent controlling weight. We therefore overrule such cases as United States Steel and W-I Canteen Service to the extent that the standard applied there is inconsistent with this holding. ' United States Steel Corp., 264 NLRB 76 (1982) (former Chair- man Van de Water and Member Hunter dissenting), enf denied 711 F 2d 772 (7th Cit. 1983); W-I Canteen Service, 238 NLRB 609 (1978), enf denied 606 F.2d 738 (7th Cir. 1979). In the instant case I believe that a violation of Section 8(b)(1)(A) must be found under any of the various theo- ries discussed above. If a union member is protected against union fines when he acts under a reasonable in- terpretation or a collective-bargaining agreement with respect to a no-strike clause, then clearly there was a violation of the Act. It is quite reasonable to interpret "no strikes" to mean just that. If on the other hand the case turns on the actual intention of the parties as to the meaning of the no-strike clause, with a bow toward the cases dealing with an employer's discharge of an employ- ee for striking, a violation must still be found. When the initial contract was negotiated in 1965, all the parties were aware that the work in question was extremely im- portant and sensitive as far as the Atomic Energy Com- mission was concerned, and that the Atomic Energy Commission had indicated that it would no longer toler- ate the disruption caused by sympathy strikes and had demanded that the Company obtain a contract clause banning then. There was an implied threat from the Government that the Company would no longer be on the job if it could not secure satisfactory contract clauses. At those initial negotiations the Company pro- posed a no-strike clause that provided that there would be no strikes, stoppages of work or slowdowns of the Company's operations during the term of the agreement. The company negotiators described in detail the prob- lems caused by sympathy strikes in the past and it was made unequivocally clear that the Company interpreted its proposed wordings to ban all strikes including sympa- thy strikes. Throughout negotiations the Carpenters never gave any indication that they had a different inter- pretation of the Company's proposed language. This was not a situation where the parties interpreted contract lan- guage differently or in which they agreed to disagree. There was a clear understanding that the language "no strikes, stoppages of work or slowdowns" meant just what it said. The Carpenters agreed to that language after hearing the Company's interpretation and offering no different interpretation of their own. A contract was signed incorporating that language. The same language was incorporated in all succeeding Carpenters construc- tion agreements. During negotiations for successor agree- ments there was no attempt to change the language nor any indication that the Union disagreed with the Compa- ny's interpretation of that language. Indeed from the time the original contract was signed until the fall of 1987, when the events underlying the instant litigation took place, both the Company and the Carpenters acted in a way that was consistent with an understanding that the no-strike clause applied to sympathy strikes. Where the Carpenters construction agreement was still outstand- ing and the maintenance carpenters struck, the construc- tion Carpenters crossed the maintenance carpenters CARPENTERS LOCAL 1780 (REYNOLDS ELECTRICAL) 419 picket lines. The Company and the Carpenters did not disagree about the interpretation of the contract. They both understood that it covered all strikes including sym- pathy strikes. That was manifested in the remark by Car- penters business representative Clifford Kahle at a union meeting in mid-September 1987 when he told the assem- bled members that there was nothing the Union could do about members who worked behind the Culinary and bus drivers picket lines because of a clause in the contract. At that time both the Carpenters construction and the Carpenters maintenance agreements were still in effect and both contained the no-strike clause . The maintenance agreement expired October 1, 1987 and the construction agreement didn't expire until June 1, 1990. The no-strike clause in question here must also be read in the light of the preamble of the 1985-1990 construc- tion agreement . In it, the parties agree that the work in- volved is of major national importance, is of urgent pri- ority, and is essential to the national defense. The parties understood the importance of the work involved and the need to have that work free of interruptions of any kind. That need was reflected in the no-strike clause . It is also noted that the Carpenters did not respond to the Compa- ny's September 24, 1987 letter in which the history of negotiations was mentioned and the conclusion reached that the no-strike clause included sympathy strikes. Applying the law set out in Indianapolis Power & Light Co., supra, a violation of Section 8(b)(1)(A) must be found because the collective-bargaining agreement pro- hibits strikes, that prohibition must be read plainly and literally as prohibiting all strikes, including sympathy strikes, and neither the contract nor extrinsic evidence demonstrates that the parties intended to exempt sympa- tliy strikes. Indeed even if the pre-Indianapolis Power & Light Co. law is applied to the facts of this case, the result would be the same. If we start with the presump- tion that the no-strike clause does not include sympathy strikes because they are not expressly mentioned, that presumption has been rebutted by extrinsic evidence clearly showing that the parties intended to cover sym- pathy strikes. In sum I conclude that the Carpenters violated Section 8(b)(1)(A) as alleged in the complaint. CONCLUSIONS OF LAW 1. The broad no-strike clause in the June 1, 1985 to June 1, 1990 Carpenters construction agreement was in- tended to and did ban sympathy strikes. 2. The sympathy strike that the Carpenters engaged in in the fall of 1985 was a violation of the no-strike clause in that agreement. 3. The Carpenters violated Section 8(b)(1)(A) of the Act by fining and otherwise disciplining members for re- fusing to honor that sympathy strike. Having found that the Carpenters fined the 20 employ- ees named above in the amounts set forth next to their names, I recommend that the Carpenters be ordered to vacate those fines. The record does not disclose whether any of the fines have actually been paid or whether any money has been paid by the employees to process an appeal from those fines or for other expenses related thereto. I recommend that the Carpenters be ordered to return to those employees any fines that have been paid together with an amount equal to any expenses those em- ployees incurred as a result of those fines plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).9Laborers Northern California Council (Baker Co.), 275 NLRB 278 (1985). Having found that the Carpenters refused to accept dues unless the unlawful fines were paid , it is recom- mended that the Carpenters be ordered to accept dues without that condition and if any members have been ex- pelled from membership because of the refusal of the Carpenters to accept dues until such fines were paid, it is recommended that the Carpenters be ordered to reinstate those members. I will further recommend that the Carpenters be or- dered to expunge from its records all references to the charges, trials, fines, and other actions against those members and to notify them in writing that it has done so. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'o ORDER The Respondent, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1780, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Fining or otherwise disciplining any member for refusing to honor a sympathy strike where that sympathy strike is prohibited by the terms of a no-strike clause in a collective-bargaining agreement. (b) Refusing to accept dues from members until such fines are paid. (c) Expelling any member from membership for non- payment of dues where it refuses to accept dues until such fines are paid. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the fines it levied against the following members: THE REMEDY Having found that the Carpenters engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. 9 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment 26 U.S.C. § 6621. 10 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- >oses 420 James E. Allen Edwin A. Arnold John D . Campbell George S. Dukart Douglas Excell Henry E. Flynn, Sr. Charles R. George Dwight Hardison George Howard Gary Hutchcroft DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Larry Johnson Douglas Konold Frank Kraft Jessie McMurtry Theodore Mathews William Mosier John K. Sellers Winston Shrout Dan Weaver Edwin Wielinski (b) Return to those members any fines that they may have paid together with an amount equal to the expenses those employees incurred as a result of those fines plus interest in the manner set forth in the remedy section of this decision. (c) Accept dues from those members without requiring that such fines be paid first and reinstate to membership any member who was expelled because of its refusal to accept dues until such fines were paid. (d) Expunge from its records all reference to the charges, trials, fines and other actions against those mem- bers and notify them in writing that it has done so. (e) Post at its business offices, hiring halls, and meeting places, copies of the attached notice marked "Appen- dix."'t Copies of the notice on forms provided by the Regional Director for Region 31, after being signed by its authorized representative, shall be posted by it imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for in writing within 20 days from the date of this Order what steps it has taken to comply. 1 i 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."