Arizona Public Service Co.

National Labor Relations Board - Board Decisions

Feb 5, 1985

273 N.L.R.B. 1757 (N.L.R.B. 1985)

ARIZONA PUBLIC SERVICE CO. 1757
Arizona Public Service Company and International
Brotherhood of Electrical Workers, Local
Union No. 387, AFL-CIO. Case 28-CA-7074
5 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 December 1983 Administrative Law
Judge James S. Jenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed briefs in support of the judge's decision.
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,2
and conclusions only to the extent consistent with
this Decision and Order. •The judge found that the Union had not waived
the employees' right to participate in a sympathy
strike and, therefore, the Respondent violated Sec-
tion 8(a)(3) of the Act by suspending eight employ-
ees because they refused to cross a stranger picket
line. For the following reasons we find the parties'
contract permitted the discipline, and consequently
we reverse the judge's decision and dismiss the
complaint.
On 21 May 1982 3 the Respondent began laying
cable and installing poles and street lights on a mu-
nicipal building complex in Flagstaff, Arizona. On
28 July Construction Supervisor Herring ordered a
10-man crew to remove intersecting overhead lines
on the project to make way for a large crane. Be-
cause a Carpenters Union picket line crossed the
access road to the overhead lines, 4 eight crewmem-
bers refused to perform work. Herring warned the
eight employees they could be disciplined and told
them to return to the office. That afternoon Her-
ring suspended the sympathy strikers for 5 days. In
response to IBEW business agent Stanfield's re-
quest on 28 July, the Carpenters Union agreed to
remove its pickets. The Respondent's crew report-
The Respondent excepts to the judge's rejection of an affidavit the
Respondent submitted after the hearing and has submitted an additional
affidavit. We strike the Respondent's posthearmg documentary submis-
sions, as they are neither newly discovered nor were they unavailable at
the time of the hearing. We have considered court decisions that the Re-
spondent called to our attention.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect.Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
3 All dates are in 1982.
4 Several unions had been picketing the project for some time without
impeding the Respondent's work. •
ed to work the next day. Herring told the sympa-
thy strikers he thought the Respondent had lifted
the 5-day suspensions because they were willing to
work, but he thought they still would be disci-
plined.
On 29 July the Respondent advised that it might
bring suit against the Union because of the employ-
ees' refusal to perform assigned work. By letter
dated 29 July the Union answered that it had not
authorized the "stoppage, strike, slowdown or sus-
pension of work at the Flagstaff City Complex."
On 2 August the Respondent suspended the eight
employees for 3 days, informing them that their
work stoppage violated article I, section 2 of the
contract.
Article I, section 2, of the agreement provides:
During the term of this Agreement,. and
during any period of time while negotiations
are in progress between the parties hereto for
the extension or renewal of this Agreement,
the Union agrees on behalf of itself and each
of its members that there will be no authorized
concerted failure to report to work, cessation
or interruption of work, slowdown, strike,
boycott, or otherwise, with the Company's
business.
The Company agrees, as part of the consid-
eration of this Agreement, that neither the
Union, its officers, representatives, or members
shall be liable for damages for unauthorized
stoppages, strikes, intentional slowdowns, or
suspensions of work in the Company's service,
if:
(a) The Union gives written notice to the
Company within twenty-four (24) hours of
such action that it has not authorized the
stoppage, strike, slowdown, or suspension of
work;
(b) Copies of the notice described in (a)
above are posted immediately by the Union
on the bulletin board;
(c) The Union further cooperates with the
Company in getting the employees to return
and remain at work.
It is recognized that the Company has the
right to take disciplinary action, including dis-
charge, against any employees who engage in
any unauthorized stoppage, strike, intentional
slowdown, or suspension of work, subject to
the Union's right to present a grievance on
such discipline in accordance with Article VII
of this Agreement in cases in which an issue of
fact exists as to whether or not any particular
employee has engaged in, participated in, or
encouraged any such violation.
273 NLRB No. 210
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The article permits the Respondent to discipline
employees who "engage in any unauthorized stop-
page, strike, intentional slowdown, or suspension of
work." The Union's 29 July letter states that it
"has not authorized the stoppage, strike, slowdown
or suspension of work" at the Flagstaff jobsite.
Thus, by the terms of the parties' contract, and
consistent with the Union's letter, the Respondent
"has the right to take disciplinary action" against
the eight employees. 5 Accordingly, we find that
the Respondent did not violate the Act by suspend-
ing the eight employees for 3 days.
ORDER
The complaint is dismissed.
5 In Indianapolis Power & Light Co, 273 NLRB 1716 (1985), we stated
that we agree with former Member Penello's dissent in Operating Engi-
neers Local 18 (Davis-McKee), 238 NLRB 652 (1978), to the effect that,
absent extrinsic evidence that parties intended otherwise, a general no-
strike clause waives the employees' right to engage in sympathy strikes
Accordingly, to the extent that the cases the judge relies on are inconsist-
ent with our holding in Indianapolis Power & Light, they were overruled
in that case
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This
case was heard in Phoenix, Arizona, on February 8, 9,
10, and 11, 1983, pursuant to a charge filed on August
20, 1982, 1 and a complaint issued on October 4 The
complaint alleges the Respondent violated Section 8(a)(1)
and (3) of the Act by issuing 3-day suspensions to eight
employees for having engaged in a sympathy strike and
refusal to cross the picket line of the Carpenters Union at
a municipal building project for the city of Flagstaff, Ar-
izona. The principal issue was whether the Charging
Union waived the Section 7 right of the Respondent's
employees to engage in sympathy strikes and honor the
picket lines of other unions at sites where Respondent's
employees have been scheduled to work
All parties were given full opportunity to appear, to
introduce evidence, examine, and cross-examine wit-
nesses, to argue orally, and to file briefs Briefs were
filed by all three parties and have been carefully consid-
ered.
Both the General Counsel and Respondent filed mo-
tions to correct the record. The motions are granted and
have been added to the formal exhibit file as General
Counsel's Exhibits KO and (j), respectively.
On March 14, 1983, the time for filing briefs in this
matter was "extended to all parties to the close of busi-
ness April 1, 1983." The Respondent's brief was hand de-
livered by special messenger to a Federal building securi-
ty guard at 5:40 p.m. on the due date, this office having
closed at 5 p.m. Respondent's brief, therefore, was on my
desk Monday morning, April 4. The General Counsel's
' All dates are in 1982 unless stated otherwise
brief, which is dated March 31, was apparently sent by
certified mail, and was not received until the afternoon
of April 4. Thus, both the Respondent's and the General
Counsel's briefs, from a technical standpoint, were re-
ceived after the "close of business April 1, 1983," and
were therefore late. It is clear, however, that no party
has suffered any prejudice because of the late filings by
both parties. Accordingly, the General Counsel's motion
to strike the Respondent's brief is denied.
The Respondent's brief contains two attachments, a
decision of the Supreme Court of Arizona, and an affida-
vit from an employee who did not testify. Respondent's
brief also contains several requests treated herein as mo-
tions. Respondent requests that the General Counsel be
ordered to provide it "with copies of any and all state-
ments in the Government's possession, from individuals
other than the General Counsel's witnesses who testified
at the hearing, dealing with matters to which these wit-
nesses testified"; that "in the event that [Respondent] de-
termines that, as a result of any such statements, addi-
tional testimony or other evidence should be provided,
the hearing be reopened"; that in the event the Govern-
ment asserts that whatever other statements it has do not
deal with the testimony of the witnesses, that I should
review the statements "in camera or otherwise"; and that
in the event the Government asserts it has no other state-
ments which relate to matters to which its witnesses tes-
tified, Respondent is entitled to cross-examine counsel
for the General Counsel under oath. On April 13, the
General Counsel filed (in addition to its motion to strike
Respondent's brief), a motion to strike the documentary
evidence which was attached to the Respondent's brief,
and opposed the Respondent's renewed motion that the
General Counsel make available for its inspection state-
ments by individuals who did not testify. The General
Counsel's motion to strike the documents attached to the
Respondent's brief is granted. The additional evidence
which Respondent seeks to have considered is neither
newly discovered nor was it unavailable at the time of
the hearing. As the Board stated in Otis Elevator Co., 255
NLRB 235 at 239 (1981): "The responsibility of 'making
a record' supporting one's position not only devolves
upon the parties, but particularly devolves upon them
during the hearing and before the record is closed." The
Respondent's request with respect to the production of
statements from individuals other than the General
Counsel's witnesses, or that it be permitted to cross-ex-
amine the General Counsel under oath with respect to
the existence of such statements, is also denied. Respond-
ent's reliance on Brady v. Maryland, 373 U.S. 83 (1963),
and United States v. Agurs, 427 U.S. 97 (1976), is com-
pletely misplaced. While a prosecutor in a criminal case
has a duty to supply exculpatory material to a defendant,
Respondent cites no authority suggesting that either case
applies to a civil administrative proceeding. Clearly, the
General Counsel was not required to supply Respondent
with statements made by nonwitness employees solely
because of Respondent's hope that the statements might
be useful to it See Hedison Mfg. Co. v. NLRB, 643 F.2d
32 (1st Cir. 1981); NLRB v. Master Slack, 618 F 2d 6 (6th
Cir. 1980); North American Rockwell Corp. v. NLRB, 618
ARIZONA PUBLIC SERVICE CO. 1759
F.2d 866 (10th Cir. 1968); Morrison-Knudson Co., 210
NLRB 174 fn. 1(1974).
In its brief, the Respondent resubmitted a rejected
offer of proof covering certain testimony of its witness
Gelinas. I have reconsidered my ruling in light of the
entire record, and reaffirm it.
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Arizona Public Service Company (Respondent) is en-
gaged in business as a public utility within the State of
Arizona, furnishing electrical power and natural gas
service to customers. During the past 12 months it de-
rived gross revenue in excess of $250,000 and purchased
goods and materials valued in excess of $50,000 which
were received directly from suppliers located in States
other than Arizona. It is alleged, admitted, and found
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is alleged, admitted, and found that International
Brotherhood of Electrical Workers, Local Union No.
387, AFL-CIO and Arizona State District Council of
Carpenters, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO are each labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR 'LABOR PRACTICES
A. The Setting,
Respondent is a public utility engaged in furnishing
electrical power and natural gas services to its custom-
ers. Respondent employs approximately 7000 employees,
approximately 2500 of whom are in the unit represented
by the Union. There has been a collective-bargaining re-
- lationship between the Respondent and the Union since
about 1945, the most recent collective-bargaining agree-
ment being effective from April 1, 1982, to April 1, 1984.
Since at least 1949, each of the agreements has contained
the following provisions regarding strikes and lockouts:
ARTICLE I
Reciprocal Covenants—Union Recognition
Section 1. During the term of this Agreement,
and during any period of time while negotiations
are in progress between the parties hereto for the
extension or renewal of this Agreement, the Com-
pany that there will be no lockout.
Section 2. During the term of this Agreement,
and during any period of time while negotiations
are in progress between the parties hereto for the
extension of renewal of this Agreement, the Union
agrees on behalf of itself and each of its members
that there will be no authorized concerted failure to
report to work, cessation or interruption of work,
slowdown, strike, boycott, or otherwise, with the
Company's business. .
The Company agrees, as part of the consideration
of this Agreement, that neither the Union, its offi-
cers, representatives, or members shall be liable for
damages for unauthorized stoppages, strikes, inten-
tional slowdowns, or suspensions of work in the
Company's service, if:
(a) The Union gives written notice to the
Company within twenty-four (24) hours of such
action that it has not authorized the stoppage,
strike, slowdown, or suspension of work;
(b) Copies of the notice described in (a) above
are posted immediately by the Union on the bul-
letin board;
(c) The Union further cooperates with the
Company in getting the employees to return and
remain at work.
It is recognized that the Company has the right
to take disciplinary action, including discharge,
against any employees who engage in any unauthor-
ized stoppage, strike, intentional slowdown, or sus-
pension of work, subject to the Union's right to
present a grievance on such discipline in accordance
with Article VII of this Agreement in cases in
which an issue of fact exists as to whether or not
any particular employee has engaged in, participat-
ed in, or encouraged any such violation.
Article VII of the current agreement is entitled
"Grievances and Arbitration." The present language was
adopted in 1980. It reads, in pertinent part:
Section 1. A grievance for the purpose of this
Agreement shall be considered as any complaint on
the part of an employee or employees regarding the
treatment he receives from fellow employees, fore-
men, or Company representatives, dissatisfaction
with working conditions, or any action on the part
of the Company or Company representatives which
he considers to be a breach of this Agreement. Dis-
putes over wages and wage scales shall not be
deemed a grievance. (4-1-80)
Section 3. Any grievance which cannot be ad-
justed under the provisions of this Article, and any
difference that may arise between the Company and
the Union concerning the overall application or in-
terpretation of this Agreement or any provisions
hereof (as distinguished from its application, or
grievances of individual employees or group of em-
ployees) which the representatives of the Union and
the Company are unable to settle, including differ-
ences concerning amendments to this Agreement at
any termination date, may be referred to arbitration.
(4-1-80)
The record shows that during negotiations leading up
to the 1980-1982 agreement, the Respondent proposed
the following change with respect to article I, section 2:
"To clarify that any strike, slowdow, boycott or other
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activity will be a violation of this Agreement"
Peter L. Joachim, Respondent's supervisor of labor rela-
tions, testified that the effect of the proposal was to
change the wording to make it more clear that all strikes
were prohibited. The Union rejected the proposal and it
was withdrawn.
B. 1982-1984 Contract Negotiations
Respondent proposed changes in the wording of arti-
cle I, section 2 again during negotiations leading up to
the 1982-1984 agreement. Joseph Gelinas, vice president
of employee relations, was the chairman of the Respond-
ent's negotiating committee and its principal spokesman.
Other company representatives were Industrial Relations
Manager Charles Nelson, Supervisor of Labor Relations
Peter Joachim, Labor Relations Analyst John Patrick,2
Division Vice President Jerry Human, and Vice Presi-
dent of Power Production Walt Eckstrom Harold Sebr-
ing, the Union's president, was chairman of the Union's
negotiating committee. Other union negotiators included
Union Business Manager Bowden, Assistant Business
Manager Gene Hill, and Respondent's employees Bill
Burke, Ken Christopher, and Bob Edwards. On Febru-
ary 18, a preliminary negotiation meeting was held at
which time the Company and the Union exchanged their
lists of proposed changes and amendments to the con-
tract. The first proposal by the Respondent was to delete
the word "unauthorized" form article I, section 2. No
substantive discussion took place on February 18.
The parties met again on February 22, at which time
Gelinas gave the Union "Company Proposal Number 1"
consisting of a copy of article I, section 2, with the
words "authorized" and "unauthorized" crossed out The
proposal states that its purpose is to "Clarify that any of
the activities listed are prohibited and cannot be author-
ized." While there is disagreement among the witnesses
as to exactly what was said between the parties, I am
convinced and find from a composite of the credited tes-
timony that Bowden asked what the proposal meant, that
Gelmas stated the Company wanted to make it clear that
article I, section 2, encompassed all work stoppages, that
Sebring asked if the proposal would force union mem-
bers to cross picket lines, that Gelinas answered in the
affirmative and cited as an example a sympathy strike at
the Deer Valley warehouse; that Bowden stated that he
didn't see any need for the change since the Company
2 Witnesses were sequestered at the commencement of the hearing pur-
suant to the General Counsel's motion and without objection from the
Respondent Clyde Bowden, the Union's business manager, and a rebuttal
witness, was selected by the General Counsel to remain in the hearing
room and assist him The Respondent was initially permitted two repre-
sentatives, Duffey, who was not a witness, and Supervisor of Construc-
tion Richard Herring, who testified Joachim was permuted to sit at Re-
spondent counsel's table after one of the other men left The parties were
Instructed to police the sequestration rule themselves, since I did not
know who would be called to testify Patrick, who had taken notes on
behalf of the Company during all of the contract negotiations, was per-
mitted to remain in the hearing room and was observed taking notes
throughout the hearing In violation of the sequestration rule, the Re-
spondent called Patrick as a witness on surrebuttal Pursuant to the Gen-
eral Counsel's objection, I did not permit Patrick to testify I have recon-
sidered my ruling in the light of the entire record, and reaffirm it I also
reaffirm my ruling rejecting R Exh 8, which consists of Patrick's notes
taken during negotiations and which were also offered during surrebuttal
and the Union had always worked together and been
able to dispose of problems involving picket lines, citing
an example in Scottsdale where he had gotten the other
union to remove its picket. Contrary to the position of
the Respondent, the evidence does not disclose that the
Union agreed on February 22 with the Respondent's po-
sition that article I, section 2, encompassed sympathy
strikes. On March 4, the evidence shows, Sebring specifi-
cally rejected Respondent's proposal to change article I,
section 2
On March 8, the Union and Respondent met again
Gelinas testified as follows.
Q. [By Mr Morales] Okay. Tell us what was said
in connection with that proposal, with that discus-
sion, and who said it?
A. I believe it was in context that we wanted to
get on with trying to get some issues resolved that
we were going through
Q. And if you can recall, Mr. Gelinas, just as spe-
cifically as you can, the words that you remember
yourself that anybody else said on this topic?
A. I believe I said words I'd like to get on with
this so that we can finish up by the 1st of April and
I said that based upon the comments and under-
standing from our last meeting when we discussed
this that since the language is all-encompassing or in
broad enough terms to encompass the issue of sym-
pathy strikes, that if we can, based upon that under-
stand, we would withdraw our proposal.
Q. All right. What did the union representative
say to that?
A I don't believe there was any verbal commen-
tary at all after that.
Q. Was Mr. Bowden at that meeting?
A. Yes.
Joachim testified:
Our contract date is April 1st And so we were,
you know, we had a lot of issues to discuss. And so
Joe, on the 8th, started trying to wrap some things
up. And he said something to the effect that, well,
we want to, you know, kind of get things moving
and based on the—I think somewhere in here this
had come up that the union had rejected our
change. They had said, "No, we're not going to do
anything on that." But, anyway, Joe brought this up
and he said to kind of speed things up, he said,
"Based on the fact that you have assured me that
you believe that this clause as it stands covers ev-
erything, covers our concerns, "I think is what he
said. And I think he may had even said, sympathy
strike, I believe he did. "I'm going to withdraw that
proposal" And nobody said anything like, well, if
that's your belief, don't withdraw it. And it was at
that point withdrawn.
Bowden denied Gelinas conditioned withdrawal of
company proposal one upon any purported understand-
ing or union representation regarding the application of
the clause to sympathy strikes He further denied he ever
ARIZONA PUBLIC SERVICE CO. 1761
stated that the Respondent had the right under the con-
tract to discipline employees who engaged in a sympathy
strike, or that the contract language was already broad
enough to cover the matter of disciplining employees for
engaging in a sympathy strike. He also denied Gelinas
used the term "resolved" as the basis for the withdrawal.
Bowden's testimony is corroborated in material part by
Sebring, Christopher, and Edwards. The testimony of
the union negotiators is credited over that of Gelinas. In
this regard, it is noted that Joachim's testimony supports
that of the General Counsel's witnesses that the union
negotiators had rejected the Respondent's proposed
change prior to the March 8 meeting, and there is no
evidence to show that the subject was discussed between
the time it was brought up again by Gelinas on March 8,
at which time the proposal was withdrawn. Gelinas testi-
fied that at the March 22 negotiations, while recapping
negotiations to that point, "I indicated company proposal
number 1, resolved, was my word, and then we moved
on to the next." The Union made no response. I do not
find, however, that the Union's silence was consent to
adoption of the Respondent's proposal which had al-
ready been specifically rejected and withdrawn by the
Respondent. Also, it is clear from the record that the Re-
spondent never proposed to modify article I, section 2,
by inserting the words "sympathy strike" as a prohibited
activity.
On March 31, following the conclusion of negotia-
tions, Gelinas sent Bowden the following letter:
This letter will confirm our understandings we
arrived at during our 1982 negotiations.
(1) The administration of the Company's fringe
benefits programs will remain within its sole discre-
tion. It is understood that the company will not
reduce these benefits for bargaining unit employees
during the life of this agreement.
(2) Regarding the new Article V, Section la,
which pertains to an employee on vaction who be-
comes ill and is under a doctor's care substantiating
his need to be absent, it is understood that the em-
ployee has the same obligation to report that illness
as they now do under the current sick leave provi-
sions of the Company.
(3) Regarding the selection of arbitrators for
grievances that have arisen subsequent to the effec-
tive date of this agreement that result in arbitrations
relating to discharge, job selection and disciplinary
suspension, shall be as follows:
The Union and Company shall each submit a list
of twelve (12) nationally known arbitrators, exclud-
ing those who currently reside in Arizona. From
this list of twenty-four (24), each shall alternatively
strike a name until six (6) such arbitrators remain.
These six (6) arbitrators shall constitute the panel of
arbitrators for purposes of the arbitration cases
listed above.
(4) The Company will continue its practice that if
any employee is scheduled to work overtime and
the Company calls the employee and cancels the
overtime, the employee shall receive two (2) hours
of straight time.
(5) Regarding tardiness, it is not the Company's
intention to issue no report letters for tardiness
unless the tardiness becomes a problem.
I believe, Clyde, that this documents the various
understandings that we have arrived at during our
negotiations.
Gelinas testified the items included in the above letter
"were the ones where there may have been some area
possibly of misunderstanding between the parties." He
further testified that there were in fact other matters
agreed upon which were not reduced to writing, includ-
ing the breadth of article I, section 2.3
C. Past Practices
It is clear from the record that, prior to the incident
giving rise to this case, no bargaining unit employee was
ever disciplined by the Respondent for having engaged
in a sympathy strike by refusing to cross another union's
picket line to perform work for Respondent. Joachim
testified he knew of no instances where bargaining unit
employees ever refused a direct order to perform work
for Respondent at a job location because of the existence
of a picket line by another union, reciting several specific
instances when unit employees in fact crossed picket
lines. He testified that in 1978, a crew entered through a
separate or neutral gate to hang a transformer at a Santa
Fe yard. In 1979, he informed Bowden that a Carpenters
Union had established a picket line on a job at the east
end of Phoenix, that there was a separate gate, that Re-
spondent was going to send a crew there to work, and
that Bowden told him to go ahead. In 1980, a number of
employees entered through a separate gate and per-
formed work on a job being picketed on 19th Avenue.
While Joachim testified he told the foreman to tell the
men to "either go or we'll take disciplinary action," he
did not know whether the foreman so informed the
crew, and the record does not establish any reluctance
on the part of the employees to enter the premises. In
1981, a number of employees entered the St. Joseph Hos-
pital jobsite in Phoenix through a separate gate and per-
formed work. Joachim also testified there were a number
of occasions where various unions picketed a Del Webb
construction site at Sun City, and Respondent's employ-
ees had entered when told through separate gates. While
Richard Farthing, Respondent's customer service repre-
sentative in Flagstaff, testified he had never encountered
a situation where Respondent's employees refused to per-
form work because of a picket line, he had expressed
concern that they would not remove the overhead line at
the Flagstaff City Complex, the jobsite involved here,
which was being picketed by the Carpenters Union.
Witnesses for the General Counsel testified to a
number of instances when employees had declined to
cross stranger picket lines to perform work for Respond-
ent. Lineman Gary Smith testified that in August 1978,
3 The final sentence in art. XI of the collective-bargaining agreement
states that "It is distinctly understood and agreed that all previous agree-
ments and understandings, if any, and all negotiations, whether oral or
written, by and between the Company and the Union, are superseded by
this Agreement."
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was on a crew assigned to put in underground lines
on a project in Tempe. Upon observing pickets at the
site, the men returned to the yard and were assigned to
another job. No adverse action was taken against him.
After the picketing ceased, the men returned and per-
formed the work Sebring testified that in 1970 or 1971,
he was dispatched to work at O'Mally's Lumber Compa-
ny in Phoenix. Upon observing pickets, he called Joa-
chim, who was a supervisor or foreman at the time, and
was told not to cross the picket line. Christopher testified
that 17 or 18 years ago, he reported to a supervisor that
he had declined to cross a picket line on a "meter run."
No adverse action was taken. About 6 months later, he
was on a crew assigned to work on an underground
vault in Phoenix. Upon seeing pickets, the crew entered
into a discussion among themselves The work was not
performed and no adverse action was taken against them.
Edwards testified that 3 or 4 years ago he was sent to
read a meter at Goettl's Metals in Phoenix Upon observ-
ing pickets, he drove around the block and reported
back to his foreman who said he would take care of It.
No adverse action resulted Bowden testified that em-
ployees refuse to work at sites where another union is
picketing two or three times a year, and that he has
never been informed that Respondent took any action
against an employee because he engaged in a sympathy
strike. The usual practice, he testified, was that he called
Nelson, or Nelson called him, and "we try to get the
pickets removed and have been very successful over the
years really." Respondent's crews have been "pulled off'
until the pickets were removed. He recited several exam-
ples. About 12 years ago he received a call from Tom
Woods, Respondent's vice president of personnel, that
the crew did not want to cross a picket line at a housing
project near Casa Grande. Woods stated that they were
going to have to go in "because their pump was out of
water and that the developer had called the Corporation
Commission [who] was putting pressure on the compa-
ny." Bowden called the Corporation Commission and
was informed it had not received any complaint. Woods
response was, "Well, the hell with them then. If they're
going to lie to me, just keep the guys out . We
won't put them back in there again." Three weeks later,
after the Carpenters Union removed the picket, Re-
spondent's crew did the work. Approximately 8 or 10
years ago, Bowden received a call that another union
had placed a picket on a condominium development in
Scottsdale. Bowden called Chuck Ammerman, Respond-
ent's then manager of industrial relations, and the two
went to the project and talked to the developer. Ammer-
man arranged to have the crew work on Saturday when
the nonunion workers would not be working and there
would be no pickets. No adverse action against the
Union's members resulted. Approximately 8 or 9 years
ago in Paradise Valley, a crew refused to cross a Car-
penters Union picket line. No disciplinary action was
taken. Approximately 4 or 5 years ago, the Union and
the Respondent agreed that a crew would not be re-
quired to cross another union's picket line. The required
work was performed by nonbargaining unit employees.
No disciplinary action resulted. Bowden testified that
during construction of the Four Corners Power Plant in
the early 1970's, various building trades unions picketed
at the bridge crossing the San Juan River, which was
several miles from, but the only practical employee
access to, the plant. According to Bowden, he told union
representatives, including stewards, that the employees
"have a right not to cross that picket line," but that he
felt the Company would terminate them, but that at a
primary gate, "depending on the urgency or criticalness
of the job maybe, of being reinstated if you were termi-
nated or permanently replaced, or you will take the
shoes of a striker. On the secondary gate, I think your
chances are somewhat less than at the primary gate" He
denied he ever told anyone that the contract prohibited
them from honoring a picket line, or that they could be
discharged under the contract for honoring another
union's picket line. Bill Walker, now a planning supervi-
sor and a witness for the Respondent, was a union stew-
ard during the construction of the Four Corners Power
Plant He testified that when Respondent's employees ex-
pressed concern about crossing the picket line, "I told
them if they crossed the pickets that they were subject to
disciplinary action." (Emphasis added.) His response, he
claimed, was based on conversations with Bowden. Re-
garding the conversations with Bowden, he testified,
"Well, in talking to Clyde [Bowden] about this, he told
me that if you didn't cross the picket lines and if they
weren't for 387 that you were subject to disciplinary
action The only way that you may not get disciplinary
action would be if you was afraid of bodily—being hurt
when you came across the picket line, somebody throw-
ing rocks at you or whatever." As is readily seen, what
Walker claims he told employees, which he claims was
based upon what Bowden told him, is ambiguous. This
leads me to conclude that his understanding and/or
recollection is not accurate. Accordingly, I credit Bow-
den's testimony over his.
D. The Flagstaff Job
Construction of a new municipal building complex
(City Complex) for the city of Flagstaff, Arizona was
begun in early 1982. The City Complex was located in
the east half of a four-block tract bordered on the north
by Birch, on the south by Santa Fe, on the west by Sit-
greaves, and on the east by Humphreys Streets. Ken-
dricks bisects the tract in a north-south direction, and
Aspen in an east-west direction. At all times material
herein, Aspen was torn up and impassable because of
construction materials piled in its path between Hum-
phreys to the east and Kendricks to the west. Kendricks
was also impassable and scheduled for abandonment be-
tween Aspen on the north and Santa Fe on the south.
Thus, the area encompassing the new City Complex was
bounded by Birch on the north, Humphreys on the east,
Santa Fe on the south, and Kendricks to the west Lo-
cated a few feet west and paralleling Kendricks is locat-
ed a drywash or ditch 10 to 15 feet wide and 8 to 10 feet
deep which contains the Rio De Flagg River bed.
Access to the City Complex from the west is through a
gate (west gate) located near the intersection of Aspen
4 Tr 693-694
ARIZONA PUBLIC SERVICE CO. 1763
and Kendricks just east of the bridge crossing the ditch.
There is also an access road from the east located near
the northeast corner of Humphreys and Birch. Parallel-
ing and located along the entire eastern side of Ken-
dricks was an overhead power line (north-south power
line). There was also an overhead power line running
east and west which was located south of the building
site. As will be seen hereafter, removal of the two over-
head power lines at a time when Carpenters Union pick-
ets were located at the west gate precipitated a sympathy
strike and refusal to perform work by several men on
Respondent's crew assigned to -remove them.
Work begun at the city Complex on May 21. Respond-
ent's crews worked for 12 consecutive days laying un-
derground cable in open trenches and installing switch-
ing cabinets. Thereafter, the crews worked sporadically
on completing the cable laying and working on street
lights and transition poles around the perimeter. While
the date of the commencement of picketing at the west
gate was not established, picketing by one or another of
the various construction trades unions was going on in
July while Respondent's crewmembers were working at
the premises. The target of the picketing appears to have
been J. R. Porter Company, one of the building contrac-
tors.
By mid-July, construction work had progressed on the
building complex to the point it was felt it was necessary
for safety reasons to deenergize and remove the north-
south overhead power line in order that a large crane
could be used for steel erection in the proximity of the
overhead line. Concern had been expressed regarding the
possibility that the crane might come in contact with the
overhead line. Consequently, Herring, Respondent's su-
pervisor of construction, was advised by the project
manager that unless the overhead lines were removed,
steel erection would be stopped, resulting in financial
hardship for the city, J. R. Porter Company, and the
steel erectors. Consequently, Farthing, Respondent's cus-
tomer relations representative in Flagstaff, asked the Re-
spondent's construction foreman to schedule the work
for the following week. Farthing also informed his supe-
rior, Jim Spencer, that he did not know if the crew
would remove the overhead lines because of the pickets.
Herring had been informed by the Flagstaff city manager
that there had been no picket line violence and that the
city would provide necessary security for Respondent's
crew. Herring testified he was concerned about reports
of violence by Carpenters' pickets at other jobsites. He
therefore called Joachim for .the purpose of having Joa-
chim contact the Union so there would not be any prob-
lem connected with the job. Joachim testified that Vince
Cardinal of the District Council of Carpenters had in-
formed him that he did not think there would be any
problem.
Sometime during the morning on Monday, July 26,
Union Steward Bruce Osborne went to Herring's office
and said he had to see another steward, Jerry Murphy,
and that they had to check into the City Complex job,
apparently to talk to the Carpenters Union business
agent. Herring made a company car available to them
and told them to take the time they needed. They report-
ed back to Herring about 2 p.m. that they had not seen
the business agent but that they had driven by the picket
line and told the pickets that they planned to work there
the next day. According to Herring, they were told by
the pickets, "If you come out here, we'll have 600 pick-
ets here tomorrow."
Later that afternoon, Herring called a meeting of the
linemen crews in Flagstaff, at which time he told them
what work had to be done at the City Complex and that
the city was putting pressure on to have the overhead
lines removed immediately. Herring stated he was aware
of the pickets and that the Union's stewards were going
to talk to the Carpenters' business agent the next day and
try to make peace with him. Several employees ex-
pressed reservations about working on the project be-
cause of union considerations and for fear of harm to
themselves and their families. 5 Herring told them the
city manager had tried to reassure him there had been no
threat of violence at the job. Proposals to avoid working
in the vicinity of the pickets were also suggested by sev-
eral of the linemen and were rejected by Herring as im-
practical. According to Herring, he gave the men the
option of one crew working all week, or all three crews
working together to get the work done more quickly.
The men chose to all work at once.
On Tuesday, July 27, Herring again provided Osborne
and Murphy with a car so that they could talk to the
Carpenters' business agent. Upon their return they re-
ported that the Carpenters' representative said there
would be no problem. In the meantime, Herring had
called the Carpenters' representative and was advised
that he had already talked to the stewards and there
would not be any problem. Murphy also informed Her-
ring that he did not trust the Carpenters' representative
and that there would be a decision making meeting that
night among the union members. Stanfield also attended
the meeting. He testified he told the men that he "was
not there to tell them to cross a picket line and go to
work, or to refuse to cross the picket lines and not work.
That I. was merely there to explain the law to them as
best I understood it. . . . I told the employees that I
thought that if the Company offered the first gate to
them, the primary gate and they refused, that the Com-
pany may replace them,: or terminate them. And I said
there was recourse there. I said if they offer the second
gate to you, the one on the east side of the project and
you refuse it, I said they may terminate you then and I
don't believe we have any recourse." Osborne told the
men that the Carpenters' representative had said there
would be no problem with Respondent's crew working
behind the picket line.
A safety meeting was held with the employees sched-
uled to work on the City Complex at 7 a.m. on July 28.
About 8 a.m., they left for the jobsite. Jack Kelly, the
foreman assigned to direct removal of the overhead lines,
arrived first, parked his truck in an open lot near the
southeast corner of Santa Fe and Kendricks, and pro-
ceeded to prepare for holding a "tailboard," a meeting to
discuss the work and assign the men to certain tasks.
5 Rumors had circulated regarding an underground cable that had been
cut at the site and rock throwing incidents at another project where the
Carpenters Union picketed.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kelly observed approximately 8 to 10 pickets at the west
gate which was located approximately a block north and
a little to the east of his truck. It is undisputed that the
pickets were located almost directly under the north-
south overhead line which was scheduled for removal.
The crew, consisting of Ross Thompson, Ed Wilson,
Clifford Miles, Jerry Nelson, Bill Smith, Gary Smith,
Mark Finfrock, Dale Hudson, Marvin Harper, and Nap
Birner parked their trucks near Kelly's, and gathered
around him. Upon seeing the pickets, several of the men
informed Kelly that they would not cross the picket line.
According to Gary Smith, Kelly responded that there
was not any use in having a "tailboard" then, and told
those that were not going to work to go over on the
street so he could tell who was willing to work. Accord-
ingly the crew, except for Thompson, Wilson, and
Birner, congregated near an old hotel building located
about 75 feet away at the intersection at Santa Fe and
Kendricks. However, when Kelly told Wilson and
Birner what work he wanted done, they joined the other
men at the old hotel building.
In the meantime, Stanfield went to the jobsite about 7
a.m. and talked to the Carpenters Union business repre-
sentative, Burt, who informed him that he did not think
it was possible to have the picket line removed unless
such a decision was made by that union's legal counsel.
Burt also said he had already informed Herring and the
Union's stewards that there would not be any problem
with Respondent's employees crossing the picket line.
One of the pickets told Stanfield of an incident involving
a man who had appeared at the picket line with a gun
and then driven off. Stanfield then drove to a point near
the east gate of the project, parked on Humphreys, and
waited for the men to arrive. When he saw the crews
drive pass on Santa Fe, he walked south around the pe-
rimeter of the project to the old hotel building where the
crewmembers were congregated. Herring also arrived at
the project about this time. Noticing that work had not
begun and that the men had congregated near the old
hotel, he walked over to that area and asked why they
were not working. Murphy responded that there was a
picket line and that he did not want to work "for moral
reasons and fear of my life, too," and that he would
work any place else. According to Smith, Nelson told
Herring that "we're fearful for harm for our families and
us. Also, we're good union men, we don't want to cross
their picket line. Also the job that has to be done we'll
be working right over those men." Herring told the men
they were engaging in a work stoppage, that their refusal
to work was insubordination that could result in disci-
pline, that the City Complex work was the only assign-
ment for the day, and that, if they refused to work, they
should report back to the office for individual meetings.
After a short time Kelly returned to the group and was
told that the men elected to return to the yard.
Upon returning to the yard, each of the linemen was
interviewed by Herring and Spencer in Herring's office.
Stanfield was also present during the interviews except
for those with Thompson and Wilson. Herring asked
each employee if he realized he was involved in a work
stoppage, if he realized the City Complex work was the
job assignment for the day, why he was refusing to
work, and whether he understood he could be disci-
plined for his action. All of the linemen, with the excep-
tion of Thompson and Wilson, declined to work on the
City Complex job. All stated they understood their refus-
als would be considered insubordination and could result
in termination. Reasons for refusing ranged from fear of
bodily harm, fear for safety of family or self, moral con-
victions, and unionism. With the exception of Thompson
and Wilson, each of the linemen was told that he was re-
lieved of his duties for 5 days and that he would prob-
ably be terminated. That afternoon Stanfield made • ar-
rangements with the Carpenters Union for removal of
the pickets in the next 2 days. He immediately informed
both Herring and the linemen of the development. Her-
ring informed the men who reported for work the next
morning that he could not guarantee that there would be
no pickets on the job, that he thought their suspensions
had been lifted since they returned to work, but that he
could not guarantee anything and that they would prob-
ably be severely disciplined. The men completed the
scheduled City Complex work by working both July 29
and 30.
In response to Nelson's indication to Bowden that the
Respondent might file a lawsuit against the Union be-
cause of the refusal to work, the Union, over Assistant
Business Manager Hill's signature, informed Gelinas in
writing dated July 29, that it was notifying Respondent
in accordance with article I of the collective-bargaining
agreement that the Union did not authorize the "stop-
page, strike, slowdown or suspension of work at the
Flagstaff City Complex," and had made every effort to
insure that the job assignments to the job would be
manned and completed. A copy of the letter was posted
in the Flagstaff construction yard on July 30. It is undis-
puted that this was the first occasion the Union has ever
sent such a letter to the Respondent. Contrary to the Re-
spondent's position, I do not view Hill's letter as an ex-
plicit, unmistakable waiver divesting the employees of
their statutory right to refuse to engage in a sympathy
strike which had already taken place.
On August 2, Herring issued the following identical
memo to each of the men that had engaged in the sym-
pathy strike at the City Complex:
On July 28, 1982, you were in violation of Arti-
cle I, Section 2, of the Bargaining Agreement by
participating in a work stoppage.
. Your actions were unacceptable and could have
resulted in termination of employment. However,
because you did return' to work the following day,
on the same job, and perform your work in a safe
efficient manner, you will only be suspended for
three (3) working days. You will be advised as to
when the suspension will take place.
I must advise you that any further violation of
Article I, Section 2, in the future can result in ter-
mination of your employment. .
Staggered 3-day suspension resulted.
ARIZONA PUBLIC SERVICE CO 1765
E. Conclusions
The complaint alleges the Respondent violated Section
8(a)(1) and (3) by issuing 3-day staggered suspensions of
Jerry Murphy, Edwin M. Wilson, Gerald Nelson, Gary
Smith, Clifford Miles, Nap Birner, Mark R. Finfrock,
and Dale Hudson because they engaged in a sympathy
strike and refused to cross the Carpenters Union's picket
line to perform work at the City Complex.
The General Counsel contends the Union has never
waived unit employees' Section 7 i ight to engage in sym-
pathy strikes and honor lawful picket lines of other
unions at sites where unit employees are scheduled to
perform work for Respondent, and that by disciplining
its employees for engaging in a sympathy strike at the
City Complex, Respondent violated the Act as alleged in
the complaint.
The Respondent points out that the collective-bargain-
ing agreement contains a no-strike clause and that the
Union clearly and unmistakenly waived t he bargaining
unit employees' right to participate in sympathy strikes
through years of past practice, bargaining history, overt
statements, and conduct by union representatives and
clear and unequivocal contract language. Accordingly, it
is contended, the disciplinary action taken against the
employees for engaging in a sympathy strike was not un-
lawful
Thus, the principal issue is whether the Union waived
the Section 7 right of the Respondent's employees to
engage in sympathy strikes and honor the picket lines of
other unions at sites where the Respondent's employees
have been scheduled to work.
It is fundamental that the right to strike is guaranteed
by the Act, including the right to engage in a sympathy
strike or honor another union's picket line. Such rights
may, however, be waived by appi opriate provisions in a
collective-bargaining agreement. The Board and the
courts have repeatedly emphasized that such waivers
will not be readily Inferred, and there must be a clear
and unmistakable showing that waiver occurred. Gary-
Hobart Water Corp, 210 NLRB 742, 744 (1974), enfd.
511 F 2d 284 (7th Cir 1975), cert denied 423 U.S. 925
(1975) In the Board's view, bi oad no-strike clauses,
without more, are insufficient to establish waiver of the
right to engage in sympathy strikes. Rather, any waiver
of the right to engage in a sympathy strike may be found
only "in express contractual language or in unequivocal
extrinsic evidence bearing upon ambiguous contractual
language." Operating Engineers Local 18 (Davis-McKee,
Inc.), 238 NLRB 652 (1978). As Is clear from a reading
of article I, section 2, no mention is made of sympathy
strikes or refusals to cross another union's picket line.
Therefore, a waiver, if any, must be implied; "however,
the waiver of statutory rights is not lightly to be in-
ferred" Gary-Hobart Water, supra at 745. I find no basis
for inferring that Respondent's employees' right to
engage in sympathy strikes was relinquished The no-
strike prohibition in article I, section 2, of the contract
clearly is posed as the quid pro quo for recourse to a
grievance procedure Article VII, sections 1 and 3, limit
grievances to those matters concerning a "breach" of or
"application or interpretaton of this agreement." It is ob-
vious that the dispute between the Carpenters and the
City Complex contractors was not capable of being
heard and determined under the Respondent's grievance
machinery. Consequently, by joining the Carpenters'
union strike, Respondent's employees were engaging in
an activity that was not arbitrable and therefore not pro-
scribed by the no-strike clause. Inland Steel Co., 264
NLRB 84 (1982); Southern California Edison Co., 243
NLRB 372 (1979), enfd. as modified 646 F.2d 1352 (9th
Cir. 1981); Gary-Hobart Water, supra.
Additional evidence shows that the parties' intent or
belief as to what the no-strike provision covered was un-
clear. At the outset, it is noted that the record is void of
any evidence regarding any intent, understanding, or dis-
cussion had in 1949 when it first appeared in the con-
tract, regarding the applicability of article I, section 2, to
sympathy strikes or refusals to cross other unions' picket
lines. Over the 30 plus intervening years that article I,
section 2, had been in the contract, there have been nu-
merous instances when employees performed work
behind stranger picket lines, and numerous instances
when they have refused to do so with impunity. In fact,
Farthing, Respondent's customer service representative
in Flagstaff, was doubtful whether the linemen would
work on the City Complex because of the pickets. The
only positive conclusion that may be drawn from past
practice is that the Respondent had maintained a general
policy of deferring service in the face of stranger picket
lines, and of enlisting the services of the Union in obtain-
ing removal of the pickets so that its employees would
perform work at premises where disputes existed be-
tween other unions and employers.
Further evidence indicated there was no clear and un-
mistakable understanding that the no-strike clause cov-
ered sympathy strikes During both the 1980 and 1982
negotiations, Respondent proposed changes in the lan-
guage of article I, section 2, to "clarify" that sympathy
strikes were prohibited On both occasions the Union re-
jected the proposals and they were withdrawn As the
Board stated in Gary-Hobart, supra at 746, "By such con-
duct the Respondent demonstrated its uncertainty as to
whether it had obtained a waiver of the right to engage
in a sympathy strike in the no-strike clause it sought to
change. The Union, on the other hand, by rejecting the
proposed changes demonstrated its determination not to
waive the right to honor another union's picket line." In
the posthearing brief, Respondent states: "In the 1982 ne-
gotiations, it is clear that Gelinas proposed to modify Ar-
ticle I, Section 2 to include sympathy strikes, carefully
explained what APS meant by the term sympathy strike,
and he and other APS representatives fully answered all
questions from Union representatives relating to that
issue." It is argued that statements made by Bowden led
the Respondent's negotiators to believe that the Union
agreed that the language of article I, section 2, was
broad enough to cover sympathy strikes, and it was on
that basis that the proposed language change was with-
drawn. The Union's negotiators denied Bowden made
such a commitment. The evidence does not convince me
that Bowden conceded that the language already encom-
passed sympathy strikes
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other factors convince me there has never been an un-
derstanding or agreement between the Respondent and
the Union that the language of article I, section 2, en-
compassed sympathy strikes. Article XI of the contract
provides that "all previous agreements and understand-
ings . . . and all negotiations, whether oral or written
. . . are superseded by this agreement." Obviously the
language of article I, section 2, does not contain express
language waiving the right to engage in sympathy
strikes Nor, for that matter, do any of the letters of
mutual agreement appended to the current collective-
bargaining agreement, including the March 31 letter
from Gelinas to Bowden confirming understandings ar-
rived at during 1982 negotiations. While there was testi-
mony that other oral understandings were made, I am
convinced that an agreement on sympathy strikes—
which Respondent admits was an important item—would
have been recorded in the March 31 letter of understand-
ing if in fact reached.
In sum, I conclude that Respondent's attempt to
broaden the no-strike clause to cover "sympathy strikes"
was not successful. The collective-bargaining agreement
does not prohibit unit employees from honoring picket
lines of other unions, and the evidence fails to establish
that the parties had a clear understanding when they exe-
cuted the last contract that it barred sympathy strikes.
The contract is a complex document that obviously was
not written by amateurs. If the parties had intended that
sympathy strikes should be included within the prohibi-
tion of article I, section 2, they could have said so in
clear unequivocal terms. Instead, the Respondent has
sought to include it by amending article I, section 2,
during the last two negotiation terms. Accordingly, I
find that Murphy, Wilson, Nelson, Smith, Miles, Birner,
Finfrock, and Hudson were engaged in protected con-
certed activity when they refused to work on the Flag-
staff City Complex.
Respondent also argues that disciplining the eight men
for refusing to carry out their job assignments on July 28
was justified because supported by a legitimate and sub-
stantial business necessity, in that: (1) erection of the
steel columns presented grave danger of contact with the
energized overhead lines scheduled for removal; (2) Re-
spondent had already postponed the work at the site be-
cause of the pickets and it had been ordered by the city
to complete the work immediately, and (3) it had ob-
tained assurances from the Carpenters Union that its em-
ployees would not be in danger of violence. Respondent
contends that since under Redwing Carriers, 137 NLRB
1545 (1962), and Newberry Energy Corp., 227 NLRB 436
(1976), it would have been justified in discharging the
eight employees, "a three day suspension was certainly
lawful." It contends, "To read Redwing and its progeny
to hold that permanent replacement is the Employer's
only alternative to complete business disruption and in-
credibly high liability exposure is patently unfair and ele-
vates form over substance."
The Board's position is set forth in Gary-Hobart Water,
supra at 746 thusly:
The Board has held in cases involving sympathy
strikes, although primarily when the activity was
engaged in at the premises of another employer,
that although the refusal to cross the picket line of
another union is protected this right must be bal-
anced against the business interest of the employer,
and that it is only when the employer's business in-
terest to replace employees is such as clearly to out-
weigh the employees' protected right that an inva-
sion of the statutory right is justified (Redwing Car-
riers, Inc., 137 NLRB 1545; Overnite Transportation
Co., 154 NLRB 1271). The termination of employ-
ees is justified where the employer "acted only to
preserve efficient operation of his business, and ter-
minated the . . employees only so it could imme-
diately or within a short period thereafter replace
them. . ." (Redwing Carriers, supra, 1547). [Em-
phasis added.]
In Southern California Edison, supra at 372, the Board
went on to state that "an employer may not merely
equate the employee's refusal to cross the picket line
with an act of insubordination." In the instant case it is
clear that the suspensions were not to preserve Respond-
ent's efficient operations, but were in fact punitive. Upon
their return to the yard from the City Complex, Herring
asked each of the sympathy strikers if he realized he was
taking part in a work stoppage and told them "if they
continued to refuse to work this job, it would be consid-
ered insubordination and could result in their termina-
tion." Moreover, as the work was completed in the fol-
lowing 2 days by the alleged discriminatees—prior to re-
placement or issuance of the disciplinary letters—the Re-
spondent could no longer claim economic necessity as a
basis for the discipline. It is clear that the discipline was
imposed for engaging in a sympathy strike on July 28.
In sum, I find that the eight linemen were not disci-
plined because of economic necessity but for engaging in
a sympathy strike, a protected concerted activity. None
of the men was either replaced or terminated, and the
work was in fact performed by them prior to the issu-
ance of the disciplinary suspensions. Accordingly, by is-
suing staggered 3-day suspensions to the eight employ-
ees, Respondent violated Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union and Arizona State District Council of
Carpenters, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO are each labor organizations
within the meaning of Section 2(5) of the Act.
3. By issuing 3-day staggered suspensions to Jerry
Murphy, Edwin M. Wilson, Gerald Nelson, Gary Smith,
Clifford Miles, Nap Birner, Mark R. Finfrock, and Dale
Hudson for engaging in a sympathy strike, Respondent
has engaged in unfair labor practices in violation of Sec-
tion 8(a)(1) and (3) of the Act.
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ARIZONA PUBLIC SERVICE CO 1767
THE REMEDY
Having found the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully suspended
Jerry Murphy, Edwin M. Wilson, Gerald Nelson, Gary
Smith, Clifford Miles, Nap Birner, Mark R. Finfrock,
and Dale Hudson in violation of Section 8(a)(1) and (3)
of the Act, it is recommended that Respondent expunge
from its records any reference to such suspensions be-
cause they refused to cross a picket line establised at the
Flagstaff City Complex premises by the Carpenters
Union, and notify each of them in writing that this has
been done and that evidence of this unlawful discharge
will not be used as a basis for future personnel actions
against him. It is further recommended that each of the
above discnminatees be made whole for any loss of pay
or other employment benefits he may have suffered as a
result of said suspensions. Backpay and interest thereon
shall be computed in the manner prescribed by F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977).6
[Recommended Order omitted from publication.]
6 See generally Isis Plumbing Co, 138 NLRB 716 (1962)