Chevron, U.S.A.., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 949 (N.L.R.B. 1985)

CHEVRON, U.S.A, INC - 949
Chevron, U.S.A., Inc. and Oil, Chemical & Atomic
Workers International Union Local 1-547 and
International ' Brotherhood of Boilermakers,
Iron Shipbuilders , Blacksmiths , Forgers and
Helpers, Local No. 351, AFL-CIO. Cases 31-
CA-9778, 31-CA-9786, and 31-CA-10307"
28 June 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 July 1981 Administrative Law Judge Tim-
othy D. Nelson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions and his
posthearing brief in support of the judge's decision;
and the Respondent filed a telegram response.
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
conclusions only to the extent consistent with this
Decision and Order.
The judge found that-the Respondent violated
the Act by disciplining employees separately repre-
sented by Local 1-547 (OCAW) and Local 351
(Boilermakers) because they - honored stranger
picket lines. Because the judge failed to defer to an
arbitration award that found that the OCAW con-
tract's no-strike provision, prohibits -sympathy
strikes, and failed to defer to the Boilermakers, con-
tract's grievance-arbitration procedures, we re-
verse.
For at least 20 years the Respondent's contracts
with OCAW and Boilermakers have contained un-
changed broad no-strike provisions.' On '28 Janu-
ary 1980 certain OCAW- and Boilermakers-repre-
sented employees honored a stranger picket line at
the Respondent's refinery. The Respondent sus-
pended them for refusing to work. On 29 May, fol-
lowing OCAW's contract 'expiration, OCAW
struck the Respondent's refinery and some Boiler-
makers-represented employees honored the picket
line. The Respondent suspended them.
In- 1977 the Respondent suspended OCAW-rep-
resented employees who refused to cross-a stranger
picket line. OCAW grieved the discipline, and in
1978 an arbitration board ruled that the contractual
no-strike provision encompassed sympathy strikes
r The OCAW no-strike provision reads as follows -
During the term of this Agreement, there shall be no strikes, stop-
pages of work, slowdowns, or other intentional interferences with
production The Company agrees there will be no lockouts
The Boilermakers no-strike provision reads as follows
There shall be no cessation of work through strikes, nonproductive
holidays or sit-downs on the part of the Union, nor shall there be
any lockouts, etc , on the part of the Employer during the period of
this agreement. -
and therefore the-Respondent was free--to levy dis-
cipline against sympathy strikers. - . -.-
The judge concluded that it would be inappro-
priate to honor the 1978 arbitration award constru-
ing the OCAW rio-strike clause because under
Board precedent OCAW had' not clearly and un-
mistakably waived the right to engage in sympathy
strikes, and therefore the award was. repugnant to
the Act. In Spielberg Mfg. Co., 11-2 NLRB 1080
(1955), the Board held that it would defer to-arbi-
tration awards if (1) the arbitration proceedings ap-
peared to be fair and regular, (2) the parties had
agreed to be bound, and (3) the decision was not
clearly repugnant to the Act. In Indianapolis Power
Co., 273 NLRB 1715 (1985), the Board held that a
broad -no-strike- clause - bans 'all strikes, including
sympathy strikes, absent clear evidence that the
parties intended otherwise. Thus, we cannot agree
the arbitration award was clearly repugnant to the
Act.2 No party contends the arbitration - proceed-
ings failed to satisfy the first two Spielberg criteria '.3
Accordingly, because the contractual issue is factu-
ally parallel to the unfair labor practice issue, and
the parties presented the arbitration panel with
facts relevant to resolving the issue, we will_defer
to the arbitration award. Olin Corp., 268 NLRB
573 (1984). - - . I .
The judge found deferring an 8(a)(3) -issue to the
Boilermakers arbitration procedures was - barred
under General American Transportation Corp., 228
NLRB ' 808 - (1977). In -United Technologies Corp.;
268 NLRB 557 (1984), the Board overruled Gener-
al American Transportation and held it' would defer
cases alleging 8(a)(1) and (3) violations to the par-
ties' grievance-arbitration provisions. We therefore
conclude that the issues raised in Cases 31-CA-
9786 and 31-CA-10307 should be deferred to the
grievance-arbitration provisions in the Boilermak-
ers contract.4
ORDER -
The complaint regarding Case 31-CA-9778 is
dismissed.
The complaint regarding Cases 31-CA-9786 and
31-CA-10307 is dismissed provided that:
2 See, e g, Ohio Edison Co.; 274 NLRB 874 (1985) .
3 The General Counsel contends that the 1978 award is repugnant, but
does not otherwise contend that it is not controlling on the parties in this
proceeding See generally Furr's, Inc, 264-NLRB 554 (1982), where the
Board found deferral to prior arbitration awards appropriate under Spiel-
berg In that case , as here, although the prior arbitration awards did not
involve the employees named in the Board proceeding, they involved the
same contractual issue relevant to those employees -
4 See Collyer Insulated Wire, 192 NLRB 837°(1971) The Respondent
must, of course, waive any timeliness provisions of the grievance-arbitra-
tion clauses of the collective-bargaining agreement so that the Union's
grievance may be processed in accordance with the following-Order
275 NLRB No. 132
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an, appropriate and
timely motion for further consideration ' upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of
this Decision and Order, either been resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is re-
pugnant to the Act. -
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge.. I
heard these consolidated cases on trial at Los Angeles,
California, on December 16, 1980. Oil, Chemical &
Atomic Workers International Union Local 1-547
(OCWA) and International Brotherhood of Boilermak-
ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers
(Boilermakers), Local No. 351, AFL-CIO duly filed and
timely served on-'Chevron, U.S.A., Inc. (Respondent)
unfair labor practice charges with the Regional Director
for Region 31 of the National Labor Relations Board
(Board). Following an investigation , the Regional Direc-
tor issued an • order consolidating cases , consolidated
complaint and notice of hearing against Respondent in
the above-captioned cases on March 27, 1980.1
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act
(Act) by disciplining employees represented by OCAW
Local-1-547 and Boilermakers' Local 351 because they
refused to cross picket lines established during a lawful
economic strike against Respondent by other labor orga-
nizations (i.e., because they engaged in a "sympathy
strike").
Respondent duly answered, admitting in substance that
its operations are subject to the Board's jurisdiction, and
that it imposed certain discipline against employees sub-
stantially as alleged in the complaint,2 but denying'that
its disciplinary actions violated the Act. Respondent
averred as an affirmative defense that it was entitled to
discipline the. employees because they acted in deroga-
tion of no-strike commitments contained in current labor
agreements. Citing the fact that OCAW Local 1-547 lost
an arbitration decision upholding Respondent's right to
issue such discipline, Respondent also urges that the
Board should defer to that decision under the Spielberg
doctrine;3 that the Board should direct Boilermakers
Local 351 to avail -itself of contractual opportunities simi-
larly to arbitrate the challenged discipline; and that the
Board should defer to the results of such arbitration.,-
-
i_ An amended consolidated complaint issued against Respondent on
September 22, 1980 '
2 See fn 6
3 Spielberg Mfg. Co, 112 NLRB 1080 (1955) ' • -
I. ISSUES
The central question is whether -the Boilermakers and
OCAW bargained away the conceded right otherwise
enjoyed by employees under Sections 7 and 13 of the
Act to engage in sympathy strikes. Resolution of this
question requires reference to "no-strike" language in the
labor agreements between Respondent and those Unions
and consideration of certain extrinsic evidence pertaining
to those Unions' unsuccessful efforts at the bargaining
table to obtain different language from that which ulti-
mately was adopted.
A separate issue is raised by Respondent's discipline
against employees in the Boilermakers-represented bar-
gaining - unit : Is Respondent collaterally estopped by the
Board's decision in a prior case involving those parties4
from relitigating the same questions which were litigated
and arguably decided by the Board in that case?
Finally, there is the issue whether the Board should re-
frain from analyzing the significance of the no-strike lan-
guage in the respective labor agreements and should, in-
stead, defer resolution of those issues to an arbitral forum
(i.e., in:the-case of OCAW, to an arbitration decision al-
ready rendered; in the case of the Boilermakers, to a
forum which is available, but which has not yet been
used).
.All parties had full opportunity to appear, to present
evidence and argument, and to file posttrial briefs.5
On the entire record,6 I make the following
II. -FINDINGS OF FACT AND PRELIMINARY
CONCLUSIONS
A. General Background and Overview
Respondent operates a petroleum refinery at El Se-
gundo, California.7 It employs about 850 employees rep-
resented by OCAW Local 1-547, who operate the plant
and perform most of the maintenance work. It also em-
ploys about 75 employees represented by Boilermakers
Local 351, who perform boiler maintenance and welding.
4 Chevron USA, Inc, 244 NLRB 1081 (1979) (Chevron 1)
6 I have fully considered the timely filled and helpful briefs submitted
by the parties
6 The record includes a written joint stipulation of the parties (re-
ceived in evidence as G C Exh 2) and the testimony of various witnesses
pertaining to bargaining history The joint stipulation received at trial sets
forth, inter alia, the names of most employees who received discipline for
sympathy sinking, the dates on which such discipline was imposed, and
the specific disciplinary action taken Because the parties did not have at
hand at the trial.the names of all persons thus disciplined, nor in some
cases other pertinent details, the record was held open until the due date
for receipt of briefs for the submission of an updated stipulation Such a
document was timely submitted to me in the form of a joint stipulation
and motion, which I received in evidence as ALI Exh I A-typed copy
of the same is attached hereto as Appendix "B " (Appendix B omitted
from publication) It should be noted, as is set forth on the preamble page
thereof, that the information in it has been updated from that contained
in the original G C Exh 2, and that it is now acknowledged that some of
the names included therein were included by inadvertence The General
Counsel has amended the ultimate complaint to conform to the informa-
tion in the stipulation pertaining to the names of disciplined employees,
the discipline which they received, and the dates of such discipline
Respondent, a California corporation with principal headquarters in
San Francisco, annually sells and ships goods or services valued in excess
of $50,000 directly to customers outside California
I
CHEVRON, U.S.A., INC. 951
In addition , about 10 employees at the -El Segundo refin-
ery are part of a larger unit of Respondent 's marketing
employees at various locations . These latter employees
have been represented by OCAW Local 1-1978 since
1979. -
1-. 1980 discipline
The allegedly wrongful discipline arose in connection
with two lawful primary stnkes in '19 80. In the first,
there was picketing at the El Segundo refinery by
OCAW . Local 1-1978 on January 28, 1980, in further-
ance of an economic strike called by that union to obtain
a new labor agreement for Respondent's marketing em-
ployees. This was done while labor agreements contain-
ing no-strike language between Respondent and OCAW
Local 1-547 and Boilermakers Local 351 were still in
effect. Some employees in units represented by those
latter unions honored the picket line established by
OCAW Local 1-1978. They were issued disciplinary sus-
pensions by Respondent for their refusal to work, in al-
leged violation of the no-strike clauses , and were warned
that similar violations in the future would result in fur-
ther discipline, including discharge.
On February 22, 1980, the labor agreement between
Respondent and OCAW Local 1-547 expired. Thereaf;
ter, until about May 29, 1980, that Union picketed • all
employee entrances at the El Segundo refinery in fur-
therance of a strike for a new agreement. This was,done
while the labor agreement with Boilermakers Local 351
was still in effect. Some employees- represented by that
latter Union honored , the OCAW Local 1-547 picket
line. They were similarly disciplined, with similar warn-
ings.
2. Background to Respondent's 1980 discipline of
OCAW Local 1-547 unit employees
OCAW Local 1-547 and Respondent were parties to a
contract containing, the -following , no-strike language
when employees represented by it were disciplined for
honoring the January 28 picketing at the El Segundo re-
finery by OCAW Local 1-1978:
ARTICLE XXI-STRIKES AND LOCKOUTS -!
During the 'term of this Agreement , there shall be
no stnkes, stoppages of work, slowdowns , or other
intentional interferences with production . The Com-
pany agrees there will be no lockouts.,
This language ' liad' appeared in labor agreement's be-
tween ; those parties for'at least 20 ,years. No,extrinsic, evi-
dence was introduced as to the parties ' intent regarding
the scope' of such, language when it first - became part of
the agreement .' Thereafter ' from the ,record 's silence on
the; ,subject, .1 infer that - this language was continued
without debate as successive agreements were reached
(except during negotiations -for the pertinent 1977-1981
agreement discussed below). -
The record shows that Respondent did not seek to dis-
cipline certain employees in the OCAW Local-1-547 unit
when in the early 1970's they honored-picket lines estab-
lished by a sister local of OCAW.B -
During negotiations in 1966 and early 1977 for the per-
tinent 1977-1981 agreement, however, the question''of
sympathy work stoppages became a subject for specific
discussions between the parties. In the 'early stages ` of
bargaining in December 1976 OCAW Local' l-547,
acting on instructions from the parent' International
body, presented this-demand as it,appeared in, a docu-
ment tendered to Respondent by _OCAW; captioned
"U.S. National Oil Bargaining Policy 1977-78":9
9. A clause shall be negotiated-into each contract
providing that: "Each, employee shall have the right
to refuse to cross-or work behind any picket line es-
tablished at the Employer's-premises or elsewhere.
The Employer shall not threaten or actually disci-
pline or discharge any employee who exercises such
right, nor shall the exercise of such right be deemed
to be a violation of this Agreement by the, Union::'
Manager of Employees Relations Collings, testifying
for Respondent about the -surrounding discussions' when
the above-quoted proposal was -presented, credibly
stated:
I do recall . '.. that the 'union when it,presehted the
proposal ..: said that-it felt it was putting into the
contract what they already had--as a legal •right.'
Collings also testified 'that Respondent's. bargainers
"emphatically" opposed. the-inclusion of such proposed
language or "any article of, this type," stressing , that its
refinery, equipment must be maintained on,aregular, basis
in order to maintain -the safety,,of the refinery operation.
The issue was-not debated further after-the. parties ex
changed their opening positions as',just outlined. About
January 7, 1977, OCAW, representatives. withdrew the
above-quoted proposal on instructions, from the, Interna-
tional , based on a settlement that had been reached with
another major oil company which did not include ) the
proposed `;picket line`,t language.
- It is agreed , by, both parties that when OCAW Local
1-547 withdrew its a proposed- picket line language, its
representative informed Respondent that"OCAW contin-
ued to believe 'that'employees it :represented already en-
joyed the right to' which it had' sought to put into the
contract. Thus, Respondent's bargaining agent Collings
acknowledged ' that'- the `parties' "tendered' to' reiterate
their [earlier] -position's" at • the- tithe that 'OCAW `repre-
sentatives withdrew th'e'picket line 'clause;' acid" `OCAW
Representative Leonard,'Fye' testified''that- OCAW 's' -he'
gotiating spokesman' Walter Hubei. •"made a: presenta-
tion" :to' the effect -that"' OCAW's; picket line clause t was
being' withdrawn -"without, =prejudice'. -ands that'' `-`the
s Respondent's manager of empl'oyee'-r'elations' Kenneth' Collings' ex-
plained that tactical and practical considerations-mcludmg the relatively
brief duration of the observance by employees in the OCAW Local 1-
547 unit of the sister local's picket line-caused Respondent to refrain
from exercising what it deemed to be its right to discipline employees
during that picketing
9 R Exh 4
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union still retains the right to honor the picket line as in-
dividuals."10 -
3. OCAW'S unsuccessful arbitration over 1977
discipline
In August 1977, after the above-described negotiations
had resulted in the continuation of the traditional no-
strike language in the labor agreement , Respondent
issued disciplinary suspensions to certain employees in
the OCAW Local 1-547 unit because they had honored
a picket line erected by a local of the International
Union of Operating Engineers (IUOE) at the El Segundo
refinery which was (as the Board ultimately found") di-
rected against Bragg , a maintenance contractor working
on the refinery premises. OCAW filed a grievance over
that discipline and the dispute was submitted for arbitra-
tion under the labor agreement. On June 12, 1978, the
board of arbitration issued a ruling favorable to Respond-
ent. 12
I summarize below the key aspects of the arbitration
decision:
The main issue submitted for arbitration was: "Did the
Company violate the Articles of Agreement dated Feb-
1° Fye recalled that Huber 's presentation of the withdrawal was done
with the aid of a lengthy telegram from the International (received in
evidence as G C Exh 5) That telegram contains instructions to local
spokesmen that certain language be read in connection with withdrawal
of the demand for the picket line clause.
Included in the statement which , local bargainers were instructed to
make was the following language:
Inasmuch as the National Oil Bargaining Policy Committee has this
date authorized an amendment to the National Oil Bargainin• [sic]
Policy which provides that settlements may be agreed to which do
not contain this [picket line] language, the Union is hereby with-
drawing its demand for the inclusion of this language in the contract
This language was proposed for the purpose of clarifying the rights
of the Union , the employers and the employees in the event that any
employees are called upon to cross or work behind any picket line
It was not proposed nor ever intended to infer that the Union be-
lieved that it did not have the right under certain circumstances to
instruct its members to refuse to cross or work behind a picket line,
nor was there any belief or intention by making such a proposal that
individual members would not have the right to make such refusals
Fye recalled that Huber had the telegram containing the quoted language
with him when he made a statement about the withdrawal of the picket
line language, but Fye was not sure that Huber had read it "verbatim "
In the absence of any testimony by Huber or by other OCAW witnesses
to Huber's remarks, and considering Fye's hesitancy on the point, I am
not prepared to find that the quoted text was literally transmitted to Re-
spondent on January 7 I find merely , consistent with the harmonious tes-
timony of Fye and Collings , that OCAW agents withdrew the picket line
clause while stating that OCAW adhered to the view that its members
already had the rights which it had simply wished to be reflected in the
labor agreement
i i Respondent similarly disciplined Boilermakers-represented employ-
ees for honoring that picket line The Boilertnakers -unlike OCAW, filed
an unfair labor practice charge . over that disciplining of its members. This
was the subject of the Board 's decision in Chevron I, the significance of
which is further discussed below
12 The board of arbitration consisted of a three-member panel, two of
whom were designess of the Employer and the Union , respectively
(known as "partisan members" ) The third member (the "chairman") evi-
dently functions as a neutral tie-breaker The chairman wrote the opinion
(received in evidence as R Exh 11 ), noting , in closing "The statements,
conclusions and findings of fact expressed herein are those of the Chair-
man and not those of the partisan members " Indeed , the union-designat-
ed member expressly noted his dissent (id p 13)
ruary 23 , 1977, when is [sic] suspended employees listed
in [the underlying grievance]?" 113
The chairman concluded that:
.. since there is a no-strike-no lock-out clause in
the Articles of Agreement . .. grievants are re-
quired to report for work as scheduled by the Com-
pany during the term of the Agreement . There is no
provision in the Agreement which would permit ab-
senteeism because of picketing . Although the griev-
ants feel that they had the right of their own convic-
tions as to honoring a strike , their feelings are mis-
placed when they agree to a no-strike . . . clause
which in essence states they will cross a picket line.
. . . [I]t would seem that a refinery employee faced
with the question of having to cross a picket line,
either takes the benefit Of his contract and crosses,
or takes the consequences of his act in violating the
contract . ..." 14
Discussing OCAW's argument that Respondent's past
practice was not to discipline employees under the no-
strike clause for honoring another union 's picket line, the
chairman stated : "The Union however has the burden of
establishing that the Company has .. . waived its right
to discipline its employees for not fulfilling the no-strike
obligation . There are insufficient facts . . . to show a
waiver . . . .11 15
OCAW had also argued that the Boilermakers ' unfair
labor practice complaint was pending before the Board
(in Chevron 1) and (apparently) that the chairman should
therefore take into account the statutory considerations
which underlay that cause of action in determining the
matter submitted to arbitration . The chairman expressly
refused to do so, stating:
.. . such evidence [of the pending Chevron I com-
plaint] is insufficient to warrant sustaining this
grievance without conducting a full scale hearing as
to the merits and similarities of their charge which
is collateral to this matter . In any event this Board
of 'Arbitration is charged with -interpreting the con-
tract at bar and would not be affected by a determina-
tion in the Boilermaker [i.e., Chevron 1] matter...
Furthermore , there is no evidence in this record
which would lead the chairman to' conclude that
the external law would not uphold a determination by
this Board of Arbitration that a refusal to cross a
picket line in the face of a contractual no-strike
clause when there is peaceful picketing . is a viola-
tion of the Agreement between the parties.' 6]
Summarizing the foregoing : When OCAW Local 1-
547 unit members were disciplined in connection with
their honoring of the January 28, 1980 picket line erected
by a sister local, this was the second instance of Re-
spondent's issuance of such discipline against employees
in that unit since Local 1-547 had sought unsuccessfully
13 Id pp 3-4
14 Id at 8-9 , emphasis added.
15 Id at 11, emphasis added
16 Id at 11-12, emphasis added
CHEVRON, U.S A:, INC.
to obtain its "clarified" picket- line language in the 1977-
1981 labor agreement. Before the imposition of the 1980
discipline, an -arbitrator had determined in 'connection
with the 1977 discipline that the traditional no-strike lan-
guage in the OCAW agreement applied to such "sympa-
thy" 'activities as the hononng of the IUOE picket line
and, therefore, that the discipline was privileged by the
labor agreement. Accordingly, OCAW'L"ocal 1-547 now
turns to the Board for relief from the similar discipline
by Respondent in- 1980 against employees in the unit it
represents.
4. Background to Respondent's 1980 discipline of
Boilermakers-represented employees: The Board's
disposition of Chevron I
When employees in the unit represented by Boilermak-
ers Local 351 -were disciplined in 1980 for honoring
picket lines erected first by OCAW Local 1-1978, and
later, by OCAW Local 1-547, there was still in effect a
labor agreement between the Boilermakers and Respond-
ent containing no-strike language which -had been the
subject of negotiations in 1977.17
The same agreement, with the same no-strike lan-
guage , was in effect in 1977 when Respondent disci-
plined Boilermakers-represented employees for honoring-
the IUOE picket line against Bragg.
This was the language in the no-strike clause of the
Boilermakers' agreement which was in effect -at all times
material herein:
There shall be no cessation of work through strikes,
non-productive holidays or sit-downs on the part of
the Union; nor shall there be any lockouts, etc., on
the part of the Employer during the period of this
agreement.
This no-strike language had been traditionally carried
over in successive agreements between Respondent and
Boilermakers Local 351 for at least 20 years. Before the
language had been included in the 1977 contract, howev-
er, Boilermakers Local 351 had attempted at the bargain-
ing table to obtain a new clause which would have had
the effect, as the Board found- in Chevron I, of permitting
those covered by the agreement to honor a picket line
established by any union representing Respondent's em-
ployees. Boilermakers Local 351 eventually withdrew
that proposal, however, and the above-quoted provision
continued to be the sole no-strike language in the con-
tract which was in effect, at, the time Respondent issued
the 1977 discipline against employees in the Boilermak-
ers' unit for refusing to cross the IUOE picket line.
Following charges similar to those filed in the instant
case by Boilermakers Local 351, the Regional Director
for Region 31: issued a complaint against Respondent
which resulted in a trial before an administrative law
17 The agreement (R Exh 3) was effective by its terms from a point
in 1977 to May 1, 1979 Crediting Collings, however, that agreement had
been extended by the parties without further bargaining , pending negotia-
tions for a replacement contract , and was in effect during January and
February 1980 when Respondent disciplined Boilermakers members for
hononng OCAW's picket lines A replacement agreement was not
reached until April or May 1980
953
judge and consideration by the Board. Respondent de-
fended its 1977 disciplinary action on two grounds: First,
that Boilermakers Local 351 had waived employees'
rights to'engiige in such sympathy strikes by agreeing to
inclusion of the above-quoted no-strike language which,
Respondent argued, constituted a prohibition against
such sympathy work stoppages-especially in the light
of the bargaining history just summarized. Second, and
independent of the foregoing, that the IUOE picket line
was an illegal "secondary" picket line and, therefore, em-
ployees who observed it were not protected in that ac-
tivity by Sections 7 and 13 of the Act. -
The administrative law judge reasoned that Respond-
ent was substantially correct in its first defense (contract
waiver of right to engage in sympathy strike where pick-
eting union did not represent Respondent's employees),
but he concluded that the evidence was insufficient to
decide the merits of the second defense (that the IUOE
picketing was secondary in character).
The Board" a reached a virtually opposite result, ulti-
mately sustaining Respondent's disciplinary action on the
ground that it was -privileged in disciplining employees
who had refused to cross what the Board found to be a
secondary picket line, but rejecting (two members to
one) the argument that there had been a waiver by Boil-
ermakers Local 351 of the right to engage in any sympa-
thy strikes. - -
In sum ,, Respondent "won" its case in Chevron I, but
only on a ground which is not available to it in the in-
stant case . And, although it was not ultimately necessary
to the result, two of the three panel members devoted
substantial attention to an analysis of the sympathy
strike-waiver issue and determined that there had been
no such waiver. i 9
It will be useful to summarize the position of the
Board's panel majority (as defined above) on the ques-
tion whether Boilermakers Local 351 had waived em-
ployees' rights to engage in sympathy strikes by its
agreement to the continuation of the traditional no-strike
language in the 1977-1979 labor agreement, and under
circumstances where it had first attempted to get Re-
spondent's agreement to include an additional clause pro-
tecting employees' rights to honor picket lines estab-
lished by any unions representing Respondent's employ-
ees.
18 That is, the panel majority (see fn 19)
19 The deciding panel consisted of then Chairman Fanning, Former
Member Penello, and Former Member Truesdale As is more fully set
forth below, Member Truesdale, with the concurrence of Member Pen-
ello, concluded for the "result" majority that the complaint must be dis-
missed because the IUOE picket line was unlawfully secondary in char-
acter , and, hence, the Boilermakers -represented employees who honored
it were not protected in such activity and could , lawfully be disciplined
therefor Chairman Fanning dissented on these points Member Trues-
dale, with the concurrence of Chairman Fanning, also concluded, howev-
er, that the no-stoke language did not, either alone, or even under the
-particular facts of the surrounding bargaining history, amount to a waiver
of the right to engage in sympathy strikes . Member Penello dissented on
these points Accordingly, in the discussion below of the "Board major-
ity's" consideration of the waiver issue in Chevron I, I am referring to the
position taken by Member Truesdale and Chairman Fanning-a position
which did not affect, and which was therefore not necessary to, the
result.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the no-strike language standing alone, the major-
ity concluded:
The no-strike language ; .. does not refer specif-
ically to prohibition of sympathy strikes, and thus,
on its face, is insufficient to be read as a waiver of
the right to participate in such work"stoppages. [2O]
As to the extrinsic evidence bearing on the' parties'
•ititent regarding the meaning of the-on-strike clause (i:e.,
the unsuccessful attempt by Boilermakers- to include spe-
cific language permitting employees to honor picket lines
erected by unions representing Respondent's employees),
the majority concluded that this bargaining history did
not provide. evidence of a "clear and unmistakable
waiver" of the right to engage in 'sympathy strikes (nei-
ther as to in-house picket lines , nor as to "stranger" pick-
eting). First, as to the withdrawal of proposed language
regarding picket lines established by in-house unions, the
Board agreed with the judge that this did not waive any
rights, since the evidence showed that "the Union was
merely attempting to place in the contract a right which
it believed its ;employees already possessed by statute
... ."21 As to the honoring of 'stranger picket lines,
such as that maintained by IUOE, the majority disagreed
with the -judge, who had found that the Boilermakers'
proposal _for limited rights to honor in-house -picket lines
implied a concession that no right to honor stranger
picket lines existed. Here, the majority noted first that
the statute equally. protects work stoppages.by employ-
ees in sympathy with employees of employers other than
their own; and, adapting language 'in the -'closely analo-
gous" holding in Keller-Crescent,22 the Board concluded
implicitly that the Boilermakers' reference in its pro-
posed picket line clause to in-house picket lines did not
reflect an intention to limit the broader statutory right to
engage in sympathy strikes-(regardless of the identity of
the picketing union) so much as it merely reflected "a
general intent to memorialize . .. the statutory right."
Accordingly, the majority reasoned that there was no
basis for assuming that the Boilermakers had waived the
right to honor lawful picket lines even when erected by
strangers.2 3 _-
B. Estoppel Effect on Chevron I • . -
In answering the complaint in the instant . proceedings,
Respondent affirmatively defended its. 1980 discipline of
Boilermakers-represented employees on the ground that-
their conduct violated the no-strike clause.in the applica-
ble labor agreement with the Boilermakers (i.e., the same
clause and contract construed in Chevron; 1). The General
Counsel made no' pretrial -motion to strike this defense,
nor for summary judgment in As favor as to the 1980 dis-
cipline of employees in -the : Boilermakers' unit . At .the
20. Cheveron I,.supra at 1084 citing Board holding in-Operattng'Engt-
neers Local 18 , (Davis-McKee), 238 NLRB 652 (1978),,and Gary-Hobart
water Corp, 210 NLRB 742 (1974), enfd ..511 F 2d 284 (7th Cir 1975),
cert'dented 423 U .S 925 (1975i .
21 Ibid. .
22 Keller-Crescent Co, 217 NLRB 685 , 688 (1975), enf denied 538 F 2d
1291 (7th Cir 1976)
23 Id at 1084-85
opening of the trial, however,, correctly anticipating that
Respondent would seek to "relitigate" the "extrinsic"
evidence pertaining to the Boilermakers' unsuccessful at-
tempts during 1977. bargaining ,to obtain a "picket line"
clause, the General Counsel sought a ruling from me to
prohibit such "relitigation" on the ground that the
Board's holding in Chevron I barred such an effort under
the doctrine of.collateral estoppel.
After learning for the first time of'the Cheveron I back-
ground,. and after lengthy colloquy between and among
counsel and the bench, I denied the General Counsel's
motion-primarily on the ground that it should have
been properly noticed in. advance and' properly briefed
by the parties in order to be ripe for an informed disposi-
tion.24
I denied the General Counsel's motion without preju-
dice to its being renewed on brief; the net effect of my
ruling therefore being that Respondent was permitted to
litigate the facts underlying its defense that the Boiler-
makers had waived the right to engage in sympathy
work stoppages by entering into the agreement in 1977
which contained the quoted no-strike clause, but that
such relitigation was subject to a full briefing as to the
effect of Chevron I, and a possible ultimate ruling that
Respondent was estopped by that decision from having
its defense reconsidered on a new factual record. The
General Counsel has renewed. its motion on brief, and
both parties have submitted helpful arguments and cita-
tions to authority on the question.
I conclude, in agreement with Respondent, that the
authorities clearly favor Respondent's position that Chev-
ron I does not bar relitigation of its defense as to its 1980
discipline of employees in the Boilermakers unit-espe-
cially under circumstances - where Respondent, as the
prevailing- party in Chevn I, was without power to
obtain review in a United States court of appeals of the
Board majority's adverse disposition of its alternative
"waiver" defense in that case.
It is, 'of course, critical to - reaching this result that I
conclude as a threshold matter-that the discussion by the
panel majority of the waiver' issue in Chevron I reflected
a determination by that majority which was not neces-
sary to the Board's judgment or result- in'that case. Thus,
to the extent that the Board ultimately concluded- that
the employees who honored the IUOE picket line were
not engaged in conduct protected by the Act, it never
needed to reach the question whether the no-strike lan-
guage in the. Boilermakers' labor agreement amount to `a
waiver of the right to engage in conduct which was pro-
tected, by the Act. 'For this reason, the discussions in
Cheveron -I on that latter question are- classic obiter dicta.
As another threshold matter, it is clear that when the
Board dismissed the complaint against, Respondent in
Chevron ' J; ^ Respondent was not aggrieved by a, "final
order" of the Board 'and,- therefore, under Section 10(f)
of the Act,25 it had no right, to appeal.ioa United-States
24 On inquiry , it developed that the General Counsel had not re-
searched the issue and' was not prepared to cite authorities . Respondent,
of course, was similarly unprepared , having received no advance notice
of the motion
25 29 U S.C § 160(f)
CHEVRON, U.S A, INC.
court of appeals on the Board panel majority's adverse
determination of its "waiver" defense.26 e .
With these dual features, in mind, it is apparent that
Respondent is not barred by the doctrine of collateral es-
toppel from litigating anew the merits of its defense to its
discipline of Boilermakers-represented employees in
1980, even though it litigated the same defense in Chev-
ronL
The generally accepted . . . rule in this situation is
that the judgment is conclusive of only those issues
whose determination supports the judgment.
The unavailability of appellate review is a substan-
tial consideration in support of the majority rule
that determinations adverse to the winning litigant
do not have conclusive effect as collateral estop-
pel.[27]
The General Counsel concedes on brief that there is
"precedent in the general body of law for Respondent's
contention that no estoppel should apply in these circum-
stances,"28 but cites other authority which would argu-
ably support application of collateral estoppel herein.
The General Counsel here relies on the 1881 Supreme
Court decision in Railroad Companies v. Schutte, 103 U.S.
118, and certain other cases which have followed it.29,
Suffice it to observe here that Schutte, supra, and the
cases which follow it have been criticized as,unsound,
and as reflecting confusion, between the doctrines of stare
decists and collateral estoppel30;, and they are not reflec-
tive of the current approach by the circuit, courts in
Boeing, supra, and United Aircraft, supra-both of them
having more direct applicability to decisions of the
Board. Indeed the General Counsel's position is seeming-
ly inconsistent with the position argued by that office
before the Fourth Circuit in Boeing, -supra. 3 1 -
.Accordingly, there being. no bar under, the doctrine of
collateral estoppel to Respondent's-litigation in these pro-
ceedings of facts underlying its defense that in 1977 the
Boilermakers, waived the, right to engage in sympathy
strikes, I turn now to specific findings relating to that de-
fense.
26 The Board successfully argued that this was the proper construction
of the "review" provisions of Sec 10(f) of th Act in Boeing Co. v NLRB,
526 F 2d 587 (4th Cir 1975) See also, e g,-Deacon Truck Line Y NLRB,
337 F 2d 697, 698 (5th Cir 1964), cert denied'381 U S 903 (1964)
27 IB Moore; Federal Practice 9 0 443 [5] (2d ed) at 3922-23, cited
with approval in Boeing, supra,' 526 F 2d at 590. Accord i46 Am .Jur 2d,
Agency,§§ 423, 464, at 593-94, and 631 Compare. United.Aircrgft Corp Y
NLRB, 440 F 2d 85 (2d Cir 19.71), wherein the Second Circuit found the
general rule quoted above to be inapplicable in the circumstarices of that
case since the union seeking review of an--adverse Board older had had
an earlier opportunity as•an "aggrieved" party in a prior- Board proceed-
ing to seek review of,the same adverse, determination and had failed to
do so, and was thus barred by collateral estoppel from raising the ques=
tion' anew on review of'the'subsequent 'Board proceeding Id, 440 F 2d at
99, and authorities cited. -
28GC Br at7 ,
29 Cold Metal Process Coy v Bliss Co , 285 F' 2d 231 (6th Ctr _ 1960),
Choctaw Nation v U.S, 135 F Supp 536 (Ct Cl 1955), cert denied 352
U S 825 (1956)
ao IB Moore's Federal Practice, supra at 3925-27 . , ,
31 See 526 F.2d at 590
955
C. Findings Regarding the 1977 Negotiations Between
Respondent and Boilermakers Local 351
My review of the substantive record made by Re-
spondent at trial on the subject of its 1977 negotiations
with the Boilermakers causes me to, conclude that it in-
troduced no facts which would warrant findings more
favorable to it than those made in Chevron I regarding
those same- negotiations . Indeed, Respondent's agent
Collings recalled32 -that in April 1977 when the Boiler- -
makers first proposed an amendment to,the existing no-
strike language: 3 3
The position of the Boilermakers was that they felt
they had the legal right to observe sympathy
strikes, and wanted' the contract to reflect that
right.
Collings stated, and I find, that Respondent's bargain-
ers resisted this proposal on grounds similar to those.
interposed when OCAW had similarly sought contrac-
tual language which would clarify the rights of employ-
ees to engage in sympathy strikes, i.e., that Respondent
could not tolerate -uncertainty in its ability to maintain
refinery equipment and that it would present a safety
hazard to allow such equipment to go untended during a
sympathy work stoppage by employees in the Boilermak-
ers unit' - . '
Just as was the case in the bargaining with OCAW,
however, there was no further substantive discussion of
the Boilermakers' proposed "picket line" clause after the
parties initially stated their respective positions on the
subject. And, again consistent with the pattern in the
bargaining with OCAW, the Boilermakers eventually
withdrew the picket line clause proposal at a bargaining
meeting in June, but asserted at the time that it still be-
lieved that the employees it represented had a "legal"
right to engage in sympathy strikes.34
,32 Testimony of Collings at Tr 51
22 The Boilermakers ' proposal (R Exh 1) was to amend the existing
no-strike language quoted earlier by adding a clause (B) which stated
-Notwithstanding any provision of this section , it shall not be a viola-
ition of this agreement nor'cause for discipline of any employee cov-
ered by this agreement, to refuse to cross a picket line established by
any union representing'employees at the represented plants
94 I_ make this finding based on Collings' acknowledgment during ad-
verse examination that when the Boilermakers withdrew the proposed
picket line clause, "both parties reiterated their positions" (i e, the ones
summarized above which the parties advanced when the clause was first
proposed at: the bargaining table ) From Collings ' account of that initial
meeting, including his statement that "The position of the Boilermakers
was that they felt they had the legal right to observe sympathy strikes" I
find that the Boilermakers made a similar statement when the picket line
clause 'was withdrawn ' Respondent's counsel also concedes , generally,
that 'neither ' OCAW nor Boilermakers ever expressly departed from the
position that employees had the right to honor another union's picket line
(Tr 139 11-15), and that it is not disputed that whenever the subject was
raised , both unions took the position that their picket line clause propos-
als merely reflected an intention to have their respective contracts reflect
a right which already exsited (Tr 157 13-19)
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. ANALYSIS AND CONCLUSIONS. the no-strike - clause, the arbitrator failed to employ a
mode of analysis required by the statute (as interpreted
by the Board); and; therefore,. the result which he
reached was 'tainted39 by his failure to apply or to
accord proper weight to those statutory considerations.
The Board has clearly held, with the concurrence of
reviewing courts of appeals,40 that the appropriate test
in an unfair labor practice forum for determining wheth-
er a union has waived employees' statutory rights to
,engage in sympathy strikes is whether or not there has
been "clear -and unmistakable" conduct showing an
intent to waive such rights.4 i As amplified by the Board,
this has meant that the Board "will not infer a waiver of
the protected right to engage in sympathy strikes solely
from an agreement to refrain from `all stoppages of
work.' Rather [the Board], shall require that the parties,
at the very least, have discussed the questions and, pref-
erably, have expressly embodied in their agreement their
intent to extend a strike ban to sympathy strikes."42
The arbitrator failed to apply the standards thus out-
lined by the Board in, resolving the arbitration issue.
Rather, he merely inferred, contrary to the required
mode of analysis in a statutory forum, that the "no-
strike"- language in the contract "required" the-OCAW-
represented'employees to "report for work" even though
they might "feel that they have the right to their own
convictions as to -honoring [another union's] strike." It is
thus apparent that the arbitrator did not apply the "clear
and unmistakable waiver" test, and contrary to the
Board's clear holding that "no-strike" language is , not
sufficient, per se, to establish a waiver, 'the arbitrator
relied solely on' such language as the basis for his deci-
sion.
It is equally clear that the arbitrator's resolution of the
arbitration issue involved an apportionment of the
burden of coming forward which is at odds ' with the
manner in which-the burden'would be apportioned were
the matter heard. in a' statutory, forum. Thus, the arbitra-
tor concluded that "The Union has the burden of estab-'
lishing that the Company has'. . '. waived its right to dis-
cipline its'employees for not fulfilling the no-strike obli-
gation." By contrast, in a statutory forum where, as here,
the challenge is directed at Respondent's disciplining of
employees for engaging in presumptively protected ac-
tivity, it is Respondent's burden to establish its defense'
that OCA W waived the employees' statutory rights. Ac-
cordingly, because the arbitrator's analysis failed 'to
employ' statutory' standards for resolving , the 'question
whether OCAW waived the right to engage in sympathy
stri kes; the arbitrator's decision is repugnant to the pur-
pose of the Act and is not a proper basis for-deferral
under Spielberg. - • '
9' Tainted ,. that is, as a construction of employees' statutory rights No
suggestion is intended'that the Chairman failed qua arbitrator,in his tradi-
tional narrow function of deciding what the contract between the parties
meant It is by no: means settled within-arbitration circles that arbitrators
should extract-and apply-statutory or public policy considerations in ful-
filling their primary function of deciding what contract language means
40 See, e g , NLRB v Southern California Edison Co, 646 F 2d 1352
(9th Cir 1981), and cases collected at 1364
41 Gary-Hobart, 210 NLRB at 744-745 ' -
42 Davis-McKee, 238 NLRB at 652-653 ( emphasis added)
A. As to the Discipline of Employees in the OCA W
Unit
I consider here two questions:
1. Should the Board refuse to determine the merits of
the OCAW case and, instead, defer to the 1978 arbitra-
tion decision in which it was concluded that the tradi-
tional no-strike clause, banned sympathy strikes? If not,
on the merits: .
2. Did OCAW waive employees' rights to engage in
sympathy strikes by entering into the pertinent no-strike
agreement and under circumstances where it had sought
a clause more clearly reflecting the right to, engage in
sympathy strikes, but later withdrew that proposal and
contended itself with the traditional no-strike language?
B. Deferral Question
I conclude that it would not be appropriate under the
Spielberg policy to defer to. the` arbitration decision.
Under Spielberg, deferral is not appropriate, inter alia,
where the result reached is "clearly repugnant" to the
purposes of the Act.35 Further , as the Board made clear
in Suburban Motor Freight, 36 necessary condition to the
application of deferral -under Spielberg is that the, "statu-
tory" or -the "unfair labor practice" issue be "both pre-
sented to and. considered by the arbitrator," the burden
being on the, party urging deferral to "prove that,the
issue of discrimination was litigated before the arbitra-
. _ •_ , -tor."
Here, the text of the arbitration award introduced by
Respondent arguably shows, that the-statutory issue- was
presented to the arbitrator. 37 , But it is equally clear from
that text that the arbitrator `(the chairman)'reflised to ad-
dress that statutory, issue , viewing his role as being limit-
ed to "interpreting the contract at bar" and 'concluding
that his interpretation "would not-be affected by" a deter-
mination [by the NLRB] in the- Boil'er'maker matter."
Accordingly, where the arbitrator 'expressly' refused to
consider the statutory question posed•by the disciplining,
of employees for engaging in the presumptively protect-
ed activity of sympathy-striking, deferral is not appropri-
ate.
It is also my judgment that the +arbitration decision
should not be deferred to because' it is ",clearly repug-
nant" to the purposes of the Act within the.meaning, of-
Spielberg, even assuming, arguendo, that the arbitrator's
"interpreting the contract at bar", was tantamount to. a
statutory unfair labor practice.consideration- . of the. ,statutory'
issue .38 For`it is, clear that ' in construing the breadth of
as 112 NLRB- at 1082.::
,36 Suburban 'Motor Freight, 247 NLRB 146 (1980) r • - .
i37' That is, by OCAW's effort to have the board of arbitration take, into
account the fact that the NLRB 'had pending ' before it in Chevron,! the,
statutory-issue of the legality of Respondent 's discipline .of•Boilermakers-
represented employees
38 I-anticipate here the potential argument , that,the "statutory". issue is
really no more than -a "contract interpretation" issue, i e, that, arrespec-•
tive of the label, the task for the decision maker in eithei the statutory or
the contractual forum is, ultimately , to determine whether the no-strike
clause was intended by the parties to encompass sympathy strikes See,
for example , Servair, Inc v NLRB, 607 F 2d 258 (9th Cir 1979) - ,
CHEVRON;, U.S A.,' INC 957
C. The Merits
My resolution of the merits is foreshadowed to some
degree by the commentary above. In substance, Re-
spondent defends itself in the disciplining of OCAW em-
ployees on the ground that OCAW waived the right to
engage in sympathy strikes by entering into a broad no-
strike agreement, particularly under circumstances where
OCAW first tried, but without success, to obtain a clause
which would have expressly permitted employees' to
honor "any picket line established at the Employer's
premises or elsewhere."
To the extent that Respondent -relies merely on the
language in the applicable no-strike clause which was in
effect when it disciplined OCAW-represented employees
in 1980, Respondent's defense may not. be sustained.
Davis-McKee, supra. Similarly, where it is admitted that
OCAW proposed its picket line clause in the first in-
stance with the stated view that it merely wished to have
the contract reflect the rights guaranteed to employees
by the Act, and where OCAW withdrew that. proposal
while continuing to insist that employees possessed those
rights whether or not they were set forth in the contract,
this "extrinsic" evidence did not establish a "clear and
unmistakable waiver" of the right to engage in sympathy'
strikes. Keller-Crescent, 217 NLRB at 688; NLRB v.
Southern California Edison, 646 F.2d at 1366 supra.43 It
therefore follows that Respondent violated Section
8(a)(1) and (3) of the Act by disciplining employees'in
the OCAW Local 1-547 unit for respecting the January
28, 1980 picket lines established by OCAW Local 1-1978
in furtherance of a lawful primary strike.
D. As to Discipline of Employees in the Boilermakers'
Unit '
Respondent argues that the statutory merits of its"1980
discipline of Boilermakers-represented employees- need,..
not be decided since "the issue is one of contract inter-
pretation and should be, left to the parties-a'nd,the arbitra-
tion procedures of the contract."44
The issue may arguably be one of "contract interprets ;,
tions" (see fn. 38) but, more fundamentally, the-case re-,
quires a resolution of employees', statutory rights.under,
circumstances where it is alleged that Respondent violat-
ed Section 8(a)(1) and (3) of the Act. The Board will not;
defer to a potentially, available arbitration forum the res-
olution of complaints alleging, as herein, that: employees' ,
rights under Section 7i of. the- Act have, been ' violated
General American Transportation Corp.,, 228- .NLRB 808
(1977); cf. Roy Robinson Chevrolet,., 228(.NLRB _ 828.
43 As the Ninth Circuit 's opinion noted (ibid, emphasis . added) ! • ; r ;
The failure to obtain a contractual confirmation of- a right is evi-
dence of waiver, e g , Rockaway News Supply Co, supra,-345 U S at
80 [parallel citation omitted],ionly 'iif it shows'that the : union thought
the right had been waived -by other'provisions of the contract and sought
to regain the right (Emphasis added ] i'i ' : ' _ 1 11 ' .-
Where, as here, there is no evidence that 'OCAW - believed ! that it had
elsewhere waived the right of employees to•engage in'sympathy .stnkes,-
and especially where it expressly insisted at all times' that such right exist-
ed whether nor not it was embodied in the contract , the bargaining histo-
ry relied on by Respondent is plainly inadequate in law to establish its
waiver defense
44 R Br 20"..'-
(1977). Accordingly, Respondent 's first argument must
be rejected..
Addressing the merits , I conclude on this de novo
record , as did the "waiver" majority in Chevron I, and
for substantially the same reasons, that the Boilermakers
did not clearly and unmistakably waive the right of em-
ployees , under Sections 7 and 13. of the Act to engage in
sympathy- strikes merely by agreeing to continue the tra-
ditional no-strike language in, the labor agreement, and
under circumstances where its failure to obtain its -pro-
posed picket line • clause was accompanied by statements
at the .bargaining table that it still believed that the stat-
ute conferred such rights even if the labor agreement did
not expressly acknowledge the same.
The only difference that I can discern between the
record before the Board on this issue in Chevron I and
the record before me is, as I noted earlier , the presence
here of affirmative' evidence that the ' Boilermakers
always took the position at the bargaining table in con-
nection , with their proposed picket line clause (even
when withdrawing the proposal ) that they believed that
employees - had the legal right to engage in sympathy
work stoppages.45
On this record , therefore, the Boilermakers did not
waive employees ' rights to engage in sympathy strikes. It
therefore follows that Respondent violated Section
8(a)(1) and •(3) 'of the Act by disciplining employees in
the Boilermakers unit for - respecting the picket lines es-
tablished in 1980 by the OCAW locals in furtherance of
their respective lawful primary strikes.
CONCLUSIONS OF. LAW
1. Respondent is an employer' engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. - Oil, Chemical & Atomic Workers International
Union , Local 1-547 and International Brotherhood of
Boilermakers , Iron Shipbuilders , Blacksmiths , Forgers,
and Helpers, Local- No..351, AFL-CIO each are labor
organizations within , the meaning of Section 2(5) of the
Act. , -, , ,
.3:' Neither : of ' the ' above-named labor organizations
waived the rights under Sections 7 and 13 of the Act of
employees - in the units- which each represented to refuse
to,cross or work behind picket lines at Respondent's El
Segundo . refinery established by other labor organiza-
45 Apparently, it was'not as clear on the record in Chevron I that this
was the case There, the Board adverted only to the testimony of Boder-
makers" agent Bowlin, regarding what the union "wanted" (244 NLRB
1083 fn 11) This was arguably a mere statement of the Boilermakers'
subjective intent, and, to that extent, was of doubtful probative value
Keller-Crescent, 217 NLRB at 690 For this reason, I rejected similar testi-
mony and documentary evidence about the subjective ;'understanding" or
"intentions', which OCAW's and the Boilermakers' bargaining agents
brought 'with them to 'the bargaining table, and I pronounced that what
the-parties actually said to one another on the subject would-be of con-
siderably greater value in determining the waiver issue (see, e g, Tr
15915-20, 168-15-169-3, 170 3-19) Whether those evidentiary rulings
were correct would not seem to affect the result herein since it is estab-
lished, as noted, supra , that the Boilermakers specifically communicated
to Respondent their position that employees had sympathy strike rights,
even if Respondent was unwilling to have those rights reflected in the
labor agreement , - - - '
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions who were themselves picketing lawfully in further-
ance of a lawful, economic strike.
4. By disciplining employees represented by the above-
named labor organizations because they refused to cross
or work behind lawful primary picket lines established
by other labor organizations , Respondent has interfered
with, restrained, and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act, and has fur-
ther discriminated against employees in order to discour-
age membership in, or activities on behalf of, labor orga-
nizations , and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
THE REMEDY
Inasmuch as the record reflects that Respondent issued
wrongful disciplinary suspensions and warnings to each
of the employees named on the attached Appendix B,
with the exceptions of C. Cigliano, Chris K. Colby, W.
P. Heacock , Paul D. Kleinman , V. A. McNamara, G. A.
Peters, A. D. Pulido, G. Y. Shinsato, and H. N. Miller'46
I have included in my recommended remedial order that
Respondent cease and desist from engaging in such
wrongful actions, that it -expunge from its records the
warnings thus issued or any references thereto, that it
take no further disciplinary action against those employ-
ees based thereon or linked thereto, that it make employ-
ees thus disciplined whole, with interest, for any losses of
wares or benefits which they may have suffered as a
consequence of Respondent's unlawful conduct,47 and
that it post a remedial notice to employees at its El Se-
gundo refinery.
[Recommended Order omitted from publication.]
46 As is recited in the preamble to the Appendix B Joint Stipulation
and Motion (omitted from publication), these named employees received
discipline for reasons unrelated to the cases at bar and their names were
included in the Joint Stipulation by inadvertence Accordingly, they are
not included in the recommended 'remedy
40 All amount necessary to make employees whole in accordance with
the provisions of the recommended Order are to be computed in accord-
ance with the general guidelines and principles established in F W. Wool-
worth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 657
(1977)
1