Metropolitan Edison Co.

National Labor Relations Board - Board Decisions

Jul 17, 1986

279 N.L.R.B. 313 (N.L.R.B. 1986)

METROPOLITAN EDISON CO.
Metropolitan Edison Company and Local 803, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO. Cases 4-CA-12309 and 4-CA-
13068
17 July 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
On 11 February 1983 Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and
answering briefs; the General Counsel filed cross-
exceptions and a supporting brief; and the Charg-
ing Party filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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 conclusions only to the extent consistent with
this Decision and Order.
This case involves two complaints consolidated
for hearing. The judge found in Case 4-CA-12309
that the Respondent violated Section 8(a)(1) of the
Act in June 1981 when it threatened employees
with discipline if they failed to cross a picket line
at a customer's plant. In addition, the judge found
in Case 4-CA-13068 that the Respondent violated
Section 8(a)(3) and (1) of the Act by disciplining 14
employees who refused to cross a picket line at the
Respondent's headquarters in June 1982. For rea-
sons set forth below, we reverse the judge's find-
ings and conclusions, and we dismiss the complaint
in its entirety.
The Respondent is a public utility which pro-
vides electricity throughout southeastern Pennsyl-
vania. The Respondent and the Union have been
parties to a series of collective-bargaining contracts
covering the operating employees at issue . The rel-
evant contract here, effective from 1 May 1981
through 30 April 1983, contains the following
clause:
ARTICLE XI
NO STRIKES-NO LOCKOUTS
11.1 The Brotherhood and its members agree
that during the term of this agreement there
shall be no strikes or walkouts by the Brother-
' The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
313
hood or its members, and the Company agrees
that there shall be no lockouts of the Brother-
hood or its members, it being the desire of
both parties to provide uninterrupted and con-
tinuous service to the public.
This language has appeared in all previous con-
tracts between the parties for at least 25 years, and
was not discussed during the prior three contract
negotiations in 1978, 1980, and 1981. Arbitration
awards issued in 1973 and 1979 which interpreted
the no-strike/no-lockout clause to bar sympathy
strikes and refusals by the Respondent's employees
to cross picket lines established by stranger labor
organizations. There have been no arbitral deci-
sions to the contrary.
In addition to the no-strike/no-lockout clause,
the contract contains other references to the need
for the Respondent to provide continuous service
to its customers. Specifically, article II provides
that employees will abide by the Company's rules
and regulations in the interest, inter alia, of "conti-
nuity of service"; articles III and VI permit the
Company to allocate personal holidays and vaca-
tion periods, "in order to insure orderly operations
and adequate continuous service to the public"; and
article V provides that employees shall not be re-
quired to work out-of-doors in inclement weather
unless such work is required to protect life or
property or to maintain service. With the foregoing
as background, we turn to the two cases consoli-
dated in this proceeding.
Case 4-CA-12309
The facts in this case were stipulated by the par-
ties. During June 1981 crews of the Respondent's
employees working at the Berks County TV Cable
Company were confronted by an informational
picket line established by the Reading Building and
Trades Council. On several occasions the crews,
after consultation with their supervisors, withdrew
from the site because of the picketing.
On 22 June the Respondent's officials advised
the Union's president and employees that if the em-
ployees refused to cross the picket line at the site
on the following morning, they would be subject
to disciplinary action, including suspension. The
work was completed between 23 and 28 June, and
no disciplinary action was taken against any em-
ployee because of the picketing at the project.
The judge found that the contractual no-strike
clause did not waive the employees' statutory right
to refuse to cross picket lines of other unions. Ac-
cordingly, he concluded that the Respondent's
threats of disciplinary action violated Section
8(a)(1) of the Act. In so finding, the judge relied
279 NLRB No. 47
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Board precedent applicable at the time which
held that a no-strike clause barred refusals to cross
stranger picket lines only if the clause expressly re-
ferred to such lines or there was extrinsic evidence
clearly showing that the contracting parties intend-
ed to bar such refusals.2
The Board , however, in Indianapolis Power &
Light Co., 273 NLRB 1715 (1985), held that a
broad no-strike clause , such as that presented here,
waives the employees ' right to honor stranger
picket lines, absent evidence that the parties intend-
ed to exclude sympathy strikes from the no-strike
clause 's scope . Here, the judge correctly found no
evidence , either in bargaining history or past prac-
tice, demonstrating that the parties expressly ex-
cluded sympathy strikes from coverage of the no-
strike clause . Accordingly, we find that the Re-
spondent did not violate the Act when it threat-
ened to discipline employees if they engaged in un-
protected refusals to cross the picket line at the
Berks County TV Cable Company in June 1981.
Case 4-CA-13068
This case involves picketing by Roofers Local 30
on the morning of 2 June 1982 at the Respondent's
headquarters in Reading to protest the presence of
a nonunion firm which was performing roofing
renovation work on the Respondent's building. The
Respondent established a two-gate system to insu-
late its employees from the picket line, but the
Roofers did not honor the system and picketed at
the entrance reserved for the Respondent's employ-
ees. On 2 June, Local 30 picketed the headquarters'
premises from 6:30 to 11 a.m. with approximately
150 to 200 individuals. Pickets carried signs which
clearly identified the nonunion roofing contractor
as the employer with whom Local 30 had its area
standards dispute. The judge found that the picket-
ing was characterized by mass picketing and block-
ing of entrances, damage to vehicles, and threats
and abusive language directed against the Respond-
ent's personnel. Roofing nails dumped onto the
driveways by the pickets caused flat tires on nu-
merous cars. Pickets also dented several cars by
kicking them, and scratched some cars as they tried
to enter the premises. Nevertheless, 566 of the
headquarters' 625 employees crossed the picket line
and reported to work on time. Another 45 employ-
ees crossed the line and reported to work up to I
hour late.
Only 14 employees did not report to work until
after the picketing ceased. They did not cross the
line because of fear of injury to themselves or to
2 Gary-Hobart Water Corp, 210 NLRB 742 (1974), enfd 511 F 2d 284
(7th Cir 1975), cert denied 432 US. 925 (1975), Southern California
Edison Co, 243 NLRB 372 (1979), enfd 646 F 2d 1352 (9th Cir 1981)
their vehicles. Instead of crossing the line and
going to work, these employees met with the
Union's president at a swimming pool about a mile
from the headquarters facility to discuss what they
should do. The 14 employees who attended this
meeting returned to headquarters in the late morn-
ing, reporting for work after the pickets had dis-
persed. About a week later, each of the 14 employ-
ees was issued a written "record of disciplinary
action" slip which formally warned the employee
because "[y]ou failed to report to work at your
scheduled time and place until the pickets had
cleared the area or the picketing activity had
ceased." The warnings added that the employees
failed to adhere to the Respondent's "longstanding
position that it is each and every employee's re-
sponsibility to report to work at their scheduled
time and place despite the presence of picket
lines." The employees were told that additional in-
fractions could result in more severe disciplinary
action. They were not paid for the hours they did
not work.
In finding that the Respondent's disciplining of
the 14 employees was unlawful, the judge did not
analyze the case under the waiver principles uti-
lized in Case 4-CA-12309. As a threshold matter,
the judge found that Roofers Local 30's picketing
was unlawful secondary conduct under Section
8(b)(4) of the Act and therefore, even absent a
waiver, the Respondent's employees' refusal to
cross the picket line did not constitute protected
sympathy strike activity under Section 7 of the
Act. Nevertheless, the judge found that the em-
ployees were engaged in protected activity by
virtue of Section 502 of the Act, which provides
that "the quitting of labor by an employee or em-
ployees in good faith because of abnormally dan-
gerous conditions for work at the place of employ-
ment of such employee or employees [shall not] be
deemed a strike under this Act." In this regard, the
judge cited Local 30's mass blocking of entrances,
property damage, and threats of violence. He also
took into consideration the Respondent's inability
to provide security for employees attempting to
report to work, and what he found to be Local 30's
"demonstrated and reported proclivity for engag-
ing in picket line violence." In addition, the judge
found that the further delay of the 14 disciplined
employees in returning to work, even after the ces-
sation of the "abnormally dangerous" picketing,
was a consequence of the employees' exercise of
what the judge deemed a protected corollary right
under Section 502 to consult among themselves to
decide what collective action to take with respect
to the dangerous conditions. Accordingly, he held
that the Respondent violated Section 8(a)(1) of the
METROPOLITAN EDISON CO
Act by disciplining the 14 employees. Further, the
judge concluded that because the pool meeting was
an ad hoc union meeting , the Respondent's disci-
pline also violated Section 8(a)(3) of the Act.
We disagree . Assuming, arguendo , that picket
line violence and threats of such violence may con-
stitute "abnormally dangerous conditions" under
Section 502 , we find that the evidence does not
support the judge 's conclusion that the Roofers'
picketing presented abnormally dangerous working
conditions for the 14 employees. The test for deter-
mining if conditions are "abnormally dangerous"
under Section 502 is an objective one; the state of
mind of the employees invoking Section 502's pro-
tection is not what is controlling.3
Here, Local 30's unlawful picketing , although
reprehensible and clearly unprotected , did not pose
any "abnormally dangerous" condition for employ-
ees seeking to report to work. We note that there
is no evidence of physical assault against any
person. Pickets did not swing at, kick, or follow
any employee attempting to cross the line and
report to work. The threats and damage to em-
ployees' vehicles in this case do not rise to the
level of danger contemplated under Section 502.4
In addition , while not dispositive , it is significant
that 611 of the Respondent 's 625 employees report-
ed to work before the picketing ceased. On the
basis of the foregoing, we find that the General
Counsel has failed to sustain the burden of showing
by ascertainable, objective evidence that abnormal-
ly dangerous working conditions existed at the site
on 2 June 1982,5 Accordingly, we find that the em-
ployees' failure to report to work was not protect-
ed by the Act, and therefore the Respondent's dis-
cipline meted out to them was not unlawful.
ORDER
The complaint is dismissed.
9 Gateway Coal C o Y Mine W o r k e r s , 414 U S 368, 386-387 (1974),
Redwing Carriers , 130 NLRB 1208 , 1209 (1961 ), enfd as modified 325
F 2d 1011 (DC Cir, 1963), cert denied 377 U S 905 (1964), Goodyear
Tire & Rubber Co, 269 NLRB 881 (1984)
4 Prior Board decisions finding that Local 30 had engaged in picket
line violence, cited by the judge, are irrelevant in determining whether
abnormally dangerous conditions for work existed in the situation at issue
here
5 In view of this confusion , we find it unnecessary to pass on whether
the meeting at the swimming pool involved the exercise of any protected
rights under the Act, and we do not rely on the judge's discussion in that
regard
Joel H. Levinson, Esq. and Carol F. Laskin, Esq., for the
General Counsel.
George A. Burnstein , Esq., of Philadelphia, Pennsylvania,
for the Respondent.
Alaine S. Williams, Esq., of Philadelphia , Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
315
MARVIN ROTH , Administrative Law Judge. These
consolidated cases were heard at Reading , Pennsylvania,
on November 9, 1982 . The charges were filed , respec-
tively , on August 7, 1981, and July 8, 1982 , by Local
803, International Brotherhood of Electrical Workers,
AFL-CIO (the Union). The complaint in Case 4-CA-
12309 , which issued on September 22, 1981 , alleges that
Metropolitan Edison Company (Respondent or the Com-
pany) violated Section 8(a)(1) of the National Labor Re-
lations Act. The gravamen of the complaint is that about
June 22, 1981 , the Company allegedly unlawfully threat-
ened its employees represented by the Union with sus-
pension and other reprisals if they refused to cross a
picket line established by Reading Building and Trades
Council at Berks County TV Cable Company in Read-
ing, Pennsylvania . The complaint in Case 4-CA-13068,
which issued on August 12 and was amended on October
25, 1982 , alleges that the Company violated Section
8(a)(1) and (3) of the Act. The gravamen of this com-
plaint is that about June 11, 1982, the Company allegedly
unlawfully issued disciplinary warnings to 14 named em-
ployees, represented by the Union , because they refused
to cross a picket line established by Local 30, Composi-
tion Roofers, Damp and Waterproof Workers at the
Company 's headquarters in Muhlenberg Township,
Pennsylvania . By its respective answers, the Company
denies the commission of the alleged unfair labor prac-
tices. By its answer in Case 4-CA-13068 , the Company
also raises three affirmative defenses . Two of these de-
fenses are also pertinent to Case 4-CA-12309 and,
indeed , present the principal issues in that case , namely,
(1) whether the Union contractually waived any right of
the employees to refuse to cross the picket line, and (2)
whether the General Counsel , by reason of a stipulation
in a prior unfair labor practice case , is precluded from
asserting that there was no waiver . As will be discussed,
Case 4-CA-13068 presents a more complex situation, in-
volving other asserted questions of fact and law. All par-
ties were afforded full opportunity to participate, to
present relevant evidence , to argue orally , and to file
briefs. The General Counsel, the Union, and the Compa-
ny each filed a brief.
On the entire record in this case' and from my obser-
vation of the demeanor of the witnesses , and consider-
ation of the arguments of counsel and the briefs submit-
ted by the parties , I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a Pennsylvania corporation , is a public
utility engaged in providing electricity throughout south-
eastern Pennsylvania . The Company' s corporate head-
quarters are located in Reading , Pennsylvania . In the op-
eration of its business , the Company annually derives
i The General Counsel's motion to correct the transcript is noted and
corrected
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gross revenues in excess of $250,000, and annually re-
ceives at its Pennsylvania facilities goods and materials
valued in excess of $50,000 directly from points outside
of Pennsylvania . It is undisputed , and I so find , that the
Company is an employer engaged in commerce withing
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: the Company's Operation, the
Collective-Bargaining Relationship, Pertinent Contract
Provisions, and Litigation Involving the No-Strike
Clause
The Company is a public utility and regulated as such
by the Commonwealth of Pennsylvania. The Company,
like other public utilities, is required by state law to
"Furnish and maintain adequate , efficient , safe, and rea-
sonable service and facilities, and to make all such re-
pairs, changes , alterations, substitutions , extensions and
improvements in or to such service or facilities as shall
be necessary or proper for the accommodation, conven-
ience and safety of its patrons, employees and the
public." State law further requires that: "such service
shall be reasonably continuous and without unreasonable
interruptions or delay" 66 Pa. C.S.A. 1501. The company
structure starts with the main corporate headquarters lo-
cated in Reading (Muhlenberg Township), Pennsylvania,
and it has four operating divisions headquartered in
York, Lebanon, Reading, and Easton, Pennsylvania, re-
spectively. The Company's operating employees are rep-
resented by the International Brotherhood of Electrical
Workers Union, and they are organized into five local
unions : Local Union 1261 in York, Local Union 563 in
Middletown, Local Union 1482 in Lebanon, Local Union
803 (the Union) in Reading, and Local Union 603 in
Easton, Pennsylvania. These five locals bargain together
through a Systems Council, U-9, with the Company for
one unified collective-bargaining agreement that covers
the entire system. The Company has approximately 1900
employees, of whom 1600 are represented by the IBEW.
At the headquarters facility, which has a large number of
clerical employees, there are approximately 625 employ-
ees, of whom about 200 are represented in the bargaining
unit.
The current collective-bargaining contract was execut-
ed on June 19, 1981, and is effective by its terms from
May 1, 1981, through April 30, 1983. Article XI of the
contract, captioned "no strikes-no lockouts" provides as
follows:
11.1. The Brotherhood and its members agree that
during the term of this agreement , there shall be no
strikes or lockouts by the Brotherhood or its mem-
bers, and the Company agrees that there shall be no
lockout of the Brotherhood or its members, it being
the desire of both parties to provide uninterrupted
and continuous service to the public
The identical language has appeared in all prior con-
tracts for at least a period of 25 years. The current con-
tract also provides (art. IX) for a grievance procedure
and submission of unresolved grievances to binding arbi-
tration by a board of arbitration , consisting of a company
representative , a union representative , and a third , impar-
tial member. Article IX defines a grievance as a "viola-
tion of the law governing employer-employee relation-
ship, or a violation of the terms of this agreement, or any
type of supervisory conduct which unjustly causes any
employee to lose his/her job or any benefits arising out
of his/her job." Article IX further provides with respect
to the arbitration procedure: "A decision made by a ma-
jority of the members of such a Board of Arbitration
shall be binding upon the Company and upon the Broth-
erhood for the term fo this agreemeent." Likewise, iden-
tical language has appeared in all prior contracts for at
least a period of 25 years. Article X of the contract pro-
vides for submission of unresolved company complaints
to binding arbitration in accordance with the procedure
established under article IX, specifically "because of any
matter in connection with this agreement , or because of
failure of members of the Brotherhood to comply with
the terms of this agreement." The contract does not ex-
pressly relate the grievances and arbitration and the no-
strikes-no-lockouts provisions. In addition to the no-
strikes-no-lockouts article, the contract contains other
references to continuous service. Specifically: article II
provides that employees will abide by the Company's
rules and regulations in the interest, inter alia , of "conti-
nuity of service": articles III and VI permit the Compa-
ny to allocate personal holidays and vacation periods, re-
spectively, "in order to insure orderly operations and
adequate continuous service to the public"; and article V
provides that employees shall not be required to work
out-of-doors in inclement weather unless such work is re-
quired to protect life or property or maintain service.
Union President John Burkhart testified without contra-
diction that there was no discussion of the no-strikes-no-
lockouts article in any of the contract negotiations in
which he participated (1978, 1980, and 1981 ). No evi-
dence was presented concerning discussions, if any, of
the above-described provisions in any contract negotioa-
tions.
The no-strikes-no-lockouts clause and, specifically, the
right or alleged right of unit employees to refuse to cross
picket lines of other labor organizations have been the
subject of two contractual arbitration proceedings. In
1972 employees represented by Local 603 (the Easton
local) refused to cross a picket line established by a
building trades council at a motel construction site. The
council was protesting that the motel was being built
with nonunion labor The Company was in the process
of installing a transformer at the site. The Company sus-
pended each of the employees for 1-1/2 days because of
their refusal to cross the picket line. The Company also
gave written warnings to other employees who engaged
in a work stoppage in protest of the suspensions. Griev-
ances were filed, and the matter was submitted to con-
tractual arbitration. Local 603 did not argrue that the no-
strikes-no-lockouts clause was inapplicable to such picket
METROPOLITAN EDISON CO. 317
lines . Rather , Local 603 argued that the employees could
not be required to cross the picket line if they believed it
was unsafe to do so . However , Local 603 argued in sum
that the test of safety was a subjective one, i .e., depend-
ing on the state of mind of the employee , and that there
was no assurance of safety even if the line appeared to
be peaceful or the Union tested the line to determine if it
could be crossed safely . The Company contended that
the employees violated the no-strike clause , although as a
matter of policy , it would not require employees to cross
a picket line if there was evidence that it would be
unsafe, or if the pickets were members of a striking
union.
Impartial Arbitrator S. Stanley Alderfer , with the con-
currence of the company arbitrator (the union arbitrator
dissenting), denied the grievances . In his opinion, Arbi-
trator Alderfer held that : "In the absence of provision
which specifically states that employees are not required
to cross a picket line the no-strike provision must be
upheld ." In sum , he proceeded on the premise that the
no-strike clause , on its face and without consideration of
any extrinsic evidence , prohibited the unit employees
from engaging in sympathy strikes or refusals to cross
other unions ' picket lines . Arbitrator Alderfer found on
the evidence that the picket line was "peaceful " and did
not pose "any latent danger or threat to safety in cross-
ing it ." He concluded that the Company had "proper
cause" to discipline the employees who refused to cross
the picket line and those who struck in protest of their
suspension
In 1977 some 137 company employees represented by
Local 563 (Middletown Local) failed or refused to cross
a picket line established by the Operating Engineers'
union at the Company 's Three Mile Island nuclear gener-
ating plant . Operating Engineers was protesting the fail-
ure of a maintenance contractor to employ members of
their union for certain tasks. The Company disciplined
the employees . Suspensions were given to 121 employees
ranging from 5 to 25 days . Local 563 President Lang and
Vice President Light were given the greatest discipline
(25 days' suspension). Local 563 filed grievances on
behalf of all the suspended employees except Lang, and
the matter proceeded through arbitration . Impartial Arbi-
trator S . Harry Galfand ruled that the grievance on
behalf of Light was not processed in a timely manner,
and therefore was not arbitrable . Consequently the arbi-
trator did not rule on the merits of the discipline given
Lang and Light . In this arbitration proceeding, Local
563 unequivocally asserted that the employees were priv-
ileged to refuse to cross the picket line. Local 563 argued
that the failure of employees to cross the picket line did
not constitute a work stoppage within the meaning of the
contract , and that , in any event, the employees were jus-
tified , either because they feared violent reprisals from
the pickets , or because they were not adequately ap-
prised by the Company that they were obliged to cross.
The Company restated its position previously asserted
before Arbitrator Alderfer . Arbitrator Galfand held, on
the authority of and in agreement with Arbitrator Al-
derfer's decision , that: "The term `strikes or walkouts'
must be considered as comprehending an unwarranted
refusal to cross a stranger picket line , particularly in the
context in which it appears ," i.e., the reference to unin-
terrupted and continuous service . Like Arbitrator Al-
derfer , he did not consider any extrinsic evidence on the
applicability of the no-strike article. Arbitrator Galfand
found on the evidence that the Company made clear its
position that the employees were required to cross the
picket line , that the line did not present any real danger
to safety , and that the alleged fear of violence was a pre-
text for employee unwillingness to cross the picket line.
The arbitrator held that the Company had "proper
cause" for disciplining the employees , but that the sus-
pensions were excessive in some cases . He directed that
the discipline be reduced accordingly.
In the meantime , Local 563 filed an unfair labor prac-
tice charge on behalf of its officers Lang and Light, and
a complaint was issued . (Case 4-CA-9144.) The com-
plaint in that case is not a part of the record in the
present case . However the issue presented , as defined by
Administrative Law Judge Michael O . Miller, was
whether the Company violated Section 8 (a)(1) and (3) of
the Act "when it disciplined union officers [Lang and
Light] more severely than rank-and-file union members
for their participation in an unlawful work stoppage." At
the hearing , Judge Miller asked whether "there is any
question but that the work stopage was a breach of the
collective-bargaining agreement ." Counsel for the Gener-
al Counsel answered : "No, that is not an issue of the liti-
gation . We stipulate that it was in contravention of the
no strike clause ." After counsel for Respondent ex-
pressed concern that "I do not want to present my case
and find myself defending a new theory ," counsel for the
General Counsel again confirmed his stipulation concern-
ing the "illegality of the work stoppage ," and asserted in
his opening argument that the employees participated in
a "work stoppage in contravention of a no-strike clause
in the contract ." No evidence , beyond the General
Counsel 's stipulation , was presented on this aspect of the
case . Local 563 was not represented at the hearing. Sub-
sequently Judge Miller held that the Company 's disci-
pline of Light and Lang , "to the extent that it exceeded
the discipline given to rank -and-file employees who re-
fused to cross the picket line on August 30, 1977 , consti-
tuted discrimination based on their holding of union
office and violated Section 8(a)(3) and ( 1) of the Act."
On the basis of the General Counsel's stipulation, Judge
Miller found , in his decision , "that the refusal of the
members of [Local 563] to cross the picket line and
report to work was a violation of the no-strike clause."
(252 NLRB 1030 (1980).) (See also fn. 4 at 1035.) On
September 30, 1980 , the Board , in agreement with Judge
Miller, held that the Company unlawfully discriminated
against Lang and Light "by disciplining them more se-
verely than rank -and-file employees for breaching the
no-strike clause in the contract ." (252 NLRB at 1030 fns.
I and 2 .) The Court of Appeals for the Third Circuit
subsequently granted enforcement of the Board 's Order
(663 F . 2d 478 ( 1981)). The Supreme Court granted certi-
orari , and the case is now pending before that Court.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts in Case 4-CA-12309
The facts in this case were stipulated by the parties.
During the spring of 1981,2 the Company was engaged
in the installation of a three-phase hag mount transformer
to provide three-phase service for the new operating
headquarters building at the Berk 's TV Cable Company
at 400 Riverfront Drove , Reading , Pennsylvania. Early
in April, the general contractor erecting the building
called and advised that the Company could commence
with the installation of the conduit and switching volt
necessary to connect the new building up with the exist-
ing Metropolitan Edison underground distribution lines.
Between April 8 and June 22, several crews of company
employees represented by the Union encountered an in-
formational picket line established by the Reading Build-
ing and Trades Council at the building site . On June 15
the crew was confronted by the informational pickets.
On that occasion , the Company waited until the pickets
left prior to installing a transformer . On June 18 a crew
assigned to the project to install cable and connecting
devices in the switching volt was confronted by the in-
formational pickets , and, after consultation with their su-
pervisor, withdrew from the construction site . On June
22 the crew assigned to make cable connections to the
switching volt and transformer were again confronted by
informational pickets . After conferring with their super-
visor, they withdrew from the site.
On the afternoon of June 22, Charles E. Herkert, man-
ager of labor relations for the Company, via telephone
told Union President John Burkhart (himself an employ-
ee) that if the employees represented by the Union re-
fused to cross the picket line at the Berks County TV
Cable Company on the following morning, they would
be subject to disciplinary action , which could include
days off. Also on the afternoon of June 22 , the Company
conducted a meeting in the EC & M department charged
with the work of completing the installation . William
Shelly , superintendent of construction , advised the em-
ployees that the Company had attempted to contact the
Union to ensure that the work would not be interfered
with . Shelly further stated that it was the Company's po-
sition that it had no choice but to serve the new custom-
er. He then told the employees that if they refused to do
the work on the project on the following morning, that
they would be subject to disciplinary action, which
could include days off. Thereafter the work was com-
pleted during the period between June 23 and 28. No
disciplinary action was taken against any employee as a
result of the incident involving the Berks TV Cable
project.
C. Analysis and Concluding Findings with Respect to
Case 4-CA-12309
This case presents, without complicating factors, the
issue of contractual waiver, and the related question of
whether the prior Metropolitan Edison case precludes
litigation of that issue . Therefore I shall use this case as
the vehicle for resolving these questions.
2 All dates in sec B are in 1981
First, I agree with the General Counsel's position (Br.
11-17) that the doctrines of res judicata and collateral es-
toppel do not preclude litigation of the waiver issue in
the present case.3 Under the doctrine of res judicata, "a
judgment on the merits in a prior suit involving the same
parties or their privies bars a second suit based on the
same cause of action." Lawlor v. National Screen Service
Corp., 349 U.S. 322, 326 (1955). Under that doctrine,
once a final and valid judgment on the merits is ren-
dered, "the parties to the suit are thereafter bound not
only as to every matter which was offered and received
to sustain or defeat the claim or demand but to every
other admissible matter which might have been offered
for that purpose." Commissioner v. Sunnen , 333 U.S. 591,
597-598 (1947). Thus res judicata precludes the relitiga-
tion of issues germane to a cause of action without
regard to whether they actually were raised or deter-
mined in the original litigation. However, res judicata
operates only for litigation arising out of the same "cause
of action, " which has been defined for res judicata pur-
poses as "a situation or state of facts which would entitle
a party to sustain an action and give him the right to
seek judicial interference on his behalf." Thompson v.
Zurich Insurance Co., 309 F.Supp. 1178, 1181 (D. Minn.
1970). The prior Metropolitan Edison case involved
events in 1977 and, specifically, the Company' s action in
disciplining two union officials more severely than other
members of Local 563 for their refusal to cross the Oper-
ating Engineers' picket line at Three Mile Island. The
present case involves the Company's threats of discipli-
nary action against members of the Union who refused
to cross the Building Trades' picket line at Berks TV
Cable Company in June 1981. There is no allegation of
disparate treatment of union officers. Therefore the
present case involves a different cause of action from
that in the prior case, and the doctrine of res judicata is
not applicable.
Under the doctrine of collateral estoppel, a judgment
on the merits in a prior suit involving the same parties or
their privies "precludes relitigation of issues actually liti-
gated and determined in the prior suit, regardless of
whether it was based on the same cause of action as the
second suit." Lawlor v. National Screen Service, supra
(emphasis added). Therefore, the doctrine of collateral
estoppel would be applicable if the stipulation in the
prior case were viewed as a matter "litigated and deter-
mined" in the prior case. The case authorities differ on
whether and to what extent the doctrine of collateral es-
toppel applies to a judgment based on stipulated facts.
The American Law Institute has adopted the position
that a judgment should conclusively establish stipulated
facts for the purpose of collateral estoppel only if that in-
tention is evidenced by the stipulation. See IB Moore,
Federal Practice ¶ 0.444 at fn. 4. That position was en-
dorsed and adopted in Anderson Clayton & Co. v. U.S.,
562 F.2d 972, 992-993 (5th Cir. 1977), cert. denied 436
3 The Company has by its answer to the complaint in Case 4-CA-
13068 , and in its brief (Br 9) invoked the stipulation in the prior case as a
defense in this proceeding However the Company has not explained
whether and if so why that stipulation should preclude litigation of the
contractual waiver issue
METROPOLITAN EDISON CO
U.S. 944 (1977). In Anderson, which was a tax case, the
Court held that: "The presumption is that an issue re-
solved by stipulation of concession in one suit is not con-
clusively established in a subsequent suit on a different
cause of action unless it is clear that the parties so in-
tended." The Anderson approach is particularly appropri-
ate to Board litigation, involving as it does, litigation by
a Government agency in furtherance of a statutory
scheme of regulation. The processing of Board cases
through investigation, litigation, and decision may well
involve the exercise of selective discretion to avoid issues
which might be more appropriately considered in a dif-
ferent context. Therefore, in determining whether the
stipulation in the prior case precludes litigation of the
issue of contractual waiver in the present case, we
should look to the evident purpose of the stipulation.
I find, on consideration of the evidence with respect to
the prior proceeding, that the General Counsel did not
intend , by the stipulation, to finally resolve the question
of whether the contract prohibited sympathy strikes or
refusals to cross other unions' picket lines. At the time of
the unfair labor practice hearing, that question (arising
out of the same series of events) was pending before Ar-
bitrator Galfand, with Local 563 taking the position that
its members were not contractually prohibited from re-
fusing to cross the Operating Engineers' picket line.
Local 563 was not represented at the unfair labor prac-
tice hearing, and no charge was filed on behalf of any of
the disciplined employees except Lang and Light. That
charge was based solely on the premise that the Compa-
ny acted unlawfully by disciplining the two union offi-
cials more severely than rank-and-file union members If
Lang and Light engaged in activity which was contrac-
tually prohibited or otherwise unprotected by the Act,
the General Counsel could have contended that any dis-
cipline against them was unlawful. However, the Gener-
al Counsel contended (and correctly so under Board
law) that the Company violated the Act by disciplining
Lang and Light more severely than other employees,
without regard to whether the contract prohibited them
from refusing to cross the picket line. In these circum-
stances, it is unlikely that the General Counsel would
have nullified Local 563's position in the pending arbitra-
tion proceeding by entering into a stipulation which fi-
nally resolved the question of contractual waiver. More-
over, the General Counsel may have wished to avoid liti-
gation of other questions. Thus, the Company might
have contended in the alternative that the picket line was
unlawful, e.g., that it was violative of Section 8(b)(4)(B)
or (7)(C) of the Act. Indeed, the General Counsel gave
no explanation of why the work stoppage "was in con-
travention of the no strike clause." I find that the Gener-
al Counsel, by the stipulation, indicated an intention to
avoid litigation of the question of contractual waiver.
Therefore the stipulation in the prior case and the Board
decision, insofar as based on that stipulation, does not
preclude litigation of the question in the present case.
With regard to the question of waiver, the applicable
principles were restated in ACF Industries, 247 NLRB
1056 (1980), enf. denied on other grounds 641 F.2d 561
(8th Cir. 1981). The right to strike, including the right to
engage in sympathy strikes or in refusals to cross other
319
unions ' picket lines, is a right guaranteed by the Act.
The right may be waived by appropriate provisions in a
collective-bargaining agreement. However, such waivers
will not be readily inferred. Rather, such a waiver must
be "clear and unmistakable." Contractual waiver of the
right to engage in sympathy strikes or to honor the
picket lines of other unions will only be found if such an
intent is embodied expressly in the parties' collective-bar-
gaining agreement or is clearly evident from the parties'
bargaining history. At "the very least," the parties must
"have discussed the question and, preferably, have es-
pressly embodied in their agreement their intent to
extend a strike ban to sympathy strikes." Operating Engi-
neers Local 18 (Davis-McKee, Inc.), 238 NLRB 652, 653
(1978).
Moreover, no-strike clauses which proscribe work
stoppages or strikes, but do not expressly refer to sympa-
thy strikes or refusals to cross another union's picket
line, cannot , standing alone , be deemed as an express
waiver of the statutorily protected right to cross another
union 's line . The rationale for this rule , in sum , is that or-
dinally no-strike clauses are a quid pro quo for binding
arbitration of disputes between the parties. Therefore if
the dispute is arbitrable, it is presumed that the no-strike
agreement prohibits employees from engaging in work
stoppages in furtherance of that dispute. However, as a
sympathy strike involves a dispute or disputes which are
not subject to arbitration between the parties to the no-
strike agreement, the no-strike agreement will not, absent
other evidence, be deemed as a waiver of the right of
unit employees to honor the other unit's picket line.
In the present case, the no-strike clause does not con-
tain any express reference to sympathy strikes or refusals
to cross other unions' picket lines. The clause, on its
face, prohibits only "strikes or lockouts by the Brother-
hood or its members." The record is devoid of evidence
concerning discussions, if any, of the no-strike clause or
other arguably related contract provisions. The Compa-
ny, in its brief, places great emphasis on its status and ob-
ligations as a public utility, and on the reference in the
no-strike clause to the parties' desire to provide uninter-
rupted and continuous service to the public. However, in
the absence of extrinsic evidence concerning the intent of
the parties in inserting this language, it cannot be as-
sumed that the IBEW and its locals thereby waived
rights which they would otherwise have under the Act.
Employees of public utilities are not exempt from the
protection of the Act, and the Board has not established
separate rules for that industry. Rather, the Board has
applied the foregoing principles to public utilities as well
as other employers. Gary-Hobart Water Corp., 210 NLRB
742 (1974), enfd. 511 F.2d 284 (7th Cir 1975), cert.
denied 432 U.S. 925 (1975), like the present case, in-
volved a public utility. The no-strike clause expressly
provided that there would be "no strike, stoppages of
work or any other form of interference with any of the
production or other operations of the Company by the
Union or its members," and that this commitment was
"in consideration of".the parties' understanding that "the
services to be and being performed by the employees
covered by this agreement pertain to and are essential to
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the operation of a public utility and to the welfare of the
public dependent thereon." Nevertheless, the Board,
with court approval, held that the signatory union did
not thereby waive the statutory right of its members to
engage in sympathy strikes See also Southern California
Edison Co., 243 NLRB 372 (1979), enfd. 646 F.2d 1352,
1365 (9th Cir. 1981), also involving a public utility, in
which the court rejected the same kind of argument
presently advanced by the Company.
The present record fails to indicate that the signatory
unions, either by word or action, ever acquiesced in the
Company's position that the no-strike clause prohibits
sympathy strikes or refusals to cross other unions' picket
lines On the contrary, the evidence indicates that this
has been a matter of dispute for many years. In the 1972
arbitration proceeding, Local 603 argued that its mem-
bers could not be required to cross a picket line if they
believed it was unsafe to do so. However Local 603's
concept of safety was so broad as to effectively leave the
employees free to refuse to cross even a peaceful and or-
derly picket line In the later proceeding before Arbitra-
tor Galfand, Local 563 flatly contended that the failure
of employees to cross the Operating Engineers' picket
line did not constitute a work stoppage under the con-
tract. The stipulation in the concurrent unfair labor prac-
tice case cannot be considered as evidence of a waiver
by the signatory unions. As discussed, Local 563 was not
a party to the stipulation, the stipulation reflected an
intent to avoid litigation of the question, and Local 563
was concurrently arguing in the arbitration proceeding
that the employees did not violate the contract.
The 1973 and 1979 arbitration awards cannot be
viewed as extensions of the current contract. As indicat-
ed, the arbitration clause expressly provides that an arbi-
tration award shall be "binding upon the Company and
the Brotherhood for the term of this agreement." As the
grievances in those proceedings were filed under prede-
cessor contracts, the awards do not constitute a part or
extension of the current 1981-1983 contract. I further
find, on consideration of the evidence and applicable
principles of Board policy, that the awards are also not
entitled to deference as valid precedent or controlling
authority on the meaning of the current contract The
Board, in the exercise of its jurisdiction to hear and
decide unfair labor practice cases, may properly resolve
questions of contract interpretation and, in so doing, may
invoke its "superior authority" over the arbitration proc-
ess. Casey v. Westinghouse Electric Corp., 375 U S. 261,
268, 272 (1964). However, as a matter of policy, the
Board will defer to an arbitration award if (1) the pro-
ceedings appear to have been fair and regular, (2) all par-
ties had agreed to be bound, and (3) the decision of the
arbitration panel is not clearly repugnant to the purposes
and policies of the Act. Spielberg Mfg. Co., 112 NLRB
1080 (1955) In the present case, both arbitration awards
fail to meet the third standard. Both Arbitrator Alderfer
and Arbitrator Galfand based their decisions on the
premise that the no-strike clause, on its face, prohibited
unit employees from refusing to cross the picket lines of
other unions. Neither arbitrator considered extrinsic evi-
dence on the meaning of the clause The arbitrators
thereby interpreted the article in a manner contrary to
the Act, as interpreted by the Board, and which in-
fringed on rights protected under the Act Therefore the
arbitration awards, insofar as pertinent to the issues pre-
sented in this case, were "clearly repugnant to the Act,"
and deferral would not be appropriate. Inland Steel Co.,
264 NLRB 84 (1982).4
In sum , the evidence fails to indicate that the signatory
unions to the contract waived the statutory right of unit
employees to refuse to cross picket lines of other unions.
Therefore the Company violated Section 8(a)(1) of the
Act by threatening its employees with suspension or
other disciplinary action if they refused to cross the
Building and Trades Council picket line at Berks County
TV Cable Company.
D. The Facts in Case 4-CA-13068
This case involves picketing by Local 30, the Roofers'
union, on the morning of June 2, 1982,5 at the Compa-
ny's headquarters building in Reading. The building is lo-
cated on a large tract of land which is bounded on the
east by Route 61 (Pottsville Pike), on the south by Hart-
man Road, and on the west by Leitz' Bridge Road. The
main entrance, which leads to the front entrance of the
headquarters building, is located on Route 61, opposite
George Street. There is also a diner which is located
across Route 61 from the headquarters building A
second entrance is located on Hartman Road There are
also two entrances on Leitz' Bridge Road, just north of a
building used by the telephone company for servicing of
vehicles, and northwest of the headquarters building.
The first is known as the pole yard gate. The two en-
trance roads converge at a point about 60 feet within the
Company's premises. There is a fence along Leitz'
Bridge Road, and the two entrances are normally locked.
There is also an internal fence where the two roads con-
verge. The Company's customers and employees normal-
ly use either the main entrance or the Hartman Road en-
trance, although all entrances lead to the parking area
behind the headquarters building. The headquarters
building is visible from the entrances on Leitz' Bridge
Road, although those entrances are much farther from
the headquarters building than the main and Hartman
Road entrances. Leitz' Bridge Road is heavily traveled,
although less so than Route 61 and Hartman Road.
In May, the Company contracted with Acoustical
Supply Insulators (ASI), a nonunion firm, to perform
roofing renovation work on the headquarters building.
The work was to provide labor and material to apply
polyurethane foam roof installation to sections of the
building. The evidence fails to indicate either that the
work was related to the Company's normal operations,
or involved any curtailment of those operations. ASI
commenced work on May 17 and completed the job on
June 23. At the time ASI commenced work, the Compa-
ny, anticipating labor trouble, posted the following sign
* The Company's reliance on Fournelle v NLRB, 670 F 2d 331 (D C.
Cir 1982) (Br 12-13), is misplaced In that case , unlike the prior Metro-
politan Edison case, neither the Board not the court of appeals discussed
the applicability of Spielberg standards
5 All dates in this sec D are in 1982 unless otherwise indicated
METROPOLITAN EDISON CO
at the second entrance on Leitz' Bridge Road (sometimes
referred to as the "reserved gate"):
RESERVED GATE
Employees, Suppliers, Contractors and Visitors of
Metropolitan Edison Company, except those work-
ing on the Roof Repair Project, are prohibited from
using this entrance. Those working on the Roof
Repair Project, including employees & suppliers of
Acoustical Spray Insulators, are to use this gate ex-
clusively.
ASI was informed of the reserved gate. However the
sign was not uniformly honored even before the picket-
ing which took place on June 2. Specifically, ASI em-
ployees sometimes entered and left the premises through
the Hartman Road entrance. Company Labor Relations
Manager Charles Herkert and Superintendent Paul
Winter each admitted, in their respective testimony, that
on the morning of the picketing they entered the Compa-
ny's premises through the reserved gate. No signs were
posted at any other entrance until after the picketing.6
On June 1 Labor Relations Manager Herkert and his
assistant, Supervisor of Labor Relations Edmund Zubey,
met with four representatives of Local 30 (the Roofers'
Union) 7 Business agent Steve Trate acted as spokesman
6 After the picketing ceased, the Company posted signs at other en-
trances, indicating that ASI and its suppliers were not to use those en-
trances, but must use the reserved gate marked for their exclusive use
' The General Counsel contended at the hearing and again contends in
its brief (Br 34-36) that testimony by company officials concerning their
conversations with representatives of Local 30 without the presence of
the Union constitute hearsay, and therefore cannot be considered as evi-
dence on the question of whether Local 30's picketing was secondary
and violative of Sec 8(b)(4)(B) of the Act I do not agree with this con-
tention The testimony was admitted for the fact of the conversations,
and not necessarily for the truth of assertions made by Local 30 in those
conversations, e g , that ASI did not adhere to OSHA standards or
proper standards with regard to minority hiring Therefore, insofar as
pertinent to the issue at hand, the testimony did not constitute hearsay
Moreover, insofar as pertinent, the statements by Local 30 officials con-
stituted admissions against interest, which fall within an exception to the
hearsay rule Specifically, it is unlikely that the Local 30 officials would
have admitted a secondary object, and subject their union to potential
monetary and other liability, unless in fact Local 30 actually had a sec-
ondary object Therefore there is present at least that the prima facie
guarantee of reliability which forms the basis of exceptions to the hearsay
rule The portion of Chevron, USA, Inc, 244 NLRB 1081, 1085 (1979),
relied on by the General Counsel (Br 36) is dicta The thrust of the
Board's holding is that in cases such as these, the respondent employer
cannot be deprived of an opportunity to prove, by way of defense, that
the picket line was violative of Sec 8(b)(4)(B), simply because no charge
was ever filed against the picketing union The Board noted that all par-
ties, including the picketing union, were present at the unfair labor prac-
tice case However the Board did not hold that such presence was an
indispensible prerequisite to litigation of the question Indeed, a respond-
ent employer could or would be effectively precluded from questioning
the legality of picketing if it could do so only by utilizing the testimony
of the picketing union 's agents In the present case, the representatives of
Local 30 were not presented as witnesses , although both the Company
and the General Counsel presented evidence of statements made by
Local 30's agents, including its pickets The absence of testimony by
Local 30 agents might be considered on the weight to be accorded to the
testimony by the company officials However, the General Counsel never
requested leave to produce the Local 30 representatives, and the testimo-
ny of the company officials (like that of the General Counsel's witnesses
concerning statements made by pickets) stands unrefuted
321
for Local 30. He complained that ASI was nonunion and
did not observe proper health and safety and minority
hiring standards. Herkert answered that Local 30's prob-
lem was with ASI and questioned whether he could do
anything. Trate replied that the Company could "get
these people off the property or make it possible for us
to get together with them so that we can work some-
thing else." Herkert said that he had no authority to
remove ASI, but would speak to its president Herkert
also said that the Company had designated a gate for
ASI's use, and that any picketing should be confined to
that gate The Local 30 representatives indicated that
they were aware of the reserved gate. As they left, Trate
said that they were not getting anywhere and that the
Company would be hearing form them In the meantime,
even prior to June 1, at least some company supervisors
informed employees that if there was picketing, they
should try to report to work. In the meantime also, the
Union attempted to resolve the problem. Local 30 Presi-
dent Fox told Union President Burkhart that the Compa-
ny had hired a nonunion contractor With the Compa-
ny's assistance, Burkhart tried to set up a meeting, but
the effort failed when ASI failed to show up at the meet-
ing. Fox then informed the Company and the Union that
Local 30 would probably put up a picket line. On June
2, after the picketing commenced, Company Officials
Herkert and Zubey spoke to Local 30 business agent
Carlton Brown on the picket line. Herkert complained
that Local 30 did not give him a chance to contact ASI
President Jones. Brown asserted that it was useless, be-
cause he had also been trying to contact Jones. Brown
asked Herkert to "give us the work," and then Local 30
would remove the pickets. Herkert answered that he had
no authority to remove ASI.
On June 2, Local 30 picketed the headquarters prem-
ises from 6:30 to approximately I 1 a in. and did not
resume thereafter. There were 150 to 200 pickets. Picket-
ing took place at all entrances. Pickets carried signs
which clearly indentified ASI as the employer with
whom Local 30 had its dispute.8 The picketing was
characterized by mass picketing and blocking of en-
trances (principally at Route 61 and Hartman Road),
damage to vehicles, and threats and abusive language di-
rected against company personnel. However there was
no actual physical assult against any person. ASI em-
ployees arrived at their jobsite, but did not work because
of the picketing. Local 30's actions were substantially di-
rected against the Company's personnel, and the pickets
were aware of that fact. The pickets dumped roofing
nails onto the driveways, as a result of which numerous
employees' cars suffered punctured tires. Pickets also
kicked (causing dents) or scratched employees' cars as
they entered or tried to enter the premises The Compa-
ny discovered that prior to the commencement of picket-
ing, rocks had been thrown through its front windows.
The resulting damage was visible to persons approaching
the main entrance. However, responsibility for this van-
dalism was never established. Most of the Company's
a The signs stated that "[ASI] does not pay area wages No dispute
with any other employer [Local 301 "
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees reported to work before the picketing ceased.
Many parked their cars elsewhere and walked to work.
As indicated, most of the headquarters personnel were
nonunit supervisors or clerical employees. Most of the
latter were women. The testimony of witnesses for both
sides indicates, in sum, that the pickets tended to grudg-
ingly permit these personnel through their lines, but
were more determined to dissuade unit employees from
crossing their picket line. The General Counsel presented
the testimony of 8 Reading unit employees, 6 of whom
were among the 14 employees who were subsequently
disciplined by the Company.9 The parties stipulated that
seven of the remaining alleged discriminatees, if called
by the General Counsel, would have testified substantial-
ly as those who did testify. The employee witnesses testi-
fied, in sum , that they initially attempted to but did not
cross the picket line because of fear for their personal
safety and/or damage to their vehicles. Union President
Burkhart (who was not disciplined) testified that when
he sought out Local 30 President Fox on the picket line
pickets gathered around, told him he could not go
through, called him scab, and asked how he would like
to be shot in the foot. A picket told lineman Daniel Bor-
rell that he should not get involved with the picket line
because "we are for real." Barry Seidel and Marvin
Newpher were stopped by a group of 25 to 30 pickets, I
of whom said: "If you want to go in, go ahead. We can
mess your truck up, or mess you up." The alleged discri-
minatees also observed acts of picket line misconduct
previously described.
Union President Burkhart assumed a leadership role in
the situation. He went to the office of Central Division
Manager Ernest Elliehausen and Central Operating Su-
perintendent Paul Winter. Burkhart asked if his members
could take a day's vacation if they could not get through
the picket line. The supervisors gave their approval.10
Burkhart then contacted Labor Relations Manager Her-
kert, learned that Herkert was consulting with the Com-
pany's attorney, and thereupon told Local 30 President
Fox that "the lawyers would do the talking." There is no
direct evidence why Local 30 withdrew its pickets.
However, in the circumstances, the inference is warrant-
ed that Local 30 withdrew its pickets after discussion
among the lawyers for the parties. In the meantime,
Burkhart made what turned out to be a fateful decision
He went across Route 61 to the diner where a number of
employees had gathered, and asked the union members
to meet with him at a swimming pool about 1 mile away.
Some 20 to 25 employees, including all of the alleged
9 The alleged discnmmatees are employees Richard Merkle, Richard
Christ, Harley Moyer, Joseph Rodriguez, Curtis Conrad, Daniel Sorrell,
Barry Seidel, Craig McAlveye, Carl Nuding, J Marvin Newpher,
Rodney Roeder, K William March, R Walter Drumheiser , and Glenn
Sillhart
10 I credit the testimony of Burkhart in this regard The testimony of
the supervisors was contradictory and vague on the matter Elliehausen
testified that one employee, on his request, was permitted to use vacation
time, but that there was no general promise However Winter testified
that they discussed at least four employees whose supervisors told them
that they could take vacation time I also find it unlikely that Burkhart
would have agreed to vacation time for some, but not all union members,
at least not without putting up an argument or questioning the reason for
such a policy
discriminatees, went to that meeting. At the meeting,
Burkhart told the employees that if they could not get
through the picket line, he would talk to the Company,
and it would be all right for them to take a day's vaca-
tion. The meeting was brief, and the employees then re-
turned to the headquarters building. However, by the
time they returned, the pickets had withdrawn, and all
other employees had returned to work. Consequently the
employees who attended the meeting were the last to
return to work, and they did so after the pickets dis-
persed.
In the meantime, the Company, already well versed in
litigation involving the effect of picket lines by outside
unions , was carefully monitoring the reactions and re-
sponses of its employeees to the Local 30 picketing. On
the morning of June 2, Labor Relations Manager Herkert
met with other supervisory personnel and discussed the
facts with respect to those employees who were late for
work. The supervisors prepared a "detailed history on
each individual" known to be late for work, including
their names, what was said to them, what they said to
the Company if they called in, and what action was
taken by the employees. According to Herkert, a about
45 employees were late for work, but to its knowledge,
only the 14 disciplined employees failed to report to
work until after the pickets dispersed. Additional evi-
dence further indicated that the Company was aware of
the impromptu union meeting. When lineman Curtis
Conrad returned to work, his supervisor, Roy Schoen-
gard, asked if he was one of those at the diner. Conrad
answered that he was. When lineman Richard Christ re-
turned to work, his supervisor asked: "Are you one of
them?" Christ professed not to understand, whereupon
the supervisor replied: "[Y]ou know what I'm talking
about." Christ then said: "Well, if you mean did I just
come in, I said I did."
On the afternoon of June 2, Herkert told Union Presi-
dent Burkhart that those employees who reported to
work after the pickets left would receive disciplinary
action. Burkhart argued that Elliehausen and Winter
promised that the employees could take a day's vacation.
Herkert responded that this was not appropriate. Later in
the day, Elhehausen and Winter promised that the em-
ployees could take a day's vacation. Herkert responded
that this was not appropriate. Later in the day, Elliehau-
sen and Winter told Burkhart that there would not be
disciplinary action, but that in the future employees
would have to report to work. However at a meeting be-
tween the Company and the Union on June 11, the Com-
pany informed the Union that it was disciplining the 14
previously named employees. Each employee was given
a written "record of disciplinary action," indicating that
the employee was being warned because: "You failed to
reprot to work at your scheduled time and place until
the pickets had cleared the area or the picketing activity
had ceased." The Company asserted that the employees
failed to adhere to the Company's "longstanding position
that it is each and every employee's responsibility to
report to work at their scheduled time and place despite
the presence of picket lines." The employees were fur-
ther warned that future infractions could result in more
METROPOLITAN EDISON CO
severe disciplinary action. It was stipulated that the disci-
plinary warnings were placed in the employees ' person-
nel files and, pursuant to the warnings , the employees
were docked pay for the hours they did not report to
work on June 2.
Employee David Ray, who was not disciplined, testi-
fied that he reported to work after the pickets left. The
General Counsel waived further opportunity to present
evidence that other employees reported to work after the
pickets left, but were not disciplined. Ray did not indi-
cate whether he attended the meeting at the pool. So far
as is indicated by the present record, the only employees
who reported to work after the pickets left were those
who attended the meeting , and they were late in return-
ing to work because of their attendance at that meeting.
I am not persuaded that the evidence demonstrated
knowing disparate treatment among employees who re-
ported to work after the pickets left. Rather the infer-
ence is warranted that the Company did not discipline
other employees who failed to report until after the pick-
ets left, because the Company did not have definite infor-
mation that such was the case. However, I find that the
Company knew of the inpromptu union meeting, knew
or had reason to believe that the 14 disciplined employ-
ees attended that meeting, and knew or had reason to be-
lieve that they were the last to return to work because of
they attendance at that meeting. The significance of
these findings will be discussed in the next section of this
decision.
E. Analysis and Concluding Findings in Case 4-CA-
13068
This case, unlike Case 4-CA-12309, cannot be re-
solved simply on the question of waiver. The Company
contends, by way of affirmative defense, that Local 30's
picket line was not a lawful or primary picket line, and
therefore that the employees were not privileged to
honor such picket line. For the reasons next discussed, I
find that the picketing was secondary and violative of
Section 8(b)(4)(i) and (ii) first part (B) of the Act. There-
fore, a voluntary and uncoerced refusal by company em-
ployees to cross the picket line would not constitute ac-
tivity protected under Section 8(a)(1) of the Act.
At the time of the picketing, ASI, the "primary" em-
ployer with whom Local 30 had its dispute, was tempo-
rarily engaged in performing work on the Company's
premises. That work was unrelated to the normal oper-
ations of the Company and did not involve any actual or
potential curtailment of the Company's normal oper-
ations. Therefore, for purposes of applying secondary
boycott law, the headquarters' premises constituted a
"common situs," i.e., a situation where two employers
are engaged in performing separate tasks on common
premises. See Electrical Workers IBEW Local 761 v.
NLRB, 366 U.S. 667 (1961 ). In these situations , unlike
those involving picketing at a primary site, e.g., ASI's
permanent place of business, the picketing union's right
to publicize its dispute must be carefully accommodated
to the right of neutral or "secondary" employers and em-
ployees to remain uninvolved in that dispure. If the evi-
dence indicates that by its picketing, the picketing union
is coercing or restraining neutral employers or inducing
323
neutral employees to engage in work stoppages to force
neutral employers to cease doing business with other
neutrals or with the primary employer , then the picket-
ing is secondary and unlawful . In making the determina-
tion of whether common situs picketing is lawful or pro-
scribed, the Board, with Court approval, has developed
certain evidentiary standards . The starting point is the
four standards set forth in Sailors Union (Moore Dry
Dock), 92 NLRB 547 (1950). Additionally, the Board has
developed what might be described as a fifth Moore Dry
Dock standard , namely , the reserved gate doctrine. How-
ever, outward compliance with these standards does not
immunize the picketing from the proscription of Section
8(b)(4)(B), if the picketing union demonstrates in any
other manner that the intent and purpose of the picketing
is to appeal to employees of neutral employers or to oth-
erwise pressure the neutral employers . See Electrical
Workers IBEW Local 480 v. NLRB, 413 F.2d 1085, 1089
(D.C. Cir. 1969); Teamsters Local 126 (Ready Mixed Con-
crete), 200 NLRB 253, 254 (1972).
In the present case, the picketing complied with three
of the Moore Dry Dock standards, and superficially com-
plied with the fourth. ASI was engaged in work on the
Company 's premises and therefore the premises constitut-
ed a situs of the dispute. At the time of the picketing
ASI was engaged in its normal business on the situs (ASI
was absent only because of the picketing itself). Third,
the picketing was limited to entrances to the situs.
Fourth, the picket signs clearly disclosed that Local 30's
dispute was with ASI. I further find that the reserved
gate standard is not applicable in this case. An employer
has the right, in order to minimize the impact of picket-
ing on neutral employers and employees, to mark and set
aside a separate entrance for the exclusive use of the pri-
mary employer, its deliverymen, and suppliers, and
thereby confine the picketing union to that entrance.
General Electric, supra, 366 U.S. at 681-682. In the
present case, the Company attempted to do this. Howev-
er the reserved gate was not honored, because ASI per-
sonnel used other entrances, and therefore Local 30 was
privileged to picket those entrances in a lawful
manner. i i
Notwithstanding this surface compliance with Moore
Dry Dock standards, the evidence demonstrates that
Local 30's picketing was secondary and unlawful. First,
when Local 30 Business Agent Brown spoke to the
Company's officials on the picket line, he made clear that
Local 30 had given up on its efforts to deal directly with
ASI, and that the pickets would be removed only if the
Company replaced ASI with a union contractor. Local
30 thereby demonstrated that the picketing had a second-
ary and unlawful object. See Electrical Workers IBEW
Local 480 v. NLRB, supra , 413 F.2d at 1089; Chevron,
U.S.A., supra, 244 NLRB at 1086. Second, Local 30 con-
ducted its picketing in such a manner as to deliberately
11 However , I do not agree with the General Counsel's argument (Br
37-38) that the reserved gate on Leitz ' Bridge Road was inadequate to
enable Local 30 to legitimately publicize its dispute The reserved gate
was properly posted, located on a well-traveled road, and reasonably
close to the headquarters building where ASI was performing its work
See Plumbers Local 398 (Robbins Plumbing), 261 NLRB 482 (1982)
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enmesh neutral employers and employees. Specifically,
Local 30 engaged in mass picketing and blocking of en-
trances , acts of property damage indiscriminately direct-
ed at all persons seeking to enter the Company's prem-
ises , and oral appeals and threats which were specifically
and knowingly directed against neutral employees, i.e.,
the Company's employees. It would be an understate-
ment to say that when a union engages in mass picketing,
blocking or entrances , and acts of violence at a common
situs, that union is thereby inducing and encouraging all
employees , whether primary or neutral , to refrain from
crossing its picket line. t 2 Local 30's conduct plainly
demonstrated that the picketing was violative of Section
8(b)(4)(B). See NLRB v. Teamsters Local 107, 300 F.2d
317, 322 (3d Cir. 1962).
As the picketing was secondary and unlawful, it fol-
lows, under Board law, that a voluntary and uncoerced
refusal by company employees to cross Local 30's picket
line would not constitute protected activity under Sec-
tion 7 of the Act. See Chevron, U.S.A., Inc., supra, 244
NLRB at 1086 . The General Counsel does not dispute
this proposition of law. However the General Counsel
has advanced additional arguments in support of its con-
tention that the employees were unlawfully disciplined.
First, the General Counsel contends that the employees
were engaged in protected activity by virtue of Section
502 of the Act, which provides that "the quitting of
labor by an employee or employees in good faith because
of abnormally dangerous conditions for work at the
place of employment of such employee or employees
[shall not] be deemed a strike under this Act." Second,
the General Counsel contends that the Company acted
unlawfully in the mistaken belief that the employees
were engaged in an unprotected sympathy strike, where-
as in fact they were engaged in the protected activity of
refraining from joining Local 30's picketing.' 3
The General Counsel' s Section 502 argument rests on
the validity and applicability of several propositions of
law advanced by the General Counsel. First, I agree that
a work stoppage under the conditions spelled out in Sec-
tion 502 constitutes activity protected under the Act; and
that consequently an employer violates the Act by dis-
charging or otherwise disciplining employees for engag-
ing in such activity. Combustion Engineering, Inc., 224
12 The General Counsel's reliance on International Rice Milling Co,
341 U S 665 (1951), and Ironworkers Local 455 (Stokvis Multi-Ton Corp),
243 NLRB 340 (1979), is misplaced These cases involved picketing at a
primary sous, i.e, the permanent place of business of the employer with
whom the picketing union has its dispute Since International Rice Mill-
ing, it has been established law that picketing at the primary situs does
not become secondary simply because it is characterized by mass picket-
ing, violence , or other conduct directed at neutral employees who seek to
approach the primary employer's place of business However at a
common situs, mass picketing and violence constitutes the strongest kind
of evidence that the picketing is directed against neutral employers and
employees
is I do not agree with the Company 's contention (Br 20-21) that such
alternative theories should not be considered in this case The theories
advanced by the General Counsel are fairly encompassed by the language
of the complaint , and the Company is not pleading surprise While parties
may be desirous of having a "test case," we are not here dealing with a
law school exam Rather the present case presents a real situation involv-
ing the rights of employees and the parties If there is an arguable basis
on which the employees may be found to have been engaged in protect-
ed activity, then the employees are entitled to consideration of that basis
NLRB 542, 550 (1976), citing NLRB v. Knight Morley
Corp., 251 F.2d 753 (6th Cir. 1957), cert. denied 357 U.S.
927 (1958). Second, I agree that "abnormally dangerous
conditions" under Section 502 may include picket line vi-
olence and threats of such violence. Although the Board
has not squarely passed on this question, there is persua-
sive court authority to this effect. See Plain Dealer Pub-
lishing Co. v. Typographical Union Local 53, 88 LRRM
2155, 2161 (1974), affd. 520 F.2d 1220 (6th Cir. 1975).14
Moreover, in Combustion Engineering , supra, the Board
affirmed the administrative law judge's holding that "nei-
ther Section 502, nor the legislative history, limits the
kind of danger that may be considered abnormal, and
danger at the place of employment from violence and
the threat of violence (as was involved in that case) are
well within the reach of Section 502." 1 further agree
that the good-faith test under Section 502 requires that
there be "ascertainable, objective evidence" on which
the employees base their belief that the conditions were
abnormally dangerous . Gateway Coal Co. v. Mine Work-
ers, 414 U.S. 368, 386-387 (1974).
Applying the foregoing principles to the facts of the
present case, I find that at the time that the disciplined
employees initially attempted to report to work, they
had a good-faith belief that abnormally dangerous condi-
tions for work existed, within the meaning of Section 502
of the Act. As described, Local 30 engaged in mass pick-
eting, blocking of entrances, property damage, and most
significantly threats of violence which were particularly
directed at the Company's unit employees. The pickets
demonstrated a grudging reluctance to suffer managerial
and clerical personnel to cross the picket line, but were
demonstrably determined to prevent the unit employees
from going to work. Therefore the fact that most mana-
gerial and clerical personnel reported to work during the
picketing takes on less significance than it might other-
wise have. See also Union Boiler Co., 213 NLRB 818
(1974), enfd. 530 F.2d 970 (4th Cir. 1975), holding with
respect to Section 502 that employees cannot be penal-
ized for refusing to work in conditions they believe are
unsafe "just because other employees tolerated such con-
ditions, or because by some external standard, they were
too safety conscious." I have also taken into consider-
ation the short duration of the picketing, during which
time the Company was unable, either through private or
police means, to provide security for employees attempt-
ing to report to work. To the extent that unit employees
were in contact with their supervisors, they were simply
instructed , in sum , to try to get through the picket line
on their own. Indeed, the Company did not send out any
of its vehicles during the picketing. I have also taken
into consideration Local 30's demonstrated and reported
14 In Red Wing Carriers, 130 NLRB 1208 (1961), supplemented 137
NLRB 1545 (1962), affd sub nom Teamsters Local 79 v. NLRB, 325 F 2d
1011 (D C Cir 1963), cert denied 377 US 905 (1964), the Board on re-
consideration resolved the case in part by concluding without explanation
that the employees were engaged in protected activity when they refused
to cross the picket line Therefore the Board's initial holding that abnor-
mally dangerous conditions did not exist cannot be viewed as viable
precedent See also Combustion Engineering, supra, 224 NLRB 550 fn 19
METROPOLITAN EDISON CO.
proclivity for engaging in picket line violence. 15 1 do not
attach controlling significance to the fact that the same
employees testified that they did not persist in attempting
to report to work out of fear for damage to their vehi-
cles, as distinguished from immediate fear for their per-
sonal safety. Violence begets violence and fear of proper-
ty damage cannot be neatly compartmentalized and sepa-
rated from a reasonably based fear of personal injury.
The employees were in constant communication with
each other (including their union president, who was
personally threatened with violence) and were aware of
the general situation.
However, this is not yet the end of the inquiry. The 14
disciplined employees did not report to work as late as
they did, i.e., after all other employees returned to work,
because of a continuing dangerous situation. Rather they
were late because they adjourned to a location away
from the Company's premises to discuss the situation
and, consequently, did not return to work until after the
pickets dispersed. Therefore the next question presented
is whether the meeting at the pool constituted protected
activity under the Act
As discussed, a work stoppage under the conditions
spelled out in Section 502 constitutes activity protected
under the Act. The Act also protects the right of em-
ployees to consult among themselves in order to decide
what action to take with respect to adverse working con-
ditions. Washington Aluminum Co. v. NLRB, 370 U.S. 9
(1962) I am not aware of any case decisions which deal
with the problem posed by the facts of the present case.
However, I am of the view that a corollary to the right
of employees under Section 502 is a right of the employ-
ees to meet and consult with each other to decide what
if any collective action should be taken with respect to
the apparently dangerous conditions, even if, by reason
of unanticipated developments, the danger abates while
they are engaged in such activity. I am not saying that
the employees have a right to absent themselves from
work for an unreasonable or prolonged period of time
for this purpose. In the present case, the employees who
attended the meeting did not act unreasonably. They
went only a short distance from the Company's premises,
and their meeting was beef. I find that the meeting at
the swimming pool constituted activity protected under
Sections 7 and 502 of the Act, and that therefore the em-
ployees could not be lawfully disciplined for engaging in
such activity. The Company knew that the employees
conducted an ad hoc meeting to discuss the picket line
situtation. The Company may well have believed that
the meeting was for the purpose of or as a means of hon-
oring an unlawful picket line. However, the Company
would be wrong in this belief, because the employees
never made such a decision. Rather, the result of the
15 See Roofers Local 30 (Associated Builders), 227 NLRB 1444 (1977),
and Roofers Local 30 (Kitson Bros), 228 NLRB 652 (1977) I also accept
the representation of the General Counsel that on February 20, 1980,
Local 30 was adjudicated in civil contempt by the United States Court of
Appeals for the Third Circuit by reason of such continuing conduct The
Company does not dispute that there was such adjudication, but contends
that I should disregard same because no Board action was instituted on
the basis of the picketing involved in the present case However no
charges were ever filed based on the instant picketing
325
meeting was that Union President Burkhart informed his
members that if they could not get through the picket
line he would talk to the Company and it would be all
right to take a day's vacation.16 The Company cannot
excuse its actions on the basis of such mistaken belief.
The employees engaged in protected activity (the meet-
ing at the pool), the Company knew that they were en-
gaged in such activity, and that they were late in return-
ing to work because of that meeting, the Company may
have believed that the meeting was an excuse to volun-
tarily honor an illegal picket line, but the Company
would be mistaken in that belief. Therefore the Company
violated Section 8(a)(1) of the Act by disciplining 14 em-
ployees who attended the meeting. NLRB v. Burnup &
Sims, 379 U.S. 21, 23 (1964). As the meeting was an ad
hoc union meeting, the Company also violated Section
8(a)(3) of the Act by its actions.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO and its affiliated local unions, including Local
803, the Union herein, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with suspension or
other disciplinary action if they refused to cross a picket
line established by Reading Building and Trades Council
at Berks County TV Cable Company in Reading, Penn-
sylvania, the Company has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed them by Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
4. By disciplining employees Richard Merkle, Richard
Christ, Harley Moyer, Joseph Rodriquez, Curtis Conrad,
Daniel Borrell, Barry Seidel, Craig McAlveye, Carl
Nuding, J. Marvin Newpher, Rodney Roeder, K. Wil-
liam March, R. Walter Drumheiser, and Glenn Sillhart
because they failed or refused to cross a picket line es-
tablished by Local 30 at the Company's headquarters in
Myhlenberg Township, Pennsylvania, the Company has
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Sections 7 and
502 of the Act, and discriminated in regard to terms and
conditions of employment in violation of Section 8(a)(1)
and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and from like or related conduct, and to take affirmative
action designed to effectuate the policies of the Act. I
16 The General Counsel's analysis of the facts is also incorrect The
employees did not make a collective decision to refrain from joining the
picketing Rather, as indicated , Burkhart informed them of his under-
standing of what could be done in the situation
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall recommend that the Company be ordered to post
appropriate notices; remove form its records any refer-
ence to the unlawful discipline given to Richard Merkle,
Richard Christ, Harley Moyer, Joseph Rodriquez, Curtis
Conrad, Daniel Borrell, Barry Seidel, Craig McAlveye,
Carl Nuding, J. Marvin Newpher, Rodney Roeder, K.
William March, R. Walter Drumheiser, and Glenn Sill-
hart; and give written notice of such removal to each of
them and inform each of them that its unlawful conduct
will not be used as a basis for further personnel actions
against them. As indicated, the parties stipulated that
pursuant to the written warnings issued to each of the
discriminatees, the employees were docked pay for the
hours that they did not report to work on June 2, 1982.
It follows that but for the unlawful disciplinary warn-
ings, the discriminatees would not have been docked pay
for those hours. Therefore I am recommending that the
Company be ordered to make whole each of the discri-
minatees for any loss of earnings as a result of the unlaw-
ful discipline, with interest computed in the manner and
amount prescribed in Florida Steel Corp., 231 NLRB 651
(1977),17 and preserve and make available to the Board
or its agents , on request, payroll and other records to fa-
cilitate the compution of backpay due.
[Recommended Order omitted from publication.]
17 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)