On Petition for Review and To Set Aside Decision and Order of the National Labor Relations Board. No. 213-CA-18198.
Bauer and Wood, Circuit Judges, and Rosenn, Senior Circuit Judge.*fn*
ROSENN, Senior Circuit Judge.
The question in this case is whether the United States Steel Corporation (U.S. Steel or the Company) committed unfair labor practices violating the National Labor Relations Act (the Act) by suspending employee Eugene Goldenfeld for a total of 38 days because Goldenfeld refused to report for work on September 26 and 27, 1978, and urged other employees to do likewise.
On the dates in question, employees of the Elgin, Joliet and Eastern Railroad (EJE) were picketing at U.S. Steel's facility in Gary, Indiana (Gary Works), where Goldenfeld was employed. To demonstrate his support for the EJE employees' strike, Goldenfeld reported absent from work and distributed leaflets to his U.S. Steel co-workers, urging them to honor the EJE employees' picket line. Although an arbitrator determined that the Company was justified in suspending Goldenfeld for his actions, the Board found that the discipline violated section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) (1976), because it interfered with Goldenfeld's right to engage in protected concerted activity.*fn1
The Company petitions for review of the Board's order, contending that Goldenfeld was not engaged in concerted activity and that his actions were not protected by the Act because the employees' right to strike had been waived by an express no-strike clause in the collective bargaining agreement between the Company and the United Steelworkers Union. The Company also argues that the Board should have deferred to the arbitration award. Because we agree with the Company's waiver argument, we grant the petition for review and deny enforcement of the Board's order.
In September 1978, Eugene Goldenfeld was employed by U.S. Steel as a journeyman motor inspector at the Company's Gary Works steel mill. He was a member of Steelworkers Union Local 1014. All Gary Works' employees, as well as employees at the Company's other basic steel mills, were covered by a collective bargaining agreement between the Company and the Steelworkers (the basic labor agreement) dated August 1, 1977. This agreement contained a broad no-strike clause. The contract also provided for a four-step grievance procedure, culminating in binding arbitration, that was to be followed for the settlement of all complaints and grievances. The preamble to the contract indicated that the purpose of the agreement was "to promote orderly and peaceful relations with the employees, to achieve uninterrupted operations in the plants, and to achieve the highest level of employee performance consistent with safety, good health, and sustained effort."
On September 26, 1978, employees of the EJE Railroad belonging to the Brotherhood of Railway and Airline Clerks (BRAC) set up a picket line at U.S. Steel's Gary Works facility. EJE operates tracks, offices, and switching equipment at the Gary Works' and BRAC's picketing was aimed at EJE. The purpose of the EJE employees' picket line was to protest EJE's decision to contribute to a fund that was being used to aid the Norfolk and Western Railroad, which was resisting a strike. The picketing by EJE employees apparently constituted lawful protected concerted activity under the Act.
Goldenfeld observed the EJE pickets as he arrived for work shortly before 7:00 A.M. on September 26. After speaking with the striking EJE employees, Goldenfeld decided to honor their picket line in order to further labor solidarity. Goldenfeld telephoned his supervisor and informed him that he would not enter the U.S. Steel plant to report for work. He also telephoned Jack Parton, president of Steelworkers Local 1014. Goldenfeld asked Parton to encourage other Gary Works employees to honor the EJE picket line, but Parton refused this request.
While at home on September 26, Goldenfeld drafted and typed a leaflet explaining his views on the EJE employees' strike and urging other U.S. Steel employees to honor the picket line. He mimeographed this leaflet himself and distributed it to the Company's employees at the Gary Works later that day.
The following morning, September 27, Goldenfeld again encountered the EJE strikers at the Gary Works and telephoned his supervisor to report off from work for a second day. He spoke to a foreman who informed him that he had been suspended for three days on the ground of absence from duty without permission or excuse. Goldenfeld distributed more leaflets at the plant later on September 27. As a result of his distribution of leaflets, one other Gary Works employee elected not to work.
The picketing ended on September 29, 1978, the last day of Goldenfeld's suspension. When Goldenfeld reported for work on September 30, however, he was informed that the Company had suspended him for an additional 35 days for engaging in "activities designed to encourage other employees to violate" the no-strike provision of the collective bargaining agreement between U.S. Steel and the Steelworkers Union.
Goldenfeld filed two grievances with the Company regarding his suspensions. The grievances progressed through the grievance procedure and ultimately were presented to an arbitrator. At the arbitration hearing, the Union contended on Goldenfeld's behalf that Goldenfeld was engaged in protected concerted activity when he honored the EJE picket line and distributed the leaflets. On May 30, 1979, the arbitrator upheld Goldenfeld's suspensions, reasoning that Goldenfeld's conduct was not protected by the Act because the ...