Butterworth Mortuary

National Labor Relations Board - Board Decisions

May 31, 1984

270 N.L.R.B. 1014 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butterworth-Manning-Ashmore Mortuary and Pub-
lic, Professional and Office-Clerical Employees
and Drivers Local Union No. 763, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 19-CA-13765
31 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 5 November 1982 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief in reply
to the Respondent's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to re-
instate sympathy striker Autumn Fisher on her un-
conditional offer to return to work 15 July 1981.1
We find merit in the Respondent's exceptions, and
we shall dismiss the complaint in its entirety.
The Respondent provides mortuary, funeral, and
cremation services, and for over 20 years the
Union has represented a unit of the Respondent's
office clericals and a unit of the Respondent's em-
balmers. 2 During that time the Union negotiated
separate collective-bargaining agreements for the
two units, and the applicable agreements were ef-
fective from I April 1978 until 31 March 1981. As
stipulated by the parties, article VIII of the office
clerical contract has remained unchanged for over
20 years and provides as follows:
PICKET LINES
It shall not be a violation of this Agreement
and it shall not be cause for discharge or disci-
plinary action in the event an employee refuses
to enter upon any property involved in a labor
dispute or refuses to go through or work
behind any picket line at the place of business
of any employer party to this Agreement.
The judge found that historically the parties
completed negotiations on the embalmers contract
before commencing negotiations on the office cleri-
cal contract. On 15 January the Union notified the
Respondent of its desire to begin negotiations. The
I Unless otherwise specified, all dates herein refer to 1981.
2 The Respondent employed two embalmers, four office clericals, and
four unrepresented salaried employees.
270 NLRB No. 148
parties were unable to agree on the embalmers con-
tract by the 1 April expiration date, and the em-
balmers went on strike. On 15 April they estab-
lished a picket line at the Respondent's facility.3
The four office clerical employees, including
bookkeeper Autumn Fisher, refused to cross the
picket line until the strike ended 14 July. During
the strike the Respondent hired several temporary
bookkeepers, but ultimately determined that it
needed to hire a permanent bookkeeper in order to
maintain efficient business operations. On 4 June
the Respondent asked Fisher to return to work and
told her that if she did not do so the Respondent
would hire a permanent replacement. When Fisher
declined to return, the Respondent hired an experi-
enced bookkeeper as a permanent replacement. The
judge found that the replacement employee would
not have accepted employment on a temporary
basis.
The strike ended 14 July when the Respondent
and the Union reached agreement on a new em-
balmers contract. On 15 July Fisher offered to
return to her position as a bookkeeper, but the Re-
spondent informed her that she had been perma-
nently replaced. The Respondent had not rehired
Fisher as of the day of the hearing, and its position
is that Fisher retains preferential hiring rights.
The Board has long recognized that an employee
who participates in a sympathy strike engages in
conduct which is protected by the Act.4 Sympathy
strikers are "akin to economic strikers" and may
not be discharged because of their protected activi-
ty, but an employer is entitled to replace a sympa-
thy striker permanently in order to continue the ef-
ficient operation of its business. 5 The judge found
that Fisher assumed the status of a sympathy strik-
er by refusing to cross the embalmers' picket line,
and he recognized that ordinarily the Respondent
could have hired another employee as a permanent
replacement. However, finding that he was bound
by the Board's decision in Torrington Construction
Co., supra, the judge found that article VIII of the
office clerical contract operated as a waiver of the
Respondent's right permanently to replace sympa-
thy strikers. He therefore concluded that the Re-
spondent's refusal to reinstate Fisher on her uncon-
ditional request violated Section 8(a)(3) and (1).
S The judge found that the parties were bound by their stipulation that
the embalmers contract expired 31 March. He therefore found that the
contract's no-strike clause was no longer in effect, and that the embalm-
ers' strike was a lawful primary economic strike. The judge further found
that during the strike the Respondent was obligated to continue to apply
art. VIII of the office clerical contract, even assuming that the contract
expired 31 March.
orrington Construction Co., 235 NLRB 1540, 1541 (1978). Redwing
Carriers, 137 NLRB 1545 (1962).
a Torrington Construction Co., supra at 1541.
1014
BUTTERWORTH MORTUARY
Contrary to the judge, we find that article VIII
does not constitute such a waiver.6
In Torrington, supra at 1540, the employer had a
contract to supply concrete to a construction site,
and it discharged two employees who refused to
cross a picket line to deliver the concrete. The
Board found that the employer acted unlawfully
because it discharged the employees and did not
simply replace them. The Board further found that
the employer had waived its right to replace the
sympathy strikers by agreeing to the following
contractual provision, which is virtually identical,
with respect to the issue before us here, to article
VIII of the clerical agreement:
It shall not be a violation of this Agreement,
and it shall not be cause for discharge or disci-
plinary action in the event an employee refuses
to enter upon any property involved in a pri-
mary labor dispute, or refuses to work behind
any primary picket line, including the primary
picket line of Unions [sic] party to this Agree-
ment, and including primary picket lines at the
Employer's place of business.
We note at the outset that Torrington is factually
distinguishable, since the employer in that case dis-
charged the sympathy strikers while the Respond-
ent merely hired a permanent replacement for
Fisher. In any event, we have reconsidered our de-
cision in Torrington and we have decided to over-
rule it to the extent that it holds that the above
contractual language constitutes a waiver of an em-
ployer's right permanently to replace sympathy
strikers. 7
The Supreme Court recently affirmed the princi-
ple that a waiver of a statutory right must be clear
and unmistakable.8 The specific circumstances of
each case will determine whether a statutory right
has been waived. 9 In both this case and in Torring-
ton we have carefully considered, inter alia, wheth-
er a finding of waiver is warranted from express
contractual language or from extrinsic evidence
bearing on any contractual language which may be
ambiguous. We conclude that a finding of waiver is
6 Because we are overruling Torrington Construction Co., supra, and be-
cause we are finding that the language contained in art. VIII of the office
clericals contract did not operate as a waiver of the Respondent's right to
permanently replace sympathy strikers, we find that it is unnecessary to
consider whether the clerical contract had expired and, if that contract
had expired, whether the Respondent was obligated to continue to
adhere to the provision of art. VIII.
I We leave undisturbed the remaining principles enunciated in Torring-
ton, as well as the Board's finding that the sympathy strikers were unlaw-
fully discharged.
a See Metropolitan Edison Ca v. NLRB, 460 U.S. 693 (1983). Member
Dennis finds it unnecessary to consider whether an employer's right to
replace strikers is a "statutory" right. She finds that it is a judicially rec-
ognized right that is not waived here by the language in an. VIII.
g Ibid.
not warranted. We note that article VIII and the
contractual provision in Torrington expressly pro-
hibit only the discharge and discipline of sympathy
strikers, and that neither provision specifically
refers to "permanent replacement." The provisions
therefore contain no ambiguity and do not specifi-
cally waive an employer's right to hire permanent
replacements. Even assuming that the provisions
contain some ambiguity, there was no extrinsic evi-
dence in Torrington, and there is none here, to shed
light on what the parties intended when the provi-
sions were agreed upon.'° Consequently, there is
no reason to infer that the phrase "discharge or dis-
ciplinary action," as it appears in the Torrington
provision and in article VIII, means anything other
than what it expressly states. On the contrary, we
view the language in both contractual provisions as
merely an affirmation of the statutory right of em-
ployees to engage in sympathy strikes.
In view of the foregoing, we find that the Re-
spondent did not waive its right permanently to re-
place sympathy strikers, and we find that the Re-
spondent did not act unlawfully in refusing to rein-
state Fisher on her unconditional offer to return to
work. Accordingly, we shall dismiss the complaint
in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not contractually waive
its right permanently to replace sympathy strikers,
and it did not violate Section 8(a)(3) and (1) of the
Act by refusing to reinstate Autumn Fisher on her
unconditional offer to return to work.
ORDER
The complaint is dismissed.
'0 As the judge noted, the parties stipulated that they were unaware of
the application of this language in the past to any "analogous situation to
that raised in the complaint."
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge.
This case was tried before me in Seattle, Washington, on
September 10, 1982, pursuant to a complaint and notice
of hearing issued by the Acting Regional Director for
Region 19 of the National Labor Relations Board on
April 29, 1982, based on a charge filed by Public, Profes-
sional and Office-Clerical Employees and Drivers Local
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union No. 763, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Charging Party or the Union)
against Butterworth-Manning-Ashmore Mortuary (Re-
spondent) on July 27, 1981.
The complaint as amended at the hearing alleges that
Respondent has failed and refused to reinstate employee
Autumn Fisher on her unconditional offer to return to
her former position of employment on July 15, 1981, in
violation of Section 8(aX1) and (3) of the National Labor
Relations Act (the Act). Respondent admits it has failed
and refused to rehire employee Fisher but asserts it has
done so because she had been permanently replaced
before her offer to return to work and no vacancy has
occurred since her replacement. Respondent therefore
contends, inter alia, that its conduct has not violated the
Act.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence and stipu-
lations, to examine and cross-examine witnesses, to argue
orally, and to file posthearing briefs. On the entire
record herein, including briefs of all parties, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Washington state corporation with a
business location in Seattle, Washington, where it is en-
gaged in the business of providing mortuary, funeral, and
cremation services. Respondent, during the past 12
months, a representative period, in the course of its busi-
ness operations, had gross sales of goods and services of
a value in excess of $500,000. During that same period it
purchased and caused to be transferred and delivered to
its facilities within the State of Washington goods and
materials of a value in excess of $45,000 directly from
sources outside the State or from suppliers within the
State who in turn obtained such goods and materials di-
rectly from sources outside the State.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Respondent has recognized and bargained with the
Union for over 20 years as the collective-bargaining rep-
resentative of employees in two units: an office clerical
unit and an embalmers unit. Over the years a series of
separate contracts for each unit have been negotiated.
Each office clerical agreement, again for over 20 years,
has contained the following language, including the
1978-1981 agreement where it appears as article VIII:
PICKET LINES
It shall not be a violation of this Agreement and
it shall not be cause for discharge or disciplinary
action in the event an employee refuses to enter
upon any property involved in a labor dispute or re-
fuses to go through or work behind any picket line
at the place or places of business of any employer
party to this Agreement.
The parties stipulated that they were unaware of the ap-
plication of this language in the past to any "analogous
situation to that raised in the complaint."
The 1978-1981 office clerical agreement contained the
following language as article X:
Duration
This agreement shall be effective April 1, 1978 and
shall remain in effect until March 31, 1981 and
thereafter until terminated by either party serving
written notice on the other party at least sixty (60)
days in advance of the intended termination date.
This Agreement may be amended at any time by
mutual desire of the parties executed in writing.
The 1978-1981 office clerical agreement contained nei-
ther a no-strike clause nor a grievance and arbitration
clause.
The 1978-1981 embalmers agreement contained the
following language as article XXIV:
Term of Agreement
24.1-This Agreement shall become effective the
Ist day of April, 1978 and shall continue in full
force and effect until and including March 31, 1981.
24.2-This Agreement shall thereafter continue in
full force and effect from year to year thereafter
unless either party notifies the other in writing not
less than sixty (60) days prior to the date of expira-
tion of a desire to amend or cancel the Agreement.
B. Events in 1981
On January 15, 1981, the Union sent Respondent es-
sentially identical letters separately addressing the office
clerical and embalmers contracts. Each letter contained
the following language:
In accordance with the current collective-bar-
gaining agreement . . . (which expires March 31,
1981) and the requirements of the Labor Manage-
ment Relations Act, as amended, you are hereby
notified that we wish to amend the present Agree-
ment.
Copies of this letter are being forwarded to the
United States Federal Mediation and Conciliation
Service and [a state agency] so that they may be ad-
vised of our intention to amend the existing Agree-
ment.
We are ready to meet with you at our earliest
convenience for the purpose of negotiating an
amended Agreement. Please advise us of the earliest
date that a meeting can be held.
1016
BUTTERWORTH MORTUARY
Consistent with the letters, the Union simultaneously
filed appropriate forms with the Federal Mediation and
Conciliation Service with respect to each contract.
Historically, the parties have negotiated the embalm-
ers' contract first and then the office clerical agreement.
When the agreement covering the embalmers expired on
April 1, 1981, the Union took strike action in support of
its embalmers' contract demands against certain employ-
ers in the metropolitan Seattle funeral home industry and
on April 15, 1981, extended its strike action to Respond-
ent by establishing an embalmers' picket line at the facili-
ty.
At the commencement of the strike, Respondent em-
ployed 10 employees: 2 embalmers in the embalmers
unit, 4 office clerical employees in the office clerical
unit, and 4 salaried employees in neither unit. On April
15, 1981, the two embalmers struck. The four office cler-
ical employees, i.e., a secretary, a receptionist, an inter-
preter, and a bookkeeper, Autumn Fisher, refused to
cross the embalmers' picket line throughout the strike.'
The strike extended until about July 14, 1981.
During the strike Respondent hired several temporary
office clerical employees including three temporary
bookkeepers. Each temporary bookkeeper voluntarily
left his or her employment after a short period of time
and Respondent ultimately determined it was necessary
to hire a permanent bookkeeper to efficiently run its
business. About June 4, 1981, an admitted agent of Re-
spondent contacted Fisher by telephone and (1) asked
her to return to work in her bookkeeper capacity and (2)
told her if she did not it would be necessary to hire a
permanent replacement to fill her position. Fisher de-
clined to return to work behind the embalmers' picket
line. On June 11, 1981, Respondent hired an experienced
bookkeeper as a permanent replacement for Fisher. The
replacement employee would not have accepted employ-
ment on a temporary basis.
On July 14, 1981, the Union and certain of the metro-
politan Seattle funeral home industry employers, includ-
ing Respondent, reached agreement on the terms of a
new embalmers' contract. The agreement was signed the
following day and the strike ended. About July 15, 1981,
Autumn Fisher contacted Respondent and offered to
return to her position as a bookkeeper. Respondent's ad-
mitted agent informed her that she had been permanently
replaced. Respondent had not reemployed Fisher as of
the day of the hearing. Respondent's position is that
Fisher retains preferential hiring rights but that as of the
time of its posthearing brief no bookkeeper position had
become available.
C. Positions of the Parties
The General Counsel asserts his theory of a violation
on brief in spare terms. The General Counsel contends
that during the strike Fisher was a sympathy striker and
concedes that a sympathy striker may be permanently re-
placed in normal circumstances. The General Counsel
I The assertions in the Union's brief that four out of approximately five
employees in the office clerical unit worked behind the picket line and
that only one employee honored the line is rejected as inconsistent with
the stipulation of fact in which union counsel joined.
argues however that Respondent contractually waived
any right to replace Fisher by adopting article VIII of
the 1978-1981 office clerical agreement.
In addition to a procedural complaint concerning the
delay of the General Counsel in issuing the complaint
herein, Respondent contests virtually each proposition
necessary to the General Counsel's theory of the case.
First, Respondent disputes the notion that Fisher was a
sympathy striker rather than an economic striker.
Second, Respondent contends the 1978-1981 office cleri-
cal contract is irrelevant to the instant case because it
was terminated before the strike by action of the Union.
The Union contests this claim of Respondent arguing
rather that the office clerical contract was in force and
effect at relevant times. Third, Respondent argues, even
if the contract was in effect at relevant times, article
VIII did not increase Fisher's rights under the Act or
reduce Respondent's right to permanently replace her
because: (1) she was not discharged or disciplined and
thus did not fall under the specific terms of the article,
and (2) article VIII does not as a matter of law reduce
Respondent's rights under the Act to permanently re-
place a sympathy striker for business reasons.
D. Analysis and Conclusions
1. Respondent's claim that the General Counsel is
guilty of laches
Respondent's ninth affirmative defense in its answer to
the complaint alleges that the General Counsel is guilty
of laches by issuing the complaint more than 9 months
after the filing of the charge in the case. The charge was
filed on July 27, 1981, the complaint issued on April 29,
1982-over 9 months after the charge was filed. The
General Counsel offered no evidence or argument on the
issue of delay in the complaint's issuance. The parties do
not address the issue on brief.
In Ventura Coastal Corp., 264 NLRB 291 (1982), the
Board approved the decision of an administrative law
judge who was presented with a defense similar to that
asserted here. There the delay between charge and com-
plaint exceeded 18 months, a period the judge found
"truly extraordinary." Despite this delay, the judge de-
clined to dismiss the complaint or otherwise adversely
affect the General Counsel's case on grounds of delay or
laches noting there was no affirmative showing by re-
spondent that it had been substantially prejudiced by the
delay, citing NLRB v. J. H. Rutter-Rex Co., 396 U.S. 258
(1969). I view that case as controlling. Accordingly, I
shall not dismiss the complaint or otherwise limit the
General Counsel's case because of the unexplained delay
in issuing the complaint.
2. Fisher's status as an economic or sympathetic
striker
An employee who withholds her services from her
employer in order to obtain better terms and conditions
of employment for herself and others in her bargaining
unit is an economic striker under Board law. An employ-
ee who withholds her services from her employer in
whole or in part, not in her own immediate economic in-
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terest but rather out of sympathy with or in order to
assist or give mutual aid and support to another group of
employees who are engaged in an economic strike, is a
sympathy striker under Board law. This distinction is
maintained even if a single employer employs both one
group of employees engaged in an economic strike and a
second group engaged in a sympathy strike in support of
the first group. So, too, the distinction is maintained even
if the sympathy strikers, by giving their aid and support
to the economic strikers, may directly or indirectly be
furthering their own economic interests.2
There is no dispute that the April 15, 1981 strike
against Respondent was undertaken by the embalmers in
furtherance of their contract demands. There is no argu-
ment or evidence that bargaining had commenced re-
garding the office clerical contract. Rather, to the con-
trary, there was a tradition, apparently not varied in
1981, that office clerical unit contract bargaining did not
commence until after the embalmer contract had been
negotiated. Given these circumstances, I find that the
office clerical unit employees, including Fisher, who
honored the embalmers' picket line were acting as sym-
pathy strikers within the meaning of both the Act and
the office clerical contract's picket line language in arti-
cle VIII. They were not economic strikers.
Respondent argues that, because the office clerical
agreements have, at least since 1972, reflected the identi-
cal wage percentage increases, pension contributions, va-
cation benefits, and holidays of the earlier negotiated em-
balmer agreements, the office clerical employees have a
historical and immediate stake in the outcome of the em-
balmers' strike and therefore should be considered in the
"shoes" of an economic rather than a sympathy striker.
As noted supra, it is not the existence of the possibility
or likelihood of eventual personal benefit which deter-
mines whether a striker is engaged in sympathetic or
economic action. Rather, the strikers' status turns entire-
ly on the strikers' inclusion in the bargaining unit on
strike. The dispute here was solely between the embalm-
ers and the employers, including Respondent. Irrespec-
tive of their arguable common cause and the likelihood
of gains resulting from a successful strike, Respondent's
office clerical employees, including Fisher, were no more
than sympathy strikers during the 1981 embalmers' strike
who apparently did no more than honor the embalmers'
picket line at Respondent's facility.
3. The application of the 1978-1981 office clerical
contract to the events in issue
Respondent argues virgorously that the Union's letters
of January 15, 1981, acted to terminate both the embalm-
er and the office clerical contracts on March 31, 1981.
2 Thus, for example, a group of craftsmen employed by one employer
may honor a picket line of their own union against another employer put
up in furtherance of a strike in support of increases in wages of the other
employer's employees. Even if the sympathy strikers who honor the
picket line against the other employer are likely or indeed certain to
obtain ultimately the benefits the other employer's employees receive as a
consequence of their successful strike, such as might result from a collec-
tive-bargaining agreement which adopts the wage rates of the other em-
ployer or as a result of a prevailing wage statute, the first employer's em-
ployees are sympathetic and not economic strikers.
Thus, argues Respondent, the office clerical contract was
without force and effect to limit Respondent's rights to
permanently replace and refuse to reinstate Fisher in
July 1981. The Union argues that its January letters did
not act to trigger the termination language of the con-
tracts, but rather merely served as notification to Re-
spondent of the Union's wish to amend, not terminate,
the contract. Thus, argues the Union, both contracts con-
tinued in force and, therefore, the office clerical contract
was valid and applicable to the Fisher situation herein. 3
Both the Union and Respondent argue their position
on this issue at length, although the General Counsel
does not address the question. The Board has resolved
similar issues of contract life in other contexts. See, e.g.,
KCW Furniture Co., 257 NLRB 541 (1980). I am of the
view however that a technical analysis and determination
of whether or not the 1978-1981 office clerical contract
had expired or remained in effect during May, June, and
July 1981 is unnecessary to resolve to reach the main
issue of this case. 4 I reach this conclusion for the follow-
ing reasons.
There is no dispute that at least until March 31, 1982,
the office clerical contract was in effect. There is also no
dispute that both the Union and Respondent deferred
bargaining on new terms and conditions for Respond-
ent's office clerical employees, consistent with their past
practice, until after the embalmers' contract was agreed
upon. Thus no office clerical unit bargaining took place
until after Fisher sought to return to work in July 1981.
Accordingly, all operative events regarding Fisher's re-
placement occurred before any office clerical unit bar-
gaining occurred. Board decisions make it clear that an
employer must continue to apply those contract terms
and conditions of employment which set employee wage
and benefit levels, even after the contract's expiration,
until a new agreement or a bargaining impasse is
reached. The mere passage of time without bargaining
after the contract's expiration, even after notification of
the other party of an intention to modify the agreement,
does not create an exception to this rule. Stone Boat
Yard, 264 NLRB 981 (1982). Like wages and fringe ben-
efits, the rights and benefits of employees set forth in ar-
ticle VIII of the office clerical agreement could not be
changed unilaterally by Respondent during the period in
question. Thus, whether the contract had expired or was
still in effect during May, June, and July 1981, Respond-
s The Union addresses the joint stipulation of fact submitted by the
parties which states that the embalmers' contract "expired on April I,
1981," by asserting that it is "inaccurate." Respondent argues that, if the
embalmers' contract was in effect during the strike, then the embalmers'
strike was in violation of that contract's no-strike clause. Thus, argues
Respondent, Fisher would obtain no protection under the Act for honor-
ing the illegal picket line of the embalmers. The parties' arguments are
novel but fly in the face of the stipulation which the parties cannot now
modify. I find that the parties are bound by their stipulation. Thus, I find
that the embalmers' contract expired on April 1, 1981. The embalmers'
strike was a legal primary economic strike and its picket line was not ille-
gal on this record.
4 Even given this determination, I would normally make alternative
findings so as to obviate any need for a remand should reviewing author-
ity differ with my finding. However, since there are no facts in dispute
regarding this issue, the Board may resolve the issue on its own without
a remand.
1018
BUTTERWORTH MORTUARY
ent could not modify or reduce the rights employees en-
joyed under article VIII in the circumstances then per-
taining. Office clerical employees were entitled to the
whatever benefits they received under article VIII both
during its unchallenged life and after any argued expira-
tion. Accordingly, since the contract's technical curren-
cy or expiration did not increase or decrease the rights
office clerical employees enjoyed under article VIII
during the relevant period, it is unnecessary to reason
further on the issue or decide whether the contract had
expired or been renewed. For purposes of this case, irre-
spective of the contract's currency, Fisher derived the
same benefit, if any, from article VIII of the office cleri-
cal contract during the embalmers' strike that she would
have derived had the events in question all occurred
before March 31, 1982, i.e., during the undisputed life of
the office clerical contract.S
4. The effect, if any, of article VIII on Respondent's
rights to permanently replace Fisher
While there has been some evolution in the wording
used to describe the rights and privileges of employers
with respect to sympathy strikers in Board cases, there is
no dispute, indeed the General Counsel specifically con-
cedes on brief, that, were Fisher an economic striker
during the period in which she withheld her services
from Respondent, she would have been properly re-
placed by Respondent and her offer to return to work
would have been properly refused. This is true because
under this assumption she would have been, after June
11, 1981, a permanently replaced employee entitled only
to retain her place on a preferential hire list. Nor is there
a dispute that, as a sympathy striker, Fisher would have
no greater rights than an economic striker unless she ob-
tains greater rights from the language of article VIII of
the office clerical contract. Thus, unless article VIII is
held to remove or limit Respondent's normal right to
permanently replace sympathy strikers, Respondent has
not acted improperly in this matter and the General
Counsel's case fails in its entirety. It is therefore appro-
priate to turn to article VIII and the parties' arguments
with respect thereto.
The General Counsel's entire argument on this issue
distills down to the citation of a single case. Torrington
Construction Co., 235 NLRB 1540 (1978). In Torrington,
the employer operated a "redi-mix" concrete plant and
employed delivery truckdrivers who were represented
by a union. The employer and the union were bound to
the following contract language:
Article XI
During the term of this agreement neither party
shall permit or order any walkout, strike or lockout.
' My analysis here deals with a contractually set benefit such as a
wage rate for employees in an expired contract. Contract terms such as
arbitration clauses or hiring hall provisions which regulate the employer's
dealings with the union do not necessarily continue past the contract's
expiration. There different questions obtain. See, e.g., Nodle Bro, v.
Bakery A Confectionary Workers Union, 430 U.S. 243 (1973); Amenrican
Sink Top d Cabinet Co., 242 NLRB 408 (1979); Digmor Equipment Co.,
261 NLRB 1175 (1982).
Article XII
Section 1. Picket Lines
It shall not be a violation of this Agreement, and
it shall not be a cause for discharge or disciplinary
action in the event an employee refuses to enter
upon any property involved in a primary labor dis-
pute, or refuses to work behind any primary picket
line, including the primary picket line of Unions
party to this Agreement, and including primary
picket lines at the Employer's place of business.
Two of the employer's drivers refused to cross a
lawful picket line at a client's premises and were dis-
charged. Both drivers were replaced on the same day.
The following day the first driver was offered another
position at a different location and was rehired. The
second driver was never offered reemployment in any
position. The Board found that as sympathy strikers hon-
oring a legal picket line the drivers, like economic strik-
ers, could not be discharged.
The Board went further, at 235 NLRB 1541-1542:
Furthermore, we find that Respondent's right
under the Redwing Carriers [137 NLRB 1545 (1962)]
doctrine to replace the sympathy strikers was clear-
ly and unmistakably waived by the earlier quoted
provision in the collective-bargaining contract. We
are mindful of the fact that article XI of the applica-
ble collective-bargaining agreement, which immedi-
ately precedes the article concerned herein, prohib-
its strikes. Unlike Respondent, however, and in
agreement with the Administrative Law Judge, we
do not view article XII as only a modification or
offset of article XI. As stated by the Administrative
Law Judge, article XII represents "in clear and un-
equivocal language" the recognition by all parties
to the collective-bargaining agreement of the right
of employees to respect a primary picket line. There
exists no evidence to show that the picket line
which the employees refused to cross was other
than primary, despite the assertion to the contrary
in the discharge letters. Accordingly, we find that
Respondent could not validly raise the Redwing
Carriers defense as a result of this waiver. And, as
the employees' discharges effectively blunted their
attempt to give allegiance to a union's lawful picket
line and as the discharges were in derogation of
their attempt to enforce their contractual rights, we
further find that the discharges were in violation of
Section 8(a)(1) and (3) of the Act.
We have found that even if Respondent was mo-
tivated in its actions by the desire to continue its
business activities, it could not, in the attempt to es-
tablish a Redwing Carriers defense, lawfully dis-
charge [the two drivers]. Moreover, notwithstand-
ing any rights Respondent in the ordinary course of
events may have been able to establish under Red-
wing Carriers, we have found that under the collec-
tive-bargaining contract those rights were waived
by Respondent. Finally, we have also found that
discharges of [the two drivers] effectively negated
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their attempts to support a lawful picket line and to
enforce their contract rights.
Administrative law judges are bound to follow Board
precedent unless and until reversed by the Board or the
Supreme Court. Iowa Beef Packers, 144 NLRB 615
(1965). The Torrington case has not been modified by the
Board or the Court. The contract clause it interpreted
and applied is essentially identical to the instant language
of article VIII. In each case the rights of sympathy strik-
ers are at issue. Thus, at least initially, it appears that the
Torrington decision must be applied herein and perforce
determines the outcome in the instant case. If this is so,
the numerous arguments of the parties on brief regarding
the strengths and weaknesses of the Torrington case are
not properly to be considered by me but must be made
to the Board. Only the Board or the Supreme Court may
reverse or modify Torrington insofar as it binds adminis-
trative law judges.
Respondent argues strenuously however, and the Gen-
eral Counsel seems to concede on brief, e that Torring-
ton's language regarding an employer's contractual
waiver of its right to replace, as opposed to discharge,
sympathy strikers is obiter dictum and therefore should
not be regarded by me as binding.
Dicta are judicial observations concerning a rule, prin-
ciple, or application of law which are not essential to the
resolution of the case at issue and therefore lack the
force of an adjudication. Being nonessential they do not
resolve the issue of the case and (1) may not involve full
consideration of the points involved and (2) may not re-
flect the deliberate determination of the court. Were Tor-
rington factually distinguishable from the instant case its
holding would not necessarily be binding on the issue
present here. For the reasons stated below, however, I
reject the notion that Torrington's holdings concerning
contractual waiver of an employer's right to replace
sympathy strikers are obiter dicta or are in any other
manner without binding force.
In Torrington the sympathy striking drivers were dis-
charged and then replaced on the same day. The Board
found that the employer could not properly discharge
the drivers because as sympathy strikers they possessed
equivalent rights to economic strikers citing Newberry
Energy Corp., 227 NLRB 436 (1976). Were the Board's
holding, as the parties seem to argue, limited to consider-
ation of the consequences of the employer's discharge
and without consideration of the replacement of the
drivers, the Board would have ordered reinstatement of
the discharged employees to available positions after
they made an unconditional offer to return to work.
s The General Counsel on brief states:
Even though the above language of the Board in Torrington was
not absolutely necessary for the holding in that case inasmuch as the
case dealt with straight discharges....
And the General Counsel includes as part of his brief's conclusionary ar-
gument:
It is clear that even though the Board has not directly held that a
clause in a collective-bargaining agreement such as Article IVIII] in
the clerical agreement acts as a waiver of the employer's right to
permanently replace sympathy strikers, nonetheless, it appears clear
that it is what it would hold if confronted with such a factual situa-
tion as obtains here.
Such a remedy acknowledges the employer's right to re-
place sympathy striking employees even if their dis-
charges were improper. The Board in Torrington howev-
er specifically held, as cited in full supra, that the con-
tract constituted a waiver by the employer of its normal
right to replace the sympathy striking drivers. Rather
than give the more limited remedy in Newberry, the
Board ordered immediate and full reinstatement of the
drivers without any requirement that they first uncondi-
tionally offer to return to work. The Board issued this
broader order even though it was clear that the employ-
ees had been replaced on the day of their discharge. This
distinction between remedies convinces me that the
Board's language in Torrington regarding the effect of
the contract on the employer's rights to replace sympa-
thy strikers was not mere dictum. Only by regarding the
contract as a waiver of the employer's right to replace
sympathy striking employees may the Board's order in
Torrington that the drivers be immediately reinstated be
rendered intelligible.7
A second basis advanced by Respondent in an attempt
to discount the application of Torrington to the facts at
issue herein is that Torrington involved a partial sympa-
thy strike while the instant case involved a full-time
withholding of services by the sympathy striker. This
distinction in types of sympathy strikers was noted and
discussed in another context in Newberry Energy Corp.,
227 NLRB 436 (1976). Respondent argues that there is a
fundamental difference in holding that an employer has
waived its right to replace an employee, such as a truck-
driver who refuses to cross a picket line at a particular
delivery location and who is refusing to perform only a
portion of his assigned duties, and an employee such as
Fisher here, who entirely withholds her services because
of a picket line located at her place of employment. Re-
spondent argues that Torrington, even if conclusive as to
the former situation, should not apply to the latter. I find
Respondent's argued distinctions to be without difference
as to the holding in Torrington. Both the instant office
clerical contract's article VIII and the contract language
discussed in Torrington specifically waive the employer's
right to replace both types of sympathy strikers, i.e.,
those who honor picket lines at locations away from
their employer's premises and those who honor picket
lines at their employer's premises. Thus the contracts in
Torrington and the instant case apply equally to each sit-
uation. Further, the Board in describing the effect of the
clause in Torrington made no distinction whatsoever be-
tween the two types of sympathy strikes, partial or total,
or the location of the picket lines honored by the sympa-
thy strikers. Given the Board's omission to make the dis-
tinctions noted, I feel bound to follow the Torrington de-
cision and therefore reject all Respondent's arguments
turning on such distinctions. Respondent's arguments in
this regard must be made directly to the Board since
they constitute in my view an attempt to obtain a modifi-
cation or reversal of Torrington.
I It should be remembered that the Board did not first order an em-
ployer to pay backpay even before the striker had offered unconditional-
ly to return to work as a remedy for discharged strikers until the issuance
of its 1979 decision in Abilities 5 Goodwill, 241 NLRB 27 (1979).
1020
BUTTERWORTH MORTUARY
I have found Torrington's holdings, quoted supra, ap-
plicable to the instant case and binding on me. Accord-
ingly, for the reasons noted by the Board in Torrington, I
find the language of article VIII in the 1978-1981 office
clerical agreement between the Union and Respondent
acted to waive Respondent's right to permanently re-
place sympathy striking employee Fisher. Therefore, I
find that by permanently replacing employee Fisher and
failing and refusing to reinstate her to her former posi-
tion on her unconditional offer to return to work, Re-
spondent has acted in derogation of Fisher's attempts to
enforce her contractual right to give allegiance to the
Union's lawful picket line and has thereby violated Sec-
tion 8(aX1) and (3) of the Act.
5. Summary and conclusion
I have found that the complaint is properly before me
for resolution on its merits despite the occurrence of an
unexplained 9-month delay between the filing of the
charge herein and the issuance of the complaint. I have
found that during the period April 15 to July 15, 1981,
Respondent's office clerical employee Autumn Fisher en-
gaged in a sympathy strike and not an economic strike
against Respondent. I have further found that Respond-
ent for business reasons during Fisher's sympathy strike
replaced her with a permanent employee and that, at the
time of Fisher's unconditional offer to return to work,
there was no position available for her unless a perma-
nently hired replacement was discharged. I have found
that Respondent has at all times since July 15, 1981, de-
clined Fisher's offer to return to work and has informed
Fisher that she is on a preferential rehire list and will re-
ceive the first position which becomes available.
Given these findings, I have determined that, were no
issue of contract waiver at issue, Respondent acted per-
missibly under the Act. I therefore determined that the
sole issue remaining for determination was what effect if
any the 1978-1981 office clerical contract had on Re-
spondent's right to permanently replace sympathy striker
Fisher. Regarding the 1978-1981 office clerical contract,
I found, despite any issue regarding whether the contract
renewed or terminated, that article VIII retained vitality
and currency with respect to Fisher's rights under article
VIII in April, May, June, and July 1980. Further, with
respect to the contract article Vlll's influence and effect
on Respondent's rights, I found I am bound by the result
and rationale reached by the Board in Torrington Con-
struction Co., 235 NLRB 1540 (1978), a case which may
not be effectively distinguished from the instant case.
Accordingly, consistent with the holding and analysis in
Torrington, I found that, by permanently replacing Fisher
and by failing and refusing to reinstate her to her former
position of employment on her unconditional offer to
return to work, Respondent has acted in derogation of
Fisher's attempt to enforce her contractual right to give
allegiance to a union's lawful picket line, thereby violat-
ing Section 8(a)(1) and (3) of the Act.
REMEDY
Having found Respondent has engaged in certain
unfair labor practices, I shall order that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found Respondent violated Section 8(aX)() and
(3) of the Act by permanently replacing sympathy striker
Autumn Fisher and thereafter failing and refusing to re-
instate Fisher on her unconditional offer to return to
work, thereby acting in derogation of Fisher's attempt to
enforce her contractual right to give allegiance to a
union's lawful picket line, I shall order Respondent to
offer employee Fisher immediate reinstatement to her
former job, discharging if necessary any employee hired
to replace her, or, if her former job no longer exists, to a
substantially equivalent job, without prejudice to her se-
niority and other rights and privileges. In addition I shall
order Respondent to make Autumn Fisher whole for any
loss of earnings she may have suffered as a result of Re-
spondent's discrimination against her by failing and refus-
ing to reinstate her on her unconditional offer to return
to work on July 15, 1981. Backpay shall be computed in
accordance with the formula in F. W: Woolworth Co., 90
NLRB 289 (1950), with interest thereon computed in a
manner and amount prescribed in Florida Steel Corp., 231
NLRB 651 (1977) (see also Isis Plumbing Co., 138
NLRB 716 (1962)). Respondent shall further expunge
from its files any reference to the permanent replacement
of and refusal to reinstate employee Autumn Fisher and
notify her in writing that this has been done. Cf. Sterling
Sugars, 261 NLRB 472 (1982); see also Airport Parking
Management, 264 NLRB 5 (1982).
In ordering the remedy noted supra, I specifically
reject Respondent's argument that there is an element of
improper retroactivity in such an order. First, the Tor-
rington decision issued several weeks before the 1978-
1981 office clerical agreement was signed by Respond-
ent. Second, even were this case regarded as a revision
or extension of Board policy regarding sympathy strik-
ers, an argument I have specifically rejected, supra, the
Board with court approval has held that as to strikers
"the complete vindication of employee rights should take
precedence over the employer's reliance on prior Board
law." Laidlaw Corp. v. NLRB, 414 F.2d 99, 107 (7th Cir.
1969), quoting the General Counsel's brief, cert. denied
397 U.S. 920 (1970), enfg. 171 NLRB 1366 (1968).
Based on the foregoing findings of fact and the record
as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of
the Act by derogating office clerical employee Autumn
Fisher's attempts to enforce her contractual right to give
allegiance to a union's lawful picket line by permanently
replacing Fisher and thereafter failing and refusing to re-
instate Fisher upon her July 15, 1981 unconditional offer
to return to work.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1021