Ohio Edison Co.

National Labor Relations Board - Board Decisions

Mar 12, 1985

274 N.L.R.B. 874 (N.L.R.B. 1985)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Edison Company and International Brother-
hood of Electrical Workers, AFL-CIO, Local
1194 . Case 8-CA-12701
12 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 16 January 1981 Administrative Law Judge
Theodor P . von Brand issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions and a supporting
brief. i
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,2 and
conclusions only to the extent consistent with this
Decision and Order.
The Respondent has excepted inter alia to the
failure of the judge to apply the standards set forth
in Spielberg Mfg. Co., 112 NLRB 1080 ( 1955), in
determining whether to defer to the decision of an
arbitration panel which held that the collective-bar-
gaining agreement applicable to the parties waived
the employees ' statutory right to honor another
union 's picket line . For the reasons stated below,
we find merit in the Respondent 's exception.
This matter arises out of the Respondent's sus-
pension of two employees for refusing to cross a
picket line established by the Laborers at the en-
trance to the Cedar Point Amusement Park in San-
dusky, Ohio.
At some time prior to 1:20 p.m . on 6 March 1979
the Respondent was notified that a construction
crew digging a foundation for a building at Cedar
Point had dug up , stripped , and exposed a live sec-
ondary wire. Thereafter alleged discriminatees
Schoewe and Burrows were dispatched to deener-
gize the exposed cable.
On their arrival at the entrance to Cedar Point,
Schoewe and Burrows observed several pickets
and asked if they could cross the line to repair the
cable. The pickets asked Schoewe and Burrows to
honor the picket line but stated that they could not
stop them from going in. Schoewe and Burrows
then went to talk to James Link, a fellow employee
of the Respondent and then president of their local
Union , who was working in the vicinity . Link told
them "at that time [he] could not tell them legally
' 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
2 On the first page of his decision the judge referred to the date the
charges were filed as being 21 March 1980 The correct date is 21 March
1979, we correct this inadvertent error
that they should not go across the picket line. It
had to be up to their own discretion." Burrows
then called the Respondent's area dispatcher and
told him that Schoewe and he felt that they should
not cross the picket line. Thereafter Albert Rol-
land, the Respondent's superintendent for electric
transmission for the Bay Division, came to the site
to discuss the matter with Schoewe, Burrows,
Link, and the pickets. After an extended discussion
Rolland ordered Schoewe and Burrows to cross
the line and deenergize the cable; this order was re-
peated several times. Schoewe and Burrows re-
sponded each time that they were not refusing to
work but that they wanted to honor the picket line.
Rolland then ordered Schoewe and Burrows to
return to the Respondent's service building.
Rolland thereupon had a member of mangement
deenergize the cable. This involved the simple task
of physically disconnecting the exposed wire from
the electrical source.
On 9 March 1979 Schoewe and Burrows were
,given 3-day suspensions for refusing to cross the
picket line and perform the work as ordered. A
grievance subsequently was filed under the collec-
tive-bargaining agreement. On 26 February 1980
the arbitration panel3 issued its decision denying
the grievance on the ground that the following no-
strike provision of the collective-bargaining agree-
ment waived the employees' right to refuse to
cross picket lines:
The Union, for and on behalf of itself, its of-
ficers and members, for whom it is collective
bargaining agent, agrees that during the life of
this Agreement, under no condition will there
be any strike or participation in any strike
against the Company, any slowdown, stoppage
or cessation of any work of the Company, any
picketing or interference with the Company's
service, and further, that any employee who
violates this provision of this Agreement shall
be subject to disciplinary action by the Com-
pany, including discharge.
Relying specifically on the reference to "cessation
of any work" the panel found that the grievants
were in breach of the agreement and that the Com-
pany's discipline was not an unfair labor practice.
In addition the award found that "a potentially
dangerous situation did in fact exist" and that the
grievants "should have recognized that an emer-
gency existed." The award stated:
3 The grievance was heard by a tripartite panel consisting of a compa-
ny representative, a union representative, and a neutral arbitrator who
served as chairman The chairman wrote the award, the company repre-
sentative concurred and the union representative dissented
274 NLRB No. 128
• OHIO EDISON CO 875
The Chairman fully appreciates the griev-
ants' sympathy for members of another union
engaged in what was clearly a legal strike. But
somehow they got their priorities mixed up
and completely ignored their own responsibil-
ities in light of the urgent situation the Compa-
ny faced. They admittedly failed to explain the
urgency to the pickets and thus invited the
confrontation that followed. Eventually they
were ordered to go in and do the work neces-
sary to deenergize the line, but refused. There
was no fear or threat of violence, and they
should have recognized the legitimate basis for
going through. Under these circumstances, the
Company was justified in considering their
continued refusal as insubordination, which is
generally recognized as a serious infraction.
The chairman found that "the employer's interest
would seem to overbalance the employee's right,"
and concluded, "Based upon all of the consider-
ations outlined above, the Chairman finds that
under the particular circumstances of this case the
Company had just cause for imposing a three-day
disciplinary suspension upon both grievants."
In refusing to defer to the decision of the arbitra-
tion panel the judge relied on the Board's decision
in General American Transportation Corp., 228
NLRB 808 (1977), in which the Board held that
cases involving charges under Section 8(a)(3) and
(1) of the Act should not be deferred under the
standards set forth in Collyer Insulated Wire, 192
NLRB 837 (1971). Inasmuch as the standards set
forth in Collyer Insulated Wire, above, are applica-
ble in circumstances where the process authorized
by a grievance/arbitration clause has not been com-
pleted, it is clear that Collyer and its progeny have
no application to the instant matter and that the
judge erred in not applying the standards set forth
in Spielberg Mfg., above.4
Under the Spielberg standards the Board will
defer to the decision of an arbitration panel on a
matter of contract interpretation when (1) the pro-
ceedings leading thereto appear to have been fair
and regular, (2) all parties had agreed to be bound
thereto, and (3) the decision of the arbitration panel
is not clearly repugnant to the purposes and poli-
cies of the Act. Having reviewed the instant matter
in light of these standards, we conclude that defer-
ral is appropriate herein; accordingly we will dis-
miss the complaint.
4 We note parenthetically that even if the judge's approach under the
Collyer doctrine had been proper, his reliance on General American Trans-
portation Corp., above, would not have met with our approval That case
has been overruled United Technologies Corp., 268 NLRB 557 (1984)
With regard to the application of the Spielberg
standards to the instant matter, no party argues
that the arbitration proceedings were other than
fair and regular, nor is there any dispute regarding
the parties' agreement to be bound by the decision
of the abritration panel.5 Thus the sole issue in dis-
pute is whether the decision of the arbitration
panel is clearly repugnant to the purposes and poli-
cies of the Act. A review of that decision reveals
that the panel's determination that the collective-
bargaining agreement waived the employees' right
under the Act to honor another union's picket line
turned upon an interpretation of the no-strike
clause contained therein. In this regard there is no
showing that the panel's determination was arbi-
trary or that it was motivated by considerations ir-
relevant to labor-management relations. It appears
that the panel's determination of waiver is not in
conflict with the purposes and policies of the Act.
Indeed this Board recently held that a broad no-
strike clause similar to the one before the arbitra-
tion panel plainly and literally included sympathy
strikes within its prohibition. See Indianapolis Power
& Light Co., 273 NLRB 1715 (1985).
Accordingly, we find that the arbitration deci-
sion is not clearly repugnant to the purposes and
policies of the Act. Therefore we will defer to that
decision and dismiss the complaint.6
ORDER
The complaint is dismissed.
6 We also note that the arbitration panel specifically considered the
effect of the no-strike provision on the employees' statutory right We are
satisfied that the panel 's analysis complies with the Board's requirement
of adequate consideration of the unfair labor practice issue, as that re-
quirement is delineated in our recent decision in Olin Corp, 268 NLRB
573 (1984)
6 We note that had we reached the substantive issues in this case we
would not have agreed with the judge's reliance on W-I Canteen Service,
238 NLRB 609 (1978), enf denied 606 F 2d 738 (7th Cir 1979). That
case was overruled to the extent inconsistent with Indianapolis Poiver &
Light, above
DECISION
PRELIMINARY STATEMENT
THEODOR P. VON BRAND, Administrative Law Judge.
This case was heard on September 29, 1980, at Sandusky,
Ohio, pursuant to charges filed on March 21, 1980, by
Local 1194 of the International Brotherood of Electrical
Workers, AFL-CIO (Local 1194) and the complaint
which subsequently issued on April 28, 1980
The complaint charges essentially that the Respondent,
Ohio Edison Company (Ohio Edison), violated Section
8(a)(1) and (3) of the National Labor Relations Act by
suspending two employees from about March 12 to 15,
1979, for engaging in a sympathy strike and honoring the
picket line of members of the Laborers International
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of North America Local 480 (Local 480) who
were engaged in a strike against their employer the
Cedar Point Amusement Park, Sandusky, Ohio. Re-
spondent's answer denies the substantive allegations of
the complaint.
The following are the primary issues presented.
1. Does the collective-bargaining agreement between
Ohio Edison and Local 1194 bar sympathy strikes?
2. Did the refusal by two members of Local 1194, em-
ployed by Ohio Edison, to cross a picket line of Labor-
ers' Local 480 constitute a sympathy strike?
3. Was the exposed cable which the suspended em-
ployees were directed to repair or deenergize hazardous
to individuals and property and did it as a result consti-
tute an emergency?
4. Should the National Labor Relations Board defer to
the arbitrator's decision pursuant to the grievance proce-
dure provided for by the collective-bargaining agreement
between Ohio Edison and Local 1194?
On the entire record including observation of the wit-
nesses, and the briefs filed by the parties, I make the fol-
lowing
FINDINGS OF FACT
The Respondent, Ohio Edison Company, a public utili-
ty, is a corporation organized under and existing by
virtue of the State of Ohio, where it is and has been at
all times material herein engaged in the business of pro-
ducing and distributing electrical power. Respondent has
stipulated that the National Labor Relations Board has
jurisdiction over it for the purposes of this case.
Local 1194 of the International Brotherhood of Elec-
trical Workers, AFL-CIO and Local 480 of the Labor-
ers International Union of North America are now and
have been at all times material herein labor organizations
within the meaning of Section 2(5) of the National Labor
Relations Act.
The collective-bargaining agreement between Local
480 of the Laborers Union and the Cedar Point Amuse-
ment Park, Sandusky, Ohio, expired on February 24,
1979. No agreement was reached and the members of
Local 480 went on strike on February 26. A picket line
was set up on the causeway entrance to the park and the
picketing continued until a new contract was signed on
April 6, 1979
On March 6, 1979, at approximately 1:20 p.m Ohio
Edison Substation Supervisor James McLaughlin re-
ceived a call from Respondent's area dispatcher that
there was a dig-in at the Candy Factory in the Cedar
Point Amusement Park. McLaughlin went to the park
and ascertained that a secondary wire, bared of its cover-
ing, had separated and was exposed in a ditch. He there-
upon called Respondent's area dispatcher to contact Bur-
rows and Schoewe to deenergize the exposed cable.
A "dig-in" occurs when someone digs into the ground
and hits an underground system comprised of transform-
ers, conductors, and cables damaging one of the cables.
A dig-in to those in the electrical industry, such as elec-
tricians, automatically means that there is an exposed
cable.
When the substation supervisor arrived at the dig-in,
two fieldmen of Ohio Edison were already at the site.
One of those individuals, Jerry Baumgardner, arrived at
the site at 12.30 or 1 p.m. and stayed until the line was
finally cleared. Baumgardner is part of the managerial
group of Ohio Edison.
When he left the park, McLaughlin was told by Baum-
gardner about the pickets at the entrance to the park.
McLaughlin then spoke to Tom Mees, the steward of
Laborers Local 480, telling him that he wanted to deen-
ergize the wire to make it safe. At that time, the steward
of Local 480 said there would be no problem. I
James Burrows is an electrician leader and Harold
Schoewe is an electrician A employed by Ohio Edison.
They were given the assignment to clear the dig-in about
1:30 p.m. Burrows at that time was told that there was a
secondary dig-in behind the Candy Factory, a concession
in the amusement park When Burrows and Schoewe ar-
rived at the causeway entrance to the amusement park
they saw picket signs and a number of cars, specifically
two cars and a pickup.' They parked their truck and ap-
proached the pickets. The pickets asked the two Ohio
Edison electricians to honor the picket line but also said
they could not stop Burrows and Schoewe from going
in.
Thereupon Burrows and Schoewe went over to see
James Link, a lineman A of Ohio Edison, who was then
president of Local 1194. Link was working in the vicini-
ty on a project unrelated to the Cedar Point Amusement
Park. Burrows and Schoewe contacted Link for advice
after talking to the pickets. Link told them "at that time
that [he] could not tell them legally that they should not
go across the picket line. It had to be up to their own
discretion." Burrows then called Ohio Edison's area dis-
patcher to advise him that it was the consensus of him-
self and Schoewe that they should not cross the picket
line. They were instructed to stand by.
It was not physically impossible to cross the picket
line, but against Schoewe's principles. Schoewe, in
making the decision not to cross, was also influenced by
the fact that the pickets were observing people going in
and out. Schoewe thought there would be danger to his
family and property if he crossed the line. Burrows was
also concerned about retaliation from the pickets. Bur-
rows admitted this played a part in his decision not to go
in and do the work.
Albert V. Rolland, Ohio Edison's superintendent for
electric transmission for the Bay Division, first heard of
the dig-in about 1:30 or 1.45 when he was in the dis-
patcher's office. He was present when Burrows and
i There is a conflict between the testimony of James McLaughlin,
Ohio Edison's substation supervisor, and Tom Mees, the steward of
Local 480 Mees maintains that he spoke to McLaughlin between 10 30
and I I and that at that time McLaughlin stated that he wanted to cross
the picket line to deenergize a pole on the causeway, i e , at a location
not within the park McLaughlin's testimony is more persuasive,
McLaughlin had no responsibility for such lines and the timing of his
visit to the site at the Candy Factory tends to support his testimony that
his interview with Mees related to the dig-in within the park It should
further be noted that even if Mees were believed it would not be disposi-
tive of the issues in this case
2 There were two pickets standing by the cars approximately 30 feet
from the causeway, and there were two picket signs on each side of the
entrance to the park The signs stated that the Laborers Local 480 was
on strike against the park
OHIO EDISON CO
Schoewe called in Rolland at that point gave them a
message that he was coming to Cedar Point because of
their concern over the picket line. Rolland arrived at the
causeway entrance to the park shortly after 2 15 p.m.
On arrival at the Cedar Park entrance Rolland told
Burrows and Schoewe that there was a dig-in in the
park, that company equipment was involved and that he
was going to get it cleared up Burrows, Schoewe, and
Rolland then motioned to Link to join them The four of
them discussed the situation and Rolland told them to go
back and again talk to the pickets about crossing the
picket line
Link, Burrows, and Schoewe thereupon returned to
the pickets. According to Burrows, the pickets were
confused as to where the trouble was The pickets, in
Burrows' recollection, seemed to think the area of the
trouble was on the causeway rather than within the park
and behind the Candy Factory, the area that Burrows
was talking about. The pickets after this discussion
wanted to talk to their steward Tom Mees who showed
up a while later. Mees was informed that the problem
was behind the Candy Factory within the amusement
park. Mees then stated he had been previously told that
there was a wire down on the causeway, which would
not be in the park Mees began cursing and swearing
stating that he was sick and tired of people going across
the picket line and that he wanted the picket line hon-
ored.
After this encounter, Link, Schoewe, and Burrows re-
turned to Rolland advising him that the pickets wanted
their picket line honored and that Burrows and Schoewe
would not cross it Rolland responded that he wanted
Burrows and Schoewe to go into the amusement park
and take care of the problem Burrows and Schoewe re-
fused to go into the park stating that they were not re-
fusing to work but that they wanted to honor the picket
line Rolland again asked them to cross the picket line to
take care of the situation A direct order was given sev-
eral times. Burrows and Schoewe responded each time
that they were not refusing to work but that they
wanted to honor the picket line Thereupon, Rolland or-
dered Burrows and Schoewe to return to Respondent's
service building
In his conversations with Burrows and Schoewe, Rol-
land did not use the word "emergency." Rolland did tell
Schoewe and Burrows that he wanted the cable deener-
gized to make it safe.
Rolland thereupon had the work on the dig-in per-
formed by a member of the management group Jerry
Baumgardner cleared the secondary line in question
This meant physically disconnecting the electrical source
thus removing all voltage from the cable. This work was
completed at 4.30 p m.
People can be killed by secondary voltage and the tes-
timony of Respondent's superintendent shows that more
people are killed by low voltage than high voltage.
Moreover, an insulation breakdown such as occurred in
this instance can damage other electrical equipment such
as burning down a transformer at a distance. The dig-in
in question, accordingly, constituted an emergency and
Burrows and Schoewe as experienced linemen should
have known that fact when they were told that their as-
877
signmer.t was to deal with a "dig-in." There was no need
to use the word "emergency" in giving them their in-
structions
On March 9, 1979, Schoewe and Burrows were given
a 3-day suspension for failure to cross the picket line A
grievance was subsequently filed under the collective-
bargaining agreement. On February 26, 1980, the arbitra-
tor issued his decision denying the grievance
Discussion
Refusals by employees as a matter of principle to cross
picket lines of unions of which they are not members
constitute strikes and as such are activities protected by
Section 7 of the National Labor Relations Act NLRB v.
Southern Greyhound Lines, 426 F.2d 1269, 1301 (5th Cir.
1970). The right to strike guaranteed by Section 7 as
well as the right to engage in a sympathy strike or the
right to refuse to cross a picket line may be waived by
appropriate provisions in the collective-bargaining agree-
ment. Gary Hobart Water Corp. v. NLRB, 511 F.2d 284,
287 (7th Cir 1975). Strikes in violation of a collective-
bargaining agreement are not protected by the Act. Food
Fair Stores v. NLRB, 491 F.2d 388, 395 (3d Cir 1974). In
this instance, the employer argues that the no-strike
clause in the contract bars the conduct of Burrows and
Schoewe in refusing to cross the picket line of Local
480.
Relying on Collyer Insulated Wire, 193 NLRB 837
(1971), Respondent also contends that the Board should
defer to the decision of the arbitrator finding that the
collective-bargaining agreement waived Local 1194's
rights to engage in sympathy strikes. The Board, howev-
er, subsequently ruled that cases involving charges under
Section 8(a)(3) and (1) of the Act should not be deferred.
General American Transportation Corp., 228 NLRB 808
(1977). The arbitrator's decision is, therefore, not binding
here Accordingly, the first question presented is wheth-
er the right to engage in sympathy strikes was waived by
the no-strike clause, article IV of the collective-bargain-
ing agreement between Ohio Edison and Local 1194.
Such a waiver will not be lightly inferred but must be
demonstrated by "clear and unmistakable language,"
Gary Hobart Water Corp., 511 F 2d 284, 287 (7th Cir
1975). Article IV does not contain such an explicit
waiver 3 The intent to waive the right to engage in sym-
pathy strikes therefore cannot be found on the basis of
the text of article IV alone.
In determining the intent of the parties, the scope of
the no-strike clause should be construed together with
the grievance and arbitration provisions found in the
same contract. W-I Canteen Service, 238 NLRB 609
3 Art IV reads as follows
The Company agrees that during the life of this Agreement it will
not under any condition, lock out any of its employees
The Union, for and on behalf of itself, its officers and members,
for whom it is collective bargaining agent, agrees that during the life
of this Agreement, under no condition will there be any strike or
participation in any strike against the Company, any slowdown, stop-
page or cessation of any work of the Company, any picketing or in-
terference with the Company's service, and further, that any employ-
ee who violates this provision of this Agreement shall be subject to
disciplinary action by the Company, including discharge
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1978).4 As a general rule, the grievance and arbitration
machinery in a collective-bargaining agreement is de-
signed to cover only disputes arising out of an interpreta-
tion or application of the sympathy strikers' own con-
tract or to cover other noncontract disputes between the
sympathy strikers and their own employer W-I Canteen
Service, supra. The collective-bargaining agreement under
consideration here is no exception. Article VI, pertaining
to arbitration, does not extend the scope of the,contract
grievance machinery to disputes such as in this case in-
volving third parties.5 Accordingly, no waiver of the
right to engage in sympathy strikes is found on the basis
of article VI.
The Respondent employer, in addition to the text of
the agreement, also relies on collateral evidence such as
the opinion of Local 1194's president and the parties'
bargaining history to establish that it was intended to
forbid sympathy strikes through article IV. James Link,
the president of Local 1194, on March 6, 1979, refused to
advise Burrows and Schoewe they should cross the
picket line, because he felt the terms of article IV pre-
cluded him from telling them not to cross. This is not de-
terminative. As the Board held in an analogous situation:
While certain officials and individuals associated
with the Union may have indicated in private dis-
cussions that they believed that Respondents' posi-
tion was correct, we find greater significance in the
fact that the Union never formally communicated
that position to its membership. . . [ACF Indus-
tries, 247 NLRB 1056 (1980).]
The only testimony concerning the bargaining history
pertaining to article IV was that of the Union's chief ne-
gotiator, Gilbert Steinem. He testified that the union ne-
gotiators were of the view that the no-strike clause per-
tained to strikes against the employer and that the right
to engage in sympathy strikes had not been bargained
away His testimony on this point is uncontradicted. A
waiver cannot be found on the basis of the collateral evi-
dence.
The Respondent Employer also correctly states the re-
fusal to cross a picket line for personal reasons such as
fear of physical harm or reprisals is not a right protected
by Section 7. See Kellogg Co. v. NLRB, 457 F.2d 519,
523 (6th Cir. 1972), citing NLRB v. Union Carbide Corp.,
440 F.2d 54, 56 (4th Cir. 1971). Nevertheless, while their
refusal to cross the picket line was in part actuated by
fear, the testimony of Burrows and Schoewe that they
4 Absent an explicit expression of an intention to the contrary, arbitra-
tion and the duty not to strike are to be construed coterminously See
Gateway Coal Co v US, 414 U S 368, 382 (1974)
5 1- g , the grievance procedure is defined by art VI as applying to
"any disagreement concerning the interpretation or application of this
agreement " (Jt Exh 2, p 15 ) Sec 4, art VI, which pertains to matters
not necessarily involving grievances also indicates that it was the intent
of the parties to confine the scope of the agreement to matters of mutual
interest to Local 1194 and the employer, viz, "Whenever the Union
wishes to discuss matters of general mutual concern to the Union and the
Company, such as contract interpretations, general labor practices, and
the creation of new jobs and their evaluation, under circumstances not
constituting a grievance the Collective Bargaining Committee of the
Union may apply in writting directly to the Division Manager or General
Office department head for a meeting " (Id at 19 )
were also acting on principle to honor the picket line is
found credible This contention is, therefore, rejected.
Finally, the Employer argues that, since Burrows and
Schoewe knew that their sole duty was to work on
Edison equipment that is to deenergize an exposed sec-
ondary line, they also knew that such activity would not
aid the amusement park Respondent urges that as a
result their refusal to work was not based on a common
cause with the pickets. The mere fact that the equipment
belonged to Ohio-Edison does not obviate the fact that it
served the park. Nevertheless, this is not diapositive of
the question whether Burrows and Schoewe should have
crossed the picket line to deenergize the cable.
The issue of whether the dig-in constituted an emer-
gency is in dispute. The record shows, however, that an
exposed secondary line constitutes a hazard to individ-
uals and other electrical equipment. The fact that the
dig-in was guarded by Respondent's supervisory employ-
ees does not detract from the emergency nature of the
situation . In fact, the need for such measures demon-
strates the necessity to make the cable safe.6
Although article XIV, section 9 of the collective-bar-
gaining agreement permits supervisory personnel to act
in emergency situations , there is no indication that it was
the intent of the parties by virtue of this provision to
excuse unit personnel from responding to such situations
when available
An employee's right to engage in sympathy strikes
must be balanced against the specific business interests of
the employer. See NLRB Y. Adams Express, 430 F.2d
1032, 1036 (5th Cir. 1970). In balancing the interests in
this instance the emergency nature of the situation is cru-
cial.7 The employer, accordingly, had no burden of
showing that other employees willing to do the work
could have been substituted for Burrows and Schoewe
Cf. NLRB v. Alamo Express, supra. Nor does the record
show underlying hostility, on the part of the employer to
the Union concurrent with the suspensions. Cf. id at
1036; Overnite Transportation Co., 154 NLRB 1271, 1275
(1965). Under the circumstances, the interest of Ohio
Edison in its capacity as a utility to eliminate a public
hazard is paramount and overrides the right in this in-
stance of the two employees to engage in a sympathy
strike. Accordingly, the utility had the right to direct
Burrows and Schoewe to cross the picket line in order
to deal with the emergency and to take disciplinary
measures when these instructions were disregarded.
6 Although the park was closed to the public at this time, the exposed
cable constituted a danger to construction crews working in the park in
this period and to anyone else who might wander in The hazard to other
electrical equipment is undisputed
The brief of Local 1194 implicitly concedes this point, viz, "It is
most probable that had those employees believed or been made aware
that an emergency existed, they would have placed the public safety
before their union rights, crossed the picket line and corrected the prob-
lem " (Local 1194's Br , p 11) As already noted, however, Burrows and
Schoewe when they were instructed to deal with a "dig-in" knew or
should have known that an emergency was involved
OHIO EDISON CO 879
CONCLUSIONS OF LAW
1. Ohio Edison Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The International Brotherhood of Electrical Work-
ers, AFL-CIO, Local. 1194 is a labor organization within
the meaning of Section 2(5) of the Act.
3. Ohio Edison Company has not engaged in the unfair
labor practices alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]