United Electric Cooperative

National Labor Relations Board - Board Decisions

Feb 1, 1984

268 N.L.R.B. 732 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Electric Cooperative, Inc. and International
Brotherhood of Electrical Workers, Local 1124,
AFL-CIO. Case 6-CA-13919
1 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 5 November 1981 Administrative Law Judge
Robert M. Schwarzbart issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, and
conclusions2 and to adopt the recommended
Order.
Subsequent to the issuance of the judge's deci-
sion, the Supreme Court issued its decision in Met-
ropolitan Edison Co. v. NLRB, 103 S.Ct. 1467
(1983), in which it held that an employer's imposi-
tion of more severe sanctions on union officials
than on other employees for only participating in
an unlawful work stoppage violates Section 8(a)(3)
of the Act, unless the union has clearly and unmis-
takably waived this protection. Since the record in
this case indicates that the Union has not waived
this protection, we agree with the judge that the
Respondent violated Section 8(a)(3) of the Act by
suspending union steward Lockett for a week
longer than other employees who participated in
the strike.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United Elec-
tric Cooperative, Inc., DuBois, Pennsylvania, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
I In view of our finding below, it is unnecessary for us to consider
whether the judge erred in refusing to admit certain rebuttal testimony
offered by the Respondent concerning the parties' 1978 contract negotia-
tions.
I We agree with the judge's conclusion that the picket line set up by
the Operating Engineers was unlawful and, thus, the conduct of the Re-
spondent's employees in refusing to cross it was not protected. Chevron
U.SA., 244 NLRB 1081, 1086-87 (1979). Accordingly, the Respondent
did not violate Sec. 8(aXI) of the Act by disciplining the employees for
this conduct. In view of this finding, it is unnecessary for us to pass on
whether the Charging Party Union waived the employees' Sec. 7 right to
engage in a sympathy strike.
268 NLRB No. 105
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: This case was heard on July 6 and 7, 1981, in
DuBois, Pennsylvania, pursuant to a charge filed on Oc-
tober 8, 1980,1 by International Brotherhood of Electri-
cal Workers, Local 1124, AFL-CIO, herein called the
Union, and complaint issued November 28. The com-
plaint alleges that United Electric Cooperative, Inc.,
herein called the Respondent, violated Section 8(aX1) of
the Act by issuing disciplinary letters to and suspending
13 employees, represented by the Union, for 4 working
days because of their refusal to cross a picket line estab-
lished by another union at the Respondent's DuBois fa-
cility. The complaint further alleges that the Respondent
violated Section 8(a)(3) and (1) of the Act by issuing a
disciplinary letter to and suspending Clayton A. Lockett
for 9 working days because, in his status as union stew-
ard, he had refused to cross the above-described picket
line. The Respondent, in its answer, denies the commis-
sion of unfair labor practices.
At the hearing, the Respondent was represented by
counsel and all parties were given full opportunity to
participate, to introduce relevant evidence, to examine
and cross-examine witnesses, and to file briefs. Briefs,
filed by the General Counsel and the Respondent, have
been carefully considered.
Upon the entire record of the case and my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation with an office and
place of business located in DuBois, Pennsylvania, at all
times material herein, has been engaged in the transmis-
sion, distribution, and sale of electricity. During the 12-
month period ending September 30, 1980, a representa-
tive period, the Respondent, in the course and conduct
of its operations, derived gross revenues in excess of
$500,000. During this period of time, the Respondent, in
the course and conduct of its operations, purchased and
received products, goods, and materials valued in excess
of S50,000 directly from points outside the Common-
wealth of Pennsylvania for use within the Common-
wealth of Pennsylvania.
From the foregoing conceded facts, I find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The answer admits and I find that International Broth-
erhood of Electrical Workers, Local 1124, AFL-CIO, is
a labor organization within the meaning of Section 2(5)
of the Act.
t All dates hereinafter are within 1980 unless otherwise specified.
732
UNITED ELECTRIC COOPERATIVE
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, an electric cooperative, is the sole
supplier of electric power to over 14,000 members in a
7,000-square-mile area of western Pennsylvania. The Re-
spondent also supplies electrical energy to the United
States Government at the DuBois, Pennsylvania airport,
including the facility operated there by the Federal
Aviation Administration. As a cooperative, regulated by
the Rural Electrification Administration and the U.S.
Department of Agriculture, it is a membership organiza-
tion owned by those whom it serves, its members also
being its customers. While the Respondent's facility at
DuBois is the only one involved in this proceeding, the
Respondent also has locations in Clearfield and Brook-
ville, Pennsylvania. The Respondent's general manager,
Donald A. Widder, its director of engineering and oper-
ations, James Corbett, and Supervisor Alex Porter are
based at the DuBois facility.
Local 521, International Brotherhood of Electrical
Workers, AFL-CIO, sister local to the Union herein,
Local 1124, was the collective-bargaining representative
of the Respondent's production and maintenance em-
ployees at DuBois, Clearfield, and Brookville until re-
placed by the Union as bargaining agent approximately 5
or 6 years ago. The Union and the Respondent, during
the events considered herein, were parties to a collec-
tive-bargaining agreement, effective October 1, 1978,
until September 30, 1980. Article II, section 5 of this
contract provides as follows:
The Union and its members agree that during the
continuance of this Agreement, there should be no
strikes or other concerted cessations of, or disrup-
tion of, work by the Union or its members. The Co-
operative on its part agrees that during the continu-
ance of this Agreement, there shall be no lock outs
of the Union or any of its members. It is the mutual
desire of both parties to provide uninterrupted serv-
ice to the Cooperative membership.
Also referred to in the record is article II, section 4(d),
which provides, in relevant part, that:
In the interest of safety, continuity of service and
efficient and orderly operation, the Union agrees
that its members will abide by the Cooperatives'
rules and regulations. Accordingly, it is understood
by both the Union and the Cooperative that all
rules and regulations, now in effect or as adopted or
changed in the future, shall be strictly enforced and
observed at all times.
Among the Respondent's rules and regulations re-
ferred to in the above contract provision is a requirement
that employees normally work from 7:30 a.m. to 4 p.m.,
and article VIII, section l(a) of the contract which, in
relevant part, provides:
Regular employees of the Cooperative covered
by this Agreement who are NON-SHIFT will work
regular schedules five (5) consecutive 8 hour days
per week, Monday through Friday. 2
All the above-quoted provisions of the most recent
collective-bargaining agreement originally had been in-
corporated in the first contract between the Respondent
and Local 521, effective 1972 to 1973.
B. The Facts
1. The events of June 13
On June 13, Lester E. Smiley Jr., business representa-
tive of International Union of Operating Engineers,
Local 66, AFL-CI0,3 established a picket line at the Re-
spondent's DuBois facility, directed at Harold N. Leach,
a nonunion contractor doing excavation work for a
building the Respondent was erecting on that property.
Rockaway, Incorporated, the Respondent's general con-
tractor for the erection of this bulding, had retained
Leach as the excavation subcontractor on the project.
The two pickets placed by Smiley on June 13 were situ-
ated in front of the entrance marked "Unilec- 4 Employ-
ees' Entrance Only." A sign at a second gate specified
"For Contractors' Employees Only." The establishment
of separate gates for employees of the Respondent and
those of contractors had been announced in a memoran-
dum, dated May 27, from the Respondent's general man-
ager, Donald A. Widder, to all employees. This memo-
randum, in relevant part, declared that:
We are due to embark on a needed building addi-
tion at United Electric Cooperative.
Due to the confusion and certain legal ramifica-
tions, we must designate certain gate areas for the
employees, as well as the general contractor, to use
during the period of construction.
To minimize the confusion and legal aspect, I
have designated the chained gate between the serv-
ice building and the office on the north side as a
contractor's gate (to be so marked) and no employ-
ees shall be permitted to use this gate from June 1
on.
The chain gate between the service building and
the office on the south side entrance to the property
will be designated United Electric employees' gate
(also to be so marked) and will be utilized for in-
gress and egress for the service building as has been
our past practice.
To insure that said gates are used accordingly, I
will have to administer disciplinary action to those
found in violation of this requirement.
Smiley testified that earlier, in May, he had contacted
a representative of the Respondent whom he remem-
I Although this contract provision also specifies work hours between 7
a.m. and 5 p.m. with a lunch period not to exceed 1 hour, it is clear from
the testimony that normal working hours for unit employees were from
7:30 a.m. to 4 p.m.
I Local 66 does not have a collective-bargaining relationship with the
Respondent.
4 "Unilec" is a frequently used reference to United Electric Coopera-
tive.
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bered only as McDonald. 5 During this conversation,
Smiley informed the Respondent's official that there
were numerous nonunion contractors bidding on an invi-
tational basis to work on the Respondent's building
project and aksed if the Respondent was aware that they
all were nonunion. When told that the Respondent knew
of this, Smiley stated that his Union would appreciate
the Respondent's using union contractors who paid
decent wages and afforded decent conditions to their
workers. The Respondent's official reiterated that he was
aware of the nonunion status of certain contractors but
that this meant nothing to him.
Smiley related that he had decided to picket on Thurs-
day, June 12, the day before the line was established, and
had visited the Respondent's DuBois facility on that day
in advance of the picketing.
When the two Local 66 pickets posted by Smiley ap-
peared in front of the gate reserved for the Respondent's
employees on June 13 at 7 a.m., the respective employees
of the Respondent and Leach had not yet arrived for
work. Each picket wore a sign which read as follows:
HAROLD N. LEACH
(Working on this UNITED
ELEC. COOPERATIVE job)
IS UNDERMINING
AREA WAGE RATES
INTERNATIONAL UNION OF
OPERATING ENGINEERS
LOCAL NO. 66
66A, B, C, D and R6
For June 13, Leach had assigned two men to work on
the Respondent's project at a location close to the gate
designated for use by the Respondent's employees. While
Leach's men normally worked from 8 a.m. to 4:30 p.m.,
on June 13, they left the job around I p.m., after having
worked 4-1/2 hours each. Their task that day was to run
jack hammers to break up concrete that had been laid on
the site. After leaving the job that day, Leach's employ-
ees did not return there again for another 9 or 10 days.
The Respondent's employees, represented by the
Union, began to arrive for work around 7:15 a.m. How-
ever, none crossed the Operating Engineers' picket line
to work, but, instead, gathered together outside the gate.
While normally 22 employees report for work at the Re-
spondent's DuBois facility, only 12 had been assigned to
work there on June 13, the number that refused to cross
the picket line.
Smiley 7 testified that, shortly after the picket line was
set up, he was confronted by the Respondent's general
s While the Respondent denies having had anyone named McDonald
in its employ, it was stipulated that Joseph McLaughlin is the Respond-
ent's manager of member services and a supervisor within the meaning of
the Act. Although the name, McLaughlin, is not familiar to Smiley, I
find that such a call was made in accordance with the positions of Smiley
and the Respondent and that such a communication did occur.
e The designations "A, B, C, D and R" stand for branches representing
various specialized phases of work performed by members of Local 66.
For example, "C" branch is for shops, the "D" branch is for surveyors,
and the "R" branch is for apprentices. Smiley has responsibility for all
branches of his Local.
7 Smiley remained at the Respondent's premises for about 2 hours after
the start of the picketing, and was there intermittently thereafter.
manager, Widder, and Alex Porter, a supervisor. Widder
told Smiley that he was on the Respondent's private
property and that he wanted Smiley out of there. When
Smiley refused to leave as he was exercising his rights on
a township road, Widder threatened that he would call
the police if the pickets were not removed. While the
picketing continued that day, Smiley received at least
one more such visit from Porter and additional visits by
Widder. During these incidents, essentially the same
things were said as during their first conversations.
Widder, in turn, related that he had approached
Smiley at around 7 a.m. and identified himself to Smiley,
who told him that he had brought the picketing on him-
self as the "Dodd Report" indicated that the Respondent
was the only concern accepting nonunion bidders.
Widder replied that the job had been contracted through
open bidding and that the Respondent had been required
to accept the lowest bid under the requirements of the
Rural Electrification Administration (REA), which had
to approve the bidder and the loan for the building.
Widder then informed Smiley that he was on the Re-
spondent's property, that there was a separate gate for
contractors other than the one his Union was picketing
and asked that Smiley move to the contractors' gate.
Smiley refused.s
Widder testified that after a number of the Respond-
ent's employees had gathered outside the employees'
gate, rather than pass through the picket line, he went to
them and asked if they were coming to work. Lawrence
(Sam) Hulse, a crew chief,
9 replied that the men were
not going to come until "Clayton comes off."
10 He told
Widder that Lockett had called the men during the night
before in anticipation of the picketing, and told them to
wait. 1
Lockett testified that about 7:30 a.m., on June 13, he
received a telephone call from Widder at the Respond-
ent's Clearfield facility, where he was scheduled to work
that day. Widder asked if he knew that there was a
picket line at the DuBois facility and that his fellows
would not cross it. When Lockett denied knowing of
this, Widder asked if Lockett was going to represent the
men. Lockett agreed to come to DuBois immediately.
Lockett, accompanied by journeyman lineman LeRoy
Cramer, arrived at the DuBois facility in a Respondent-
owned truck, which he parked near where the Respond-
ent's 12 employees were congregated. Lockett related
that, after observing the pickets, he told the members of
8 It is undisputed that the Local 66 picketers were located in front of
the gate that had been marked for the use of the Respondent's employees,
rather than the gate designated by a sign for the use of contract employ-
ees. It is also clear that, during the day that the picketing lasted, the pick-
ets did not stay on the public road outside the facility, but also occasion-
ally ventured short distances onto the Respondent's property.
9 The parties stipulated that crew chiefs are not supervisors under the
Act, but are members of the bargaining unit.
'o This was a reference to Clayton A. Lockett Jr. who then had been
chief union steward for about 10 years under Local 521 and the Union.
In that capacity, Lockett had attended all contract negotiating sessions on
behalf of the respective locals. He has been employed by the Respondent
for about 35 years, currently as a chief lineman.
' Smiley denied having given advance notice to the Union of his
intent to picket, and Lockett and Hulse both deny that Lockett had in-
structed members of the unit on June 12 not to cross the Operating Engi-
neers' picket line should one be established.
734
UNITED ELECTRIC COOPERATIVE
his union that he was not certain as to whether they, the
Respondent's employees, were acting legally, and an-
nounced that he was going to talk to the Union's busi-
ness agent, James W. Brinker.' 2
Accompanied by employee Sam Hulse, Lockett
walked to one of the Respondent's buildings to telephone
Brinker. As they neared their destination, they were ap-
proached by Widder and James Corbett, the Respond-
ent's director of engineering and operations. Widder
asked if the men were going to cross the picket line and
go to work. Lockett, in turn, asked if the Company was
going to give the men police protection. Corbett in-
quired if Lockett wanted the Company to call the
cops.' 3 When Widder was asked what he thought about
the idea, he replied, "The hell with it!"
Hulse returned to the other men and Lockett went on
to call Brinker, whom he eventually reached around 9:15
a.m. in Johnstown, Pennsylvania. Brinker, on hearing the
situation, promised to come to DuBois as quickly as he
could and told Lockett to wait there for him.
Brinker testified that, accompanied by Union President
Chauncey Smith, who had been traveling with him, he
had arrived at the DuBois site shortly before noon,
parked near the employees' entryway, and approached
the pickets. Although their signs identified them, he
asked where they were from. The men replied that they
were informational pickets from Operating Engineers,
Local 66, that they were picketing because the Respond-
ent was employing a nonunion contractor, and that their
local felt that the Respondent was undermining wages
and taking away their right to work in the area. In re-
sponse to Brinker's inquiry as to how the Respondent
was taking the establishment of their line, they told him
that the Respondent had not seemed too upset and had
not asked them to leave, or they would not be there. The
pickets informed Brinker that all his people had been
honoring their picket line.
Brinker then went to speak to his own members where
they were gathered, approximately 150 feet away. When
he asked why they had not crossed the picket line, the
men replied that they were honoring it.
Brinker reminded the group that they knew of the
problem that the Union had with Widder when two bar-
gaining unit employees recently were suspended for leav-
ing the DuBois facility through the contractors' gate
rather than through the gate reserved for employees.
This infraction might have been de minimis to the Union
but the Employer had taken the matter seriously and
Widder's reaction had been heated.14 Brinker told his
2 Brinker, the Union's business manager for 3 years, presently negoti-
ates and administers all its collective-bargaining agreements.
Is At no time during the June 13 picketing did the Local 66 pickets
conduct themselves in a menacing or threatening fashion.
14 The parties stipulated that employees Harrie Hall and Jerry Shaffer
had received 1-day suspensions from the Respondent for having exited on
June 6 through the gate designated by a sign "For Contractor's Employ-
ees Only." This discipline was administered in accordance with Widder's
May 27 memo. The Respondent since has complied with an arbitrator's
award, dated February 9. 1981. finding that the suspensions were not
warranted and that Hall and Shaffer should be reimbursed for their lost
wages.
members that they all knew how difficult Widder was in
his relationship with the Union. If he knew Widder, the
latter probably would take the position that they were
acting illegally, file charges against the Union, and sus-
pend the employees. Should these incidents occur, the
Union would be getting into a big ball game, and prob-
ably become involved in litigation to prove their point.
Brinker, accordingly, told the men that he would appre-
ciate their going to work. They had honored the other
union's picket line long enough to prove that they had
the right and had exercised it. He again urged the men to
go to work, but they did not agree to do so.
At Brinker's invitation, Lockett and Union President
Smith accompanied him to talk to Widder, which they
did upon Widder's return to his office around 1:15
p.m.15 According to Brinker, he began by telling
Widder that Local 1124 did not endorse, condone, or en-
courage the activities of the individuals who were not
crossing the picket line. However, that was the Union's
position as an institution and the persons involved did
have their own individual right to do as they saw fit
with regard to crossing the picket line. Brinker denied
having stated that the employees' actions in honoring the
Operating Engineers' picket line was in violation of the
"no-strike" clause of the collective-bargaining agreement
and denied that such a charge was made by management.
According to Brinker, Widder then accepted his invi-
tation to accompany him to the picket line where,
Brinker asserted, he again would attempt to encourage
the employees to go to work.' 6 Accordingly, all who
were present left Widder's office and walked with
Brinker past the pickets to where the Respondent's em-
ployees had gathered. Without speaking further to the
pickets, Brinker asked his members to go to work. When
no one moved to comply, Brinker told the group that if
there were any stewards among them he would consider
removing them from office if they failed to go to work,
not to interfere with their rights, but because, as business
agent, he wanted to get this matter resolved before the
Union became involved in a big hassle. Brinker stated his
view that any steward should respect the business agent's
decision by returning to work.
Despite Brinker's directives, none of the men moved
from where they were. The same individuals who had
met earlier in Widder's office, including Lockett, re-
turned there. Back in Widder's office, Brinker announced
that, when he left, he would try one more time to get
the men to work. Widder replied that he did not give a
damn whether or not they went to work. They might as
well go home because he had no work for them to do.
Brinker testified that, after leaving Widder's office for
the second time on June 13, he did not again speak to
the pickets but did have a brief conversation with Local
' Although Brinker and Lockett recalled that Corbett was present
during the 1:15 meeting, Widder and Corbett deny that he was there, and
Widder asserts that he was the only company official to meet with the
union representatives at that time. Resolution of this point is not pivotal.
" Brinker and Lockett concurred that, during that meeting in Wid-
der's office, Brinker relieved Lockett of his duties as union steward.
Early in the next week, however, Lockett again became chief steward
and continued in that position until about a week before the hearing in
this matter.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
66 business agent Smiley, then visiting the line. Brinker
asked Smiley if any other people were honoring the
picket line. Just then, a large tractor pulled up to where
the pickets were but refused to go through. As the vehi-
cle backed away, Smiley told Brinker that he guessed
that that answered his question. 7 After some further dis-
cussion with his members, Brinker left the Respondent's
premises. 1
The Respondent's employees stayed together after
Brinker's departure. About an hour later, shortly after 3
p.m., Widder met again with Lockett and Hulse. Lockett
refused Widder's request at that time that he take an
outage call."9 After the refusal by Lockett and other em-
ployees to take the call, management officials Corbett
and Porter were dispatched to restore service.
About 3:40 p.m., there was another outage call. This
time, Hulse refused Widder's request that he take the call
offered to Hulse as crew chief from the Brookville area
where the problem arose.20 That call was later handled
by another crew chief from Brookville, not assigned to
the DuBois facility at the time of the dispute.
On Saturday, June 14, Widder sent the following mail-
gram to Lockett:
This is a confirmation copy of a previously
phone-delivered telegram.
Your Local #1154 [sic] employees are in clear
violation of our collective bargaining agreement.
Unless these people report to work on Monday
morning, June 16th and convene working and con-
tinue to work thereafter this United Electrical [sic]
Cooperative will have no choice but to make alter-
nate arrangements to perform necessary cooperative
work. This could result in permanent termination of
employment for many of your present employees.
The picket line remained only during June 13 and on
Monday, June 16, all of the Respondent's employees re-
ported for work at their regular starting time. While the
line was in place, however, in addition to the tractor that
refused to cross the line, as described by Brinker, Lock-
ett testified that two employees of Central Electric Co-
operative, Parker, Pennsylvania, had refused to drive
their truck through the line to pick up a regulator, and
left emptyhanded. Hulse also related that one Dale
Barnes had not brought a crane onto the Respondent's
" Smiley recalled that his conversation with Brinker near the picket
line had occurred that day between noon and 1:30 p.m. The two men
were acquainted. When Brinker asked what the problem was, Smiley re-
plied that he was picketing because a nonunion contractor was working
on the premises, paying its employees small wages. Although Brinker
agreed that this was Smiley's right, he told Smiley that he was going to
encourage his men to go to work.
I8 Brinker, too, denied having had direct knowledge before June 13
that picketing would take place at the Respondent's premises, but re-
called that, in late May, he had phoned Widder to advise of the possibili-
ty that the craft unions would picket if he selected a nonunion contrac-
tor. Should this occur, he told Widder, it also was possible that the Re-
spondent's employees would not cross such a picket line. His local did
not condone the honoring by its members of picket lines of other unions,
but, as individuals, they had their own rights over which he had no con-
trol. Brinker does not recall having described this conversation to Lock-
ett and did not mention it to other members of the Union.
19 Outage calls are emergencies requiring restoration of electric power.
'0 Hulse also had been acting as spokesman for the men in Lockett's
absence.
premises, as scheduled. Lockett and Hulse both denied
that the Central Electric Cooperative employees and
Barnes, respectively, had refused to cross the line on
their advice.
On June 16, the Respondent, over Widder's signature,
sent the following letter to each of the employees who
had refused to cross the picket line on June 13, except
Lockett:
The time has come to remind you of your re-
sponsibility to the Cooperative. I was thoroughly
disappointed with your actions of the past weekend.
Beginning Friday, June 13, 1980,21 you partici-
pated in an illegal strike against United Electric Co-
operative, Inc., in clear violation of your contrac-
tual obligations and in violation of the National
Labor Relations Act. You are hereby suspended
from all work beginning Monday, June 16, 1980, at
4:00 p.m., EDST, and continuing until Friday, mid-
night, June 20, 1980.
Any repetition of this kind of conduct during the
remainder of our agreement will result in termina-
tion of your employment.2 2
Also on June 16, Widder sent a separate letter to
Lockett, which opened with the same initial paragraph,
stating disappointment, as did the above-quoted letter
sent to the other employees. This letter continued:
Beginning Friday, June 13, 1980, you participated
in an illegal strike against United Electric Coopera-
tive, Inc., in clear violation of your contractual obli-
gations and in violation of the National Labor Rela-
tions Act. You are hereby suspended from all work
beginning Monday, June 16, 1980, at 4 p.m., EDST,
and continuing until Friday, midnight, June 20,
1980.
In addition, bcause of your failure to responsibly
perform your duties as Union Steward including
your failure to implement the direct instructions of
James Brinker, Business Manager of Local 1124,
you are additionally suspended for a period of one
(1) week beginning Monday, June 23, 1980, at 7:30
a.m. and continuing until Friday, midnight, June 27,
1980.
Any repetition of this kind of conduct during the
remainder of our agreement will result in termina-
tion of your employment.
On June 19, the Union filed grievances protesting the
suspension, including a separate grievance for the suspen-
sion of Lockett for a second week, the Respondent
denied these grievances through the third step on August
26, but they were withdrawn on December 16 by the
' The date appears as corrected by the stipulation of the parties.
2' Identical copies of the above letter were sent to employees Randall
S. Williams, Emerson F. Blake, E. LeRoy Cramer, Jack Galentine,
Gerald M. Hall, Harrie W. Hall, Lawrence (Sam) Hulse, Joseph Kelso,
Arthur L. Kephart, John W. Read, Lee G. Spangler, Melvin Terwilliger,
and Laverne E. Van Horn.
736
UNITED ELECTRIC COOPERATIVE
Union, which had elected to pursue its claims through
the instant proceeding.23
Upon completion of their discipline, all affected em-
ployees returned to work.24
The minutes of the June 5 union meeting of the Re-
spondent's employees, not being attended by Brinker,
showed that Sam Hulse, in advance of the June 13 inci-
dent, had asked, "If the building contractors put up
picket [sic] if we should cross it. Lockett said no." Lock-
ett testified that his complete response had not been re-
corded in the minutes as he also had told Hulse that they
individually would honor any picket line, anywhere.
Lockett's response, however made, was not followed by
further discussion. Lockett related that he had made this
statement as steward based on a conversation with
Brinker about 2 months before. During that talk, Lockett
had asked whether the men should cross any picket line
set up by others, and was told by Brinker that the local
would not get into a hassle anywhere about not crossing
a picket line, but that the men, as individuals, probably
should honor such a picket line. Lockett denied having
discussed the crossing of picket lines with the Respond-
ent's employees again between June 5 and 13, when the
Local 66 line was set up.
Widder and Corbett contradicted Brinker's testimony
that he had urged his men to work on June 13 only to
avoid further difficulty with the general manager and
that neither he nor management had discussed that day
whether the employees' refusal to cross the picket line
was in violation of the "no-strike" provision of the con-
tract. Rather, these witnesses asserted that Brinker had
admitted freely that the contract was being breached and
that he was ordering the men to work for that reason.
Widder testified that, after the employees had told him
at 7:30 a.m. that they were not going to go to work until
Lockett arrived, he had called Lockett at Clearfield,
about 22 miles from DuBois. Lockett promised that he
would come to DuBois right away, and, with LeRoy
Cramer, arrived between 8:15 and 8:30 a.m.
Widder saw Lockett emerge from the service truck
and talk to other union members congregated near the
driveway. Lockett and Hulse then walked onto the Re-
spondent's premises, passing Widder without recognition.
As they went by, Widder asked Lockett what he was
going to do. Lockett told him that he was going to use
the telephone and then talk to Widder.
A few minutes after Lockett entered the service build-
ing, Widder walked in to find Lockett ending a tele-
phone conversation. As Lockett walked out, he told
Widder that he was going to wait for Brinker, who
should be there around 10:30 a.m. Lockett then returned
to where the men were assembled.
Widder related that he was the sole management rep-
resentative during the 1:15 p.m. meeting in his office
2s The Union had rejected an offer by the Respondent to resolve the
grievances by reducing the suspension periods for all concerned.
14 Although the record shows that unit employees continued to refuse
to handle emergency calls during the weekend of June 14 and 15, requir-
ing assignment of supervisory personnel, the parties stipulated that the
suspensions and disciplinary letters that are the reason for this proceeding
were based solely on the refusal of the Respondent's employees on June
13 to cross the Operating Engineers' picket line to work, and not the em-
ployees' subsequent conduct.
with Brinker, Union President Smith, and Lockett.
Brinker told Widder that he did not condone what was
going on out there, it was a violation of the contract,
and he was going to get it stopped. Brinker announced
that he was going out to tell the men to work and asked
if Widder wanted to come with him. Widder replied that
he would be happy to do so.
Accordingly, Widder walked with the three union
men to where the other employees were gathered. En-
route, Brinker stopped and spoke very briefly to the
pickets, telling them that he did not condone what his
members were doing, and that he was going to order
them back to work. Brinker said that he appreciated
Local 66's problem as the Respondent had hired scab
labor, but that that had no bearing on him and his Union
had a contract to fulfill.
When he reached the employees, Brinker told them,
too, that he did not condone what was going on. He an-
nounced that he was ordering them to go to work. To
emphasize that they had a contract to honor, he was pre-
pared to state that if there were any stewards in the
group and they did not lead the employees back to
work, they would be removed as stewards.
When no one moved, the same four men who had
been in Widder's office at 1:15 p.m. walked back up the
hill and returned there. At that time, Corbett was invited
to join the meeting with Brinker, Lockett, Smith, and
Widder. When Brinker, who had stopped to speak again
to the pickets on the way back, arrived in Widder's
office, he reiterated that he did not condone what was
going on, the men were in violation of the contract, he
had ordered them back to work, but did not know what
they would do. Nothing else was said at that time.
Brinker left the office, again went down to talk to the
employees, and soon after departed with Smith.
Shortly thereafter, Widder approached Lockett and
Hulse near the garage and asked if Lockett were going
to bring the men back to work. Lockett said he would
not. In response to Widder's reminder that he had heard
Lockett ordered to take the men to work, Lockett de-
clared that it was too late to bring them back, there was
nothing for them to do. The men were going to sit out
the balance of the day.
Around 2 p.m., Hulse was photographed with the
pickets on the Respondent's property. Hulse explained
that he had situated himself there to inform any other of
the Respondent's employees who might be coming to
work where the other employees were, if they chose not
to cross the picket line. As described, later that after-
noon, Lockett and Hulse, respectively, refused Widder's
request that they respond to outage calls.
Some time after June 13, Local 5, International Broth-
erhood of Electrical Workers, AFL-CIO, the Union's
sister local, picketed the Respondent's DuBois facility.
However, unlike June 13, the Respondent's employees
crossed this line and worked without incident.2 5
25 Lockett testified that he had heard of the Local 5 picket line while
working at Clearfield. He had not discussed that matter with the mem-
bers, but knew that none had honored the picket line.
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The history of the "no strike" agreement
The record shows that the above-quoted "no-strike"
provision of the current collective-bargaining agreement,
article II, section 5, which the Respondent contends was
breached on June 13, has been continued without change
in the various contracts for this unit, starting with the
first such accord, effective 1972, between the Respond-
ent and Local 521, the Union's predecessor as bargaining
agent. 26
William Rauch, former business manager of Local
521,27 testified that he attended all contract negotiating
sessions for the 1972-1973 contract as did International
representative John Sorvelli, chief steward Lockett, and
steward Joe Kelso. The Respondent was represented at
these negotiations by its attorney, James Q. Harty, Gen-
eral Manager James Nicholson, 28 and Supervisor Alex
Porter.
When the Union proposed the language of the "no
strike" clause, Nicholson stated that he was concerned
that, once the employees were organized under such an
agreement, they would be walking off the job or striking
all the time. International representative Sorvelli reas-
sured him that that would not be the case. Employees
would not be walking off the job whenever they felt like
it, and would honor the contract. However, Sorvelli
continued, they also would honor legal picket lines. The
provision, as described, was adopted in the first contract.
During the term of the first contract, the Respondent's
employees had refused to cross a picket line established
on October 27, 1972, also by Local 66, Operating Engi-
neers, against the Sheraton Inn, then under construction.
The pickets were posted along a roadway that led to the
Sheraton Inn, but which also ran by or through the Re-
spondent's DuBois facility. On that occasion, when the
pickets appeared, the Respondent's employees already
were on its premises ready for work. However, on
seeing the pickets, the Respondent's employees refused
to perform their duties, which included driving out past
the line to service the Respondent's customers and
power lines. The parties stipulated that, on that day, 11
employees were not paid by the Respondent for the hour
they did not work during their regularly scheduled
workday. The employees, however, declined the Re-
spondent's offer to make up the lost compensation by
working an additional hour that evening. Except for not
being paid for the lost hour, the Respondent's employees
were not disciplined for their refusal to work and no
grievances were filed concerning that nonpayment. 2 9
26 Local 521, following an election, began to represent the Respond-
ent's production and maintenance employees around October 1971. Nego-
tiations for the first collective-bargaining agreement began in December
of that year. The first contract was effective for 2 years, commencing
January 1, 1972.
"a Rauch, business manager of Local 521 from June 1970 to June 1975,
represented the Respondent's unit employees during the negotiations that
led to the 1972-73 contract.
a8 Nicholson was Widder's predecessor as general manager.
29 Smiley testified that when the General Manager Nicholson ap-
proached him during the 1972 picketing to state his concern that several
of the Respondent's employees were not working because of the picket-
ing by Smiley's Union, Smiley had explained that it had not been his
union's intention to hold up Nicholson's operations as the problem was
not with the Respondent. Following this conversation, the Respondent's
employees returned to work.
Local 521 Business Manager Rauch testified that
during the 1972 picketing incident he and Nicholson dis-
cussed that matter in the latter's office. Nicholson, refer-
ring to the picket lines set up by the Operating Engi-
neers, expressed his fear that the Respondent's employees
would not come to work. He stated that if the workers
did not report he would discipline them. Rauch replied
that that was Nicholson's right under the terms of the
contract. He reaffirmed that the employees would not
walk off the job unless a legal picket line was set up.
However, Rauch continued, the employees had the right
to choose not to cross a legal picket line, where set up.
This right existed not under the precise language of the
contract but under the Union's unwritten policy.3 0
Lockett, who as chief steward, participated in the 1978
negotiations which led to the current agreement, testified
that no new proposals were made by either side that the
existing "no-strike" clause should be changed from the
contracts previously negotiated for these employees by
Local 521, and, again, that provision was reincorporated
without modification.
3. Credibility
The most significant conflict in the testimony is
whether, as the General Counsel and Union contend,
Brinker had instructed his men to return to work on
June 13 only to avoid further difficulties with the Re-
spondent of the type that had resulted in the earlier disci-
plining of two employees for using the gate reserved for
contractors rather than the employees' gate and to avoid
other possible litigation, or whether, as the Respondent
asserts, Brinker had told the employees to go to work
because they were in violation of the collective-bargain-
ing agreement. Brinker also denied that Widder, during
their discussions, had accused the men of violating the
"no-strike" agreement. From the entire record, I credit
Widder's testimony that he was told by Brinker that the
refusal of the employees to cross the Local 66 picket line
was in violation of the contract and that Brinker had or-
dered the men to work for that reason.
Brinker's repeated instruction to the union members to
go to work proceeded against the background of an ex-
isting "no-strike" agreement. Brinker's testimony that
Widder had not claimed violation of that clause is in
good measure countered by Widder's June 14 mailgram
to Lockett, confirming his earlier phone-delivered tele-
gram, which stated that the "employees are in clear vio-
lation of the collective bargaining agreement." More-
over, while Widder's testimony that Brinker had ac-
knowledged that the refusal to cross the line violated the
contract was corroborated by Corbett, albeit Widder's
partisan, Brinker's denial of this was not similarly sup-
ported by the two union members to give testimony-
Lockett and Hulse. Although Lockett had been in Wid-
der's office during Widder's two meetings with Brinker,
he could not recall anything that Brinker had said. Like-
wise, when he accompanied Brinker, Widder, and Smith
to where the employees were, after the first session in
50 Rauch also stated somewhat inconsistently that he had said, during
that conversation, the right to honor other picket lines existed under the
contract.
738
UNITED ELECTRIC COOPERATIVE
the office, to watch Brinker order the men to work,
Lockett remained at a distance and could not hear what
Brinker told the men. Hulse, called by the Respondent,
did not testify concerning these matters.
In concluding that Brinker had ordered the men to
work on June 13 on the ground that their refusal was in
violation of the contract, it conversely is noted that
Brinker never affirmatively took the position that his
members should not cross the Local 66 picket line be-
cause they had a right under the contract not to do so.
Rather, he summarily relieved Lockett of his duties as
chief steward for refusing to lead the men to work and
repeatedly stated his view that the men should work to
Smiley, to Widder, and to the members of his Union.
Thereafter, when a sister local to the Union picketed at
the DuBois facility, the Respondent's employees crossed
the line to work.
I also credit Widder's denial that during the second
meeting in his office, he had told Brinker and the others
that he "did not give a damn" whether or not the men
went to work and they might as well go home as he had
no work for them to do. Such a stance by Widder would
have been very inconsistent with the Respondent's work
requirements in servicing recurring emergency power
outages. In fact, it is undisputed that later that afternoon
Lockett and Hulse, respectively, refused requests by
Widder that they respond to two such calls.
C. Discussion and Conclusions
Administrative Law Judge Stevenson, in her Board-
approved decision in St. Regis Paper Co.,3 1 restated the
general rule as follows:
As the right of employees to honor a picket line
of a union other than their own is a right granted
by statute, the Board will not infer that the employ-
ees own union has waived their right to engage in
sympathy strikes unless the waiver is clear and un-
mistakable. 7 It is now Board policy not to infer
such a waiver solely from an agreement proscribing
"any strike, walkout, slowdown, or other interrup-
tion of work" .... The Board considers contract
provisions like this, which do not specifically refer
to sympathy strikes or crossing picket lines, to be
ambiguous and will find waiver in them only where
the parties' intent to waive is clearly evident from
the relevant bargaining history.8
International Union of Operating Engineers, Local Union 1&
AFL-CIO (Davis-McKee, Inc)., 238 NLRB 652 (1978); Keller-Cres-
cent Company, a Division of Mosler, 217 NLRB 685 (1975), enforce-
ment denied 538 F.2d 1231 (7th Cir. 1976); Gary-Hobart Water Cor-
poration, 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1977).
' Daniel Construction Company Inc., 239 NLRB 1335 (1979); W-
I Canteen Service, Inc., 238 NLRB 609, fn. 1 (1978), enforcement
denied 606 F.2d 738 (7th Cir. 1979). Accord: Chevron U.SA.,. Inc.,
244 NLRB 108 (1979); International Union of Operating Engineers
Local Union 18 AFL-CIO (Davis-McKee, Inc), supra; Keller-Cres-
cent Company. a Division of Mosler, supra; Gary-Hobart Water Cor-
poration, supra; Kellogg Company, 189 NLRB 948 (1971), enfd. 457
F.2d 519 (6th Cir. 1972).
31 253 NLRB 1224, 1227 (1981).
The rationale for this view is that ordinarily "no-
strike" clauses are in consideration for binding arbitration
of disputes between parties. Therefore, if the dispute is
arbitrable, it is presumed that the "no-strike" agreement
prohibits employees from engaging in work stoppages in
furtherance of that dispute. However, as a sympathy
strike involves a dispute or disputes which are not sub-
ject to arbitration between the parties to the "no-strike"
agreement, the "no-strike" agreement, absent other evi-
dence, will not be deemed to be a waiver of the right of
unit employees to honor a picket line of a union other
than their own.
As in St. Regis Paper Co., supra, the Board, in finding
waiver of the right to engage in sympathy strikes, has re-
lated back, giving particular attention to contract lan-
guage and bargaining history. However, in examining
continuing bargaining relationships, the Board also has
looked forward to recognize, in a variety of areas, that a
union, during the term of its collective-bargaining agree-
ment, by its actions or by what it does not do, can waive
statutorily protected rights of its member-employees,
even to their detriment.3 2
There is little in the contract language or bargaining
history to support the Respondent's contention that the
"no-strike" agreement was intended to bar sympathy
strikes. Although the last sentence in the "no-strike" pro-
vision of the contract expresses "the mutual desire of
both parties to provide uninterrupted service to the Co-
operative membership," that language is insufficient to
establish a "clear and unmistakable" intent to relinquish
the employees' right to engage in sympathy work stop-
pages.3 3 Similarly, the other above-quoted contract
clauses relied on by the Respondent, such as agreement
for "continuity of service" and observance of the Re-
spondent's rules and regulations, including specified
work hours, also are not sufficiently specific to constitute
clear contractual waiver as none of these other cited pro-
visions prohibits or otherwise refers to work stoppages
out of sympathy with or in observance of picket lines of
other unions. Rather, those contract clauses, at most,
merely relate to agreed standards to be adhered to by the
employees when at work.
Nor does the bargaining history sustain the Respond-
ent's position. The "no-strike" provision in effect since
1972 included no references to sympathy strikes even
though then General Manager Nicholson had been told
by the Local 521 representatives, during the 1971 negoti-
ations, that employees would honor legal picket lines, al-
though they otherwise would not walk off the job.
In spite of Nicholson's declaration to Local 521 official
Rauch in 1972, when the Respondent's employees were
refusing to cross the nearby picket line directed at the
Sheraton Inn, that he would discipline employees who
did not report to work, Rauch, in reply, had reaffirmed
s' Lange Co., 222 NLRB 558, 563 (1976) (waiver of bargaining con-
cerning layoffs and transfers); ABC Transnational Transport, 244 NLRB
660, 665 (1979) (waiver of bargaining as to management's decision to
close seven terminals and to transfer work). More immediate precedent
concerning waiver of the right to engage in sympathy strikes arising
during contract term will be considered below.
sa Operating Engineers Local 18 (Davis-McKee, Inc.), supra; Gary-
Hobart Water Corp., supra.
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees' right to refuse to cross legal picket lines
and, in fact, the employees who did not participate in the
hour-long work stoppage were not disciplined. They
merely were not paid for the time they did not work,
compensation that they, as hourly rated workers, were
not entitled to receive in any event. These employees
even were given the opportunity to recover the lost
hour's pay by working later that day, which they de-
clined apparently for personal convenience. Unlike the
situation in 1980, the employees in 1972 had received no
warning letters and were not suspended.
Although it is understandable that the Respondent's re-
action to the 1972 incident, which lasted but an hour,
would be milder than the daylong stoppage in 1980,
where the resulting dislocation was much greater, there
is no basis for construing from the parties' conduct sur-
rounding the 1972 work stoppage that precedent had
been created for the Respondent's disciplining of em-
ployees who participated in sympathy strikes. Likewise, I
find no precedential significance to the bargaining rela-
tionship in the failure of Local 521 or the employees to
file grievances over the deduction of an hour's pay for
time not worked, as there was no entitlement.
Waiver, then, in the present case can only be found
from Brinker's conduct on June 13. Then, he repeatedly
ordered his members to cross the Operating Engineers'
picket line to work on the ground that their conduct was
in violation of the "no-strike" agreement in the contract.
He also expressed this view to Widder and Corbett,
during his meetings in the former's office, and told
Smiley that he would encourage his employees to work
that day. Brinker also summarily removed Lockett from
his long-term position as steward because of involvement
in that work stoppage, urged any other stewards who
might be present to lead the men to work, and openly
agreed with the Respondent's position that the work
stoppage was in violation of the contract. Brinker, thus,
did all in his power to persuade his members to cross the
line to work in enforcement of the "no-strike" agree-
ment. Significantly, when a sister local sometime after
June 13 picketed at the DuBois facility, these employees
worked without incident.
In Amcar Division,3 4 in concluding that there had been
no waiver of the right to engage in sympathy strikes, the
Board placed particular emphasis on its finding that:
At no time during the 1978 IBEW Local I strike
[leading to the action in that case] did the Union
urge its unit employees to cross the picket line and
report to work, nor did the Union ever state that
the contract required the unit employees to do so.
While certain officials and individuals associated
with the Union may have indicated that they be-
lieved the Respondent's position was correct, we
find greater significance in the fact that the Union
never formally communicated that position to its
members. 3 5
34 247 NLRB 1056, 1059 (1980), enf. denied 641 F.2d 561 (8th Cir.
1981).
a" Cf. American Cyanamid Co., 246 NLRB 87, 90 (1979), where the
Board noted that while the union business manager's advice to member
employees that their sympathy strike was in violation of the contract and
On these facts, noting the strong position Brinker had
taken on June 13 that the men were violating the con-
tract in the context of the importance the Board, con-
versely, has placed on the absence of such conduct in
Amcar, supra, I find that Brinker on June 13, as "the re-
sponsible union official," had waived the rights of bar-
gaining unit employees to engage in the sympathy work
stoppage. To find otherwise would dilute the Board's
emphasis in Amcar, and contravene the above-noted prin-
ciple that a collective-bargaining agent, during the term
of its collective-bargaining agreement, by action or inac-
tion, may waive protected rights of its members. A con-
trary finding also would serve to interfere with Brinker's
real and apparent authority to effectively act as agent
and spokesman for the Union in dealing with the Re-
spondent and would insinuate the Board into the middle
of a continuing bargaining relationship to ensure that no
similarly placed union representative could speak for his
membership, unless to their advantage. It would appear
consistent with the Union's intent in this regard that
when, sometime after June 13, a different union set up
another picket line at the DuBois facility the employees
crossed that line and worked without incident.
Not less compelling, however, is that the June 13 line
observed by the Respondent's employees was engaged in
unlawful secondary picketing as it was situated at the
gate clearly designated for the Respondent's employees,
rather than at a gate reserved for contractors. In Chevron
U.S.A., 3 the Board found that honoring an unlawful
picket line constituted unprotected activity and that em-
ployees who refuse to cross a picket line that is unpro-
tected by the Act lose the protection of Section 7,
whether or not they had knowledge that the picket line
was unprotected. 3 7
In Chevron U.S.A., supra, the Board also found that the
respondent there could not be deprived of a defense that
the picket line constituted unlawful secondary activity
because no 8(b)(4)(B) charge had been filed against the
picketing union or because that union had not been
joined as a party to the proceeding.38s In that case, as
here as a representative picketing union testified fully
concerning the conduct of the picketing, and all parties
had the opportunity to examine and cross-examine him.
In Sailors Union AFL (Moore Drydock),39 the Board
set forth four criteria to be met by a union in picketing
at a common situs, defined as a location where several
employers, including the primary employer, with whom
the union has its dispute, are situated. These standards
for lawful common situs picketing are: (1) the primary
employer is then present on the site; (2) the primary em-
his similar statements to management were insufficient, in themselves, to
constitute a waiver of their right to engage in such activity, the Board,
nonetheless, found that his conduct as "the responsible union official most
closely connected with this event" was entitled to weight in deciding
whether there was a waiver. The Board then ruled that in the circum-
stances of that case, where waiver was found from the bargaining history
and special contract language, it was not necessary to decide whether the
business manager's conduct constituted a waiver.
s6 244 NLRB 1081, 1086 (1979).
a7 American Telephone Co., 231 NLRB 556, 562 (1977); Pacific Tele-
phone Co., 107 NLRB 1547 (1954).
as Ibid. at 1085.
39 92 NLRB 547 (1950).
740
UNITED ELECTRIC COOPERATIVE
ployer then and there is engaged in its normal business;
(3) the picketing is confined to places reasonably near
the situs of the dispute; and (4) the picketing clearly
identifies the primary employer with whom the union
has a labor dispute. To call the Moore Drydock criteria
into play, employers may establish at the common jobsite
a separate gate or entrance reserved for the exclusive use
of the employees of and persons dealing with the pri-
mary employer.
Accordingly, where a separate entrance or gate to the
common situs is properly established and maintained for
the use of the primary employer and its suppliers, the
union is limited to picketing at that gate, and the union
violates the Act when it pickets the neutral gates re-
served for other employers at the common situs.4 0
In the present case, clearly marked separate gates were
reserved for the use of employees of the Respondent and
of contractors, respectively, such gates having been es-
tablished, effective June 1, following telephone calls to
the Respondent by Local 66 Business Manager Smiley
and by the Union's business manager, Brinker, protesting
the Respondent's possible use of nonunion contractors on
its pending construction project. The gates were serious-
ly observed by the Respondent. Notice of their imple-
mentation was given to the Respondent's employees on
May 27, and Brinker testified that it had been necessary
thereafter to arbitrate the disciplining of two unit em-
ployees who erroneously had departed through the gate
reserved for contractors. Widder testified credibly that
early in the morning of June 13, when the pickets first
were posted by the employees' gate, he had told Smiley
that there was a separate gate for contractors, but that
Smiley had refused his request that the pickets be moved
to that gate. Smiley's insistence on picketing Leach, then
the only contractor on the jobsite, at the gate designated
for the Respondent's employees instead of moving, as re-
quested, to the gate reserved for contractors tended to
maximize the impact of the picketing on the Respondent
as a neutral employer. It, therefore, is found that the
picket line erected by Local 66, Operating Engineers, at
the gate designated for the Respondent's employees at its
DuBois facility, was of an unlawful secondary nature as
designed to involve the Respondent in that Union's dis-
pute with Leach.
Accordingly, it is concluded that the Respondent did
not violate the Act by suspending and issuing discipli-
nary letters to the 14 employees who did not cross the
Operating Engineers picket line on June 13, not only be-
cause, as found above, their Union had waived their
right to cross that line, even if lawfully erected, but also
because the Operating Engineers' picket line was illegal
and the sympathy strike by these employees in observ-
ance of the line similarly was not protected under the
Act. 4'
40 Plumbers Local 388 (Charles Featherly Construction), 252 NLRB 452,
460 (1980); Plumbers Local 48 (Calvert Contractors), 249 NLRB 1183,
1186 (1980).
41 Electrical Workers IBEW Local 640 (Timber Buildings), 176 NLRB
150 (1969), cited by the General Counsel for the proposition that the cri-
teria for lawful reserve gate picketing had not been met as a separate
entryway had not been designated for Leach's exclusive use, to distin-
guish that contractor from others, is not germane. In Timber Buildings,
although the picketing union had been notified that a separate gate would
However, in agreement with the General Counsel, I
find that in suspending Lockett for a second week be-
cause of his position as union steward, rather than for the
1 week applied to the others, the Respondent violated
Section 8(a)(3) and (1) of the Act. Even though it has
been found that the picket line and the conduct of the
Respondent's employees in refusing to cross it to work
were not protected under the Act, "discrimination di-
rected against an employee on the basis of his or her
holding union office is contrary to the plain meaning of
Section 8(a)(3) and would frustrate the policies of the
Act if allowed to stand."4 2
In Lockett's June 16 disciplinary letter from Widder,
he specifically was notified in one paragraph that he
would be suspended for I workweek because of partici-
pation in an illegal strike in violation of his contractual
obligations and the Act. However, in a separate para-
graph, the letter informed Lockett that he also would be
suspended for 1 more workweek because of his "failure
to responsibly perform [his] duties as union steward," in-
cluding his failure to implement Brinker's instructions to
take the men to work. Under Precision Castings and
Gould, supra, this second week of suspensions based on
Lockett's union office was not protected under the Act.
Had Lockett's 2-week suspension been lumped togeth-
er without separate statements as to the reason for each
disciplinary interval, the entire 2-week period would
have been tainted by the unlawful reason given. Howev-
er, this was not the case as the June 16 letter clearly
itemized the purpose for each week of suspension. Lock-
ett's first week of discipline fully conformed to that law-
fully given to the other employees, and, as with them,
was not violative of the Act. However, the second week
of suspension specifically was predicated on Lockett's
role as union steward and was violative of Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
be reserved for the exclusive use of its target, the primary employer, in-
stead, a makeshift gate was set up on the generally unenclosed situs. with
a sign indicating that the gate was for the use of eight employers, includ-
ing the primary. In addition, there was a second makeshift cqntractors'
gate on the situs posted with the names of 16 other subcontractors, sepa-
rated from the first gate by a strand of wire. In the resulting confusion,
subcontractors frequently failed to observe the posted gates, a problem
enhanced by the general contractor's conduct in furnishing the Union
with untrue information as to when the primary employer's employees
would be on the site, while making an "undercover agreement" with the
primary employer as to when its employees would be called to the
project. Here, none of those chaotic factors was present. As there is no
showing that any contractor but Leach was on the jobsite on June 13,
there is no basis for confusion on the part of the picketing union as to
whom the contractors' gate applied, and the Respondent clearly intended
strict observance of the separate gates, as evidenced by the discipline
given to employees Hall and Shaffer, who earlier had used the wrong
exitway.
42 Precision Castings Corp., 233 NLRB 183, 184 (1977); Gould Corp.,
237 NLRB 881 (1978), enf denied 612 F.2d 728 (3d Cir. 1979).
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers,
Local 1124, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By suspending Clayton A. Lockett Jr. for a second
workweek because of his position as union steward, fol-
lowing participation in the sympathy strike of June 13,
1980, and by giving him the disciplinary letter, dated
June 16, 1980, referring to his union office as the ground
for further suspension, the Respondent violated Section
8(aX3) and (1) of the Act.
4. Except as specified above, the Respondent has not
committed unfair labor practices alleged in the com-
plaint.
THE REMEDY
Having found that the Respondent violated Section
8(aX3) and (1) of the Act by suspending Clayton A.
Lockett Jr. because of his office as union steward and for
having given him a disciplinary letter referring to his
union office as ground for the unlawful second week of
suspension, it is recommended that the Respondent be re-
quired to cease and desist therefrom, 43 and to make
Lockett whole for any loss of earnings he may have suf-
fered as the result of his suspension from Monday, June
23, 1980, 7 a.m., until Friday, midnight, June 27, 1980,
with backpay and interest thereon to be computed in the
manner set forth in F. W Woolworth Co.,44 and Florida
Steel Corp.45
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended
ORDER4 6
The Respondent, United Electric Cooperative, Inc.,
DuBois, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Suspending and issuing disciplinary letters to em-
ployees who participate in work stoppages out of sympa-
thy with other unions because they held positions as
union stewards.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
4s The Respondent also should be required to expunge from its person-
nel and other relevant records, all references to the disciplinary action
taken against Lockett because of his union office, and to revoke the disci-
plinary letter, dated June 16, 1980, to delete therefrom references to a
second week of suspension for reasons found unlawful herein.
44 90 NLRB 289 (1950).
is 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
46 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make whole Clayton A. Lockett Jr. for any loss of
earnings he may have suffered as a result of his suspen-
sion by the Respondent from Monday, June 23, 1980,
7:30 a.m., until Friday, midnight, June 27, 1980, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Expunge from the Respondent's personnel and
other records, all references to the disciplinary action
taken against Lockett during the above-noted period be-
cause of his union office, and revoke the disciplinary
letter, dated June 16, 1980, to delete therefrom references
to discipline based on Lockett's office in a labor organi-
zation.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its facilities in DuBois, Brookville, and
Clearfield, Pennsylvania, copies of the attached notice4 7
marked "Appendix."' s Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found
herein.
" Although the events considered in this matter occurred at the Re-
spondent's DuBois facility, posting of the notice is warranted at Brook-
ville and Clearfield, as well, as the collective-bargaining agreement
covers employees at the three locations.
4' 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we were represented by our at-
torney, it has been found that we have violated the Na-
tional Labor Relations Act in certain respects. To cor-
rect and remedy these violations, we have been directed
to take certain actions and to post this notice.
742
UNITED ELECTRIC COOPERATIVE
WE WILL NOT suspend, issue disciplinary notices to, or
otherwise penalize our employees who participate in
sympathy strikes because they held office in International
Brotherhood of Electrical Workers, Local 1124, AFL-
CIO, or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our Employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole Clayton A. Lockett Jr. with in-
terest, for any loss of earnings he may have suffered as a
result of his unlawful suspension from Monday, June 23,
1980, 7:30 a.m., until Friday, midnight, June 27, 1980.
WE WILL expunge from our personnel and other rele-
vant records all references to the disciplinary action
taken against Clayton A. Lockett Jr. during the above-
described period and revoke the disciplinary letter previ-
ously given to him to delete therefrom references to dis-
cipline based on Lockett's official position in the above-
named Union.
UNITED ELECTRIC COOPERATIVE, INC.
743
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