Chevron, U.S.A., Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1989

296 N.L.R.B. 526 (N.L.R.B. 1989)

526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Chevron , U.S.A., Inc . and Oil, Chemical & Atomic
Workers International Union, Local 1-547.
Case 31-CA-9778
September 14, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 19, 1989, Administrative Law Judge
Timothy D. Nelson issued the attached supplemen-
tal decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Chevron,
U.S.A., Inc., El Segundo, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' In adopting the judge's supplemental decision , we accept Oil Workers
Local 1-547 v. NLRB, 842 F.2d 1141 (9th Cir 1988), as the law of the
case, and are therefore required to apply Operating Engineers Local 18
(Davis-McKee. Inc), 238 NLRB 652 (1978), in deciding this case . Accord-
ingly, we agree with the judge that deferral to a 1978 arbitration award
in favor of the Respondent is inappropriate because the award was not
susceptible to an interpretation consistent with the Act under Davis-
McKee and therefore deferral to the award would be clearly repugnant to
the Act We find it unnecessary to adopt the judge's additional findings
pertaining to deferral
Julia Osborn, Esq., for the General Counsel.
Richard D. DeLuce, Esq. (Lawler, Felix & Hall), of Los
Angeles, California, for the Respondent.
Gregory Mooney, Esq., of Long Beach, California, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge.
This case, which was originally tried before me on De-
cember 16, 1980, is before me for the second time pursu-
ant to the Board's unpublished order reopening record
and remanding proceeding to administrative law judge
for further hearing, dated December 13, 1988.1 The
' The Board 's remanding Order was delivered to the Judges Division,
West Coast branch offices, on January 17, 1989
Board's remand in turn, stems from an order of the
United States Court of Appeals for the Ninth Circuit,
issued March 28, 1988,2 reversing the Board's 1985
Order dismissing the complaints and remanding the case
to the Board for examination of certain "extrinsic evi-
dence" of the parties' "intent" in negotiating the no-
strike clause in their 1979-1981 agreement.
Acting pursuant to the Board's remand, I conducted a
conference call among the parties on January 24, 1989,
issued orders upon remand on January 26, 1989, and con-
ducted a supplemental hearing of record in Los Angeles,
California, on March 14, 1989, at which time I received
the parties' written and oral stipulations of fact, estab-
lished a briefing deadline of April 7, 1989, and closed the
record.
On the entire record, and on due consideration of the
parties' briefs, I make these
1. FINDINGS OF FACTS4
A. My Original Decision; the Board 's Reversal
At this stage this case is complicated enough to war-
rant both a summary of my original findings and reason-
ing relevant to the present issues and a review of the sig-
nificant changes in centrally controlling law which oc-
curred at the Board level in the roughly 4-year period
that elapsed between my decision sustaining the com-
plaint and the Board 's eventual reversal and dismissal of
the complaint.
In my July 22, 1981 decision5 I concluded that Chev-
ron, U.S.A., Inc. (Respondent) had unlawfully disci-
plined employees represented by OCAW Local 1-547
(Union) because those employees , on January 28, 1980,
had honored picket lines established by an OCAW sister
local-this "sympathy" activity on the employees' part
having been taken at a time when the Union and Re-
spondent were bound to a labor agreement containing a
no-strike clause which had remained unchanged through
decades of successive contracts between those parties.6 I
found , applying the standards enunciated by the Board in
2 Oil Workers Local 1-547 v NLRB, 842 F 2d 1141 (9th Cir 1988)
S Chevron. US.A, Inc., 275 NLRB 949 (1985)
4 Based on a thorough review of the entire record , I hereby reaffirm
all findings of fact relevant to this case made in my underlying decision,
except those which are clearly inconsistent with supplemental or correct-
ed findings , below In this latter regard, see, especially , my finding
below, consistent with the circuit 's remanding opinion, that two separate,
successive, agreements (one covering 1977-1979, the other covering
1979-1981) governed the parties' labor relationships between 1977 and
the date of the January 1980 sympathy strike at issue here . This corrects
my original finding that a single 4-year agreement bound the parties in
the period 1977-1981
5 Text appearing in 1985 Board Order, supra , 275 NLRB at 950-958
My original decision and the Board 's own decision also involved two ad-
ditional consolidated cases in which Boilermakers Local 351 was a charg-
ing party Those Boilermakers cases are not at issue for present purposes.
As a separate caveat , those cases are to be distinguished from the "Chev-
ron-Boilermakers case" I advert to elsewhere below
6 This is the traditional no-strike language , which continued to be in-
cluded in the 1977-1979 and 1979-1981 contracts between the parties:
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
296 NLRB No. 73
CHEVRON, U.S.A.
Davis-McKee,' standards that had been more recently in-
voked by the Board in lengthy dicta in a different case
involving Respondent 's disciplining of Boilermakers-rep-
resented sympathy strikers in 1977,8 that the Union had
not waived the unit employees ' rights to engage in such
"sympathy" activity by agreeing to the no-strike clause.
In this connection , I took note of no-strike clause discus-
sions between the parties between December 1976 and
January 1977, in the context of bargaining for the agree-
ment which eventually became effective on February 23,
1977 (the 1977- 1979 contract). I found , inter alia, that
the Union had first proposed new no -strike language cal-
culated to "clarify" the rights of unit employees to honor
"any picket line established at the employer 's premises or
elsewhere," but had later withdrawn that "clarifying"
language on January 7 , 1977, acquiescing in the contin-
ued inclusion in the 1977- 1979 contract of the traditional
no-strike language . I further found , however, that the
Union 's withdrawal of its proposed new language did
not operate as a "clear and unmistakable waiver" (the
overarching waiver standard ) of sympathy strike rights,
particularly where its agents had simultaneously declared
that its withdrawal of the "clarifying" language was
"without prejudice" to its position , reiterated at the time
of the withdrawal of the proposed new clause , that em-
ployees already had the "legal right" to sympathetically
honor a picket line. Thus, I found , in substance, that the
continuing inclusion of the traditional no-strike language
in the contract , which became effective on February 23,
1977, did not support Respondent 's "waiver" defense be-
cause the no-strike clause alone was not enough to estab-
lish waiver, and the extrinsic evidence-particularly the
1977 bargaining history-showed that the Union at no
time had acquiesced in the view that the no-strike lan-
7 Operating Engineers Local 18 (Davis-McKee, Inc.), 238 NLRB 652
( 1978), holding pertinently (id at 652-653) 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 par-
ties, at the very least , have discussed the question and, preferably,
have expressly embodied in their agreement their intent to extend a
strike ban to sympathy strikes
In summarizing , the Board stated (id at 654), "broad no-strike clauses,
without more, are insufficient to establish waiver of the right to engage
in sympathy strikes."
I Chevron U.S.A., Inc., 244 NLRB 1081, 1084 (1979) (referred to as
"Chevron f' in my original decision , but which I now refer to below as
the "Chevron-Boilermakers case") There, the administrative law judge,
writing before the Davis-McKee decision , had found substantially in favor
of Chevron on one of its two defensive contentions-that the no-strike
clause in the Boilermaker 's contract waived at least some types of sympa-
thy strike rights (The judge had found insufficient evidence , however, to
support Chevron 's other defense-that the Boilermakers' sympathy strike
was in any case unprotected because it was taken in furtherance of pick-
eting by the Operating Engineers, which was unlawfully "secondary" in
character under Sec 8(b)(4)) But the Board reached virtually opposite
results Thus, citing Davis-McKee and other cases, two members on the
Board 's three-member panel rejected the judge 's finding that the Boiler-
makers no-strike clause operated as a waiver of sympathy strike rights. A
different mix of two members, however , constituted the majority which
nevertheless dismissed the complaint on the second ground urged by
Chevron-that the Boilermakers' honoring of the Operating Engineers'
picket line was not statutorily protected activity because the Operating
Engineers ' picketing was itself unlawful secondary boycott activity As I
commented in my underlying decision, Respondent thus "won" the Chev-
ron-Boilermakers case, "but only on a ground which is not available to it
in the instant case " Indeed , Respondent "lost" on the "waiver" question,
on a relevant factual record which is roughly comparable to this one
527
guage encompassed sympathy strikes and, indeed, had
consistently taken a contrary position.
I also declined to defer to the 1978 disposition by an
arbitration panel (on a 2- 1 vote) of an unrelated griev-
ance in which the panel chairman (writing for the panel
majority) had construed the language of the no-strike
clause as necessarily encompassing sympathy strikes.9 I
declined to defer to the arbitrator's decision on two inde-
pendent grounds : First, I concluded that Respondent had
failed to establish that the arbitrator had "considered"
the statutory issue ; indeed, I noted that the arbitrator had
expressly limited himself to "interpreting the contract at
bar"-and had decided that such an interpretation
"would not be affected by a determination in the Boiler-
maker matter"-this latter being a reference to the then-
pending "Chevron -Boilermakers" case, supra, which
raised a substantially similar statutory issue . I thus con-
cluded that Respondent , as the party urging deferral, had
failed to carry its threshold burden to sustain deferral, as
that burden had been defined by the Board in Suburban
Motor Freight.10 Second, and independently, I found the
arbitrator 's decision "repugnant" to the Act, within the
meaning of Spielberg. 11 In this regard, I reasoned that
even if the arbitrator 's "interpret [ing] the contract at
bar" were construable as having addressed the statutory
issue, the arbitrator nevertheless had "failed to employ a
mode of analysis required by the statute ," i.e., application
of the "clear and unmistakable waiver" standard , particu-
larly as that standard had been enunciated in Davis-
McKee, requiring something more than a general no-
strike ban to infer a union waiver of sympathy strike
rights . I thus concluded that the arbitrator's reliance
solely on the no-strike language in the contract had
"tainted" the arbitral result and precluded it from being
a deference-worthy substitute for the Board's own au-
thority to decide the statutory issue.
In declining to defer to the arbitrator's analysis of the
no-strike clause 's applicability to sympathy strikes, and in
deciding the merits , I failed to note that the arbitrator's
decision had interpreted a different contract from the
one in effect during the January 1980 sympathy activity
at issue here . Indeed , as the Ninth Circuit pointed out in
its remanding order, t z I presumed that "one four-year
agreement" had been continuously in effect between
1977 and 1981 . In fact, everyone now agrees-and the
9 In the grievance presented to the arbitration panel, Respondent had
disciplined employees represented by the Union who, in August 1977,
had honored a picket line established by the Operating Engineers (i e, the
same Operating Engineers ' picketing which triggered Respondent 's disci-
plining of Boilermakers unit employees in the "Chevron -Boilermakers"
case , supra, which was then being prosecuted before the Board) In a
June 12, 1978 decision dismissing the grievance , the panel chairman (the
arbitrator) had summarily characterized the clause as one which , ". . . in
essence states that they [the disciplined grievants] will cross a picket
line." Reasoning that it was the Union 's "burden" in the circumstances
"of showing that the Company has waived its right to discipline its
employees for not fulfilling the no-strike obligation [,]" the arbitrator
found "insufficient facts . to show a [Company] waiver," and thus dis-
missed the Union 's grievance over the discipline
10 Suburban Motor Freight, 247 NLRB 146 (1980) (burden on the party
urging deferral to establish, inter alia , that the arbitrator had "consid-
ered" the "statutory issue").
11 Spielberg Mfg Co, 112 NLRB 1080 ( 1955).
12 842 F 2d at 1145 fn 3
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimonial record tends to show in any case-that the
1977 sympathy action dealt with by the arbitrator was
governed by a different contract (effective 1977-1979)
from the 1979-1981 contract which governed the 1980
sympathy action at issue here.13
My error in presuming that the contract , which had
emerged from the 1977 bargaining , was the same one
that was effective during the January 1980 sympathy ac-
tivity caused me implicitly to conclude that the arbitra-
tor had interpreted the same contract-not simply the
same language-that governed the 1980 sympathy strike
presently at issue . This distinction (and, more generally,
the lack of focus on the distinct events and legal circum-
stances surrounding bargaining for the later 1979-1981
contract , that governed during the January 1980 sympa-
thy strike) was apparently of no significance to the par-
ties since the existence of two contracts in the period
1977-1980 was not focused on by any of them , neither in
briefs to me nor to the Board , on cross-exceptions to my
decision . 14 But, as the Ninth Circuit suggested in its re-
manding opinion , this distinction (and the general need
to focus on extrinsic evidence bearing on the parties'
intent in bargaining for the 1979-1981 agreement) as-
sumed much greater practical significance in the light of
legal developments occurring in the years which elapsed
before the Board reversed my decision in 1985.
Most significantly , the Board had, in the meantime,
overruled Davis-McKee in its Indianapolis Power (I) deci-
sion , 1 s adopting instead a presumption that no-strike
clauses are intended by the parties to encompass sympa-
thy strikes , a presumption which was opposite from the
Davis-McKee presumption that "without more," no-strike
clauses will not be construed to encompass sympathy
strikes . In the meantime, moreover , the Board had sub-
stantially relaxed its tests for deferring to arbitrators' de-
cisions under Spielberg , most notably in Olin. 1 e
In its 1985 decision reversing my decision and dismiss-
ing the complaint , the Board (without noting that the ar-
bitrator 's 1978 decision had construed the 1977-1979
agreement between the parties , but not the 1979-1981
contract which governed during the January 1980 sym-
pathy strike) deferred to that arbitral decision. The
Board found , echoing Olin tests, but without making spe-
cific reference to any record evidence , that "the contrac-
tual issue is factually parallel to the unfair labor practice
issue and the parties presented the arbitration panel with
facts relevant to resolving the issue ." The Board also ob-
served that the arbitrator 's construction of the no-strike
clause language as banning sympathy strikes was consist-
ent with its own recent holding in Indianapolis Power (I).
"Thus," reasoned the Board , "we cannot agree that the
arbitration award was clearly repugnant to the Act."17
It is a noteworthy recent development, one which oc-
curred after the Ninth Circuit's remand that the Board
has "clarified" the "Indianapolis Power" rule in its Indian-
apolis Power (II) decision , issued on remand from the
District of Columbia Circuit . 18 In that case , the Board
reaffirmed the basic "sound[ness]" of the Indianapolis
Power (I) rule , but "clarif[ied] one aspect" of that rule by
affirming that, "careful consideration [must] be accorded
extrinsic evidence bearing on the parties' intent," that
"the issue . . . `turn[s] on the parties actual intent," and
that "The Indianapolis Power [I] decision must not be ap-
plied as if it established an irrebuttable presumption that
a broad no -strike clause bars sympathy strikes ." 19 Ap-
19 R Exh 5 is the 1979-1981 contract , the 1977-1979 contract was
never separately made an exhibit Cf 842 F 2d 1146 fn. 3
14 Neither, had I independently sharpened my focus, could this have
affected my result at the time , given that Davis-McKee controlled when I
issued my decision In this regard , as the Ninth Circuit noted (842 F.2d at
1146), the underlying record showed that , in contrast to discussions pre-
ceding the 1977- 1979 agreement , the traditional no-strike language was
not a subject for discussion between the parties in negotiations for the
1979-1981 agreement . (This finding is echoed and reinforced in a stipula-
tion of the parties received during the recent supplemental hearing) In
the circumstances , applying Davis-McKee ("the Board shall require that
the parties , at the very least, have discussed the question , and preferably,
have expressly embodied in their agreement their intent to extend a strike
ban to sympathy strikes" ), I could not have found a clear and unmistak-
able waiver of sympathy strike rights during the term of the 1979-1981
agreement Moreover, to the extent the parties' discussions in prior bar-
gaining for the 1977- 1979 contract might have been relevant to this ques-
tion, I note that the Union 's withdrawal in 1977 of its proposed "clarify-
ing" language was accompanied by plain statements that the Union was
not abandoning its belief that the employees already had the "legal right"
under the traditional no-strike language to participate in sympathy strikes.
This adequately insulated the Union from later claims of "waiver" under
Davis-McKee, and, as I shall further find, it provided adequate insulation
even under the Board 's current standard as recently expressed in Indian-
apolis Power (II), cited and discussed below.
15 Indianapolis Power Co, 273 NLRB 1715 (1985 ), revd and remanded
sub nom . Electrical Workers IBEW Local 1395 v. NLRB, 797 F . 2d 1027
(D C Cir 1986). In that case , the Board held that the language of the no-
strike clause was inherently a waiver of sympathy strikes , reversing
Davis-McKee , and stating pertinently (273 NLRB at 1715)•
If a collective bargaining agreement prohibits strikes, we shall read
the prohibition plainly and literally as prohibiting all strikes, includ-
ing sympathy strikes If, however, the contract or extrinsic evidence
demonstrates that the parties intended to exempt sympathy strikes,
we shall give the parties ' intent controlling weight.
16 Olin Corp., 268 NLRB 573 (1984). There , the majority in a newly
constituted Board reaffirmed Spielberg 's general tests for deferral, but
overruled a number of prior decisions in which the Board had found that
Spielberg 's deferral tests had not been satisfied (The Olin majority par-
ticularly identified Suburban Motor Freight , supra , as the key source of a
more recent trend involving a kind of "misdirected zeal [which had] re-
sulted in such infrequent deferral by the Board that its occasional exercise
has had little substantive relationship to a mechanism which daily settles
uncounted labor disputes to the satisfaction of the labor relations commu-
nity." Id. at 574-575.) The Olin majority held instead (id. at 574) that
henceforth the Board,
would find that an arbitrator has adequately considered the unfair
labor practice if (1) the contractual issue is factually parallel to the
unfair labor practice issue and (2) the arbitrator was presented gener-
ally with the facts relevant to resolving the unfair labor practice
[Footnote omitted ] In this respect , differences, if any , between the
contractual and statutory standards of review should be weighed by
the Board as part of its determination under the Spielberg standards
of whether an award is "clearly repugnant" to the Act And, with
regard to the inquiry into the "clearly repugnant " standard, we
would not require an arbitrator 's award to be totally consistent with
Board precedent . Unless the award is "palpably wrong [footnote
omitted] ," i.e, unless the arbitrator's decision is not susceptible to an
interpretation consistent with the Act, we will defer.
The Olin majority also reversed the allocation of burdens directed by
Suburban Motor Freight (party urging deferral bears burden of establish-
ing that Spielberg tests were met), expressly overruling Suburban in this
respect and holding instead that the party opposing deferral to an arbitra-
tor's decision would now bear the burden of establishing that Spielberg's
tests for deferral (as redefined in Olin) were not met Id at 574-575.
17 275 NLRB at 949
18 Indianapolis Power Co., 291 NLRB 1039 (1988)
19 Id at 1039.
CHEVRON, U.S.A.
plying that "clarified" rule to the specific extrinsic evi-
dence of intent, the Board found it controlling on
remand that the parties had "agreed to disagree" over
"the scope of the no-strike clause" at the time they en-
tered into the governing agreement, and, "accordingly,
... there was no waiver of the right to honor stranger
picket lines."20 The Board therefore reversed its original
disposition of the case and sustained the complaint.
B. The Ninth Circuit's Remanding Opinion
In reversing the Board 's decision here, the Ninth Cir-
cuit panel issued a number of instructions or otherwise
expressed legal positions , which I treat as the law of the
case . Principal among these are the following : (1)"The
intent of the parties cannot be determined from the lan-
guage of the clause itself, without examining pertinent
extrinsic evidence . . . includ[ing] the bargaining history,
the parties ' interpretation of the contract , and the legal
context in which the contract was negotiated . [Citation
omitted .] Another factor is the doctrine of coterminous
interpretation , which states that a no-strike obligation is
limited to arbitrable issues. [Citation omitted .]"21 (2) It is
inappropriate to apply retroactively the new Indianapolis
standard to interpret the [1979-1981 ] "agreement in this
case, since the new placement of the presumption [i.e.,
presumption that no-strike language encompasses sympa-
thy strikes] could not have been anticipated by the par-
ties and thus could not have been their intent ."22 (3) It
is, moreover, "inappropriate under these circumstances
for the Board to defer to the arbitrator's decision by
simply citing Olin Corp. [Citation omitted .] To do so ig-
nores the complexity of the extrinsic evidence available
in this case , and is unfaithful to the Board 's own standard
for determining the scope of a no-strike clause . See Indi-
anapolis Power, 273 NLRB at 1715.1123
The Ninth Circuit made a number of additional obser-
vations which must necessarily influence my own focus
on remand , among them : Indianapolis Power (I) "shifted
the presumption that the Board applies to no-strike
clauses, and the corresponding burden of proof , 180 de-
grees"; and , this "retroactive shifting of the presumption
not only ignores the parties' intent at the time the [1979-
1981] contract was made , it burdens the Union with an
interpretation of a clause which is exactly the opposite of
the NLRB 's interpretation at the time [that] the contract
was made]."24
20 Id at 1040 The specific basis for the Board 's finding that the parties
had "agreed to disagree " was the credited testimony of the union repre-
sentative that , when the question of the applicability of the no-strike
clause to sympathy strikes first came up in bargaining for the first con-
tract between the parties, "[T]he Company never did accede to our argu-
ment , nor did we to theirs " Id. at 1040. Moreover, as the Board noted,
the parties had discussed the question in various ways without agreement
in two successive contract negotiations , during the most recent of which
the employer had insisted for a time that the contract contain language
expressly banning sympathy strikes . As the Board found, however, "At
no time did either party acquiesce to the other's view of the matter, nor
did the parties change the wording of the no-strike clause- Ibid
21 842 F.2d at 1144
22842F2dat 1144
23 842 F.2d at 1146
24 842 F 2d at 1145.
529
It is also significant , however, that the Ninth Circuit
refrained from: ( 1) "address [ing] the validity of the Olin
deferral standard and whether it is an improper abdica-
tion of the NLRB's obligation to resolve unfair labor
practices"[;] (2) "address[ing] whether the Indianapolis
standard is proper under the NLRA"; and (3)
"address [ing] whether the Board adequately explained
the factual parallel between the contract and statutory
claims in making its decision to defer."25
The central concern of the court in its remand appears
to be that the Board had not adequately focused on or
considered the "extrinsic evidence" of the parties
"intent" in agreeing to the inclusion in their 1979-1981
agreement of the traditional no-strike language, particu-
larly the Union's intent , in the light of past bargaining
history and conduct and (perhaps most critical of all)
"[t]he extent to which the Union relied on prior law,"
i.e., the Board 's 1978 decision in Davis-McKee, when it
agreed to the inclusion of the no-strike clause in the
1979-1981 contract. 26 Distilling these concerns in the
light of the available evidence, the court observed (842
F.2d at 1146) that:
The analysis of this case thus poses the challenge of
searching for the parties' intent given opposing indi-
cators . The then-current NLRB law indicated the
Union could safely engage in sympathy strikes; the
1977 [sic; should read 1978] arbitration decision sig-
nalled that disciplinary action would be allowed if
union members honored others' picket lines.
C. Supplemental Findings
In partial response to the Ninth Circuit's remand I first
recapitulate a more precise chronology of the events-
particularly the legal events-which surrounded the par-
ties' bargaining for the 1979-1981 agreement:
1. In the absence of any clear indication , I infer that
bargaining for the 1979-1981 agreement , which was not
signed until April 27, 1979, but which by its terms
became retroactively effective from February 23, 1979,
did not begin until some point in December 1978, at the
earliest . 27 If this inference is correct, such bargaining
clearly occurred after the three legal events next set
forth.
2. On June 12, 1978 , the arbitrator had issued his
award construing the no-strike clause in the parties'
1977-1979 agreement as prohibiting the Union's members
25 842 F.2d at 1146-1147 In this latter regard , the court stated that the
"Board now , in reconsidering the case and its deferral decision, can
remedy any possible error in the manner in which it handled this aspect
of its earlier decision " Id. at 1147
26 842 F 2d at 1145.
2' The record does not clearly disclose when the parties began bar-
gaining for the 1979-1981 contract Consistent with available evidence of
contractual termination provisions and prior bargaining patterns , howev-
er, I infer that such bargaining must have begun no earlier than 90 days
prior to the scheduled expiration of the 1977-1979 contract Since that
prior contract is not in evidence , I must infer that it expired immediately
before the 1979-1981 contract became retroactively effective , i.e, on or
about February 23, 1979 Accordingly , just as had been the case in bar-
gaining for the 1977- 1979 contract , I infer that bargaining for the 1979-
1981 contract began no earlier than the December preceding the expira-
tion of the 1977-1979 contract.
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from honoring "stranger" picketing by the Operating
Engineers.
3. On August 30, 1978, an administrative law judge in
the Chevron -Boilermakers case had construed the no-
strike clause in the Boilermakers ' contract as a waiver of
the Boilermakers-represented employees ' rights to honor
the same Operating Engineers picketing.
4. On September 29, 1978, the Board decided Davis-
McKee, clearly holding that no-strike language, without
more, does not waive sympathy strike rights.
5. (After the parties had concluded their 1979-1981
contract) on September 17, 1979 a Board majority,
speaking in dicta in the Chevron -Boilermakers case, af-
firmed Davis-McKee and related prior holdings and re-
versed the judge 's finding that the Boilermakers' no-
strike clause operated as a partial waiver of sympathy
strike rights.
The parties have now joined in certain clarifying stipu-
lations which merely reinforce what was implicit in all
findings made prior to the Ninth Circuit 's remand. Thus,
the parties agree that , in the roughly 30-year contractual
relationship between the parties prior to the January 28,
1980 discipline at issue,28 the parties had never affirma-
tively discussed the no-strike language except during bar-
gaining for their 1977-1979 contract . In that regard,
while it again appears merely to reinforce findings and
inferences from the underlying record , the parties have
stipulated that "If called to testify , [the Union 's] repre-
sentatives Fye . . . and Huber . . . would testify that
when the Union proposed in December 1976, and later
withdrew in . . . January 1977 . . . its sympathy strike
proposal, the Union believed that the proposal would
simply provide explicit contractual recognition of a statu-
tory right employees had under then current law." Simi-
larly, as the Ninth Circuit found from the underlying
record , and as the parties have more recently stipulated,
neither party sought to negotiate changes in the no-strike
clause nor otherwise raise it as an issue during the par-
ties' bargaining for the 1979- 1981 agreement.
Another potential area for supplemental findings de-
serves comment here, in the light of the Ninth Circuit's
remand . Thus, referring to negotiations for the 1979-
1981 contract, the Ninth Circuit observed that "The
extent to which the Union relied on prior law is unclear,
and is precisely the type of extrinsic evidence which the
Board has not examined , yet must ." 29 I find this passage
somewhat difficult to interpret . Surely it means that the
Board may not ignore the state of the law as it existed
on April 27, 1979 (the date the 1979-1981 contract was
signed), in seeking to ascertain whether the Union's
agreement to the traditional no-strike language was in-
tended as a waiver of sympathy strike rights . 30 Less ob-
28 In my underlying decision I found that the traditional no-strike lan-
guage had been in the parties' successive contracts " for at least 20 years "
The parties stipulated in the reopened hearing that the traditional no-
strike language had actually been a feature of the contracts between the
Union and Respondent (or Respondent's "predecessor - in-interest ") since
July 1946 , when the "first " contract was executed with the Union cover-
ing certain employees at the El Segundo refinery involved here
29842F2dat 1145
`0 See 842 F.2d at 1143• "Whether the contract waives the employees
right to strike 'turns upon the proper interpretation of the particular con-
viously, however, the court's statement might be taken as
an instruction that the Board , on remand , should solicit
evidence , possibly in the form of testimony by union
agents, regarding the Union's subjective understanding of
the state of prevailing law at that time, and the "extent"
to which that understanding may have subjectively influ-
enced the Union's ultimate agreement to continue the
traditional no-strike clause into the 1979- 1981 contract.
It is that latter possibility which I find abstractly prob-
lematic, for such an inquiry could have an obvious po-
tential for mischief; indeed, any such testimony at this
stage might well be vulnerable to attack as being merely
self-serving and deserving of no weight . In any case, al-
though I alluded to the quoted passage in my Orders on
remand , 91 no party affirmatively sought to make a
record regarding their "subjective" legal understandings
and intentions surrounding the bargaining for the 1979-
1981 contract. Neither, in the circumstances , did I inde-
pendently solicit evidence of that character. It appears,
rather, that the parties are content to have the Board
presume, as I shall, that all parties were aware of the
prevailing law as of April 27, 1979, and are content,
moreover, to have the Board draw its own conclusions,
as I shall , in the first instance, about the extent to which
such awareness of prevailing law might be expected to
influence a "reasonable " negotiator's intentions with re-
spect to the applicability of the no-strike clause to sym-
pathy strikes.
II. CONCLUDING ANALYSES
A. The Deferral Question as Currently Presented
I will first consider whether the arbitrator's 1978
ruling interpreting the no-strike clause in the 1977-1979
agreement may still be treated as in some sense deserving
of "deference" under Spielberg , as revised in Olin ; that is,
whether the arbitrator 's ruling regarding 1977 sympathy
activity by the Union's members adequately disposes of
the statutory issue of Respondent 's right to discipline the
January 1980 sympathy strikers , thereby justifying the
Board 's refusal to inquire independently into the statuto-
ry merits of that 1980 discipline . An initial point to be
noted in this regard is that Respondent no longer direct-
ly urges that the Board defer to the 1978 arbitral result,
perhaps concluding that such deferral would not be con-
sistent with the Ninth Circuit's remand . 32 Moreover, I
note that the General Counsel , on brief, argues that the
"law of the case" is that deferral is "inappropriate," and,
therefore , that deferral is no longer an issue on remand.
For reasons discussed below, I disagree with the General
Counsel on this latter point ; and, because the Board
originally disposed of this case on the basis of a deferral
judgment , I will address the question in some detail.
My consideration here must be guided by the Ninth
Circuit's findings, supra, that it was "inappropriate" for
tract .. Like contracts , it must be read as a whole and in the light of
the law relation to it when made
"' Id at 2
as Since I decide in any case that deferral is not appropriate, I do not
decide whether Respondent has waived a deferral claim by failing to
argue it at this postremand stage
CHEVRON, U.S.A.
the Board to have merely "retroactively" applied Indian-
apolis Power (I), in finding that the arbitral award was
not "repugnant to the Act," and , relatedly, that it was
"inappropriate to defer to the arbitrator 's decision simply
by citing Olin Corp." As I understand the Ninth Circuit's
remanding opinion in this regard , the perceived vice in
the Board 's overall analysis was that it not only failed to
take into account that the arbitrator 's decision interpret-
ed a different contract from the one governing in Janu-
ary 1980, but, more fundamentally , that the Board failed
to take into account that the arbitrator 's 1978 decision
was but one of several "extrinsic" circumstances which
might properly bear on the Union 's "intent" in agreeing
to a continuation of the traditional no-strike language in
the governing 1979-1981 agreement . And this latter em-
phasis by the Ninth Circuit could easily lead to the con-
clusion that the Ninth Circuit would not permit the
Board to "defer" in the sense of treating the award alone
as a dispositive and still -binding construction of the em-
ployees' statutory rights . Balanced against these remarks
by the Ninth Circuit, however, is the fact that the Ninth
Circuit expressly refrained from deciding the statutory
validity of either Indianapolis Power or Olin, and did not
purport to decide whether deferral under the Olin stand-
ard might represent an "improper abdication of the
NLRB 's obligation to resolve unfair labor practices."
Moreover , as part of its discussion of the Board 's defer-
ral analysis, the Ninth Circuit declined to decide whether
the Board "adequately explained the factual parallel be-
tween the contract and statutory claims" placed before
the arbitrator , but suggested that, "The Board now, in
reconsidering the case and its deferral decision, can
remedy any possible error in the manner in which it han-
dled this aspect of its earlier decision."
The net impact of the Ninth Circuit 's pronouncements
on the appropriateness of deferral at this stage is not easy
to discern ; but there is ample basis for concluding that
the Ninth Circuit intended to leave open the possibility
that, with an appropriate rationalization tailored to the
specific circumstances , the Board's Indianapolis Power
and Olin decisions might properly be applied to justify
some kind of deference to the 1978 award . Although re-
maining in some doubt about where this leaves me, I will
avoid the "net impact" question by concluding that even
if complete deferral were theoretically available to the
Board within the confines of the remand , the arbitrator's
award in this case could not be deferred to-not even
under Olin 's more relaxed standards for deferral, and not
even if the Board 's Indianapolis Power doctrine were
treated as controlling in deciding whether the arbitral
award was or was not "repugnant " to the Act.
In considering "repugnancy ," the Olin Board will not
defer if the decision is "palpably wrong, i.e., . . . not
susceptible to an interpretation consistent with the Act."
But the Olin Board also cautioned in this regard that an
arbitrator's award need not be "totally consistent with
Board precedent" to escape the charge of "repugnancy";
rather, "differences , if any , between the contractual and
statutory standards of review should be weighed . . . as
part of [the 'repugnancy '] determination ." I note that this
formulation does not attempt to instruct as to exactly
what "weight" should be accorded to any "difference"
531
between the result the arbitrator reaches and the result
the Board might independently reach on the statutory
merits . I reason from Olin, however, that if an arbitrator,
presented "generally" with facts relevant to the statutory
determination , reached a result in interpreting how the
contract affected statutory rights which was exactly con-
trary to the result the Board would have reached, apply-
ing its own statutory tests to the same "general" facts,
then the award is no fit subject for deferral, and the
Board must itself decide the statutory issue on the merits.
For reasons developed below, I have difficulty finding
the requisite "factual parallelism" between the case de-
cided by the arbitrator and the case presented here. But
even if the Board 's previous summary finding on that
point required me to presume that the arbitrator was
"presented" with the same "general" body of facts avail-
able on this record, I would find in any case that the
award construing the 1977-1979 contract was exactly
contrary to the result the Board would have reached, ap-
plying statutory principles to the same general body of
facts, and was therefore "clearly repugnant ," as Olin has
redefined that term, even if one takes Indianapolis Power
as the currently controlling Board "precedent."
Thus, in portions of Indianapolis Power (II) quoted
above, the Board took pains to emphasize that its origi-
nal Indianapolis Power decision cannot properly be treat-
ed as creating an "irrebuttable presumption " that a broad
no-strike clause bans sympathy strikes. Rather, the "ex-
trinsic" evidence of the parties "actual intent" still must
be considered in judging the issue . And, most significant-
ly, the Indianapolis Power (11) Board will not find a
waiver of sympathy strike rights in a no-strike clause
where the extrinsic evidence demonstrates that the par-
ties had concluded a contract by "agreeing to disagree"
about the reach of the no-strike language to sympathy
strikes . That, I find, is clearly what existed here at the
time the parties negotiated the 1977-1979 contract inter-
preted by the arbitrator.33 Accordingly, given the par-
ties "agreement to disagree " on the point, if the issue
were squarely before the Board on the merits, it is plain
enough that neither the Davis-McKee Board nor the Indi-
anapolis Power Board could find a waiver of sympathy
strike rights in the 1977-1979 contract.
It is equally plain that in finding to the contrary, the
arbitrator essentially ignored any invocations of bargain-
ing history or statutory considerations , but instead treat-
ed the language of the no-strike clause as creating virtu-
ally an "irrebuttable presumption" that sympathy strikes
were banned . Thus, although the no-strike clause made
no express reference to sympathy strikes, much less to
"picket lines," the arbitrator simply found, without expli-
cation , that the "clause . . . in essence states they will
9' As further evidence that neither party abandoned prior claims, but
"agreed to disagree " on the reach of the 1977- 1979 no-strike clause to
sympathy strikes , I note here the testimony of Respondent 's bargaining
agent , Collings , which is harmonious with the Union 's accounts of the
pertinent 1977 bargaining , that both parties " tended to reiterate their [ear-
her] positions" at the time the Union withdrew its proposed "clarifying"
language Clearly , therefore, neither party yielded on the critical point;
rather, they appear to have mutually concluded in 1977 that the precise
application of the traditional no-strike language to sympathy strikes was,
not worth further fighting about, and was best left unresolved.
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cross a picket line." It further appears that the arbitrator,
although "presented" in a quite limited sense with an ar-
gument which referred to one aspect of the relevant bar-
gaining history, was not actually presented with the same
"general" body of facts relevant to that history which
are in evidence in this case-especially not the facts
showing unmistakably that the parties, in concluding the
1977-1979 contract, had "agreed to disagree" over the
reach of the no-strike clause to sympathy strikes.34
As noted, the arbitrator appears in any case not to
have found the bargaining history a relevant subject for
inquiry, since he deemed the no-strike language to be
itself conclusive and believed it to be the Union's
"burden" to establish that the Company had somehow
separately waived its right to use discipline to remedy
what the arbitrator found was a plain breach of the no-
strike language. In, thus, limiting his own focus to the
language of the clause, the arbitrator's analysis did not
conform to any of the competing "modes of analysis" ad-
vanced by the Board or the courts at any relevant time.
In all the circumstances, I conclude that the arbitral
award is not susceptible of an interpretation consistent
with the Act, not even as the Act was relevantly inter-
preted by the Board and the District of Columbia Circuit
in the Indianapolis Power series. The award was therefore
"palpably wrong" under any conceivably applicable stat-
utory yardstick; accordingly, the Board should not dis-
miss this complaint in deference to it.
B. The Merits: The Parties' Intent in Continuing the
No-Strike Language in the 1979-1981 Agreement
It is at this stage that I finally focus on the question
most directly pertinent to the remand, namely: May an
intent on the Union's part to waive sympathy strike
rights be "clearly and unmistakably" inferred from the
extrinsic circumstances surrounding the Union's agreeing
to inclusion of traditional no-strike language in the 1979-
1981 agreement? I conclude that no such waiver can be
inferred in the totality of the circumstances.
As to the "bargaining history," and evidence of the
parties' own "interpretations" of the meaning of the no-
strike clause, the single most critical fact is that, in the
only instance over their 30-year relationship where they
never affirmatively discussed that clause (i.e., in bargain-
94 The record does not affirmatively detail exactly what, if any , "facts"
were presented to the arbitrator concerning the bargaining history pre-
ceding the 1977-1979 contract His opinion recites only that Respondent
had argued that "The Company had rejected in prior negotiations a
clause which would have permitted its employees to honor any Union's
picket lines . [and] Since the proposal was rejected the Union should
not be permitted to obtain through arbitration that which it could not get
in negotiation ." I note that the Board has already found in this case that
"the parties presented the arbitration panel with facts relevant to resolv-
ing the [statutory ] issue " 275 NLRB at 949. 1 note, as well, that the
Ninth Circuit refrained from addressing whether the Board "adequately
explained" this finding To the extent it is procedurally open to me on
remand to reexamine this question , I would find that the parties did not
present sufficient " facts" to the arbitrator to enable him to consider the
statutory issue, even if he had been more disposed to do so than he actu-
ally appears to have been ; at most he was given notice in the form of a
company argument that the Union had failed in bargaining to gain clear
cut language exempting sympathy strikes from the no -strike ban. He was
not presented with facts (nor even argument ) relating to the parties' prior
"agreement to disagree" over the reach of existing no-strike language to
sympathy strikes
ing for the 1977-1979 contract), the parties ended up
agreeing to disagree on its applicability to sympathy
strikes. Clearly, such evidence does not alone support a
"waiver" defense; rather, under Indianapolis Power (II),
that fact defeats such a defense.35
Moreover, as the circuit implied in its remanding opin-
ion, the Union's announced belief in 1977 bargaining that
the employees enjoyed sympathy strike rights, notwith-
standing the no-strike language, was not merely frivolous
nor wishful thinking, but had substantial support in exist-
ing precedent, particularly in those cases which applied
the doctrine of "coterminous interpretation" and which
generally held under that doctrine that a no-strike clause
may not ban certain strikes, including sympathy strikes,
unless the dispute underlying the strike is itself suscepti-
ble of arbitration under the sympathy strikers' con-
tract.36 Indeed, the Union's belief that employees re-
tained the right to engage in sympathy strikes was later
fully vindicated, however temporarily, in the Board's
1978 Davis-McKee decision . And it is that legal fact
which I shall conclude was of most critical significance
in concluding that the Union did not waive sympathy
strike rights during the term of the 1979-1981 contract.
During the bargaining for the 1979-1981 contract, the
Union, already having previously "agreed to disagree"
with Respondent about the meaning of the no-strike
clause in the prior contract, had been vindicated by
Davis-McKee in its belief that such no-strike language
does not, without more, ban sympathy strikes. Although
Davis-McKee was overturned some 8 years later by Indi-
anapolis Power, the Union had every reason in 1979 bar-
gaining to believe that Davis-McKee controlled the ques-
tion.37 It is thus easy to conclude that the Union, in
35 In agreement with the General Counsel, I find the parties ' "prac-
tice" under the no-strike clause to be "inconclusive " The facts show that
Respondent did not discipline sympathy strikers on at least one occasion
prior to 1977 when employees honored brief "stranger" picketing; they
show also , however, that Respondent did discipline both the Union's
members and Boilermakers ' members for honoring the Operating Engi-
neers picketing in 1977 , during the term of the 1977-1979 agreement In
neither instance , however, did either party demonstrate "acquiescence"
to the other parties' view of the reach of the no-strike clause
36 Of the cases cited by the Ninth Circuit in its own discussion of this
point (842 F.2d at 1144), two of them were known to the parties when
they signed the 1977- 1979 contract , and both strongly tended to support
the Union's position - Gateway Coal Ca v Mine Workers, 414 U.S. 368,
381-382 (1974), and Gary-Hobart Water Corp, 210 NLRB 742 (1974),
enfd. 511 F.2d 284 (7th Cir 1975), cert denied 423 U S. 925 (1975)) See
also, e g ., Keller-Crescent Co., 217 NLRB 685 fn 2 , 687 (1975), enf
denied 538 F 2d 1291 (7th Cir. 1976).
97I do not deem it necessary or appropriate to determine whether
Davis-McKee was, in the words of the District of Columbia Circuit,
"something of a sport ." Electrical Workers IBEW Local 1395, supra, 797
F.2d at 1035 However , much it may be debated whether Davis-McKee
was "consistent " with prior Board and court pronouncements, it cannot
be debated that when it issued , Davis-McKee represented a deliberate at-
tempt by the Board to establish precedent by which to guide decision-
makers and labor relations practitioners, and did not merely reflect an un-
conscious aberration on the Board 's part . Moreover, as noted by the
Ninth Circuit on remand herein (842 F 2d at 1146), there was no reason
for the Union to have supposed in 1979 that the Ninth Circuit was "dis-
satisfied" with Davis-McKee Accordingly, the Union was entitled in 1979
to treat Davis-McKee as the controlling "law," for purposes of analyzing
the reach of the traditional no-strike language
CHEVRON, U S.A.
1979, would have seen no need to tamper with the tradi-
tional no-strike language in order to "preserve" a right
which, under Davis-McKee, it already enjoyed notwith-
standing such no-strike language. And these extrinsic cir-
cumstances clearly weigh against a finding that the
Union waived sympathy strike rights during the term of
the 1979-1981 contract.
Respondent cites the 1978 arbitration award and the
1978 judge's decision in the Chevron-Boilermakers case as
the cornerstones for its contrary argument-in substance,
that the Union could have been expected affirmatively to
seek language in the 1979-1981 contract confirming sym-
pathy strike rights in order to avoid any appearance that
it was acquiescing in those unfavorable constructions of
the same or similar no-strike clauses. In my view, such
arguments involve a common analytical flaw and a
highly dubious view of the way bargaining parties could
be expected to operate in this context. Thus, Respondent
suggests, in substance, that, to avoid a waiver, the
Union's 1979 bargaining stance should have been influ-
enced more by juridicially inferior decisions in other
cases than by a more recent and more obviously control-
ling and contrary holding of the Board. This is simply
unreasonable. And, as I separately discuss below, such a
suggestion could just as easily be turned against Re-
spondent, which did not itself seek changes in the no-
strike clause during 1979 bargaining, despite the fact that
Davis-McKee had entirely undermined its previous claims
that the language of that clause was alone enough to
give it the right to discipline sympathy strikers.
As to the arbitration award, for reasons already thor-
oughly explored, the Union in 1979 could safely assume
that the Board that had decided Davis-McKee would find
"repugnant" an award so facially at odds with Davis-
McKee, particularly if presented anew with the issue if
Respondent were to discipline sympathy strikers in the
1979-1981 period. Accordingly, given Davis-McKee's
prominence, the award could not be expected to have
caused the Union to believe that it had "lost" sympathy
strike rights which it could only "regain" by successfully
insisting in 1979 bargaining on a new clause which ex-
pressly permitted sympathy strikes.3$
As to the administrative law judge's decision in the
Chevron-Boilermakers case, Respondent might have a
stronger point if the judge's decision had been the only
pertinent holding at the time of the 1979 bargaining. But
Davis-McKee clearly ran contrary to the judge's
"waiver" rationale in Chevron-Boilermakers. And I must
presume that the Union, as well as Respondent, recog-
nized that an administrative law judge's rationale, made
before Davis-McKee, and in obvious ways inharmonious
with Davis-McKee, was not likely to survive the Board's
eventual review, which, in the event, it did not.
38 1 make this finding specifically in the light of the Ninth Circuit's re-
minder that "failure to obtain contractual confirmation of a right is evi-
dence of waiver only if it shows that the union thought the right had
been waived by other provisions of the contract and sought to regain
that right ." 842 F.2d at 1146, citing NLRB Y. Southern California Edison
Co, 646 F 2d 1352 (9th Cir 1981). In short, I find that the Union's ac-
tions in 1979 were entirely consistent with the posture of a bargaining
party secure in the belief that it had not previously waived-and thereby
had no need to regain-a certain right otherwise guaranteed under the
Act.
533
Moreover, the Union could have gained additional
comfort from Respondent's own bargaining posture in
1979 in the light of Davis-McKee. Thus, Respondent
made no separate effort in 1979 bargaining to seek a
change in the traditional no-strike language even though
the Davis-McKee Board had recently vindicated the
Union's view that such language, without more, did not
ban sympathy strikes. In the circumstances, one could
hardly fault the Union for agreeing to continue the tradi-
tional language, rather than affirmatively seeking some
additional (and seemingly wholly unnecessary) contrac-
tual confirmation of sympathy strike rights.
It may be that Respondent, on less substantial grounds,
had a contrary subjective understanding of the no-strike
clause at the time the parties signed off on the 1979-1981
contract. But the subject was never discussed by the par-
ties, and if the parties had such differing inchoate under-
standings, there was seemingly no meeting of their minds
on this critical point, thereby precluding the notion that
the Union "waived" its own statutory claim. At most,
one might infer a continuing "agreement to disagree"
comparable to that found in Indianapolis Power II.99 In
the latter case, even if Indianapolis Power (II) may prop-
erly come into play in assessing the waiver question, it
plainly would require the conclusion that no waiver of
statutory rights had been committed by the Union.
In summary, there exist firm grounds for supposing
that the Union would view the traditional no-strike lan-
guage in the 1979-1981 contract as exempting sympathy
strikes; this precludes the inference that the Union in-
tended to waive such rights by agreeing to such lan-
guage. The contrary presumptions associated with such
clauses established in 1986 in Indianapolis Power may not
be "retroactively applied" so as to impute to the Union
in 1979 a different legal understanding of such clauses
than the one which then prevailed. Even if Respondent's
legal understanding were privately different from the one
I have imputed to the Union, the no-strike clause in the
1979-1981 agreement might be construed, at most, as re-
flecting the parties' continued "agreement to disagree"
about its applicability to sympathy strikes; this further
precludes any finding that the Union "waived" such
rights in the 1979-1981 contract period.4° Any other ex-
tripsic evidence cited by Respondent as pointing in a
contrary direction is too speculative or improbable to
39 Respondent 's own failure in 1979 to seek or obtain changes in the
traditional no-strike clause, given Davis-McKee s teachings , might be seen
as a form of "waiver," that is, a waiver of any claim grounded in its tra-
ditional no-strike clause of the "right" to discipline sympathy strikers
Since, however, only the Union could have "waived" statutory rights of
bargaining unit employees , it confuses the issue to speak of a "waiver" by
Respondent Moreover, since it would not affect the result , I am pre-
pared to assume, for purposes of argument, that the parties to the 1979-
1981 agreement had, sub silentio , "agreed to disagree" about the reach of
the no-strike clause to sympathy strikes
40 Given these points , I do not decide whether the doctrine of "coter-
minogs interpretation " would further support the Union's position that
sympathy strikes were exempted from the no -strike ban in the 1979-1981
contract . To decide that question would necessarily require an analysis of
the degree of "functional linkage '! between the no-strike and arbitration
clauses (see the Ninth Circuit's remanding opinion , 842 F 2d at 1144)
This seems a wholly superfluous exercise in the circumstances
534 DECISIONS OF THE NATIONAL- LABOR RELATIONS BOARD
find that the Union clearly and unmistakably waived
sympathy strike rights in that period. ,
I therefore recommend that the original complaint be
sustained and I further recommend that the Board issue
the Order set forth below, which is substantially the
same Order I recommended in my original decision inso-
far as it addressed Respondent 's disciplining of employ-
ees represented by the Union who honored the January
28, 1980 picket lines established by a sister local.41
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed42
ORDER
The Respondent, Chevron , U.S.A., Inc ., El Segundo,
California, its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Suspending , otherwise disciplining , or threatening
to discipline employees for refusing to cross or to work
behind picket lines established by other labor organiza-
tions in furtherance of a lawful primary dispute, except
to the extent that their rights to do so have been clearly
and unmistakably waived.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and revoke all disciplinary action taken
against employees represented by the Union who hon-
ored picket lines established by OCAW's sister local on
January 28, 1980.
(b) Expunge from such employees ' personnel files and
other company records all references to warnings or dis-
cipline issued to them in connection with the January 28,
1980 picketing , and take no further action against those
employees based on or linked to such prior discipline or
warnings.
(c) Separately notify all such affected employees in
writing that it has thus purged their files and will not use
their honoring of the January 28 , 1980 picket lines
against them in the future.
41 Because the underlying record contains stipulations of the parties re-
garding which OCAW-represented employees were warned or otherwise
disciplined for honoring or seeking to honor those picket lines (see ap-
pendix B, attached to my original decision) I will not repeat in my cur-
rent recommended Order the names of the affected individuals, nor make
further reference to other surrounding circumstances detailed in the stip-
ulations Moreover, consistent with Sterling Sugars, 261 NLRB 472
(1982), I have revised to some extent my original recommended Order
regarding Respondent 's duty to purge from the personnel files and em-
ployment records of any of the employee-targets of unlawful warnings or
discipline all references to their alleged misconduct or disciplinary ac-
tions taken against them in connection with their observance or attempt-
ed observance of the January 1980 sister local picketing . Finally, the
"make whole with interest" provisions in my recommended Order are to
be understood and applied consistent with F. W. Woolworth Co., 90
NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962), and New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987)
42 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec. 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(d) Make whole all such employees, with interest, for
any losses of wages or benefits they may have suffered as
a consequence of action taken against them for having
honored the January 28, 1980 picketeing.
(e) Preserve and, on request , make available to the
Board or its agents all payroll and other records neces-
sary or helpful to compute all amounts necessary to ful-
fill the "make-whole" provisions of this Order.
(f) Immediately on receipt from the Regional Director
for Region 31 of copies modeled on the attached notice
specimen marked "Appendix ,"43 sign the same and post
such signed copies for 60 consecutive days in conspicu-
ous places at its El. Segundo refinery, including in all
places where notices to employees are customarily
posted , taking reasonable steps to ensure that the notices
are not altered , defaced , or covered.
(g) Notify the Regional Director in writing within 20
days of the date this Order what steps Respondent has
taken to comply.
49 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After 'an original trial in 1980 and a supplemental hearing
in 1989 upon remand from the United States of Appeals
for the Ninth Circuit, the National Labor Relations
Board has found that the no -strike clause , in the 1979-
1981 union contract with OCAW Local 1-547 did not
waive employees' rights to honor another Union 's lawful
picket lines . The Board therefore found that we violated
employee rights guaranteed in Section 7 of the Act when
we suspended or otherwise threatened employees repre-
sented by OCAW Local 1-547 honoring a picket line es-
tablished by an OCAW sister local on January 28, 1980.
The Board has ordered us to stop violating employees'
rights, to post this notice, and to live up to what it says.
Section 7 of the National Labor Relations Act gives em-
ployees the right to form, join , or assist unions, to bar-
gain collectively with their employer through representa-
tives freely chosen by a majority of them , to engage in
other concerted activities for their mutual aid and pro-
tection in jobrelated matters, and to refrain from any or
all of those activities except to the extent they may be
required by a lawful union-security agreement to fulfill
certain financial obligations associated with union mem-
bership.
WE WILL NOT suspend or otherwise discipline or
threaten to discipline employees for engaging in statuto-
rily protected sympathy strikes unless the union repre-
senting those employees has previously waived those
rights in clear and unmistakable terms.
CHEVRON, U.S.A.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make whole all employees , with interest, for
any losses in wages or benefits they may have suffered as
a consequence of our suspensions or disciplining of them
in connection with their honoring of the January 28,
1980 picket lines.
535
WE WILL expunge from our personnel records any ref-
erences to our suspensions or other disciplining of all
such employees.
WE WILL notify such employees separately in writing
that we have taken such actions and that their protected
activities will not be used by us against them in the
future.
CHEVRON, U.S.A., INC.