Bethlehem Steel Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 982 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bethlehem Steel Corporation and John H. Forunelle.
Case 5-CA-9720
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 14, 1979, Administrative Law
Judge Sidney J. Barban issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief; Re-
spondent filed exceptions, a memorandum in sup-
port of its exceptions, and a supporting brief; and
the General Counsel filed exceptions, a supporting
brief, and a motion to strike certain assertions of
fact in Respondent's memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs,
and motion' and has decided to affirm the rulings,
findings, 2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
I In her motion to strike, the General Counsel contends that Respond-
ent has made four factual assertions in the memorandum in support of its
exceptions which are not supported by any evidence in the record and
which therefore constitute an impermissible attempt to reopen the record
to admit new evidence The General Counsel argues that Respondent's
assertions should be stricken from the record as untimely since Respond-
ent has not claimed that this evidence was unavailable at the time of the
hearing. Although the statements noted by the General Counsel may not
be fully accurate representations of the record evidence, such assertions
in a brief do not constitute evidence which is subject to a motion to
strike. Furthermore, no party has been prejudiced by Respondent's agu-
ments in its memorandum, inasmuch as the General Counsel has had an
opportunity to point out the inaccuracies in Respondent's assertions Ac-
cordingly, the General Counsel's motion to strike certain assertions of
fact in Respondent's memorandum is hereby denied.
2 The General Counsel and Respondent have excepted to certain credi-
bility findings made by the Administrative L.aw Judge. It is the Board's
established policy not to overrule an administratise law judge's resolu-
tions with respect to credibility unless the clear preponlderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd 188 2d
362 (3d Cir. 1951) We have carefully examined the record and find no
basis for reversing his findings.
a Chairman Fanning finds that Fournelle participated in the strike in
violation of the contract and was therefore subject to the same discipline
as the other striking employees. In so fillding he does not rely (on Beihtel
Corporation. 200 NLRB 503 (1972), which was cited by the Adminilra-
live Law Judge
I Member Jenkins approves the remedy, but in addition he would
make the unlawfully disciplined union officials whole for the entire extent
of the discipline imposed, not for just the amount by wshich their loss ex-
ceeded that of rank-and-file employees.
252 NLRB No. 138
hereby orders that the Respondent, Bethlehem
Steel Corporation, Sparrows Point, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
MEMBER PENELLO, dissenting:
Contrary to my colleagues, I would reverse the
Administrative Law Judge and dismiss the com-
plaint in this case. I would find that Respondent
did not violate Section 8(a)(3) and (1) of the Act
by disciplining Charging Party Fournelle more se-
verely than other employees who participated in
the unprotected strike, since he had a duty as a
union official to enforce the contractual no-strike
provision.
I continue to adhere to my analysis of the law as
set forth in my dissenting opinion in Gould Corpo-
ration, 237 NLRB 881 (1978), enforcement denied
612 F.2d 728 (3d Cir. 1979), and in my concurring
opinion in Midwest Precision Castings Company, 244
NLRB 597 (1979). 5 In those opinions, I emphasized
my view that a union official who acquires a bat-
tery of "benefits and protections" because of his
position with the union must also be held account-
able to fulfill certain "duties and responsibilities"
inherent in that position of authority and that fore-
most among those "duties and responsibilities" is
the enforcement of a no-strike clause in a collec-
tive-bargaining agreement. Thus, I concluded that
an employer could lawfully hold a union official to
a higher standard of conduct than other employees
because of the official's responsibilities under the
contract. I would continue to find that an employ-
er can lawfully discipline a union official more
harshly than other employees for participating in
an unprotected strike, because the official has
thereby failed to fulfill his contractual responsibili-
ty to take affirmative action to bring such a strike
to an end.
In this case, there is no dispute that the walkout
of 162 welders on the morning of July 28, 1978,
violated the no-strike clause of the contract and
was thus unprotected. My colleagues in the major-
ity have also found that, while Charging Party
Fournelle did not walk out with the other welders
that morning, by his conduct later in the day at the
meeting in the union hall Fournelle indicated sup-
port for the strike and thus became a participant.
Further, there is no evidence that Fournelle ever
took any action to disassociate himself from the
strike or made any attempt to get the employees to
return to work. In light of these facts, I would find
that Fournelle failed to fulfill his contractual re-
' See also Indiana & Michigan Electric Company v :V L.R B., 599 F 2d
227 (7th Cir. 19791, denying enforcement of 237 NLRB 226 1978).
982
BETHLEHEM STEEL. CORPORATION
sponsibility as a union official to end the walkout
and that Respondent therefore acted lawfully in
disciplining him more severely than other employ-
ees who participated in the illegal strike. Accord-
ingly, I dissent.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Baltimore, Maryland, on June 26
and 27, 1979, upon a complaint issued on September 28,
1978, amended on March 9, 1979, based upon a charge
filed by the Charging Party (herein Fournelle) on
August 4, 1978. The amended complaint alleges that Re-
spondent discriminated, against Fournelle by suspending
his employment for 10 days because of his position as
welding department committeeman in Industrial Union
of Marine and Shipbuilding Workers, Local 33, AFL-
CIO (herein the Union), in violation of Section 8(a)(l)
and (3) of the National Labor Relations Act, as amended
(herein the Act). The answers to the amended complaint
deny the commission of the unfair labor practices al-
leged, but admit allegations of the complaint justifying
the assertion of jurisdiction under current standards of
the Board (Respondent, engaged at Sparrows Point,
Maryland, in the operation of a shipyard, during a recent
annual period purchased and received materials and sup-
plies at its shipyard facility valued in excess of $50,000
from points located outside the State of Maryland), and
supporting a finding that the Union is a labor organiza-
tion within the meaning of the Act.
Upon the entire record in this case,' from my observa-
tion of the witnesses and their demeanor, and after con-
sideration of the briefs filed by the General Counsel and
Respondent, I make the following:
FINDINGS AND CONCI USIONS
1. THE ISSUES
On Friday, July 28, 1978 (all dates hereinafter are in
1978 unless otherwise noted), in the morning, a large
number of employees (stipulated to be about 162) in Re-
spondent's welding department (in which approximately
450 are employed) punched out from work and left Re-
spondent's premises. Fournelle was one of these. A
number of these employees showed up that morning at
the union meeting hall, where an unscheduled meeting
was held in protest of disciplinary action taken by Re-
spondent on the previous day against Chief Shop Ste-
ward Childs of the welding department. After an investi-
gation of the circumstances, including interviews of
almost all, if not all, of the employees who punched out
and left work on July 28, Respondent decided that a
considerable number of those who left that morning, in-
cluding Fournelle, had engaged in an unauthorized strike
in violation of the prohibitions of the current collective-
bargaining contract with the Union against such activi-
The General Counsels motion to correct the transcript, dated
August 7 1979. to , hich no opposition has been reccised is hereby
granted
ties, and meted out 5-day suspensions to all of those em-
ployees, except Fournelle. Because Fournelle was an
elected welding shop committeeman for the Union, and
thus considered more responsible for enforcing and abid-
ing by the terms of the contract, Respondent assessed a
10-day suspension against him. As previously noted, this
proceeding involves only the penalty imposed upon
Fournelle. The General Counsel contends, as discussed
in more detail hereinafter, that Fournelle did not join
with the others in an illegal work stoppage on July 28,
but left work for good reason unrelated to the dispute
over Shop Steward Childs; that, therefore, when Four-
nelle went to the union hall that morning, he became in-
volved in protected concerted activity on his own time,
and was not engaged in a stoppage of work in violation
of the contract; and further that Respondent gave dispa-
rate treatment in this matter to Fournelle; and thus that
the penalty levied against Fournelle violated the Act.
Respondent disputes all these contentions.
II. THE FACTS
A. The Contract
The relevant provision of the applicable bargaining
contract between Respondent and the Union is the fol-
lowing:
Article XVIII-Prohibition of Strikes and Lockouts
During the terms of this Agreement neither the
Union nor any Employee shall instigate, encourage,
sanction, or take part in any strike, sit-down, slow-
down or other stoppage, limitation or curtailment of
work or production, or take part in any picketing,
boycotting or other interferences with or demon-
stration against any Yard or its business or oper-
ations, either in such Yard or elsewhere . . . The
Company may terminate the employment of or oth-
erwise discipline any Employee who willfully vio-
lates any of the provisions of this Agreement in any
material respect ....
B. Circumstances of the Walkout
As has been noted, Respondent imposed certain disci-
pline on Shop Steward Childs on July 27. It is not clear
whether this was widely known among the welding de-
partment employees before the next morning. Nor does it
appear that Fournelle was aware of this action against
Childs before the morning of July 28. However, the next
morning, when Fournelle arrived at work, he fell into
conversation with some welders who were discussing the
matter and who were concerned that the union officers
would not press Childs' case (the record indicates some
rift between Childs and the current union officers-or
some of them-as well as between Fournelle and some
of those officers including Union President Thornton).
These employees requested Fournelle to draw up a peti-
tion to the Union to schedule a special meeting to discuss
the discipline of Childs. Fournelle did so and assisted in
getting some of the welders to sign copies of that peti-
tion. Though Fournelle disclaims knowledge before he
left work that morning that the welding department em-
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees were talking about concertedly leaving work
that morning, in protest of Childs' discipline, that strains
credibility. According to notes made by Respondent of
statements made during interviews of employees who left
work on July 28,2 a number of them acknowledged that
they were aware, prior to leaving work that morning,
that employees in the welding department were going to
leave work and some knew of the plan to meet at the
union hall that morning. Some indicated that they did
not know the reason for this action. Others stated that
they were unaware that there was talk of leaving work
by other employees, or of a meeting at the hall. Consid-
ering that the employees looked to Fournelle for articu-
lation of their concern over the discipline of Childs that
morning, the fact that he discussed that concern with
some of them, and that he had considerable contact with
employees in various parts of the shipyard that morning,
I believe it to be more than likely that he acquired infor-
mation as to what was being discussed, though it may be
that no one told him in so many words that the employ-
ees were going to leave work that morning or assemble
at the union hall.
The great majority of the employees who left work
that morning (including Fournelle) punched out between
9:15 and 9:52 a.m.; a substantial number punched out be-
tween 9:52 and 11:30 a.m. Respondent decided that those
who punched out after 11:30, with one exception, were
not involved in the illegal walkout and should not be dis-
ciplined. The one exception was an employee who was
known to have been at the union hall that morning. Re-
spondent also accepted, on various bases, the reasons
given for leaving work that morning by about 40 other
employees.
1. The weather
The weather during the morning of July 28 is a crucial
factor in this case. It was raining rather steadily and hard
during most of the morning until about 9 a.m. According
to the stipulation of the parties, "Welding work at Re-
spondent's Sparrow Point location is largely outdoor
work and not normally performed in the open in the rain
because of the danger of electrical shock." (However,
some welding, referred to as "dry jobs," are performed
under cover.) Both Fournelle and his supervisor, MacAr-
thur Campbell, testified that it was painful and dangerous
to weld if the welder were wearing wet clothes and
shoes. Though Campbell sought to condition his testimo-
ny by asserting that it depended upon how damp the
clothing was, he admitted at another place that his own
clothing worn to work that morning in the rain was suf-
ficiently wet, or damp, that their condition would have
2 Copies of Respondent's interview notes were received in evidence as
part of Jt. Exh. , agreed to by all parties. Since the statements therein
are, nevertheless, hearsay, I have relied upon them only to the extent that
they seemed inherently reliable, as where such statements were mutually
corroborative and consistent with the record as a whole, or where they
constituted admissions likely to be true, or the statements, in context, had
a ring of credibility.
Since the close of the hearing I have received from the General Coun-
sel more legible copies of the original interview notes These improved
Xerox copies have been submitted to the Board with the original exhibits.
However, the original set of Xerox copies has not been removed from Jt
Exh. I, as suggested by General Counsel.
prevented him from wearing them while operating weld-
ing equipment.
The rule at Respondent's Sparrows Point yard is that
where Respondent is unable to start work because of the
weather, those employees who report for work by the
7:30 a.m. starting time will be granted 4 hours showup
pay for the day. However, on July 28, when the rain
began to slacken about 9 o'clock that morning, the em-
ployees were ordered to work. The employee interviews
show that at least 9 welders who began to work with
wet clothes experienced electrical shocks. These employ-
ees advised their supervisors of this and thereupon left
work though their supervisor did not excuse them.
Other employees advised their supervisors that they
were leaving because their clothes and shoes were wet.
In each case (with one exception) though the supervisor
voiced no objection to their leaving, and gave the de-
parting employee a slip necessary in order that they
might pick up their paychecks that day before noon, the
supervisor did not excuse the employee. In one case, ac-
cording to Respondent's testimony, one employee who
complained of wet clothes was excused from work, and
Respondent assessed no discipline against him for leav-
ing, but no reason for this exception is shown. Supervi-
sor Campbell testified that a first-line supervisor, such as
he is, does not have authority to excuse anyone. If an
employee came to him and said he was wet and wanted
to clock out, Campbell says that if he thought the man
was wet, he would "probably send the man to the office.
If they determine the man was too wet to work, let them
make the decision to send him home." However, none of
the employee interviews, nor any evidence in the record
indicates that this was the procedure followed on the
morning of July 28, even with the employees who
claimed that they were suffering electrical shock because
their clothes were wet.
2. Fournelle's reasons for leaving work
While at work, in the early afternoon of July 27, Four-
nelle broke a filling in one of his teeth. He asserts that
the tooth did not begin to hurt him badly until later, and
he decided to finish out his day's work, and to call the
dentist for an emergency appointment the following day.
The fact that it was raining (or was expected to rain) the
morning of July 28 gave Fournelle an additional idea. He
had in the past been able to phone his dentist in the
morning, on occasions when the shipyard was "knocked
off' because of bad weather, and obtain an appointment
for later in the same day, so he decided that instead of
losing a whole day's pay to visit his dentist, he might
report for work, call his dentist from work, and if the
shipyard was knocked off, lose only a half day's pay.
Fournelle candidly admitted that he did not intend to
work if the shipyard did work that morning.
In the course of walking from the shipyard parking lot
to the clock house, then to the service building where
the employee lockers are located, to his job location,
which was out in the open, and in walking about the
984
BETHLEHEM STEEL CORPORATION
yard while he was on "stand by,"3 Fournelle's clothes
and shoes became soaking wet. He had no dry clothes at
work to change to.
During this period, while he was on standby, Four-
nelle, at 8:30, called his dentist's office and spoke with
the receptionist, who asked that he call back later, since
she did not then have the dentist's appointment book.4
About 9 o'clock, upon being informed that the ship-
yard would work that morning, Fournelle went back to
the area where Supervisor Campbell was working. Four-
nelle told Campbell to stop his pay at 9 o'clock and give
him a slip to get his pay. Fournelle showed Campbell his
wet clothing, and told him that he (Fournelle) was wet
and was going home. Campbell told Fournelle, as Camp-
bell asserts, that this was not a good excuse for going
home, to which Fournelle replied that he was going
anyway for he was wet and was going to see his dentist.
Campbell gave Fournelle a slip that he might get his pay
early. Fournelle clocked out at 9:34 that morning.
3. Fournelle's activities after leaving work
Fournelle testified, and I credit, that he went straight
home from the shipyard, after clocking out on July 28,
changed into dry clothes, and attempted, about 10 a.m.,
to call his dentist, but got a busy signal.5 Fournelle then
went to a bar near the union hall, where he cashed his
paycheck and had some beers and a scotch whiskey.
While there he says an unidentified worker told him that
there was a meeting at the union hall involving Shop
Steward Childs. Fournelle thereupon went to the hall.
When he entered, the place was dark and in some confu-
sion. A television crew from a local station sought per-
mission to film the proceedings and interview some of
the workers in the hall, but the union officers refused to
permit this. However, upon a motion by Fournelle, the
membership voted to let the television crew remain.
Among those interviewed was Fournelle. He states, and
I credit, that he told them that he had left work that
morning because of his wet clothes and in order to see
his dentist. The following edited transcript of the news
broadcast of those interviews, received as an exhibit, is
as follows:
A new contract is being negotiated at Bethlehem
Steel and tensions are increasing. Some 150 workers
3 Those welders who had "wet jobs" (not under cover) were placed
on standby by the supervisor, pending a decision as to whether the ship-
yard would work that morning. Fournelle, in fact, asked Campbell to be
placed on a "wet job." to which Campbell acquiesced without comment
4 There is some dispute as to whether, during this period, Fournelle
visited one of Respondent's dispensaries, to secure aspirin or Tylenol for
his pain. Respondent's records, which passed through several hands and
were consolidated with records from another dispensary by persons who
did not testify, indicate that he did not visit the dispensary. The issue
seems to be raised solely as an attack on Fournelle's credibility. Insofar as
it makes any difference, I am inclined to credit Fournelle on this point
There is no question but that he had a badly damaged tooth and probably
was in pain.
a Union President Thornton's testimony places Fournelle outside the
union hall about 10 am. I believe he is mistaken. Although at arious
points Fournelle's testimony approaches or goes beyond the limits of be-
lievability (e.g., his dilatory, casual efforts to reach his dentist while
claiming to be in pain from a broken tooth), I do not believe that he went
directly from work to the union hall in his soaking wet clothes, particu-
larly since he was about the last worker to enter the hall for the meeting
from the Welding Department of the Shipyard
gather at their Union Hall at South Haven Street
after they walked off the job this morning to protest
the firing of their Shop Steward, Jim Childs. They
claim he was fired for insubordination while trying
to investigate another charge against another
worker. The dismissal has since been reduced to a
five-day suspension.
Statement of John Fournelle.
I think the Company should reduce his sentence
to no suspension, because he didn't do anything
wrong.
Statement of short Black woman with glasses.
We are here to support him, in any way that we
can, because we are paying for this person. We put
him into office and we think he is new and if he
makes a mistake that he should have a chance to do
his job.
Newscaster.
The leaders of the Union said they got Manage-
ment to reduce the dismissal to a suspension and
they urged the welders to go back to work and so
did the Shop Steward.
Statement of Jim Childs:
My feeling, you know, I don't like to bring into
these things because I have a job and a responsibili-
ty which is to my department which I have already
told all of them that the best thing to do at this
point is to go to work. It will benefit me and to
benefit yourself.
Newscaster.
But the workers were angry about other griev-
ances as well.
Statement of John Fournelle.'
We have a contract coming up in two weeks, we
haven't heard one damn word from the Company
but take away stuff from us. They are harassing us;
the Welding Department comes under the most
crap in the Yard. They are increasing the amount of
work we have to put out. We've been called to the
office for low production. They want us to be their
slaves, and they're offering us no other choice but
to stand up for ourselves. There are other depart-
ments supporting us. The thing about it is that Beth-
lehem Steel doesn't care about us, they just want us
to be their slaves and the new boy up there at the
top, J. Kreis, thinks he's God and thinks he can do
whatever he wants to do to us.
Newscaster:
And many of them charge that the Union was
selling out its own members by not supporting them
and not telling them what is going on in the con-
tract negotiations. As they left the Union Hall, they
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed petitions demanding another meeting to
force the Union to support them. Meanwhile, Beth-
lehem Steel would only say that the workers were
mistaken about the firing of a Shop Steward.
The meeting concluded, Fournelle left, went to an-
other nearby bar, called his dentist and obtained an ap-
pointment for approximately 2:30 that afternoon. The
dentist saw Fournelle about 3 p.m., and repaired the
damaged tooth.
On July 31, the next workday, Fournelle brought his
dentist's certification into work. He was interviewed by
management as to his activities on the 28th, as to which
he was something less than cooperative, but explained
that he had left work because his clothes were wet and
he had to go to the dentist. On August 3, before Re-
spondent had finished investigating other employees who
left work on July 28, and 2 weeks before any other em-
ployee was disciplined, Fournelle was called in and
given an "Employee Warning and Disciplinary Report,"
advising that he was being suspended for 10 days for
"participating as an elected union official in a work stop-
page on July 28, 1978 in violation of Article XVIII of
the Agreement." Respondent contends that Fournelle
was penalized 5 days for participating in an illegal work
stoppage on the same basis as all other employees who
Respondent decided had engaged in that work stoppage,
and an additional 5 days for his participation in that ac-
tivity as an elected union official.
Ill. ANALYSIS AND CONCLUSIONS
The strike of a large number of Respondent's welding
department employees on July 28, in protest of Respond-
ent's discipline of Shop Steward Childs, and apparently
because of the employees' impatience with the course of
bargaining for a new labor agreement, was in violation
of the no-strike provisions of the then-current contract,
and thus, in the circumstances of this case, unprotected
under the Act. Discipline of such employees generally
for engaging in such conduct would not violate the Act.
See, e.g., Bechtel Corporation, 200 NLRB 503 (1972).
However, the General Counsel contends, and I agree
that when these welding department employees went on
strike, Fournelle (whose discipline is the sole issue here)
did not join with them in their protest, though he left
work at about the same time. The record is convincing
that at the time some of the other welders walked out,
during the morning of the 28th, Fournelle left because he
was soaking wet and it would be painful and dangerous
for him to work in that condition,6 and because he had
determined to take the day off in any event to see his
dentist to have a broken tooth repaired before the week-
end. The record shows that other welders who began
welding that morning while wet suffered electrical
shocks, and after protesting to their supervisors, left
6 Both Fournelle and Supervisor Campbell testified that it would be
painful and dangerous to weld while wearing clothes that have become
soaking wet. That morning Fournelle had walked for a considerable dis-
tance in a heavy downpour in his work clothes Campbell, who had
walked an apparently lesser distance in his street clothes in the rain about
the same time, or a little earlier, testified that he could not have welded
in those clothes in that condition.
work. Indeed, it is difficult to understand, on this record,
why Respondent was so insistent that the welders who
were wet should continue that morning.7
This, however, does not dispose of the issues in this
matter, for Fournelle, after leaving work and changing
into dry clothes, thereafter went to the union hall where
the strikers were gathered and participated in their activ-
ities, thus supporting and approving their work stoppage.
The General Counsel argues here, however, that since
Fournelle had legitimately left work, and was not then
on strike, these later activities were "on his own time,"
and thus cannot be held to violate the contractual no-
strike clause. The Board considered a similar situation in
Bechtel Corporation. supra, where, at the time other em-
ployees went out on strike in violation of the no-strike
clause in the contract there, employee Steel, then on an
approved leave of absence, was unaware of the strike
and did not participate in it at the outset. The Board
held, however, that Steel, by his conduct thereafter evi-
denced his support for the strike and was properly disci-
plined as one of the strikers. Thus, Fournelle, by his con-
duct at the union hall in supporting the unprotected
strike became a participant therein in violation of the
contractual no-strike provision, and was subject to disci-
pline on the same basis as any of the other employees
who participated in the illegal walkout.
The General Counsel points out, however, that Re-
spondent did not treat Fournelle as any other employee,
for it suspended him for 10 days for participating as "an
elected union official" in the walkout, whereas all other
employees were suspended for only 5 days. She argues
that under the principle laid down by the Board in Preci-
sion Castings Corporation, 233 NLRB 183 (1977), and
other, similar cases, the entire penalty assessed against
Fournelle should be held violative of the Act. In Preci-
sion Castings, the employer there suspended 5 shop stew-
ards for participating in a walkout in violation of a no-
strike clause. The Board stated (233 NLRB at 183-184):
. . . The fact that the disciplined employees partici-
pated in an unauthorized strike in breach of a valid
contract provision does not legitimize Respondent's
action in this situation. Respondent's freedom to dis-
cipline anyone remained unfettered so long as the
criteria employed were not union-related. In the
case before us, however, Respondent admits that
the reason for selecting these five employees for dis-
cipline was that each held the position of shop ste-
ward and, therefore, under the terms of the con-
tract, could assertedly be held to a greater degree
of accountability for participating in the strike.
However, discrimination directed against an em-
ployee on the basis of his or her holding union
office is contrary to the plain meaning of Section
8(a)(3) and would frustrate the policies of the Act if
allowed to stand. Accordingly, we find Respond-
Campbell, Fournelle's supervisor, testified that it was the practice
when welders claimed they were too wet to work to send them to higher
supervision to determine whether they should be excused. So far as ap-
pears, this was not done on the morning of the 28th.
986
BETHLEHEM STEEL CORPORATION
ent's disciplinary action violative of Section 8(a)(3)
and (1) of the Act.
See also Gould Corporation, 237 NLRB 124 (1978);
Westinghouse Electric Corporation, 243 NLRB 306 (1979).
Nevertheless, as I read these cases, they seem to re-
quire only that I find that so much of the penalty as-
sessed against Fournelle because he was a union official
be found violative of the Act, and not that Fournelle
should also be relieved of that part of the penalty which
was imposed on other employees who participated in the
illegal strike. It is therefore found that Respondent, by
imposing a penalty of more than 5 days' suspension upon
Fournelle for participating in an illegal work stoppage, in
the circumstances of this case, violated Sections 8(a)(3)
and (1) of the Act. See, particularly, Westinghouse Elec-
tric Corporation, supra.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of the Act.
2. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By suspending John H. Fournelle for 5 days more
than other employees participating on July 28, 1978, in a
work stoppage unprotected under the Act, solely be-
cause he was an elected union official, Respondent en-
gaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, which unfair labor practices
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent violated the Act
by suspending John H. Fournelle for 5 days more than
other employees participating in an unprotected work
stoppage, it will be recommended that Respondent make
Fournelle whole for any loss of pay or benefits which he
may have suffered as a result of the discrimination
against him by payment to him of a sum of money equal
to that he would have earned as wages and benefits
during such additional 5 days, less any net earnings re-
ceived during such 5-day suspension, and interest thereon
to be computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 139 NLRB 716 (1962). 8
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 9
The Respondent, Bethlehem Steel Corporation, Re-
spondent herein, its officers, agents, successors, and as-
signs, shall:
a The General Counsel argues for an interest rate of 9 percent The
Board rejected this argument in Florida Steel. supra.
g In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
1. Cease and desist from:
(a) Suspending from work, or otherwise disciplining
officials of Industrial Union of Marine and Shipbuilding
Workers, Local 33, AFL-CIO, the Union herein, be-
cause they are officials of the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the National Labor Re-
lations Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make John H. Fournelle whole for any loss of
earnings and benefits he may have suffered as a result of
Respondent suspending him from work for 5 days more
than other employees participating in the work stoppage
on July 28, 1978, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Rescind and withdraw from Respondent's records
any discipline imposed upon John H. Fournelle for par-
ticipation in the work stoppage on July 28, 1978, solely
because he was a union official.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to facilitate the effectuation of the Order
herein.
(d) Post at its shipyard at Sparrows Point, Maryland,
copies of the attached notice marked "Appendix." °
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ings. conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'o In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Latxor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
987