Chevon U.S.A., Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1979

244 N.L.R.B. 1081 (N.L.R.B. 1979)

CHEVRON U.S.A., INC.
Chlevron U.S.A., Inc. and International Brotherhood
of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers & Helpers, AFL-CIO, Local No. 351. Case
31-CA-7296
September 17. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDAL E
On August 30, 1978, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith, and to adopt his rec-
ommended Order.
The complaint alleges that Respondent (herein also
called Chevron) violated Section 8(a)( ) of the Act by
suspending three employees who refused to cross a
picket line at its El Segundo, California, refinery. The
picket line had been erected by a union which repre-
sented only employees of a subcontractor of Respon-
dent who worked at the site. Respondent denied that
the suspensions constituted unfair labor practices, in
that the employees had engaged in unprotected ac-
tivity because () the applicable collective-bargaining
agreement prohibited such sympathy work stoppages,
and (2) in any event, the employees observed an ille-
gal secondary picket line. The Administrative Law
Judge dismissed the complaint, sustaining Respon-
dent's first contention that the employees' statutory
right to engage in sympathy work stoppages had been
waived by the labor contract. The Administrative
Law Judge also found, however, that there was insuf-
ficient evidence to determine whether the employees'
refusal to report to work across the picket line was
also unprotected because the picket line was an illegal
secondary one. Respondent lawfully suspended the
three employees in question, but only because it is
clear that the employees' activity was unprotected be-
cause they honored an illegal secondary picket line.
Contrary to the Administrative Law Judge, it is con-
cluded that the governing collective-bargaining con-
tract did not relinquish these employees' right to par-
ticipate in protected sympathy strikes.
I.
Respondent had collective-bargaining agreements
with three unions at its refinery in El Segundo. The
Oil, Chemical and Atomic Workers, AFL-CIO
(herein called OCAW), represented Respondent's
production workers and many of the maintenance
employees, approximately 800 employees all told.
The International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-
CIO, Local No. 351 (herein called Boilermakers) the
Charging Party herein, was the bargaining agent for
approximately 60-70 of Respondent's maintenance
employees, and the Independent Union of Petroleum
Workers represented approximately 35 drivers.
Respondent also contracted with other employers
to perform maintenance or new construction work at
the refinery. In late July and early August 1977,. two
such subcontractors were Petroleum Maintenance
Company (herein called PEMCO), and Bragg Crane
Service, each of which frequently worked at the site.
At the time, Bragg was engaged in a maintenance
project for Respondent. Bragg's employees, including
those working at the El Segundo refinery, were repre-
sented for collective-bargaining purposes by the In-
ternational Union of Operating Engineers, Local 12
(herein called IUOE). Bragg, as a member of a mul-
tiemployer bargaining group called the California
Trucking Association (herein called CTA), was party
to a labor agreement with IUOE covering its employ-
ees. Following expiration of the agreement. IUOE
commenced an economic strike against CTA on July
23.
On August 3, IUOE began picketing at the El Se-
gundo refinery, because of Bragg's presence at the
site.2 On that date, IUOE picketed three entrances to
the refinery on El Segundo Boulevard. These were
gate 1, a turnstile gate used only by Chevron employ-
ees and which could only be entered through use of a
keycard possessed by Respondent's employees; gate
2A, a turnstile gate restricted to entrances by
PEMCO employees; and gate 2, a drive-through gate,
access through which was controlled by Respondent's
security personnel, and which was normally used by
Respondent's suppliers to deliver goods and also by
employees of contractors other than PEMCO work-
ing at the site.3 The picketing began about 6 a.m. and
continued throughout the day, except that there was
no picketing for about an hour around noon at one of
I Unless otherwise indicated, all dates herein refer to 1977.
2 The picketing continued until August 18.
3 The IUOE also picketed three other entrances on August 3, gate 10 on
Sepulveda Boulevard; gate 21 on Rosecrans Boulevard. another turnstile
gate for Respondent's employees; and gate 22, a dnve-through gate also
located on Rosecrans.
244 NLRB No. 160
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the El Segundo turnstile entrances, apparently the
one used by Respondent's employees.
The three employees whose conduct is in issue,
Dale Tobiason, Harry Davis, and Albert Nieves, ar-
rived at the plant at approximately 7:30 a.m. on Au-
gust 3. Each was employed by Chevron as a boiler-
maker and each was a member of the unit
represented by the Boilermakers Union and of the
Union itself. They normally entered the plant
through gate 1, the Chevron employees' turnstile gate.
At this time, IUOE pickets carried two different signs,
although it is not clear which signs appeared at which
gates.4 One sign stated:
The other sign read:
IUOE
Local 12
*On *
Strike
CTA
Operating Engineers
#12
On Strike
[crossed out material]
No contract
[crossed out material]
Building Trades
Council
AFL-CIO
Tobiason, Davis, and Nieves testified that they de-
clined to cross the picket line and report to work out
of a sense of "moral obligation." Tobiason and Davis
did not work at all on August 3, but Nieves went to
work at noon that day during a period when no
picket was present at gate 1. Respondent suspended
each employee for the same amount of time he had
honored the picket line; i.e., I full day in the case of'
Tobiason and Davis and one-half day in the case of
Nieves. Each employee received a written notice of
the suspension, which read in pertinent part as fol-
lows:
Employee failed to report to work on 8-3-775
because of an illegal picket line at the turnstile
gate. This action constituted a violation of his
union contract with the company. This picket
line was not designated against the company but
against Bragg Crane & Rigging.
At the hearing, considerable additional evidence
was developed concerning the background and con-
4 Tobiason, however, stated he observed a picket at Gate I carrying the
sign with the initials "CTA" on the morning of August 3. Late in the day, a
third sign was added which clearly stated that the primary dispute was with
Bragg Crane.
5Tobiason's written notice inadvertently reflects the date as "8-4-77."
duct of IUOE picketing at the refinery. Raymond
Burrows, general foreman for Respondent's No. 2
maintenance district, testified that Ewell Edwards,
IUOE Local 12 distict representative, telephoned him
on August . According to Burrows, Edwards asked
him whether Bragg Crane was working in the refin-
ery. When Burrows replied that it was, Edwards in-
quired whether Burrows knew that Bragg was having
a labor dispute. Burrows said Bragg officials had in-
formed him of that fact, but had said they intended to
use supervisory personnel if necessary. Burrows said
Edwards then told him that he "should get that
equipment out of the yard, get Bragg Crane out of the
yard." Burrows testified that he told Edwards he
could not make such a decision without consulting his
supervisor.
Edwards did not recall the telephone conversation
of August 1, but admitted having a personal meeting
with Burrows on August 2. In Burrows' account of
this meeting, Edwards asked him if he "was doing
anything about getting Bragg out of the yard." Bur-
rows replied negatively, stating that he was not in a
position to remove Bragg, and that Bragg was operat-
ing with supervisory personnel. Although, according
to Burrows, Edwards did not say anything about
picketing, Edwards told him "there could be some
action taken" if Respondent "continued this course."
In Edwards' version of his meeting with Burrows
on August 2, he informed him that IUOE was on
strike against Bragg, as a member of CTA, that eco-
nomic action likely would be taken against Bragg and
that a picket line might be erected. Edwards said he
asked Burrows if he "would consider getting some-
body else to do the work, in place of Mr. Bragg, and
save a lot of problems all the way around." Edwards
also stated at the hearing that if Respondent had got-
ten "somebody that didn't belong to the CTA, this
very probably wouldn't have happened-been a
picket line imposed."
Also, on August 2, Melvin Lane, an IUOE field
representative, independently determined that Bragg
employees were working at the refinery. Although he
did not observe any Bragg employees enter or leave
the site, the security guard at gate 2, the drive-
through gate, permitted Lane to look at his "log,"
which disclosed that Bragg employees had signed in
and were working at the site. Lane did see Bragg
Crane equipment within the refinery. Lane, however,
did not see any Bragg employees use either of the
gates restricted to Chevron or PEMCO employees on
El Segundo Boulevard, neither on August 2, nor the
next day when picketing began.
Following his conversation with Edwards on Au-
gust 2, Burrows telephoned his superior, Bob Ander-
son, Respondent's superintendent of major projects
and planning, and informed him of what Edwards
1082
CHEVRON U.S.A.. INC.
had said. Later that day, Anderson told Burrows that
Bragg employees would be required to use gate 10 on
Sepulveda Boulevard exclusively, and that a sign to
that effect would be posted at gate 10. Subsequently,
Burrows told Bragg that their employees would have
to enter and exit the refinery through gate 10, and
Burrows testified that one of his subordinates went to
see whether the sign stating that gate 10 was to be
used only by Bragg employees had been installed. He
reported to Burrows that it had been.6 Barney Reish,
Respondent's deputy security chief at the time, stated
at the hearing that he personally directed the placing
of the Bragg employees only sign at gate 10 on Au-
gust 2. However, union official Lane stated he did not
see such a sign on August 3, but observed it first on
August 4.
Also on August 3, a letter from Respondent's attor-
neys stating that Bragg employees would be limited
to use of gate 10 was delivered to Edwards' office.
However, Edwards was not in at the time and did not
see the letter until the following morning. Before
noon on August 4, Edwards removed the pickets to
gate 10.
Evidence was also received at the hearing in regard
to relevant aspects of the collective-bargaining rela-
tionship between Respondent and the Boilermakers.
The 1975-77 collective-bargaining agreement be-
tween the parties contained this no-strike provision:
There shall be no cessation of work through
strikes, non-productive holidays or sit-downs on
the part of the Union; nor shall there be any
lockouts, etc., on the part of the Employer dur-
ing the period of this Agreement.
The contract, however, did not have an arbitration
clause. It expired on May , but was extended until
June I, by agreement of the parties, because a new
contract had not been negotiated. There was still no
successor contract by June 1, but the parties contin-
ued to negotiate without a strike by the Boilermakers.
Finally, on July 25,7 the parties reached agreement on
a new contract; it was ratified by the Union on July
29. However, the contract was not signed until Octo-
ber 10. Section 2 of the agreement stated that it "shall
be in full effect from the date of execution hereof to
May 1, 1979."8 This contract did contain an arbitra-
tion provision.
In spite of the delay in executing the contract,
many of its terms were implemented promptly. Thus,
George Bragg. vice president of Bragg Crane. testified that his employees
used gate 10 as directed on August 3 and thereafter.
7 By apparent inadvertence, the Administrative Law Judge incorrectly re-
ferred to July 28 as the date on which agreement was reached
I The 1975 77 contract contained the same clause, except that the expira-
tion date was May 1. 1977.
new wage rates were immediately put into effect, and
retroactive backpay to January 8 was also paid out.
On August 3, Respondent began using composite
crews, made up of Respondent's employees as well as
those of contractors, which were first authorize by
the new contract. Also in August. Respondent hon-
ored newly executed dues-checkoff authorizations.
Last, Respondent negotiated changes in fringe benefit
plans that became effective on October I.
The 1977-79 labor contract contained the same no-
strike language which had appeared in the preceding
agreement and in many earlier contracts. But during
negotiations for the contract, the Union had sought to
include a clause permitting those covered by the
agreement to honor a picket line established by any
union representing Chevron employees.' 0 Respon-
dent, however, refused to agree to the clause, on the
ground that it could not afford the disruption in op-
erations which would be caused by such a provision.
The Union, on the other hand, contended that the
provision would embody in the contract only what it
already believed to be the employees' right.'' Ulti-
mately, the Union withdrew the proposal.
During economic strikes by OCAW in January
1975 and January 1977, some boilermakers refused to
cross OCAW picket lines, but none were disciplined.
During the 1977 OCAW strike, boilermakers re-
spected the OCAW picket line for a day or two, but
returned to work when Respondent threatened to sue
the Union for breach of contract. However, in its let-
ter urging its members to return to work, the Union
did not acknowledge that the strike violated its collec-
tive-bargaining agreement with Respondent.
It.
The Administrative Law Judge, as has been noted,
decided that the Boilermakers Union had waived the
right of the employees represented by it to engage in
sympathy work stoppages, and thus that Respondent
did not violate Section 8(a)(l) when it suspended
Tobiason, Davis, and Nieves for declining to cross the
IUOE picket line on August 3. The Administrative
Law Judge correctly found that a valid contract was
in force between the parties on the day the three em-
9 Respondent had ceased checking off dues on June 1. hen the I-month
extension of the 1975-77 contract expired.
'0 The suggested clause read:
B. Notwithstanding any provision of this section it shall not he a
violation of this agreement nor cause for discipline of any employee
covered by this agreement, to refuse to cross a picket line etablished by
any union representing employees at the represented plants.
t Ronald E. Bowlin, the Union's secretary-treasurer. testified
We wanted to have section 21(b) inserted into our contract so that our
members would know the rights they had under law and would aiso he
covered by our contract so that there wouldn't he an, conflicts or an~-
thing arise.
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees refused to work because of the picket line.
Contrary to the Administrative Law Judge, however,
the no-strike clause of the agreement did not evidence
a "clear and unmistakable" intent to relinquish the
employees' right to engage in sympathy work stop-
pages. 2
The General Counsel initially asserts that Respon-
dent and the Union did not have a binding contract
in force on August 3. Although the previous contract
expired on June 1, the parties reached agreement on a
new contract on July 25, and the contract was ratified
on July 29 by the Union. The contract was not for-
mally executed until October 10, but prior to that
time many terms of the agreement were implemented
by the parties, including new wage rates, changes in
fringe benefit payments, use of crews composed of
both Respondent's employees and those of contrac-
tors, and observance of new dues-check-off authoriza-
tions. In these circumstances, the Administrative Law
Judge correctly concluded that the parties had put
the agreement into effect by August 3, and that "ex-
ecution was intended simply to be a ministerial act,
not a condition of the agreement."'3
Turning to the no-strike provision of the contract,
it purported to prohibit, in relevant part, any "cessa-
tion of work through strikes, non-productive holi-
days, slow-downs or sit-downs on the part of the
Union."'4 In his opinion, the Administrative Law
Judge seemed to suggest that this language was broad
enough to encompass sympathy strikes in its prohibi-
tion, but nevertheless decided to examine certain ex-
trinsic evidence which he believed confirmed his con-
clusion. The Administrative Law Judge found no
significance in Respondent's failure to discipline em-
ployees in the unit for refusing to cross picket lines in
the past, in Respondent's threat to sue the Union for
breach of contract when its members observed the
OCAW picket line in 1977, or in the Union's decision
to order its members back to work from their 1977
strike in sympathy with OCAW. However, the Ad-
ministrative Law Judge did regard as pertinent the
picket line clause which the Union proposed to insert
in the 1977-79 collective-bargaining contract, but
which the Union finally withdrew from consideration
12 International Union of Operating Engineers, Local Union 18, AFL-CIO
(Davis-McKee, Inc.), 238 NLRB No. 58 (1978); Gary-Hobart Water Corpora-
tion, 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), cert. denied
423 U.S. 925.
'3 See Mineweld Company Division of Rasco, Inc., 127 NLRB 1616, 1617-
18 (1960). Although the Administrative Law Judge referred to the July 25
agreement as an "oral. collective-bargaining contract, later reduced to wnt-
ing," it would appear that the contract agreed upon was in writing but
simply was not executed at the time.
14 In view of our finding below regarding the scope of the clause, we find it
unnecessary to decide whether the word "Union" refers to employees repre-
sented by the Union as well as to the Union itself.
and which did not appear in the final agreement. The
clause would have stated that "it shall not be a viola-
tion of this agreement nor cause for discipline of any
employee" to refuse to cross a picket line established
by a union representing Chevron employees. The Ad-
ministrative Law Judge stated that the Union's at-
tempt to secure this language in the contract might be
interpreted as meaning that the employees did not
have the right to honor picket lines established by
other Chevron unions, but that it also might mean
that the Union, as its secretary-treasurer testified,
simply wanted to embody in the contract an existing
right. But the Administrative Law Judge noted that
the proposed picket line clause did not purport to
protect the right of the unit members to honor picket
lines erected by non-Chevron unions "undoubtedly
because that right didn't exist under the existing
clause." Thus, combining the terms of the no-strike
provision with extrinsic evidence allegedly tending to
indicate that the employees had no right to observe
the picket lines of stranger unions, such as IUOE, the
Administrative Law Judge concluded that the right of
the three employees to honor such picket lines had
been waived.
It is found that the Administrative Law Judge's dis-
cussion of whether the three boilermakers' right to
engage in sympathy work stoppages had been relin-
quished by contract to be inconsistent with the
Board's recent decision in Davis-McKee, Inc., supra,
as well as with earlier law upon which that case
rested.' In Davis-McKee, the Board held,
We will not infer a waiver of the protected right
to engage in sympathy strikes solely from an
agreement to refrain from all "stoppages of
work." Rather, we shall require that the parties
at the very least have dicussed the question and,
perferably, have expressly embodied in their
agreement their intent to extend a strike ban to
sympathy strikes.16
The no-strike language present in the collective-bar-
gaining agreement between Respondent and the
Union does not refer specifically to prohibition of
sympathy strikes, and thus, on its face, is insufficient
to be read as a waiver of the right to participate in
such work stoppages. The remaining question is
whether extrinsic evidence discloses clearly that the
clause was intended to forbid sympathy strikes.
The only such evidence cited by the Administrative
Law Judge to support his conclusion concerns the
picket line clause which the Union unsuccessfully
sought to include in the 1977-79 contract. He cor-
rectly found, particularly in light of the testimony of
5 See, in particular, Gary-Hobart Water Corporation, supra.
'I 238 NLRB 652 (1978).
1084
CHEVRON .S.A., INC.
the Union's secretary-treasurer to that effect, that the
Union was merely attempting to place in the contract
a right which it believed its employees already pos-
sessed by statute not to cross picket lines erected by
unions representing Chevron employees. But the Ad-
ministrative Law Judge erroneously decided that the
Union's failure to request a picket line clause broad
enough to include respect of picket lines by non-
Chevron unions was evidence that no such right ex-
isted. Employees have a statutory right to engage in
work stoppages in sympathy with employees of em-
ployers other than their own, and this right is not
waived by its absence from the governing collective-
bargaining agreement. In closely analogous circum-
stances, the Board has found that, "where part but
not all of a statutory right is reduced to a specific
contractual right ... the inference, if any, to be drawn
is a general intent to memorialize in the contract the
statutory right, not to limit it." 7 There is nothing in
the record revealing any intention on the part of the
union to surrender this right, and, therefore, no basis
to assume that it was waived.
Nonetheless, the refusal of Tobiason, Davis, and
Nieves to cross the IUOE picket line was protected
only to the extent that the picket line itself did not
constitute illegal secondary, and therefore unprotect-
ed, activity. Thus, Respondent's contention that the
IUOE picket line at the Chevron refinery on August 3
was an illegal secondary picket line must next be con-
sidered.
III.
The Administrative Law Judge decided that the is-
sue of whether the IUOE picket line was unlawful
had not been fully litigated, in part because IUOE
was no a party to the proceeding, and in part be-
cause there was no record evidence regarding a possi-
ble "ally" relationship between Respondent and
Bragg. In his Decision, section IV, B, he stated:
In view of the fact that Respondent has re-
cently been found to be an "ally" of maintenance
contractor PEMCO at this refinery (see Oil,
Chemical and Atomic Workers International
Union, AFL-CIO, Local 1-128 (Petroleum Main-
tenance Company, 223 NLRB 757 (1976)), and
since Bragg is also a maintenance contractor, it
would not have been unreasonable, absent con-
trary evidence, for the IUOE to have hypothe-
sized that Respondent and Bragg were also al-
lies. Moreover, absent contrary evidence, since
'I Keller-Crescenr Company, a Division of Mosler, 217 NLRB 685, 688
(1975), enforcement denied 538 F.2d 1291 (7th Cir. 1976).
maintenance work is fungible at these refineries.
it would not have been unreasonable for the
IUOE to have believed that maintenance work-
ers of other companies would be assigned to the
situs to work with the primary disputant's em-
ployees .... In either event, the IUOE would be
privileged to picket as it did, for Respondent
would have been Bragg's ally and PEMCO
would simply be incidentally enmeshed in the
dispute, though the possibility that PEM(CO was
also an ally for engaging in struck work cannot
be discounted.
Finally, the Administrative Law Judge suggested
that, even if the picket line were illegal, it would be
"unjust" and "unreasonable" to permit Respondent
to discipline the three employees involved in the case.
apparently because they might well have been un-
aware whether the picket line was lawful or not.
In the first place, the Administrative Law Judge
erroneously concluded that the legality of the picket
line could not be ascertained in the absence of the
case being consolidated with a formal 8(b)(4}(B) pro-
ceeding against the picketing union. IUOE. The law-
fulness of the picket line has been appropriately
raised by Respondent as a defense to allegations that
it violated Section 8(a)(1) by disciplining three em-
ployees who refused to cross the picket line.R Respon-
dent cannot be deprived of this defense simply be-
cause no person filed 8(b)(4)(B) charges against the
IUOE in connection with the picketing. Further, two
representatives of IUOE Local 12, Melvin Lane and
Ewell Edwards, testified fully concerning the conduct
of the picketing, and all parties had the opportunity
to examine and cross-examine these witnesses. There-
fore, contrary to the Administrative Law Judge, there
is no "glaring gap" in the evidence because the IUOE
is not a party to the proceeding.
The Administrative Law Judge's speculation re-
garding a possible "ally" relationship between Re-
spondent and Bragg, or PEMCO and Bragg, is also
entirely misconceived.'9 Under the ally doctrine, a
union may engage in a boycott against a secondar'
employer who is performing work which, but for the
strike against the primary employer, would be done
by the striking employees, and which assists the pri-
mary employer in avoiding the economic conse-
quences of the strike, just as if it had imported strike-
breakers onto its own premises.2 0 However, it is
' See American Telephone & Telegraph Co, 231 NI.RB 556 (1977); Pctf
Telephone and Telegraph Company. 107 NLRB 1547 (1954)
19 Contrary to the Administrative Law Judge, the Board did not, in Ptro-
leum Maintenance Company, find Respondent to be an ally of PEMCO, but
rather found PEMCO to be an ally of Respondent.
2o Douds v. Metropolitan Federation of Architects, etc lEhbasco Srices.
Inc], 75 F.Supp 672 (D.C.N.Y., 1948); NV.LR.B v Buinessy Machine and
Office Mechanics, etc Roval Tvpewritersl. 228 F 2d 553 2d ('it. 1955), cert
denied 351 U.S. 962 (1956)
1085
I)E:('ISIONS OF NATIONAL. LABOR RELATIONS BOARD
immaterial whether Respondent performed work at
the refinery which would have ordinarily have been
completed by Bragg employees, or whether Respon-
dent arranged to have PEMCO or some other con-
tractor perform such work. For. "A secondary em-
ployer will not be considered an ally when the
impetus for the arrangement by which the secondary
performs the work comes solely from the customer of
the primary employer and the otherwise struck work
is not performed in the primary's name or for his
benefit." There is no evidence in the record to suggest
that Bragg arranged for Respondent or any other em-
ployer to perform struck work for its benefit: indeed,
the record contains no evidence that anyone other
than Bragg supervisory personnel did struck work.
Thus, there is no legal or factual basis for the Admin-
istrative aw Judge's discussion concerning applica-
tion of the ally doctrine to the circumstances of this
case.22
From the foregoing, it is evident that Respondent
was a neutral employer in the dispute between the
IUOE and Bragg. The issue left to be decided is
whether an object of IUOE's picketing at the refinery
was to force Respondent to cease doing business with
Bragg. If such was an object of the picketing, Respon-
dent had the right to discipline Tobiason, Davis, and
Nieves when they refused to cross the IUOE picket
line, for their conduct, as noted, was unprotected if
the picket line itself was illegal, and consequently un-
protected. 3
It is clear that IUOE's picketing herein had an un-
lawful secondary objective. In this regard, it is well-
established that the existence of an illegal aim may be
revealed by statements from an agent of the picketing
union to the secondary employer, telling him in effect
that "he, alone, has the power to resolve the underly-
ing dispute by removing the offending employer or by
forcing him to make some agreement with the
union."2 4 Here, prior to the commencement of the
picketing, Edwards, IUOE's agent, essentially in-
formed Respondent's representative, Burrows, that
21 Blackhawk Engraving Co. v. N.L.R.B., 540 F.2d 1296, 1301 (7th Cir.
1976): see also the cases cited therein.
z2 See, in particular, Oil Chemical & Atomic Workers International Union,
AFL CIO (Western Industrial Maintenance, Inc.), 213 NLRB 527 (I974),
involving an oil refinery similar to that of Respondent's. where, at the direc-
tion of Mobil, the operator of the refinery, Western, a maintenance contrac-
tor, performed work which allegedly would have been completed by two
other maintenance contractors, Hanskill and Noble, whose employees were
on strike. The Board found no ally relationship between Western and Han-
skill and Noble, because neither Hanskill nor Noble arranged to have the
allegedly struck work performed by Western nor was it done for their bene-
fit.
See American Telephone and Telegraph Co., supra.
L ocal No. 441, International Brotherhood of Electrical Workers, AFL
CIO (Rollins Communications), 222 NLRB 99, 101 (1976), enfd. 569 F2d 160
(D.C. Cir. 1978). To the same effect, see Local Union No. 369; International
Brotherhood of Electrical Workers. AFL-CIO (Garsi-Receveur Construction
Co.), 229 NLRB 68 (1977).
Respondent should resolve the dispute between the
IUOE and Bragg at the site by ceasing to do business
with Bragg. Without contradiction,2 " Burrows testi-
fied that Edwards told him, in a telephone conversa-
tion on August 1, that he "should get that equipment
out of the yard, get Bragg Crane out of the yard." On
August 2, in a personal meeting, Burrows stated that
Edwards inquired whether he "was doing anything
about getting Bragg out of the yard." and told him
some action could be taken if Bragg remained on the
job. Edwards' account of this meeting differed from
Burrows' mainly in tone rather than substance. He
remembered asking Burrows if he "would consider
getting somebody else to do the work in place of Mr.
Bragg, and save a lot of problems all the way
around." In view of the clarity with which Edwards
described the illegal object of the IUOE picketing, it
is not necessary to consider whether IUOE techni-
cally observed the criteria set forth in Sailors' Union
of the Pacific, AFL (Moore Dry, Dock Company),26 in
conducting its picketing.
Contrary to Chairman Fanning, under well-settled
Board law, honoring an unlawful picket line consti-
tutes unprotected activity per se. In Pacific Telephone
and Telegraph Company, supra, the Board decided
that sympathy strikers need not possess knowledge of
the unprotected character of the primary strike for
their conduct also to be unprotected. The Board reaf-
firmed this principle in American Telephone and Tele-
graph Company, supra, finding that a sympathy strike
was unprotected irrespective of whether the sympathy
strikers knew that the primary strike was unprotected.
Significantly, in American Telephone, the Board cited
with approval this clear-cut characterization of Pa-
cific Telephone from a law review article: "[T]he
Board went further and stated that an employee who
refuses to cross a picket line that is unprotected by the
Act loses the protection of section 7, whether or not he
had knowledge that the picket line was unprotected."2 7
(Emphasis supplied.)
Chairman Fanning suggests, however, that Pacific
Telephone and American Telephone are distinguish-
able, because here, unlike in those cases, the primary
strike was protected. In this case, though, the primary
strikers erected an unlawful secondary picket line in
furtherance of the strike, in an effort to draw a neu-
tral employer and its employees into the conflict con-
trary to the policies reflected in Section 8(b)(4) of the
Act. To accept Chairman Fanning's view would leave
neutral employers helpless in such circumstances to
discipline those who respect such illegal lines, and
25 Edwards stated at the hearing only that he did not "recall" having a
telephone conversation with an official of Respondent on August I.
, 92 NLRB 547, 549 (1950).
12 231 NLRB at 562. fn. 17.
1086
CHEVRON
would, to a large degree, vitiate the protection af-
forded them by the statute's secondary boycott provi-
sions.28
Chairman Fanning, however, goes further, and
holds that the picket line here was lawful, stating that
he "would not, in any event, find a single remark,
particularly away from any picket line, sufficient ba-
sis to conclude that the picket line itself is unlawful,
regardless of the character of the comment." The
Chairman, then, would apparently disregard any ad-
mission by a union agent disclosing the illegal object
of such secondary picketing. Evidence like this, how-
ever, is the best possible indicator of a union's intent
in secondary boycott cases, and there is no warrant
for ignoring it.29
It is therefore found that the picket line erected at
Respondent's El Segundo refinery by the IUOE was
of an unlawful secondary nature, inasmuch as it was
designed to enmesh Respondent in UOE's dispute
with Bragg.
IV.
In sum, it is concluded that Respondent did not
commit an unfair labor practice by disciplining
Tobiason, Davis, and Nieves because, in refusing to
report to work on August 3 across the IUOE picket
line, they engaged in activity not protected by the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
CHAIRMAN FANNING, concurring in part and dissent-
ing in part:
The Operating Engineers struck Bragg Crane Ser-
vice, which was performing maintenance for Chev-
ron, and began picketing on August 3. Some picket
signs identified "CTA," an employer association
Bragg belonged to, as the strike target, others simply
stated that the Operating Engineers was on strike.
Later in the day, Bragg was identified more specifi-
cally. No reserve gate had been established when the
strike began. Three of Chevron's employees repre-
sented by the Boilermakers struck in sympathy and
were suspended.
1 It bears noting that an employer who disciplines employees for refusing
to cross a picket line does so at his own risk. If the picket line is eventually
judged to have been lawful, then the discipline constituted an unfair labor
practice.
"See. e.g., the cases cited at n. 24, supra
1087
The issue is whether the Respondent, Chevron,
lawfully disciplined the three employees who struck
in sympathy with the employees of its maintenance
subcontractors. Chevron argues that its employees
had waived their right to strike in sympathy with
other workers and, in any event, that the picket line
they honored was unlawful. The majority overrules
the Administrative Law Judge's conclusion that the
legality of the picket line was not fully litigated, finds
that it was unlawful, and that the sympathy strikers
are not entitled to protection. I agree with Member
Truesdale that the employees had not waived the
right to sympathy strikes; however, unlike the major-
ity, I conclude that the sympathy strikers were pro-
tected and that their suspension was unlawful.
The majority, to find the picket line unlawful, relies
on a private comment by an agent of the Operating
Engineers, links the rights of the sympathy strikers to
those of the pickets rather than to the rights of the
primary strikers, and then concludes that their good
faith is irrelevant in denying them the right to strike.
Justification for that analysis as "well-settled Board
law" is sought from two earlier decisions: a 1954 deci-
sion by a divided Board and a more recent decision
by an Administrative Law Judge adopted without
comment by a Board panel.
The earlier of the two decisions, Pacific Telephone,30
involved the obligation of an employer to reinstate on
demand sympathy strikers who came and went in
rhythm with primary strikers engaged in an unpro-
tected on-again, off-again strike designed to confuse
and harass the employer. The union sought "to bring
about a condition that would be neither strike nor
work."3'
The Pacific Telephone sympathy strikers knew
about the strikers' planned tactic and for that reason
were not protected by the Act when they joined in
those tactics. However, they were not disciplined.
Only the employer's refusal to reinstate the sympathy
strikers with alacrity upon demand after successive
walkouts was attacked. The loss of work by the sym-
pathy strikers was held to be not a punishment, but
an "inevitable incident" of the hit-and-run strike. The
employer was not motivated to interfere with the
sympathy strikers' concerted refusal to work, but sim-
ply to maintain continuity in the services it provided.
That some few sympathy strikers might have been
unaware of the strike strategy was disregarded on the
grounds that they were participants in unprotected
tactics and that antiunion motivation was completely
lacking.
Pacific Telephone holds that an employer's reason-
able action to protect itself, not to punish concerted
1o Pacific Telephone and Telegraph Co. 107 NLRB 1547 (1954).
'I Id at 1549.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, is not unlawful.3 2 American Telephone,33 the
second case from which the majority seeks support,
did not rely on Pacific Telephone. The Administrative
Law Judge declined to extend the rationale of that
case and reached his decision on other grounds. The
primary strikers had violated a contract pledge not to
strike and for that reason their strike was not pro-
tected. Other employees striking in sympathy were
found to be engaged in unprotected activity when act-
ing in concert with them, and a Board panel adopted
that reasoning without comment.3
Neither Pacific Telephone nor American Telephone
supports dismissing the complaint here. The former
stands for little more than the legitimacy of a defen-
sive lockout in trying circumstances,3 5 and the latter
for the proposition that concerted activity which has
no protected objective is not protected by Section 7.
American Telephone described sympathy strikers as
"standing in the same shoes' as primary strikers."
Here the "primary strikers" were engaged in a lawful
economic strike against their Employer and are not
alleged in any way to fall outside Section 7. "Stand-
ing in the same shoes," Chevron's employees were
fully protected.
The Administrative Law Judge found that the le-
gitimacy of the picketing accompanying the strike
had not been placed adequately in issue and litigated.
Despite the fact that the sympathy strikers acted from
a "moral obligation" to honor a strike by fellow
working men, a strike which the majority's precedent
cites as the proper measure of their purpose under
Section 7, the majority elects to measure their con-
duct by the legal status of the picket line. Ultimately
the sympathy strikers' rights are held forfeit because
the representative of another union privately asked
Chevron if it "would consider getting somebody else
to do the work in place of Mr. Bragg, and save a lot
of problems all the way around." That private com-
32 When employee rights under the Act conflict with those of the em-
ployer, the employer is entitled to respond; but the response must be no
more than sufficient to a legitimate business objective. H d F Binch Co. Plant
of the Native Laces v. N. LR.B., 456 F.2d 357 (2d Cir. 1972).
"3American Telephone & Telegraph Co., 231 NLRB 556 (1977); I did not
participate in the decision and do not reach its merits here.
4 The majority states that "in American Telephone, the Board cited with
approval al clear-cut characterization of Pacific Telephone from a law review
article." The "legal note" which the majority then quotes was cited by the
Administrative Law Judge following his observation that "lliterature on the
subject assumes through a variety of esoteric phrasing... " Without arguing
whether that is "approval," it is certainly dictum following the Administra-
tive Law Judge's prior refusal to extend the Pacific Telephone rationale and
his statement that he would decide the case on other grounds. (231 NLRB at
561.)
35 Accord: American Ship Building Co. v. N.L.R.B., 380 U.S. 300. 308-309
(1965). The Court in finding a lockout lawful noted the absence of any
evidence or "finding that the employer was hostile to its employees' banning
together for collective bargaining or that the lockout was designed to disci-
pline them for doing so."
I would not, in any event, find a single remark, particularly away from
any picket line, sufficient basis to conclude that the picket line itself is unlaw-
ment is the vehicle for the loss of rights: "In view of
the clarity with which Edwards described the illegal
object of the IUOE picketing it is not necessary for us
to decide whether IUOE technically observed the cri-
teria set forth in Sailors' Union of the Pacific (Moore
Dn' Dock Company), in conducting its picketing." It
is not suggested that the sympathy strikers had any
knowledge of Edwards' comment. But even the keen-
est, outside observer would not have known anything
was amiss. A single private remark and Respondent's
hostility "to its employees' banding together" and its
right "to discipline them for doing so"37 is vindicated.
We are required to construe the Act in a way that
will not interfere with, impede, or diminish in any
way the right to strike unless it is specifically provided
for in the Act.3 8 That does not bar an employer's ac-
tion "to protect and continue his business" during a
strike,3 but its response must be no more than suffi-
cient to its legitimate objective,40 while the right to
strike is to be given a generous interpretation. 4' The
issue is the proper reconciliation of these rights. 42
The majority's interpretation of the law and facts is
less than generous to the sympathy strikers. The
strike with which they sympathized was lawful, but
the majority measures the sympathy strikers' rights
by the propriety of the picket line, contrary to their
own precedent. And the propriety of that picket line
is determined on facts of which the sympathy strikers
were ignorant. I find nothing generous in holding that
sympathy strikers strike at their peril regardless of the
protection afforded the underlying strike, their own
actions, and, indeed, the apparent legality of any
picket line. And no legal sophistication could have
saved them. For their fate turns on a private remark.
Finally, I find no substantial and legitimate busi-
ness justification sufficient to warrant the disciplinary
suspension the Respondent imposed for exercising the
right to strike.
The strike was protected.43 The sympathy strikers
did not participate in unprotected tactics.4 The sus-
pensions were not justified. "A protected activity ac-
quires a precarious status if innocent employees can
ful, regardless of the character of the comment. See, e.g., my dissent in L.G.
Electric Contractors. 154 NLRB 766 (1965). The majority misreads this state-
ment in asserting I would "disregard any admission by a union agent disclos-
ing the illegal object of such secondary picketing." I would place a statement
by a union agent in what I consider its proper perspective, along with other
evidence. The majority relies on no other evidence, and the repetitive de-
scrption of the picketing as "illegal" or "secondary" is not evidence.
" American Ship Building. supra.
!"Sec. 13.
" N.L.R. B v. MacKay Radio & Telegraph Co., 304 U.S. 333 (1938).
H & F Binch Co. v. N.L.R.B., 456 F.2d 357 (2d Cir 1972)
4 Erie Resistor Corp., 373 U.S. 221. 234-235 (1963).
2 N.L.R.B. v. Great Dane Trailers. Inc., 388 U.S. 26 (1967).
43Cf. American Telephone & Telegraph. supra
"Cf. Pacific Telephone, supra.
1088
CHEVRON U.S.A.. INC.
be discharged while engaging in it, even though the
employer acts in good faith."45
I dissent, as indicated.
MEMBER PENELLO, concurring in part and dissenting
in part:
I agree that Respondent lawfully suspended three
employees who refused to cross a picket line at its
refinery that had been erected by a union represent-
ing employees of Bragg Crane, one of Respondent's
subcontractors at the site. And I agree, for the rea-
sons given in Member Truesdale's opinion, that the
discipline was legal because the picket line which em-
ployees Tobiason, Davis, and Nieves observed was an
unlawful secondary line, and thus that they engaged
in unprotected activity by honoring it.
However, contrary to Chairman Fanning and
Member Truesdale, I would find that the three em-
ployees' failure to report to work across the picket
line established by the International Union of Oper-
ating Engineers, Local 12, on August 3, 1977, 46 was
also unprotected because the Union representing
Tobiason, Davis, and Nieves, International Brother-
hood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers & Helpers, AFL-CIO, Local No. 35 1,
has waived their right to engage in sympathy work
stoppages, regardless of whether the IUOE picket line
was lawful. This conclusion, in my opinion, is com-
pelled not only by the terms of the no-strike provision
of the 1977-79 collective-bargaining agreement be-
tween Respondent and the Boilermakers, which
Chairman Fanning and Member Truesdale correctly
found to be in force on August 3, but also by perti-
nent extrinsic evidence.
The no-strike clause at issue provided:
There shall be no cessation of work through
strikes, non-productive holidays or sit-downs on
the part of the Union; nor shall there be any
lockouts, etc., on the part of the Employer dur-
ing the period of this Agreement.
In my separate opinion in International Union of Op-
erating Engineers, Local Union 18, AFL-CIO (Davis-
McKee, Inc.),47 I articulated in detail my reasons for
concluding that such clauses, which purport to pro-
hibit all strikes, should be construed as encompassing
sympathy work stoppages, unless extrinsic evidence
indicates otherwise. I will not repeat those reasons
now. But the facts of this case demonstrate with strik-
ing force the fallacy underlying the key assumption
made by the majority in Davis-McKee, and adhered
to today, that the parties to an unrestricted no-strike
e N.LR.B. v. Burnup and Sims, Inc., 379 U.S. 21, 23 (1964).
" All dates herein are in 1977, unless otherwise indicated.
'238 NLRB 652 (1978).
agreement implicitly intend, as part of a quid pro quo,
to limit its application to work stoppages caused by
otherwise arbitrable disputes. The 1975-77 contract
between Respondent and the Boilermakers contained
the same no-strike clause, reproduced above, found in
the 1977-79 agreement. However, the 1977 79 collec-
tive-bargaining agreement was the first to include an
arbitration provision. Therefore, the 1975 77 no-
strike clause, even my colleagues must agree, was not
restricted to strikes over disputes covered b a non-
existent arbitration provision, and I see no reason for
interpreting the same no-strike language differently in
the 1977 79 agreement simply because it had an arbi-
tration procedure. These facts confirm the accuracy
of the Supreme Court's observation in Gatewaqv Coal
Company v. United Mine Workers of' .merica, 48
quoted by myself in Davis-McKee but ignored by the
majority, that, "[A]n arbitration agreement is usually
linked with a concurrent no-strike obligation, but the
two issues remain analytically distinct. Ultimately.
each depends on the intent of the contracting par-
ties." There is not a trace of evidence that the parties
intended to limit the breadth of the no-strike clause
by the addition of the arbitration provision to the
1977-79 contract.
Evaluation of relevant extrinsic evidence does not
call for any conclusion other than that the Boilermak-
ers relinquished the right of Tobiason, Davis, and
Nieves to engage in sympathy work stoppages, and
indeed provides additional strong support for it. Dur-
ing negotiations for the 1977-79 collective-bargaining
agreement, the Union sought to include in the con-
tract the following clause, which was to be inserted in
the agreement immediately following the no-strike
clause and was thus clearly intended as an exception
to it: "Notwithstanding any provision of this section
it shall not be a violation of this agreement nor cause
for discipline of any employee covered by this agree-
ment, to refuse to cross a picket line established by
any union representing employees at the represented
plants." However, Respondent refused to consent to
this modification of the no-strike prohibition, for the
reason that it could not afford the disruption in op-
erations which would allegedly be caused by it. Sub-
sequently, the union acquiesced by withdrawing its
proposal and agreeing to a contract containing the
same no-strike language as that in the preceding
agreement. 49 In my estimation, this bargaining history
persuasively shows that the parties intended the scope
4414 U.S. 368. 382 (1974).
'Against this, union Secretary-Treasurer Ronald E. Bowlin's testimony
that he was merely attempting to secure clarification of an existing nght by
demanding the insertion of the proposed provision s patentl) self-serving,
and hardly entitled to weight in the absence of evidence of mutual agreement
on this point by the parties and in the face of an express clause suggesting
otherwise.
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the no-strike clause in the 1977-79 agreement to be
the same as that in the 1975-77 contract, and further
belies any suggestion that the inclusion of an arbitra-
tion provision in the new contract was meant to limit
the breadth of the no-strike undertaking.
In any event, the clause which the union unsuccess-
fully sought to obtain in the 1977-79 agreement to
modify the no-strike pledge of its earlier contract
would not have protected the refusal of the three em-
ployees here involved to cross even a lawful IUOE
picket line on August 3. The rejected provision would
have sheltered only refusals to cross picket lines
erected by unions representing employees of Chevron
working at the plants covered by the agreement. The
IUOE, however, represented only employees of Bragg
Crane, a subcontractor of Respondent which hap-
pened to be working at the refinery on August 3. Con-
sequently, there is not the slightest basis for contend-
ing that the failure of Tobiason, Davis, and Nieves to
work across the IUOE picket line was not prohibited
by the no-strike agreement in their union's contract
with Respondent.
Therefore, I would find that Respondent did not
violate the Act by suspending three employees who
did not cross the IUOE picket line on August 3, not
only because the picket line was illegal, but also be-
cause their union had surrendered their right not to
cross even lawfully erected picket lines of other
unions.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was tried before me on April 12, 1978, in Los Angeles,
California pursuant to a complaint issued by the Regional
Director of the National Labor Relations Board for Region
31 on January 26, 1978. The complaint is based on a charge
filed on August 8, 1977.' by International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, AFL-CIO, Local No. 351 (herein called the Union
or the Boilermakers). The complaint against Chevron
U.S.A., Inc. (herein called Respondent or Chevron) alleges
that it has engaged in certain violations of Section 8(a)( 1 ) of
the Act.'
Issues
The issue in this case is whether or not Respondent vio-
lated Section 8(aXI) of the Act when it suspended three of
its employees who honored a stranger union's picket line at
Respondent's El Segundo, California, refinery. Respondent
admits it suspended the three individuals for honoring that
I Hereinafter all dates are 1977 unless otherwise noted.
' The Union's charge initially alleged violations of Sec. 8(aX3) as well as
Sec. 8(aX)1), but the complaint omits any reference to Sec. 8(aX3).
picket line but avers it had the right to do so because the
employees' acts were unprotected for two reasons: (I) the
employees' refusal to work contravened the no-strike clause
in the Boilermakers' collective-bargaining contract, and (2)
the stranger union was engaging in unlawful secondary
picketing.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I. RESPONDEN S BUSINESS
Respondent admits that at all times material it has been a
California corporation with its principal place of business in
San Francisco, California, and having an office and refinery
located in El Segundo, California, where it is engaged in the
business of manufacturing petroleum products. It further
admits that in the course and conduct of its operations it
annually sells and ships goods and services valued in excess
of $50,000 to customers located outside California. Accord-
ingly. it admits, and I find, that Respondent is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of' the Act.
II. THE LABOR ORGANIZAIION INVOI.VED
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
ill. THE ALIEGED UNFAIR ABOR PRA(CTICES
A. Background
At its El Segundo refinery, Respondent recognizes and
has collective-bargaining agreements with three different la-
bor unions. The largest is the Oil, Chemical and Atomic
Workers. AFL-CIO (herein called OCAW). which repre-
sents approximately 800 employees, all the production
workers and a large number of the maintenance employees.
The second largest is the Boilermakers which represents ap-
proximately 60 to 70 maintenance workers. The smallest is
the Independent Union of Petroleum Workers which repre-
sents 35 drivers.
Also working inside the plant are various other employ-
ers who have contracted with Respondent to perform either
new construction or to supplement the maintenance work-
ers. One of the principal maintenance contractors is Petro-
leum Maintenance Company, commonly known as
PEMCO. At the time of the incident involved herein, in late
July and early August 1977, Bragg Crane Service was also
inside the refinery preparing to perform a maintenance con-
tract.3 Bragg's employees are represented by International
Union of Operating Engineers, Local 12, AFL-CIO (herein
called IUOE), and it is a member of a multiemployer col-
lective-bargaining association, the California Trucking As-
3 Bragg has had many contracts with Respondent and has performed both
new construction and maintenance work in the past. Its vice president esti-
mated that since 1962. it has performed approximately 100 projects at the El
Segundo refinery. It is commonly in the refinery.
1090
CHEVRON U.
sociation (CTA). A labor dispute between the IUOE and
CTA which occurred in late July and early August trig-
gered the events herein.
B. The IOE Pic Akting
According to officials of the IUOE. an economic strike
was called against CTA members on July 23. On August 3
the IUOE began picketing Respondent's premises because
it was aware that Bragg was working inside the plant. It
continued to picket Bragg at Respondent's premises until
August 18 when the dispute ended. The instant case focuses
on Respondent's treatment of three of its Boilermakers who
honored the IUOE picket line on August 3.
At approximately 7:30 a.m. that day the three Boiler-
makers involved. Dale Tobiason, Harry Davis. and Albert
Nieves, all arrived at the plant. They parked their respec-
tive vehicles in an employee parking lot on the north side of
El Segundo Boulevard, which borders the north side of the
refinery. They observed IUOE pickets at the three en-
trances near their parking lot, including gate 1,. the Chevron
employee turnstile gate which they normally use. That gate
is activated by means of a keycard and only Respondent's
employees have such cards. The second gate which was
being picketed was the PEMCO gate. 2A, also a walk-
through gate which is restricted to PEMCO employees. The
third gate, 2, is a drive-through gate manned by Respon-
dent's security personnel who control access to the refinery
via a wooden barrier gate similar to that often seen at rail-
road grade crossings.'
The IUOE pickets carried, at that hour, two different
picket signs. It is not clear which signs were being used at
which gates or whether both signs could be seen at each
gate. They read:
IUOE Operating Engineers
Local 12 # 12
* On * On Strike
Strike [crossed out material]
CTA No Contract
[crossed out material]
Building Trades
Council
AFL-CIO
Later that afternoon, a third sign was added. The third
sign was similar to the first two, except that it specifically
named Bragg Crane as the primary disputant.
C. The Suspensions
Upon seeing the IUOE pickets, a large number of Re-
spondent's employees, including the three Boilermakers in-
volved herein, refused to enter the refinery to go to work.
Most of the employees involved were members of the
OCAW unit.' Each of the three Boilermakers testified that
he chose to honor the IUOE picket line because he believed
he had a "moral obligation" to do so. It is fair to conclude
from their testimony that none concerned himself with the
question of whether the picket line constituted an illegal
4 The IUOE picketed three other gates on August 3: gate 10 on Sepulveda
Boulevard, a locked gate, later opened and restricted to Bragg; gate 21 on
Rosecrans Boulevard, another turnstile for Chevron's walk-in employees:
and gate 22, also on Rosecrans, a drive-through gate similar to gate 2.
The OCAW members' refusal to work that morning and Respondent's
subsequent discipline of them is not before the Board in this case.
1091
secondary boycott or whether he might be breaching the
no-strike clause of the recently ratified collective-bargaining
agreement between Respondent and the Boilermakers.
Nieves remained outside the refinery until noon swhen he
noticed the pickets had left gate . He then entered in order
to go to work. Respondent, acting through its general fore-
man. Stanford J. Mullins, and its major projects and plan-
ning superintendent, Harry R. "Bob" Anderson. and in the
presence of Union Secretary-Treasurer Ronald E. Bowlin
suspended Nieves the same amount of time that he had
honored the picket line, i.e., half a day.
On the following day. Tobiason and Davis both reported
tbr work at 7:30 a.m., crossing the IOE picket line to do
so. They, too, were suspended in the same manner tor the
amount of time they had honored the line. I da).
In each instance, the operative language of their order of
suspension was:
Employee failed to report to work on 8 3 77' because
of an illegal picket line at the turnstile gate. This action
constituted a violation of his union contract with the
company. This picket line was not designated against
the company but against Bragg Crane & Rigging.
D. Recent Bargaining History
Respondent and the Union have had a collective-bar-
gaining relationship for many years. Previous contracts.
though the record does not show how mans. have con-
tained the identical no-strike clause found in both the 1975
77 and the 1977 79 agreements. That clause reads:
There shall be no cessation of work through strikes.
non-productive holidays, slow-downs or sit-downs on
the part of the Union: nor shall there be an5 lockouts.
etc., on the part of the Employer during the period of
this Agreement.
The record shows, however, that during the 1977 negotia-
tions the Union attempted, but failed, to modify this lan-
guage.
In January 1977. when OCAW called an economic strike
and picketed the refinery, the Boilermakers. for a da or
two, honored the OCAW picket line. However. after Re-
spondent's officials threatened a lawsuit for breaching the
no-strike clause. Boilermaker Secretary-Treasurer Ronald
E. Bowlin ordered his membership back to work and. on
Janaury II, notified Respondent by letter that it was doing
so: simultaneously he said the Boilermakers Union did not
accept "responsibility" for the individual actions of its
members for honoring "the OCAW picket line due to their
personal beliefs."
Upset by Respondent's threatened lawsuit, the Union, in
its negotiation of the 1977-79 contract, proposed to modil\
the no-strike clause by adding another paragraph giving
employees the right to refuse to cross a picket line estab-
6 Tobiason's slip shows a date of 8 4 77." but that appears to he a cleri-
cal error
' In the occasional strikes by Respondent's OCAW employees since 1948,
Respondent does not appear to have attempted to enlforce the no-sirike
clause in the same manner it did in Januars 1977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lished by any union representing Chevron employees.' Re-
spondent rejected it out of hand. The Union continued to
make that proposal for several meetings, but, along with
several other proposals, withdrew it prior to July 28, when a
new agreement was reached.
None of the contracts prior to the 1977-79 agreement
contained the normally seen quid pro quo for such a no-
strike clause, an arbitration clause.9 However, the new con-
tract for the first time contains such a clause.
With regard to the machanics of instituting the successor
1977 79 agreement, the undisputed evidence shows that the
1975-77 contract expired on May 1. It had been opened for
negotiation by both parties in February. In April, the par-
ties orally agreed to extend it to June 1. There was no fur-
ther extension, but no strike occurred and the parties con-
tinued to operate under the terms of the old agreement and
also continued to negotiate for a new one.
On July 28, a new contract was reached between the par-
ties and on July 29 it was ratified by the Boilermakers mem-
bership. As noted, the IUOE picketing began 5 days later
on August 3. The new Boilermakers contract had not then
been signed, which raises the question of whether or not
Respondent and the Union actually had an agreement con-
taining a no-strike clause as of the date when the three
Boilermakers honored the IUOE picket line.
With regard to that issue, Section 2 of the 1977-79 agree-
ment states that the contract "shall be in full effect from the
date of execution hereof to May , 1979."'° It appears from
the signature clause of the agreement that the parties actu-
ally executed the new contract by signing it on October 10.
Despite the July-October hiatus between ratification and
execution, the parties began implementing some of its pro-
visions. Respondent immediately began paying wages in ac-
cordance with the new terms (including wage payments re-
troactive to January 8); it utilized, with the Union's tacit
approval, composite crews which previously had been pro-
hibited;" it honored newly signed dues checkoff authoriza-
tions in August, replacing those which the parties believed
had expired; and Respondent's employee relations man-
ager, Kenneth J. Collings, testified without contradiction
that changes in the fringe benefit plans became effective on
October I.
E. Additional Facts Relating to the IUOE's Picketing
On August 1, according to Raymond Burrows, Respon-
dent's general foreman for the No. 2 Maintenance District
' The actual proposal was to add the following paragraph to the no-strike
clause:
B. Notwithstanding any provision of this section, it shall not be a
violation of this agreement nor cause for discipline of any employee
covered by this agreement, to refuse to cross a picket line established by
any union representing employees at the represented plants.
'E.g., Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235
(1970); Gateway Coal Co. v. United Mine Workers, 414 U.S. 368 at 382
(1974); Gary-Hobart Water Corp. v. N.L.R.B., 511 F.2d 284 at 287 (7th Cir.
1975), cert denied 423 U.S. 925.
10 This language, except for an appropriate change in the expiration date,
also appeared in the 1975-77 contract.
n Permitting Respondent to assign Boilermakers to work with crews com-
posed of the employees of maintenance contractors.
and its official assigned to oversee Bragg Crane, IUOE Dis-
trict Representative Ewell Edwards telephoned him. Dur-
ing the telephone conversation Edwards asked Burrows if
Bragg was working in the refinery. When Burrows replied
affirmatively that Bragg Crane had equipment in the plant
and was going to work on a "crude shutdown," Edwards
asked him if he was aware that Bragg was having a labor
dispute. Burrows replied he knew about it because George
Bragg and another Bragg official had mentioned it, but had
said they were going to utilize supervisory help. At that
point, according to Burrows, Edwards told him that he
should "get that equipment out of the yard; get Bragg
Crane out of the yard." Burrows replied he did not have the
authority; that he would have to discuss it with his superi-
ors before a decision like that could be made. Edwards was
not asked about the alleged telephone call described by
Burrows but readily admitted having a meeting with Bur-
rows on August 2.
During that meeting, Edwards says he does not recall
telling Burrows he wanted Bragg's equipment out of the
refinery but did ask Burrows if he would consider getting
someone else to do the work in place of Bragg in order to
save a lot of problems all the way around. He also said if
Respondent had gotten "somebody that didn't belong to
the CTA, this very probably wouldn't have happened
been a picket line imposed." Edwards also admitted that he
did not ask Burrows which gate Bragg was using.
Burrows reports that during the conversation Edwards
asked him if he was doing anything to get Bragg out of the
yard. When Burrows replied he was not, Edwards said
there could be some action taken if Respondent continued
this course. However, Burrows also said Edwards did not
mention anything about pickets. The meeting then ended.
Burrows reported the meeting to his superior, Bob An-
derson, who issued instructions to move Bragg's entry point
from Gate 2, the truck gate, to gate 10. Gate 10 is located in
the northeast portion of Respondent's property and opens
on Sepulveda Boulevard. It is approximately three quarters
of a mile from gate 2. This was accomplished by directives
to the security guards.
In the meantime, another IUOE official, Melvin Lane, a
field representative, had learned that Bragg was utilizing
gate 2. In fact, he spoke to a guard at that gate who permit-
ted him to look at the entry log for that day. Lane observed
the log showed a number of Bragg employees had entered
through gate 2. Moreover, from that gate he could observe
the Bragg Crane equipment in the yard. Discriminatee
Nieves testified he was supposed to work on the No. 2
Crude Unit shutdown and that the work area was located
approximately 50 yards from gate 1, the turnstile gate for
Respondent's employees. Gate 2 is the nearest truck access
to that location and gates I and 2A are the nearest walk-in
accesses to it.
On August 3, one of Respondent's attorneys wrote the
IUOE advising that Bragg's entries had been limited to gate
10 and demanded that the pickets be moved. The letter was
hand-delivered that day but did not come to Edwards' at-
tention until the following morning. Upon receiving it he
directed Lane to move all the pickets to gate 10; that was
accomplished sometime in the late forenoon on August 4.
1092
C(HEVRON L.S.A.. IN(C
IN. ANAl YSIS ',NI) (N( It SI)NS
A. The (ontral Del/en.e
The contentions relating to the applicability of the con-
tract will be dealt with first. The General ('ounsel contends
that on August 3 no contract was in effect because by its
terms it was not to be effective until "executed," i.e.. signed
by the parties. Since that did not occur until October 10, his
argument has facial appeal.
Respondent counters noting that on July 28 the parties
had reached a full agreement on a new contract and that
bargaining unit members even ratified it on July 29. On the
following day Respondent, with the knowledge of Union
Secretary-Treasurer Bowlin. for the first time began assign-
ing unit members to work in crews composed of both Re-
spondent's employees and employees of independent con-
tractors, as contemplated in the new contract. Respondent
also began paying the new wage rate (including the newls-
negotiated retroactive payment covering work performed
since January 1977).
In addition. the Union began soliciting new dues deduc-
tion authorizations from employees to replace those which
were believed to have expired with the old contract. The
Union submitted these to Respondent beginning in August
and Respondent immediately honored them. Finally, ac-
cording to Collings' undenied testimony, Respondent began
paying new rates on fringe benefit plans on October . All
of this, urges Respondent, conclusively shows that the par-
ties, from July 29 on, believed and acted as if they had a
contract. That, it is argued, demonstrates the contract was
in effect as of July 29, not October 10. I also note that the
1975-77 contract contained identical language, making it.
too, effective on the date of its execution. That language
was simply carried forth to the 1977-79 agreement.
In view of the fact that the "execution" clause of the
contract was simply carried over from the previous con-
tract, apparently without comment, and the fact that the
parties, as of July 29, began operating under the new agree-
ment, I must conclude that execution was intended simply
to be a ministerial act, not a condition of the agreement.
Accordingly, I find that as of July 29, 1977, Respondent
and the Union had entered into a valid, oral, collective-
bargaining contract, later reduced to writing. nited Steel-
workers of America v. CCI Corporation, 395 F.2d 529 (10th
Cir. 1968), cert. denied 393 U.S. 1019: Colonial Sand &
Stone Co., Inc. v. Geoghegan. 367 F.Supp 932 (D.C.N.Y.
1973); Kelly-Nelson Const. Co. v. Laborers Local 107, 80
LRRM 2334, 68 LC 12, 574 (1972). Although the cited
decisions are based in contract law, they are not inconsis-
tent with the Board's view. Mineweld Company, Div. of
Rasco, Inc., 127 NLRB 1616. 1617 18 (1960). Eklund's Swe-
den House Inn, Inc., 203 NLRB 413 at 418 (1973); and
Marquis Elevator Company, Inc. 217 NLRB 461 (1975).
Having concluded that on August 3 the contract was in
effect, the next question is whether or not the no-strike
clause contained therein is applicanle to the instant dispute.
I conclude that it is.
We begin, of course, with the premise that Section 7 of
the Act gives employees the right to make common cause
with employees who are on strike. If an employee does so.
the Board has generally considered him to be engaged in
protected concerted activit . N L. R. B. . Peter (iller x'oh-
hir Swi.s Chocolates (ompanv Inc., 130 }-.2d 503 (2d ('ir.
1942) (opinion of L. Hand, C.J.): N.L.R.B. v. Soulchern
Greyhound lintsc, Division of' Greilholulnd Lir.es. Inc.. 426
F.2d 1299. 1301 5th ('ir. 1970); WHa.h/inrton Stte.' Se'rvice
Etnpi/wve Slate ('ouncil ANo. /8. and Local 6, Serilice Em-
plovets , Union ec. (Jill Severn An tndividualL) 188 NI.RB
957 (1971).12
Assuming. as I must, that the Board's view is correct.
nonetheless the right to engage in strikes. smpath% or oth-
erwise. may be waived bh contract. N.L.R. B. . Rc(Aaw( a
Nes'vs Supply (Compatny Inc.. 345 U.S. 71 (1952). Beciiuse it is
a statutory right, the Board is reluctant to find such ai ers
absent a clear and unmistakable intention to do so. Ga(n-
Hobart atiler C(orp., 210 NLRB 742. entfd. 51 1 F.2d 284
(7th Cir. 1975). cert. denied 423 U.S. 925: c. MlIatri Plas-
tics Corp. and French-Ame rican Reedts MAfg. Co., Ic X.
N.L.R.B., 350 U.S. 270 at 283 4 (1956); the Tiliknc' Roller
Bearinlg Co. v. N.L.R.B., 325 F.2d 746 (6th Cir. 1963). The
question to be answered, therefore, is whether the eidence
here shows such an intention. In answering this question I
have looked both to the language of the clause itself and the
background evidence presented. My conclusions are princi-
pal5 bottomed on the clause itself, as the background evi-
dence is less than clear, though it does lean in favor of
finding an intent to waive the right to engage in a smpath,
strike such as the one involved here. The operative lan-
guage of Section 22 of the contract is: "There shall be no
cessation of work through strikes, non-productive holidaNs.
slow-dow ns or sit-downs on the part of the Union: . .. [no-
lockout provision.]"
I find this language to be extremely broad and not lim-
ited simply to strikes called by the Boilermakers leadership
or even strikes by other unions representing Respondent's
employees. It is directed at all "cessation of work" and lists
strikes as one of the prohibited activities. I do not believe
the list of prohibited activities to be a limitation on that
prohibition. Rather, it is a list of examples. Moreover, when
the language was drafted there was no arbitration clause.
That, it seems to me, is evidence that in the economic give
and take of bargaining. Respondent obtained the lnion's
acquiescence in abandoning the right to engage in con-
certed work stoppages. It was not intended simply to avoid
strikes over contract disputes by routing them to arbitra-
tion. There may well have been a trade-off here, but it was
not the trade-off of arbitration.' If that was not the parties'
intent, then the only way the clause makes bargaining sense
is to promote labor peace by the total abandonment of the
right to strike.
12 But see Redwing Carriers. 137 NLRB 1545. Several circuit courts otf
appeal have disagreed with the Board that sympathy strikes are protected
,VL.R B v. William S Carroll, Inc. 578 F.2d (s Cir 19781 and cases
cited therein. The First Circuit has drawn a distinction between smpath%
strikes against a common employer and those against a stranger employer It
recently said a sympathy stnke "is of considerably less importance under the
Act" if the primary strike is conducted by a stranger emploer than one
engaged n bhy fellow emploees against a common employer L R.B
C K. Smith d Co.. Inc, 569 F.2d 162 at 167. fn. 2 (ist Cir. 19771 That view
is undoubtedly contrary to the Board's
11 Ist s true that an arbitration clause was added to the 1977 79 agreement
but the record is silent regarding its connection to the no-strike clause Ihal
being so. I am reluctant to ascribe any himilation to the clause which did not
exist in previous contracts.
I 093
I)I(CISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
In any event, the no-strike language utilized by the par-
ties is markedly similar to that which the Supreme Court
used as the decisional rationale in Ror kava ' News, spra, at
79: "No stikes. lockouts or other cessation of work or inter-
ference therewith shall be ordered or sanctioned by any
party hereto during the term hereof." Here, too, the lan-
guage is broad and is directed at all strikes, not just those
against the employer.'4 In R/awac, of course, the em-
ployee involved was discharged for honoring a stranger
union's picket line at another employer's premises where he
was to make a delivery. In the instant case, the stranger
union was picketing a common situs. a difference of no
significance in analyzing the applicability of the no-strike
clause.
Another case, with a similar conclusion, is Alliance
Manufialure Co. In(c.. 200 NLRB 697 (1972). There the no-
strike clauses said: "lilt is agreed that there shall be no
work stoppages, walk-outs, or slowdowns . . .. [T]his agree-
ment has been written to eliminate lock-out, strikes, slow-
downs, and work stoppages of all kinds." and referred all
disputes to the grievance-arbitration procedures." This lan-
guage clearly barred the sympathy strike involved in that
case and the Board so found. I find the language of the
instant case to be an equally clear prohibition against sym-
pathy strikes. Compare The Hearst Corporation. News
American Division, 161 NLRB 1405 (1966), affd. sub on.
News Union of Baltimore v. N.L.R.B, 393 F.2d 673 (D.C.
Cir. 1968): cf. American Telephone & Telegraph Co.. 231
NLRB 556 (1977).
As I have noted, supra, the background evidence relating
to the purpose of the clause is mixed and not truly defini-
tive. Indeed, I am not convinced it is necessary to this deci-
sion. Nonetheless, because the Board and the courts have
commonly found it necessary to go beyond the contract to
determine its intent, I shall examine that background evi-
dence.
Prior to January 1977, Respondent's premises had been
picketed principally by its own employees during their eco-
nomic strikes. Respondent had not disciplined employees in
other bargaining units who honored the striking unit's
picket line, even though a no-strike clause may have been in
the sympathy striker's contract. In 1977 this changed when
4"The Court in Rockaway remarked that if the no-strike language was
ambiguous, an offer of proof relating to the intent of the parties during
negotiations had been made offering to show that a union proposal giving
employees the right to cross any union's picket line had been rejected, and
the Union thereby acquiesced in the interpretation that such a right did not
exist under the no-strike clause. The Court's discussion of the offer of proof
is clearly dictum and was only used to buttress its conclusion that the no-
strike language was clear. I am aware that the Board, in Keller-Crescent
Company a Division of Mosler, 217 NLRB 685, 691 (1975), appears to dis-
agree that the reference to the bargaining history is dictum. I. however, have
difficulty in believing that the Court accepted the offer of proof as substan-
tive evidence; its actual decision was based on the language of the clause
itself, which it necessarily deemed clear, and its reference to the offer of proof
merely added editorial support for its conclusion. The Board, in any event,
impliedly agreed with the Court. in Keller-Crescent at 691., that the Rock-
away no-strike clause was broad enough to prohibit the honoring of a stran-
ger union's picket line.
i5 In analyzing the no-strike clause in Alliance. the Administrative Law
Judge observed it was unnecessary to refer to the grievance-arbitration
clause for guidance as to its scope. Thus, the case is apposite even though the
contract there contained both no-strike and grievance-arbitration clauses.
Respondent threatened the Union with a lawsuit for
breaching the no-strike clause of its contract during the
OCAW strike. The Union capitulated to the demand and
ordered its members to return to work. It did not, however.
agree with Respondent's interpretation of the clause. There-
after, the Union attempted to clarify its supposed right to
engage in a sympathy strike by proposing a "picket line"
clause in the new agreement, but failed to obtain it.
First. I do not regard Respondent's failure in the past to
take a hard line against sympathy strikes by one group of
its employees in support of another group, as significant
evidence of the clause's reach. It may have been a case of
"benign neglect" or simply a question of priorities. More-
over, the OCAW's strikes were infrequent, 1948, 1969.
1975. and 1977. and their duration is not shown. And, in
1975 and 1977 some Boilermakers did not honor the
OCAW line while some did. Respondent may not have dis-
ciplined those sympathy strikers simply because their ab-
sences had no adverse impact upon its operation. Whatever
the reasons were, the instant record is silent about them.
Nor can I regard the Union's 1977 decision to tell em-
ployees to cross the OCAW line as an agreement with Re-
spondent's current position. The Union may simply have
wished to avoid the expenditure of monies defending a law-
suit. Again, the record is silent. Thus, that decision is not
evidence relating to the intent of the clause either.
The Union's 1977 failure to obtain a picket line clause is
more persuasive. If it believed the current clause gave it the
right to honor the picket lines established by other Chevron
employees, it wouldn't have needed to ask for a picket line
clause. But it did so; that tends to support Respondent's
position. Again, the Union may simply have wished to clar-
ify' an existing right, and thus that argument is not definitive
either.
However, in looking at the proposed picket line clause, it
is clearly directed at protecting Boilermakers who honored
the picket lines of other Chevron employees. It cannot be
said to be directed at a stranger union's picket line such as
the IUOE's strike against Bragg. That being so, it appears
to me that the Union never intended to clarify that right.
undoubtedly because that right didn't exist under the exist-
ing clause. Moreover, it appears that stranger unions have
picketed the refinery in the past, e.g.. the following of struck
employers' trucks. The Union must have been aware of the
possibility that a stranger union might appear at the refin-
ery to picket either a construction or maintenance contrac-
tor. Even so, its proposal was to assist only fellow Chevron
employees, not stranger employees. It seems likely to me,
therefore, that the existing no-strike clause prohibited the
Boilermakers from honoring a stranger union's picket line,
though I must concede that even this analysis is not without
some doubt. As I have said, although the background evi-
dence tends to support my analysis of the clause, it does not
itself definitively prove the clause's purpose. Looking at the
clause and the background together, however, I am per-
suaded that the clause was at least intended to prohibit
Boilermakers from honoring stranger unions' picket lines.
The General Counsel makes one other argument regard-
ing the no-strike clause. If, he says, I find that clause broad
enough to prohibit sympathy strikes in support of stranger
unions, as I have, the clause's use of the phrase "on the part
1094
CHEVRON
of the Union" rstricts its meaning to the Union as an insti-
tutional entity. In support of that argument he cites Kellogg
Company. 189 NLRB 948 (1971), enfd. 457 F.2d 519 (6th
Cir. 1972).
I find that case to be distinguishable. The collective-bar-
gaining contract there had both a no-strike, no-lockout
clause and a separate no-sympathy strike clause. The no-
strike clause referred both to the Union and its members.
The no-sympathy strike clause omitted the reference to the
union's members. Indeed, it even used the phrase "no sym-
pathy strike shall be caused or sanctioned by the Union ....
[Emphasis supplied.]" That language clearly drew a distinc-
tion between the two kinds of strikes and the rules to be
applied to them. In one case the prohibition covered both;
in the other it covered only the union as an institution.
The instant contract does no such thing. All it does is use
the word "Union" to describe the bargaining unit member-
ship. That usage is, in my experience, commonly used
shorthand: I shall recognize it as such.1'
I find, therefore, that the no-strike clause in the contract
was intended to prohibit sympathy strikes in support of
stranger unions by the members of the bargaining unit rep-
resented by the Boilermakers. In view of the fact that
Tobiason, Davis, and Nieves breached that no-strike
pledge, I am unable to find Respondent's discipline of them
to be unlawful.
B. The 8(h)(4)(B) Dcfl'nse
The next question raised by Respondent's defense is
whether the IUOE's picket line was unlawful under Section
8(b)(4XB). Ifso, did those Boilermakers who honored it lose
the protection of the Act? I conclude that the evidence is
insufficient to answer the first question and accordingly de-
cline to answer the second.
As I have observed previously, the refinery was a com-
mon situs occupied by Respondent and several independent
contractors. One of the contractors was Bragg Crane. who
was scheduled to perform certain maintenance work, the
No. 2 Crude Unit shutdown.
The legality of common situs picketing is commonly de-
termined by the Moore Dry Dock rules." These rules are
not to be applied mechanically but are evidentiary aids in
'* My recognition of this meaning is not based only upon my expenence.
The record implies that the Union is small; it has no permanent office (see
Tobiason's testimony). The Union's chief executive officer. Bowlin, is a full-
time Chevron employee and it is probable that the Union's membership
consists solely of Chevron employees, though that is not clear. In that situ-
ation. the meaning of the word "Union," capitalized or not, is most likely to
include the unit membership as well as its elected hierarchy.
The General Counsel's further argument that since the word "employees"
is used in other portions of the contract but not here, the word "Union" does
not mean "employees" is not convincing True, such an analysis was made in
Kellogg, but in that case the two clauses were found in the same article, XI.
and were intertwined with each other to such an extent as to cover one
general subject, strikes, and set forth special rules regarding different sorts of
strikes. No such interconnection can be found here, and resort to language
outside the no-strike clause to determine its meaning stretches the analysis
beyond its legitimate scope.
I1 Sailors' Union of he Pacific AFL (Moore Drr Dock Compan, 92 NLRB
547, 549 (1950)
International Brotherhood of Electrical Workers, Local Union 861 and
Arneth Lard. its agent (Plauche Electric, Inc), 135 NLRB 250, 255 (1962).
.S.A. INC. 1095
determining the presumptive legality or illegalit, of the
picket line.' Under that case, common situs picketing will
be presumed to be lawful and primary if it meets the follow-
ing conditions: "(a) the picketing is strictly limited to the
times when the situs of dispute is located on the secondar\
employer's premises: (b) at the time of the picketing the
primary employer is engaged in its normal business at the
situs; (c) the picketing is limited to places reasonabl close
to the location of the silus, and (d) the picketing discloses
clearly that the dispute is with the primary employer."
Respondent argues that the IUOE failed to adhere to
rules (c) and (d) above; it also argues that the IUOE's sec-
ondary object is shown by the pre-picketing conversations
between its district representative, Edwards, and Respon-
dent's Burrows. Whatever the IUOE's literal compliance
with the Moore Dry Dock rules may be, there appears to be
a glaring gap in the evidence relating to this deftense. That
has occurred because the IUOE is not a party litigant in
this action.
In view of the fact that Respondent has recently been
found to be an "ally" of maintenance contractor PEMCO
at this refinery (see Oil. (Chenlical and -lAtonuic ',rAer.s In-
ternational Union, .4Fl. (10. )Local I 12 (Petroleum
Maintenance Companr). 223 NI.RB 757 (1976)). and since
Bragg is also a maintenance contractor, it would not have
been unreasonable. absent contrary evidence, for the 11.OE
to have hypothesized that Respondent and Bragg were also
allies. Moreover. absent contrary evidence. since mainte-
nance work is fungible at these refineries,' it would not
have been unreasonable lor the IUOE to have believed that
maintenance workers of other companies would be assigned
to the situs to work with the primary disputant's employees
(as Nieves in fact was). In either event, the IUOF would be
privileged to picket as it did. for Respondent would have
been Bragg's ally and PEM('O would simply he inciden-
tally enmeshed in the dispute. though the possibility that
PEM('O was also an ally for engaging in struck work can-
not be discounted.
I recognize that my observations here border on the
speculative. for there is no record evidence tending to show
whether or not an ally relationship exists between Respon-
dent and Bragg or even if the IUOE ever went through the
above thought processes. No testimony was taken regarding
Respondent's control over Bragg's employees. nor was the
business contract between them introduced in evidence.
Since there is a reasonable probability that Respondent's
control over regularly-used maintenance contractors such
as Bragg would be the same as that exercised over PEMCO.
however. I do not think my observations are totally specu-
lative.
This is particularly so where no party to this action has
any interest in protecting the IUOE which is a necessary
party insofar as this defense is concerned. See Mloore' s
Manual. Sec. 13.08.) Certainly Respondent had no interest
I1 Plauche Electric, upra, N I R B. Northern (l,frnil District- (' micd
of Hod Carriers, and Common Laborers of A meriall. 4 FI ('10, ('mnr'rlon
and General Laborers U'nion l.ocal ¥o1 185, 4 Fl ('10 39 F 2d 721 72S (9th
Cir. 1968).
2o Oil, Chemical A tomic WorAers International t ,o.n, 4 Fl ('10 es -
ern Industrial Maintenance, Inc,), 213 NLRB 527 1974): Petrolcum Vaotn"-
nance Compan, supra
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in representing the IUOE's interests, and the General
Counsel took no interest either, simply concentrating on his
prima facie case and discounting Respondent's defenses as
inadequate in law.
All of this leads me to observe in conclusion that the
IUOE may have a good defense to its conduct, but since it
is not a party, that defense has not been raised before me. It
is fair to say, therefore, that the issue has not been fully
litigated. That being the case, I will not conclude that the
IUOE's picketing was illegal despite its apparent failure to
adhere to the common situs picketing rules.'
Respondent also argues that the sympathy strikers, on
the morning of August 3, when the signs' defects had not
yet been cured, nonetheless should have concluded that
something might be wrong, and they should have inquired
about the signs' legality. It is true that these sympathy strik-
ers made no effort to find out what the dispute was: they
simply decided they had a "moral obligation" to honor it.
While I am not enamored of this attitude here (particularly
where their contract governs their conduct), it seems to me
that the facts here are sufficiently awash to leave that ques-
tion to be answered another day.
Accordingly, with regard to Respondent's Section
8(b)(4)(B) defense, I conclude that the evidence, due to the
unlitigated matters discussed herein is not sufficiently an-
chored and legal conclusions with regard to it should not
now be drawn. In any event, I have sustained Respondent's
"no-strike" clause defense and have decided the case in that
manner.
Having concluded that the three Boilermakers breached
the no-strike clause in their collective-bargaining contract
21 Even if Respondent cannot be conjectured to be Bragg's ally, the
IUOE's picketing may have sufficiently complied with rule (d), the require-
ment that the primary disputant be clearly identified On the morning of
August 3 one of its signs identified the primary disputant by referring to the
employer association to which it belonged only by the initials "CTA." Al-
though there is no showing that the meaning of the initials is commonly
known to Respondent's employees and the other sign omitted even that
reference and failed to identify any primary disputant, later that day, the
IUOE corrected these deficiencies by placing Bragg's name on other picket
signs. Keeping in mind the fact that the Moore Dry Dock rules are evidentia-
ry aids to determine the objective of the picketing, and that the Board must
be realistic in their application (International Union of Operating Engineers,
Local 675 (Industrial ('ontracting Co.). 192 NLRB 1188 (1971), International
Union of Operating Engineers. Local Union No. 450 (Linbeck Construction
Corporation). 219 NLRB 997 (1975): United Brotherhood of Carpenters and
Joiners of America. Local No. 1245, AFL-CIO (Nes Mexico Properties. Inc i.
229 NLRB 236 (1977)), I would find this momentary departure from Moore
Dry Dock insufficient to justify the conclusion that the IUOE picket line was
illegal. Certainly the lUOE's willingness on August 4 to move to the reserve
gate tends to show that it wished to picket in a lawful manner.
Even an examination of the conversations between Edwards and Burrows
does not conclusively prove the IUOE had an illegal object. It is true that
Edwards told Burrows "to get Bragg out of the yard" in order to avoid
difficulties. But allowing for the previously unanswered questions regarding
these employers' "ally" status. there is still room to find the object to have
with Respondent, I find their conduct to have been unpro-
tected. I shall, therefore, recommend that the complaint be
dismissed.
Upon the foregoing findings of' fact, and upon the entire
record in this case. I hereby make the following:
CON(ILUSIONS Ot LAW
I. Respondent, Chevron U.S.A.. Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of' the Act.
2. International Brotherhood of Boilermakers, Iron
Shipbuilders. Blacksmiths, Forgers & Helpers, AFI.-CIO.
Local No. 351 is a labor organization within the meaning of'
Section 2(5) of the Act.
3. Respondent has not engaged in any violations of Sec-
tion 8(a)( 1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section IOc) of the Act, I hereby issue
the fllowing recommended:
ORIDER 21
The complaint is dismissed in its entirety
been lawful. I indeed. Respondent was Bragg's all. Edward,' tatremrint
could he interpreted not as a threat to expand he dispute, but as an effort to
limit its scope.
Whatever interpretation may he placed on the conversatin. and whatever
effect it has on determining the lawfulness of the picket line., i would. no
doubt, he unreasonable to deprive the three Boilermakers of their employee
status because of consequences flowing from it. A picket line may fully con-
form to the Moore Dry Dock rules. but nevertheless be unlawful because the
true object is shown from other evidence. Internaional Brotherhood of Eler-
trical Workers,. Local Lnion No.o II. e al .4FL CIO: Carpeners Union Local
71). and Punbhers and Steam/itters Local 494 (L G Electric Contractors,
Ina ). 1S4 Nl.RB 766 (1965). An employee who wished to engage n a lawvful
sympathy strike would be trapped in the event such a picket line turned out
to be unlawful because of evidence of which he could not possibly be aware
That, it appears to me, would be a most unjust result. But cf. Pacific Tele-
phone and Telegraph ('rmpanli. 107 N LRB 1547 (1954)1. where the sympathy
strikers had reason to know the primary strike was unprotected, but the
Board said their conduct was unprotected even if they were "unwitting"
participants. At 1552.
22 The General ('ounsel's list argument, that Respondent gave shifting rea-
sons for the discipline, and that is evidence of unlawful motive, is misplaced.
First, Respondent did not shift its reasons Its officials' oral use of the phrase
"illegal strike" is a lay expression encompassing breaches of contract as well
as law. It is therefore consistent with the reasons put in writing. Moreover.
that kind of analysis is best applied to motive cases. not those where the
alleged unlawful conduct is believed to he inherently destructive of Sec. 7
nghts.
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions and Order, and all objections thereto shall be deemed
waived for all purposes.
1096