No Whistling While You Work

Even Snow White and the Seven Dwarfs -- particularly the Dwarfs -- would have had trouble last month in the Worcester, Mass. courtroom of federal Judge Nathaniel M. Gorton. In a preliminary injunction issued May 5, Gorton struck a judicial blow against “whistling while you work” -- when it expresses union solidarity on the job.

Gorton’s order banning the use of “whistles, clackers, or any other noise-making device” by members of Communications Workers Local 1365 came in response to a lawsuit filed against the union by OFS/Fitel, a fiber optic cable manufacturer formerly owned by Lucent Technologies.

CWA’s contract with the company -- covering 125 workers in Sturbridge, Mass. and 500 more in Norcross, Ga. -- is scheduled to expire on May 31. As part of a workplace mobilization campaign that began in February, stewards and other members in Sturbridge used noisemakers distributed by Local 1365 to express their collective dissatisfaction with the lack of progress in contract negotiations.

After several months of shop-floor skirmishing, management filed suit claiming that these tactics disrupted production and violated the no-strike clause of the contract. A series of imaginative affidavits from OFS supervisors were submitted to the court in support of the company’s claims.

Several bosses alleged that mobilization-related noise in the plant was so loud that they couldn’t issue instructions, take phone calls, or conduct shift change meetings. ”The whistling begins when I enter the area and continues until I leave,” complained one supervisor. Another reported that “after being subjected to this noise for about four hours, I developed a severe migraine headache, forcing me to leave the facility at noon and resort to medication.”

For engineer Victor Cusinello, “the whistling and clacking [became]so incessant that I needed to take three vacation days to recover from the stress it caused me.” Managers also claimed that employees blew whistles over loudspeaker systems, attempted to imitate equipment alarms by whistling, and “often concealed themselves when blowing their whistles, making it difficult to identify the culprits.”

Restraing Action

Flimsy as this evidence was, it swayed Judge Gorton, brother of the conservative Republican former U.S. Senator from Washington, Slade Gorton.

“Clearly, the whistling and clacking disturbs the workplace and disrupts communications,” the judge ruled. ”While production at the Sturbridge plant may have increased in the past quarter, there is no evidence that it would not have been even better absent defendants’ disruptive behavior.”

According to Gorton, the union’s protest became particularly objectionable when “the volume and frequency of the disturbance” increased following a management disciplinary crackdown in March that led to three suspensions. The judge found that union members then failed to “file a grievance or seek arbitration with respect to their right to whistle in support of the union during work hours.” On the other hand, grievances were filed (along with Labor Board charges) over the suspension cases, thus creating “an arbitrable dispute” that should not, according to the judge, also be the subject of direct action on the shop floor, plant gate rallies, or informational picketing of the sort sponsored by CWA.

To top it all off, Gorton departed from the usual standard for granting injunctive relief -- the likelihood of “irreparable harm” -- by issuing his restraining order based only on “the potential for irreparable injury” to OFS if noise-making or any other “interruption in the operation of the Sturbridge plant” continued.

“It’s truly outrageous,” said CWA attorney Gay Semel, who recently sought federal court intervention in New York to avert phone company lay-offs while a job security dispute was being arbitrated. “We can’t enjoin employer actions that destroy people’s lives, but they can enjoin whistling.”