United Food And Commercial Workers Union, Local No. 1439

National Labor Relations Board - Board Decisions

Feb 28, 1989

293 N.L.R.B. 26 (N.L.R.B. 1989)

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Food and Commercial Workers Union, Local
No. 1439 and Joe Hagood and Rosauer's Super-
markers , Inc. Cases 19-CB-4778, 19-CB-4772,
and 19-CB-4797
February 28, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
The issue in this case is whether the Respondent
unlawfully threatened employees with discipline
for refusing to participate in a sympathy strike.
That finding rested in part on a determination that
the collective-bargaining agreement covering the
most employees and unmistakable waived the em-
ployees' right to engage in sympathy strikes and
that therefore honoring the delicatessen unit's
picket line would be unprotected. On April 9, 1985,
the National Labor Relations Board issued a Deci-
sion and Order' finding that the Respondent violat-
ed Section 8(b)(1)(A) of the Act by threatening
employees it represents in separate meat and food
units with fines and other sanctions for failing to
honor picket lines of striking delicatessen employ-
ees, who were also separately represented by the
Respondent. Thereafter, the Respondent petitioned
the United States Court of Appeals for the Ninth
Circuit to review the Board's Decision and Order.
While the instant case was pending before the
Ninth Circuit, the court remanded Electrical Work-
ers IBEW Local 387 (Arizona Public Service) 2 to the
Board for consideration of extrinsic evidence bear-
ing on whether a broad no-strike provision encom-
passed sympathy strikes. Like Arizona Public Serv-
ice, the present case involves application of the
Board's Indianapolis Power3 rule that a broad no-
strike clause prohibits all strikes, including sympa-
thy strikes, unless the contract or extrinsic evi-
dence shows the parties intended otherwise. Ac-
cordingly, the Board requested the Ninth Circuit to
remand the present case, which by joint motion of
the parties had been held in abeyance pending the
court's decision in Arizona Public Service. The court
granted the Board's remand request, and on August
13, 1986, the Board notified the parties of its deci-
sion sua sponte to reconsider the original Decision
and Order. Thereafter, all parties filed statements
of position.
' 275 NLRB 30 (1985).
2 273 NLRB 1757 (1985), remanded 788 F.2d 1412 (1986).
' Indianapolis Power Co., 273 NLRB 1715 (1985) (Indianapolis Power 1),
remanded 797 F.2d 1027 (D.C. Cir. 1986), decision on remand 291 NLRB
1039 (1988) (Indianapolis Power II).
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have reconsidered the portion of the Deci-
sion and Order that is before us in light of the
entire record .4 For the reasons stated below, we
reverse our original finding and conclude that the
Respondent did not violate Section 8 (b)(1)(A) by
threatening meat unit employees with disciplinary
action.
On April 8 , 1983, while employees in the delica-
tessen unit were on strike , the Respondent wrote a
letter to meat unit employees who are also mem-
bers of the Respondent requesting them not to
cross the picket lines at Rosauer 's, threatening that
if they did they were subject to "censorship, fine,
suspension , and expulsion ," and stating that mem-
bers had been fined $ 100 a day for crossing picket
lines during a previous strike. The Respondent sub-
sequently sent another letter to certain meat unit
members asserting that they had been charged with
refusing to honor the lines and were subject to dis-
cipline if found guilty in internal trial proceedings.
The meat unit contract states:
12.2 It is agreed that during the life of this
Agreement there will be no strike by the
Union or lockouts by the Employer unless the
other party to the Agreement is refusing to
comply with a final decision or an arbitrator
reached in accordance with the provisions of
this Agreement . Local 1439 agrees that during
the life of this Agreement they will not en-
courage or perform any picketing , boycotting,
or handbilling at the Employer 's place of busi-
ness.
24.1 During the life of this Agreement there
will be no strikes or other economic action by
the Union, nor lockouts by the Employer,
unless the other party is refusing to comply
with a final decision of an arbitrator reached
in accordance with the provisions of this
Agreement . Sympathy strikers shall not be ac-
corded any greater rights under law or con-
tract than the rights of a striking employee.
Noting that the contract prohibited "picketing,
boycotting , strikes , or other economic action," and
relying on the Indianapolis Power rule , the Board
originally concluded that the parties' no-strike pro-
vision banned all strikes , including sympathy
' The issue before the court was limited to the Respondent 's threats to
meat unit employees who were union members . The Respondent has
agreed to comply with the Board's Order as it affects food unit members.
We shall revise our original Order and notice to accord with this agree-
ment and today's decision.
293 NLRB No. 4
FOOD & COMMERCIAL WORKERS LOCAL 1439 (ROSAUER S SUPERMARKETS)
strikes, unless other evidence established a contrary
intent Because the Board found no such contrary
intent in the contract or in the extrinsic evidence, it
held that the Respondent waived meat unit em-
ployees' right to participate in sympathy strikes,
and that the Respondent therefore violated Section
8(b)(1)(A) by threatening to discipline those who
refused to engage in the sympathy strike
At approximately the same time the Ninth Cir-
cuit granted the Board's remand request in the in-
stant case, the District of Columbia Circuit re-
manded Indianapolis Power I for further consider-
ation of certain evidence the Board failed to ad
dress 5 On December 9, 1988, we issued Indianapo-
lis Power II in which we concluded that "the Indi-
anapolis Power rule is sound, and we continue to
adhere to it "6 However, we cautioned that in ap-
plying the Indianapolis Power rule "careful consid
eration [must] be accorded extrinsic evidence bear-
ing on the parties' intent, such as bargaining history
and past practice under the no strike clause "? We
restated the rule in the following terms 8
To summarize, we continue to believe that a
broad no-stnke clause should properly be read
to encompass sympathy strikes unless the con-
tract as a whole or extrinsic evidence demon-
strates that the parties intended otherwise In
deciding the issue of whether sympathy strikes
fall within a no-strike provision's scope, the
parties' actual intent is to be given controlling
weight and extrinsic evidence should be con-
sidered as an integral part of the analysis
Applying Indianapolis Power II to the facts pre-
sented here, we find that the parties did not intend
to bar sympathy stnkes The parties' no-strike
clause states that "there will be no strikes or other
economic action by the Union " and that the Union
"will not encourage or perform any picketing," but
continues, "Sympathy strikers shall not be accord-
ed any greater rights under law or contract than
the rights of a striking employee " Because we
must interpret the contract as a whole, we read the
phrases in conjunction Although the first two
phrases suggest a prohibition against sympathy
strikes, the addition of the third statement, for the
reasons the judge enumerates,9 makes the parties'
' Electrical Workers IBEW Local 1395 (Indianapolis Power) Y NLRB
797 F 2d 1027 (D C Cir 1986)
' 291 NLRB 1039 1040
r Id at 1040- 1041 (fn omitted)
' Id at 1041 (fn omitted)
' The judge correctly observed that the third statement could either
ban sympathy strikes or merely memorialize Rosauer s right to perms
nently replace sympathy strikers to the same extent it had the right to
permanently replace employees engaged in a primary economic strike
275 NLRB at 34 In other words as applied to the circumstances of this
case it could mean that Rosauer s would be able to replace striking meat
unit employees to the same extent that it could replace those whose strike
27
contractual intent ambiguous We therefore find
that the no-strike clause, read as a whole, is not
sufficient to bar sympathy strikes
Further, the bargaining history suggests that the
parties did not intend to prohibit sympathy strikes
The sympathy strikes provision first appeared in
the 1978-1981 contract, after the employer associa-
tion bargaining on Rosauer's behalf unsuccessfully
proposed language that would have barred honor-
ing strikes established by unions other than the Re-
spondent 10 After that proposal was rejected, the
parties agreed on the current language limiting
sympathy strikers to no "greater rights" than those
of a "striking employee "
Reviewing the bargaining history evidence, the
judge found that management's initial no-strike pro-
posal prohibited honoring picket lines around Ro-
sauer's premises established by a "person or organi-
zation" other than the Respondent, that the propos-
al was characterized by management as "much
more comprehensive" than the language ultimately
agreed on, and that the "more comprehensive"
proposal would not have prohibited employees
from joining the sympathy strike in the present set
ting, given the fact that the picket lines were the
Respondent's rather than another Union's We
agree with the judge 's assessment of the extrinsic
evidence, I e, that the agreed-on, "narrow" fan
guage was not intended to bar sympathy strikes
that would have been permitted even under the re-
jected, "more comprehensive" proposal
In sum , after reviewing the contract as a whole
and the extrinsic evidence, we conclude that there
was no clear and unmistakable waiver of the meat
unit employees' right to engage in a sympathy
strike Therefore, the meat unit employees were
contractually free to engage in a sympathy strike,
and the Respondent did not violate the contract by
threatening meat unit employees who were union
members with discipline for refusing to exercise
that right Accordingly, we dismiss the complaint
allegations that Respondent violated the Act by its
conduct involving meat unit members
ORDER
The National Labor Relations Board modifies
the prior Order in this proceeding as set forth
below and orders that the Respondent, United
Food and Commercial Workers Union, Local No
the meat unit employees were supporting (i e the delicatessen unit em
ployees who were lawfully striking for a new collective bargaining
agreement)
10 In pertinent part the proposal read as follows No picket line at or
around the Company s place of business established by any other person or
organization shall be sanctioned or honored during the term of this agree
ment (emphasis supplied)
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1439, Spokane, Washington, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified
1 Substitute the following for paragraph 1(a)
"(a) Threatening to discipline union members
who refused to join a sympathy strike in contra-
vention of a provision relating to sympathy strikers
contained in the Respondent's contract covering
food unit employees "
2 Substitute the following for paragraph 2(a)
"(a) Remove from the files of food unit employ-
ees who were members who were threatened with
discipline any reference to the unlawful disciple
nary threats and all related documents, and notify
each threatened food unit employee who was a
union member in writing that it has done so "
3 Substitute the attached notice for that in 275
NLRB 30
MEMBER JOHANSEN, concurring
As stated in my Indianapolis III concurrence, I
do not subscribe to the veiw that a general no-
strike clause standing alone is sufficient to waive
the right to engage in sympathy strikers For this
reason, I disagree with my colleagues that the first
two phrases of the parties' no strike clause suggest
a prohibition against sympathy strikes Even if
these provisions were the totality of the parties'
contractual prohibition against strikes, which they
are not, the language would be insufficient, in my
view, to bar sympathy strikes
I agree, however, with my colleagues that an
analysis of all relevant evidence of the parties'
intent supports the finding of no clear and unmesta-
1 291 NLRB 1039 1042 (1988)
keable waiver of the meat unit employees' right to
engage in sympathy strikes-a finding that I con
sider to be mandated by the Supreme Court's Met-
ropolitan Edison2 decision
2 Metropolitan Edison Co v NLRB 460 U S 693 708 (1983)
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT threaten to discipline members be-
cause they refuse to honor our picket lines and par
ticipate in a sympathy strike, in contravention of
our contractual promise not to discipline them for
crossing the lines
WE WILL NOT in any like or related manner re
strain or coerce you in the exercise of the rights
guaranteed you in Section 7 of the Act
WE WILL remove from the files of food unit
members who were threatened with discipline any
reference to our threats to take disciplinary action,
including all documents relating to the threatened
disciplinary proceedings, and WE WILL notify each
threatened member in writing that this has been
done
UNITED FOOD AND COMMERCIAL
WORKERS , LOCAL No 1439