Engelhard Corp v. NLRB ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-14-2006
    Engelhard Corp v. NLRB
    Precedential or Non-Precedential: Precedential
    Docket No. 04-3034
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 04-3034 & 04-4366
    ENGELHARD CORPORATION,
    Petitioner/Cross Respondent
    *LOCAL 1430, INTERNATIONAL
    BROTHERHOOD OF ELECTRICAL WORKERS,
    AFL-CIO
    Intervener-Petitioner
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent/Cross Petitioner
    (*Amended in Accordance with Clerk’s Order dated 8/30/04)
    Petition for Review and Cross-Application
    For Enforcement of an Order of
    The National Labor Relations Board
    (No. 02-ca-32909; 02-ca-33080)
    Argued September 29, 2005
    Before: ALITO* and AMBRO, Circuit Judges,
    RESTANI,** Judge
    (Opinion filed: February 14, 2006)
    Richard M. Escoffery, Esquire
    Stanford G. Wilson, Esquire
    Douglas H. Duerr, Esquire (Argued)
    Elarbee, Thompson, Sapp & Wilson
    229 Peachtree Street, N.E.
    800 International Tower
    Atlanta, GA 30303
    Counsel for Petitioner/Cross Respondent
    James B. Coppess, Esquire (Argued)
    815 16th Street, N.W.
    Washington, D.C. 20006
    Robert D. Kurnick, Esquire
    Sherman, Dunn, Cohen, Leifer & Yellig
    1125 Fifteenth Street, N.W.
    Washington, D.C. 20005
    *
    Then Judge, now Justice, Alito heard oral argument in
    this case but was elevated to the United States Supreme Court
    on January 31, 2006. The opinion is filed by a quorum of the
    panel. 28 U.S.C. § 46(d).
    **
    Honorable Jane A. Restani, Chief Judge, United States
    Court of International Trade, sitting by designation.
    2
    Counsel for Intervenor Petitioner
    Arthur F. Rosenfeld
    General Counsel
    John E. Higgins, Jr.
    Deputy General Counsel
    John H. Ferguson
    Associate General Counsel
    Aileen A. Armstrong
    Deputy Associate General Counsel
    Robert J. Englehart, Esquire
    Steven B. Goldstein, Esquire (Argued)
    Meredith L. Jason, Esquire
    National Labor Relations Board
    1099 14th Street, N.W.
    Washington, D.C. 20570
    Counsel for Respondents/Cross Petitioner
    OPINION OF THE COURT
    AMBRO, Circuit Judge
    This appeal arises from the final decision of the National
    Labor Relations Board (the “NLRB”) interpreting a collective
    bargaining agreement’s no-strike/no-lockout provision.
    Engelhard Corporation (“Engelhard” or the “Company”),
    relying on its interpretation of the provision, suspended thirty-
    3
    eight employees for holding a demonstration at its annual
    shareholders’ meeting. For the reasons set out below, we agree
    with the NLRB that Engelhard’s employees did not contravene
    that provision. Thus, we deny the petition for review of the
    Board’s decision that Engelhard’s suspension of the employees
    violated subsections 8(a)(1) and (3) of the National Labor
    Relations Act (the “NLRA”), and grant the NLRB’s application
    for enforcement of that decision.
    I. Factual and Procedural Background
    Engelhard manufactures and distributes pigments and
    film products at various locations throughout the United States.
    Local 1430, International Brotherhood of Electrical Workers,
    AFL-CIO (the “Union”) represents approximately 288
    employees in five of Engelhard’s New York facilities, including
    the plant located in Peekskill, New York. At all relevant times,
    Engelhard’s Peekskill employees were covered by a collective
    bargaining agreement (the “CBA”) binding both Engelhard and
    the Union.
    Article 28 of the CBA included a no-strike/no-lockout
    provision that stated:
    The Employer and the Union declare it to be their
    intention to prevent any suspension of work due
    to labor disputes during the term of this
    Agreement. To carry out this intention, the
    4
    Employer agrees that there shall be no lockout of
    any of its Employees or discrimination against
    them because they have raised a dispute or
    grievance. The Union agrees that it will not call,
    participate in, or sanction, during the term of this
    Agreement, any strike, boycott, picketing, work-
    stoppage or slow-down whatsoever. The Union
    further agrees that any Employee engaging in an
    unauthorized strike, boycott, picketing, organized
    work slowdown or stoppage, or any other type of
    interference with the Employer’s business, shall
    be subject to immediate discharge at the
    discretion of the Employer with no recourse to the
    grievance procedure contained herein.
    However, the Employer agrees that it will not
    hold the Union responsible for damages resulting
    from any such unauthorized action if the Union
    takes immediate action to advise all Employees
    that such unauthorized action is unauthorized and
    that Employees participating will by subject to
    discipline, up to and including discharge.
    The CBA was due to expire on June 30, 2000. In anticipation
    of that expiration date, the Union and Engelhard held
    negotiations for a successor agreement on March 8, 21, and 27.
    The discussions broke off, however, prior to formalizing any
    new agreement. The Union aspired to return to the bargaining
    5
    table. Indeed, in order to put pressure on the Company to
    resume negotiations, the Union decided to picket Engelhard’s
    May 4, 2000 shareholders’ meeting at the Sheraton Hotel in
    Woodbridge, New Jersey, a location some fifty miles from
    Engelhard’s plant in Peekskill.
    On April 28, Union Business Agent Robert Meyer left a
    message with Engelhard’s Senior Vice President to provide
    notice of its plans to picket the shareholders’ meeting.
    Engelhard’s Director of Human Resources, Joel Gray, returned
    the call and informed Meyer that, in the Company’s view, the
    proposed picketing violated the no-strike/no-lockout provision
    of the CBA. The Union disagreed, stating that because Article
    28 applied only to concerted activity resulting in a work
    stoppage or affecting production, it did not cover the Union’s
    peaceful picketing of the shareholders’ meeting. The same day,
    Engelhard sent a letter to the Union, which Englehard posted at
    the Peekskill plant, expressing its position that the planned
    picketing violated Article 28 of the CBA. The letter further
    warned that any employee who engaged in picketing at the
    shareholders’ meeting would be subject to immediate discharge.
    On May 4, approximately fifty Company employees
    from its Peekskill plant, accompanied by fifteen to twenty non-
    employees, participated in a demonstration outside the Sheraton
    Hotel in Woodbridge. Of the fifty employees who took part in
    the demonstration, only three were scheduled to work at the
    time of the demonstration, and each of them had received
    6
    advance permission from the Company to miss work on May 4.
    Some of the non-employees carried picket signs indicating that
    the Union had filed unfair labor practice charges against
    Engelhard while other non-employees distributed handbills
    complaining that the Company had broken off contract
    negotiations. None of the participants chanted, blew whistles or
    otherwise made any noise. Rather, the demonstrators engaged
    in a silent protest, obeying all of the rules given by the police.
    The Peekskill employees stood next to the non-employee
    picketers and handbill distributors for approximately one hour,
    the duration of the protest.
    Engelhard concedes it videotaped the demonstration.
    According to Engelhard, it recorded the demonstration in the
    event the participators attempted to disrupt the meeting or it
    decided to seek an injunction. It is undisputed that no protester
    disrupted the shareholders’ meeting or prevented individuals or
    vehicles from either entering or exiting the hotel.
    On May 12, Engelhard sent the Union a second letter
    (which also was posted in the Peekskill plant). Among other
    things, this communication declared that Engelhard intended to
    take formal disciplinary action against both the employees who
    participated in the demonstration and the Union for violating
    Article 28 of the CBA.
    Engelhard used the May 4 videotape recording to
    identify those employees who participated in the demonstration,
    7
    and then suspended each of them for three days. The Union
    filed grievances over the suspensions, which Engelhard refused
    to arbitrate. It maintained that the grievances were not
    arbitrable because the employees picketed in violation of the
    CBA and thus had no recourse to its grievance procedures.
    The Union followed up by filing unfair labor practice
    charges with the NLRB. The NLRB’s general counsel issued
    a consolidated complaint alleging that Engelhard had committed
    a variety of unfair labor practices in violation of subsections
    8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1), (3).
    Engelhard filed an answer to that complaint, denying all
    charges. At the conclusion of an evidentiary hearing, an
    administrative law judge (ALJ) issued a decision holding that it
    violated subsection 8(a)(1) of the NLRA by threatening
    employees with discharge if they engaged in Union activity and
    surveilling employees engaged in Union activity. The ALJ also
    ruled that Engelhard violated subsection 8(a)(3) of the NLRA
    by suspending employees for participating in a Union
    demonstration at the Company’s annual shareholders’ meeting.
    Timely exceptions were filed by Engelhard to the NLRB, which
    issued an opinion, over one dissent, affirming the ALJ. This
    appeal followed.1
    1
    The NLRB exercised jurisdiction over this proceeding
    under 29 U.S.C. § 160(a) and (b). Its decision was a final order
    with respect to all the parties. 29 U.S.C. § 160(c). Because the
    alleged unfair labor practice occurred within this Circuit, we
    8
    II. Standard of Review
    Whether Article 28 of the CBA waived the employees’
    right to picket Engelhard’s shareholders’ meeting turns
    exclusively on the interpretation of the parties’ labor contract.
    While we review the NLRB’s findings of fact under a
    deferential standard and thus “accept the Board’s factual
    determinations and reasonable inferences derived [therefrom] .
    . . if they are supported by substantial evidence,” Citizens
    Publ’g & Printing Co. v. NLRB, 
    263 F.3d 224
    , 232 (3d Cir.
    2001) (internal citation and quotations omitted); see also 29
    U.S.C. § 160(e) (“The findings of the Board with respect to
    questions of fact if supported by substantial evidence on the
    record considered as a whole shall be conclusive.”), we “‘owe
    no particular deference to the Board on matters of contract
    interpretation.” Pacemaker Yacht Co. v. NLRB, 
    663 F.2d 455
    ,
    458 (3d Cir. 1981) (quoting Dow Chemical Co. v. NLRB, 
    636 F.2d 1352
    , 1358 (3d Cir. 1980)). Accordingly, we construe de
    novo the language of Article 28 of the CBA.
    III. Merits
    Section 7 of the NLRA grants employees the “right to
    self-organization, to form, join, or assist labor organizations . .
    . and to engage in . . . concerted activities for the purpose of
    collective bargaining or other mutual aid or protection.” 29
    exercise jurisdiction pursuant to 29 U.S.C. § 160(e) and (f).
    9
    U.S.C. § 157. Section 8 states that it is an unfair labor practice
    for an employer “to interfere with, restrain, or coerce
    employees” in the exercise of their Section 7 rights, 29 U.S.C.
    § 158(a)(1), or to discriminate with “regard to hire or tenure or
    employment or any term or condition of employment to . . .
    discourage membership in any labor organization.” 29 U.S.C.
    § 158(a)(3). Indeed, it is well-settled that “Section 7 of the
    NLRA protects the right of employees to observe lawful picket
    lines.” Int’l Bhd. of Elec. Workers, Local 803, AFL-CIO v.
    NLRB, 
    826 F.2d 1283
    , 1287 (3d Cir. 1987).
    It is equally well settled that the statutory right to strike
    may be waived in a collective bargaining agreement. See NLRB
    v. Allis-Chalmers Mfg. Co., 
    388 U.S. 175
    , 180 (1967); Mastro
    Plastics Corp. v. NLRB, 
    350 U.S. 270
    , 290 (1956); NLRB v.
    Rockaway News Supply Co., 
    345 U.S. 71
    , 73 (1953); Delaware
    Coca-Cola Bottling Co. v. Gen. Teamsters Local Union 326,
    
    624 F.2d 1182
    , 1184 (3d Cir. 1980). Any waiver of the
    employees’ right to engage in this activity, however, must be
    “clear and unmistakable.” Metro. Edison Co. v. NLRB, 
    663 F.2d 478
    , 482 (3d Cir. 1981); see also United Steelworkers v.
    NLRB, 
    536 F.2d 550
    , 555 (3d Cir. 1976) (“a waiver of a
    statutory right must be clearly and unmistakably established, .
    . . and express language will not be read expansively”). “The
    extent of the waiver . . . turns upon the proper interpretation of
    the particular contract . . . [which] must be read as a whole and
    in light of the law relating to it when made.” Delaware
    
    Coca-Cola, 624 F.2d at 1184
    (citing Food Fair Stores, Inc. v.
    10
    NLRB, 
    491 F.2d 388
    , 395 (3d Cir. 1974) (additional citations
    and quotations omitted)).
    Thus, any analysis of the waiver issue must begin with an
    identification of the no-strike obligation in the parties’ contract
    and a determination of its scope. As we recognized in
    Delaware Coca-Cola, the complexity of the waiver
    determination is compounded by the fact that “the union’s
    no-strike obligation may be created in one of two ways: by
    implication from the arbitration clause or by an express clause
    in the 
    contract.” 624 F.2d at 1185
    . We are concerned here
    solely with the scope of an express no-strike obligation in the
    CBA (which includes a picketing prohibition).
    Engelhard argues that the plain meaning of the third
    sentence of Article 28 – “The Union agrees that it will not call,
    participate in, or sanction, during the term of this Agreement,
    any strike, boycott, picketing, work-stoppage or slow-down
    whatsoever.” – is a “clear and unmistakable waiver” of the
    Union’s Section 7 right to picket. Forgoing any “picketing . . .
    whatsoever,” the argument continues, includes not only
    Englehard’s facilities but also its annual shareholders’ meeting.
    Moreover, because the Union’s picketing was unauthorized, it
    follows that Engelhard’s acts of threatening employees with
    discipline, videotaping the demonstration, and suspending
    employees who participated in the demonstration, do not
    constitute unfair labor practices. Put another way, Engelhard’s
    position is that its threats, surveillance and suspensions did not
    11
    violate subsections 8(a)(1) and (3) of the NLRA because the
    Union’s picketing constituted unprotected activity.
    The NLRB rejected Engelhard’s contentions and held
    that the language and structure of Article 28 demonstrate that
    the Union did not clearly and unmistakably waive the
    employees’ right to engage in picketing of the Company’s
    meeting of shareholders. This conclusion relies heavily on the
    first sentence of Article 28, which states that the parties “declare
    it to be their intention to prevent any suspension of work due to
    labor disputes.” According to the Board, that statement of
    intent “qualifies and informs” both the no-picketing obligation
    that the Union agreed to undertake in Article 28’s third sentence
    and the no-lockout obligation of Engelhard in Article 28’s
    second sentence. Indeed, subsequent to the parties’ declaration
    that it was “their intention to prevent any suspension of work
    due to labor disputes,” Article 28 provides that “[t]o carry out
    this intention, the Employer agrees that there shall be no lockout
    of any of its Employees . . . ,” while “[t]he Union agrees that it
    will not call, participate in, or sanction . . . . any . . . picketing.”
    (Emphasis added.) Thus, while Article 28 waives the
    employees’ right to engage in any picketing that does, or could
    reasonably be expected to, result in a suspension of work, it
    does not waive the employees’ right to engage in picketing that
    does not, or could not reasonably be expected to, lead to a
    suspension of work at an Engelhard facility.
    The NLRB further reasoned that the state of the law
    12
    when the Union and Engelhard negotiated Article 28 of the
    CBA provides additional support for the conclusion that the
    Company failed to carry its burden2 of showing that the Union
    clearly and unmistakably waived the employees’ right to engage
    in picketing the shareholders’ meeting. See Mastro Plastics
    
    Corp., 350 U.S. at 279
    (holding that collective-bargaining
    agreement “must be read as a whole and in light of the law
    relating to it when it was made”). This is because there is no
    dispute that the “clear and unmistakable” waiver standard was
    well established long before the Union and Engelhard
    negotiated the July 1997 CBA. See Delaware 
    Coca-Cola, 624 F.2d at 1187-88
    (noting that the general rule is that a “waiver
    must be clear and unmistakable and that explicit language must
    not be read expansively”). In this context, both Engelhard and
    the Union “presumably knew that unambiguous contractual
    language would have been necessary to create an absolute
    prohibition against picketing.” NLRB Br. at 24. Accordingly,
    “the parties surely would not have used the suspension of work
    language in Article 28 if their intent was to foreclose picketing
    that did not involve a suspension of work.” 
    Id. at 24-25
    (internal quotations omitted).
    Although no-strike clauses are common in collective
    bargaining agreements, see Mastro Plastics 
    Corp., 350 U.S. at 2
            See Mastro Plastics 
    Corp., 350 U.S. at 2
    77 (whether a
    work stoppage is unprotected because it violates a no-strike
    clause is an affirmative defense).
    13
    280 (stating “collective-bargaining contracts frequently have
    included certain waivers of the employees’ right to strike”),
    cases of our Court interpreting those provisions are few in
    number and not particularly on point. This is because our Court
    has never been tasked with resolving a factually analogous case
    involving a union’s claim that certain concerted activity – be it
    striking, boycotting, or picketing – is exempt from a broad no-
    strike provision on the basis that the activity at issue did not,
    and was not reasonably likely to, lead to a work stoppage.
    Engelhard nevertheless relies heavily on International
    Brotherhood of Electrical Workers, Local 803, AFL-CIO v.
    NLRB, 
    826 F.2d 1283
    (3d Cir. 1987), where we interpreted a
    no-strike/no-lockout provision of a collective bargaining
    agreement negotiated between a union (Local 803) and its
    employer (Metropolitan) to prohibit sympathy strikes.3 In that
    case, a crew of Metropolitan employees, represented by the
    3
    This provision of the Metropolitan-Local 803 collective
    bargaining agreement stated:
    The Brotherhood and its members agree that
    during the term of this agreement there shall be
    no strikes or walkouts by the Brotherhood or its
    members, and the Company agrees that there
    shall be no lockouts of the Brotherhood or its
    members, it being the desire of both parties to
    provide uninterrupted and continuous service to
    the public.
    Int’l Bhd. of Elec. 
    Workers, 826 F.2d at 1290
    .
    14
    Local 803 and assigned to preform work at a particular site,
    refused to enter that site and complete a work assignment when
    confronted by a different union’s picket 
    line. 826 F.2d at 1285
    .
    Metropolitan advised Local 803 that a continuing refusal by its
    members to cross the picket line would result in disciplinary
    action, including suspensions. 
    Id. In response,
    the union filed
    a charge against Metropolitan alleging that the company’s
    disciplinary threats had interfered with, restrained, and coerced
    the employees in the exercise of their rights under Section 7 of
    the NLRA. 
    Id. Metropolitan maintained
    that, by agreeing to a
    broad no-strike clause in its labor contract, Local 803 had
    clearly and unmistakably waived its employees’ rights to
    engage in the sympathy strike. 
    Id. The union
    disagreed,
    asserting that the clear and unmistakable standard requires more
    than a broad statement of waiver. 
    Id. at 1290.
    Our Court dismissed Local 803’s contention that “a
    broad no-strike claim can never constitute a clear and
    unmistakable waiver of the right of employees to honor a picket
    line.” 
    Id. at 1290-91.
    We subsequently rejected the Local’s
    argument that the particular no-strike agreement in its contract
    with Metropolitan did not clearly and unmistakably waive its
    members’ right to honor stranger picket lines.
    [I]n addition to the expression in the no-strike
    clause of “the desire of both parties to provide
    uninterrupted and continuous service to the
    public,” . . . “the contract contains other
    15
    references to the need for . . . [Metropolitan] to
    provide continuous service to its customers.” . . .
    The parties’ repeated expression of their mutual
    purposes to maintain service without interruption,
    in conjunction with the functional independence
    of Article XI, is thus consistent with the view that
    the no-strike clause encompasses all actions,
    including sympathy strikes, that would frustrate
    that purpose. . . . Indeed, a fair reading of the
    collective bargaining agreement as a whole
    establishes an intention to waive the employees’
    right to engage in sympathy strikes.
    
    Id. at 1295-96
    (emphasis added).
    Despite Engelhard’s contentions to the contrary,
    International Brotherhood is not controlling here. Our Court
    was not asked to determine whether Local 803’s sympathy
    strike did, or could reasonably be expected to, result in an
    interruption or suspension of Metropolitan’s service to the
    public. Such an inquiry was entirely unnecessary because it was
    undisputed that the employees’ refusal to cross a sister union’s
    picket line and complete their work assignments resulted in an
    interruption in Metropolitan’s service.
    Indeed, a discerning read of International Brotherhood
    16
    reveals that its reasoning supports the result we reach here, for
    it refused to read broad contractual language in isolation.
    Rather, it closely examined the language and structure of the
    contract before it and ruled that the particular strike at issue –
    Local 803’s sympathy strike – conflicted with the parties’
    mutual intent “to provide uninterrupted and continuous service.”
    Simply stated, International Brotherhood is on all fours with the
    Board’s position that the appropriate inquiry here is whether the
    Union’s May 4 picket of an off-site shareholders’ meeting
    conflicted with the parties’ mutual intent “to prevent work
    stoppages.” Silver State Disposal Serv., 
    326 N.L.R.B. 84
    , 86
    (1998) (quoting Elec. Workers Local 1395 v. NLRB, 
    797 F.2d 1027
    , 1036 (D.C. Cir. 1986) (In interpreting a no-strike/no-
    lockout provision, “the parties’ actual intent governs, ‘whether
    that intent is established by the language of the clause itself, by
    the inferences drawn from the contract as a whole, or by
    extrinsic evidence.’”).4
    With the prohibition against reading express language
    expansively, see United 
    Steelworkers, 536 F.2d at 555
    , and the
    reasoning of International Brotherhood in mind, we agree with
    the Board that the parties’ mutual statement of intent in the first
    sentence of Article 28 to prevent the stoppage of work due to
    labor disputes qualifies and informs the parties’ mutual
    undertakings in the second and third sentences. It is particularly
    4
    As the parties have not presented any extrinsic evidence,
    we rely exclusively on the language of Article 28.
    17
    relevant that the parties expressly stated their intention to
    prevent the suspension of work and explained that it is “[t]o
    carry out this intention” that they undertook the various
    commitments stated in the remainder of Article 28. This
    unqualified expression of the mutual purpose to prevent work
    stoppages is consistent with the view that the no-strike clause
    includes all actions, including pickets, that would frustrate that
    purpose.
    But when work is not stopped, nor even impeded, Article
    28’s picketing prohibition is not in play. Indeed, any attempt to
    read Article 28’s third sentence in isolation renders the first
    sentence, which lays out the purpose for the entire article,
    meaningless and runs contrary to the well established principles
    of contract construction – to read, if possible, all provisions of
    a contract together as a harmonious whole. See Ludwig Honold
    Mfg. Co. v. Fletcher, 
    405 F.2d 1123
    , 1130 n.31 (3d Cir. 1969)
    (district court erred “in isolating one phrase of the . . . clause to
    reach its conclusion that the contract language was clear and
    unambiguous”); Restatement (Second) of Contracts: Rules In
    Aid of Interpretation § 202 cmt. d (“Meaning is inevitably
    dependent on context. A word changes meaning when it
    becomes part of a sentence, the sentence when it becomes part
    of a paragraph.”).5
    5
    Further supporting our conclusion is that the explanatory
    language in the first and second sentences of Article 28 spawns
    ambiguity concerning the breadth of the “no picketing
    18
    * * * * *
    Because the Union’s activity at the shareholders’ meeting
    could not reasonably have been expected to, and in fact did not,
    lead to the suspension of any work at the Peekskill plant, we
    hold that activity was not prohibited by Article 28 of the CBA.
    Accordingly, we deny Engelhard’s petition for review and grant
    the NLRB’s application for enforcement.
    whatsoever” prohibition. As a practical matter, an ambiguous
    provision (standing alone) can never amount to a clear and
    unmistakable waiver. See NLRB v. Gen. Tire & Rubber Co.,
    
    795 F.2d 585
    , 588 (6th Cir. 1986) (ambiguous language in
    bargaining agreement is insufficient to demonstrate waiver).
    19