Arizona Public Service Co.

National Labor Relations Board - Board Decisions

Feb 28, 1989

292 N.L.R.B. 1311 (N.L.R.B. 1989)

ARIZONA PUBLIC SERVICE CO
Arizona Public Service Company and International
Brotherhood of Electrical Worker-., Local
Union No 387, AFL-CIO Case 28-CA-7074
February 28, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 5, 1985, the National Labor Rela
tions Board issued a Decision and Order' in this
proceeding, finding that the Respondent did not
violate Section 8(a)(3) and (1) of the National
Labor Relations Act by suspending eight employ-
ees because they engaged in a sympathy strike The
Board concluded that their refusal to cross a
stranger picket line contravened the no strike pro-
vision of the parties' collective-bargaining agree
ment, which prohibited unauthorized work stop-
pages and permitted the Respondent to discipline
employees who took part in them
The Union filed a petition for review with the
United States Court of Appeals for the Ninth Cir
cuit On May 6, 1986, the court remanded the case
to the Board for consideration of evidence bearing
on whether the parties intended to ban sympathy
strikes through the contract's broad no-strike pro-
vision 2
On June 11, 1986, the Board advised the parties
that it accepted the remand and that they might
submit statements of position concerning the re-
manded issue Thereafter, all parties filed state-
ments of position
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has reconsidered its original decision,
the administrative law judge's decision, and the
record in light of the court's remand, which the
Board accepts as the law of the case, and the state
ments of position, and has decided to reverse the
Board's prior decision 3
In the original decision, the Board based its anal
ysis on the following facts After eight of Respond-
ent's crewmembers refused to perform work on
July 28, 1982,4 because of a stranger picket line at
' 273 NLRB 1757
2 Electrical Workers IBEW Local 387 v NLRB 788 F 2d 1412 (1986)
3In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accured prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
4 All dates are in 1982 unless otherwise indicated
1311
the worksite, the Respondent by letter dated July
29 threatened the Union with a lawsuit By letter
dated the same day the Union replied that it had
not authorized the employees' refusal to work On
August 2 the Respondent suspended the eight em-
ployees for 3 days, informing them that their work
stoppage violated article I, section 2, of the con
tract, which reads as follows
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 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 (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
Because the parties' contract permitted the Re-
spondent to discipline employees who participated
in "unauthorized" strikes and the Union identified
the strike as unauthorized, the Board concluded
that the Respondent was free to discipline sympa
thy strikers for participating in conduct the con
tract expressly prohibited In a footnote at the end
of its decision the Board cited Indianapolis Power
292 NLRB No 144
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Co, 273 NLRB 1715 (1985) (Indianapolis Power I),5
which held that a broad no strike clause prohibits
all strikes, including sympathy strikes, unless the
contract or extrinsic evidence shows that the par-
ties intended otherwise
The Ninth Circuit remanded the case for further
consideration under Indianapolis Power because the
Board failed to consider the parties' actual intent
concerning sympathy strikes Although the Ninth
Circuit did not specifically address the Board's reli-
ance on interferences drawn from the Union's ex-
press statement that it did not authorize the sympa
thy strike, it is apparent from the opinion that the
court implicitly rejected the Board's reasoning, and
we are therefore precluded from relying on that ra
tionale now The court instructed the Board to in-
terpret the no-strike provision in light of all the
evidence, including the contract as a whole, the
law relating to no-strike provisions when the par-
ties last ratified the contract, bargaining history,
and the parties' past practice under the contract
Because the court concluded that the Indianapolis
Power rule was misapplied in the present case, it
did not reach the issue of the validity of the rule
itself
After the Ninth Circuit remanded the instant
case, the District of Columbia Circuit remanded In-
dianapolis Power I for further consideration of cer
tarn evidence the Board failed to address 6 On De
cember 9, 1988, we issued Indianapolis Power II in
which we concluded that "the Indianapolis Power
rule is sound, and we continue to adhere to it ' 7
However, we cautioned that in applying the Indi-
anapolis Power rule careful consideration [must] be
accorded extrinsic evidence bearing on the parties
intent, such as bargaining history and past practice
under the no strike clause '8 We restated the rule
in the following terms 9
To summarize, we continue to believe that a
broad no-strike clause should properly be read
to encompass sympathy strikes unless the con-
tract as a whole or extrinsic evidence demon-
strates that the parties intended otherwise In
deciding the issue of whether sympathy strikes
fall within a no strike provision's scope, the
parties' actual intent is to be given controlling
weight and extrinsic evidence should be con-
sidered as an integral part of the analysis
5 Remanded sub nom Electrical Workers IBEW Local 1395 v NLRB
797 F 2d 1027 (D C Cir 1986) decision on remand 291 NLRB No 145
(Dec 9 1988) (Indianapolis Power II)
6 Electrical Workers IBEW Local 1395 v NLRB supra 797 F 2d 1027
7 291 NLRB 1039 1040
8 Id at 1040-1041
9 Id at 1041
We now address the terms of the Ninth Circuit's
remand in light of our decision in Indianapolis
Power II The court described, at some length, the
judge s decision, which the Board reversed The
court particularly noted that the judge followed
the law existing at the time the relevant contract
was ratified, that the judge credited testimony indi-
cating the Company believed the contract's Ian
guage excluded sympathy strikes, and that the
judge's examination of past practice showed the
Company had not disciplined employees who hon
ored stranger picket lines
Initially, we find that the language of the parties
no-strike clause, as set forth earlier, is broad
enough, standing alone, to encompass sympathy
strikes We proceed to examine the extrinsic evi-
dence, as the court instructed us to do and as Indi-
anapolis Power II requires
The no strike provision has remained unchanged
in the contract since it first appeared in 1949 The
administrative law judge found that in negotiations
leading to the 1980 and 1982 contracts, the Re-
spondent proposed changes in the language of the
no-strike clause to clarify that sympathy strikes
were prohibited The Union rejected both propos
als, and the Respondent withdrew them Although
the Respondent contended that it withdrew the
offers only because the Union conceded the no-
strike clause covered sympathy strikes, the judge
credited union witnesses who testified that the
withdrawal of the second company proposal was
not conditioned on any concession by the Union
that the existing no strike language included sym-
pathy strikes We find that the bargaining history
provides persuasive evidence that company offi-
cials recognized that there was no agreement that
sympathy strikes were covered by the existing no
strike language See Electrical Workers IBEW 1395
v NLRB, 797 F 2d 1027, 1036 fn 10 (D C Cir
1986), W-I Canteen Service v NLRB, 606 F 2d 738,
747 (7th Cir 1979)
As to past practice, the judge found that the Re
spondent's general policy was to tolerate sympathy
strikes, deferring service at projects affected by
stranger pickets until the third party picket lines
were removed The judge detailed numerous in-
stances over the life of the no-strike clause during
which employees honored stranger picket lines
with impunity He found that the Respondent
levied discipline only once, in the instance at issue
in this case Again, in agreement with the judge
and based on his findings, we conclude that the Re
spondent's repeated acquiescence to sympathy
strikes indicates that sympathy strikes were not
contractually proscribed
ARIZONA PUBLIC SERVICE CO 1313
The Ninth Circuit also directed us to consider as
relevant to the interpretation of the no-strike clause
the Board's law when the contract was entered
into As the Ninth Circuit stated, at the time the
parties last ratified the contract, in 1982, under
Board law the parties' broad no-strike clause was
not sufficient to establish a waiver of the right to
participate in sympathy strikes Thus, the court's
opinion compels a finding in this case that the con-
tract language further demonstrates that the parties
did not intend the clause to cover sympathy strikes
In sum, we find that the parties did not intend
the contract's no strike clause to encompass sympa-
thy strikes We therefore affirm the judge's finding
that the Respondent violated Section 8(a)(3) and
(1) of the Act by suspending eight employees for
engaging in a sympathy strike and adopt his recom-
mended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as restated and set forth in full below and
orders that the Respondent, Arizona Public Service
Company, Flagstaff, Arizona, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Suspending or otherwise discriminating
against employees because they engage in their
statutory right to refuse to cross picket lines estab-
lished by labor organizations other than their col-
lective-bargaining representative
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Remove from its records any reference to the
3 day staggered suspensions of Jerry Murphy,
Edwin M Wilson, Gerald Nelson, Gary Smith,
Clifford Miles, Nap Birner, Mark R Finfrock, and
Dale Hudson, which were effective from about
August 4, 1982, to about August 17, 1982, and
notify each of them in writing that this has been
done and that evidence of this unlawful discipline
will not be used as a basis for future personnel
action against him
(b) Make Jerry Murphy, Edwin M Wilson,
Gerald Nelson, Gary Smith, Clifford Miles, Nap
Birner, Mark R Finfrock, and Dale Hudson whole
for any loss of his pay each of them may have suf
fered by reason of its discrimination against him, in
the manner set forth in the remedy section of the
judge's decision, as modified by footnote 3, supra
(c) Post at its various facilities to which employ
ees in the bargaining unit represented by the Union
are assigned, copies of the attached notice marked
"Appendix ' 10 Copies of the notice, on forms pro
vided by the Regional Director for Region 28,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom
arily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al
tered, defaced, or covered by any other material
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
MEMBER JOHANSEN, concurring
The court's remand in this case and its remand in
a later decision' have raised questions about the
validity of the Board's application of the Indianapo
ks Power2 standard I have stated my disagreement
with the continued application of that standard in
my concurring opinion in Indianpolts Power3 and
shall not repeat my objections here
Based on an analysis of all the relevant evidence
of the parties' intent, including the terms of the
contract, the bargaining history, the parties' appli-
cation of the contract, and the state of the law re
lating to it when last ratified,4 I conclude, in agree
ment with my colleagues, that there is no showing
of mutual intent to include sympathy strikes under
the contractual no-strike provisions and thus no
showing that the Union clearly and unmistakably
waived the right to engage in sympathy strikes 5
10 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
1 Oil Workers Local 1 547 v NLRB 842 F 2d 1141 (9th Cir 1988)
2 Arizona Public Service Co 273 NLRB 1757 (1985) remanded sub
nom Electrical Workers IBEW Local 387 v NLRB 788 F 2d 1412 (1986)
reaffd Indianapolis Power Co 291 NLRB 1039 (1988)
a Id at 1042
4 The majority considers what support Board law at the time the con
tract was last ratified lends to a finding of mutual intent to be
compel[led] by the court s opinion In contrast I consider the state of
the law as formulated by the agency entrusted with federal adjudication
of unfair labor practices to be integral to any analysis for determining the
merits of an unfair labor practice complaint especially one in which the
parties intent is to be given controlling weight as reported by the Indi
anapolis Power majority Indianapolis Power II supra at 1041
5 Metropolitan Edison Co Y NLRB 460 U S 693 708 (1983)
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT suspend or otherwise discriminate
against employees because they engage in their
statutory right to refuse to cross picket lines estab-
lished by unions other than their collective bargain
ing representative
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL remove from our records any refer
ence to the 3-day staggered suspensions effective
from about August 4, 1982 , to about August 17,
1982, of Jerry Murphy , Edwin M Wilson , Gerald
Nelson , Gary Smith , Clifford Miles , Nap Birner,
Mark R Finfrock , and Dale Hudson WE WILL
notify each of them in writing that this has been
done and that evidence of this unlawful discipline
will not be used as a basis for future personnel ac-
tions against him
WE WILL make Jerry Murphy , Edwin M
Wilson, Gerald Nelson , Gary Smith, Clifford
Miles , Nap Birner , Mark R Finfrock , and Dale
Hudson whole for any loss of earnings each may
have suffered by giving each of them backpay with
interest for the days each was unlawfully suspend-
ed
ARIZONA PUBLIC SERVICE COMPANY