Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1988)

PUBLISHERS PAPER CO., a Delaware corporation, Plaintiff-Appellee,v.ASSOCIATION OF WESTERN PULP AND PAPER WORKERS, andAssociation of Western Pulp and Paper Workers,Local 68, Defendants-Appellants.

No. 87-3592.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1988.Decided July 19, 1988.

Before WALLACE and REINHARDT, Circuit Judges, and ALBERT LEE STEPHENS, District Judge^* .

MEMORANDUM^** 

Publishers Paper Company operates pulp and paper mills in Oregon City and Newberg, Oregon. In July 1984, the union representing Publisher's Newberg employees, Local 60 of the Association of Western Pulp and Paper Workers ("Association"), struck the Newberg mill; the Oregon City employees are represented by Local 68 of the Association. Publisher's Oregon City mill was initially unaffected; however, on the evening of August 3, sixty striking Newberg employees began picketing at the Oregon City mill. No Oregon City employee crossed the picket line. Publishers decided to shut the mill and it told employees not to report to work until further notice.

The Newberg picketers left the Oregon City mill in the early morning of August 6. Operations at the Oregon City mill resumed the evening of August 8. In the meantime, on August 6, Publishers filed a complaint against Local 68 and the Association for breach of a no-strike clause in the collective bargaining agreement. On cross-motions for summary judgment, the district court entered judgment for Publishers. After a hearing on damages, the court granted Publishers $178,150.00 plus costs. Local 68 and the Association appeal. We reverse.

I.

The collective bargaining agreement in force during these events was negotiated in 1982. The relevant paragraphs of the agreement read as follows:

It is agreed there shall be no strike, walkout, refusal to report for work, or other interruption of work by the Signatory Union, and Local Union, or any employee during the period of this Agreement. It is agreed there shall be no lockouts by the Signatory Company during the period of this Agreement.

In the event that in violation of the provisions of the preceding paragraphs a strike, walkout, refusal to report for work, or other interruption of work shall occur in the mill of the Signatory Company, neither the Signatory Union nor the Local Union shall be subject to financial liability for such violation provided that the Signatory Union and the Local Union involved immediately after the beginning of such violation shall have (1) publicly declared such action a violation of the Agreement, and (2) in utmost good faith used its best efforts to terminate such violation; it being further agreed that any employee participating in such violation shall in the discretion of the Signatory Company be subject to immediate discharge or other disciplinary action.

The first question in this case is whether the above broad no-strike provision includes sympathy strikes. In Davis-McKee, Inc., 238 NLRB 652 (1978), the National Labor Relations Board held that "in the absence of express contractual language or unequivocal bargaining history evidencing an intent to waive the right to engage in sympathy strikes, we shall not infer a waiver." Id. at 655. That is, the presumption is that broad no-strike provisions do not cover sympathy strikes, and the employer has the burden of showing that in a particular case, sympathy strikes are included. In 1985 the Board reversed its earlier decision, and held that broad no-strike provisions should be presumed to include sympathy strikes, and the burden of proving otherwise was shifted to the union. Indianapolis Power & Light Company, 273 NLRB 1715 (1985), rev'd on other grounds, 797 F.2d 1027 (D.C. Cir. 1986).

We recently decided that in interpreting no-strike provisions negotiated after Davis-McKee but before Indianapolis Power, as was the provision involved in this case, we will continue to apply the presumption that those provisions do not cover sympathy strikes. Oil Chemical and Atomic Workers v. NLRB, 842 F.2d 1141 (9th Cir. 1988). Hence, notwithstanding Indianapolis Power, it was Publisher's burden to meet the Davis-McKee standard and show that the parties expressly waived or unequivocally intended to waive the unions' right to engage in sympathy strikes. There is no express waiver here. Thus we must look to the parties' intent.

Here, the question is whether summary judgment in favor of Publishers was appropriate. An award of summary judgment would be appropriate only if the extrinsic evidence was so conclusive and unambiguous as to preclude contrary inferences as to the parties' intent. See Arizona Laborers v. Conquer Cartage Co., 753 F.2d 1512, 1518 n. 9 (9th Cir. 1985). "Relevant considerations include the bargaining history, the parties' interpretation of the contract, the conduct of the parties, and the legal context in which the contract was negotiated." Oil, Chemical, 842 F.2d at 1144. Because the extrinsic evidence does not warrant an unambiguous conclusion that the parties intended that the no-strike provision cover sympathy strikes, the award of summary judgment to Publishers was in error.

Any waiver of the right to engage in sympathy strikes must be unequivocal. Davis-McKee, 238 NLRB at 655. As to the factor most revealing of intent, the bargaining history, neither party presented any evidence before the district court. Nor was any evidence presented regarding past interpretations of the clause by the parties. In fact, the only evidence introduced in an effort to overcome the presumption, and thus the only evidence on which the district court could have based its conclusion that, as a matter of law, the Davis-McKee presumption had been overcome, was the scanty evidence Publishers presented regarding the parties' conduct at the time of the sympathy strike at issue.¹  Even were we to view this testimony in the light most favorable to Publishers, it is doubtful that it would be sufficient to meet the Davis-McKee standard.

Publishers presented the following evidence in support of its interpretation of the first paragraph of the no-strike clause: an Association representative told Local 68 members at a meeting before the sympathy strike that he did not believe that they had a right to honor a stranger picket line; some Local 68 standing committee members had stated the same position at the same meeting; when the sympathy strike commenced, a Local 68 trustee and alternate to the standing committee informed union members that the union wanted them to cross the picket line; and at the end of the strike the Association president informed Publishers that the unions "would fulfill [their] responsibilities under the contract."

The unions in response note that there was no evidence which suggested that the individuals quoted were present at the time the no-strike clause was adopted. Further, much of the language cited before the district court is at best ambiguous: for example, the union representative's promise that the unions would "fulfill [their] responsibilities", and quotations from local union members who commented at the pre-strike meeting that the decision to honor or cross the picket line was a personal one. Moreover, the practical context in which the comments were made suggest a number of possible reasons for their utterance, not all of which support an inference that the no-strike provision was intended to include sympathy strikes.

The Davis-McKee standard is a strict one. Given the paucity of the evidence before the district court and its tenuous connection with the parties' intent in agreeing to a broad no-strike clause, and given the strong legal presumption in favor of the unions, the district court erred in concluding that Publishers met that standard. Accordingly, the district court's grant of summary judgment against Local 68 is reversed and the case against that party is remanded for further proceedings.² 

We also decide that the grant of summary judgment against the Association must be reversed and its motion for summary judgment granted. Even if the first paragraph of the no-strike clause did include sympathy strikes and even if the second paragraph did impose an affirmative duty on the unions to use "best efforts" to end the strike³ , there is no evidence on which to base a finding of liability on the part of the Association. The record indicates that no Association representative was in the area at the time of the sympathy strike, and there is no evidence that any Association representative even knew that it had occurred until after it was over. The only assertions Publishers makes to justify liability against the Association is that two of the parent union's officers could not be reached by telephone during the weekend in question. Whatever level of duty the second paragraph may impose on a local union, it cannot plausibly be interpreted to impose liability on a parent union simply because none of the parent union's representatives was present at the site of strike activity or in the office to receive phone calls during the weekend.⁴  Accordingly, we reverse the district court's grant of summary judgment against the Association, and direct the court to enter summary judgment in its favor.

REVERSED AND REMANDED