Metropolitan News-Enterprise


Monday, March 25, 2002


Page 1


Ninth Circuit Rules:

No-Strike Clause in Labor Contract Did Not Bar Sympathy Walkout


By KENNETH OFGANG, Staff Writer/Appellate Courts


A no-strike clause in a collective bargaining agreement does not bar the union from walking out in sympathy when another union strikes the same employer, absent an unambiguous waiver of the right to engage in such action, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a summary judgment granted by U.S. District Judge Vaughn R. Walker of the Northern District of California, denying an order that would have blocked a 24-hour sympathy strike by Children’s Hospital of Oakland nurses in support of other workers in August 1998.

The hospital brought the action against the California Nurses Association after it gave notice of its intent to walk out in support of x-ray technologists represented by the International Longshore and Warehouse Union if the ILWU called a strike.

Suit Pressed

The strike never took place because the hospital settled with the ILWU. The hospital pressed its suit, however, seeking to prevent the nurses from conducting future sympathy strikes and to recover losses it alleged to have suffered in making preparations for the nurses’ walkout, including rescheduling surgeries and declining new patients.

The strike threat, the hospital said, violated the no-strike clause that had been part of every agreement between the parties for the previous 27 years.

But Judge Stephen Reinhardt, writing for the appellate panel, said the union had the right to engage in a sympathy strike under the National Labor Relations Act. While the right can be waived, he said, such waivers must be “clear and unmistakable” under Ninth Circuit precedent.

“A general no-strike clause that does not specify whether sympathy strikes are included or excluded does not, simply by virtue of its incorporation in a collective bargaining agreement, constitute such a clear and unmistakable waiver,” the jurist declared.

The hospital argued that the “clear and unmistakable” standard did not apply because the membership never voted to authorize a sympathy strike. But Reinhardt concluded that there was nothing in the statute, nor in “precedent or logic,” that “supports the distinction the hospital seeks to draw between the union’s rights and those of its members.”

A union does not strike on its own behalf, the judge elaborated, but “does so in its capacity as the representative or agent of its members,” acting “for and on their behalf.”

Sympathy Strikes

The Ninth Circuit, he added, has previously applied the “clear and unmistakable” standard to sympathy strikes called by individual workers without the approval of their own unions. While the issue of sympathy strikes called by unions was not addressed, he said, “we see no reason why a general no-strike clause should apply differently when the individual workers choose to honor another union’s picket lines on their own, than when those workers act in response to a union’s call for collective action.”

Judges Michael Daly Hawkins and Johnnie B. Rawlinson concurred in the opinion.

The case is Children’s Hospital Medical Center of Northern California v. California Nurses Association, 00-15636.  


Copyright 2002, Metropolitan News Company