The National Labor Relations Board petitions to enforce an order requiring union to cease and desist from threatening to strike in repudiation of its collective bargaining agreement without meeting the requirements of 29 U.S.C. § 158(d) (1982). Enforcement granted.
Lumbard, Oakes and Cardamone, Circuit Judges.
CARDAMONE, Circuit Judge:
The basic question on this appeal is whether a threat to strike is an unfair labor practice that the NLRB may enjoin under § 160(a) of the National Labor Relations Act. It was Congress' aim in that Act to stabilize labor relations. A union statement that contains an implied threat of reprisal against an employer is coercive in the same sense as is a strike itself because one party to a bargained-for agreement's use of a power it agreed not to use during the term of the contract destabilizes labor relations.
In the instant case the National Labor Relations Board (Board) petitions us to enforce an order issued September 30, 1986 against Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Union or Respondent), reported at 281 N.L.R.B. No. 147. The Board ordered the Union to cease and desist from threatening to strike Burroughs Corporation (Burroughs) and to post notices stating, in effect, that it would not threaten to strike Burroughs when an object of such a strike was to force Burroughs to terminate the collective bargaining agreement, unless the Union complies with § 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d) (1982).*fn1 We grant the petition.
Burroughs was a corporation engaged in the manufacture and sale of computers. Since 1974, in a series of two-year agreements, the Union represented Burroughs' field engineers who serviced Burroughs equipment in New York and New Jersey. The agreement at issue expired on November 1, 1985, subject to an automatic one-year renewal clause. The clause provided that:
This agreement shall remain in full force and effect up to and including November 1, 1985, and thereafter from year to year except as herein after [sic] provided.
Sixty (60) days prior to November 1, 1985 or any subsequent annual expiration date either party may notify the other party in writing of its desire to negotiate a new agreement.
Thus, the Union would have had to notify Burroughs by September 2, 1985 of its intention to terminate the collective bargaining agreement on November 1.
On September 23, 1985 -- three weeks late -- the Union sent Burroughs a termination notice. At an October 10 meeting between Union representative John Crowley and two Burroughs representatives, Crowley stated that he believed the Union's late notice had extended the termination date to November 25, 1985 and that the Union could strike then. When Burroughs representative James Fitzgerald told Crowley that striking employees would be subject to discipline and possible discharge, Crowley allegedly responded, "Just try it." Two days later, the Union employees met and voted to authorize its negotiation committee to call a strike.
In anticipation of the strike, Burroughs hired New York counsel, Joseph Luksch. According to Luksch's testimony, he told the Union's counsel, Norman Rothfeld, in a telephone conversation that a strike would be a "classic" violation of § 8(b)(3) of the National Labor Relations Act. 29 U.S.C. § 158(b)(3) (1982) (providing that it is an unfair labor practice for a union representing employees to refuse to bargain collectively with an employer). Rothfeld responded, "So be it." On November 22 the Union and Burroughs met with a federal mediator to discuss the Union's contract proposals. The parties agreed to negotiate without waiving their legal positions as to the effectiveness of the September 23 notice of termination. Burroughs representative Fitzgerald testified that he asked Crowley whether the strike had been scheduled for Sunday or Monday and that Crowley told him, "it would have taken place Tuesday." The ALJ credited Fitzgerald's assertion over Crowley's denial.
Based on this testimony, the ALJ made the following findings of fact and law: (1) the Union failed to give timely notice of its intent to terminate the agreement; (2) the negotiations commencing on November 22 did not constitute a waiver of Burroughs' objection to the Union's belated notice; (3) Crowley's statements at the October 10 meeting, attorney Rothfeld's statements to attorney Luksch on October 25, and Crowley's statements before the mediator on November 22 constituted Union threats to strike; and (4) the Union's threat to strike was an unfair labor practice in violation of § 8(b)(3). The ALJ ordered the Union to cease and desist from "striking or threatening to strike" and to post notices to that effect. In affirming this order the Board amended it by deleting the word ...