Indianapolis Power Co.

National Labor Relations Board - Board DecisionsJan 31, 1985

273 N.L.R.B. 1715 (N.L.R.B. 1985)

INDIANAPOLIS POWER CO. 1715 Indianapolis Power & Light Company and Local 1395, International Brotherhood of Electrical Workers, AFL-CIO. Case 25-CA-15784 31 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 6 June 1984 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed her brief to the judge in support of the decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge concluded that the Respondent violat- ed the Act by suspending and threatening to dis- charge employee Herbert King because he refused to cross a stranger picket line to perform assigned work at the premises of the Respondent's customer. We reverse. On 17 August 1983 the Respondent assigned King to read a meter and change a tape at Indiana Bell Telephone Company. Bell employees were picketing the premises when King arrived, and he refused to cross the picket line. The Respondent suspended him for 2-1/2 days and warned that re- fusal to cross a picket line to carry out a job as- signment was cause for immediate termination. The Respondent claimed, inter alia, that its ac- tions did not violate the Act because the following contractual provision waived employees' right to engage in sympathy strikes: [T]he Union and each employee covered by the agreement agree not to cause, encourage, permit; or take part in any strike, picketing, sit-down, stay-in, slow-down, or other curtail- ment of work or interference with the oper- ation of the Company's business, and the Com- pany agrees not to engage in a lock-out. Following Board precedent, 1 the judge reasoned that, because the contractual no-strike language did not expressly mention sympathy strikes, the con- tract would not bar them unless extrinsic evidence clearly showed the parties' intent to do so. He found, the parties' bargaining history and past prac- tice regarding sympathy strikes equivocal and un- United States Steel Corp., 264 NLRB 76 (1982) (former Chairman Van de Water and Member Hunter dissenting), enf. denied 711 F.2d 772 (7th Cir 1983); W-I Canteen Service, 238 NLRB 609 (1978), enf. denied 606 F.2d 738 (7th Cir 1979). certain, and thus . insufficient to establish a sympa- thy-strike waiver. We conclude that the broad no-strike clause bars employees from honoring stranger picket lines. We agree with former Member Penello, concurring in Operating Engineers Local 18 (Davis-McKee), 238 NLRB 652, 661 (1978), that a broad no-strike pro- hibition encompasses direct and indirect work stop- pages, including sympathy strikes: "Where the par- ties to a collective-bargaining contract embody in the agreement a clause stating essentially that there shall be no strikes during the term of the agree- ment, it means that there shall be no strikes during the terms of the agreementâ€”unless extrinsic evi- dence indicates that the parties intended other- wise." Although previous Board decisions have held that sympathy strikes lie outside the scope of broad no-strike clauses, we can discern no logical or practical basis for the proposition that the prohi- bition of all "strikes" does not include sympathy strikes merely because the word "sympathy" is not used. As the District of Columbia Circuit stated, "[T]he practical relationship between work stop- pages and the honoring of picket lines is so well understood in the industrial climate that we think that a clause of this kind using only the word 'strike' includes plant suspensions resulting from re- fusals to report for work across picket lines." News Union of Baltimore v. NLRB, 393 F.2d 673, 676-677 (1968). See also the Seventh Circuit's opinion in United States Steel, supra. We consider former Member Penello's Davis- McKee concurrence a sound and straightforward guide to construing no-strike provisions. If a col- lective-bargaining agreement prohibits strikes, we shall read the prohibition plainly and literally as prohibiting all strikes, including 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. We therefore overrule such cases as United States Steel and W-I Canteen Service to the extent that the standard applied there is in- consistent with this holding. The instant no-strike provision prohibits "strike[s], picketing . . . or other curtailment of work." Nothing in it suggests an intent to create an exception for sympathy strikes. Further, based on the judge's discussion of the bargaining history and the parties' conduct, we find there is insufficient extrinsic evidence establishing the parties' intent to exclude sympathy strikes from the no-strike provi- sion's scope. We therefore conclude that the no-strike provi- sion "clearly and unmistakably" waived the em- ployees' right to engage in sympathy strikes. See 273 NLRB No. 211 1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). Accordingly, employee King was not privi- leged to refuse to cross the picket line established at the premises of the Respondent's customer, and the Respondent was therefore free to suspend King and threaten him with discharge for refusing to cross the picket line. ORDER The complaint is dismissed. DECISION STATEMENT OF THE CASE FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on August 18 and a complaint was issued on September 29, 1983. A hearing was held in Indianapolis, Indiana, on November 28 and 29, 1983. The General Counsel alleges that Respondent Company violated Section 8(a)(1) and (3) of the Act by disciplining and threatening employee Herbert King with discharge because of his refusal to cross a picket line and perform his assigned job duties at the premises of Respondent's customers. The principal question raised here is whether or not the Charging Party Union waived in its collective-bargaining agree- ment the statutory right of its employee members, in- cluding King, to engage in sympathy strikes. On the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Respondent Company, a public utility engaged in the sale of electrical engergy, is an employer engaged in commerce as alleged. The Charging Party Union is a labor organization as alleged. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts The Company and the Union have been parties to col- lective-bargaining contracts covering an appropriate unit of employees, including Herbert King, since 1972. The pertinent provisions of the initial 1972 contract, which have remained unchanged and are presently operative, are as follows (G.C. Exh. 2): ARTICLE 1 RECOGNITION Section 1.02. Recognition of the Rights of the Com- pany. The Company has and retains the right to manage and direct its business, property and em- ployees according to the best judgment of its offi- cers and duly authorized supervisors, subject only to the limitations expressed in the terms of this agreement and the rights of employees to the ad- justment of their grievances as herein provided. Section 1.03 Recognition of the Agreement. During the term of this agreement and any extension or re- newal thereof, the Union and each employee cov- ered by the agreement agree not to cause, encour- age, permit, or take part in any strike, picketing, sit- down, stay-in, slow-down, or other curtailment of work or interference with the operation of the Company's business, and the Company agrees not to engage in a lock-out Section 1.04 Recognition of the Duties of Employ- ees (a) In recognition of the fact that the Company is a public utility which is obligated to provide con- tinuous and adequate service to the public, each em- ployee covered by this agreement has a special duty to assist the Company in maintaining that service by rendering competent, efficient and diligent service at all times in the performance of his job (b) In the event of any interruption or threatened interruption of the service supplied or to be sup- plied by the Company to the public, the Union and each employee covered by this agreement hereby promise to assist the Company in preventing the interruption and in restoring, maintaining and con- tinuing normal service to the public. Section 1.05 Purpose of Agreement. (a) The pur- pose of this agreement is to facilitate the peaceful adjustment of all disputes which may arise from time to time and to promote harmony and efficien- cy in the departments of the Company in which em- ployees covered by this agreement are employed (b) It is the intent of the Company and the Union that they will cooperate with each other to promote harmonious relations, mutual good will and efficien- cy, and it is not the intent or desire of either party to engage in any subterfuge or to evade or circum- vent the spirit and intent of this agreement. Article 2, in turn, contains provisions for the "Settlement of Grievances" and "Arbitration." The parties stipulated (G.C. Exh. 2) that on August 17, 1983, employee Herbert King was suspended from duty for refusing to cross a picket line and perform his as- signed work at the property of Indiana Bell Telephone Company in Indianapolis. The work in question involved reading a meter and changing a cassette tape which records peak power usage by Respondent's customer, In- diana Bell. Two days later, on August 19, Respondent Companyâ€”after consultation with representatives from the Charging Party Unionâ€”decided to assess a 2-1/2-day disciplinary suspension against employee King for his re- fusal to perform his assigned work duties. General Counsel's Exhibit 2, the stipulation of the par- ties, includes the written notice issued to employee King, dated August 23, 1983, which recites in part: On August 17, 1983, the employee refused to cross picket lines to perform job duties and was insubor- dinate when he failed to follow the direct orders of authorized supervision. Employee is hereby notified that refusal to cross picket lines to perform job duties and/or acts of in- INDIANAPOLIS POWER CO. 1717 subordination are intolerable and subject to immedi- ate discharge. The termination penalty is being re- duced to a 2-1/2 day suspension due to the Union's pledge to inform the membership of its responsibil- ity under Section 1.03 of the agreement, and due to the employee's 32 years of long and loyal service. Future similar acts will justify immediate termina- tion. King protested thd above notice, asserting, inter alia, that crossing the picket line to maintain continuous service to the customers in an emergency is different; this was rou- tine work and not an emergency. The Union also pro- tested, asserting, inter alia, "[T]he Union did not, nor do we now, agree with [the Employer's] assertion that the agreement precludes concerted action of the type that re- sulted in Mr. Herb King's suspension." The parties, in support of their positions concerning the waiver issue, introduced the following evidence per- taining to the bargaining history and interpretation of the contract language now in dispute. Thus, on December 16, 1974, as stipulated (G.C. Exh. 2), seven company em- ployees received disciplinary suspensions because they refused to enter a jobsite to do work, i.e., refused super- vision's orders to enter the construction area of the Big Eagle apartment project where they had underground construction work duties to perform; there were three male carpenters at the main entrance to the project who were striking and there was no form of restraint to pre- vent entrance to this project. The Union then filed a grievance, and the "Dept. Head's answerâ€”He didn't feel that there was a picket on job site . . . he felt he had to take disciplinary action in response to the men's refusal to work." The Company later denied the Union's allega- tions of violation of the labor agreement by imposing the above discipline, and asserted the no-strike clause prohib- ited such action by the employees. In addition, as further stipulated (G.C. Exh. 2), on April 3, 1978, a company employee received a reprimand for an unexcused absence from work. The Union's chief steward did lead the members across the picket line ap- proximately one-half hour after the stipulated starting time, and the disciplined employee's leaving the site was unauthorized either by his supervisor or his union stew- ard. It was further stipulated, with reference to the bargain- ing history, that in 1973, during negotiations for a re- newed agreement, the Charging Party Union proposed to amend section 1.03 as follows (G.C. Exh. 2): [A]mend to includeâ€”after word lock-outâ€”it is also the policy of this IBEW L.U. not to cross picket lines which are established by AFL-CIO or Inde- pendent Labor Organizations. And, in 1975, the Union proposed to amend section 1.03 and section 1.04(b) as follows (G.C. Exh. 2): , Section 1.03 . . . During the term of this agree- ment, and any extension or renewal thereof, the Union and each employee covered by the agree- ment agree not to cause, encourage, permit, or take part in any strike, picketing, sit-down, stay-in, slow- down, or other curtailment of work or interference with the operation on the Company's property and the Company agrees not to engage in a lock-out. Section 1.04(b), as proposed, would eliminate reference to the interruption or threatened interruption of service to be supplied. In addition to the above stipulations, Bruce Sumner, business manager for the Union, testified that he attended the initial 1972 contract sessions; that the Union did not then propose any language dealing with the right to strike; that there was discussion between the parties in those negotiations about the right to strike; and that he could not recall any of it. Sumner was unclear and un- certain as to specifically what the Company said this no- strike language would cover. Sumner, however, added, "The substance was that they [the Company] could not have a contract that did not have some [no-strike] pro- tection" and "We [the Union] would not agree to lan- guage that was totally restrictive." , â€¢ Sumner turned to the 1973 . contract negotiations. He explained that the Union proposed General Counsel's Exhibit 2(c) during the negotiations because "this was some language that I had received earlier from the AFL-CIO or the IBEW in D.c. as the suggested lan- guage for our contract." Prior to 1973, according to Sumner, there had been no problems with regard to the no-strike language in the 1972 contract. Sumner then claimed, "I wanted to strengthen the language in the contract, Art. 1.03, as far as crossing picket lines any- where," and, therefore, he proposed General Counsel's Exhibit .- 2(c) in 1973. The Company, as noted, rejected this proposal. Sumner, when asked if the Company gave any reasons for not agreeing to General Counsel's Exhib- it 2(c), testified, inter alia, "I cannot remember every specific right now." Sumner added, "We withdrew the proposal." Sumner assertedly did not, by withdrawing this proposal, agree that employees would have to cross all picket lines. Sumner then addressed the 1975 contract negotiations. Sumner noted that earlier, in 1974, "we had a problem . . . there was a construction going on. . . there was an information picket on the site [and] there were six or seven [employees] laid off for three days." The 1974 dis- pute, as noted supra, concerned crossing a picket line at the Eagle Apartment site. The Union filed a grievance over these suspensions; the grievance ws never arbitrat- ed; the dispute was held in abeyance until the 1975 con- tract negotiations; the grievance was discussed during the 1975 negotiations; and the Union then proposed Gen- eral Counsel's Exhibit 2(d)â€”"this proposal refers to only on the Company property." Sumner testified: Q. Did you intend this to be a change in the agreement? A. Just in how it is handled. It would have been a change in the language . . . it would make it more restrictive . . . but it would not be a change â€¢ in how it had been handled in the past. This union proposal pertaining to the no-strike language was withdrawn. Sumner claimed that the withdrawal 1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was predicated on an assumption that the Company did not want the people or equipment hurt from crossing picket lines. Sumner generally asserted that during the 1972, 1973, and 1975 negotiations the Union did not tell the Company that employees would not participate in sympathy strikes. Sumner testified that before the summer of 1983 the employees were not forced to cross picket lines; the employees would cross a picket line only in an emergency situation. Further, Sumner recalled discussing employee King's refusal to cross a picket line with management during August 1983. Initially, Company Representative Lowell McGaughey had assured Sumner that the Employer would send out other people to read the meters and pull the tapes. Later, however, Company Representative Robert McGraw "told me [Sumner] that . . . he had talked to Mr Snyder [counsel for the Employer], and due to the 7th District Case [sic], that these guys [includ- ing King] were going to read the meters." McGraw ap- parently was referring to the recent court of appeals de- cision in United States Steel Corp. v. NLRB, 711 F.2d 772 (7th Cir. 1983). Sumner denied agreeing with manage- ment that employee King had been insubordinate by re- fusing to cross the picket line at the customer's premises; however, he did agree with management that he would have "a meeting with the people to discuss crossing lines"â€”he did not agree to instruct them to cross such picket lines.1 The Union's International representative E. J. Bailey testified that he was involved in the 1972 negotiations for an initial contract, that the Company then proposed the language contained in sections 1.03 and 1 04 as quoted above, and that the Union made no proposal pertaining to these provisions. There was, however, a long discus- sion of the no-strike clause. Bailey recalled: The Company took the position that this [sec. 1.03] covered all types of. . . strikes or related activities. . . . And the Union took the position that this was not necessarily the case, and we discussed at great length the employees' right to refrain from crossing the picket line, to be in sympathy with the strikers that were manning that picket line. Bailey testified on direct examination: Q. Did the parties ever reach agreement on whether or not employees would have a right to re- frain from crossing picket lines during that negotia- tion? ' On cross-examination, Sumner explained that in 1972 there was no talk about sympathy strikes and whether or not the no-strike clause would apply to such a stnke There were discussions about sympathy strikes in 1973 when the Union proposed a change in language for sec 1 03 And, in 1975, when the Union again proposed a change in language for sec 1 03, there was discussion about sympathy strikes Sumner testi- fied, in part Q Is It your testimony that dunng the negotiations in 1975 any spokesman gave you an assurance that employees would not be dis- ciplined in the future for refusing to cross the picket line as these six or seven employees were disciplined in December 1974? A I don't recall any Company officer or spokesman saying that in that particular way No A. No, the Company never did accede to our ar- gument, nor did we to theirs. Q. Was the language itself agreed on as part of the contract in these negotiations? A. Yes it was. Q. But you're saying that there was no agreement as to what the language meant? A. No. Q. Did the Union specifically agree during those negotiations that the employees would waive their rights to engage in sympathy strikes? A. No, we did not.2 Bailey, as he further testified, participated in the dis- cussions with management pertaining to the disciplinary action taken against employee King. Bailey denied that the Union, at this discussion, agreed that King had vio- lated the no-strike provision of the contract or had been insubordinate. The Union, according to Bailey, agreed, in effect, to "tell the employees that when the Company gives you an assignment you've got to carry out that as- signment." Bailey testified on direct: Q. Did you discuss with the Company whether or not you would instruct them to cross a picket line to do that? A. No. I don't believe we did. Elsewhere, Bailey explained: The gist of the conversation [with management] was that we would instruct our people that the Company made work assignments, and that we would carry out the work assignments, and I think I mentioned to the Company that we were down there to kiss and make up and get Mr King back to work, and forget the whole thing. As Bailey noted, King was put back to work; however, he was not paid for his suspension.3 2 Batley also attended some of the 1973 negotiations between the par- ties for a renewed agreement He assertedly did not witness any discus- sion of the no-strike clause Bailey identified G C Exh 2(c) as the Union's proposal in 1973, however, again, he did not witness any discus- sion on this proposal Bailey claimed that in 1973 there was no agreement to waive the employees' right to engage in sympathy strikes Bailey attended some of the 1975 negotiations between the parties Bailey again claimed that there was no agreement by the Union that this contract language would preclude the employees from participating in a sympathy strike 3 Bailey, on cross-examination, claimed that the Union's position in the 1972 negotiations was that sec 1 03 "was tied to Union Security, and also the discussion relative to crossing the picket lines" Bailey added "The Union was taking the position that they would instruct their members toâ€”in emergency workâ€”cross all picket lines, and the Union was taking the position on non-emergency work their members couldn't and shouldn't be required to cross picket lines" Bailey was recalled for further cross-examination His testimony con- cerned the 1972 negotiations Bailey acknowledged, "I think what my notes was saying to me is that we could buy this language providing we get an understanding across the table on picket lines we wanted an understanding that no one would be forced to cross the picket lines" Bailey claimed "We were asking that if the people encountered picket lines the Company make other arrangements to perform their work" Bailey discussed the linkage between the no-strike provision and the union-secunty provision The Union knew the Company wanted some Continued INDIANAPOLIS POWER CO. 1719 Donald Presly, an employee and union member, testi- fied that on several occasions since 1972 he has encoun- tered picket lines at customers' premises when attempt- ing to read meters; that he requested permission from the pickets to cross the picket line; that, if he was refused such permission by the pickets, he made a "notation . . . that there was a strike in progress and the pickets re- quested that I not cross the picket line"; and that "I never heard anymore from it." Presly claimed that "until this current [1983] incident . . . there was never any conflict." Presly explained that he never crossed a picket line until August 1983 when the pickets objected to it; that he was never directed by anyone in management or supervision to cross a picket line where the pickets ob- jected before August 1983; and that on August 17, 1983, management: . â€¢ . informed us at that time that one of our fellow employees, Herb King, had already been disciplined and laid off for the refusal to cross the picket lines at the [specified] locations . . . and we were re- minded that we had a contract . . . that had a no- strike clause. Presly then crossed the picket line. Presly added: "[T]he only two places . . . that I've ever crossed a picket line where I was not permitted . . . was at the Western Elec- tric and Greyhound location"â€”all following the King disciplinary action. Randy Lucas, an employee and union member, testi- fied that he, too, encountered picket lines on two occa- sions. On one such occasion in 1981, he was sent to read meters; he declined to cross the picket line; he reported to the Company that "I couldn't read the meters . . . they were on strike"; and "there was never anything said about it." On the second such occasion, "the day before Mr. King didn't get the stop," in August 1983, he again refused to cross a picket line and he was not ordered to do so or threatened with discipline. James Thompson, an employee and a union member, testified that he has encountered picket lines at custom- ers' facilities twice since 1972; that on one such occasion he did not cross the picket line; that the Company in that case made other arrangements; that on the second occa- sion he in fact made his delivery; and that his supervisor, Shirley Bennett, later "told us we shouldn't have crossed the [second] picket line." Thompson was not threatened with any discipline for his refusal to cross a picket lineâ€” he was not "instructed" to cross a picket line.4 type of no-strike clause and the Company knew the Union wanted some type of union security. The Union ultimately only got maintenance of membership and checkoff. Finally, Bailey claimed: I believe your position [the Company's position] was that as these problems came up. . . the Company had made arrangements in the past, and you [the Company] expected them to make arrangements in the future, but you [the Company] never did accede completely to our argument. 4 There was also similar and related testimony by employees Robert Bell, Danny Walker, William Vest, Oscar Mitchell, Phillip Brown, Robert Davis, Charles Anderson, Phillip Elza, Ralph Miller, and Ray- mond Lee. Dennis Richards, an employee and union member, de- scribed the procedure which he normally followed when he arrived at a customer's site and found a picket line on the premises as follows: [Y]ou were there to do the job. . . you tried to get across without any altercation or problems and read the meters and change the tape and bring it back in. Richards would ask the pickets for permission to "cross the picket line to do my job." If permission was refused, he went on to another job and turned the work slip in that evening. Richards was never ordered by manage- ment to cross picket lines or threatened with discipline. Richards next recalled the incident in the summer of 1983 involving the Indiana Bell facility. He did not cross the picket line and so advised management. Later, Rich- ards and King were informed by management not to honor the picket line and do your job. Coworker King, according to Richards, was laid off the next day. Rich- ards, however, was granted permission to cross the picket line at his particular site. Richards recalled that management, during this incident, explained to him that the "Seventh [Circuit] Court of Appeals. . . in July. . . had affirmed some other decision or something that com- panies have the right to tell anybody to go across any- body's picket line, or something to that effect." Richards, at the time, explained to his superior, Lowell McGaughey, "I don't know what you're talking about"â€”"I'm not a lawyer." - Finally, employee Herbert King related the sequence resulting in his discipline during August 1983 for refusing to cross a picket line at the Indiana Bell facility. King re- fused to read the meter at the site because of the pres- ence of pickets. Initially, management said nothing to King. Later, however, he was instructed, with coworker Richards, "to go out and get these stops." King recalled: Mr. McGaughey said, we have a job to do inside Western Electric here. . . if you think that you are legally covered from going in there . . . . you can forget it; the Seventh Circuit Court of Appeals has overturned [a] ruling. King refused and, as stipulated, was disciplined. King, prior to 1983, had refused to cross picket lines and was never instructed to do so. Albert Burnside, division superintendent for Respond- ent, testified with reference to the refusal of seven em- ployees to cross a picket line at the Big Eagle Apartment site during December 1974. Burnside then went to the site and, as he explained, "I looked the situation over and really did not see any picket line . . . I don't recall any sign." The employees involved "just told me [Burnside] that there [were] pickets on the line, and they were asked not to cross it, and they did not." Burnside noted that there were no pickets there when he arrived. The seven employees, as stipulated, were later disciplined. Burnside claimed that they were disciplined for not crossing the picket line. However, Burnside acknowl- edged that his "boss, Mr. Meko," did not feel that there 1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a picket on the jobsite and he had to take discipli- nary action in response to the men's refusal to work.Â° Robert Adams, now director of installation and meter- ing for Respondent, testified that between 1978 and 1980: I cannot recall a specific incident where we were never able to enter the customer's premises. There may have been times may be that we did not cross the picket line on the first encounter, but usually the men would either try to work back later in the day or we'd try to pick it up the next day. Adams, when apprised that an employee had not taken a reading or changed the tapes because of a picket 'line, would give it to another person. Adams noted that since 1980 metering is a higher technology; magnetic tapes were installed; and if a meter tape ran out the recorded data would be lost to the Company. Adams further testi- fied: Q. All right. Now you've heard the testimony of a number of your employee subordinates that prior to August of 1983 none was ever ordered to cross a picket line. Is that correct? A. Yes. I've heard that. Q. And is that true? A. As far as I know being ordered, I'd say that's true. Q. Prior to August of 1983 did any employee, any employee subordinate of yours, refuse to cross a picket line? A. Not to my knowledge. Well, let me rephrase that. They did not cross primarily because they were not allowed to cross. Q. Allowed by whom? A. By the picket line. Adams was then asked, "[W]hat occurred in August of 1983 . . . that brought about the change whereby Mr. King and Mr. Lucas . . . were ordered to cross the picket lines." Adams claimed: . . . it came to my attention . . . that there were several Bell accounts [tapes] that we weren't getting . . . I proceeded to call Employee Relations and asked for the next step that we were going to have to do to try to get in to get these tapes. . . because it wouldn't be long before the tape would be run- ning out. 5 Morris Hiser, a lines manager for Respondent, testified that he was superintendent of overhead lines in 1975; that employees were scheduled to make a new connection at a new building, that there were pickets at the site; that the mud at the site was dry or soggy and there was no need to be in a big hurry; and that the employees were apparently not instruct- ed to cross the picket line. Cf. the testimony of William Vest (Tr. 192- 196). Patrick Collins, an employee, related an incident in 1978 with a picket line at the service center at Indianapolis Power' and Light. An independ- ent union, which represented the clericals, was picketing. The Charging Party's steward "said to us [Collins and his coworkers] that we didn't have to cross the picket line." Collins and his coworkers then left the area and went to Collins' home. Collins was later instructed by Union Representative Sumner "that we had to go back to work . . . we were going to be fired." Collins acknowledged that this picketing was at "Ipal- co's premises. . . rather than on customer's premises." Jerry Fogleman, supervisor of Respondent's installa- tion demand division, testified that in February 1980 he was informed that employee King did not read a meter because of a strike at a customer's site; that Fogleman was instructed by his superiors that under the no-strike clause in the bargaining agreement the employees were expected to cross picket lines to perform their jobs; that he explained this to King; and that he then drove King through the line and King performed his assignment. Fogleman acknowledged on cross-examination that, when he drove King "across the line" in February 1980, there was no objection whatsoever from the pickets.Â° Bobby McGraw, director of labor relations for Re- spondent, testified that during the 1972 contract negotia- tions the Union took the position that a no-strike clause would depend on a union-security clause and, further, the Union did not particularly want to get anybody in any trouble or hurt in any way crossing the picket lines. The Company's response was that "it was not the Com- pany's intention to get anybody hurt at anytime. We would afford then any safeguards. . . that would be re- quired to cross the picket lines." The Union did not, during 1972, state any position or present any argument whereby a distinction was drawn between picket lines on company property and picket lines elsewhere. McGraw turned to the 1973 negotiations. There was very little discussion about sympathy strikes. McGraw added: I can't recall whether they [the Union] had a dis- tinction [between picket lines on Company property and elsewhere] . . . . I think there was a proposal at that time. I'm not real clear on it. [See G.C. Exh. 2(c).] McGraw turned to the 1975 negotiations. McGraw testified: I think Mr. Sumner's position was that he. . . had no intention of striking the Company . . . I don't recall specific arguments the he put forth. McGraw added: "The Company's spokesman stated very clearly and precisely that there would be no contract without a no-strike clause that included sympathy strikes." As for the pending grievance pertaining to the seven employees who had refused to cross a picket line in December 1974, the suspension penalty was partially reduced.7 McGraw then cited an incident in 1974 where employ- ees initially refused to cross a picket line at the Market Street Arena. McGraw explained to the employees that "we had a no-strike clause"â€”"they were either to do the work or they would be sent home." The employees did Employee King, on rebuttal, was asked if Fogleman had discussed the no-stnke provision in the contract with him dunng February 1980. Kmg testified, "Not that I remember." King insisted that he was not di- rected to cross the picket line in February 1980. 7 McGraw had visited the Big Eagle Apartment site in 1974 and ob- served pickets present during his visit. McGraw assertedly apprised the pickets that his employees would be crossing the picket line, and they said there would be no problems. Respondent's crew later arrived and entered the premises. INDIANAPOLIS POWER CO. 1721 the work. McGraw next cited an incident in 1978, "at our station down in Petersburg," involving the Compa- ny's clerical employees and an independent union. McGraw again apprised the Union that "we had a no- strike clause and I expected them to go to work." The employees crossed the picket line. One employee was later disciplined. McGraw then cited an incident in 1981 at the Villadrome site. There were pickets present. McGraw again apprised the employees that the Compa- ny had a no-strike clause and their failure to cross the picket line would result in disciplinary action. The union representatives instructed the employees to cross the picket line. On cross-examination, McGraw acknowledged that the Market Square Arena and Villadrome disputes "were both situations . . . where IPALCO had assigned par- ticular work to its employees and Local 481 was claim- ing that that work should be its work under its jurisdic- tional definition." McGraw agreed that basically the Local 481 pickets were there protesting the fact that work was assigned to the IPALCO employees. And, as noted, the Petersburg incident involved the Company's premises and its clericals. McGraw acknowledged that during the 1975 contract negotiations: . . . a Company spokesman stated there would not be a contract without an agreement that there would not be sympathy strikes . . . . [The Union] in fact responded to that proposal by saying that the Union was just as adamant, that they were not going to waive their right to sympathy strikes. In short, the Union did not specifically agree to give up its right to sympathy strikes.8 B. Discussion It is not seriously disputed here that an employee, like Herbert King, has a statutory right to honor a lawful 8 Terrence Truax, supervisor of the Company's system operations divi- sion, testified with reference to electncians performing work in substa- tions at premises where a picket line was in place. Truax claimed that he had no knowledge or did not recall any instances where an electncian had been unable to carry out assigned work because of the presence of pickets. The evidence summarized above is in large part undisputed There are, however, some conflicts in testimony. With respect to the testimony pnn- cipally pertaining to the 1972, 1973, and 1975 bargaining history, I note that the testimony of Sumner for the Union and McGraw for the Em- ployer was at times vague, incomplete, and unclear. I am persuaded here that Bailey for the Union gave a more complete and reliable account of this sequence. Insofar as the testimony and recollection of Sumner and McGraw differs from the testimony and recollection of Bailey, I credit the latter Further, I also credit the testimony of employees Presly, Lucas, Thompson, Richards, and King as summarized above. Their testi- mony is in part mutually corroborative and is also substantiated in part by the related credible testimony of employees Bell, Walker, Vest, Mitch- ell, Brown, Davis, Anderson, Elza, Miller, and Lee. Insofar as the testi- mony of Burnside, Riser, Collins, Adams, Fogleman, McGraw, and Truax differs from the testimony of the above employee witnesses, I find the testimony of the employee witnesses to be more candid, complete, trustworthy, and reliable on this record. In particular, I note the conflict between Fogleman's recollection of an incident in 1980 and King's recol- lection of the same incident I find here that King has candidly and credi- bly related the pertinent sequence of events. Fogleman, on the other hand, did not impress me as a reliable witness picket line at the premises of his employer's customers. Cf. NLRB v. Browning-Ferris Industries, 700 F.2d 385 (7th Cir. 1983). The question raised in this case is wheth- er or not the Charging Party Union has waived that stat- utory right. In United States Steel Corp., 264 NLRB 76 (1982), enf. denied 711 F.2d 772 (7th Cir. 1983), the Board majority stated (at 79): The Board and the courts repeatedly have held that a waiver of the right to engage in sympathy strikes will not be inferred simply from a broad, general no-strike clause in a contract, but that such a waiver must be clear and unmistakable. Where, as here, the contractual no-strike language does not ex- pressly prohibit sympathy strikes, a waiver of the right to engage in such strikes may be established by bargaining history or other extrinsic evidence showing the parties' clear intent. The Board majority concluded in United States Steel, "[Me perceive no express contractual language or evi- dence of bargaining history to support a waiver." Id. at 80. See also W-1 Canteen Service, 238 NLRB 609 (1978), enf. denied 606 F.2d 738 (7th Cir. 1979). I am, of course, obligated to apply the foregoing principles as restated by the Board. In the instant case, there is no express contractual lan- guage prohibiting sympathy strikes and, as counsel for Respondent acknowledges (Br. 13), "under current Board authority, broad no-strike clauses without more are insufficient to establish a waiver of the right . . . to engage in sympathy strikes." Further, the extrinsic evi- dence adduced here pertaining to bargaining history and past practices falls far short of establishing the parties' clear intent to waive this statutory right. Indeed, this ex- trinsic evidence, as summarized supra, serves only to demonstrate the equivocation and division of the parties with respect to this issue. For example, Union Representative Bailey credibly testified that, from the outset of negotiations in 1972, the Company took the position that section 1.03 "covered all types of strikes and related activities, and the Union took the position that this was not necessarily the case, and the parties discussed at great length the employees' right to refrain from crossing a picket line." Bailey explained that the parties never reached agreement on whether or not employees would have the right to refrain from crossing picket linesâ€”"the Company never did accede to our argument, nor did we [the Union] to theirs." Bailey restated the positions of the parties over the years, as fol- lows: I believe your position [the Company's position] was that as these problems came up. . . the Com- pany had made arrangements in the past, and you [the Company] expected them to make arrange- ments in the future, but you [the Company] never did accede completely to our argument. And Company Representative McGraw acknowledged, during the 1975 contract negotiations, that: 1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD â€¢ . a Company spokesman stated that there would not be a contract without an agreement that there would not be sympathy strikes . . . the Union was just as adamant that they were not going to waive their right to sympathy strikes.9 The evidence pertaining to the past practices and un- derstandings of the parties from 1972 on manifests similar mutual equivocation and uncertainty. For example, a number of employees credibly testified, as detailed supra, that prior to 1983 they were not required by the Em- ployer to cross picket lines at the premises of customers They were not threatened with discipline. And Company Director Adams acknowledged that "there may have been times maybe that we did not cross the picket line on the first encounter, but usually the men would either try to work later in the day or we'd try to pick it up the next day." There is, of course, testimony that seven em- ployees were disciplined in 1974 assertedly because of their failure to cross such a picket line However, as noted, the record suggests that management, in the 1974 incident, "did not feel that there was a picket on the job- site and, consequently, it had to take disciplinary action in response to the men's refusal to work. Other cited in- stances of threatened disciplinary action or actual disci- plinary action taken since 1972, as discussed above, also do not provide the clear intent required. Thus, the cited Market Square Arena and Villadrome disputes involved work assigned by Respondent to its employees and Local 481 was claiming jurisdiction to this work; the Peters- burg incident involved the Employer's premises and its clerical employees; and the stipulated 1978 incident ap- parently involved an unexcused absence from work In sum, the broad no-strike clause in this case is insuf- ficient to establish a waiver. And the extrinsic evidence adduced does not show the parties' clear intent. There- 9 As stipulated, the Union in 1973 and 1975 unsuccessfuly proposed specific contractual language pertaining to sympathy strikes However, these unsuccessful attempts to include in a collective-bargaining agree- ment a statement of the statutory rights of employees do not sufficiently demonstrate a waiver of these statutory rights See W-1 Canteen Service, supra fore, absent a clear and unmistakable waiver of employee King's statutory right to refrain from crossing the picket line in question, I find and conclude that Respondent, by its suspension and threatened discipline of King, violated Section 8(a)(1) and (3) of the Act as alleged. CONCLUSIONS OF LAW 1. The Respondent Company is an employer engaged in commerce as alleged. 2. The Charging Party Union is a labor organization as alleged. 3. Respondent Company violated Section 8(a)(1) and (3) of the Act by suspending and disciplining employee Herbert King and by threatening employee King with discharge because of his refusal to cross a picket line and perform his assigned job duties at the premises of Re- spondent's customers. 4. The unfair labor practices found above affect com- merce as alleged. REMEDY Respondent Company will be directed to cease and desist from engaging in the conduct found unlawful herein, and like or related conduct, and to post the at- tached notice. Affirmatively, Respondent Company will be directed to make whole employee Herbert King for any loss of earnings or employment benefits he may have suffered as a result of his unlawful suspension. Backpay will be computed with interest in the manner prescribed in F. W. Woolworth Co, 90 NLRB 289 (1950), and Flori- da Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). In addition, Re- spondent Company will be directed to expunge from its files any reference to the above suspension and to notify employee King that this has been done and that evidence of his unlawful suspension will not be used as a basis for future discipline against him. If employee King has been counseled or assessed with any other form of disciplinary action as a result of having been unlawfully suspended, Respondent Company must restore him to the status he otherwise would have occupied. [Recommended Order omitted from publication.]