Pennsylvania American Water Company

National Labor Relations Board - Board Decisions

Jun 28, 2013

359 N.L.R.B. 1286 (N.L.R.B. 2013)

1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 142
Pennsylvania American Water Company and Utility
Workers Union of America, System Local No.
537, AFL–CIO. Cases 06–CA–037197, 06–CA–
037198, 06–CA–037202, 06–CA–037241, and 06–
CA–037243
June 28, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On May 17, 2012, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Acting
General Counsel and Charging Party Union each filed
answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs
1
and has decided to affirm the judge’s rulings,
findings,
2
and conclusions and to adopt the recommend-
ed Order.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge found that the collective-bargaining agreements covering
the Respondent’s employees in the Pittsburgh District and Outside
Districts, respectively, do not include language waiving the employees’
right to engage in sympathy strikes in support of employees in other
bargaining units. In doing so, the judge relied on the functional linkage
between the no-strike and grievance-arbitration clauses, and found that
the contractual language evinces the parties’ intent to limit application
of the no-strike clauses to disputes amenable to resolution through the
grievance-arbitration procedure. The judge’s analysis, however, fo-
cused only on the language contained in the Outside Districts agree-
ment. Having reviewed the record, we find that there is a similar func-
tional linkage in the agreement covering employees in the Pittsburgh
District. Specifically, that agreement’s no-strike clause provides in part
that the Respondent’s right to discipline employees is “subject to the
Union’s right to present a grievance as outlined in this Contract.”
There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) of the Act when its supervisor, Kristen Snyder,
threatened employee Mike Kachurek with unspecified “ramifications”
if he refused to cross a picket line, and when its plant superintendent,
John Natale, threatened employee Patty Presnar that reposting a letter
from Union President Kevin Booth on one of the Respondent’s bulletin
boards would “cause her grief.” There are also no exceptions to the
judge’s finding that the Respondent did not violate Sec. 8(a)(1) by
stating, in a January 4, 2011 letter to the Union, that employees’ repeat-
ed refusals to cross picket lines might constitute an intermittent work
stoppage that could warrant discipline.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pennsylvania American Wa-
ter Company, locations throughout Pennsylvania, its of-
ficers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.

JoAnn F. Dempler, Esq., for the Acting General Counsel.
Craig M. Brooks, Esq. and James W. Southworth, Esq. (Hou-
ston Harbaugh, P.C.), of Pittsburgh, Pennsylvania, for the
Respondent.
Samuel J. Pasquarelli, Esq. (Sherrard, German & Kelly, P.C.),
of Pittsburgh, Pennsylvania, for the Charging Party.
DECISION
DAVID I. GOLDMAN, Administrative Law Judge. This case
involves two issues. The first is an employer’s warnings to
employees on January 2 and 4, 2011, after an incident of pick-
eting on January 2, 2011, of possible repercussions for honor-
ing the picket line. As explained herein, the situation is some-
what unique, but considering all of the evidence, I conclude
that the January 2, 2011 observance of the picket line was pro-
tected activity, and the warnings to employees for honoring the
picket line violated the National Labor Relations Act (the Act).
The second issue involves the employer’s removal from bul-
letin boards of a letter the union president sent to management
on January 13, 2011. As explained herein, I find that the union
president’s letter fell within the ambit of the protections of the
Act and the removal of the letter by the employer violated the
Act, as did a warning to an employee of adverse consequences
should she repost the letter.
STATEMENT OF THE CASE
On January 5, 2011, the Utility Workers Union of America,
System, System Local No. 537, AFL–CIO (the Union or Local
537) filed unfair labor practice charges against Pennsylvania
American Water Company (Pennsylvania American or Em-
ployer), docketed by Region 6 of the National Labor Relations
Board (Board) as Cases 06–CA–037197, 06–CA–037198, and
06–CA–037202.1 The Union filed further charges on February
22, 2011, docketed by the Region as Cases 06–CA–037241 and
06–CA–037243. The Union amended the charge in Case 06–
CA–037241 on May 6, 2011. The Union amended the charges
in Cases 06–CA–037197, 06–CA–037198, 06–CA–037202,
and 06–CA–037243, on July 15, 2011.
On July 29, 2011, based on an investigation into the charges
filed by the Union, the Acting General Counsel (General Coun-
sel), by the Regional Director for Region 6 of the Board, issued
an order consolidating the above-referenced cases, and issued a
consolidated complaint and notice of hearing against Pennsyl-
vania American alleging violations of Section 8(a)(1) of the
Act. Pennsylvania American filed an answer denying all viola-
tions of the Act.
A trial in this case was conducted before me on January 24,

1 The charge in Case 06–CA–037202 was originally filed with Re-
gion 4 of the Board and subsequently transferred to Region 6.
PENNSYLVANIA AMERICAN WATER CO. 1287

2012, in Pittsburgh, Pennsylvania. Counsel for the General
Counsel, the Respondent, and the Union, filed briefs in support
of their positions by April 2, 2012. On the entire record, I
make the following findings, conclusions of law, and recom-
mendations.
JURISDICTION
Pennsylvania American is a public utility engaged in the
generation and distribution of water to residential and commer-
cial customers. During the 12-month period ending December
31, 2010, Pennsylvania American, in conducting these business
operations, derived gross revenues in excess of $250,000 and
during this period purchased and received at its Pennsylvania
facilities, products, goods, and materials valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania. The complaint alleges and the Respondent ad-
mits that at all material times it has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case pursuant
to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
BACKGROUND FACTS
Pennsylvania American provides water utility services in ar-
eas across Pennsylvania. The Employer refers to the service
areas as Districts.
Local 537 represents Pennsylvania American employees in
six separate bargaining units in Pennsylvania. Each bargaining
unit is covered by a separate collective-bargaining agreement
between the Union and Pennsylvania American. The bargain-
ing units and agreements cover employees employed in the
Brownsville District (southwestern PA), the Mechanicsburg
District (south central PA), the Milton/White Deer District
(north central PA), the Pittsburgh District (southern Allegheny
County), and the Wilkes-Barre/Scranton District (northeastern
PA). The sixth bargaining unit and contract covers multiple
districts in western Pennsylvania (i.e., Butler, Clarion, Fayette,
Kane, Kittanning, Lawrence, Punxsutawney, Warren, Washing-
ton, and Valley Districts) and are referred to together as the
Outside Districts.2
The labor agreements (each between 4 and 5 years in dura-
tion) for the six bargaining units were originally scheduled to
expire on various dates between 2009 and 2011. The Browns-
ville District contract was set to expire on September 30, 2009;
the Outside Districts contract on November 17, 2009; the Me-
chanicsburg District contract on January 17, 2010; the Mil-
tonlWhite Deer District on April 3, 2010; the Wilkes-
Barre/Scranton District on October 31, 2010; and the Pittsburgh
District on May 17, 2011. The parties began separate negotia-

2 The union-represented employees in each of these units (with some
exceptions by unit) include employees from the Distribution Depart-
ment (who maintain water pipe lines and repair leaking water main
pipelines), the Outside Commercial Department or Meter Department
(installing, reading and repairing water meters), and the Production
Department or Plant Department (water treatment/ purification plants).
tions for a successor agreement for each contract in advance of
the scheduled expiration date.
As of January 2011, negotiations were underway for five of
the six units. (All but the Pittsburgh District; its contract was
not scheduled to expire until May 17, 2011.) None of the nego-
tiations for the five contracts had resulted in a successor agree-
ment and the original expiration date for the five contracts had
come and gone. However, by agreement of the parties, each of
the labor agreements—and all of their terms, including the no-
strike provisions—remained in effect, subject to termination by
notice of either party.
Each of the six labor agreements contain no-strike provi-
sions, barring lockouts, strikes, work stoppages, or intentional
slowdowns during the term of the agreement. All parties agree
that these provisions were in effect at all contractually-covered
locations during January 2011. Each of the agreements con-
tains the following no-strike/no-lockout language, or some
substantially similar variant:

In furtherance of harmonious relations among employees,
the Management and the Public, and in consideration of
the adjustment procedures set forth in Section 3 of this
Agreement, it is mutually agreed by the parties hereto that
there shall be no lockout, strike, work stoppage or inten-
tional slowdown during the terms of this Contract. How-
ever, there shall be no liability on the part of the Union for
any strike, work stoppage, or intentional slowdown when
such strike, work stoppage, or intentional slowdown is not
authorized by the Union and when, in addition, duly au-
thorized officers of the Local Union shall, within five (5)
hours after notification by the Company, sign and cause to
be posted in prominent places within the offices or plant of
the Company, a notice that the strike, work stoppage, or
intentional slowdown was not authorized by the Local Un-
ion and directing all employees to return to their respective
jobs promptly or to cease any action which may adversely
affect any operation of the Company. The Company shall
have authority to discipline any employee or employees
engaged in any unauthorized strike, work stoppage, or in-
tentional slowdown, subject to the Union’s right to present
a grievance as outlined in this Contract.

(Sec. 2 of the Outside Districts contract.)
In addition to the above language (or a substantially similar
variant of it), two of the six contracts—the contracts covering
the Pittsburgh District and the Outside Districts—contain a
second paragraph as part of the no-strike provision that is of
many years longstanding and which protects employees of the
Pittsburgh and Outside Districts from discipline or discharge
for refusing to “enter upon any property where a lawful primary
picket line is established.” This second paragraph in the Pitts-
burgh and Outside Districts no-strike provisions states:

It shall not be a violation of this Agreement and it shall not
be cause for discharge or disciplinary action in the event
an employee refuses to enter upon any property where a
lawful primary picket line is established; provided, how-
ever, this clause shall not apply to picket lines established
under the Free Speech Proviso of the National Labor Rela-
tions Act or to what is commonly referred to as “area
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

standards” picketing.

The foregoing language was added to the Outside Districts
contract in or about 1979 after a meter reader for the (predeces-
sor to the) Employer encountered a picket line at a customer’s
worksite.3 This “stranger” picket line was the focus of the ne-
gotiators’ discussions when the language was added to the Out-
side Districts contract. The language was added to accede to
the Union’s demand that its employees would not have to cross
the picket lines. (A provision was included so that the excep-
tion did not apply to area standards or informational picketing
confronted by employees—the employees would still be re-
quired to cross such picket lines under the no-strike provision.)
The following year, in December 1980, a dispute arose be-
tween the Union and the Employer. Two employees working
under the Outside Districts contract containing the second par-
agraph to the no-strike clause refused to cross a picket line
established at an Outside Districts facility by Pittsburgh District
picketers who were on strike against the Employer.
The Union and the Employer disagreed about whether the
employees, who were willing to work on other jobs, were
available for work and must be paid under the guaranteed work
provisions of the agreement. The dispute was submitted to
arbitration. That narrow dispute is not at issue or relevant here.
But what is relevant is the arbitrator’s 1982 opinion which ex-
plains (GC Exh. 8 at 8) that,

[t]he Union has always held the picket line was “primary”
and the Employer does not contest the position that the picket
line was “primary.” Nor is there any dispute of the grievants’
right to honor the picket line.

Indeed, this was a premise for the arbitrator’s ultimate ruling
on whether pay was owed to the grievants who honored the
picket line. The Arbitrator also explained (GC Exh. 8 at 9):

The Employer and the Union decided that even though the
former District level Unions have now merged into one
system wide Union, it is in the best interest of both parties
to maintain two separate contracts. With the separate con-
tracts come all the attendant problems, including the pos-
sibility of one portion of the Union having a signed
agreement while the other portion of the Union is striking
the Employer. Therefore, even though each bargaining
unit is represented by the same Union for negotiation pur-
poses, each bargaining unit must be viewed as having a
separate relationship with the Employer. The conflict that
provided the background for the incidents leading to this
arbitration is certainly not unusual or unexpected. The
Employer and the Union recognized the separate and dis-
tinct relationship that results from the contractual relation-
ships as they now exist.

The only issue remaining is if the employees honor a
“primary picket line” what penalty, if any, will they be
facing? The Union and the Employer point to Section 2 of

3 Certain events herein occurred when the Employer’s predecessor,
the Western Pennsylvania Water Company, was the employing entity.
Hereinafter references to the Employer include references to the prede-
cessor and current employing entity.
the Agreement as the basis for their position. Reading Sec-
tion 2 leads me to the conclusion that this Article provides
two different and distinct protections to the members of
the Union in the event they refuse to cross a “lawful pri-
mary picket line.” First, the refusal of an employee to
cross a “primary picket line” is not a violation of the con-
tract. Also, the refusal to cross a “primary picket line”
shall not be cause for discharge or disciplinary action.

Subsequently, in 1991, Outside Districts strikers established
a picket line at a Pittsburgh District facility which Pittsburgh
District unit employees honored. The record reveals no dispute
over the contractual right of the Pittsburgh District employees
to honor that picket line, pursuant to the language in the Pitts-
burgh District contract no-strike clause protecting the ob-
servance of “lawful primary picket lines.” However, the Em-
ployer refused to pay the employees who honored the picket
line and the Union filed an unfair labor practice charge. The
Regional Director dismissed the charge on grounds that pay-
ment of wage to employees who were not working was not
required by the no-strike clause, any other provision of the
agreement, or by the Act itself.
The January 2011 Picketing
In January 2011, Local 537 remained in protracted contract
negotiations with all of the bargaining units (except the Pitts-
burgh District unit, where the contract was not set to expire
until May 2011). In addition to the local issue disputes, the
Union was at odds with the Employer’s parent company, Amer-
ican Water Works Company, Inc., over retirement and health
and welfare benefits issues that were being negotiated on a
national level coordinated with other unions representing em-
ployees within the parent employer’s umbrella.
Local 537 engaged in informational picketing against Penn-
sylvania American at various locations during and prior to Jan-
uary 2011, in support of national issues. It was understood by
the Union and employees involved that this informational pick-
eting was not intended to cause employees to refuse to cross the
picket line.
More pertinently to the issues in this case, on three dates in
January 2011, the Union engaged in what it called “non-
informational,” “primary labor dispute” picketing at certain
water treatment plants covered by the Pittsburgh or Outside
Districts contracts. This non-informational picketing occurred
on the following dates at the following locations:

January 2, 2011: New Castle and Ellwood City water
treatment plants (Outside Districts)

January 9, 2011: Ellwood City and Indiana (2 Lick) water
treatment plants (Outside Districts)

January 29, 2011: Aldrich and Hays Mine water treatment
plants (Pittsburgh District); Indiana (2 Lick), New Castle,
and Ellwood City water treatment plant (Outside Dis-
tricts); Butler water treatment plant, distribution, and
commercial departments.

In each instance, union pickets from a facility other than the
District at which the picket line was established, picketed an
Outside Districts or a Pittsburgh District facility. For example
PENNSYLVANIA AMERICAN WATER CO. 1289

on January 2, pickets were established outside of two Outside
Districts locations and the picket signs stated that the subject of
the picket was a primary labor dispute with the Brownsville
District.4
The picketing was conducted in this manner based on the
Union’s position that the second paragraph contained in the
Pittsburgh and Outside Districts contracts no-strike clause per-
mitted employees to honor picketing established in support of a
labor dispute between the Union and Employer at a different
bargaining unit. The Union’s position was that the employees
in the picketed Outside Districts or Pittsburgh Districts facili-
ties could choose to honor the picket line without fear disci-
pline as long as the picket was established on behalf of another
unit in a primary dispute with the Employer.
The Union pickets used red signs to signal to arriving Pitts-
burgh and Outside Districts unit employees that these were
noninformational pickets that the Union hoped employees
would not cross. This distinguished these pickets from the
blue-signed informational picketing which disclaimed any in-
terest in employees honoring by not going to work.
For the most part, Pittsburgh or Outside Districts employees
encountering one of these red “primary labor dispute” picket
lines refused to cross and used a cell phone to call the Employ-
er’s on-call supervisor to report that they would not be coming
to work until the Union removed the pickets.
Union President Kevin Booth testified that the picketers at-
tempted to show up at least an hour before the end of the on-
duty plant operator’s shift. The on-duty operator would be
notified that there were primary labor picketers and would then
call supervision to alert them and management could begin to
make plans for how they would handle the prospect that at
shift’s end, the relief operators would not be crossing the picket
lines and coming to work.
The Employer’s senior director of production Daniel Hufton
is responsible for overseeing the operations of the Employer’s
water treatment plants in Pennsylvania. Hufton testified that
when the picketing began on January 2, 2011, and operators
were failing to cross the picket line, he received a lot of calls
from his supervisors and superintendents. It was unclear to the
Employer’s managers what the labor situation was at this point.
Hufton and managers had been prepped for response to a strike,
but in this case there was picketing, but no underlying strike.
As Hufton testified, “[i]t was something quite honestly we
hadn’t dealt with before and hadn’t really anticipated. We had
people saying things like, no, they’re not on strike, but the peo-
ple won’t cross.”
On January 2, 2011, Hufton called the union president, Kev-
in Booth, in an effort to obtain more information. Booth told
Hufton that

there’s informational picketing related to . . . national

4 The noninformational “primary labor dispute” picket signs set up at
a Pittsburgh or Outside Districts location would state, for example, with
regard to a sign referencing a dispute at the Brownsville operation:
Primary Labor Dispute, Utility Workers Union of America, AFL–
CIO, System Local 537, Brownsville has a labor dispute with PA
American Water. We are seeking a fair contract with PA Ameri-
can Water Company.
benefits” happening at I believe the Indiana office distri-
bution and I believe the New Castle office distribution and
that there was primary labor dispute picketing related to
the Brownsville contract at New Castle and Ellwood
plants. . . .

I asked Kevin does this mean that Brownsville people are
on strike, and I asked that primarily because I’m in charge
of the Brownsville plant as well and I’m thinking if there’s
Brownsville people up at New Castle holding a sign say-
ing, you know, primary picket, does that mean I got to fig-
ure out who’s going to run my Brownsville plant when the
time comes for it to be manned over the weekend. And
Kevin said, no, Brownsville’s not on strike.

For the very most part, the employees observed the “primary
dispute” picket lines. During the picketing only one operator
coming to work crossed the picket line and worked his shift.
(Another initially relieved the outgoing operator but then asked
to leave after being contacted by the Union and he was relieved
by management.) The operators waiting to be relieved at shift’s
end were relieved by supervisors or managers when the sched-
uled relief operator refused to cross the picket line. No em-
ployee was disciplined for failing to cross the picket line.
Supervisor Kristen Snyder’s January 2, 2011
Conversation with Employee Mike Kachurek
In January 2011, Mike Kachurek was working as a plant op-
erator at the Ellwood City water treatment plant. The Ellwood
City plant is covered by the Outside Districts contract. On
January 2, 2011, Kachurek was scheduled to work the day shift,
7 a.m. to 3 p.m. When he reported to work he found pickets at
the gate. Union President Booth approached Kachurek’s car
and told him that these pickets were from Brownsville District
and “would appreciate any support I could give our Union by
not crossing the line.”
Kachurek called into the plant and found out that the on-call
supervisor was Kristen Snyder, who is the production supervi-
sor for the New Castle plant. Kachurek called Snyder.
Snyder told him that “there was no strike, that I could go into
work.” Kachurek told Snyder that the picket signs “specifically
say primary labor dispute on them, that my understanding was
that I would not be required to cross a picket line.” Snyder
repeated that there was no strike and that the operator at the
New Castle plant (also an Outside Districts facility) had gone
into work. Kachurek repeated that his understanding was that
he was not required to cross a primary labor dispute picket line.
They repeated this colloquy at least once, maybe several times.
In her testimony Snyder confirmed that this discussion repeated
itself, attributing it to Kachurek seeming unsure about the situa-
tion. Snyder also testified that she made clear that because
there was no strike, and the contract was in effect, “we ex-
pected” Kachurek and the other employees to work.”
According to Kachurek, Snyder then said, “[W]ell, there’s
ramifications to not going in.” Kachurek asked, “[W]hat are
the ramifications,” and Snyder denied using the word ramifica-
tions, saying she thought she said, “implications.” Kachurek
asked, “[W]hat are the implications of this?” Snyder said she
did not know. Kachurek gave Snyder his cell phone number
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and told her to call him if there was more news. Snyder had
been laughing at various times in this conversation and Ka-
churek asked her about it, and asked if she would like to speak
to one of the pickets. Snyder hung up.
In her testimony Snyder admitted she raised with Kachurek
the possibility of “ramifications” for his decision not to cross
the picket line but claimed it was specifically stated “in regard
[to] his pay if he did not work.” Snyder attributed the laughing
to Kachurek saying he would be available to take her calls un-
less he took a bathroom break. She said she hung up because
she was getting another call and that she told Kachurek she had
to go.
The only potentially material dispute in their essentially con-
sistent accounts of the conversation involve whether the “rami-
fications,” or perhaps, “implications” referenced by Snyder
were stated in terms of pay ramifications as opposed to a more
general reference to ramifications. I found Snyder to be a well
spoken witness, and an intelligent person. But I believe that
Kachurek, who testified with certainty and seriousness, was
more reliable on this point. He did not recall any limiting lan-
guage to Snyder’s remark, which makes sense as it was offered
with a spontaneous quality. It is also the most plausible con-
clusion because Snyder professed that at the time she made the
remark she was unaware of what the ramifications would be for
failing to cross the picket line, not only with regard to pay, but
also as to discipline or anything else. There was no reason she
would limit her comments on January 2 to ramifications for
pay, as she did not know at the time if an employee could or
would be disciplined for failing to come to work. And this
must considered in light of her testimony that she made clear to
Kachurek that the Employer “expected” him to come to work.
In her testimony Snyder was committed, consistent with the
Respondent’s legal position, to stating that her comment was
related only to pay, but I don’t believe she stated it in such
limited fashion. I credit Kachurek and discredit Snyder on this
point.
After talking to Snyder, Kachurek parked his car down the
lane where he could observe the gates and see if the pickets left.
Around 10:45 to 11 a.m., the pickets appeared to be leaving.
At that point Kachurek drove into the plant, seemingly with the
approval of the pickets who were leaving. He then reported to
work and stayed through his shift end time of 3 p.m.
Carole Dascani’s January 4, 2011 Letter to the Union
In response to the January 2, 2011 picketing, the Employer’s
human resources director, Carole Dascani, wrote Union Presi-
dent Booth a letter regarding the picketing. The letter stated,

On November 19, 2010 and January 2, 2011, members of
Local 537 engaged in informational picketing at several
Pennsylvania American Water facilities. In addition, on
January 2, 2011, Local 537 engaged in what it character-
ized as “primary labor dispute” pickets at the Company’s
Ellwood and New Castle locations.

The letter continued with the statement that the Employer
“reserves judgment on the characterization of certain pickets”
and advised the Union of rules it expected the pickets to follow
with regard to picket line conduct. The letter then stated,

In addition to the above, I would like to clarify the Com-
pany’s position regarding employees who do not cross
picket lines. It appears that several employees may have
been advised by the Union that they will be paid if they
report to the facility but do not cross these lines. Please be
advised this is not the case, and the Company will not pay
for time not worked.

Lastly, the Union appears to be characterizing some of its
pickets as “primary” in an attempt to avail itself of the pro-
tections afforded in the “No Strike or Lockout” clause of
some of our collective bargaining agreements. Without
agreeing that pickets such as those that occurred on Janu-
ary 2 are, indeed, primary pickets, be advised that, in the
Company’s view, this language is intended to protect em-
ployees from discipline in situations where they refuse to
cross, or are prevented from crossing, primary pickets es-
tablished by stranger unions. It would be disingenuous for
the Union to suggest that this clause should protect em-
ployees who are members of the same Union that is “pre-
venting” the employees from working. Whether such em-
ployees are working under an active agreement (such as in
Pittsburgh) or under the terms and conditions of an expired
agreement (such as in all other PAWC—Local 537 agree-
ments, per correspondence from Mr. Pasquarelli), such re-
fusal would violate the “No Strike or Lockout” provisions
of those agreements. In addition, if Local 537 employees
repeatedly refuse to cross picket lines manned by Local
537 members, such refusal may constitute an intermittent
work stoppage. The Company is, therefore, putting the
Union on notice that it reserves the right to take appropri-
ate action, including but not limited to discipline and
available legal remedies, against individual employees as
well as against Local 537.

Senior Director of Production Hufton directed that Dascani’s
letter to Booth be posted at the various water treatment plants
where the union-represented employees work.
Hufton’s January 11, 2011 Memorandum to Employees
Most of the Employer’s water treatment plants, including the
ones picketed in January 2011, operate three shifts, 24 hours a
day. When an operator coming to work honored the picket line,
the operator already working inside the plant was left without a
replacement to take over at shift’s end. During the picketing on
January 2, and thereafter, on-duty operators notified manage-
ment of the picketing and asked for supervisory personnel to
relieve them at shift’s end. For the most part, the issue was
addressed in this way without incident. However, in a few
cases, there was delay in a supervisor taking over the work and
the operator made repeated calls to supervisors or managers
asking for someone to relieve them. During the course of the
picketing, management received “feedback that the operators
were saying . . . essentially, if you can’t get here soon enough,
I’m going to shut the plant down and leave.”
The firsthand record evidence of this occurring involved a
January 8 incident involving plant operator Christopher Law-
rence, who worked at the Two Lick water treatment plant in
Indiana, Pennsylvania (part of the Outside Districts unit). Law-
PENNSYLVANIA AMERICAN WATER CO. 1291

rence was working the second shift (3 to 11 p.m.) on Saturday
January 8, 2011, when picketers showed up at the plant gates at
approximately 9:45 p.m. Lawrence observed the pickets on the
monitor in his workstation. Lawrence called his Supervisor
Sherry Medivitz and told her that there were picketers and that
he did not want to stay past the end of his shift at 11 p.m.
Medivitz told Lawrence that she would get dressed and be in to
relieve him. However, a few minutes before 11 p.m., Medivitz
had not arrived at the plant and so Lawrence called her again.
This time Medivitz told Lawrence that she was not going to
come in until the next shift operator, Heather McAnulty, told
Medivitz that she was not going to cross the picket line. Law-
rence said that he was tired and did not want to stay beyond his
shift’s end. McAnulty came to the gates, but did not cross the
picket line, and, therefore, was not in the plant to relieve Law-
rence. Lawrence unsuccessfully tried to contact Medivitz
again, and left her voice mail messages when he failed to reach
her. After several attempts, Lawrence called Medivitz’s direct
supervisor, John Natale, but Lawrence did not reach him. Law-
rence then attempted to contact Bill Smith, the distribution
supervisor. Lawrence told Smith that “if no one was coming in
that I was going to take steps to start shutting the plant down
because it had been an extended period of time that no one had
shown up to relieve me.” Smith told Lawrence, “just hang on.
Don’t do anything, and I’ll . . . see what I can figure out.” Soon
thereafter, Medivitz called and said that she would be in.
Medivitz reported to work to relieve Lawrence at approximate-
ly 11:45 p.m.
The report of an operator suggesting that he would begin
shutdown procedures concerned Dan Hufton, the Employer’s
senior director of production, who oversees the operations of
the water treatment plants. Hufton, and numerous employer
witnesses testified, convincingly, that the “unwritten” but
longstanding practice was that an operator who needed to leave
during his or her shift, or whose relief did not arrive at the end
of the shift, was to stay, no matter the cause for the relief em-
ployee’s failure to show, until a replacement arrived. However,
the testimony was also clear that if necessary a supervisory
employee would cover the shift, and would come in to relieve
an employee who needed to leave. As Hufton put it, “The ex-
pectation is that they will stay there until they’re relieved either
by the incoming operator or, if needed, a supervisor.” The
record also leads me to conclude that it is the employees’ ex-
pectation—and the typical practice of management—that rea-
sonable efforts will be made to have a supervisor relieve an
operator when necessary. In testimony the parties recalled a
few exceptions to this, where an employee had to stay because
no relief (supervisor or employee) was found, but the prevalent
practice is to find a replacement, including a supervisor.
The impetus for the practice of finding a replacement—and
the expectation that the employee would remain at work until
one arrived—was the desire of management to avoid an un-
planned shutdown of the water treatment plant. While shut-
downs were conducted on a planned basis, and occasionally
conducted on an emergency basis to deal with mechanical is-
sues, there was widespread agreement by all parties that shut-
downs were to be avoided and that the plants should not operate
unattended. Although Union President Booth took the position
that an operator who realized that a picket line had been estab-
lished “had the right to leave immediately and not have to work
behind a picket line, we encouraged them to stay and finish
their shift because it is a water treatment plant.” Longtime
Union Attorney Sam Pasquarelli testified that in past instances
of picketing, operators were instructed not to leave their posts,
but rather to “[c]ontact supervision. Wait a reasonable amount
of time for relief. If relief doesn’t come, don’t leave. Make
some more calls. Do everything that you can to avoid shutting
down of a plant. If it gets too far down the road, call a Union
official, and we’ll let you know where to go from there.”
It is undisputed that at no time during the January 2011 pick-
eting did any employee shut down a water treatment facility.
Rather, all operators remained at their posts until they were
relieved by another employee or by a supervisor.
On January 11, 2011, Hufton issued a memorandum to “All
production employees,” which was posted on all of the Em-
ployer’s production department workplace bulletin boards.
Hufton sent his memorandum to emphasize the Employer’s
view that operators must remain at their posts until relieved by
another employee or a supervisor, regardless of the reason the
operator needs to leave or that the scheduled relief fails to ar-
rive. Hufton’s memo stated:

This memo is to remind all production employees of Penn-
sylvania American Water’s workplace rule regarding
shutdowns of our water and wastewater treatment plants.
Unless the shutdown is required due to imminent water
quality reasons or equipment failures or malfunctions, all
plant shutdowns require prior approval by the plant super-
visor, superintendent or production manager.

If the shutdown is required due to imminent water quality
reasons or equipment failures or malfunctions, and the op-
erator is unable to obtain prior approval of the shutdown,
the operator must notify the plant supervisor, superinten-
dent or production manager as soon as possible after the
shutdown, and must remain at the plant until relieved by
another operator, maintenance person, plant supervisor,
superintendent or production manager.
Union President Booth’s January 13, 2011
Response’s to Hufton’s Memorandum
Union President Booth responded to Hufton’s letter in corre-
spondence to Hufton dated January 13, 2011. Booth’s letter
stated, in reference to Hufton’s letter “reminding” employees of
the rule regarding staying at work to avoid a plant shutdown
that “I am not familiar with this ‘rule.’” Booth asked for doc-
umentation of the rule. Booth asked for a list of possible water
quality reasons that would require a plant shutdown, asked who
employees should contact in a situation, described by Booth,
where “in my opinion, production supervision deliberately
ignored repeated attempts to contact them.” Booth asked for the
procedure the Employer uses “when an operator is too fatigued
to safely continue beyond his/her shift, and supervision cannot
be reached,” as well as the Employer’s emergency response
plans.
Booth’s letter also referenced an incident from January 8,
presumably the incident involving Christopher Lawrence, dis-
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

cussed above:

Please be advised that there are no mandatory overtime
provisions in any of the contracts between Local 537 and
Pennsylvania-American Water Company, and Union per-
sonnel may refuse overtime for urgent personal reasons.
Once notified, management is responsible for obtaining
the replacement(s) you reference in your memorandum. In
the event that occurred on the night of 1/8/2011, the Com-
pany was given repeated notice and over two (2) hours
lead time prior to the plant being readied for shutdown.
The Operator that evening, in my opinion, was not re-
quired to be as generous as he was under the circumstanc-
es, and has the legal and contractual right to do as he did.
This letter puts you on notice that in the event a similar
situation may occur; the Operator will attempt to make
contact with the on-duty personnel, and then his/her su-
pervisor with[in] a reasonable amount of time. If after a
reasonable amount of time, a replacement operator is not
provided; the plant may be shut down, secured, and the
operator may leave. I expect you should respond as out-
lined in your local [Emergency Response Plan].

Booth arranged for his letter to be posted on bulletin boards
in the Employer’s facilities. By contractual agreement, and
practice, the Union posted communications on bulletin boards
in the Employer’s facilities that it shared with the Employer. In
the Ellwood City facility, there are two main bulletin boards,
both in the lunch area. The bulletin boards are used by both
union and management. Booth’s response was posted along-
side Hufton’s letter. The letter was also posted in numerous
other facilities on jointly-used bulletin boards.
Hufton ordered that Booth’s letter be removed from the bul-
letin boards. On or about January 20, 2011, the Employer’s
production supervisor in the Milton White Deer District, Ed
Russell, directed the Union’s vice president for the Milton Dis-
trict to remove Booth’s letter from the bulletin board at the
Milton and White Deer water plants and from the Milton office.
In explaining his action, Hufton testified that “the immediate
thought I had is this would be very confusing for an employee
to see my instructions and then this is basically right next to it.
Because . . . it’s basically . . . contradicting the expectation that
I laid out in the memo, and I wanted it to be very clear to our
operators and our supervisors . . . what the work practice should
be.” In a January 14, 2011 email sent to production supervisors
ordering the removal of Booth’s letter, Hufton told the supervi-
sors that “[i]f you receive questions from your plant operators,
please advise them that the work practices outlined in my
memo are in effect, regardless of what Kevin’s letter states.”
Hufton also advised the supervisors that “[d]uring a picketing
situation at your plant, if you receive a request from your op-
erator to shut down and leave the plant at the end of their shift,
before a relieving operator has successfully made it into the
plant, please deny the request.”
Employee Presnar’s Effort to Repost the Booth Letter
Sometime in January 2011, Patty Presnar, a plant operator at
the Ellwood City water treatment plant, and New Castle Dis-
trict union vice president, noticed Booth’s letter was gone and
mentioned it to Booth the next time she spoke with him. Booth
told Presnar to repost his letter. Booth told Presnar to call John
Natale, plant superintendent, and tell him that she was reposting
the letter and that Booth wanted it “to stay reposted.” When
Presnar obtained a copy of the letter she contacted Natale as
requested by Booth. Natale told Presnar that he wished she
would not repost the letter “because it would cause grief for
both of us,” presumably because Hufton had instructed that
Booth’s letter be removed. Presnar consulted with Booth, ask-
ing him what Natale “can do to me.” Booth said he did not
know, and told Presnar to call Natale back and ask him. She
did, asking him “what he meant by “grief.” Natale said he did
not know. Based on this conversation, Presnar did not repost
the Booth letter.5
ANALYSIS
INTRODUCTION
Section 8(a)(1) of the Act provides that “[i]t shall be an un-
fair labor practice for an employer . . . to interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed in section 7 [of the Act].” The rights guaranteed by Sec-
tion 7 include the rights of employees to “to form, join, or assist
labor organizations . . . and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection.”
The General Counsel and the Union contend that the Em-
ployer violated Section 8(a)(1) of the Act in two distinct ways.
First, they contend that the Employer—through Snyder’s
January 2 admonition to Kachurek of “ramifications” for hon-
oring the picket line and through Dascane’s posted January 4
letter reserving the right to discipline employees for honoring
the picket lines—unlawfully threatened employees with retalia-
tion for honoring the Union’s picket line.
Second the General Counsel and the Union contend that the
removal of Booth’s letter from the bulletin Board violated the
Act. And further, they contend that Natale’s warning to
Presnar that reposting the Booth letter would bring her “grief”
constituted an unlawful threat of retaliation if she engaged in
protected activity.
I consider each of these claims in turn.
I. THREATS OF ADVERSE CONSEQUENCES FOR HONORING
THE PICKET LINE
The General Counsel contends that the Employer violated
Section 8(a)(1) of the Act on January 2 and 4, by threatening
the employees with discipline for crossing the picket line set up
by the Union on January 2 at Outside Districts locations. The
alleged threats are contained in (1) Dascani’s January 4 letter
sent to the Union and posted for employees to read and (2)
Snyder’s January 2 statement to Kachurek that there would be
ramifications for failing to cross the picket line.
The Employer’s chief defense is that the picket line’s ob-

5 Presnar’s account of her exchange with Natale was uncontradicted.
Natale did not testify. I credit Presnar’s account. Presnar did not speci-
fy the dates on which it occurred. It is reasonable to conclude that it
happened in January, sometime between the posting of Booth’s letter
on or about January 13, and the removal of his letter some days later.
PENNSYLVANIA AMERICAN WATER CO. 1293

servance by employees was not protected. It contends, primari-
ly, that the right to honor this picket line was waived by the
Union through the no-strike clause of the relevant agreement.
Employees’ decisions not to cross (or to cross) a lawful pri-
mary picket line constitute core Section 7 activity, for which
they may not be disciplined by an employer unless that right
has been waived by the Union representing them. That is, in
essence, what a “no strike” clause in a labor agreement is: a
union-sanctioned waiver of the right to strike, observe picket
lines, and concertedly withdraw services. See Mastro Plastics
v. NLRB, 350 U.S. 270, 356 (1956) (“On the premise of fair
representation, collective-bargaining contracts frequently have
included certain waivers of the employees’ right to strike and of
the employers’ right to lockout to enforce their respective eco-
nomic demands during the term of those contracts”). It is well
settled, however, that the waiver of a statutory right must be
“clear and unmistakable.” Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 708 (1983) (“we will not infer from a general
contractual provision that the parties intended to waive a statu-
torily protected right unless the undertaking is ‘explicitly stat-
ed.’ More succinctly, the waiver must be clear and unmistaka-
ble”).
In considering the scope of the rights waived by a contractu-
al no-strike clause the Board gives the parties’ intent control-
ling weight and looks to the wording of the contract as well as
extrinsic evidence that may shed light on the inquiry. Indian-
apolis Power & Light Co., 291 NLRB 1039 (1988), enfd. 898
F.2d 524 (7th Cir. 1990).
In this case, the “No Strike No Lockout” provision of the
Outside Districts contract that governs the terms and conditions
of the employees contains the first and second paragraphs, dis-
cussed above. The first paragraph is the general no-strike
clause. The second paragraph, I will refer to as the proviso.6
In the first paragraph of the Outside Districts contract’s no-
strike provision, as a general matter, the Union waived the em-

6 For convenience both are reprinted here:
In furtherance of harmonious relations among employees, the
Management and the Public, and in consideration of the adjust-
ment procedures set forth in Section 3 of this Agreement, it is mu-
tually agreed by the parties hereto that there shall be no lockout,
strike, work stoppage or intentional slowdown during the terms of
this Contract. However, there shall be no liability on the part of
the Union for any strike, work stoppage, or intentional slowdown
when such strike, work stoppage, or intentional slowdown is not
authorized by the Union and when, in addition, duly authorized
officers of the Local Union shall, within five (5) hours after noti-
fication by the Company, sign and cause to be posted in promi-
nent places within the offices or plant of the Company, a notice
that the strike, work stoppage, or intentional slowdown was not
authorized by the Local Union and directing all employees to re-
turn to their respective jobs promptly or to cease any action which
may adversely affect any operation of the Company. The Com-
pany shall have authority to discipline any employee or employ-
ees engaged in any unauthorized strike, work stoppage, or inten-
tional slowdown, subject to the Union’s right to present a griev-
ance as outlined in this Contract.
It shall not be a violation of this Agreement and it shall not be
cause for discharge or disciplinary action in the event an employ-
ee refuses to enter upon any property where a lawful primary
picket line is established.
ployees’ right to strike, and did so “in consideration of the ad-
justment procedures set forth in [the grievance and arbitration]
Section 3 of this Agreement.” Nevertheless, the second para-
graph proviso specifically provides there is not a violation of
the Agreement, nor a cause for discipline “in the event an em-
ployee refuses to enter upon any property where a lawful pri-
mary picket line is established.”
What is clear under this language? Not a lot, but let us start
with what, if not clear, is undisputed: it is undisputed by any
party that if, during the term of the contract, the Union estab-
lishes a picket line in protest of a grievable dispute under the
Outside Districts contract, and authorizes employees to refuse
to go to work, the Union has violated its no-strike pledge and
that the employees may be disciplined or threatened with it.
Their work stoppage would be unprotected. Neither the Union
nor the General Counsel disputes this interpretation. The se-
cond paragraph of the no-strike clause—although as a literal
matter fully applicable to such a situation—does not protect a
primary strike against the Employer during the term of the con-
tract. If it did, it would be fair to say that the first paragraph’s
ban on strikes would be meaningless.7
However, the Union and the General Counsel point out that
the situation here is a different one: here the picket line, and the
employees’ refusal to cross it, is in support of another bargain-
ing unit’s labor dispute. That situation, the General Counsel
and the Union contend, is precisely what is permitted by the
second paragraph notwithstanding the first paragraph’s prohibi-
tion on strikes. This interpretation has the virtue of giving
meaning to both paragraphs of the no-strike clause: the general
prohibition on strikes—granted in consideration of the griev-
ance and arbitration procedure—and the proviso permitting
employees to honor a primary picket line. The difficulty with
this contention is that it permits the Union—the same one that
is barred from authorizing a strike during the term of the
agreement—to orchestrate the strike as long as it is on behalf of
other employees. This is a counterintuitive proposition to be
sure, but one the General Counsel and the Union hang their
case on.
It is worth pointing out here that the Union and the General
Counsel reach this result with different approaches. The Un-
ion’s position on this matter goes further than the evidence and
our credulity will take it: the Union contends that there was no
strike of any kind here. According to the Union (U. Br. at 19–
21):

[t]here is also no evidence that Local 537 adopted any pol-
icy or strategy of trying to engage in a work stoppage. . . .
In this case, Local 537 established a primary picket line to
advertise disputes it had relative to expired contracts with
[the Employer]. . . . Local 537 did not do anything affirm-
atively or by negative implication to induce a strike or
work stoppage—all it did was advertise a primary labor

7 It is literally applicable because in that situation the employees are
choosing to refuse to enter the worksite where a lawful primary picket
has been established. In such a case, the picket line is the method of
authorizing a strike—and, therefore, I assume it is a violation of the
contract—but the picketing is not in violation of any law and is obvi-
ously primary.
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

dispute to an audience which had the right to withhold la-
bor if members of the audience desired to do so.

This is simply not a credible argument. Contrary to the Un-
ion’s protestations, the evidence is clear that the employees’
observance of the picket line was undertaken with the authori-
zation, encouragement, and at the instigation of the Union.
Local 537 established the picket line. Local 537 actively en-
couraged employees to honor the picket line, referencing the
union-bylaws and “internal discipline” when necessary,8 and it
changed the picketing signage from the blue informational
pickets with language disclaiming an interest in employees
crossing the line to the red signage without such a disclaimer.
This was not a stranger picket line. This was the Union’s pick-
et line. Employees did not merely come to the Union seeking
advice on what to do in the face of a stranger picket line. The
Union set it up and asked people not to cross it. This was a
Local 537-authorized work stoppage.9
The General Counsel takes a position that more closely
aligns the argument with the facts of the matter. He alleges in
the complaint and argues on brief, that what we have here is a
strike: a sympathy strike in support of the Brownsville unit
employees. According to the General Counsel, the second
paragraph of the no-strike clause should be understood to au-
thorize just such a strike, and must serve as an exception to the
more general prohibition in the first paragraph of the no-strike
clause which prohibits any strikes.
The Employer takes the position that the no-strike provi-
sion—in the first paragraph of the no-strike clause—is iron-
clad and prohibits the Union from instigating any type of work
stoppage at an Outside Districts facility during the term of the
agreement.
There is, however, some textual basis for distinguishing a
prohibited strike on behalf of the bargaining unit from a permit-
ted strike undertaken on behalf of another unit’s dispute. The
first paragraph of the no-strike clause explicitly recites that the
no-strike/no-lockout pledge was given “in consideration” for
the pledge to resolve contractual disputes pursuant to the “ad-
justment procedures” in the contract. Similarly, the “adjust-
ment procedures” provision of the contract (Section 3) explicit-
ly recites that “in consideration of the covenants of the parties
as are contained in the first paragraph of Section 2 [the no-
strike provision], it is agreed that differences [between the par-
ties] of the nature of those mentioned in [the grievance-
arbitration provision] shall be adjusted in accordance with [the
grievance-arbitration procedures].” The grievance-arbitration
provision states—under a heading titled “Disagreements Aris-
ing Under Contract—that it applies to disagreements, disputes,

8 According to the Union’s casual account (U. Br. at 18) of the inter-
action with one employee:
Mr. Shrontz was only told that the union’s constitution and by-
laws provided for internal discipline against members who did
cross, and the president indicated that if a member preferred those
charges, Mr. Shrontz may have to defend against them.
9 The Union’s argument (U. Br. at 18) that “each individual employ-
ee made his/her own choice to cross or not to cross” the picket line is
the case in every strike and, therefore, without more, can hardly be
evidence that this is not a strike authorized by the Union.
or grievances arising “with respect to the interpretation or ap-
plication of any of the terms or provisions of this Contract.”
This “functional linkage” between the no-strike clause and
the grievance-arbitration clause provides textual evidence of an
intention to treat the no-strike clause as having application co-
extensive with that of the grievance-arbitration procedure. See
Electrical Workers Local 1395 v. NLRB, 797 F.2d 1027, 1034
(D.C. Cir. 1986) (“In some situations, it will be apparent from
the language and structure of an agreement that its no-strike
and arbitration clauses are functionally linked”) (remanding
Indianapolis Power & Light Co., 273 NLRB 1715 (1985)). A
sympathy strike in support of issues raised by another bargain-
ing unit’s labor dispute is not a dispute “with respect to the
interpretation or application” of the terms of the Outside Dis-
tricts contract, and therefore, not covered by the no-strike
clause. Gary Hobart Water Corp. v. NLRB, 511 F.2d 284, 288
(7th Cir. 1975).
The Respondent argues (R. Br. at 13), that to interpret the
no-strike clause to permit Union picketing on behalf of a differ-
ent unit “renders the no work stoppage provision useless [and]
is an absurdity” and allows “the language that permits employ-
ees to decide whether to cross a lawful primary picket line [to]
swallow up and eliminate the main purpose of the no-strike/no-
work stoppage provision.” This is an overstatement. To be
sure, a no-strike clause that allows sympathy actions for other
units is less of a prophylactic against work stoppages than a
complete ban would be, but it hardly renders the clause useless
or eliminates its main purpose. The main purpose of the no-
strike clause—to prevent the Union and employees from strik-
ing over grievable issues—which was the explicit “considera-
tion” for the no-strike clause—remains intact under such an
interpretation.10

10 The Respondent relies upon the Board’s decision in Teamsters
Local 688 (Frito Lay, Inc.), 345 NLRB 1150, 1151 (2005), but that
case does more to advance the General Counsel’s case. In Teamsters
Local 688, a Board majority rejected the claim that contractual lan-
guage permitting employees to honor a picket line was an exception to
the no-strike clause. But in reaching that conclusion the Board specifi-
cally relied upon the fact that the language permitting the honoring of a
primary picket was not included in the contract’s no-strike provision.
In that case, the no-strike article of the contract listed certain exceptions
(the “only exceptions”) to the no-strike clause, but did not list as an
exception the different article of the contract permitting employees to
honor a picket line. In the instant case, in direct contrast, the “added
contractual protection” for employees’ honoring the primary picket line
is included in and part of the no-strike provision and thus, must be read
as a constituent part of an analysis of the prohibitions contained in the
clause. Thus, the very distinction drawn by the Board majority in Local
688, and the main point on which the decision rests, is not only absent
here, but reversed.
The facts of this case fall squarely within the reasoning and prece-
dent of Machinists, Oakland Lodge 284 (Morton Salt Co.), 190 NLRB
208 (1971), enfd. in relevant part 472 F.2d 416 (9th Cir. 1972), judg-
ment vacated and remanded on other grounds 414 U.S. 807 (1972). In
that case (like Teamsters Local 688), the union was alleged to have
violated Sec. 8(b)(1)(a) by fining employees for refusing to participate
in a work stoppage in violation of the no-strike clause. However, the
Board dismissed the complaint, recognizing that the language in the no-
strike clause stated that “It shall not be considered a violation of this
Agreement if employees [honor a picket line].” The Board concluded
PENNSYLVANIA AMERICAN WATER CO. 1295

But even if paragraphs 1 and 2 of the no-strike clause provi-
sion are best reconciled by an understanding that sympathy
strikes are permitted, this does not demonstrate that the proviso
also applies to Local 537-called sympathy strikes, and not just
“stranger” picket lines. After all, the no-strike prohibition of
the first paragraph is directed squarely at prohibiting this Union
from authorizing strikes, and the second paragraph proviso does
not mention the Union. In other words, even if employees have
the right to honor a stranger picket line, this does not suggest
that they are free to honor a picket line established by the very
entity—the Union—to which the no-strike clause provision is
directed.11
There is facial appeal to understanding the no-strike provi-
sion to protect observance of only “stranger” picket lines by
employees. Indeed, the issue of “stranger” picket lines was the
original problem that prompted negotiation of the second para-
graph of the Outside Districts no-strike provision. As refer-
enced above, the second paragraph was added in or about 1979
after a meter reader encountered a picket line at a customer’s
worksite and this “stranger” picket line was the focus of the
negotiators’ discussions when the language was added to the
Outside Districts contract.
However, it is notable that while Dascani’s January 4 letter
drew the distinction between stranger and Local 537-authorized
pickets, on brief the Employer does not stress this as the rele-
vant distinction. It cannot, because it is constrained to
acknowledge that events since 1979 suggest exactly what the
General Counsel proposes: i.e., that the parties accepted that
pursuant to this language the Union is entitled to establish a
picket line—on behalf of another Employer bargaining unit—
and that employees who honor the picket line are protected
from discipline for honoring that picket line.
The evidence for this cannot easily be dismissed. As dis-
cussed above, this very contract language was at issue in the
1982 arbitration decision involving a picket line established by
the Union on behalf of the Pittsburgh District at an Outside
Districts location. Although the issue in dispute at the 1982
arbitration was something not at issue here—whether the con-
tract required the Employer to pay lost time to employees who
honored the picket line—the premise of the arbitrator’s ruling,
unchallenged by the Respondent, was that the Outside Districts
employees were free to observe the picket line without reprisal.
According to the arbitrator: “The Union has always held the
picket line was ‘primary’ and the Employer does not contest the
position that the picket line was ‘primary’. Nor is there any
dispute of the grievants’ right to honor the picket line.”

that this demonstrated that the union’s conduct in encouraging ob-
servance of the picket line did not violate the labor agreement.
11 The General Counsel points out that the proviso does not explicit-
ly limit its application to observance of stranger pickets, or exclude
Local 537 picket lines from its scope. But this is not very helpful.
After all, the explicit language of the proviso is untenably broad and
does not even prohibit the observance of union picket lines established
to protest grievable disputes arising under the Outside Districts con-
tract. And all parties concede that the observance of such a picket line
during the life of the contract would be a violation of the contract and
unprotected. The proviso’s meaning cannot be understood in isolation
from the rest of the contract or from the extrinsic evidence.
In 1991, during a subsequent strike, the issue of pay for em-
ployees honoring the picket line came up, this time in the con-
text of an unfair labor practice charge filed by the Union with
the Board. The Regional Director dismissed the Union’s
charge, rejecting the contention that the Pittsburgh District
employees who honored a picket line set up by Outside Dis-
tricts employees at a Pittsburgh District facility, were owed pay
for not working. However, once again, the unchallenged prem-
ise of the charge was that the Pittsburgh District employees had
the right under the contract to honor the picket line established
by another Employer bargaining unit at the nonstriking Pitts-
burgh District facility.
In the wake of the arbitrator’s ruling, the relevant language
of the Outside Districts contract has remained the same since
1982 until today, over 30 years later. Of course, since the sem-
inal Steelworkers Trilogy cases in the Supreme Court, the im-
portance of and deference accorded the arbitrator in interpreting
collective-bargaining agreements has been firmly established as
a matter of Federal labor policy: “the question of interpretation
of the collective bargaining agreement is a question for the
arbitrator. It is the arbitrator’s construction which was bar-
gained for.” Steelworkers v. Enterprise Wheel & Car Corp.,
363 U.S. 593, 599 (1960); Olin Corp., 268 NLRB 573, 576
(1984) (“An arbitrator’s interpretation of the contract is what
the parties here have bargained for and, we might add, what
national labor policy promotes”). Indeed, the arbitrator’s inter-
pretation is the parties’ agreement. As the Supreme Court ex-
plained in Eastern Associated Coal Corp. v. United Mine
Workers, 531 U.S. 57, 62 (2000):
we must assume that the collective-bargaining agreement
itself calls for Smith’s reinstatement [as found by the arbi-
trator]. That is because both employer and union have
granted to the arbitrator the authority to interpret the
meaning of their contract’s language. . . . See Steelwork-
ers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599
(1960). They have “bargained for” the “arbitrator’s con-
struction” of their agreement. . . . Hence we must treat the
arbitrator’s award as if it represented an agreement be-
tween Eastern and the union as to the proper meaning of
the contract’s words . . . . See St. Antoine, Judicial Review
of Labor Arbitration Awards: A Second Look at Enter-
prise Wheel and Its Progeny, 75 Mich. L. Rev. 1137, 1155
(1977). For present purposes, the award is not distinguish-
able from the contractual agreement. [parallel citations
omitted].

Accord: Electrical Workers Local 1395 v. NLRB, 797 F.2d
1027, 1035 fn. 8 (D.C. Cir. 1986) (“the arbitrator’s interpreta-
tion is an integral part of the agreement itself, in way that a
public tribunal’s interpretation never could be”) (remanding
Indianapolis Power & Light Co., 273 NLRB 1715 (1985)).
In this case, we have an interpretation of the labor agreement
that is premised on the view that the agreement permits ob-
servance of the picket line set up by the Union on behalf of
another union-represented bargaining unit employed by the
Employer. It is an interpretation that the Employer had every
reason to dispute at the arbitration hearing, but did not. Ac-
cording to the undisputed testimony of union counsel, neither
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

party made any proposals to change this language in negotia-
tions occurring later the same year after the arbitrator issued his
ruling in 1982. During the next strike, in 1991, there was simi-
lar picketing and, again, no changes were made to the language
in question, and no question raised about the contractual right
of employees to honor the picket lines.
This is extrinsic evidence of the parties’ intent that weighs in
the General Counsel’s favor. I accept the Respondent’s argu-
ment that the narrow issue at stake in the arbitration decision
and the 1991 unfair labor practice charge—whether employees
who honored the picket line must be paid—is a different issue.
That does render the arbitration decision and dismissal of the
unfair labor practice charge something less than definitive. Yet,
it is also not accurate to argue that this extrinsic evidence is
without force. Clearly, the right of employees to honor the
picket line was an explicit premise of the arbitration dispute,
and clearly it was not challenged there, or by all evidence, with
regard to the 1991 unfair labor practice charge. This demon-
strates, at a minimum, that the acceptance of the observance of
these types of picket lines, based on this contract language, is a
practice of longstanding. It weighs in favor of the General
Counsel’s case. Particularly when one considers that this exer-
cise in contract interpretation is intended to resolve a question
of waiver the outcome is even clearer. Given the language, and
given the extrinsic evidence, one would be hard-pressed to
conclude that the Union’s right to engage in this picketing, and
encourage these work stoppages, “was fully discussed by the
parties and that the party alleged to have waived its rights con-
sciously yielded its interest in the matter.” Allison Corp., 330
NLRB 1363, 1365 (2000).
The Employer argues that the January 2011 picketing is dis-
tinguishable from historical instances of union picketing be-
cause in the past instances of picketing at the Outside (or Pitts-
burgh) Districts on behalf of other bargaining units, those other
bargaining units have been on strike against the Employer. It
essentially rests on this distinction, arguing that the presence of
the underlying strike in the other bargaining units somehow
made the picket lines set up at the Outside (or Pittsburgh) Dis-
tricts facilities “lawful,” while the January 2011 picket lines
were not lawful because there was no ongoing strike at the units
on whose behalf the picket line was established. (See R. Br. at
16–20.)
The problem for the Employer’s argument is that the exist-
ence of a strike—or not—in, for instance, Brownsville unit,
cannot matter to the analysis. In January 2011, the Brownsville
unit’s no-strike clause was in effect, but it is not transgressed
by activity occurring at another nonunit facility such as an Out-
side Districts facility.12

12 No party asserts that the picketing and strike violated the Browns-
ville agreement’s no-strike clause. The Brownsville labor agreement
sets forth the Union and Employer’s agreement that “there shall be no
lockout, strike, work stoppage, or intentional slowdown during the
terms of this Agreement”—a no-strike clause similar to the first para-
graph of the Outside Districts contract. Picketing, by itself, is not pro-
scribed—although many no-strike clauses do. See, e.g., Indianapolis
Power & Light, 291 NLRB at 1040 (“any strike, picketing, sit-down,
stay-in, slow-down, or other curtailment of work or interference with
the operation of the Company’s business”). In any event, the Union’s
The absence of a strike at Brownsville does not change the
analysis of whether the no-strike clause at the Outside Districts
units has been violated. Nothing at all in the language of the
Outside Districts no-strike clause supports a contention that it is
permissible for the Union to picket the Outside Districts on
behalf of another unit such as Brownsville when the Browns-
ville unit is on strike but impermissible if the Brownsville unit
is not on strike.
It is obvious how the Union’s use of this picketing tactic
could prove frustrating to an employer: it is true that the no-
strike clause, with its provision permitting the honoring of
picket lines, provides the Union with a method of putting eco-
nomic pressure on the Employer (at the Pittsburgh or Outside
Districts) over disputes at other facilities even without striking
those facilities. But the answer to that is to renegotiate, not
reinterpret the agreement. And in fact, that is what the Em-
ployer sought to do in the wake of the January 2011 picketing.
After 30 years it introduced a proposal in May 2011 negotia-
tions to alter the language at issue so that it clearly and explicit-
ly applied only to stranger pickets set up on property involving
(at least one) unrelated company and established by at least one
union unrelated to this Union. The Employer maintained in its
proposal that it was only seeking to clarify the language to con-
form to its existing meaning. I accept that qualification, and do
not rely on the new proposal as evidence of the meaning of the
existing provision. However, the need to make this clarifica-
tion, at a minimum, undercuts the contention that the 30-year
existing provision clearly and unmistakably waived the rights at
issues.
In short, I think this is a case where the extrinsic evidence—
the history of the parties’ conduct—weighs heavily in interpret-
ing the parties’ agreement. In Indianapolis Power & Light Co.,
291 NLRB 1039 (1988), enfd. 898 F.2d 524 (7th Cir. 1990), the
Board made clear that such evidence must be considered in
considering the scope of the rights waived by a contractual no-
strike clause. Based on the totality of the evidence, I find that
the honoring of the picket line by employees at Ellwood City
and New Castle on January 2, 2011, was protected activity, not
waived by the no-strike clause.
In light of this, I must consider the lawfulness of Dascani’s
January 4 letter and Snyder’s January 2 comment to Kachurek.
Dascani’s letter was, essentially, a statement of the Respond-
ent’s position on the picketing and employees’ observance of it.
In her letter, Dascani wrote that employees who do not cross
the picket lines will not be paid. The General Counsel does not
allege that this was an unlawful threat of retaliation, apparently
accepting it as an action the Respondent was entitled to take.
However, Dascani’s letter also explains that “in the Compa-

picketing did not cause and was not intended to cause a work stoppage
by Brownsville employees against the Employer. The Brownsville
contract, including its no-strike no-lockout clause, must be understood
to apply to and prohibit lockouts and strikes only against Brownsville.
If it were read to prohibit strikes and lockouts at other facilities of the
employer then the Employer would be barred by the Brownsville unit
contract from locking out other union-represented units, even after their
contracts expired, and the Union would be barred from striking other
units, even after those contracts expired. That would be an untenable
reading of the parties’ intent (and no party endorses it).
PENNSYLVANIA AMERICAN WATER CO. 1297

ny’s view,” the protection from discipline for employees ob-
serving picket lines that is contained in the Pittsburgh and Out-
side Districts agreements “is intended to protect employees
from discipline in situations where they refuse to cross, or are
prevented from crossing, primary picket lines established by
stranger unions.” Her letter calls it “disingenuous” for the Un-
ion to suggest that the language protects from discipline em-
ployees who are members of the union establishing the picket,
and the letter declares that the refusal to cross a union picket
line—such as the one established January 2—“would violate
the ‘No Strike or Lockout’ provisions of those agreements.”
Dascani added that if employees “repeatedly refuse to cross
picket lines manned by Local 537 members, such refusal may
constitute an intermittent work stoppage.” Dascani concluded
by stating: “The Company is, therefore, putting the Union on
notice that it reserves the right to take appropriate action, in-
cluding but not limited to discipline and available legal reme-
dies, against individual employees as well as against Local
537.”
Thus, Dascani’s letter conveys to employees the Employer’s
position that observance of the picket line on January 2, 2011,
violated the agreement and was conduct for which the Employ-
er reserved the right to discipline employees. This condemna-
tion of protected activity that, I have found, was not in violation
of the agreement, constitutes an unlawful interference with
employee rights in violation of Section 8(a)(1).
I add that I do not find that the statement in Dascani’s letter
concerning an intermittent work stoppage to be violative of the
Act. (“In addition, if Local 537 employees repeatedly refuse to
cross picket lines manned by Local 537 members, such refusal
may constitute an intermittent work stoppage.”). That is an
accurate statement, one the union might consider. I do not
accept the General Counsel’s contention that sympathy strikers
are immune from losing the protections of the Act for engaging
in “hit and run” work stoppages. See Pacific Telephone &
Telegraph Co., 107 NLRB 1547 (1954) (applying intermittent
strike doctrine to sympathy strikers and finding their work
stoppage unprotected).
By the same token, the Employer’s contention on brief that
the series of picketing events later in January rendered the em-
ployees’ honoring of the picket line unprotected, because it was
intermittent, has no merit as a defense to Dascani’s January 4
threat of discipline. Dascani’s letter warned of intermittent
picketing, but also asserted that any observance of the picket
line violated the contract. (“It would be disingenuous for the
Union to suggest that this clause [in the contract permitting
observance of picket lines] should protect employees who are
members of the same Union that is ‘preventing’ the employees
from working. . . . [S]uch refusal [to cross the picket line]
would violate the ‘No Strike or Lockout’ provision of those
agreements.”) The threat of discipline in her letter was not
limited to a threat of discipline if the picketing continued and
was deemed unprotected as intermittent. Dascani’s warning,
issued January 4, before any repeat of the January 2 picketing
that could render the picketing “intermittent,” violated the
Act.13
As discussed above, I have found that Snyder’s admonition
that there would be “ramifications” for failing to cross the pick-
et line was not expressly limited to ramifications regarding a
loss of pay. Rather, the unstated “ramifications” for failing to
cross the picket line would reasonably be understood to be a
threat of retaliation or punishment for choosing to honor the
picket line. This is particularly true given Snyder’s concurrent
notice to Kachurek that the Employer “expected” employees to
cross the picket line and come to work. The threat of unstated
“ramifications” for honoring the picket line, and contravening
the stated “expectations” of the Employer, is a clear-cut threat
of reprisal violation of Section 8(a)(1).
Finally, the Employer points out on brief that there was con-
fusion on the part of supervisors when confronted with the
picketing on January 2, and that Snyder’s statement, in particu-
lar, reflected this confusion and not an unlawful threat. Even
presuming a good faith but mistaken belief that the Employer
was entitled—or might be entitled—to impose “ramifications”
on employees who observed the picket line, the threat to do so,
as an objective matter, would reasonably tend to interfere with
the free exercise of employee rights. Of course, it is well-
settled that in evaluating the remarks, the Board does not con-
sider either the motivation behind the remarks or their actual
effect. Miller Electric Pump & Plumbing, 334 NLRB 824, 825
(2001); Joy Recovery Technology Corp., 320 NLRB 356, 365
(1995), enfd. 134 F.2d 1307 (7th Cir. 1998).
II. REMOVAL OF UNION POSTING FROM BULLETIN BOARDS
The General Counsel and Union allege that the Respondent
unlawfully removed Booth’s letter from the bulletin boards
shared by the Union with the Respondent.
The General Counsel and Union further allege that the Re-
spondent, through Natale, violated the Act when Natale told
Presnar that reposting would “cause grief” for her.
In this case, the Employer has consented to the Union’s use
of the bulletin board for communicating with union members,
and its agreement to do so is set forth in each of the collective-
bargaining agreements. Having established, by practice and
contract that the Union may use the bulletin board to communi-
cate with employees, the Employer is not free to pick and
choose which union communications the Union posts. It is
“well established” that,

when an employer permits, by formal rule or otherwise,
employees and a union to post personal and official union

13 I note that the Employer’s suggestion that a Union’s January 2
picketing was an unprotected partial strike because it targeted only the
water treatment departments is without support and must be rejected.
In order for a work stoppage to be lawful, there is no requirement that
union seek to stop the work of every portion of the facility or all bar-
gaining unit employees. In any event, unit employees choose for them-
selves whether or not to participate in a work stoppage. The protected
nature of a work stoppage does not turn on whether, for example, a
unit’s production, but not maintenance, employees decide to participate
in the work stoppage. I note that an employer is, of course, similarly
free to lock out only a portion of a bargaining unit, as long as it acts
without discrimination. American Ship Building Co. v. NLRB, 380 U.S.
300, 304 (1965); Bali Blinds Midwest, 292 NLRB 243, 246 (1989).
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

notices on its bulletin boards, the employees’ and union’s
right to use the bulletin board receives the protection of
the Act to the extent that the employer may not remove
notices, or discriminate against an employee who posts no-
tices, which meet the employer’s rule or standard but
which the employer finds distasteful.

Container Corp. of America, 244 NLRB 318 fn. 2 (1979), enfd.
in relevant part 649 F.2d 1213 (6th Cir. 1981).
The exception to the foregoing rule is for communications so
extreme or egregious that they lose the protection of the Act.
Here, as a general matter, the Employer does not challenge the
right of the Union to use the bulletin board. However, the Em-
ployer contends that Booth’s memorandum was in “direct con-
tradiction” to a longstanding rule requiring operators to remain
on-duty until relieved, and instructed employees to disregard
Hufton’s directive to employees to this effect. Accordingly, it
contends that it had a right to remove the posting and, presum-
ably (although it is not expressly treated with on brief) to warn
Presnar that she would get “grief” if she reposted Booth’s letter.
While I assume that, as the Respondent contends, it is unpro-
tected conduct for an employee to directly urge employees to
engage in a partial strike or to disregard a direct (and lawful)
management order, and while Booth certainly did not have
“supervisory authority to instruct employees to disregard” the
Employer’s directives (R. Br. at 32), I do not read Booth’s let-
ter or his dispute with management that way.
Booth’s letter is hardly an exhortation to employees to refuse
to stay at their posts and shut down the plant in defiance of a
management directive. In the first place, Booth’s letter was
written to Hufton. It was not a directive to employees. It did
not urge, exhort, or even address employees. Of course, it was
posted for employees to read, and I do not suggest that a di-
rective to engage in unprotected conduct can be insulated if it is
cleverly styled as a letter to management. But Booth’s letter
was a letter to management: an explanation of the Union’s posi-
tion on disputed issues and a request for documentation of
Hufton’s claims about the rule. The letter raised questions
about what should happen if an operator was unduly fatigued
and supervision was unresponsive, and raised concerns that
during recent events supervision had “deliberately ignored re-
peated attempts to contact them.” The letter argued that there
are no mandatory overtime provisions, suggesting that there are
outer limits to how long an employee should have to remain
after the end of his/her shift. The fact that the Union’s opinion
disputing management’s views was shown to employees via the
bulletin board does not convert it into a call for unprotected
action or violation of a management directive.
Booth asserted that management has a responsibility to ob-
tain replacements when notified that one is needed and ex-
pressed the view that in the January 8 incident (presumably
involving Christopher Lawrence), the operator would have
been within his rights to leave at some point if no replacement
appeared. Finally, in the penultimate sentences, that are the
nub of the Respondent’s objection, Booth wrote:

This letter puts you on notice that in the event a similar
situation may occur; the Operator will attempt to make
contact with the on-duty personnel, and then his/her su-
pervisor with a reasonable amount of time. If after a rea-
sonable amount of time, a replacement operator is not pro-
vided; the plant may be shut down, secured, and the opera-
tor may leave. I expect you should respond as outlined in
your local [Emergency Response Plan].

This “notice” from Booth clearly angered the Employer.
The Employer does not agree that an employee may ever, under
any circumstances, shut down a plant because relief has failed
to show up. And it does not agree that Lawrence would have
been within his rights to initiate a shutdown if he was not re-
lieved.
Yet “the Board has long held that in the context of protected
concerted activity by employees, a certain degree of leeway is
allowed in terms of the manner in which they conduct them-
selves.” Health Care & Retirement Corp., 306 NLRB 63, 65
(1992), enf. denied on other grounds 987 F.2d 1256 (6th Cir.
1993), affd. 511 U.S. 571 (1994). “The turbulence inherent in
union activity arises from rivalry and division likely to provoke
even the docile to petulant behavior. . . . [E]motional excess
manifested by employees in resisting management is not com-
mitted under this law to the absolute judgment of employers.
Indeed, congressional guarantees embodied in Section 7 of the
Act would be jeopardized if every act of disrespect or insubor-
dination emerging from a protected dispute which divides man-
agement from its workforce, renders the employee involved as
fair game for discipline.” F. W. Woolworth Co., 251 NLRB
1111, 1114 (1980), enfd. 655 F.2d 151 (8th Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Under this standard, Booth’s declaration is not an unprotect-
ed assertion. An employee reading the exchange of letters
would understand that this is a disputed issue. Booth’s letter
challenges the Employer’s view, to be sure. The essence of the
message was to urge the Employer not to delay in providing
relief for operators who have completed their shift and are
ready to leave work. It was not a call to employees to violate an
employer directive and to shut down the plant in defiance of
management orders. In context, Booth’s letter engaged the
Respondent in a debate.
In this regard, the Board’s decision in Cleveland Pneumatic
Co., 271 NLRB 425 (1984), enfd. 777 F.2d 339 (6th Cir. 1985),
is instructive. In that case the employer prepared and (per the
usual practice) had the union steward Williams post lists of
employees designated to work overtime. Williams posted the
notices but, because the lists were not prepared sufficiently in
advance to meet contractual requirements, he wrote on each list
“Union does not authorize this overtime” along with his initials.
In response, the employees on the list did not work the over-
time. The employer threatened the steward with discipline if he
ever did it again, contending that the steward’s note “amounted
to a request that the scheduled employees engage in a strike by
refusing the overtime work assignments.” 271 NLRB at 426.
The Board rejected the employer’s defense and found a viola-
tion. As the judge explained, in reasoning adopted by the
Board:

When Williams informed the employees that the Union
had not “authorized” those notices, all he was saying is it
had not agreed to a departure from the contract terms. He
PENNSYLVANIA AMERICAN WATER CO. 1299

was doing no more than publicizing his correct reading of
the contract. There was nothing in his language that told
the employees what they were supposed to do. At the
hearing Williams said: “I was giving the employees an op-
portunity to decide themselves whether they wanted to
work or they did not want to work.”

See also Illinois Bell Telephone, 255 NLRB 380, 381 (1981)
(in context of whole communication, union officials protest
over forced overtime in which they announced to employees
that “overtime is voluntary” and that employees refusing orders
to work overtime “are right” is not reasonably understood as “a
clarion call” for future refusals to work overtime and is protect-
ed: “The January 5 leaflet basically protested Respondent’s
alleged change in overtime policy as contrary to past practice
and the contract. Whether or not the protesters were correct in
their opinion is not relevant; the activity is protected”).
In the instant case too, Booth’s memorandum did not purport
to instruct employees, and there is no record evidence that any
employee ignored management instructions and left the opera-
tion unattended or initiated shutdown procedures. Booth’s
memorandum made clear to the Employer and to employees the
Union’s disagreement with the Employer’s position that an
existing rule—admittedly unwritten, and therefore even more
susceptible to disputed interpretation—required an employee to
remain at his or her post until relieved, no matter what, and no
matter how long. Booth’s letter, as was the case with the union
communications to employees in Cleveland Pneumatic Co.,
supra and Illinois Bell Telephone, supra, does not assume su-
pervisory authority and does not instruct employees to disre-
gard management.
Booth’s letter and its posting by the Union constituted pro-
tected activity. Having agreed to the Union’s use of the bulle-
tin board, the Respondent cannot assume the prerogative to
remove communications on grounds that the communication
challenges the Respondent’s positions. I find that the Respond-
ent violated the Act by ordering the removal of Booth’s letter.14
Similarly, Natale’s suggestion to Presnar that it would cause
her grief (in a form he could not explain when Presnar made a
follow up call to ask what he meant) should she repost the let-
ter, is also violative of the Act, as it threatens adverse conse-
quences for engaging in protected conduct: the posting of union
literature on a bulletin board designated for that purpose
(among others).
CONCLUSIONS OF LAW
Respondent Pennsylvania American Water Company (Re-
spondent) is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
1. The Charging Party Utility Workers Union of America,
System, System Local No. 537, AFL–CIO (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.

14 I do not reach the separate question, raised by the Union and the
General Counsel, as to whether a rule, such as that advanced by the
Employer, that compels employees to remain at work beyond their
shift, and therefore precludes them from supporting a picket line that
they would otherwise have the right to observe, is violative of the Act.
2. At all material times the Union has been the recognized
exclusive collective-bargaining representative of six bargaining
units of the Respondent’s bargaining unit employees.
3. On January 4, 2011, the Respondent violated Section
8(a)(1) of the Act by threatening employees with discipline for
engaging in the concerted and protected activity of honoring the
Union’s picket lines established January 2, 2011, at the Re-
spondent’s New Castle and Ellwood City water treatment
plants.
4. On January 2, 2011, the Respondent violated Section
8(a)(1) of the Act by threatening an employee with unspecified
“ramifications” for engaging in the concerted and protected
activity of honoring the Union’s picket line, established January
2, 2011, at the Respondent’s Ellwood City water treatment
plant.
5. In January 2011, the Respondent violated Section 8(a)(1)
of the Act by removing correspondence written by the Union to
the Employer that had been posted by the Union on the bulletin
boards in the Respondent’s facilities on which the Union regu-
larly posts communications.
6. In January 2011, the Respondent violated Section 8(a)(1)
of the Act by threatening an employee that it would cause her
“grief” to repost a union letter on the bulletin board in the Re-
spondent’s Ellwood City facility on which the Union regularly
posts communications.
7. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
At the Union’s request, the Respondent shall repost the Jan-
uary 13, 2011 letter from Union President Booth to Senior Pro-
duction Manager Hufton on all bulletin boards from which it
was removed by the Respondent.
The Respondent shall further be ordered to refrain from in
any like or related manner abridging any of the rights guaran-
teed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Employer’s facilities or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed any facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 2, 2011. When the notice is issued to
the Employer, it shall sign it or otherwise notify Region 6 of the
Board what action it will take with respect to this decision.
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Pennsylvania American Water Company,
with locations throughout Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discipline or other adverse
consequences for engaging in the protected and concerted ac-
tivity of honoring a picket line protesting a dispute with the
Respondent, where honoring the picket line is not in violation
of the contractual no-strike clause.
(b) Removing union literature from the bulletin board in the
Respondent’s facilities on which union communications are
typically posted.
(c) Threatening employees with adverse consequences in re-
taliation for posting union literature on the bulletin boards in
the Respondent’s facilities on which union communications are
typically posted.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon the request of the Union, repost Union President
Kevin Booth’s January 13, 2011 letter to the Respondent’s
Senior Director of Production Daniel Hufton on all bulletin
boards from which the Respondent had it removed.
(b) Within 14 days after service by the Region, post at its
Pennsylvania facilities the attached notice marked “Appen-
dix.”16 Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to the physical posting of paper notices,
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees by such means. Reasonable steps shall be taken by
the Respondents to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed any facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 2, 2011.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT threaten employees with discipline or adverse
consequences for honoring a picket line that is not in violation
of a contractual no-strike clause in the labor agreement.
WE WILL NOT remove union communications from the bulle-
tin board in our facilities on which union communications are
typically posted.
WE WILL NOT threaten employees with adverse consequences
for posting union communications on bulletin board space in
our facilities on which union communications are typically
posted.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
WE WILL, upon request of the Union, repost the January 13,
2011 letter from Union President Kevin Booth to Production
Supervisor Dan Hufton on all bulletin boards from which we
removed the letter.

PENNSYLVANIA AMERICAN WATER COMPANY