Engelhard Corp.

National Labor Relations Board - Board Decisions

Jun 18, 2004

342 N.L.R.B. 46 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 5
46
Engelhard Corporation and Local 1430, International
Brotherhood of Electrical Workers, AFL–CIO,
Petitioner. Cases 2–CA–32909 and 2–CA–33080
June 18, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On April 27, 2001, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified.2
Introduction
This case concerns the interpretation of a no-strike/no-
lockout clause in a collective-bargaining agreement. Re-
lying on its interpretation of that clause, the Respondent
suspended 38 employees because they picketed its share-
holders’ meeting (over 70 miles from the facility where
the employees worked). For the reasons set forth below,
we agree with the judge that the employees did not con-
travene the no-strike/no-lockout provision when they
engaged in the picketing. We conclude, therefore, that
the Respondent’s suspension of the employees violated
Section 8(a)(3) and (1). We further agree with the judge
that the Respondent violated Section 8(a)(1) when it pub-
lished two letters in the plant that threatened the employ-
ees with discipline and discharge for engaging in picket-
ing, and when it videotaped the picketing employees.3

1 There are no exceptions to the judge’s dismissal of the complaint
allegations that the Respondent violated Sec. 8(a)(1) by threatening to
move its facility if the Union sought a 6-percent wage increase in up-
coming negotiations, and that the Respondent violated Sec. 8(a)(3) and
(1) by denying employee Karen Nembhard an excused absence for
attending a shop steward training.
2 We shall substitute a new notice in accordance with Ishikawa Gas-
ket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004) and Ferguson Electric Co., 335 NLRB 142 (2001).
3 The Respondent argues that Sec. 10(b) of the Act precluded the
amended charge of surveillance. The judge, citing Nickles Bakery of
Indiana, 296 NLRB 927 (1989), rejected this argument on the grounds
that the allegation shared the same legal theory, arose from the same
factual circumstances and sequence of events, and involved the same
defenses as the allegation that the Respondent violated Sec. 8(a)(1)
when it threatened to discipline employees if they participated in the
authorized picketing. We agree with the judge.
Factual Background
The facts, as more fully set forth in the judge’s deci-
sion, are not disputed. The Respondent and the Union
signed a collective-bargaining agreement (CBA or bar-
gaining agreement) that contained the following no-
strike/no-lockout clause (art. 28):

The Employer and the Union declare it to be their in-
tention to prevent any suspension of work due to labor
disputes during the term of this Agreement. To carry
out this intention, the Employer agrees that there shall
be no lockout of any of its Employees or discrimination
against them because they have raised a dispute or
grievance. The Union agrees that it will not call, par-
ticipate in, or sanction, during the term of this Agree-
ment, any strike, boycott, picketing, work-stoppage or
slow-down whatsoever. The Union further agrees that
any Employee engaging in an unauthorized strike, boy-
cott, picketing, organized work slowdown or stoppage,
or any other type of interference with the Employer’s
business, shall be subject to immediate discharge at the
discretion of the Employer with no recourse to the
grievance procedure contained herein.

However, the Employer agrees it will not hold the Un-
ion responsible for damages resulting from any such
unauthorized action if the Union takes immediate ac-
tion to advise all Employees that such unauthorized ac-
tion is unauthorized and that Employees participating
will be subject to discipline, up to and including dis-
charge.

The bargaining agreement was due to expire on June
30, 2000.4 The Respondent and the Union held negotia-
tions on March 8, 21, and 27, but stopped without setting
a new date for further negotiations. The Union wanted
the Respondent to return to the bargaining table. To put
pressure on the Respondent to give the Union a date for
resumption of negotiations, the Union decided to picket
the Respondent’s May 4 shareholders’ meeting at a hotel
in Woodbridge, New Jersey, over 70 miles from the Re-
spondent’s plant in Peekskill, New York.
On April 28, the Union called the Respondent to pro-
vide notice of its plans to picket the shareholders’ meet-
ing. The Respondent advised the Union that, in its view,
the proposed picketing violated the no-strike/no-lockout
clause. The Union replied that article 28 did not apply to
peaceful informational picketing of a shareholders’ meet-
ing, but applied only to concerted activity that results in a
work stoppage, which was not what the Union planned.

4 All dates hereafter are in 2000 unless noted otherwise.
ENGELHARD CORP. 47
The same day, the Respondent sent a letter (the “April
28 letter”) to the Union that expressed the Respondent’s
position that the planned picketing violated the contrac-
tual no-strike/no-lockout clause. It also warned that any
employee who engaged in picketing would be subject to
immediate discharge. The Respondent posted the letter
in the plant.
On May 4, about 50 of the Respondent’s employees,
together with 15–20 individuals not employed by the
Respondent, participated in a demonstration outside the
Sheraton Hotel in Woodbridge, New Jersey, the site of
the Respondent’s shareholders’ meeting. None of the
participants chanted, blew whistles, or otherwise made
any noise. Rather, the demonstrators engaged in a silent
protest, and obeyed all of the rules set forth by the police.
Some of the nonemployees wore picket signs and dis-
tributed handbills; none of the Respondent’s employees
engaged in either of those actions. The Respondent’s
employees stood next to the picketers and handbillers.
It is undisputed that the Respondent videotaped the
demonstrators. At the hearing, the Respondent asserted
that it wanted to record the picketing in case the partici-
pants attempted to disrupt the meeting or the Respondent
decided to seek an injunction. Although the Respondent
conceded that the picketing was neither violent nor dis-
ruptive, it nevertheless used the tape to identify those
employees who attended the demonstration.
On May 12, the Respondent sent a second letter to the
Union and posted it in the plant. The letter reiterated the
Respondent’s position set forth in the April 28 letter, and
stated that the Respondent had decided to take formal
disciplinary action against both the employees who par-
ticipated in picketing and the Union for violating article
28 of the bargaining agreement. The letter stated that
although the Respondent had the right to terminate the
participating employees, it had decided to suspend each
of them for 3 workdays. Thereafter, the Respondent sus-
pended 38 employees for 3 days, stating: “[t]he reason
for this suspension is your violation of Paragraph 28 of
the Collective Bargaining Agreement, which occurred on
May 4, 2000.”
The Union filed grievances concerning the suspension,
which the Respondent refused to process on the grounds
that they were not grievable under the provisions of arti-
cle 28.
Analysis and Conclusions
Any waiver by a union of the statutory rights of repre-
sented employees must be “clear and unmistakable.”
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 709
(1983).5 Here, that standard was not satisfied.
We agree with the judge’s analysis and conclusions set
forth in section III,C, 2 through 4 of his attached deci-
sion. Specifically, we affirm his finding that article 28
does not constitute a clear and unmistakable waiver by
the Union of the employees’ right to engage in the May 4
picketing of the shareholders’ meeting in Woodbridge,
New Jersey. The parties’ mutually expressed intent in
undertaking their correlative obligations in article 28 is
plain: to prevent any suspension of work due to labor
disputes. Article 28 was expressly intended to prohibit
conduct that would reasonably lead to the suspension of
work. The picketing of the shareholders’ meeting in
Woodbridge, New Jersey, could not reasonably be ex-
pected to (and in fact did not) lead to the suspension of
any work at the Respondent’s plant over 70 miles away
in Peekskill, New York.6 Thus, we affirm the judge’s
finding that the May 4 picketing in question was not pro-
hibited by article 28, but was instead protected by Sec-
tion 7 of the Act. Consequently, we affirm the judge’s
findings and conclusions that the Respondent unlawfully
threatened to discipline employees for participating in
the picketing, engaged in unlawful surveillance of their
activity, unlawfully suspended employees who partici-

5 “The rationale for applying the ‘clear and unmistakable’ standard
to waivers of strike rights is this: if a union is negotiating away em-
ployees’ rights that are fundamental to the collective bargaining proc-
ess, any proposed contract must unambiguously put those employees on
notice of the waiver.” Children’s Hospital Medical Center of Northern
California v. California Nurses Assn., 283 F.3d 1188, 1192 (9th Cir.
2002).
6 The Respondent argues that the picketing in New Jersey caused
suspension of some work at the plant in New York. But the record
establishes that only three of the employees who attended the picketing
had actually been scheduled to work during the time of the picketing,
and that all three of them had received advance permission from the
Respondent to take that day off from work, either as a personal day or a
vacation day. The Respondent nevertheless asserts that on the day of
the picketing, some employees at work pressured other employees to
decline to work voluntary overtime, which the Respondent assertedly
needed to compensate for the absence of six or seven production em-
ployees that day (including the three referred to above who had been
given permission by the Respondent to take the day off). We agree
with the judge that the Respondent has failed to establish that the events
of May 4 caused a loss of production. The Respondent cites to Elevator
Mfrs. Assn. of New York v. Local 1, Intern. Union of Elevator Con-
structors, 689 F.2d 382 (2d Cir. 1982) in support of its position. We
find this case distinguishable because in that case all of the employees
refused to perform emergency overtime work for several months. Id. at
384. Consequently, the employer was unable to provide emergency
service to its customers. In this case, the Respondent was short by only
six or seven employees for one shift, and most of those absences were
not related to the picketing. As noted above, the Respondent has not
provided any evidence that its business suffered a slowdown or was
otherwise interrupted by this deficit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48
pated, and unlawfully threatened to discipline employees
if they participated in further picketing.
Our dissenting colleague proposes that the Union’s ob-
ligations in the third sentence of article 28 should be read
in isolation, without regard to the prefatory and explana-
tory language in the first and second sentences. But this
reading runs contrary to fundamental principles of con-
tract interpretation. In interpreting a no-strike/no-lockout
clause, “the parties’ actual intent governs, ‘whether that
intent is established by the language of the clause itself,
by the inferences drawn from the contract as a whole, or
by extrinsic evidence.’” Silver State Disposal Service,
326 NLRB 84, 86 (1998), quoting Electrical Workers
Local 1395 v. NLRB, 797 F.2d 1027, 1036 (D.C. Cir.
1986). Here, the parties did not present any extrinsic evi-
dence. Therefore, the only evidence of the parties’ intent
is the language of article 28 itself. The first sentence
expresses the parties’ mutual intention to prevent any
suspension of work due to labor disputes, and it thus in-
forms the nature of the particular obligations undertaken
by the Respondent and the Union in the second and third
sentences, respectively. The Union’s undertakings in the
third sentence are obviously its quid pro quo for the Re-
spondent’s undertakings in the second sentence.
In sum, the parties’ mutual statement of intent in the
first sentence, to prevent the suspension of work due to
labor disputes, qualifies and informs the parties’ mutual
undertakings in the second and third sentences. Conse-
quently, the third sentence cannot reasonably be read in
isolation, as our colleague would read it. And, for the
reasons set forth above, we find that the picketing of the
shareholders’ meeting could not reasonably have been
expected to (and in fact did not) lead to the suspension of
any work at the plant, and was thus not prohibited by
article 28.
Because the “clear and unmistakable standard” is well
established, the Respondent and the Union presumably
knew that unambiguous contractual language would have
been necessary to create an absolute prohibition against
picketing. See, e.g., Mastro Plastics Corp. v. NLRB,
350 U.S. 270 (1956) (collective-bargaining agreement
“must be read as a whole, and in the light of the law re-
lating to it when made”).7 The parties surely would not
have used the “suspension of work” language if their
intent was to foreclose picketing that did not involve a
suspension of work. At a minimum, the “suspension of
work” language means that the contract can be reasona-
bly interpreted to prohibit only picketing that results in a

7 Cf. Electrical Workers Local 803 v. NLRB, 826 F.2d 1283, 1296–
1297 (3d Cir. 1987) (finding waiver of right to sympathy strike based
on interpretation of the contract in light of prevailing law at the time the
contract was entered into).
suspension of work. The courts have interpreted similar
language to find that parties did, in fact, intend to waive
the right to engage in a sympathy strike, which of course
entails a suspension of work.8 Even assuming that a con-
trary interpretation—such as the one offered by the dis-
sent—is also reasonable, this would at most demonstrate
that the contract is ambiguous.
There is no extrinsic evidence, meanwhile, that the
parties contemplated the unusual context in which the
waiver issue arises here: informational picketing, many
miles away from the worksite, directed at the company’s
shareholders (not its employees).9 And if the situation
presented in this case was unanticipated, it is hard to see
how a waiver can be based, as it must be, on the parties’
mutual consent.
Given the contractual language and the absence of ex-
trinsic evidence, the Respondent cannot meet its burden
of proving that the Union waived the employees’ protec-
tion under Section 7, because the Respondent has not
shown that article 28 clearly and unmistakably applies to
picketing that does not result in a “suspension of work.”
See Silver State Disposal Service, supra (finding no-
strike clause that referred only to strikes called, encour-
aged, or condoned by union did not clearly and unmis-
takably apply to unauthorized wildcat strike). Here, the
clause itself describes its purpose as the prevention of
“any suspension of work.”
Contrary to our colleague’s claim, we are not rewriting
article 28 to fit our views of what actions should be pro-
scribed by it. Rather, we take the contract as we find it.
Nor are we declaring that the Union’s picketing the
shareholders’ meeting was less likely to threaten or result
in a suspension of work than the Respondent’s discrimi-
nation against an employee for filing a grievance. We
have no need to make such a comparison. The fact is,
however, that the Respondent has no right to discrimi-
nate against employees for filing a grievance. The em-
ployees, on the other hand, had a protected right under
Section 7 of the Act to picket the shareholders’ meeting,
as set forth by the judge in the first paragraph of section
IIIC, 2 of his attached decision. The question for us here
has been whether the judge correctly found that the lan-

8 Electrical Workers Local 803 v. NLRB, supra, 826 F.2d at 1296
(contract expresses “mutual purposes to maintain service without inter-
ruption”); Electrical Workers Local 1395 v. NLRB, 797 F.2d 1027
(D.C. Cir. 1986) (language evidencing employees’ commitment to
facilitate the delivery of uninterrupted service); U.S. Steel Corp. v.
NLRB, 711 F.2d 772, 778–779 (7th Cir. 1983) (court examined a “col-
lective bargaining agreement structured to meet the challenge of for-
eign competition and a goal of ‘uninterrupted operations’ stated and
reiterated in clear and unmistakable terms”).
9 We have found no decision, and the dissent cites none, that ad-
dresses a factually similar situation.
ENGELHARD CORP. 49
guage of article 28 does not constitute a clear and unmis-
takable waiver of the employees’ Section 7 right to
picket the shareholders’ meeting. For the reasons dis-
cussed above and in the judge’s decision, we find that
there was no waiver, and consequently that the Respon-
dent’s discipline of employees for engaging in protected
picketing violated the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that Respondent, Engelhard
Corporation, Peekskill, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(b).
“(b) Engaging in surveillance of employees engaged
in union activities or protected concerted activities.”
2. Substitute the following for paragraph 2(c).
“(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER SCHAUMBER, dissenting.
I. INTRODUCTION
The Respondent and Union executed a collective-
bargaining agreement in which the Respondent agreed to
refrain from locking out employees or discriminating
against them because they raised a dispute or grievance.
The Union, for its part, expressly agreed:

that it will not call, participate in, or sanction any strike,
boycott, picketing, work stoppage, or slow-down what-
soever (emphasis added).

Despite the Union’s pledge, it sponsored a picketing and
handbilling demonstration at the Respondent’s sharehold-
ers’ meeting on May 4, 2000. In response, the Respondent
disciplined 38 employees who participated in the demon-
stration by suspending them 3 days’ time.
My colleagues and the judge find the suspensions
unlawful. They do so by ignoring the plain meaning of
the parties’ no strike/no lockout pledge and instead adopt
a highly improbable construction inconsistent with the
express language of the parties’ agreement.
For these reasons, I respectfully dissent.
II. FACTS
Article 28 of the collective-bargaining agreement
scheduled to expire on June 30, 2000,1 provides as fol-
lows:

The Employer and the Union declare it to be their in-
tention to prevent any suspension of work due to labor
disputes during the term of this Agreement. To carry
out this intention, the Employer agrees that there shall
be no lockout of any of its Employees or discrimination
against them because they have raised a dispute or
grievance. The Union agrees that it will not call, par-
ticipate in, or sanction, during the term of this Agree-
ment, any strike, boycott, picketing, work-stoppage or
slow-down whatsoever. The Union further agrees that
any Employee engaging in an unauthorized strike, boy-
cott, picketing, organized work slowdown or stoppage,
or any other type of interference with the Employer’s
business, shall be subject to immediate discharge at the
discretion of the Employer with no recourse to the
grievance procedure contained herein.

However, the Employer agrees it will not hold the Un-
ion responsible for damages resulting from any such
unauthorized action if the Union takes immediate ac-
tion to advise all Employees that such unauthorized ac-
tion is unauthorized and that Employees participating
will be subject to discipline, up to and including dis-
charge.

However, when early negotiations for a successor agree-
ment broke down, the Union decided to picket the Respon-
dent’s annual shareholders’ meeting to pressure Respondent
to resume bargaining. Informed of the Union’s plan, Re-
spondent’s director of human resources advised employees
and the Union that the picketing would be an “unauthorized
job action” in violation of article 28 and employees partici-
pating in it would be subject to immediate dismissal.
The Union authorized and conducted its planned dem-
onstration at the shareholders’ meeting on May 4. Ap-
proximately 50 of the Respondent’s employees attended
the demonstration, accompanied by 15–20 nonemployees
who picketed and handbilled. The Respondent, fearing a
disruption of the meeting, videotaped the demonstration.
Thereafter, the Respondent suspended 38 employees for
3 days because they violated article 28 by participating in
the May 4 event. Also in response to rumors of future
picketing, it posted a letter to employees repeating its
view that such picketing is in violation of article 28 and

1 All dates are in 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50
would subject participating employees to immediate
dismissal.
The judge, whose reasoning is adopted by my col-
leagues, found the suspensions violated Section 8(a)(3).
He also found that Respondent’s surveillance of the May
4 demonstration and its letters threatening to discharge
employees for picketing violated Section 8(a)(1). He
rejected the Respondent’s argument that article 28 ex-
pressed a clear and unmistakable waiver by the Union of
the employees’ statutory rights to picket. Emphasizing
the introductory sentence of article 28 declaring the par-
ties’ intention to “prevent any suspension of work,” the
judge concluded that “Article 28, when properly read as
a whole, sets forth a clear intention by the parties that
picketing is prohibited where it leads to a suspension of
work due to labor disputes.” Absent any showing that a
suspension of work resulted from the May 4 picketing,
he found the demonstration did not violate the contract.
Moreover, relying on the language of article 28 permit-
ting the immediate discharge of employees who engage
in “unauthorized . . . picketing,” the judge found Re-
spondent could issue no discipline to employees who
participated in the picketing because it was not “unau-
thorized” by the Union.2
III. ANALYSIS
The issue of contract interpretation presented here is a
familiar one, as is the governing precedent. A contrac-
tual waiver of a statutory right such as the right to picket
in support of a primary economic dispute must be “clear
and unmistakable.” Metropolitan Edison Co. v. NLRB,
460 U.S. 705, 708 (1983). My colleagues in the majority
and I do not disagree that article 28 contains a clear and
unmistakable waiver of the statutory right to engage in
certain kinds of economic action, including picketing.
We disagree on the breadth of the waiver. The Union,
with whom my colleagues and the judge agree, says the
waiver in article 28 is limited to economic actions that
lead to a suspension of work due to labor disputes. The
Respondent denies that article 28 is so limited.
In my view, the plain meaning of the contract language
supports the Respondent’s position. In finding other-
wise, my colleagues first misread the provision’s intro-

2 In reaching this conclusion, the judge clearly misconstrued article
28. The first three sentences of article 28 prohibit the Employer and the
Union from engaging in certain conduct. The fourth sentence addresses
itself to actions taken by employees independently of any party. Spe-
cifically, it provides that any employee engaging in an “unauthorized
strike, boycott, picketing, organized work slowdown or stoppage, or
any other type of interference with the Employer’s business, shall be
subject to immediate discharge at the discretion of the Employer with
no recourse to the grievance procedure contained herein.” That sen-
tence is not applicable here because the picketing was authorized by the
Union.
ductory sentence and then assign far more weight to it
than that passage can bear. In their view, the plain mean-
ing of the parties’ no-lockout/no-strike pledge is not its
actual meaning. They find that the Union’s waiver of the
right to engage in picketing did not really mean “any . . .
picketing . . . whatsoever” even though that is exactly
what the contract says.
The Board has consistently held that the ordinary,
plain meaning of a contract term is paramount in deter-
mining its meaning. See Mining Specialists, 314 NLRB
268, 269 (1994).3 Here, the no-strike/no-lockout clause
in article 28 is a carefully drafted expression of the par-
ties’ interdependent obligations. It is quite true, as the
majority says, that the prefatory sentence of the clause
articulates the parties’ “intention to prevent any suspen-
sion of work due to labor disputes during the term of this
Agreement.” I do not ignore that sentence, as my col-
leagues suggest; rather, I read it in context. Thus, the
broad prohibitions in the sentences that follow were
agreed to by the parties to carry out this intention. As
shown below, some of the actions the parties chose to
prohibit seem unlikely to risk a suspension of work; in-
deed, in most workplaces a suspension of work likely
would not result. However, it was for the parties to de-
cide how best to carry out their intent. It is not for us to
superimpose our judgment on the choices the parties
made.
For example, in the second sentence of article 28 the
Respondent agrees not to lock out its employees or to
discriminate against them for raising a dispute or griev-
ance. An economic lockout does not necessarily entail
any “suspension of work.” Rather, an employer is enti-
tled to employ temporary replacements to continue its
operations without interruption. Likewise, an employer
could readily discriminate against an employee without
threatening or resulting in a suspension of work, yet the
act of discrimination itself is explicitly prohibited. Un-
der my colleagues’ reading of article 28, however, the
Respondent could, by employing a sufficient number of
replacement workers to prevent any interference with
production, lock out the entire unit without running afoul
of its obligations. The Respondent could also discrimi-
nate against employees who file grievances without con-
travening article 28, provided its acts of discrimination
do not result in a suspension of work. Why, one asks,
would the Union bargain for relief from economic lock-
outs and discrimination only in these limited circum-

3 Under extant Board law, the Board will also look to relevant ex-
trinsic evidence, such as the past practice of the parties in implementing
the provision or its bargaining history. Mining Specialists, supra.
Here, no such extrinsic evidence was offered by either party.
ENGELHARD CORP. 51
stances? Respectfully, such a reading of the clause is
illogical and robs it of common sense.
The error of my colleagues’ reading of article 28 is
evident upon consideration of the obligations the Union
assumed. This is evident from the language of the Un-
ion’s no-strike pledge itself. The Union pledged “that it
will not call, participate in, or sanction, during the term
of this Agreement, any strike, boycott, picketing, work-
stoppage or slow-down whatsoever.” Since it is possible
to call a strike without thereafter engaging in one, the
Union’s obligation applies even when no actual interfer-
ence with production is shown. Thus, the Union’s article
28 obligations, like the Respondent’s, must be read to
apply even when there is no actual interference with pro-
duction.4
The broad language used in article 28 to describe the
types of prohibited activity confirms that it applies even
when no interference with production is shown. The par-
ties did not agree to prohibit picketing in certain areas or
at certain times, but “any” picketing “whatsoever.” The
use of “any” and “whatsoever” in describing the scope of
union activities prohibited manifests an all-inclusive ap-
proach, not limited to those actions that cause a suspen-
sion of work. See United States v. Gonzales, 520 U.S. 1,
5 (1997) (Read naturally, the word “any” has an expan-
sive meaning, that is, “one or some indiscriminately of
whatever kind.”); Webster’s Collegiate Dictionary 1340
(10th ed. 2001) (defining “whatsoever” as “of any kind at
all.”). In Electrical Workers Local 1395 v. NLRB, 797
F.2d 1027, 1033 (D.C. Cir. 1986), the court described a
no-strike clause banning “any strike, picketing, sit-down,
stay-in, slow-down, or other curtailment of work or inter-
ference with the operation of the Company’s business” as
one of “extraordinary breadth: in the style of the drafts-
man determined to allow no loopholes.” Likewise, here,
the narrow reading placed on article 28 by my colleagues
is unwarranted.
The majority’s approach is contrary to the instruction
of the D.C. Court of Appeals that the language used by
the contracting parties be read in light of “the realities of
labor relations and consideration of federal labor policy,
which make up the background against which such
agreements are entered.” Electrical Workers Local 1395

4 In their zeal to reach their desired result, the majority also rewrites
the first sentence of article 28, on which they rely so heavily. That
sentence describes the parties’ intent as preventing any suspension of
work. My colleagues, however, require an actual suspension of work
before they would find a particular action proscribed. A reading of
article 28 to encompass both actions that actually result in the suspen-
sion of work and actions, like the picketing at issue here, that may lead
to a suspension of work in the future gives the fullest effect to the par-
ties’ stated goal of prevention. My colleagues thus effectively read the
word “prevent” out of article 28 as well.
v. NLRB, supra, 797 F.2d at 1033. On this point, while
addressing the question of whether a general no-strike
clause covered sympathy strikes, the court said:

In our view, federal labor policy is more threatened by
the interposition of artificial rules of construction upon
the parties’ mutual intent . . . than by the Board’s prac-
tice of giving effect to the clear import of contractual
language. . . . A grudging or stilted interpretation of
collective-bargaining agreements tends to encroach
upon the fundamental national policy favoring the or-
dering of the employer-employee relationship by vol-
untary bargaining rather than governmental fiat, [and] it
injects into the collective bargaining process an uncer-
tainty that diminishes the prospects of successful bar-
gaining.”

Id. at 1031–1032 (citations omitted).
Rather than accept the plain meaning of the broad
waiver language in article 28, my colleagues contravene
Board practice and insist on just the kind of “grudging
and stilted interpretation” criticized by the court. If the
parties truly intended only this limited and highly un-
usual quid pro quo surrender of economic weapons, it
seems likely they would have done so by terms more
specific and obvious than their prefatory declaration of
intent to “prevent any suspension of work due to labor
disputes” which my colleagues seize upon.
Assuming we had a warrant to rewrite article 28 to fit
our own views of which actions should be proscribed, it
seems nothing short of hubris for the majority to declare
that picketing the Respondent’s shareholder’s meeting,
which the Respondent reasonably feared would result in
a disruption, is less likely to threaten or result in a sus-
pension of work than discrimination by the Respondent
against an employee for filing a grievance—conduct ex-
pressly prohibited by article 28. Yet the inescapable
consequence of the majority’s position is that article 28
applies only to the latter.
The majority claims that their decision is dictated by
the “clear and unmistakable waiver” standard. I do not
agree. To carry out their intention to “prevent any sus-
pension of work due to labor disputes” the parties agreed
to no picketing “whatsoever.” At bottom, the majority’s
reading of article 28 appears to be premised on the notion
that the Respondent’s employees should have the right to
picket its shareholders’ meeting. But “no federal policy
is disserved when a union is permitted freely to enter into
agreements limiting its recourse to economic weapons in
exchange for ‘gains it considers of more value to its
members.’” Electrical Workers Local 1395, 797 F.2d at
1031 (quoting Metropolitan Edison v. NLRB, 460 U.S.
693, 709 (1983)). The same can be said of the employer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52
Accordingly, the Board has consistently held that a
waiver of Section 7 rights may be recognized, consistent
with the clear and unmistakable standard, through the
“ordinary and reasonable meaning” of contractual lan-
guage, and does not require that every alternative read-
ing, however fanciful or illogical, be disproved. See Sil-
ver State Disposal Service, 326 NLRB 84, 86 (1998)
(quoting Rockaway News Supply Co. v. NLRB, 345 U.S.
71, 79 (1953)). Yet in a real sense that is what the ma-
jority requires.
Worse yet, in purporting to apply the clear and unmis-
takable waiver standard, my colleagues say that, because
there is no extrinsic evidence that the parties contem-
plated the specific type of picketing that took place here,
the application of the clause to it was not anticipated by
the parties and therefore could not be based on their mu-
tual consent. This novel proposition does violence to the
settled rule that, in assessing the scope of a broadly
phrased no-strike clause, “the unexpressed reservations
of employees cannot be treated as dispositive; since a
union’s surrender of the right is not disfavored by reason
of national labor policy (as, for instance, in Mastro Plas-
tics), a court’s task is simply to interpret the parties’
manifestations of mutual consent.” Electrical Workers
Local 1395 v. NLRB, 797 F.2d at 1033.
Instead of leaving the parties with the agreement they
struck, the majority declares that picketing the Respon-
dent’s shareholder’s meeting—action which the Respon-
dent feared would result in a disruption—is permissible
because in my colleagues’ opinion it could not reasona-
bly be expected to result in a suspension of work. The
parties, however, did not proscribe picketing that could
reasonably be expected to result in a suspension of work.
They established a bright line objective standard pro-
scribing all picketing “whatsoever.” Even if we were to
inject ourselves into the parties’ decision-making, how-
ever, it does not take a fertile imagination to appreciate
that picketing a shareholder’s meeting can exacerbate
tensions and foster labor disputes which could eventually
result in a suspension of work.
IV. CONCLUSION
Based on the foregoing, I dissent from my colleagues’
disregard for the plain meaning of the parties’ no-
strike/no-lockout pledge and their consequent finding
that the suspension of the employees who engaged in the
May 4 picketing action was unlawful. The picketing was
not protected by Section 7 of the Act because the Union
clearly and unmistakably waived its own and its repre-
sented employees’ right to engage in such activity during
the term of the parties’ collective-bargaining agreement.
Because the picketing was unprotected, the Respondent
did not violate Section 8(a)(3) when it disciplined its
employees. For the same reason, it did not violate Sec-
tion 8(a)(1) by threatening to discipline employees who
engaged in picketing and by videotaping the picketing
itself. I would reverse the judge and dismiss the com-
plaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT suspend or discriminate against our em-
ployees for participating in union activities or protected
concerted activities.
WE WILL NOT engage in surveillance of our employees
engaged in union activities or protected concerted activi-
ties.
WE WILL NOT threaten our employees with discharge if
they engage in union activities or protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole the following employees for any
loss of earnings and other benefits suffered as a result of
the discrimination against them:

Christopher Bahr, Gregory Borelli, Eric Camper,
Wayne Cantrell, Arthur Chase, Carlos Colmenares,
Roger Croft, Joseph Dendera, Vincent Diaz, Dallas
Dickens, Peter DiNapoli, Warren Dunn, Lori Elsner,
Nelvis Esteves, Carlos Fernandes, Francis Hard, Pam-
ela Hard, James Hamilton, Ron Hyslop, John Keels,
Thomas Kimbrew, Bernard Kopf III, James Mahoney,
George Hans, Dana Mason, Kathleen Nenni, James
Papa, Marcus Ruff, Richard Selleck, George Sekel,
Marc Sierzega, Daniel Smetana, William Sinzer III,
Paul Szlenka, Jeffrey Tomlins, Robert Vitolo, Donald
Vassallo, Keith Urban.

ENGELHARD CORP. 53
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions of the above-named employees, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the suspensions
will not be used against them in any way.

ENGELHARD CORPORATION

Olga Torres, Esq., for the General Counsel.
Douglas Duerr and Stan Wilson, Esqs. (Elarbee, Thompson &
Trapnell, LLP), of Atlanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on charges
filed on April 3, May 1, and June 19, 2000,1 by Local 1430,
International Brotherhood of Electrical Workers, AFL–CIO
(Union), a consolidated complaint was issued on September 13
against Engelhard Corporation (Respondent).
The complaint, as amended at the hearing, alleges essentially
that Respondent (a) threatened to move its facility if the Union
sought a six-percent wage increase in upcoming negotiations
and (b) denied Union Shop Steward Karen Nembhard an ex-
cused absence for attending shop steward training despite hav-
ing previously granted such an excused absence to her.
The complaint further alleges that the Union and bargaining
unit members engaged in handbilling at Respondent’s stock-
holders’ meeting in support of the Union’s demands for a suc-
cessor contract. It is alleged that with respect to such activity,
Respondent (a) threatened employees with discipline including
immediate discharge if they engaged in such activity; (b) en-
gaged in surveillance of its employees while they engaged in
such activity; (c) threatened employees with discharge for par-
ticipating in such activity; and (d) suspended employees for
engaging in such activity.
Respondent denied the material allegations of the complaint
and asserted the affirmative defenses that (a) the complaint
should be dismissed pursuant to Section 10(b) of the Act, and
(b) the Union and its members waived their right to engage in
picketing and changed the terms of the collective-bargaining
agreement without first bargaining with Respondent. On De-
cember 20 and 21, a hearing was held before me in New York
City.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, having an office and place of
business in Peekskill, New York, has been engaged in the
manufacture and wholesale distribution of pigments and film
products. In the annual conduct of its business operations, Re-

1 All dates hereafter are in 2000 unless otherwise stated.
spondent sells and ships goods from its Peekskill, New York
facility valued in excess of $50,000 directly to points outside
New York State, and during the same period purchases and
receives products, goods and materials at its Peekskill facility
valued in excess of $50,000 directly from points outside New
York State. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent also admits and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Threat to Move the Plant
The complaint alleges that on February 1, Respondent
threatened to move its facility if the Union were to seek a six-
percent wage increase in the upcoming negotiations for a suc-
cessor contract.
The Union represents about 288 employees employed in five
facilities of the Respondent. The collective-bargaining agree-
ment was due to expire on June 30, 2000.2 The parties agreed to
begin early negotiations in an attempt to resolve their differ-
ences in advance of the expiration date. Actual negotiations
began on March 8.
On February 1, union representatives met with their negotiat-
ing committee in order to discuss their final contract demands,
including their wage proposal. The Union’s committee decided
it wanted a six-percent wage raise in each of the 3 years of the
contract.
Later that day, Respondent and the Union met for the pur-
pose of resolving certain pending grievances. Present in behalf
of Respondent were Margaret Gibson, manager of human re-
sources, Frank Lamson-Scribner, plant manager, and Nancy
Delaney, the labor relations coordinator and admitted agent of
Respondent. Present for the Union were Business Agent Robert
Meyer and Jeffrey Tomlins, chief shop steward.
Meyer and Tomlins testified that at the end of the grievance
meeting, the subject of the upcoming negotiations was raised.
They both quoted Lamson-Scribner as saying that if the Union
was seeking six percent it is not “going to happen.” Meyer
responded that that amount was exactly what the Union sought.
Meyer and Tomlins stated that Gibson then said that if the Un-
ion demanded six percent the Company would move its plant
“down south.”
Meyer stated that the meeting ended immediately thereafter
and he told Tomlins to make a note of Gibson’s comment in the
event that it “came up later.” Tomlins asked him if her state-
ment could be made the subject of an unfair labor practice
charge, and Meyer said it could but that they would not neces-
sarily use it “at this time.” Tomlins stated that Meyer told him
that he would take no action then because he did not want to
begin negotiations “on the wrong foot.” Both Meyer and
Tomlins made notations in their datebooks of Gibson’s remark
that if the Union asked for six percent the Company would
move its plant down South.

2 A successor contract, which runs from July 1, 2000 to June 30,
2003 is currently in effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54
Respondent has a plant in Charleston, South Carolina, which
makes pearlescent pigments which are also manufactured in the
Peekskill plant. However, according to Lamson-Scribner, the
two plants do not make the same products. Nevertheless, it
appears that the Charleston facility manufactured some of the
products that Peekskill formerly made, and that all the products
made in Charleston were once made in Peekskill.
Lamson-Scribner testified that he began the conversation by
stating that the parties made much progress during his short
tenure with Respondent but that he was concerned that employ-
ees’ expectations were too high and he did not want them to
experience a “let-down” in July. Meyer responded that Respon-
dent should not “plan on giving us the same thing, we want our
fair share,” which was more than three percent per year.
Respondent’s witnesses Gibson, Lamson-Scribner, and De-
laney all testified consistently concerning the grievance meet-
ing. They agreed that Lamson-Scribner told the Union’s repre-
sentatives that they should not expect a six-percent increase per
year, but all three denied that Gibson threatened that if the Un-
ion asked for a six-percent raise the company would relocate to
the South. Gibson would only concede that she told the union
agents that she hoped that they had “reasonable expectations”
about Respondent’s offer. Delaney testified that if Gibson had
threatened to move the plant it would have made a distinct im-
pression upon her and she would have “questioned” it since the
economic livelihood of her family depended upon the Com-
pany, inasmuch as she and her husband are both employed by
Respondent in Peekskill.
Respondent’s witnesses’ testimony also contradicted that of
the Union’s representatives as to the timing of the conversation.
Respondent’s witnesses stated that the six-percent topic arose
in the beginning of the meeting whereas the Union’s agents
stated that they discussed the matter at the very end of the
meeting. Meyer’s testimony as to the timing is supported by his
further testimony that he made the notation in his datebook
within 1 to 2 minutes after Gibson’s statement. Since he and
Tomlins stated that the comment was made at the end of the
meeting and since Tomlins stated that they remained in the
room until Respondent’s representatives left at which time
Meyer made the notation, it would logically follow, assuming
Meyer to be correct, that Gibson’s alleged threat was made at
the end of the meeting.
The charge and the amended charge allege as follows: Since
on or about February 1, 2000, the employer has threatened to
close its operations if contract negotiations did not go their
way.”
B. The Alleged Denial of an Excused Absence to
Shop Steward Karen Nembhard
Respondent’s absenteeism policy provides that employees
are allowed up to 10 excused absences without pay per year for
whatever reason the employee wishes including illness, per-
sonal business, and family emergency. More than 10 absences
result in progressive discipline, from an oral warning to dis-
charge. Absences for union business are considered an excused
absence and are not counted toward the 10-absence limit.
The complaint alleges that Respondent denied Union Shop
Steward Karen Nembhard an excused absence for attending
shop steward training despite Nembhard having previously
been granted an excused absence by Human Resources Man-
ager Gibson. It is alleged that Respondent denied the excused
absence because “employees of Respondent assisted the Union
and engaged in concerted activities, and to discourage employ-
ees from engaging in these activities.”
The Union planned a 2-day training session for its shop
stewards to take place on Saturday and Sunday, April 29 and
30, from 8 a.m. to about 5 p.m. each day. The Union requested
and received permission for 2 days’ excused time off for the
five stewards who were scheduled to work that weekend.3
Nembhard works on the D, night crew. Of the stewards
scheduled to attend the training, Nembhard was the only night-
shift employee scheduled to work that weekend. For the period
of time encompassing the training she was scheduled to work
on Friday, Saturday, and Sunday, April 28 through 30, from 7
p.m. to 7 a.m. each day. This schedule would have required her
to report to work on Friday night, complete her 12-hour work
day and leave at 7 a.m. Saturday morning, go directly to the
training session which began at 8 a.m. Saturday morning and
remain in training until 5 p.m. that day.
On April 25, an e-mail was circulated by Respondent author-
izing stewards who were scheduled to work on April 29 and 30
to be excused from work on those 2 days. Later that day, Rick
Dahl, Nembhard’s supervisor, sent an e-mail to Nancy Delaney,
Respondent’s labor relations coordinator and admitted agent.
The message stated that Nembhard was scheduled to work Fri-
day night, and asked whether she could leave early to attend the
training session on Saturday. Lamson-Scribner replied that day
directing Dahl to work out the details with Nembhard and sug-
gesting that she may want to be excused Friday night and work
Sunday.
Dahl spoke to Nembhard during her work shift on the eve-
ning of April 25, and they agreed that she would take Friday
and Saturday as excused days off, and that she would work on
Sunday.
According to the testimony of Nembhard and Union Busi-
ness Agent Meyer and Chief Shop Steward Tomlins, on April
25, Nembhard told them that she needed 1 extra day off—a
third day of excused absence on Friday, because her Friday
work schedule would result in her being awake for 24 hours if
she attended the Saturday training session. Meyer and Tomlins
asked Shop Steward Joseph Dendera to secure the extra day off
for Nembhard.
Dendera testified that he told Gibson on April 26 that Nemb-
hard needed to be excused for 1 extra day. Gibson asked why,
and Dendera explained that her work-hours would result in her
being awake for 24 hours either before or after the training
session which was improper and unsafe. Gibson told him that
she saw “no problem” with the request. Dendera testified that
he specifically asked her whether Nembhard was excused Fri-
day, Saturday, and Sunday nights and Gibson said she was,
adding that she (Gibson) would contact Nembhard’s Supervisor
Dahl by e-mail. Dendera then told Meyer and Tomlins that
Gibson authorized Nembhard to take 3 days off. Dendera’s

3 Those stewards are Duncan Craig, Joseph Dendera, Dennis
Keenan, Nembhard, and Tomlins.
ENGELHARD CORP. 55
datebook for April 26 bears the notation: “Talked to Ms. Gib-
son about K. Nembhard. OK to have Fri, Sat, Sun nite off.”
Meyer and Tomlins corroborated Dendera’s testimony that he
told them that Gibson authorized 3 nights off.
Gibson became aware, by the April 25 e-mail, that stewards
were excused from work for 2 days of training. She testified
that on April 26, Dendera asked her if Nembhard was excused
for the training. Gibson replied that she was excused, as were
all other stewards. Gibson specifically denied that Dendera
asked that Nembhard be excused for Friday, Saturday, and
Sunday and Gibson denied approving a request that she be
excused for those 3 days. Gibson assumed that Dendera’s ques-
tion related only to the previously authorized request for 2 days
off for all stewards. When asked why she did not question
Dendera’s specific inquiry concerning Nembhard since permis-
sion had already been granted for 2 days off, Gibson replied
that she was not “involved with the details.” This presumably
relates to how the grant of 2 days off would affect individual
employees’ specific work situation. In fact, Gibson stated that
she was not aware of Nembhard’s schedule.
Nembhard testified that on April 26, prior to her reporting to
work at 7 p.m., she received a message on her home phone
answering machine from Debbie Wise, Respondent’s human
resources assistant. According to Nembhard, Wise’s message
was that she was “approved for 3 days off, Friday, Saturday,
and Sunday.”
That evening, Nembhard reported to work and met Dendera.
Both Nembhard and Dendera testified that Dendera told her
that she had been approved for 3 days off, and that Nembhard
replied that she already was aware of that through Wise’s mes-
sage.
Nembhard testified that following the end of her shift the
next morning, April 27, she asked Wise if Gibson had sent her
a “written response” concerning her request for time off. Wise
replied that she did receive a response but could not find it.
Nembhard requested an e-mail message approving the time off.
Wise’s version of the conversation was that Nembhard asked
her if she was excused for the training session. Wise replied
that she would ask Gibson and let her know Gibson’s response.
Wise immediately sent an e-mail message to Gibson which
stated: “Karen would like to know if she received permission to
go to the shop steward training. Please let her know by e-mail
tonight. The training is Sunday.” Gibson immediately sent an e-
mail message to Nembhard with a copy to Wise, which advised
her to “please speak to your supervisor Rick. He will work out
the schedule with you.”
Upon receiving Gibson’s e-mail message, Nembhard left her
a message that evening asking why Gibson could not have
given her a “yes or no” answer? When asked why she sought
such an explicit answer if she believed that the request for the
third day had already been transmitted by Wise, Nembhard
stated that she wanted Gibson’s assurance that she was excused
for the days.
Gibson testified that when she received Wise’s e-mail, she
told Wise to inform Nembhard that she was excused for the
training but had to work out the details with her supervisor.
Gibson did not tell Wise that Nembhard was excused for Fri-
day, Saturday, and Sunday, and Gibson did not specify for
which days she had been excused. Gibson testified that she was
unaware of Nembhard’s schedule and was not informed that
since she was working Friday night, special arrangements had
to be made.
Wise denied receiving any earlier e-mails from Gibson on
this subject as implied by Nembhard’s testimony. Wise testified
that the following day, April 28, she called and left a message
on Nembhard’s answering machine that Gibson had approved
her absence to attend the training session and that she should
work out the details with her supervisor. Wise specifically de-
nied telling Nembhard that she was excused for Friday, Satur-
day, and Sunday. Thus, Wise denied leaving Nembhard a
phone message on April 26, stating that her first involvement
with this matter occurred on April 27 when Nembhard visited
her office.
Nembhard testified that on Friday, April 28, she asked Dahl
if Gibson had approved her request for time off on Sunday.
Dahl said that he had not. Nembhard said that she had already
been granted an excused day off on Sunday by Wise and
through Dendera’s conversation with Gibson, but that she
wanted it confirmed in writing by Gibson. Dahl accepted
Nembhard’s representations and recorded her anticipated ab-
sence Sunday as excused.
Nembhard attended the training session on Friday and Satur-
day, April 28 and 29. She was absent from work on Sunday,
April 30, for which one unexcused absence day was recorded in
her personnel file.
On May 3, Nembhard again asked Dahl if he had been in-
formed that she had an excused absence for Sunday, April 30.
Dahl said he had not. That day, Dahl received a message from
Gibson advising that she did not authorize an excused absence
for Nembhard for Sunday. Dahl changed the record to reflect
that her absence Sunday was not excused.
Nembhard conceded that she had never received any mes-
sage from Gibson that she had an excused day off on Sunday
notwithstanding her request for such confirmation.
Gibson stated that she was aware of rumors concerning up-
coming union activity, as set forth below, when she was in-
volved in the matter of Nembhard’s request for extra time off.
Two stewards, Dendera and Tomlins, were suspended for pick-
eting at the shareholder’s meeting. Nembhard and the two other
stewards were not identified by Respondent as participating in
the Union’s demonstration at the meeting and were not listed in
the complaint as those who Respondent suspended for such
activity.
Respondent had in the past made accommodations to night-
shift employees who were engaged in contract negotiations
during the day in which they were scheduled to report to work.
Respondent did not want those employees reporting to work at
night after they had been continuously at work and in negotia-
tions over a 3-day period. The schedules of those employees
working at night were switched so that they would be sched-
uled to work during the day and then receive those days off so
that they would be excused from work during the daytime ne-
gotiations. They did not receive any extra days off.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56
C. The Picketing at the Shareholder’s Meeting
and the Suspensions
Collective-bargaining negotiations for a successor agreement
were held on March 8, 21, and 27, and then broke off without
an agreement for a new date for resumption of the discussions.
According to Gibson, the Union “was not as committed as
management to reaching an early settlement.” Accordingly,
since the “early settlement talks were unproductive, we chose
to withdraw our proposal for early negotiations and return to
the normal bargaining timeline.”
The Union decided to picket Respondent’s annual share-
holder meeting scheduled for May 4 at the Sheraton Hotel in
Woodbridge, New Jersey. Meyer stated that the purpose of the
picketing was to pressure Respondent to give the Union a date
for continued bargaining.
On April 28, Meyer told Joel Gray, Respondent’s director of
human resources, that he intended to place an informational
picket line at the shareholder’s meeting because the Union was
unable to get a negotiating date from Respondent. Gray replied
that he had been made aware of the Union’s proposed actions
by Gibson, and advised Meyer that the Union’s picketing was
illegal based upon article 28 of the collective-bargaining
agreement. Meyer disputed Gray’s interpretation of that clause.

Article 28 of the contract states as follows:

The Employer and the Union declare it to be their intention to
prevent any suspension of work due to labor disputes during
the term of this Agreement. To carry out this intention, the
Employer agrees that there shall be no lockout of any of its
Employees or discrimination against them because they have
raised a dispute or grievance. The Union agrees that it will not
call, participate in, or sanction, during the term of this Agree-
ment, any strike, boycott, picketing, work-stoppage or slow-
down whatsoever. The Union further agrees that any Em-
ployee engaging in an unauthorized strike, boycott, picketing,
organized work slowdown or stoppage, or any other type of
interference with the Employer’s business, shall be subject to
immediate discharge at the discretion of the Employer with no
recourse to the grievance procedure contained herein.

However, the Employer agrees it will not hold the Union re-
sponsible for damages resulting from any such unauthorized
action if the Union takes immediate action to advise all Em-
ployees that such unauthorized action is unauthorized and that
Employees participating will be subject to discipline, up to
and including discharge.

On April 28, Gibson sent a letter to Meyer stating that she
had heard “rumors” that Respondent’s employees “were con-
sidering setting up picket lines.” Gibson advised that such con-
duct violated article 28 of the contract and warned that “any
employee who participates in an unauthorized job action will be
subject to immediate dismissal with no recourse to the griev-
ance procedure. Picketing is an unauthorized job action. We do
not wish to be placed in the position of terminating employees
because of such a misguided action as picketing in violation of
our agreement.”
The letter, however, included an incomplete quotation from
article 28. Respondent’s excerpt began with the phrase “[t]he
Union agrees that it will not call, participate in . . . . ” and con-
tinued until the end of article 28. The letter thus omitted the
first half of the first paragraph which sets forth the intent of the
parties to “prevent any suspension of work due to labor dis-
putes . . . . ”
The letter, which was posted in the plant for more than 1
week according to Tomlins,4 further stated:

Please consider this as formal notice to you that employees
may be planning to participate in an unauthorized job action.
We expect that the Union will honor its duty to inform em-
ployees that the action is unauthorized and that any employee
who participates will be subject to discharge. We ask that you
do this to ensure that our employees who choose to engage in
such activity fully appreciate the consequences of such acts.

Meyer’s letter to Gibson in response stated that article 28
does not “pertain to peaceful informational picketing of a share-
holders meeting.”
The Union distributed a flyer to the employees which asked
employees to engage in the “informational picket” at the share-
holder’s meeting. The flyer noted that it was an “authorized
event” by the Union.
On May 4, two buses carried certain Respondent’s employ-
ees and others from Peekskill to the shareholder’s meeting at a
hotel in New Jersey. The hotel was located about 50 miles from
Respondent’s Peekskill facility. The first bus, bearing Meyer,
was met by officers of the local police department who told
Meyer that his group could not picket or protest in any manner.
Following a discussion, it was agreed that people could stand at
the three entrances to the hotel, but could not march back and
forth and could not disrupt traffic. However, one or two people
stood in the roadway and gave handbills to occupants in the
cars which stopped to receive them. Meyer further instructed
the demonstrators that they should have a “silent protest” with
no chanting, blowing whistles or making any noise, no com-
ments directed at the cars entering or exiting the hotel, and no
blocking of entrances. There was no evidence that any of these
rules were violated.
About 50 of Respondent’s employees were present at the ho-
tel. Also in attendance were 15 to 20 nonemployees who were
union members not employed by Respondent, and members of
other local unions. Picket signs were worn only by people who
were not employees of Respondent. Similarly, handbills were
distributed only by nonemployees. Meyer specifically directed
that no one employed by Respondent carry a picket sign or
distribute a handbill because he sought to “make it as hard as
possible” for Respondent to “retaliate” against its employees
following its April 28 letter.
About 20 picket signs were utilized. The picket sign stated:

INFORMATIONAL
Unfair Labor Charges Against
ENGELHARD CORPORATION

4 The letter had an attachment which made an anonymous, deroga-
tory reference to Gibson and Lamson-Scribner. There was testimony
that the flyer was seen inside and outside the plant, but the evidence did
not establish that the Union or its agents was responsible for its produc-
tion or distribution.
ENGELHARD CORP. 57
By IBEW Local 1430
This Sign Is Not Intended To Interfere With,
Nor Restrain, Nor Coerce, The Rights of Anyone
From Entering Or Leaving This Facility

A handbill distributed by the Union at the site stated:

FAIR?
Engelhard workers in Georgia currently earn approximately
$5.00 per hour more than Engelhard workers in Peekskill,
New York for similar work.

Yet while profits soar in New York, the Company demands
givebacks from its New York workers while the Union only
asks for increases, not parity.

The Company has broken off negotiations leaving us to be-
lieve a strike is unavoidable thereby jeopardizing your profits
that we helped to build.

As a shareholder in a company that may be forcing its work-
ers out on strike at one of its most profitable plants you need
to ask “what will happen to my stock?”

Of Respondent’s employees who were present at the demon-
stration, only three were scheduled to work that day. The others
were not scheduled to work because they either had a day off or
were not scheduled to work the shift which occurred during the
demonstration. The three employees who were scheduled to
work that day received prior permission from Respondent to
take the day off—either by taking a personal day or vacation
day.
The complaint alleges that on May 4, Respondent engaged in
unlawful surveillance of employees at the Sheraton Hotel.
Meyer stated that during the picketing, which lasted about 1
hour, a cameraman videotaped the activities from a vehicle
which was at times stationary and also moved about while tap-
ing. Tomlins stated that the photographer pointed the camera at
him and others while they were 15 feet away from the camera.
Upon seeing the photographer, certain employees expressed
their fear to Meyer and Tomlins that they believed that they
might be discharged or would get into “trouble” with Respon-
dent.
Respondent’s official Gray testified that Respondent had no
idea of the scope of the picketing or the number of people who
would be involved or what type of activities they would engage
in. He authorized the videotaping in order to record and docu-
ment attempts to disrupt the annual meeting, possible violent
activities, and trespass. Gray further stated that Respondent
intended to use the tape in the event that legal action, such as an
injunction, was sought. He conceded, however, that no trespass,
violence or disruption of the meeting occurred. Indeed, he ad-
mitted that the taping began as the demonstrators left the bus,
before they could engage in any improper activities.5
Gray stated that he instructed the videotaper to remain at a
distance from the pickets, not to approach them in any way, and
not attempt to tape or “zoom in on” any individual person. The
cameraman was told to take “wide” photographs to “understand

5 An unfair labor practice charge against the Union relating to the
picketing was dismissed by the Regional Director. That dismissal was
upheld by the General Counsel.
what was going on.” Gray conceded, however, that the tape was
later used to identify which employees participated in order to
discipline them, but stated that that was not the primary purpose
of the taping.
On the day of the demonstration, 21 employees were at work
in the production area on the day shift, whereas on a typical
day, 27 to 28 employees would be working. Meyer testified that
he told employees who were working that day to work as hard
or harder than normal.
On May 12, Gibson sent a letter to the Union and posted a
copy in the plant.6 The letter said essentially that despite Re-
spondent’s warning in its April 28 letter, certain employees
picketed the annual shareholder’s meeting, and that Respondent
considered picketing during the term of the contract to be in
violation of article 28 of their agreement.7 This letter also con-
tained the same incomplete quotation of article 28 as was in-
cluded in the April 28 letter. The letter advised that Respondent
“will begin taking formal disciplinary action as a result of the
picketing.” The letter noted that although Respondent had the
right to terminate the employees for such conduct it had de-
cided to suspend them for 3 workdays “for their participation in
this action.”
Lamson-Scribner testified that although Respondent had the
right to discharge the employees because of their violation of
article 28 of the contract, he did not do so because he believed
that they had been “misled by the Union leadership” and ac-
cordingly did not believe that discharge would be proper. The
letter also advised that Respondent would be taking action
against the Union for not fulfilling its obligations as set forth in
article 28.
Finally, the letter stated as follows:

I feel a responsibility to let you know there are further rumors
that additional pickets are being planned by our employees
with union support. As we said in our original letter, we con-
sider any future actions like those described in the Collective
Bargaining Agreement to be a violation of Article 28. If such
actions occur, those employees who choose to participate are
subject to immediate dismissal, without recourse to the griev-
ance procedure. We would ask for your help once again in
fulfilling your obligations to ensure that such future instances
do not happen.

The letters of April 28 and May 12 have been alleged as
unlawful threats to unit employees of discharge for participat-
ing in protected concerted activities. Respondent’s official Gray
testified that Respondent had no intention of threatening em-
ployees when it posted the letters. He and Gibson stated that the

6 This letter, like the April 28 letter, was posted at the plant for more
than 1 week, according to Tomlins.
7 Accordingly, Respondent contends that “picketing” was the viola-
tion of article 28 and not a work stoppage. Lamson-Scribner’s testi-
mony supports that position. However, on brief, Respondent argues that
the employees interfered with its business in violation of article 28
because fewer employees than normal reported to work on May 4. I
reject that argument. The three employees who were scheduled to work
that day received permission to be absent. The rest were off duty. In
addition, no proof was offered that Respondent’s business was inter-
fered with.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
purpose of the letters was to ensure that Respondent’s position
concerning activities in violation of article 28 was made known
to the workers.
Respondent suspended 38 employees for 3 workdays effec-
tive May 15.8 The suspension letters state, in relevant part, as
follows:

The reason for this suspension is your violation of Paragraph
28 of the Collective Bargaining Agreement, which occurred
on May 4, 2000.

Please be advised that this is a final warning. Future miscon-
duct, including any violation of Paragraph 28, will subject you
to discharge for cause.

The letters advised the workers that during their suspension
they were not authorized to enter Respondent’s premises. Be-
cause the employees work on nonconsecutive workdays, they
were not eligible to work overtime on days that they were not
regularly scheduled to work during their suspension since they
could not enter the facility on those days.
The Union filed a grievance as to the suspensions which Re-
spondent denied, arguing that the grievances were not arbitrable
since the employees picketed in violation of article 28 of the
contract as to which employees have no recourse to the griev-
ance procedure. The suspensions have been alleged as an unfair
labor practice.
III. ANALYSIS AND DISCUSSION
A. The Alleged Threat to Move the Plant
There is a sharp credibility issue with respect to the alleged
threat to move the plant. Meyer and Tomlins both testified that
Gibson said that if the Union demanded a six-percent increase
the Company would move its plant down South. Their testi-
mony is supported by notations made in their datebooks which
recite that Gibson made the statement and the fact that Respon-
dent does have operations in Southern states.
However, detracting from their testimony is the fact that the
charges filed do not reflect the threat allegedly made by Gib-
son. The charges allege that the Respondent “threatened to
close its operations if contract negotiations did not go their
way.” That allegation is markedly different than the remark
attributed to Gibson, that if the Union demanded a six-percent
increase Respondent would move its plant down South. Thus,
Gibson did not allegedly threaten to close its operation if nego-
tiations were not favorable to it. The alleged threat was that it
would move if the Union sought a specific wage increase.

8 Those suspended were: Christopher Bahr, Gregory Borelli, Eric
Camper, Wayne Cantrell, Arthur Chase, Carlos Colmenares, Roger
Croft, Joseph Dendera, Vincent Diaz, Dallas Dickens, Peter DiNapoli,
Warren Dunn, Lori Elsner, Nelvis Esteves, Carlos Fernandes, Francis
Hard, Pamela Hard, James Hamilton, Ron Hyslop, John Keels, Thomas
Kimbrew, Bernard Kopf III, James Mahoney, George Hans, Dana
Mason, Kathleen Nenni, James Papa, Marcus Ruff, Richard Selleck,
George Sekel, Marc Sierzega, Daniel Smetana, William Sinzer III, Paul
Szklenka, Jeffrey Tomlins, Robert Vitolo, Donald Vassallo, and Keith
Urban. Peter DiNapoli received a suspension letter dated May 12, but a
letter dated May 17, stated that “after further investigation” Respon-
dent rescinded its suspension and final warning and advised DiNapoli
that he would be reimbursed for pay lost during his suspension.
I am aware that counsel to the Union and not Meyer or
Tomlins signed and presumably prepared the charge. But the
information inserted in the charge must have come from the
two union representatives. If, as they testified, detailed nota-
tions were made in their datebooks within moments of their
utterance by Gibson they certainly would have informed coun-
sel of the exact nature of the alleged threat.
Equally persuasive is the testimony of Respondent’s wit-
nesses Lamson-Scribner, Gibson, and Delaney all of whom
denied that the remark was made. Delaney testified convinc-
ingly that had the comment been made she would have ques-
tioned it since she and her husband are employed in the Peeks-
kill plant.
To some degree, therefore, the evidence concerning the al-
leged threat is in equipoise—no witness deserving greater
credibility than the other. Based upon the evidence, I cannot
find that counsel for the General Counsel has satisfied her bur-
den of establishing by a preponderance of the credible evidence
that Gibson made the threat attributed to her. I accordingly shall
recommend that this allegation of the complaint be dismissed.
B. The Alleged Denial of an Excused Absence for Nembhard
The complaint alleges that Nembhard was denied an excused
absence despite having been granted such a day off by Gibson.
I find that this allegation must be dismissed. I cannot find
credible General Counsel’s witnesses’ testimony that Gibson in
fact granted Nembhard Sunday as a third excused day off.
In making this finding I rely upon the undisputed documen-
tary record—the e-mails which were part of the official com-
pany chronicle of events and which were a contemporaneous,
verbatim account of messages transmitted. Thus, I credit the
testimony of Wise that her first involvement in the matter oc-
curred in the morning of April 27, when Nembhard asked her if
she was excused for the training session. Wise’s e-mail to Gib-
son which stated that Nembhard wanted to know if she had
permission to attend the training demonstrates that this was her
first involvement in Nembhard’s request.
Accordingly, Wise could not have phoned Nembhard the day
before, April 26, with a message that she had been approved for
3 days off when it was undisputed that Wise asked Gibson on
April 27, whether she had such permission. I therefore cannot
credit the testimony of Dendera that Gibson gave her approval
for 3 days off on April 26. The crucial evidence—the alleged
phone message of April 26—was not preserved.
Dendera’s notation in his datebook that Gibson approved 3
days off on April 26 is significant especially when combined
with corroboration by Nembhard, Meyer, and Tomlins that he
advised them that Gibson approved the day off. However, I also
find credible Gibson’s denial of such approval. When the
documentary evidence is evaluated for reliability, the undis-
puted e-mails which establish that an extra day off was not
specifically requested or granted—must be given greater
weight.
Further, when Nembhard asked Gibson on April 27 why she
could not have given her a “yes” or “no” answer to her request,
Nembhard did not refer to the alleged phone message left by
Wise the day before which allegedly granted her request for 3
days off. Instead, Nembhard was seeking a definite answer
ENGELHARD CORP. 59
from Gibson as to the extra day off which, according to Nemb-
hard, had already been transmitted through Wise. There was
testimony that Dahl considered Nembhard to be reliable, hard-
working, and conscientious. That may be true. But Nembhard
could also be mistaken as to the facts.
In addition, Respondent’s actions toward the shop stewards
are inconsistent with a grant of a third day off for Nembhard.
Respondent liberally granted 2 days off for all stewards to at-
tend the training. In the past, when night-shift employees were
scheduled to attend daytime negotiations their schedules were
changed to the day shift and those days were marked as ex-
cused absences. Thus, they were not given extra days off so
they could be present at negotiations.
Even assuming that I find that Respondent granted Nemb-
hard Sunday as an excused absence and then withdrew its
agreement, I cannot find that General Counsel has established
that the Union’s activities in picketing the shareholders meeting
was a motivating factor in the denial of the excused day off for
Nembhard. Wright Line, 251 NLRB 1083 (1980). I find no
causal connection between the two events. Nembhard appar-
ently was not present during the picketing and was not part of
the group who were suspended for engaging in the picketing.
Although she was a steward there was no evidence of her ac-
tivities in that position. The mere fact that the expected union
activities occurred at about the same time that Gibson was in-
volved with Nembhard’s request to attend the shop steward
training cannot provide the necessary connection to establish a
prima facie case.
I accordingly find and conclude that Gibson did not grant
Nembhard an excused third day of absence, and did not unlaw-
fully thereafter deny such approval. I will recommend that this
allegation be dismissed.
C. The Picketing at the Shareholders Meeting
1. Did the Union engage in picketing?
The complaint alleges that Respondent violated Section
8(a)(3) and (1) of the Act by disciplining 38 employees because
they participated in the Union’s demonstration at the Sheraton
Hotel on May 4.
Respondent argues that the picketing violated the no-strike
no-picketing clause set forth in article 28 of the collective-
bargaining agreement and that its suspension of the employees
was justified because the provision permits discipline of work-
ers who engage in such conduct. General Counsel first argues
that the demonstration did not constitute picketing and there-
fore no violation of article 28 occurred. General Counsel argues
alternatively that even if it the employees picketed they were
engaged in protected concerted activity and that Respondent
has not established that the Union waived the statutory rights of
off-duty employees to engage in such picketing.
The evidence establishes that classic, traditional picketing
occurred at the Sheraton Hotel on May 4. Thus, as the photo-
graphs and videotape of the picketing demonstrate, individuals
carrying placards stood at the hotel entrances, and that pickets
handed leaflets to cars which stopped to receive them. Painters
District Council 9 (We’re Associates), 329 NLRB 140, 142
(1999). Even if the demonstrators merely stood with picket
signs talking to each other, picketing has been proven. Patrol-
ling either with or without signs is not essential to a finding of
picketing. Service Employees Local 87 (Trinity Building Co.),
312 NLRB 715, 743 (1993); Mine Workers District 29 (New
Beckley Mining Co.), 304 NLRB 71, 72 (1991).
General Counsel argues that no picketing occurred since the
demonstration occurred at a nonwork place and accordingly no
appeals could be made to employees or customers to refuse to
enter a place of business or to boycott the business. Comcast
Television of New Haven, 325 NLRB 833, 836 (1998). “The
important feature of picketing appears to be the posting by a
labor organization or by strikers of individuals at the approach
to a place of business to accomplish a purpose which advances
the cause of the union, such as keeping employees away from
work or keeping customers away from the employer’s busi-
ness.” Lumber & Sawmill Workers Local. 2797 (Stoltze Land &
Lumber Co.), 156 NLRB 388, 394 (1965). “Picketing has been
defined as conduct ‘which may induce action of one kind or
another irrespective of the nature of the ideas which are being
disseminated.’” Service Employees Local 254 (Womens & In-
fants Hospital), 324 NLRB 743, 749 (1997).
The evidence is clear that picketing took place. Picket signs
were carried by 20 individuals and union official Meyer re-
ferred repeatedly in his testimony to the “picketing.” The signs
stated that unfair labor practice charges were filed against Re-
spondent. In addition, a handbill was distributed which noted
that the unit employees were underpaid, a strike may occur and
which urged the shareholders arriving for the meeting to ques-
tion Respondent’s conduct toward its employees and the profit-
ability of the company. The picketing and handbilling sought to
induce action by the shareholders to, at a minimum, challenge
Respondent’s actions concerning its employees, and at a maxi-
mum, to urge shareholders to sell their stock before the occur-
rence of an “unavoidable [strike] jeopardizing your profits. . . .”
The ultimate purpose of the Union’s action was to “advance the
cause of the union” by pressuring the shareholders to encourage
Respondent to bargain with it. I accordingly find that the Union
picketed at the Sheraton Hotel on May 4.
2. The suspensions
The right to picket is one of the basic protected activities un-
der Section 7 of the Act which provides that employees have
the right to “assist labor organizations” and to “engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection . . . .” The picketing had as its
express purpose, as set forth on the signs, the protest of the
unfair labor practices which had already been filed by the Un-
ion. Another object was to cause Respondent’s stockholders to
persuade it to return to the bargaining table. Both purposes are
consistent with employees’ rights under Section 7 of the Act.
Picketing in pursuit of those ends was clearly permissible.
Respondent asserts that it was justified in suspending em-
ployees for engaging in picketing at the Sheraton Hotel in vio-
lation of article 28 of the collective-bargaining agreement. As
set forth above, that Article contains a traditional no-lockout,
no-strike, no-picketing clause.
The Supreme Court has stated that such clauses permissibly
waive “the employees’ right to strike and . . . the employers’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
right to lockout to enforce their respective economic demands
during the term of those contracts. . . . .Individuals violating
such clauses appropriately lose their status as employees.” Mas-
tro Plastics Corp. v. NLRB, 350 U.S. 278, 280 (1956). The
Court has also held, however, that a waiver of a statutorily pro-
tected right must be “clear and unmistakable.” Metropolitan
Edison Co. v. NLRB, 460 U.S. 705, 708 (1983).
In deciding whether a union, by its contractual no-picketing
and no-strike clause, waived employees’ Section 7 right to
picket or strike, the Respondent must prove as an affirmative
defense that such activity was unprotected because it violated
the no-picketing or no-strike provision. Silver State Disposal
Service, 326 NLRB 84, 85 (1998),
Whether the Union waived its member-employees’ Section 7
right to picket, “turns upon the proper interpretation of the par-
ties’ agreement.” Lear Siegler, Inc., 293 NLRB 446, 447
(1989). To determine that intent, the Board examines the con-
tract language and relevant extrinsic evidence. Silver State,
above, at 86; Lear Siegler, above, at 447; Indianapolis Power
Co., 291 NLRB 1039, 1040 (1988).
The Board has stated that in construing such a clause, only
“an objective construction” of the provision need be referred to,
and that in “interpreting contractual language, words must be
given their ‘ordinary and reasonable meaning.’’. Silver State,
above, at 86.
Here, as in Silver State, no extrinsic evidence has been ad-
duced concerning the parties’ intent regarding the no-strike
clause. Thus, as in Silver State, “the language of the express no-
strike clause ‘is plainly the only proper guide for determining
whether the employer and the union intended to forbid’ the
unauthorized [strike].” 326 NLRB at 87.
Respondent argues for a literal interpretation of article 28,
preferring simply that the clause be read in the disjunctive—
each paragraph given its own, separate meaning. Thus, accord-
ing to Respondent, that sentence providing that “the Union
agrees that it not call, participate in, or sanction . . . any picket-
ing” is controlling and exclusive of the rest of article 28.
However, I find that, consistent with the precedents above,
the entire provision must be read to glean the parties’ intent to
prohibit picketing. Thus, when an “objective construction” is
given to article 28, it is clear that the parties’ intent, as set forth
in the first sentence, in prohibiting picketing is to “prevent any
suspension of work. . . .” That interpretation is supported by the
following language in the clause. “To carry out this intention
[to prevent any suspension of work due to labor disputes] Re-
spondent agrees not to lock out workers, and the Union agrees
that it will not call, participate in, or sanction any picketing
activity.”
Thus, article 28, when properly read as a whole, sets forth a
clear intention by the parties that picketing is prohibited where
it leads to a suspension of work due to labor disputes. There has
been no evidence that the picketing caused a suspension of
work. The picketing was engaged in by nonemployees and
possibly by employees 50 miles away from the plant at a hotel
which was the location of Respondent’s annual shareholder’s
meeting. Even assuming that Respondent’s employees, who
were either excused from work or off duty, engaged in such
picketing, there has been no showing that a suspension of work
resulted from the picketing.
In addition, I reject Respondent’s reliance upon article 28 to
discipline its employees who engaged in the demonstration.
Article 28 authorizes discipline if the employee engaged in an
“unauthorized strike, boycott, picketing, organized work slow-
down or stoppage, or any other type of interference with the
Employer’s business.” As set forth above, the employees were
suspended for engaging in picketing. Clearly, the picketing was
not unauthorized. It was authorized by the Union and the pick-
eting was peaceful.
Based upon the above, I find that Respondent has not met its
burden of showing that the Union “clearly and unmistakably”
waived the employees’ right to engage in union or concerted
activities by their picketing or engaging in the demonstration on
May 4. I find that their engaging in such activities was pro-
tected by Section 7 of the Act, and I accordingly find and con-
clude that Respondent’s suspension of 38 employees for par-
ticipating in the demonstration violated Section 8(a)(3) and (1)
of the Act.
3. The alleged threats to discharge
The amended complaint alleges that Gibson’s letters of April
28 and May 129 unlawfully threatened employees with dis-
charge for participating in protected concerted activities.
I credit Tomlins’ testimony that the letters were posted in the
plant for more than 1 week. Although the April 28 letter does
not mention the picketing at the Sheraton Hotel, it is clear that
Respondent was aware, through Gibson and Gray, that the
shareholder’s meeting was the intended site for the picketing.
Further, inasmuch as the letter was posted at the plant for more
than 1 week, Respondent permitted the message to remain
posted without alteration even after the May 4 picketing, which
was 6 days after the posting.
Thus, Respondent cannot argue that the letter was addressed
to picketing or possible work stoppages at the plant which
would arguably be prohibited by Article 28. Moreover, the May
12 letter specifically refers to the April 28 letter as being a ref-
erence to picketing at the shareholder’s meeting.
Respondent’s official Gray testified that the letters’ intent
was not to threaten the employees. However, its motive is ir-
relevant.
The test under Section 8(a)(1) does not ‘turn on the em-
ployer’s motive or whether the coercion succeeded or failed
[but instead on] whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with the

9 Respondent asserts that the allegation concerning the May 12 letter,
asserted for the first time in the amended complaint, should be barred
by Section 10(b) of the Act. I find that the complaint amendment meets
the test for relatedness set forth in Nickels Bakery of Indiana, 296
NLRB 927 (1989). This is particularly so where the April 28 letter
(erroneously called the April 27 letter in the charge) was alleged in the
charge filed on May 1, 2000, and the original complaint alleges the
unlawfulness of the April 28 letter. The April 28 and the May 12 letter
involve the same allegations of the complaint, they arise out of the
same circumstances, and Respondent’s defense, that they are not
unlawful threats because the picketing was a violation of the contract, is
identical.
ENGELHARD CORP. 61
free exercise of employee rights under the Act.” Williamhouse
of California, Inc., 317 NLRB 699, 713 (1995) (emphasis in
original).
Inasmuch as I have found, above, that employees were
unlawfully suspended for participating in the demonstration on
May 4, it follows that the April 28 threat to discipline them if
they engaged in that right to participate in union and concerted
activities violates Section 8(a)(1) of the Act. The threat rea-
sonably tended to interfere with their right to engage in such
activities.
Similarly, the letter of May 12 informed employees that they
would be disciplined “as a result of the picketing.” It added that
it was aware that “there are further rumors that additional pick-
ets are being planned by our employees with union support. As
we said in our original letter, we consider any future actions
like those described in the collective bargaining agreement to
be a violation of Article 28.”
Respondent argues that the May 12 letter simply informs
employees of their obligations under article 28. However, I
believe that Respondent reads the letter too narrowly. Specific
mention was made of the May 4 picketing and its discipline of
employees for engaging in such conduct allegedly in violation
of article 28. Given the context of this letter, the fact that em-
ployees were suspended beginning on the day the letter was
posted, and that Respondent should have been aware that article
28 was not violated by the picketing, I find that this letter con-
stitutes an implicit threat that similar disciplinary action would
be taken against other employees if they engaged in protected,
concerted activity. Webco Industries, 327 NLRB 172, 173
(1998).
I accordingly find and conclude that the letters of April 28
and May 12 violated Section 8(a)(1) of the Act.
4. The alleged surveillance
a. The affirmative defense
The complaint alleges that Respondent engaged in unlawful
surveillance of its employees’ union activities at the Sheraton
Hotel on May 4. Respondent stipulated that it videotaped the
picketing and handbilling activities which took place at that
location.
Respondent argues that this allegation is barred by Section
10(b) of the Act which requires that a charge be filed within 6
months of an unfair labor practice. Here, no charge has been
filed alleging surveillance of employees. Accordingly, Respon-
dent contends that the complaint allegation must be dismissed
as untimely.
In considering the sufficiency of a charge to support an alle-
gation in the complaint under Section 10(b), “the Board has
generally required that the complaint allegation be related to
and arise out of the same situation as the conduct alleged to be
unlawful in the underlying charge.” Nickels Bakery of Indiana,
296 NLRB 927 (1989).
As here, Nickles Bakery involved a situation where a com-
plaint contained an allegation which was not the subject matter
of a charge. The Board held that in determining whether the
complaint allegations are sufficiently related to the charge alle-
gations, it applies a “closely related” test comprised of the fol-
lowing factors: (1) whether the allegations involve the same
legal theory (2) whether the allegations arise from the same
factual circumstances or sequence of events and (3) whether a
respondent would raise similar defenses to the allegations.
Under this “closely related” test, I find that the complaint al-
legation of unlawful surveillance is closely related to the timely
filed amended charge which alleges that Respondent coerced
shop stewards in the exercise of their Section 7 rights by threat-
ening to discipline union members if they engage in peaceful
picketing of Respondent’s stockholder’s meeting.
First, the complaint allegation of unlawful surveillance of the
picketing and the charge alleging a threat to discipline union
members for peaceful picketing involve the same legal the-
ory—the interference with employees’ Section 7 right to peace-
fully picket Respondent’s shareholder’s meeting. Second, the
complaint allegation arises from the same factual circumstances
and sequence of events as the charge—the picketing of Re-
spondent’s May 4 shareholder’s meeting and the videotaping of
union members who were present at the picketing. “The Board
has generally found that there is [a] sufficient relation between
the charge and [subsequent allegations] in circumstances in-
volving ‘acts that are part of the same course of conduct . . . .’”
Ross Stores, Inc., 329 NLRB 573 (1999). Finally, the allega-
tions in the charge and complaint share a common defense—
both are predicated upon the argument that the picketing vio-
lated the collective-bargaining agreement and was unprotected.
I accordingly reject the affirmative defense that the com-
plaint allegation of surveillance must be dismissed as untimely
pursuant to Section 10(b) of the Act.
b. The merits
In National Steel & Shipbuilding Co., 324 NLRB 499
(1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998), the Board af-
firmed the guiding principles set forth in F. W. Woolworth Co.,
310 NLRB 1197 (1993) concerning surveillance of the union
activities of its employees by means of videotaping such activi-
ties. The Board stated:

[A]n employer’s mere observation of open, public union ac-
tivity on or near its property does not constitute unlawful sur-
veillance. Photographing and videotaping such activity clearly
constitute more than mere observation, however, because
such pictorial recordkeeping tends to create fear among em-
ployees of future reprisals.

The Board in Woolworth reaffirmed the principle that photo-
graphing in the mere belief that something might happen does
not justify the employer’s conduct when balanced against the
tendency of that conduct to interfere with employees’ right to
engage in concerted activity.

Rather, the Board requires an employer in such photographing
or videotaping to demonstrate that it had a reasonable basis to
have anticipated misconduct by the employees. ‘The Board
may properly require a company to provide a solid justifica-
tion for its resort to anticipatory photographing.’ The inquiry
is whether the photographing or videotaping has a reasonable
tendency to interfere with protected activity under the circum-
stances in each case.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
“The Board has long held that, absent proper justification,
the photographing of employees engaged in union or protected
concerted activities violates the Act because it has a tendency
to intimidate them.” Titan Wheel Corp. of Illinois, 333 NLRB
190, 194 (2001). Absent justification, therefore, it is clear that
the videotaping which occurred at the Sheraton Hotel on May
4, had a tendency to create fear among employees of future
retaliation. Waco, Inc., 273 NLRB 746, 747 (1984).
The facts here present a clearer case for finding that the
videotaping had a tendency to create fear. Thus, the photogra-
phy was accompanied by a threat that would suggest coercion.
As set forth above, Gibson’s letter of April 28 warned that any
employee who participated in an unauthorized job action, such
as the contemplated picketing, was subject to immediate dis-
charge. According to the testimony of Gray and Meyer, at the
time that Gibson wrote the letter she and Gray were aware that
the picketing would take place at the shareholder’s meeting.10 I
have found that the letter of April 28 constitutes, as alleged, an
unlawful threat of discipline for their engaging in union and
protected concerted activity.
By unlawfully threatening employees with discharge if they
engaged in the picketing and then videotaping them, the work-
ers could reasonably fear that their presence at the demonstra-
tion would result in discipline. The fact that those employees
who did appear at the picketing were first threatened, then iden-
tified through the videotape and finally suspended for their
allegedly engaging in picketing provides a strong basis for con-
cluding that the videotaping had as its purpose the instillation
of fear that by appearing at the demonstration they would be
disciplined. In this connection it is important to note that Meyer
sought to protect the employees from disciplinary action pursu-
ant to the no-picketing clause by directing them not to engage
in picketing or handbilling. However, their abstention from
those activities had no effect upon Respondent’s decision to
suspend them. Their mere appearance at the picketing was suf-
ficient.
“The record provides no basis for Respondent reasonably to
have anticipated misconduct by those picketing and handbill-
ing, and there is no evidence that misconduct did, in fact, oc-
cur.” Woolworth, above. Respondent official Gray’s assertion
that he directed that the activities be videotaped in order to
document attempts to disrupt the annual meeting and record
instances of possible violent or illegal activities, and to obtain
an injunction if necessary, are not sufficient to justify the pho-
tography. As set forth above, photographing in the mere belief
that “something might happen” does not justify Respondent’s
conduct when balanced against the tendency of that conduct to
interfere with employees’ right to engage in concerted activity.
Sonoma Mission Inn & Spa, 322 NLRB 898, 902 (1997).
First, the taping began as the demonstrators began to leave
the bus upon its arrival at the hotel, clearly before they could
engage in any misconduct. Sonoma, above, at 902.Thus, the
activity of taping them had nothing to do with any possible
illegal activity but to record who was part of the Union’s pro-

10 Gibson’s reference to the picketing in the May 12 letter establishes
that the April 28 letter was designed to advise employees that their
participation in the anticipated picketing was a violation of the contract.
test. Indeed, Gray conceded that the photographs were used to
identify the employees involved for the purpose of imposing
discipline for their picketing. It should be noted in this regard
that there was no evidence that Respondent’s employees carried
picket signs or distributed handbills. Meyer’s testimony that
none did so is uncontradicted.
Respondent further argues that it permissibly sought to
document the employees’ activity which was in violation of the
contract’s no strike-no picketing clause. However, as set forth
above, I find that no violation of that clause occurred because
the purpose of the clause was to prevent work stoppages and
the suspension of work, neither of which occurred as a result of
the picketing. Accordingly, I cannot find that Respondent had
even a “colorable basis” for justifiably videotaping the picket-
ing. See Roadway Express, 271 NLRB 1238, 1244 (1984).
Respondent has presented no credible evidence of a justifica-
tion for its videotaping of the Union’s picketing and handbilling
at the Sheraton Hotel. Accordingly, I conclude that by conduct-
ing such surveillance it violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Engelhard Corporation, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local 1430, International Brotherhood of Electrical Work-
ers, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By suspending the following employees for 3 days in May
2000, for participating in a union demonstration, Respondent
violated Section 8(a)(3) and (1) of the Act:

Christopher Bahr, Gregory Borelli, Eric Camper, Wayne
Cantrell, Arthur Chase, Carlos Colmenares, Roger Croft,
Joseph Dendera, Vincent Diaz, Dallas Dickens, Peter
DiNapoli, Warren Dunn, Lori Elsner, Nelvis Esteves, Carlos
Fernandes, Francis Hard, Pamela Hard, James Hamilton,
Ron Hyslop, John Keels, Thomas Kimbrew, Bernard Kopf
III, James Mahoney, George Hans, Dana Mason, Kathleen
Nenni, James Papa, Marcus Ruff, Richard Selleck, George
Sekel, Marc Sierzega, Daniel Smetana, William Sinzer III,
Paul Szklenka, Jeffrey Tomlins, Robert Vitolo, Donald Vas-
sallo, Keith Urban.

4. By engaging in surveillance of employees engaged in un-
ion activities, Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees with discharge on April 28 and
May 12, 2000, if they engaged in union activities, Respondent
violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent unlawfully suspended the
employees named above, I find that it must be ordered to make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of suspension, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
ENGELHARD CORP. 63
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
There was testimony to the effect that the employees were
suspended for nonconsecutive days, and that during the days
upon which they were not suspended they were prohibited from
entering Respondent’s premises. Accordingly, they were not
eligible to work those days and therefore not eligible to receive
overtime pay during such days. General Counsel alleges that
their inability to receive overtime pay should be remedied in
this Decision. Inasmuch as I find that this issue was not fully
litigated at the hearing, this matter should be raised in the com-
pliance part of this proceeding.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Engelhard Corporation, Peekskill, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending or discriminating against employees for par-
ticipating in union activities or protected concerted activities.
(b) Engaging in surveillance of employees engaged in union
activities and protected concerted activities.
(c) Threatening employees with discharge if they engage in
union activities or protected concerted activities.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make whole the following employees for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision:

Christopher Bahr, Gregory Borelli, Eric Camper, Wayne
Cantrell, Arthur Chase, Carlos Colmenares, Roger Croft, Jo-
seph Dendera, Vincent Diaz, Dallas Dickens, Peter DiNapoli,
Warren Dunn, Lori Elsner, Nelvis Esteves, Carlos Fernandes,
Francis Hard, Pamela Hard, James Hamilton, Ron Hyslop,
John Keels, Thomas Kimbrew, Bernard Kopf III, James Ma-
honey, George Hans, Dana Mason, Kathleen Nenni, James

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Papa, Marcus Ruff, Richard Selleck, George Sekel, Marc
Sierzega, Daniel Smetana, William Sinzer III, Paul Szklenka,
Jeffrey Tomlins, Robert Vitolo, Donald Vassallo, Keith Ur-
ban.

(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspensions, and within 3
days thereafter notify the employees in writing that this has
been done and that the suspensions will not be used against
them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Peekskill, New York, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 28, 2000.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”