On Application for Enforcement of an Order of the National Labor Relations Board
Pell and Sprecher, Circuit Judges, and Parsons, Chief District Judge.*fn*
This is a petition for enforcement of an order of the National Labor Relations Board (Board). In issue is whether the Board properly found that the Keller-Crescent Company, a Division of Mosler (Company) violated Sections 8(a)(1) and (3) of the Act by suspending twelve employees for refusing to cross a picket line established at the plant by members of another union.
The Company manufactures cardboard containers and related products at its plant located in Evansville, Indiana. Different units of its employees are separately represented by Evansville Typographical Union No. 35 (Local 35); Local 117 of the Evansville Printing and Pressmen and Assistants Union, AFL-CIO (Pressmen); and two other unions. During the summer of 1972, contract negotiations between the Company and the Pressmen broke down, and the Pressmen called a strike commencing July 24, 1972, and terminating July 29, 1972. During that strike, members of Local 35 failed to report to work, having refused to cross the Pressmen's picket line.
On July 22, 1972, the Friday before the beginning of the Pressmen's strike, the Company advised Local 35's Chapel Chairman Wayne Burdge that in the Company's opinion, Sections 12*fn1 and 13*fn2 of the collective-bargaining agreement prohibited Local 35 from refusing to cross the anticipated picket line of the Pressmen. Burdge talked to Local 35's President Donald Clark, who told Burdge to telephone him in the event that the Pressmen set up a picket line. On Monday July 25, Burdge observed that such a picket line had been set up and telephoned Clark, who appeared at the plant and addressed the members of Local 35 as they stood outside the Pressmen's picket line. He told them that the International expected them to live up to their contract and that he expected them to honor the contract. On the same day, the Company sent Burdge a telegram alleging that the members of Local 35 were violating Section 12 of the contract and threatening legal action.
On July 26, Clark telegraphed the Company, stating that Local 35's membership recognized the contract, characterizing the Company's threat of legal action as harrassment and intimidation, and stating that Local 35 was willing to meet with the Company to discuss the matter. On the next day, Clark again addressed the members of Local 35 who were continuing to observe the Pressmen's picket line, telling them that he had heard from the International and that the International said to honor the contract. Neither Burdge, Clark, nor any International representative during the course of the Pressmen's strike in explicit terms urged the membership to cease the sympathy strike or cross the Pressmen's picket line although at least one member testified that he understood Clark's statement to mean that "we shouldn't be standing out there on the street" and that "we should go back to work." Also during the strike, the Company sent a telegram to the Local 35 expressing its willingness to arbitrate any dispute.
After the Pressmen's strike ended on July 29, the twelve sympathy strikers returned to work. At this time the Company advised Burdge that the Company considered the strikers' refusal to cross the Pressmen's picket line to be in violation of the contract's no-strike clause, and that repercussions would follow. Shortly thereafter, the Company put into effect a one-week suspension of each sympathy striker with the exception of Burdge, who received a two-week suspension.
The Administrative Law Judge found that the employees were given a disciplinary suspension for refusing to cross the Pressmen's picket line. The ALJ further found that absent any other evidence in the record, the no-strike prohibition set forth in § 13 of the contract was inapplicable, inasmuch as the waiver of the right to strike therein was only as extensive as the scope of the grievance and arbitration procedure, which extends only to disputes which may arise as to the application and construction to be placed upon any provision of the agreement, or alleged violation thereof. He concluded that, inasmuch as the issue of the strike engaged in by the members of Local 35 was that of the basic strike of the Pressmen, i.e., the Pressmen's contract, and since the Pressmen's contract was by no means cognizable under the terms of Local 35's contract, the dispute which gave rise to Local 35's strike was not a grievable dispute, and the strike did not therefore fall within the no-strike ban of Section 13.
Nonetheless, the ALJ concluded that the twelve employees had breached the no-strike clause of § 13. The ALJ found in effect that § 12, coupled with collateral evidence of contractual intent with respect thereto,*fn3 revealed an intent on the part of the parties to encompass within § 12 a prohibition from honoring any picket line except that of a subordinate union of the ITU. The ALJ recognized that no language in the bargaining agreement expressly waived the right to defer to another union's picket line, but he implied such a waiver from the language of § 12 and extrinsic evidence. See note 3, supra. Accordingly, he concluded that the employees had lost the protection of the Act and recommended that the complaint be dismissed.
A majority of the Board agreed with the ALJ's conclusion that the strike by Local 35 members did not fall within the ban of § 13. Similarly, the majority found that § 12 did not expressly waive the right to honor another union's picket line. The majority rejected the ALJ's finding that the language of § 12, buttressed by collateral evidence, gave rise to an inference that employees could be required to cross picket lines of other unions. It found that there had been no implied waiver of the statutory right of Local 35 members to respect the Pressmen's picket line. On the basis of its analysis of the contractual language, the actions of the parties, and its unwillingness to find an unequivocal waiver expressed in "clear and unmistakable" language, the majority found that the Company had engaged in unfair labor practices in violation of Sections 8(a)(1) and (3) of the Act.
The dissenting member of the Board found it unnecessary to consider, as had the ALJ and the majority, the applicability of § 13 of the contract to the strike. His conclusion that the recommended order of dismissal should be adopted was grounded upon his view that the refusal of Local 35 members to cross the Pressmen's picket line was a breach of § 12 of the labor agreement. He distinguished Gary Hobart Water Corp. v. NLRB, 511 F.2d 284 (7th Cir. 1975), cert. denied, 423 U.S. 925, 96 S. Ct. 269, 46 L. Ed. 2d 252, the factual details of which he viewed as representing the converse of the instant case, and opined that the language of § 12 inescapably implied that the Local 35 members were prohibited from honoring any other picket line. The dissenting member reviewed the collateral evidence and concluded that Local 35 members had shown that they "understood that Section 12 meant that the Union's members were prohibited from refusing to cross the picket line of a union which was not a subordinate union of the ITU."*fn4 He thought it clear that under that section of the contract, Local 35 had waived the employees' statutory right to lend support to the striking Pressmen by refusing to work.
The Board's order whose enforcement is here sought directed the Company to cease and desist from the unfair labor practices, and to make whole the twelve employees for any loss of wages suffered by them.
I. General Background: Decisional Conflict
In our opinion, the key element in this case is the interrelationship of Sections 12 and 13 of the barganing agreement. We regard the decisive question to be whether Local 35 had a duty to arbitrate its dispute over the application and construction of the picket-line clause before honoring the Pressmen's picket line by engaging in a work stoppage. This question cannot be resolved in a vacuum. The reported cases demonstrate that considerable difference of opinion developed in the years following the decision of Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970). The divergent lines of authority concerned the power of a federal district court to grant injunctive relief where a union has entered into a collective-bargaining agreement establishing a mandatory arbitration procedure and a no-strike clause but subsequently strikes solely out of deference to another union's lawful picket line at a place of employment common to the two unions.
It is unnecessary at this point to probe the underlying rationale supporting the divergent holdings in cases where employers have sought to invoke the Boys Market exception to the anti-injunction provision of the Norris-LaGuardia Act, 29 U.S.C. § 104. The recent decision of Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428 U.S. 397, 96 S. Ct. 3141, 49 L. Ed. 2d 1022, 44 U.S.L.W. 5346 (1976), has settled the conflict among the circuits by holding that a federal court may not enjoin a work stoppage found to be a sympathy strike in support of sister unions ...