Petition for Review and Cross-Application For Enforcement of an Order of The National Labor Relations Board (No. 02-ca-32909; 02-ca-33080).
The opinion of the court was delivered by: Ambro, Circuit Judge
Argued September 29, 2005
Before: ALITO*fn1 and AMBRO, Circuit Judges, RESTANI,*fn2 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- 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 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 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 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 ...