Montana-Dakota Utilities Co.

National Labor Relations Board - Board Decisions

Apr 19, 1971

189 N.L.R.B. 879 (N.L.R.B. 1971)

MONTANA-DAKOTA UTILITIES CO. 879
Montana-Dakota Utilities Co. and System Council
U-13, International Brotherhood of Electrical
Workers, AFL-CIO. Case 18-CA-2936
April 19, 1971
DECISION AND ORDER
On September 17, 1970, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions and a supporting brief,
and requested oral argument.
The National Labor Relations Board, having
granted Respondent's request, heard argument before
it on March 1, 1971.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, the
oral argument, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Montana-Dakota Utilities Co.,
Rapid City, South Dakota, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.I
MEMBER KENNEDY, dissenting:
An extension by the majority of the doctrine first
enunciated by the Board in Redwing Carriers, 137
NLRB 1545, modifying 130 NLRB 1208, is, in my
view, unwarranted. A grant of immunity to employees
from disciplinary action for failure to cross an
"informational" picket line or a picket line established
and maintained at another employer's premises by a
union which is not the collective-bargaining repre-
sentative of such employer's employees which does
not seek recognition from such employer nor has an
organizational objective, and where the employees of
such employer are not engaged in a strike, cannot, in
my opinion, be supported in logic or law
As I view the facts in this case, the picketing
engaged in by the West River Building Trades
Council was "informational" in character; i.e., its
intent was to indicate to the public the union's belief
that the housing project was being constructed under
substandard wages, hours, and working conditions.
Cf. Carpenters Local No 2133, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO
(Cascade Employers Association, Inc.), 151 NLRB
1378, 1382; Local 3, International Brotherhood of
Electrical Workers, AFL-CIO (Jack Picoult), 144
NLRB 58. The union did not represent, for collective-
bargaining purposes, any employees of the picketed
employer, Buckingham Wood Products Company,
and no contention has been made that the union was
seeking recognition or had an organizational objec-
tive. There is no evidence that anyone was on a strike,
or that the employees of Buckingham were engaged in
other protected activities against their employer. In
such circumstances, I am unable to view the picketing
as a "signal" to organized labor to cease work or to
refuse to enter the picketed premises, or one in which
union members are requested to "plight their troth
with the strikers." Cf. N.L.R.B. v. Southern Greyhound
Lines, 426 F.2d 1299(C.A. 5, 1970). Since there was no
one on strike, it is difficult for me to see who was
engaged in protected activities and with whom the
disciplined employees were asked to join in a common
cause. Cf. Local 1516, International Brotherhood of
Electrical Workers, AFL-CIO (Mercantile Bank), 172
NLRB No. 78. Accordingly, I would deem that
refusal by the Respondent's employees to cross the
picket line here involved unprotected and would
dismiss the complaint.
I In footnote 10 of the Trial Examiner's Decision, substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: This case, initiated by
a charge filed on March 9, 1970, and the complaint issued
on May 28, 1970, was tried before me at Rapid City, South
Dakota, on June 17 and 18, 1970. The complaint alleges
that Respondent violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by giving a 30-day
suspension to eight of its employees for refusing to work
behind a picket line at a jobsite to which they were
assigned. Respondent filed an answer in which it denied
that the suspensions were in violation of the statute. Each of
the parties filed briefs on or about August 3, 1970.
Upon the entire record in this case and after a careful
consideration of the beefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a public utility corporation primarily
engaged in providing electric power and natural gas to
consumers located in North Dakota, South Dakota, and
Montana. It maintains a branch office in Rapid City, South
Dakota, where the alleged unfair labor practices took place.
During the year preceding the issuance of the complaint,
Respondent purchased goods valued in excess of $ 5,000,000
189 NLRB No. 111
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from sources located outside the States of North Dakota
and South Dakota for use in its operations and for sale to
its customers located within North Dakota and South
Dakota. On the basis of these undisputed facts, it is found
that Respondent 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 Charging Party, System Council U-13, International
Brotherhood of Electrical Workers , AFL-CIO, herein
called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
A The Issues
It is undisputed that Respondent on February 26, 1970,
gave 30-day disciplinary suspensions to eight of its
employees for refusing to perform work assigned to them at
a jobsite which was being lawfully picketed by a union
other than that representing these eight employees The
question presented is whether Respondent could lawfully
take this disciplinary action under applicable law or under
its contract with the Union.
B. The 30-Day Suspensions
At all times pertinent herein, Respondent was engaged,
among other things, in the laying of an underground
branch gas pipeline and distribution system at the Lakota
Community Homes Housing Project (herein called the
Project) in Rapid City. This project is being developed by
Buckingham Wood Products Company, the general
contractor, which was constructing 100 homes.
The eight employees here involved had been assigned by
Respondent to work on this jobsite.i It was the practice of
these eight as well as Respondent's other employees to
report at Respondent's warehouse each morning to receive
their assignments for the day Pursuant to their assignments
on the morning of February 25, 1970, these eight employees
reported to the Project for the purpose of performing their
assigned tasks. They were met at thejobsite by pickets from
the West River Building Trades Council (with which their
own union was in no way affiliated) carrying signs which
read as follows
This housing project is being built by Buckingham
Wood Products Company under substandard wages,
hours and working conditions for all employees.
Each of the eight independently decided that he did not
want to work behind a picket line and returned to the
warehouse to advise his supervisor of the situation.
At about 10.30 that morning Respondent's division
manager, Norton Lawellin, met with the eight men and
their union steward, Calvin McLean He told them that it
was important that they return to thejobsite and complete
i These eight employees were James Bradeen, Louis Feller, Harvey
Graff, John Holmes, Jerry Moore, John Oliver, Vearl Peck, and Leo
Quinn
2 Also on February 25, following the afternoon meeting with Lawellin,
McLean got in touch with the president of the Building Trades Council
and ascertained from him that the picketing was directed solely against the
their work because completion of the work meant 100 new
customers from new homes which Respondent expected to
service. He stated that he anticipated that there might be
picketing at other jobsites during the summer, that
Respondent did not want to reschedule its work every time
the men ran into a picket line and that he intended to "mp
in the bud" any work stoppages occasioned by such picket
lines. He asked the men to discuss the matter with their
union steward and expressed the hope that they would
reconsider their action.
The men did meet with their union steward immediately
thereafter but each stated that he was unwilling to work
behind the picket line and asked the steward to convey the
decision to Lawellin. McLean did so. Lawellin refused
McLean's request that the men be assigned to other work
and suggested that since they were not being paid, they
might as well go home. Most of them did go home after
McLean conveyed this message to them
At a further meeting called by Lawellin for 4:30 in the
afternoon, five of the eight men (the only ones the steward
was able to locate) were present. Lawellin repeated much of
what he had said in the morning meeting and added that he
could expect each of the eight to report for work on the
Project the next morning and that each who did not report
would be given a disciplinary suspension of employment
for 30 days, commencing as of February 25. The three who
were not present at the meeting were soon thereafter
informed of what Lawellin had said.2
Each of the eight continued to refuse to work behind the
picket line and none was recalled to work prior to the
expiration of his 30-day suspension period.
The picketing lasted only a week. Union Steward
McLean kept in touch with the Building Trades Council
and the progress of the picketing. During the evening of
March 3, upon learning that the pickets had been
withdrawn from the jobsite, he immediately telephoned
Division Manager Lawellin and informed him of this fact.
He suggested that Lawellin might want to recall the
suspended employees. Lawellin replied that "perhaps" he
would recall them the next morning.
He did not, however, recall them on the following
morning. Instead, he summoned McLean to his office and
informed McLean that the 30-day suspension was still in
effect and would stay in effect. He added thatjust because
the men had been suspended for only 30 days this time,
they need not expect the same penalty next time-that the
next time they refused to work behind a picket line they
might receive a 60- or 90-day suspension.
The Union thereupon filed a charge with the National
Labor Relations Board, alleging that Respondent had
violated the Act by its 30-day suspension of the eight
employees. This charge, on its face, indicates that it was
signed on Thursday, March 5, but it was not filed with the
Regional Office of the Board until Monday, March 9. Later
in the week commencing March 9, after the charge had
been served upon Respondent and following Lawellin's
general contractor, Buckingham Wood Products, because of substandard
wages and working conditions on the jobsite and that there was no dispute
with Respondent McLean transmitted this information to the eight men
and told them that each employee had to make his own decision as to
whether he would cross the picket line
MONTANA-DAKOTA UTILITIES CO. 881
suggestion that perhaps some compromise could be worked
out regarding the suspension problem, Lawellin and
McLean met upon more than one occasion to discuss the
matter. Lawellin, however, made no offer to reduce the
suspension and rejected a request by McLean that the men
be recalled with backpay for the time they were out. At one
point Lawellin stated that his door was open if the men
wished to talk to him individually about their suspension,
but McLean stated that he had been appointed as their
spokesman and did not believe it was appropriate for
Lawellm to dicker with them on an individual basis.3
Respondent recalled the men and they returned to work on
March 27, at the end of their 30-day suspension period.
During the week of the picketing Lawellm did not assign
any of the other employees to the picketedjobsite because,
as he explained, he believed the other men would also
refuse to cross the picket line and he did not want to be in
the position of having to suspend them too. Neither did
Respondent replace the eight men or any of them with
newly hired employees who might have been willing to
cross the picket line. After the picketing ceased, however,
he did assign some of his men to work on the Project in lieu
of some of those on suspension. After the eight returned to
work some of them were assigned to the Project and others
were not.
C. Respondent's Defenses
In defense of its action in suspending the eight employees
for 30 days, Respondent urges three defenses. (1) that none
of the eight made an unconditional application for
reinstatement at any time; (2) that the employees, aside
from any contract provision governing the situation, were
not engaged in a protected concerted activity in refusing to
work behind the picket line, and (3) that, in any event,
whatever statutory right they may have had to refuse to
work behind the picket line was waived by their bargaining
representative in the contract which had been negotiated in
their behalf Let us now consider each of these defenses.
effect and had no reason to believe that Lawellin did not
mean what he said. If at anytime prior to the end of the 30-
day suspension period Lawellm had been willing to
reinstate the suspended employees, it was up to him to offer
them reinstatement 4 He did not do so even when Union
Steward McLean called him on March 3 to inform him that
the pickets had been removed and suggested that Lawellin
might wish to recall the eight men. Lawellin, while at first
indicating that he might do so, finally informed McLean on
the following day that the suspensions were still in effect
and would remain in effect. In these circumstances, I find it
immaterial that McLean, after the unfair labor practice
charge had been filed, may have demanded reinstatement
with backpay for the suspended employees in an attempt to
settle the whole suspension controversy.
Respondent did offer the employees reinstatement at the
end of the 30-day suspension period and all of the
employees then returned to work. I am convinced that
Respondent had no doubt that the men would have
returned to work at any time after the picketing ceased if
Respondent had recalled them, even though they might
have continued, through their bargaining representative, to
press for the backpay which they believed they were
entitled to. But even if Lawellm had entertained any doubt
on this score, he surely would have put such doubt to rest
by offering to recall the men if he had been willing to
reduce the 30-day suspension. I note that Lawellin even at
the hearing did not say that he would have reinstated the
men prior to the expiration of their 30-day period if they
had applied for reinstatement. It is clear from the record
that he had no intention of reducing the term of the
discipline and that, instead, he wanted to convey the
impression that an even stricter penalty-of perhaps a 60 or
90-day suspension-would follow if the employees again
refused to work behind a picket line.
2. Respondent's contention that, aside from any
provisions of the collective-bargaining agreement,
the employees were not engaged in protected
concerted activity
1. The alleged lack of unconditional applications
for reinstatement
I find no merit whatever in Respondent's asserted
defense that the eight suspended employees made no
unconditional application for reinstatement during the
period of their suspension. Respondent had told them on
February 25 that they would be suspended for 30 days from
that date if they did not report at the Project and start
working there on the following morning. The employees,
upon checking and ascertaining that the picketing was still
in progress on February 26, decided not to cross the picket
line. They knew that the disciplinary suspension was in
3 in its brief Respondent asserts that during these meetings McLean
took the position that the men would return to work only if they received
full backpay for the time lost during their suspension and, taken out of
context, some of the testimony can be construed as supporting this
assertion Nevertheless, I am convinced from the testimony as a whole that
any statements McLean made about reinstating the men with backpay
were made as bargaining demands in an attempt to settle the whole
dispute, including the unfair labor practice charge which had been filed
Respondent concededly never offered to reinstate the men prior to the
expiration of their suspension period, either with or without backpay, and
Respondent's contention that the eight men who refused
to cross the picket line to perform their work were not, even
aside from any prohibition in the collective-bargaining
agreement, engaged in protected concerted activity, must
likewise be rejected. These men were faced with a lawful
picket line at their place of work.5 Acting in the time
honored tradition of organized labor not to cross the lawful
picket line of a fellow trade union member, these eight men
refused to work behind that line. To be sure, the union
conducting the picketing was not their own bargaining
representative and the general contractor against whom the
picketing was directed was not their own employer.
they did return to work without backpay at the end of their suspension
period when Respondent notified them that they could return to work
4 N L R B v Southern Greyhound Lines, 426 F 2d 1299 (C A 5), and
cases cited therein
5 The project was the place of work of these employees during the
period here pertinent Like construction workers generally, they reported to
their employer's address only to receive their work assignments and
performed all their work at whatever jobsite to which they might be
assigned
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevertheless, as the Board held in Redwing Carriers, Inc.,
137 NLRB 1545, modifying 130 NLRB 1208, affirmed sub
nom. Teamsters, etc, Local Union No 79 v N.L.R.B., 325
F.2d 1011 (C.A.D.C.), such "employees engage in protected
concerted activity when they respect a picket line
established by other employees. Such activity is literally for
`mutual aid or protection,' as well as to assist a labor
organization within the meaning of Section 7." The
Redwing decision, issued in March 1961, has been
consistently followed by the Board, with court approval.6
The Board, however, in Redwing Carriers and subsequent
cases has also consistently held that this protected right of
the employees must be balanced against the specific
business interest of the employe and "it is only when the
employer's business need to replace the employees is such
as clearly to outweigh the employees' right to engage in
protected activity that an invasion of the statutory right is
justified" (Overnite Transportation case, at 1274). In
balancing these opposing rights, the Board holds that the
employer's business interests are paramount and his
termination or suspension of employees isjustified where it
is clear that the employer "acted only to preserve efficient
operation of his business , and terminated the services of the
employees only so it could immediately or within a short
period thereafter replace them with others willing to
perform the scheduled work." (Redwing Carriers, Inc,
supra, at 1547.) This is not a right of the employer to
discharge, suspend, or discipline but only a right to "run his
business" (Swain and Morris Construction Co., 168 NLRB
147, enfd. 431 F.2d 861 (C.A. 9).
Respondent here has not met the Redwing test. It is clear
from the record that the suspensions were not solely for the
purpose of preserving the efficient operation of Respon-
dent's business . They were punitive in nature. They were
meant to discipline the eight employees for refusing to work
behind the picket line and to discourage similar refusals in
the future. The duration of the suspensions had no relation
to the period during which the employees might be
unwilling to work on the Project because of the picketing.
Instead of recalling the eight employees a week later when
the pickets were withdrawn, Respondent informed the
employees through their bargaining representative that the
suspensions would remain in effect and that if the
employees again refused to work behind a picket line in the
future they might be given even stiffer penalties. Moreover,
Respondent does not contend that there were no other jobs
to which it could have assigned the men while the picketing
was in progress . The record also shows that Respondent
made no attempt to replace the eight suspended employees
with others who might be willing to perform their assigned
duties while the picketing was in progress . Instead , it waited
until after the pickets were withdrawn and the suspended
employees were willing to perform work on the Project
before sending anyone else to do the work.
It is accordingly found that Respondent suspended the
6 See thorough analysis of these cases by Trial Examiner William F
Scharnikow in Smith Transit, Inc, et al, adopted by the Board in 176
NLRB No 141, enfd sub nom Teamsters, etc, Local Union 657 v N LR B,
429 F 2d 204 (C A D C) Accord- Alamo Express, Inc, 170 NLRB No 26,
enfd 430 F 2d 1032 (C A 5), Overrate Transportation Company, 154
NLRB 1271, enfd 364 F 2d 682 (C A D C ), Overnite Transportation Co,
164 NLRB 72, 74, Thurston Motor Lines, Inc, 166 NLRB 862 See also
eight employees, not for the purpose of preserving the
efficient operation of its business and in order to replace
these employees temporarily with others willing to work
behind the picket line, but because they refused to cross the
picket line. The suspension was therefore in violation of
Section 8(a)(1) of the Act unless Respondent, under its
contract with the Union, was permitted to take this
disciplinary action. We now turn to this issue.
3. The pertinent contract provisions and bargaining
history
Respondent contends that in any event, it was warranted
in issuing the 30-day disciplinary suspension order against
the eight employees by reason of certain provisions in its
current collective-bargaining agreement with the Union.
(a) The no-strike, no-lockout provision
One of these provisions, labeled the "Public Obligation"
clause and also known as the no-strike, no-lockout clause
(article III, section 1), reads as follows:
It is recognized that the Company is engaged in public
service requiring continuous operation, and it is agreed,
in recognition of such obligation of continuous service
that, during the term of this Agreement there shall be no
collective cessation of work by members of the Union
and the Company will not lock out the employees
covered by this Agreement on account of any
controversy respecting the provisions of this Agree-
ment. All such controversies shall be handled as
provided herein. Articles VIII and IX of the contract
establish grievance and arbitration procedures for
settling misunderstandings "respecting the interpreta-
tion, construction, intent or meaning" of any provision
of the contract.
The General Counsel and Union read the no-strike, no-
lockout provision, msofar as it applies to the union as
providing that "there shall be no collective cessation of
work by members of the Union . . . on account of any
controversy respecting the provisions of this Agreement."
They argue that this provision is inapplicable to the action
taken by the eight men because their refusal to cross the
picket line at the Project was unrelated to any dispute
cognizable under the contract. Respondent, on the other
hand, stresses the importance of the preamble in interpret-
ing the meaning of the provision. Because the parties in the
preamble recognize the importance of Respondent's
obligation to supply continuous service to the public,
Respondent argues that the contract provision should be
interpreted as prohibiting any collective cessation of work
by employees even if the controversy giving rise to the work
stoppage had nothing to do with an interpretation or
application of the terms of the contract. This interpretation
would permit Respondent to lockout its employees when no
controversy concerning the provisions of the contract
NLRB v Rockaway News Supply Co, 197 F 2d 111, 112-113 (C.A 2),
and dissenting opinion in 345 U. S 71, 81-82, in which the majority opinion
did not reach this issue . The Board has not followed the apparently
contrary decision of the Court of Appeals for the Seventh Circuit in
N LR B v Illinois Bell Telephone Co, 189 F 2d 124, cited by Respondent
in its brief
MONTANA-DAKOTA UTILITIES CO. 883
existed, despite the importance of its obligation, spelled out
in the preamble, to supply continuous service to the public,
while denying the employees an analogous right. I find it
more reasonable to infer that the parties meant to apply the
same standards to both the employees and the employer
and that only those collective cessations of work and
lockouts arising out of a controversy respecting the terms
of the contract (which could be handled under the
contract's grievance and arbitration machinery) were
meant to be prohibited by the no-strike no-lockout
provision.?
It is noted, moreover, that the parties themselves while
bargaining for a contract obviously believed that the no-
strike, no-lockout provision did not cover situations where
employees might refuse in the course of their employment
to cross a picket line of a union other than their own and
that it was for this reason that each party desired to
negotiate a picket line clause. I find that the no-strike, no-
lockout provision of the contract did not warrant
Respondent in suspending the eight employees here
involved.
(b) The picket line clause
Another provision relied on by Respondent is article
XVI, section 20, known as the picket line clause. It states:
It shall not be cause for discharge if any employee or
employees refuse to go through an authorized picket
line of any Union. Nor shall the Union impose, or
threaten to impose, any disciplinary action upon any
member for going through a picket line of any Umon
other than its own.
This provision, though constituting a waiver by the
employer of his right to discharge employees who refuse to
cross a picket line, in order to replace them with other
employees willing to do so, is silent as to any right of the
employer to take other action against employees for
view of the bargaining history regarding this picket line
clause, the omission of any mention of a right by the
Employer to discipline employees for refusing to cross a
picket line should be interpreted as a waiver by the Un-
ion of any objection to disciplinary action by the Employer.
Evidence regarding this bargaining history was received
and is summarized below.
During the course of negotiating the current contract,
which is effective from December 15, 1969, to June 30,
1971, the Union proposed the inclusion of a picket line
clause in the contract and Respondent agreed that such a
clause would be desirable. Previous contracts between the
parties have not contained such a clause. The parties being
unable to agree upon the content and wording of such a
provision after all other provisions of the contract had been
agreed upon, referred this matter to their respective counsel
to negotiate These were Respondent's general counsel,
William S. Murray, and the Union's counsel, David
Weinberg. The stumbling block in the negotiations between
these attorneys was the Union's proposal that the clause
should provide that it would not be a violation of the
agreement or a clause for a discharge "or discipline" if any
employee or employees refused to go through the
authorized picket line of any union. Respondent, though
willing to forego any right it might have to discharge an
employee who refused to go through a picket line, was
unwilling to agree that it would not discipline such an
employee. Murray contended that Respondent had a legal
right, which it would not relinquish, to discipline employees
for refusal to cross a picket line and expressly provided for
a right to discipline in its counterproposal to the Umon.
Weinberg contended that Respondent had no such legal
right. He even cited some Board or court cases to Murray in
support of his contention the Respondent had no legal right
to discipline employees for refusing to go through an
authorized picket line but Murray did not agree that the
cases were applicable. The parties appeared to have
reached an impasse at one point.
This impasse was finally resolved in late December 1969,
when Murray submitted alternative proposals in which the
word "discipline" was omitted from the reference to what
action the Employer might not take against any employee
refusing to cross a picket line. In his letter of December 23,
1969, submitting the alternative proposals, Murray stated
that one of them marked "B-1" was the same as
Respondent's prior proposal "except that 'B-l' has
eliminated the phrase at the beginning, 'It shall not be a
violation of this agreement and,' which is somewhat
surplus." The other proposal marked "D" Murray de-
scribed as "simply a broad statement as to noninterference
with the existing rights of the parties." 8 The proposal
marked "B-1," which the Umon accepted, is that
incorporated in article XVI, section 20 of the contract, set
forth above.
In his letter of December 30, notifying Murray of the
Union's acceptance of the proposal "B-1," Weinberg
stated:
It is the position of the Union that the picket line clause
has been agreed to by all parties and shall be
incorporated in the collective bargaining agreement as
above written. By agreeing to this clause, the Union
does not waive any of its legal rights accorded to it
under applicable federal and state law.
In his letter of December 31, acknowledging Weinberg's
letter and confirming their understanding, Murray added:
"By agreeing to this clause, the Company does not waive
any of its legal rights accorded to it under applicable
Federal and state law, as you state the Umon does not."
A careful consideration of this bargaining history
regarding the picket line clause compels me to reach the
same conclusion which I would reach independently of any
bargaining history. The waiver of a statutorily protected
right should not be lightly inferred. Mastro Plastics Corp v.
N.L.R.B., 350 U.S. 270; Timken Roller Bearing Co v.
N.L.R.B., 325 F.2d 746, 751 (C.A. 6). The Employer, in the
7 See Hoffman Beverage Co, 163 NLRB 981 Union other than his own, it is recognized that an individual employee
s Proposal "D" reads has certain rights conferred by appropriate statute and court decisions,
With respect to the crossing of or refusal to cross a picket line of a as do the employer and the bargaining Union
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of the picket line provision would have had a right,
in the interest of continuing its business responsibilities, to
discharge an employee who refused to cross a picket line in
order to replace him with someone else who might be
willing to cross the picket line. It waived the right to
discharge. The Union waived only what right it may have
had to impose disciplinary action upon a member for going
through a picket line of a union other than his own. No
other rights may be said to have been waived either under
the express terms of the contract or by implication from the
bargaining history. Except as specifically limited in the
picket line provision, the rights of each of the parties
remained as they were before the contract was made.
The chief controversy during the bargaining sessions
between Murray and Weinberg centered on their differing
opinions regarding the preexisting rights of the Employer
and employees. This difference in their views apparently
persisted up to the time the contract was signed and even at
the hearing. The letters exchanged between Murray and
Weinberg at the time they agreed upon the picket line
provision reflect their recognition that Board or court
action might be required to finally resolve the respective
legal rights of the parties should the employer care to put to
a test this previously announced declaration that it had a
right to discipline employees for refusing to cross a picket
line.
Since, as found herein, the picket line provision of the
contract did not confer upon Respondent any right to
discipline employees for refusing to work behind a picket
line, it follows that the Respondent violated Section 8(a)(1)
of the Act by imposing a 30-day suspension upon the eight
employees who refused to perform their assigned duties at
the Project while the picketing there was in progress.
that any attempt by it to assign them other work would
have caused a further disruption of work schedules and
substantial inconvenience to Respondent An employer is
not required to furnish other work to employees who refuse,
in the exercise of their legal rights, to do the work assigned
to them. Clearly, in the absence of any intent to discipline
the employees, Respondent would have had a right to
refuse to assign other work to the eight men and to refuse to
pay the men for the period of the picketing when they were
not working. It is noted that on the morning of February
25, before Lawellin had decided to suspend the men, he told
them that he did not intend to reschedule the work which he
had planned long in advance in order to furnish them with
work other than that already assigned to them and
announced that they would not be paid for the time when
they were not working. It is a fair inference, therefore, that
even in the absence of any unfair labor practice by
Respondent, the men would not have received other work
and would not have been paid for the period during which
the picketing was in progress. It is the object of a remedial
order to restore the aggrieved person as nearly as possible
to the situation he would have found himself in but for the
wrong done him. To require Respondent to make the eight
employees whole for wages lost during the week of the
picketing when they would not have been working anyway
would not effectuate any policy of the Act but would,
instead, be contrary to the policies of the Act. My
Recommended Order will accordingly require Respondent
to make these employees whole by giving them backpay
only for the period from March 4, the day after the pickets
were withdrawn, through March 26, the last day of their
suspension, less any sums earned by them at other
employment during this period.
CONCLUSIONS OF LAW
1. In giving a 30-day disciplinary suspension to employ-
ees James Bradeen, Louis Feller, Harvey Graff, John
Holmes, Jerry Moore, John Oliver, Vearl Peck, and Leo
Quinn, because they refused, in the course of their
employment, to cross a lawful picket line of a union other
than their own at their work sites, Respondent violated
Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has violated
Section 8(a)(1) of the Act, my Recommended Order will
require that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
The General Counsel contends that since Respondent
suspended the eight employees as disciplinary, or punitive,
action for their refusal to work behind the picket line, it
should be required to make them whole from the date of
their suspension rather than merely from the date the picket
line was withdrawn. Although I agree that Respondent's
action was punitive in nature, it is also clear that the
employees' refusal to work behind the picket line caused a
disruption of Respondent's planned work schedules and
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is hereby ordered that Respondent,
Montana-Dakota Utilities Co. its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Issuing disciplinary suspensions to employees because
they refuse to cross a lawful picket line at their work situs.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make whole the employees listed below for any loss of
wages suffered by them as a result of the disciplinary
suspensions given them by paying them backpay for the
period from March 4 through March 26, 1970, less any
sums earned by them at other employment during this
period:
James Bradeen Jerry Moore
Louis Feller John Oliver
Harvey Graff Vearl Peck
John Holmes Leo Quinn
MONTANA-DAKOTA UTILITIES CO. 885
(b) Post at its Rapid City, South Dakota, place of
business copies of the attached notice marked "Appendix."9
Copies of said notice on forms provided by the Regional
Director for Region 18, after being duly signed by the
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or covered
by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Decision, what steps Respondent
has taken to comply herewith.10
9 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
is In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT issue disciplinary suspensions to any of
our employees because they refuse to cross a lawful
picket line at their work situs.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise of
their rights guaranteed under Section 7 of the National
Labor Relations Act.
WE WILL make whole the employees listed below for
any loss of wages suffered by them as a result of our
disciplinary suspensions of them during the period from
March 4 through March 26, 1970:
James Bradeen Jerry Moore
Louis Feller John Oliver
Harvey Graff Vearl Peck
John Holmes Leo Quinn
MONTANA-DAKOTA
UTILITIES CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other ir_atenal.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 316
Federal Building, 110 South Fourth, Minneapolis, Minnea-
sota 55401, Telephone 612-725-2611.