Southern California Edison Co.

National Labor Relations Board - Board Decisions

Jul 10, 1979

243 N.L.R.B. 372 (N.L.R.B. 1979)

Dit(CISIONS OF NATIONAL LABOR R ATIONS BOARI)
Southern California Edison Company and Local
Union No. 47, International Brotherhood of Electri-
cal Workers, AFL-CIO. Cases 21 CA-16640 and
21 -CA- 16653
July 10, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MI MBI RS JENKINS
ANt) MURPHY
On December 19, 1978, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Charing Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge, as
modified below, and to adopt her recommended Or-
der, as modified herein.
The Administrative Law Judge found, and we
agree, that the Union did not waive its right to honor
picket lines of other unions.2 The Employer could
not, therefore, rely upon the contract to prohibit unit
employees from refusing to cross such picket lines.
However, she failed to distinguish between the two
types of picket line situations involved here. Where
the employee engages in a total work stoppage, as
when he refuses to cross a picket line at his own place
of employment, the employer may treat the employee
as a striker and replace him without having to dem-
onstrate a business necessity for so doing.3 Where,
however, an employee engages in a partial refusal to
work by refusing to cross the picket line of one of the
employer's customers, the Redwing Carrier,4 doctrine
applies, and the employer must prove that it was nec-
essary to replace the employee to preserve the effi-
cient operation of its business.
In April 1978 Respondent was anticipating a strike
of its employees represented by the Utility Workers
Union of America (UWUA). In response to this situ-
i The Administrative Law Judge erroneously granted the General Coun-
sel's request for a remedial interest rate of 9 percent on the backpay. Accord-
ing to Board law, the interest on backpay is computed in the manner pre-
scribed in Florida Seel Corporation, 231 NLRB 651 (1977).
2 See Gary-Hobart Water Corporation, 210 NLRB 742 (1974).
See Newberry Energy Corporation, Industrial Division, 227 NLRB 436
(1976).
Redwing Carriers, Inc. and Rockana Carriers Inc. 137 NLRB 1545
(1962).
ation, its manager of industrial relations sent a letter
to the Union's business manager, Kelly, indicating
the union-represented employees who refused to cross
UWUA lines would be in violation of the no-strike
provision of the contract and that not only replace-
ment but also disciplinary action could result. On
May 4 Respondent distributed cards to its supervisors
with similar statements; some supervisors read this
information to union-represented employees who in-
dicated they would respect the UWUA lines.
The Administrative Law Judge found the Employ-
er's letter of April 28 to Kelly and the cards it gave to
its supervisors to be violations of Section 8(a)( 1) un-
der the Redwing Carriers business justification test.
She found specifically that Respondent violated Sec-
tion 8(a)( I) because it did not qualify or limit its as-
serted right to discipline employees to situations
where discipline was necessary to preserve the effi-
cient operation of its business, but instead based its
right to discipline on the no-strike clause of the con-
tract. However, those statements referring to the Em-
ployer's right to hire replacements were made in the
context of the UWUA strike at Respondent's place of
business, which would have involved a total strike
situation, and an employer faced with a total strike
can replace strikers without showing business justifi-
cation. Thus, the Administrative Law Judge's finding
is erroneous. Rather, we find the violation because
Respondent threatened employees with discipline for
engaging in protected concerted activity, i.e., alleg-
edly violating a no-strike clause which, as the Admin-
istrative Law Judge found, did not prohibit a sympa-
thy strike or the honoring of another union's picket
line.
Distinct from the above situation is that involving
employee Gary Blum's suspension for his refusal to
cross a picket line set up by the International Associ-
ation of Machinists and Aerospace Workers at the
Freightliner Corporation, Respondent's customer.
Blum's duties require that he perform services at
varying locations, usually moving from one customer
to another and often remaining at a customer's place
of business for only a brief period of time. On May 4
Blum was scheduled to perform two nonemergency
tasks at Freightliner. Both tasks could have been
completed in less than a day, and Blum was not
scheduled to return to Freightliner after he had fin-
ished them. Blum told his supervisor, Evenson, that
he did not want to cross the picket line and supplied
the name of another qualified employee, Tanner, who
was willing to and who later did cross the line to do
the work. Evenson, unwilling to give Blum time to
obtain advice from the Union, told Blum that he
wanted his decision immediately so he could arrange
for a replacement if necessary. When Blum replied
that he did not want to cross the picket line, Evenson
243 NLRB No. 62
372
SO()ItIHERN (Al.IFORNIA E)DISO(N .().
told him there was no work fr him and that he could
leave for the day. Here, the Redwing Carriers princi-
ple applies to Blum's partial refusal to work. i.e..
Blum was willing to do all other jobs or assigned
work except the Freightliner job.
The Administrative Law Judge found that the Em-
ployer had probably met its burden of establishing a
business justification in sending Blum home on May
4, but that it had not offered sufficient proof for fail-
ing to schedule him for work on May 5 and for sus-
pending him from May 8 through May 12, thereby
violating Section 8(a)(1) and (3).5
Under Redwing Carriers an employer may replace
employees who engage in a partial work stoppage so
long as it acts only to preserve the efficient operation
of its business, for in that way the employer's rights
are properly balanced with the Section 7 rights of the
employees. In determining whether an employer has
presented a sufficient business justification for replac-
ing an employee who engages in a partial work stop-
page, it is necessary for the employer to show more
than that someone else may have had to be trans-
ferred or reassigned to do the work.6 And an em-
ployer may not merely equate the employee's refusal
to cross the picket line with an act of insubordina-
tion. 7 Here, the disciplinary letter Blum received con-
firming his supension did not indicate that he was
being disciplined because of economic necessity, but
rather because it had been necessary to locate and
reschedule another testman to do his work and be-
cause he had been insubordinate. (It also called his
attention to the no-strike provision of the contract.
implying that he had violated it as well.) Likewise,
Evenson's actions at the time of the incident indicate
that he interpreted Blum's refusal as insubordination.
In sum, we find that Respondent did not present
evidence of a sufficient business justification for re-
placing Blum. It in fact had and used a replacement
for him at no obvious inconvenience to it. We there-
fore agree with the Administrative Law Judge that
Respondent violated Section 8(a)(l) and (3) by refus-
ing to schedule Blum for work and by suspending
him. However, we find the violation occurred on May
4, when Blum was sent home, because the replace-
ment, Tanner, was in fact available and did work on
May 4, and not just on May 5 and May 8 through 12
as the Administrative Law Judge found.
sThe Administrative Law Judge, in considering Blum's suspension. erro-
neously relied on Keller-Crescent Compansr, 217 NLRB 685 (19751. which
deals with the issue of waiver of the employee's statutory right to honor
picket lines and not with a partial withholding of labor as is involved here.
"Overnie Transportation Company, 154 NLRB 1271 (1965), and 212
NLRB 515 (1974).
Overniie Transportation Conpany, 154 NLRB at 1275
AMINDEID CON('I.SIONS ()1. [.\\
Upon the basis of the foregoing findings of fact and
the entire record, we modiF the Administrative Law
Judge's 'onclusion of Law 4 as follows:
"4. B refusing to schedule Gary R. Blum for work
on the afternoon of May 4. 1978. and all of May 5,
1978, and suspending him from May 8, 1978. through
Mav 12. 1978, because he refused to cross a picket
line established by IAM District Lodge No. 120 to
perform assigned work at the premises of one of Re-
spondent's customers. Respondent has engaged in un-
fiir labor practices in violation of Section (a)( ) and
(3) of the Act."
()R)lR
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative I.aw Judge, as modified be-
low, and hereby orders that Respondent. Southern
California Edison Company. Ontario. ('alifornia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph 2(a):
"(a) Expunge from its records any reference to the
refusal to schedule Gary R. Blum for work on the
afternoon of May 4, 1978, and all of May 5, 1978. and
any references to his suspension for his refusal to
cross the picket line at reightliner C(orporation."
2. Substitute the attached notice for that of the
Administrative l[aw Judge.
APPEN )I X
Noii( 1- To EMPLoYIlS
Pos tii) BY ORDR ()1- IHI:
NAIIONAI. LABOR RELAIIONS BOARI)
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, the National I.abor Re-
lations Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us
to post this notice. We intend to carry out the order of
the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any and all of these things.
373
DIEF(ISIONS OF' NAIIONAL LABOR RELATIONS BOARD)
WI WILL. NOI do anything that interferes with,
restrains, or coerces you with respect to those
rights. More specifically,
Wt WI.L. No(l suspend or otherwise discrimi-
nate against or discipline employees because
they engage in their statutory right to refuse to
cross picket lines established by unions other
than their collective-bargaining representative.
Wt WILL NOt threaten employees with disci-
plinary action or other reprisals if they engage in
their statutory right to refuse to cross picket lines
established by unions other than their collective-
bargaining representative.
WE wt.l. Nl in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE, wIl.L expunge from our records any refer-
ence to our suspending Gary R. Blum or refusing
to schedule him for work because he refused to
cross a picket line established by IAM District
Lodge No. 120 at the premises of Freightliner
Corporation, and wEA. wil.L. make him whole for
any loss of earnings he may have suffered, plus
interest, as a result of our discrimination against
him.
SO)UTIHERN CAI.IFORNIA EDISON COMPANY
DECISION
SIATEMENT OF fTIE CASE
EARIDEAN V. S. ROBBINS, Administrative Law Judge:
The hearing in these matters was held before me in Los
Angeles. California, on October !7, 1978. The parties en-
tered into a stipulation of facts and stipulated that such
facts, along with the exhibits attached thereto and the for-
mal documents herein, would constitute the entire record in
this matter. The charge in Case 21-CA-16640 was filed by
Local Union No. 47, International Brotherhood of Electri-
cal Workers, AFL-CIO, herein called the Union, on May 8,
1978, and served on Southern California Edison Company,
herein called Respondent, on May 9, 1978. The charge in
Case 21-CA- 16653 was filed by the Union and served on
Respondent on May 11, 1978. An order consolidating cases
and a consolidated complaint which alleges violations of
Section 8(a)(1) and (3) of the National Labor Relations Act.
as amended, issued on July 13, 1978. The principal issue
herein is whether the collective-bargaining agreement be-
tween Respondent and the Union prohibits an employee
refusal to cross a lawful picket line established by another
labor organization at Respondent's premises or at those of a
customer of Respondent.
Upon the entire record, and after due consideration of
briefs filed by the parties, I make the following:
FINI)IN(S 01F IA( I
1. JURISl)I( II(ON
Respondent, a California corporation with a number of
facilities located within the States of' California and Ne-
vada, is engaged in business as a public utility, transmitting
and selling electricity to private, commercial, and industrial
users located within the State of California. Respondent in
the course and conduct of its business operations, annually
derives gross revenues in excess of $250,000 and annually
purchases and receives goods and products valued in excess
of $50,000 which originate outside the State of Calif'ornia.
The complaint alleges. Respondent admits, and I find
that Respondent is now, and has been at all times material
herein, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
I1. L.ABOR OR(;ANIZAIION
The complaint alleges, Respondent admits, and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning ofI Section
2(5) of the Act.
I. l AII.l-(iLI) I:NFAIR L.ABO(R PRA(Ii( S
A. Introduction
Respondent provides electrical service to a 50,000-
square-mile area which included 800 cities and communi-
ties with a total population of nearly 8 million people and
271,384 commercial and industrial establishments as of
May 1978. Respondent has a total of 13,318 employees, of
whom 6,754 are represented by three labor organizations.
The Union represents 5,466 of Respondent's employees.
Local Union No. 246, Utility Workers Union of America,
AFL CIO. herein called UWUA. represents 1,265 employ-
ees, and Local Union No. 88, International Union of Team-
sters, Chauffeurs. Warehousemen and Helpers of America,
herein called the Teamsters, represents 23 of Respondent's
employees.
Respondent has had successive collective-bargaining
agreements with the Union since 1945, with UWUA since
1947, and with the Teamsters since 1973. These employees
have engaged in strikes on only two occasions a strike in
1953 by the Union and the strike involved herein by
UWUA.
B. Collective-Bargaining History, Grievance History, and
Practices of the Parties as to the Honoring of Stranger
Picket Lines
The first contract between the Union and Respondent
was entered into in 1945. That agreement provided, inter
alia:
ARII('l.F I
RE(COGNI rON
B. The Company agrees to recognize the rights of
employees as set forth in Section 7 of the National
374
SOUITHERN (AlLIFORNIA [)ISON (O.
Labor Relations Act to "self-organization to foirm.
join or assist lahor organizations. to bargain collec-
tively through representatives of their own choosing
and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protec-
tion."
ARt FI 1- I1
(()N IN 'I ()tI' SOf RIt 1( ) t ill I't i I(
B. Neither the Union nor its officers or agents while
this contract is in effect, shall call or engage in, sanc-
tion or assist in a strike against or any slow-down or
stoppage, in w hole or in part. of the work or operations
of the Company, and while this agreement is in effect
the Company shall not cause or permit any lockout of
employees.
During the 1947 negotiations the Union proposed that
article II, section B. be changed to read:
B. Employees covered by this agreement shall not
be required to pass picket lines in the performance of
their duties. (New)
During the course of negotiations on this item. the Union
explained, "What we had in mind there was that in the
event there should be a labor dispute in some plant some-
where and some other union, someone had a picket line
around that place, that you couldn't force your people
through that picket line at the risk of fights and trouble."
After both sides cited some examples of possible problem
situations, the union representative further stated. "All this
does is just clarify this situation so that it makes it clear and
understandable and so that each steward and each individ-
ual superintendent won't have to get together each time and
hand down their own decision." The Union further asserted
that the employee would have the responsibility of making
every effort to secure the picket captain's permission to go
through the line and predicted that all but the most radical
picket captain would cooperate. and in the case of the ex-
ceptions, the employee would probably be in physical dan-
ger if he persisted in crossing the picket line.
The company representatives argued that the proposed
provision incorrectly implied that it had been the Compa-
ny's practice to force employees to cross picket lines. The
Union agreed that this had not been the practice, but stated
that the proposed provision was just for clarification. that
the Union was concerned that some superintendent at some
time would force an employee to cross the picket line. con-
trary to Respondent's usual practice.
The Union suggested adding a phrase. "until they have
contacted their union." The company representative in-
quired if the Union's concern was fear of violence. The
Union took the position that it could also involve a matter
of principle. Respondent's position was that an emplosee
had no right to such principles when they conflicted with a
public utility's obligation to the customer, that the em-
ployee was being paid to render as much service and assist-
ance as possible to the customers. Following some philo-
sophical discussion as to principles and the crossing of
picket lines. it was agreed that the 5 would proceed to the
next proposal, and there is no indication on the record thlat
this proposal was ever discussed again. I he newv contract
was identical to the previous one in this regard.
D)uring negotiations leading to the 1948 areniccnit, the
Union proposed eliminalting ll relerence to the Ntiorlal
L.abor Relations Aet in article i. paragraph B. and coinm-
pletely eliminating article 11. paragraph B. T'hese two para-
graphs were modified in the 1948 agrelenmet and has e been
contained in each subsequent agreement. including the one
in effect at times material herein. s ; llo s:
ARII( I I
RI:( (0(N' I ()\
B. The (Companl agrees to recognize tIhe righlls o
employees itas set forth in Section 7 oft he NationalI
Labor Relations Act to "seif-organization. to tornm.
join or assist labor rganizations, to bargain collec-
tivel' through representatives of( tlleir o, n chloosil nl
and to engage in concerted activities t'or the purposes,
of collective bargailing or other mutual aid r prote--
tion." The Company or the tInion will not intertere
w ith. restrain or coerce the emplo ees in the exercise ot
their rights as set forth in the National lahbor Relations
Act or an) amendilents thereto.
AR ( I I 11
( O)NIIN IIY f 5 RI N : 10 It P 1I (
A. It is agreed that there shall be no strike. slo -
down, or lockout until all methods pIlr Lided tlr the
settlement of disputes in this agreemient hac been
full, utilized. and further, that the parties shall hate
exhausted the remedies provided under the Iabor-
Management Relations Act.
Following a strike in 1953. Respondenlt and the I mion
entered into a strike-settlement agreement which provided.
intler illitl:
PRI AMl l I
The Compan5 is a public service agenct charged
under the laws of' the nited States of' Amierica. of the
State of Nevada and of' the State of Calitfrnia t ilh the
duty of' maintaining electric service under public rcgu-
lations of its actis ities and of its rates. ilhe ('ompaln\ is
engaged in a public service requiring continuous op-
eration, and the recognition of such obligation of' coln-
tinuous service during the term of' this Agreemelitl is
imposed upon both the ('ompan and the Ulnion. I he
obligation and the duty of the Comnpan_ and its work-
ing forces to maintain conltiluous electric sers ice. iso-
far as possible within human limitations. is a hasic coi-
dition of' the (Coopaln's franchises and rights uttier
Inherent in the relationship establishled het, cell tile
('onlpany anld its eplo}ees is tile obligation om the
part of the C('olpanl to deal justl and t'irl \with 1i,
employees: and on the part of the L5mploees. to coti -
erale with their fellow emplo Mecs anid with the ('oni
375
I)E('ISIONS OF NATIONAL. LABOR RELATIONS BOARI)
pany. in the performance of said public service ohliga-
tion, and in the preservation of the good name and the
good will and the property of the Company requisite
thereto.
By agreement of the parties this language was contained
in the 1953 post-strike collective-bargaining agreement and
has continued unchanged in all subsequent agreements, in-
cluding the one in effect at times material herein. The 1953
strike-settlement agreement also provided:
Preamble "nmeans that endeavor in good faith to co-
operate and assit in the performance of the duty and
obligation of the C(ompany to the public is of the es-
sence of the contract of employment with the Com-
pany.
During the 1970 contract negotiations, the Union pro-
posed that "Article I Recognition" be amended to add the
following new paragraph:
No employee shall be required to cross a picket line
that is sanctioned by the AFL ('10 Central Labor
Council. Employees who exercise their right not to
cross a picket line may be assigned to other work.
Respondent took the position that the provision would
cause Respondent problems with the public utilities com-
mission (PUC) in fulfilling Respondent's commitment to
customers. The union representatives suggested that quite
often a picket line situation would not cause such problems.
The company representative agreed and further stated: "I
think generally we have stated a position on this that if
there is no real urgency as far as service to the customers,
and where we can we would attempt to avoid the picket
line, particularly if there appears to be any skirmish or any
problems. If we get to a point where the service is required
by a customer, then we are obligated to provide that ser-
vice. But again, if we have problems in this area, generally
we have been able to work them out." Immediately follow-
ing this statement. the union representative began discuss-
ing another proposal and at a subsequent negotiation ses-
sion withdrew, without further discussion, the picket line
proposal.
During the 1972 negotiations the Union proposed that
article I be modified to include the following paragraph:
No employee shall be required to cross a picket line
that is sanctioned by the AFL-CIO Central Labor
Council.
The Union explained that most times Respondent was co-
operative in this regard, but expressed concern that from
time to time there were situations where a supervisor takes
pleasure in forcing an employee to cross the picket line.
Respondent again mentioned the obligation imposed on it
by PUC. The union representative agreed that there were
occasions where Respondent would be required to provide
immediate service, but suggested that this was not the usual
situation, and the Union was concerned about those few
instances when employees were forced to cross the picket
line when there was no real emergency or immediacy in-
volved.
In response. the company representative expressed sur-
prise that the Union had submitted this proposal, since they
had generally been able to work out these situations with-
out problems. He further stated that he would hate to see
such a provision in the contract, because then it would be
subject to the interpretation of every union member, union
steward. and supervisor as to a particular situation. He sug-
gested that such a provision would cause more problems.
The company representative also stated that he had re-
viewed the collective-hargaining agreement of other utility
companies, and only a few contained such provisions. Most
of the contracts were silent on the subject: however, the
practice was about the same in the industry regardless of
whether the contract contained such a provision, the same
as that of Respondent to avoid crossing a picket line if
service can be deferred and, even when immediate service is
necessary, to weigh carefully the possibility of physical
harm to the employee.
The union representative agreed that most times they
were able to work something out, but suggested that they
would be able to do so even more often if there was some-
thing in the contract indicating attitude and position. Also,
the Union took the position that if the contract spelled out
that employees will not cross the picket line except when it
is absolutely necessary, then when Respondent considered
the question of necessity, it would afford the question more
careful thought. The discussion thereafter proceeded to an-
other proposal, and there is not indication of any further
discussion of the proposal. The Union has submitted no
further proposals as to picket lines.
The contract in effect at times material herein also pro-
vides, inter lia.
Article IV
(;RIVAAN('E PRO(f'EDRIi
A. In the event any grievance arises concerning a
claim by an employee or a group of employees or the
Union that any of the terms of this Agreement have
been violated, or any other grievance relating to rates
of pay, wages, hours of employment, or other condi-
tions of employment, such matters shall be adjusted
according to the following [grievance] procedure:
* * * . *
Article V
ARBITRATION
A. It is agreed that only grievances involving the
interpretation or application of this Agreement may be
submitted to arbitration....
G. If the contention is made that the grievance is
not a proper one for arbitration as defined in Section A
of this Article V. said question of jurisdiction shall be
determined by the IArbitration) Board.
. * * *
376
SOt)[HtF.RN ('AI.IFORNIA EDISON CO.
Article VI
MANA(i!MIN I PR R0(iAl S\:S
A. The Company has and will retain the right and
power to manage the plant and direct the working
forces. including the right to hire, to suspend. or dis-
charge for just cause. to promote. demote, and transfer
its employees, subject to the provisions of this Agree-
ment. Any claim that the Company has exercised such
right and power contrary to the provisions of this
Agreement may be taken up as a grievance
* * * . *
Article VIII
WAIVERS
The waiver of any breach or condition of this Agree-
ment by either party does not constitute a precedent
for any further waiver of such breach or conditon.
Over the years, the Union has filed I grievances regard-
ing Respondent forcing employees to cross picket lines of
labor organizations other than the Union 2 were filed in
1969, 7 were filed in 1971, and 2 were filed in 1978. At
various times the Union has relied on the preamble, article
1, and/or article VI. Respondent has rejected all such griev-
ances on each occasion prior to 1978, and it has explained
its rejection in terms of the existence of circumstances that
made it impossible or undersirable to defer service. Prior to
1978, when Respondent has relied on a specific provision of
the contract, it has been article VI. It has relied on the no-
strike clause only as to the two grievances filed in May and
June 1978.
During the past 20 years, on occasion. Respondent has
required employees represented by the Union to cross
picket lines at customers locations under threat of dis-
charge. On other occasions Respondent has not required
employees represented by the Union to cross such picket
lines, but has made accommodations for the employees, in-
cluding scheduling the work to be performed at times when
picketing had ceased. deferring the work until the end of
the strike, discussing the matter with a representative of the
picketing labor organization to arrange for employees to
enter, or assigning the work to employees who were willing
to cross the picket line. Respondent does not require em-
ployees represented by the Union to cross a picket line at a
customer location when it has reasonable cause to believe
that crossing the picket line would place those employees in
danger of physical harm.
C. The ULWUA Strike
Prior to April 19, 1978.' there apparently were some indi-
cations that unresolved issues in contract negotiations be-
tween Respondent UWUA might result in a strike, for
Union Business Manager Mike Kelly requested legal advice
' All dates hereinafter will be in 19/8 unless ,otherwise ndicated
as to the rights of Respondent's employees represented hb
the Union to honor a lawful. primary picket line at Respon-
dent's premises.
By letter dated April 19 the Union as advised by its
attorney that employees have the right under the National
Labor Relations Act to refuse to cross the picket line of
another union and that such right has been reaffirmed in
article I. paragraph B. of the collective-bargaining agree-
ment, in which Respondent agreed to recognize the employ-
ees' rights set forth in Section 7 of the Act and not to inter-
fere with, restrain. or coerce employees in the exercise of
such rights.
On April 28 C. Robert Simpson. Jr.. Respondent's man-
ager of industrial relations, sent a letter to Kelly. which was
posted at various work locations to which union-represent-
ed employees are assigned. The body of the letter reads:
A letter sent to you by Julius Reich of April 19. 1978
has been brought to my attention. That letter specifi-
cally advises you that IBEW employees are free to re-
fuse to cross a picket line established by the t!WtIA
and that said refusal would be lawful concerted ac-
tivity. If further implies that no measure could be
taken by the Company in the face of such refusals.
In our opinion, we strongly disagree with such ad-
vice. Pursuant to the National abor Relations Act.
any employee of Southern California Edison Com-
pany, whether represented by the UWlA or the
IBEW. or whether represented at all, ma\ he perma-
nently replaced if he or she refuses to cross a picket
line. The fact that a picket line may be lawfully estab-
lished by the LJWUA is of no significance.
Furthermore, such action bh an IBEW employee
would be in direct violation of the collective bargain-
ing agreement. Your attention is directed at Article 2
of the C(ontract. That Article states that during the
term of the Contract, there shall be "no strike" or
"slowdown." A refusal to cross a picket line not only
would directly violate that clause of the Contract, but
could lead to disciplinary action in addition to tempo-
rary or permanent replacement.
On May 3. the Union distributed the following memo to
persons holding the positions indicated thereon:
to: All Stewards, Officers and Business Managers. I.o-
cal 47, IBEW
SPti('A. No()TI(
Some members of the Utility Workers Union of Amer-
ica have started a WILDCA TSTRIKE at the Mohave
Generating Station on Southern California Edison
property.
It Ia1s Not Beein i,4lhori:ed By I.ocal 246, UHLA I.
We do not know what course the wildcat strike will
take. However. I have been informed by Local 246
UIWUA officials that it is N'OT that Local's intention
to picket any IBEW local 47 jurisdiction work head-
quarters. So. therefore, we can be sure that i pickets
show utp at any IBEW work headquarters 711EY ARE
377
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
NOT AUTHORIZED OR SANCTIONED PICK-
ETS, and Local 246 UWUA DOES NOT EXPECT7
any IBEW member of respect the picket line.
If there are any further developments we will pass
the information on to you for communication with the
Local 47 members.
On May 4 Respondent provided its supervisors the fo)l-
lowing information on "supervisors cards":
QULSI IONS RE:
EMPI.OYEES' RESPONSIBILIIIES IN iHI EVEN I OF A WI:A
PICKEI' I.INE
The Company wants you to work and expects you to
work.
The Company believes the contract obliges you to
work and that it would be a violation of the no-strike
clause of your collective bargaining agreement for you
to refuse to cross a picket line at any facility where you
have been assigned to work permanently or for any
other period of time. Refusal to cross could lead to
disciplinary action and could also lead to your perma-
nent replacement, since the Company would have the
right to hire permanent replacements.
If the employee asks the additional question of what
in fact will the Company do, you should respond as
follows:
"That will be decided at the time the problem arises
and the Company will take the action that is appro-
priate under the circumstances."
UNION FINE FOR CROSSING PI(KET LINE
I suggest that if you have questions concerning union
fines that you contact the National Labor Relations
Board at (213) 688-5200. They should be able to an-
swer your questions.
This information was read by various supervisors during
the first 2 weeks of the UWUA strike to employees repre-
sented by the Union who indicated an intention to respect
the UWUA picket line.
By newsletter dated May I , signed by Kelly and posted
at various of Respondent's facilities, the Union notified em-
ployee members of the impending UWUA strike. The body
of the notice reads:
Local 246, U.W.U.A., representing the Edison Steam
Plants, went on strike on May 10. 1978 ....
I refer the membership to the last three communica-
tions from this office on the matter of the rights of
individuals in regard to picket lines. One letter from
our attorney was duplicated and sent to all Local 47
Officers, Representatives and Stewards. A second letter
from the attorney was duplicated for the entire mem-
bership. A third letter from me informed the member-
ship that it is not the intention of Local 246, U.W.U.A.
to picket any I.B.E.W. work locations so, thereftbre.
any pickets who show up at an I.B.E.W. work location
are not authorized by that Local Union. Our member-
ship is not expected to recognize any unauthorized
picket line.
There are some very touchy areas which may arise
at those U.W.U.A. locations where there are I.B.E.W.
facilities such as automotive garages at the same loca-
tions as U.W.U.A. plants.
Our Local could not direct its membership either to
cross a picket line or not cross a picket line; it would be
illegal to do so! I can, however, assure the membership
that the decision of the individual member will be sup-
ported by this Local Union.
The Company has stated that it is the Edison ('om-
pany's position that if any employee refuses to cross a
picket line, he will be considered a striker by the Com-
pany and off the payroll for as long as he or she refuses
to cross the picket line.
We are constantly in touch with our law firm to pur-
sue legal action in any case wherein the Edison Com-
pany violates any individual's rights under the law.
According to Respondent, it did not require employees
represented by the Union to perform work during the
UWUA strike that would otherwise have been performed
by UWUA-represented employees. According to the Gen-
eral Counsel and the Union. Respondent did require em-
ployees represented by the Union to perform work during
the UWUA strike that would otherwise have been per-
fbrmed by UWUA-represented employees. There is no evi-
dence in the record to resolve these contentions. One em-
ployee filed a grievance on June 2 alleging that he was
forced to cross the picket line under threat of disciplinary
action relying on article 1, section B. It was denied at step 2
for the following reasons:
ARII('I.E II OF Ill A(iREEMENI' BEIWEEN IH PARTIES
PROHIBIIS SIRIKE AC(tION WHII(H IN(I.UDES TIHE oB-
SERVAN('E CF PIC(KEI I.INES. (ONSEQUENTLY, I)IS(CIPI.IN-
ARY ACIION (OUtiD BE APPR()PRIAIE FOR AII.URE 10
(ROSS A PI('KEI I.INE.
TO I)DAIE IHE COMPANY HAS NOl IAKEN DIS(IPLINARY
ACrlON AAINSI ANY IBEW REPRiSENlIED EMPIOYEE
WHo() AS RSPE('CI) UWVUA PICKEl LINES B HAS
IRAI EI) IEM AS A SIRIKER.
D. The Blum Suspension
Gary R. Blum has been employed by Respondent since
1969. He is currently employed as a polyphase testman,
shop and test division, in the unit represented by the Union.
He is assigned to the Ontario service center in Ontario,
California. His duties include testing and servicing of Re-
spondent's wiring and meter installation in the field and on
customer premises.
On Thursday. May 4, Blum's duties included servicing a
malfunctioning polyphase meter and changing a magnetic
tape recorder cartridge at the premises of Freightliner Cor-
poration in Chino. California. This tape cartridge, which
was last changed on April 4, will operate for 33 days before
it runs out of tape. Neither the tape nor the data it records
assist Freightliner in the performance of its operations.
Tape recorder cartridges are used to record metering data
used by Respondent to measure (a) power load in connec-
tion with of time-of-day usage study ordered by PUC' and
378
SOLUHIIERN CAL.IFORNIA EDISON CO.
(b) other experimental research data, including solar heat
dissipation at solar radiation installations and wind velocity
at automated weather stations. The tape-recorded data are
solely for the experimental use of, and benefit to, Respon-
dent.
At the beginning of his shift on May 4. Blum telephoned
his supervisor. A. A. Evenson., and stated that a strike was
in progress at Freightliner, and he did not wish to cross the
picket line. Blum further stated that employee Cliff Tanner
was willing to cross the picket line to change the tape car-
tridge. Evenson arranged to meet Blum later that morning
at another of Blum's assigned work locations.
When they met, Blum again stated that he did not want
to cross the Freightliner picket line. Evenson instructed
Blum to complete his assignment at the location where they
met and then meet him at Respondent's Ontario service
center. Evenson then went to the Freightliner premises and
observed that there was picketing by District Lodge NO.
120 of the International Association of Machinists and
Aerospace Workers, herein called IAM District Lodge No.
120. He also arranged with Freightliner personnel that if
Blum blew the horn of his vehicle at one of the gates where
there was picketing, he would be allowed access to the
premises.
Later that morning Evenson informed Blum of the ar-
rangements he had made and also stated that other employ-
ees of Respondent had crossed the picket line without inci-
dent' and offered to accompany Blum to the Freightliner
premises. Blum stated that he had never before crossed a
union picket line and did not want to do so then. Evenson
said he had no work for Blum, and Blum could go home.
Blum requested and received permission to telephone the
union representative. While the union representative was
still on the telephone with Blum, Blum told Evenson that
the union representative was trying to reach Respondent's
headquarters and asked if Evenson would delay his decision
until the matter had been discussed with headquarters.
Evenson replied that he needed Blum's decision immedi-
ately so as to arrange for a replacement, if necessary. Blum
said he did not want to cross the Freightliner picket line.
Evenson said there was no work or Blum, and he could
leave work for the day. Blum left the service center at ap-
proximately II a.m. and was shown as "absent without
pay" from I to 4:30 p.m. on May 4 and all day on May 5.
At approximately 11:45 a.m. Evenson instructed Tanner,
the only other district polyphase testman in the Ontario
district,5 to change the tape cartridge on Freightliner prem-
ises, explaining that Blum refused to cross the picket line.
Evenson accompanied Tanner to the Freightliner premises,
and both crossed the picket line without incident.,
'Evenson is an admitted supervisor.
Tanner is a polyphase testman.
'The Freightliner strike began on March 16 and terminated on July 10.
Van Leffer, a single-phase testman, who usually changed the cartridge,
was out ill. Normally only single-phase and polyphase testmen perform this
function. Occasionally, if on the premises performing calibrations, analyses.
repairs, etc., at a location due for a tape change, a laboratory technician may
be assigned to change the tape.
If a tape cartridge is permitted to run out. the subsequent loss of meter-
ing data disrupts data acquisition and accounting procedures and results in a
potential loss of revenue to Respondent. Data necessary for important load
survey experiments is also lost.
On May 5 Blum sent the following telegram to Vince
(Craham, field test supervisor:
I AS AX All AB I YS I IRI)AY, ANI) I (()NIINt lil 0) I-
AVAI Alii I it) PI RF(RM Al I )tl IlS W'li( 11 )() NO R-
Ql'IRI ( RO()SSN( A PIt(KII lINI. I U' I PliRI()RM ) IIIFS
Al I ()( All(N 'Wtll RI PI( KI I .lNt EXISIS it )() N()l
IIAVI ( ('ROSS lIlAI I INI. PI.ASt A)VISE M rIItIN I
SlIIOUI.) RLP()RI F()R V()RK.
O)n Monday, May 8, Blum reported to work. At II a.nm.
Blum and Union Steward P. [). McKay met with Evenson.
Graham, and Test Superintendent A. J. Crowly to discuss
Blum's May 4 refusal to cross the Freightliner picket line.
Evenson related what had occurred on May 4 and stated
that he received the telegram in which Blum stated the con-
ditions under which he would work. Evenson further stated
that under the collective-bargaining agreement, Blum is ex-
pected to perform all work assigned to him. Evenson also
specifically mentioned the no-strike clause of the contract.
Blum was then informed that he was being suspended for 5
working days, from May 8 through May 12. and that he
should report to his supervisor's office at the Rialto service
center on Monday, May 15. at which time he would receive
a letter confirming the discussion during the meeting.
Respondent's records show Blum as suspended for just
cause from May 8 through May 12. Respondent's corporate
policy statement regarding disciplinary action provides that
"[suspension may be utilized when an employee is unwill-
ing to perform his/her regular duties ....
When Blum reported to work on May 15, Evenson gave
him a letter addressed to Blum and signed by Evenson, the
body of which reads:
This letter will confirm the meeting held with you on
May 8. 1978, in the presence of Mr. A J. Crowley, Test
Superintendent. Mr. V. S. (iraham, Field Test Supervi-
sor. Mr. P. D. McKay, Union Steward, and myself to
discuss your suspension from work without pay for the
week of May 8, 1978. for your refusal to carry out a
routine testman's assignment on May 4, 1978.
The assignment consisted of correcting a malfunc-
tioning polyphase meter identified on CSDI08 No.
55605, which you had in your possession since ap-
proximately April 14, 1978, and to exchange a mag-
netic tape recorder cartridge that was due for replace-
ment on May 4, 1978. Both jobs were at the customer's
premises. Freightliner Corporation, 13799 Monte Vista
Avenue, Chino, California.
You stated that the reason you refused to carry out
these normal duties at the customer's premises was
that the customer's union employees were on strike
and you would not cross a picket line.
I informed you that I contacted the Freightliner
Corp. and that they informed me that there was no
If a field tester refuses to perform a work assignment and if the work is not
reassigned, important tape-changing and meter-testing schedules may not be
met. with a resultant potential reduction or delay of revenue. To meet work
schedules, coworkers may he required to work overtime.
Over 1.000 employees represented by the Union in the various depart-
ments might reasonably be expected to perform duties on both a regular
basis and an emergency basis at locations where LJWUA employees could be
picketing.
379
DF(ISIONS OF NATlIONAI. LABOR RELATIONS BOARD
problem in gaining access to the property. I advised
you that Edison Customer Servicemen as well as Shop
and Test Testman have entered the customer's prem-
ises to carry out previous similar duties relating to me-
tering on several occasions without incident while the
strike was in progress since March 16. 1978. 1 offered
to accompany you to the site to enable you to carry out
your assignment, but you remained adamant and re-
fused to do this work. As a result of your refusal. it was
necessary to locate and reschedule another field test-
man to do your work. Your replacement and I entered
the Freightliner Corp. premises the same day without
incident and the testman accomplished both jobs
within a short time.
I have received the telegram you seni to Vince (;ra-
ham, purporting to establish the conditions under
which you will work. In response I must advise you
that you will be expected to perform all work as as-
signed in accordance with the provisions of the appli-
cable collective-bargaining agreement. In this connec-
tion, we call your attention to Article 2- the No Strike
provison-of the Agreement.
On May 12 Blum filed a grievance alleging: "The em-
ployer violated Article I, paragraph B of the agreement by
interfering with my rights to honor a lawful picket line."
The remedy sought was for Respondent to "pay all lost
wages and remove letter of May 15, 1978 from my file." At
the first step the supervisor's answer was "Mr. Blum vio-
lated Article II of the agreement by refusing to perform his
assigned function." The grievance has been appealed to
step 2.
Respondent granted Blum's request to take vacation
leave on June I and 2 to avoid crossing a UWUA picket
line at the Etiwanda generating station. On August 22 Blum
crossed, without comment or incident, a picket line at a
Von's Market facility in Cucamonga, California, to do fol-
lowup testing of a new meter installation test performed on
August 15.
E. Conclusions
The complaint alleges that Respondent violated Section
8(a)(1) and (3) by the suspension of Blum and violated Sec-
tion 8(a)(1) by threatening employees with disciplinary ac-
tion or other reprisals if they individually refused to cross a
picket line established by a labor organization other than
the Union. Specifically as to this latter, Simpson's April 28
letter, the May 8 Blum interview, Evenson's May 15 letter
to Blum, and the reading of the information on the supervi-
sor's card to various employees are alleged as violative of
Section 8(a)(l) of the Act.
The threshold issue here is whether the no-strike clause of
the collective-bargaining agreement prohibits employees
from honoring stranger picket lines. General Counsel con-
tends that it does not, since the clause is expressly tied to
the grievance and arbitration clauses of the contract, and
the arbitration clause is limited to disputes arising under the
contract.
Basically, Respondent contends that collective-bargain-
ing history-specifically, the Union's proposals at various
times to include a contract provision setting forth the right
of employees to cross stranger picket lines establishes that
the parties intended that the no-strike clause would prohibit
such activity. Respondent also contends that this matter
should be deferred to arbitration, since the essential issue is
one of contract interpretation.
The Charging Party argues that the portion of the recog-
nition provision which reaffirms the Section 7 rights of em-
ployees encompasses an agreement by Respondent to rec-
ognize all Section 7 rights of employees, including the right
to honor the picket lines of' other unions. The Charging
Party further argues that this section is unambiguous. and
hence evidence as to bargaining and/or grievance history is
inadmissible.
I find no merit in these arguments of' the Charging Party.
Paragraph B of article I. the recognition clause, is a general
reaffirmation of Respondent's legal obligations under the
Act. Under the Act employees have no right to engage in
strikes--primary or sympathy - if that right has been
waived through a prohibition in the collective-bargaining
agreement. Hence, the basic question is whether the no-
strike clause encompasses sympathy strikes. As to the ad-
missibility argument, I do not consider the reason asserted
by the Charging Party sufficient grounds to exclude such
evidence. For reasons discussed below, I adhere to my
original ruling admitting such evidence.
Similarly, I find no merit in Respondent's argument that
this matter be deferred to the grievance-arbitration proce-
dure.' It is well settled that the Board can, and does inter-
pret contractual provisions where necessary to the resolu-
tion of a question as to whether the Act has been violated.
Further, the Board's position is that violations of Section
8(a)(3) go to the heart of the Act, and such cases will not be
deferred to arbitration. General American Transportation
Corporaiion, 228 NL.RB 808 (1977).
Although the statutory right to engage in a sympathy
strike may be waived, it is well settled that waiver of a
statutory right will not be inferred in the absence of a "clear
and unmistakable" showing that waiver occurred. Tide Wa-
ter Associated Oil Company, 85 NLRB 1096, 1098 (1949);
The Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746
(6th Cir. 1963): see also Mastro Plastics Corp. v. N.L.R.B.,
350 U.S. 270, 283 284 (1956). Waiver may be found in ex-
press contractual language or in unequivocal extrinsic evi-
dence bearing upon ambiguous contractual language. Inter-
national Union cf Operating Engineers, Local Union 18,
AFL CIO (Dais-McKee, Inc.), 238 NLRB No. 58 (1978).
Similarly, a no-strike clause agreeing to refrain from all
work stoppages will not be interpreted as prohibiting sym-
pathy strikes or the honoring of stranger picket lines.
Rather, the Board requires that the parties at the very least
have discussed the question and preferably have expressly
embodied in their agreement their intent to extend a strike
ban to sympathy strikes. Where the language of the con-
tract warrants resort to consideration of collateral evidence
of contractual intent, such evidence must clearly and un-
equivocally establish that the union understood and in-
tended said language to waive or limit the statutory right,
7 Presently. there is a 3-4 year period from the initial filing of a grievance
involving a contractual issue, but not involving a termination, until said
grievance is taken to an arbitration hearing. if at all.
380
SOlt1HtERN ('AI.IFORNIA EDISON C(O.
despite the failure to state such in clear and express lan-
guage in the contract. Davis-McKe., Inc.. supra, Keller-
Crescent Compat,. 217 NLRB 685. 687 692 (1 975).
Here. resort to collateral evidence appears unnecessary,
for the contractual prohibition of work stoppages is ex-
pressly linked to the grievance-arbitration procedures of the
contract. Thus the contract provides. "'t is agreed that
there shall be no strike . . . until all methods provided for
the settlement of disputes in this agreement have been fully
utilized, and further, that the parties shall have exhausted
the remedies proided under the Labor-Management Rela-
tions Act."
Although the grievance procedure is broad enough to en-
compass almost any dispute likely to arise, the arbitration
clause is much more restrictive. That clause provides, "lt is
agreed that only grievances involving the interpretation or
application of this agreement may be submitted to arbitra-
tion." Thus the scope of the no-strike clause would appear
to be expressly coextensive with the scope of the arbitration
clause and thus to prohibit only those work stoppages
which arise out of disputes encompassing matters involving
the interpretation or application of the collective-bargain-
ing agreement. Clearly the UWUA and the Freightliner
disputes do not meet this requirement. Gar-Hohart Water
Corporation, 210 NLRB 742 (1974).
However. it is at least arguable that, under the preamble;
article I, paragraph B: and the Management Prerogatives
clause., a dispute with regard to disciplining an employee
for refusing to cross a stranger picket line is arbitrable. Fur-
thermore, it is unclear to what extent the situation herein is
affected by that portion of the no-strike clause which re-
quires exhausting remedies provided under the Act. Thus, it
is arguable that ambiguities exist which warrant resort to
collateral evidence. In any event, an examination of collec-
tive-bargaining history reinfborces the conclusion that the
contract language does not constitute a waiver of such
right.
I have carefully considered the record and the arguments
of the parties as to collective-bargaining history. The mere
fact that the Union has unsuccessfully proposed contract
language which recognizes the statutory right to honor
picket lines of other unions is not evidence of a waiver of
such right, Keller-Crescent Company, supra. Here, even
though the Union during several different contract negotia-
tions proposed such a contract provision, this was never
linked with the no-strike clause. Thus, in 1947 the proposal
was submitted to replace the no-strike clause. In 1948 the
Union also proposed eliminating the no-strike clause.
Thereafter, when such a proposal was submitted in 1970
and 1972, it was proposed as part of the recognition clause.
At no time during any of these negotiations did anyone
mention the no-strike provision in connection with the dis-
cussion of these proposals. Respondent never suggested that
a refusal to cross a picket line was prohibited by the no-
strike clause. In fact, what is apparent from the discussions
during negotiations, and from the stipulation of facts
herein, is that for more than 30 years Respondent has main-
' The clause states, in part: [Alny claim that the Company has exercised
such right to direct the working force, including the right to suspend and
discharge, inter alial and power contrary to the provisions of his agreement
may be taken up as a grievance ....
tained a general policy of not requiring employees to cross a
picket line whenever it was possible. or at least not undesir-
able, to defer service and never requiring an employee to
cross a picket line where there was a danger of physical
violence.
Thus the discussions during negotiations and the han-
dling of grievances were always in terms of whether, under
specific circumstances, it was impossible to defer service or
no other accommodation could be reached. The Union's
contention was that it wanted something in writing to spell
out Respondent's pactice so there would be no misunder-
standing in the field. Respondent contended that since such
was its practice, there was no need to expressly include it in
the contract.
In these circumstances I cannot conclude that the Union
even evidenced an intent to waive the right of employees to
honor another union's picket line. As the Board has stated,
"Unless it specifically waives it. the [union] has the right to
honor picket lines. It is the Respondent which must obtain
contractual language to limit such right in clear and unmis-
takable terms." Garv-Hobart Water C'orporation. supra at
746. n. 20: Keller-Crescent Companv. supra at 689.
Therefore, for the reasons set forth above. I conclude that
the collective-bargaining agreement did not prohibit unit
employees from honoring picket lines of other unions. Ac-
cordingly. I find that Blum was engaged in concerted pro-
tected activity when he refused to cross the Freightliner
picket line.
Respondent argues, however, that even if no waiver is
found, Respondent's conduct in threatening discipline and
in suspending Blum for refusing to cross a picket line to
perform assigned duties was justified to assure the efficient
and continuous operation of its business.
The Board has held that although the refusal to cross the
picket line of another union is protected. this right must be
balanced against the business interests of the employer, and
it is only when the employer's business interest to replace
employees clearly outweighs the employee's protected right
that an invasion of the statutory right isjustified. The termi-
nation or suspension of employees is justified where the
employer "acted only to preserve efficient operation of his
business, and terminated or suspended employees only so it
could ininmmediatelv or within a short period thereafter reprlace
them .... Garv-Hobart Water Corporation supra at 746:
Redwing Carriers, Inc., and Rockana Carriers, Inc., 137
NLRB 1545, 1547 (1962).
The burden is upon Respondent to demonstrate a legiti-
mate and overriding business reason. This is not a right of
the employer to discharge, suspend, or discipline, but only a
right to run his business. Swain and Morris Construction
Co., 168 NLRB 1064 (1967). enfd. 431 F.2d 861 (9th Cir.
1970). Here. Respondent has not met this burden.
Although it is apparent from the record that, in the nor-
mal course of its business, occasions do arise where Respon-
dent would be justified in suspending or discharging an em-
ployee for refusal to cross a picket line, it is equally
apparent that on many, perhaps most, occasions such ac-
tion is not necessary to the efficient operation of its busi-
ness. In these circumstances, I find that the general threats
of disciplinary action in Simpson's April 28 letter and the
statements read to employees by supervisors were threats to
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline employees fr engaging in the protected activity
of refusing to cross a picket line.
In making these threats Respondent at no time attempted
to qualify its asserted right to discipline in terms of preserv-
ing the efficient operation of its business. Rather, it relied
solely, but erroneously, on its asserted contract right. Ac-
cordingly, I find that Respondent thereby violated Section
8(a)(l) of the Act.
As to the Blum suspension and the refusal to schedule
him for work, Respondent has probably met its burden as
to sending Blum home on May 4. However, there is no
evidence in the record, aside from the general obligation of
a public utility to service its customers, that at any time
thereafter the efficient operation of Respondent's business
required the suspension and immediate replacement of
Blum. Accordingly, I find that the failure to schedule Blum
for work on May 5 and his suspension from May 8 through
May 12 was violative of Section 8(a)(1) and (3) of the Act.
Keller-Crescent Company, supra.
CON(C.LUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6). and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees with disciplinary action or
other reprisals if they individually refused to cross the
picket line of a union other than their collective-bargaining
representative, Respondent has engaged in unfair labor
practices in violation of Section 8(a)( 1) of the Act.
4. By refusing to schedule Gary R. Blum for work on
May 5, 1978, and suspending him from May 8, 1978,
through May 12, 1978, because he refused to cross a picket
line established by IAM District Lodge No. 120 to perform
assigned work at the premises of one of Respondent's cus-
tomers, Respondent has engaged in unfair labor practices in
violation of Section 8(a)(l) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent refused to schedule Blum
for work and suspended him in violation of Section 8(a)(l)
and (3) of the Act, it is recommended that Respondent ex-
punge from its records any reference to such suspension or
the refusal to schedule him for work because he refused to
cross a picket line established at the premises of Freight-
liner Corporation by IAM District Lodge No. 120 and
make him whole for any loss of pay or other employment
benefits he may have suffered as a result of said suspen-
sions. Backpay shall be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest added thereon.
The General Counsel seeks a remedial interest rate of 9
percent per annum on the moneys for which Respondent is
liable fr the violations involved herein, arguing that recent
finanical events warrant a reconsideration of Florida Steel
Corporation, 231 NLRB 651 (1977). In that case the Board
overruled its longstanding policy of a 6 percent remedial
interest rate9 and linked its remedial interest rate to the rate
charged or paid by the Internal Revenue Service on the
underpayment or overpayment of Federal taxes. The trust
of the General Counsel's argument is that in accordance
with this formula, the Board's current interest rate is 6 per-
cent, a figure lower than the prime interest rate and sub-
stantially lower than that which must be paid by the typical
employee who suffers monetary loss as a result oft' unfair
labor practices. Thus, it is argued that current Board Orders
do not operate to make employees whole and that a reme-
dial interest rate of 9 percent will more realistically com-
pensate the victims of unfair labor practices, will assist in
the attainment of settlement agreements, and will help to
prevent unfair labor practices.
I find this argument persuasive, and, accordingly, I rec-
ommend that the backpay and other monetary remedies
provided for herein shall include interest at the rate of 9
percent per annum.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record"' in this proceeding,
and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended. I hereby recommend the following:
ORDER"
Respondent, Southern California Edison Company, On-
tario, California, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Suspending or otherwise discriminating against em-
ployees because they engage in their statutory right to re-
fuse to cross picket lines established by labor organizations
other than their collective-bargaining representative.
(b) Threatening employees with disciplinary action or
other reprisals if they engage in their statutory right to re-
fuse to cross picket lines established by labor organizations
other than their collective-bargaining representative.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them in the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Expunge from its records any reference to the refusal
to schedule Gary R. Blum for work on May 5, 1978, and
any reference to his suspension for his refusal to cross the
picket line at Freightliner Corporation.
9 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
' After the close of the hearing herein, the parties made a joint motion to
reopen the record for the limited purpose of receiving an additional stipula-
tion of fact. That motion is hereby granted, and the additional stipulation of
fact is received into evidence as Jt. Exh. 2.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
382
SOUTHERN CALIFORNIA EDISON CO.
(b) Make Gary R. Blum whole for any loss of pay he
may have suffered by reason of its discrimination against
him, in the manner set forth in the section herein entitled
"The Remedy."
(c) Post at its various facilities to which employees in the
bargaining unit represented by the Union are assigned cop-
ies of the attached notice marked "Appendix."' Copies of
"1 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Orier of the Na-
tional Labor Relations Board."
said notice, on forms provided by the Regional Director for
Region 21, after being duly signed by its authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reson-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 21. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
383