Gould Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 881 (N.L.R.B. 1978)

j01_ H1) C(ORPORATION
Gould Corporation and .lames P. Moran. (ase 4 (C.
8519
AuLLust 25 1978
DECISION AND) OR[I) R
On November 18. 1977. Administrati\ce I.ax .Jlu.ul
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter. Respondent filed exceptionlls
and a supporting brief. the General Counsel and the
Charging Part) filed cross-excepitols anMd briefs, and
Respondent filed a brief in response to the ciros-
exceptions.
The Board has considered the record and the at-
tached Decision in light of the exception.ll alid hlriefs
and has decided to affirm the rulinus, findlings. and
conclusions of the Administrati xe I ;t\' Judec a ld Ito
adopt his recommended Order.
The collective-hargaiining contract has a no- strike
clause and requires union officers to "use s ver rcNa-
sonable effort to terminate such unaluthorized ac-
tion." Union Stew ard Moran joined a 2-h(our v ork
stoppage in support of a griexlance. but he neither
instigated nor led the stoppage.
Respondent discharged Morain. but none of the
other employees. for violating the no-strike clause.
Respondent denied the Union's request for mlitila-
tion because of a previous verbhal \sarrning to Mlor ail
in connection with a 1973 stoppage. For details. Re-
spondent referred to a Februarx 1976 letter. adJi sin-
the union president that Nloran had "repeatedlx io-
lated the procedures established (contractuallx) for
resolving disputes." ' he letter noted that. in addtitioll
to participating in a 1973 stoppage. Moran had filed
charges with OSHA. EEOC, and NLRB. Vwithout
first using agreed-upon procedures. An internal prog-
ress report regarding the discharge states that as a
shop steward Moran has a "particular obligation to
observe the [contract]." which he did not do during
the most recent stoppage nor in his "past actions" as
an employee and shop steward.
The Administrative Law Judge concluded thiat
Respondent violated Section 8(a)(3) because its disci-
pline of Moran was based on Moran's union status
rather than on his conduct as an employee. Ile relied
on Precision ('astings C(omlamprv. 233 NL.R B 183
(1977). wherein the Board found unlawful the em-
ployer's disciplining of only' the union stew ards fol-
lowing an unauthorized stile. admittedls because as
stewards they participated in the strike rather than
urging other employees to return to work. Hie also
concluded that Respondent violated Section 8(a)4).
evidenced by the content of the internal progress re-
port. We agree.
()ne of our dissentingc colleagues dismisses as a
"simlplistic approach." iand the other chooses to ill-
nore. thel fundamlental \liomnl f our national labor
polIC\: an il inidualJ canlnot he discriminated against
bcLcuase of his union status. Axruingll thait nll individ-
ual mnia be discharged for i ,olating a contract provi-
sion ll hile actinlg in his poition as union stevward
begs tile questlol. t ere the steward acted in concert
\vith apprloxilmatel 50) other emplo ees, but was sin-
gled out for discipline solel\ because he was the ste -
ard. lie was discharged not because of his actions as
aln etilploec. but hecause of his lack of actions as a
stlc\alrd, a legaIll impernirssible criterion for disci-
plire under the Act, alnd one xhich is not validated
b at conltract clause that specifies the responsibilities
of tinion officers while actin a.is union officers. The
contract is hindinig hbeteen the Emplo\er and the
unlion. hut ldoes not grant the emilplo er the power to
enforce it h\ discharginl union officials. The eim-
plo \er's recourse is against the union entit, rather
than agIailnst the indli iduals who serve the unit bh
holdimng union office. Fmplo er self-help against indi-
i dual union officills for a union's breach of contract
call onl\ unLdermine tihe peaceful settling of disputes
and clears a1 paith for employ er interventiorn in a
union's inter-nal affairs in a wa\ that is specificall.
harred to uniolns in the corollary situation hb Section
8X(h)( I )( B. wvhich prohibits restraint or coercion of an
erinploer inl the selection of his representati es for
collcctie hbargaining or adjusting grievances.
ORI)E R
PIursuant to Section 10(c) of the National lIahor
Relationls Act. as aliendled. the National l.abor Re-
lations Board adopts as its Order the recommended
Order of the Adnmiiistrative L.aw Judge and hereh!
orders that the Respondent. (Gould Corporation.,
Philadelphia. PennsylvIania. its officers. agents. suc-
cessors. and assigns. shall take the action set forth in
tile said recomiliended Order.
Mt \litu R I' R srI t. concurring in part and dissent-
ing in part:
In aereement w ith the majorits. I would affirm the
finding of the Administrativ e Law Judge that Re-
spondent unlawfully relied on Moran's prior com-
plaints to various Government agencies in justifying
its decision to discharge him after the unauthorized
work stoppage. lust as a labor organization may not.
through renimoval. discipline a steward who seeks re-
lief from the Board or other Government agencies
outside the conlltractual grievance procedure.' so an
(tll lle 1tsk' t/tdt ] rLl2l¥ rhl,','on fizr/,ortll. _7 NI RB 16.9S { 1q771.
4lwlmralhllrt, %f.tl ( Il t' 11[Itttlltl
r
](d ( ,* tf) 1( 1 SI NI RR ' :' 1971))
237 NI.RB No. 124
881
DE('ISIONS OF NAT'IIONAL LABOR REL.ATIONS BOARD
employer may not, through discharge, discipline a
steward who engages in the same activity. For this
reason, I would find that, by discharging Moran. Re-
spondent violated Section 8(a)(1) and (4) of the Act.
However, in disagreement with the majorit, I
would not find that Respondent violated Section
8(a)(3) of the Act and would therefore dismiss that
portion of the complaint. The record shows that, un-
der the collective-bargaining agreement, "any em-
ployee or employees, either individually or collective-
ly, who shall cause or take part in any illegal.
unauthorized, or uncondoned strike, work stoppage,
interruption or impeding of work during the life of
this Agreement, may be disciplined or discharged hby
the Company." Furthermore, Moran, as steward.
was obligated under the collective-bargaining agree-
ment to "immediately order {Union] members to re-
turn to work," to "refuse to aid or assist in any such
unauthorized action," and to "use every reasonable
effort to terminate such unauthorized action."
There is no question that Moran not only failed to
take any steps to end the unauthorized xwork stop-
page, but in fact actively encouraged its continua-
tion. I believe the majority would agree that, under
the collective-bargaining agreement, any employee
other than a union officer who acted as Moran did
could be discharged by Respondent. I would further
find that Moran's status as a steward does not shield
him from the consequences which would be visited
on any other employee, and would therefore find
that Respondent did not act unlawfully in discharg-
ing this employee, who violated the contractual no-
strike provision and encouraged his coworkers to do
the same.
In finding a violation, the Administrative Law
Judge relied on Precision Caslings Compilany, 233
NLRB 183 (1977). 1 disagree with the holding of that
case because, in my judgment, it is not sound either
as a matter of law or as a matter of policy. With
regard to the former, the Board, in finding a viola-
tion in Precision Castings, cited Pontiac Mlotors Divi-
sion, General Motors Corporation, 132 NL RB 413, 415
(1961), a case which is factually distinguishable. In
Pontiac Motors, the union official involved "neither
caused nor took part in the work stoppage" for which
he was disciplined. Accordingly, the Board's decision
in Precision Castings is without any clear precedent.
More importantly, it is well established that an em-
ployer faced with an unprotected strike in the face of
a no-strike clause need not discharge or otherwise
discipline all employees who participate. ('allfornia
Cotton Cooperative Association, 1.t(1. 110 NLRB 1494
(1954): McLean Trucking Company., 175 NL.RB 440,
450-451 (1969); Chrysler Corporation, Dodge Truck
Plant, 232 NLRB 466 (1977). The majority's position
would appear to say that the employer can, of course,
discipline all unlawvful strikers, but if it chooses to
discipline onl], some of them, the "mix" had better
include rank-and-file employees as well. As noted, I
do not believe that an employee's position in the
union should provide a basis for insulating that em-
ployee from otheirwise legitimately imposed disci-
pline for engaging in unprotected activity.
Furthermore, where, as here, the Union has bound
itself and its agents contractually to take affirmative
steps to end any wort k stoppage. I would find that it
is not unlawful for Respondent to discipline an agent
of the Union who has instead taken steps to prolong
the stoppage. To hold otherwise would render mean-
ingless the UTnion's clear and unmistakable contrac-
tual commitment to "use every reasonable effort to
terminate such unauthorized action." For the Union
has committed itself presumably as a contractual
quid/ pro (uo not only not to condone unauthorized
work stoppages bh the employees, but also to do ev-
erything in its power to end such stoppages immedi-
ate1y. Were we to find that the discharge of the stew-
ard here for leading the unauthorized strike was
discriminatory under the Act, we would undermine
the U.nion's commitment, contrary to the national
policy favoring the peaceful resolution of labor dis-
putes.
For all these reasons, I would overrule Precision
(avstr'ngs, .supra. on which the Administrative Law
Judge relied.
Finally. it is important to note what this case does
not involve. Unlike our recent decision in Owens
Corning Fiberglas Co., 236 NLRB No. 32 (1978), this
case does not concern a union steward who was sin-
gled out and disciplined for engaging in conduct
which had been condoned for years when engaged in
by rank-and-file employees. Rather, it concerns a
steward who, contrarx to his contractual obligation
as a representative of the Union, abetted an unau-
thorized work stoppage despite the fact that the
grievance to which the protest related was then being
processed through legitimate contractual channels.2
F or the above reasons. I would dismiss that por-
tion of the complaint alleging a violation of Section
8(a)(3) of the Act.
M-MfBKR Pt.NLI.i)o. dissenting:
For the second time in the past 6 months, my col-
leagues of the majority have decided that an em-
Sinillaris, it Syi'r I /l z l '. , Dai m nt) of S.pe.r 1alu s,,r'. I.e. 228
NLRB 1254 ( 1977). ihe I,aid upheld an Administrati'e Law Judge's find-
ing that the respondent i i that case had nlot violated the Act bs disciplining
and dischargine stoencl d ho jilned an unaulhorlred work stoppage in
decrogation of their respuonh ilitics as stewards I would find Superr I /la
tornlolln I-I in hut In l,,h t ( tlilitl, and the instant ( ase.
882
GOUILD CORPORAT ION8
ployer may not lawfully discharge a union steward
who participates in an unauthorized illegal , ork
stoppage and who fails to fulfill his responsibilities
and duties under the collective-bargaining agree-
ment. In their extraordinarily simplistic approach to
the problem, the majority opinion in the instant case.
as well as the decision in Preci.sion ( a.ving, ( o)npair,.
233 NLRB 183 (1977), on which they rely, complete-
ly ignores the following relevant factors: ( I ) that
Union Steward Moran was discharged not owl/ilr be-
cause he was a union steward. but rather because in
his position as a union steward he failed to fulfill his
affirmative duties under the collective-bargaining
agreement to end the illegal work stoppage: (2) that
to violate Section 8(a)(3) of the Act, a discrininatorv
discharge must not only be union-related, but must
also have as its purpose the encouragement or dis-
couragement of union membership: and (3) that the
fundamental importance of the griex ance-arbitration
system and its companion no-strike agreement to the
peaceful settlement of labor-management disputes.
as mandated by Congress, applied bv the courts and
the Board, and consistently interpreted by a long line
of arbitral authority, will be seriously undermined bh
their decision. For these reasons. as fully discussed
below, I vigorously dissent from the majority's opin-
ion in the instant case, and I would dismiss the com-
plaint in its entirety.
The basic facts are not in dispute. Respondent has
had a long collective-bargaininL historNy with the
Union. The alleged discriminatee . James P. Miorlan.
was elected a union shop steward in 1971. At the
time of his discharge, he was the stew ard on the "B"
shift (4 p.m. to 12:30 a.m.) representing employees
on the first and third floors. Moran's immediate sup-
ervisor was Foreman Roger Scott.
Several days before his discharge. Moran had filed
a grievance concerning the perforimance of alleged
contract-unit work (expediting) bh a supervisor. Al-
though Respondent had a prescribed time within
which to respond, the period was extended bh the
Union at Respondent's request. Ilowever. a number
of employees were concerned about the grievance
and, without waiting for managemrent's response, ap-
proximately 50 third-floor employees engaged in an
unauthorized work stoppage by congregating in the
timeclock area from about 4 until 6 p.m. on October
13, 1976. After the employees had ceased work for
about 30 minutes, Scott asked Moran to return to his
work area, but Moran replied that "I'm not going
back to work until we get an expediter." Shortl,
thereafter. Scott stood in front of the assembled em-
ployees near the timeclock and aislked them to return
to work. Moran. who was standing next to Scott in
front of the assembled emplo\ees. stated for all to
hear that hle ~was taking his coffeebreak, that all the
other employees were entitled to do the same thing.
and that "we aren't going back to work until we find
out what's going to happen [on the 'expediting' griev-
ance]." The work stoppage finally, ended through the
efforts of Union Representatives Brennan and [lan-
nings.
()n October 19. Respondent notified Moran that
he wtas terminated effective October 21 for "violation
of Article XVI of the collective bargaining agree-
ment. '' Moran was the onl, employee discharged
for the October 13 work stoppage.
The Union filed a grievance concerning Moran's
discharge. At a fourth-step grievance meeting, the
Linion inquired as to whether Respondent would
consider ai reduction or mitigation of Moran's dis-
charige. Respondent's director of industrial relations,
Jeffre' Panclera. refused to reduce the discharge be-
cause of Moran's prior participation as a union stew-
ard in a 1973 work stoppage. Panciera then referred
to a letter dated }:ebruarv 18. 1976. which was writ-
ten h, Respondent to the Union concerning Moran.
in which Respondent complained about Moran's in-
volement in a 1973 swork stoppage. The letter stated
that Moran was verballyI warned that he could he
discharged for again engaging in an illegal work stop-
page. I'he iUnion then requested that Panciera read
the rest of the letter, which complained about
Mlor an's repeatedly going outside of the contractual
procedures for resolving disputes. such as his filing
complaints with the LELO('. OSIIA, and NL.RB with-
out utilizinge or exhausting the agreed-upon contrac-
tual procedures for resolving such disputes. -The con-
duct descr-ibed in the tebruar.\ 1X letter was based
on Mloran's status as a union steward and that Mor-
an was particularl 3 bound bv such status to adminis-
ter the collective-bargaining4 agreement. The letter
specifically stated. however. that "his rights to take
such individual actions, as an employee, are not in
question." Respondent in the February 18 letter did
not threaten to discipline Moran for his activities.
but merel requested that the UInion advise MNoran of
his duties under the collecti, e-bargaining agreement.
Based upon the eidence above, the Administra-
tive I.aw JudLe concluded that Moran's discharge for
A. C dinll to .Irtl X I. ei I1. iof the .olilecti he-bargaining agreement.
" the L nllnl agree Ithatl it 111I [t IaIll. lMlion. or engage in ans strike.
olu,,doIirn ior 'topp.l ( if ork ' Sec 2 tirate, that "aln emplhoee or em-
plrci ee eCithel miihidu.ll or colleiic ,cl. , vhi, s'hall cause or lake part in
.1i, Iliega.l, lIn.lulilhIrized o1r unl, ndoned strike. 'ork stoppage. interruptiin
or niptdidg of t ork du, ri g tle life of Ihis
4
greement. mas he disLiplined or
d siharied hb the ( llpiltn " I ll.ilI,. se. 3 tales thal in the esent of arl
Ilaiilltorlile i. rk sliopp eAC Ihl ie l I s i- , i of fier,,, and it, repre.entlall.es
itU "-oldel I1i- Iet I hbrie Ii rtlLil t t . etuis e lr aid or .itl [l I e
tlatliitihrlecl llilt" o 1nid " sIe csCI IC.etllairie effort to terminalie such
11:. IIth,,T I/Cd 1r l,, r Il
883
DE(CISIONS OF NATIONAL LABOR REI AI'IONS BOARD
willfully failing the responsibility of his union posi-
tion was clearly union-related and, thus, it violated
Section 8(a)(3) and (I) of the Act. The Administra-
tive Law Judge relied solely on the Board's recent
decision in Precision Castings Companr . suprr, to sup-
port his conclusion.4 In addition, the Administrative
Law Judge concluded that Moran's discharge was
motivated in part by Moran's having filed charges or
complaints with the EEOC, OSHA. and NL.RB. and.
thus. Respondent violated Section 8(a)(4) of the Act
as well.
The fallacy in the rationale employed by mv col-
leagues in the present case, as well as in Prci.iiOl
Castings, is painfully obvious even to the unsophisti-
cated observer. In the simplified view of the matjority,
the Employer in the instant case, as well in Preci.ion
Castings, singled out the union stewards from among
all the employees for discipline solch, becaluse they
were stewards. However, the majoritv overlooks the
crucial fact that the stewards in both cases were niot
disciplined sole/v because they were union stewards.
but rather because they had failed to fulfill the duties
required of a union steward under the collectixe-bar-
gaining agreement to take all reasonable steps neces-
sary to end an unauthorized, illegal work stoppage.
In the instant case, the collective-bargaining agree-
ment specifically requires that, in the event of an ille-
gal work stoppage, union stewards must use every
effort to get the employees back to work and to re-
fuse to aid or assist the work stoppage. Moran did
absolutely nothing to end the work stoppage and, in
fact, he affirmatively aided and assisted the stoppage
by his statements in front of all of the striking em-
ployees.
In addition to this erroneous factual finding, the
majority's application of Section 8(a)(3) of the Act is
incorrect as well. One of the most firmly established
principles of labor law states that, for a discharge to
be found discriminatory under Section 8(a)(3) of the
Act, there must be proof that the discrimination had
as its purpose the encouragement or discouragement
4 ihe facts in Prieciriion (atx/ing. (om[lpanr i are striklllsn iln ilr I t the
fclts in the instant (ase. f:iSe union stewards were sisI ipnded fol Idlllt2 to
aIhide hv their contrlactual responsihilits to take ;ill lc lOi.llhl. c tale pl Io tiC
llinale an tiniuIthorlied work stoppagce which visilaleld lOiltrk.ilul III,-
strike clause The suspended stewilds had noil beein aItIle X ici 11111 i
conducting the strike. ilthoulgh then had leanrl paiiipaiCtld IIn it Ae pan;l
of C(hairman Fanning and Members Jenkins and Murplih icerseacl Ihe Xd-
ministrative Law Judge's finding that the respontde int haid lIawf all' in oked
its right under the nil-strike clause oIf the contrlact to) sIIlispendll e flve U llIi
stewards .According to the panel. the respondent w is free io discipline an-
one is long as the criterion was nol "union related " Silloe lie respollelnt
admitted that the reasolnn for suspending the five unilon stei lrls s i, hea.;lse
of their position In the union and their failure toI urge the srikcrs to letiril
to, work. the panel concluded thalt such conduct was "dlsrl-innilitl dilect-
ed against an emplosee in the basis of his or her hioldinig iiiihn ioffice
[which] is contrary tio the plain meaning of section 8(1 1)(3) al ii Nould htli-
trale the policies of the Act if all, wed Io stand"
of union menlmbership. 'I here has been no such show-
ins in the instant case. nor in Precis.ion (C.stMins.
Rather. the emploeer in both cases was merely at-
tempting to enforce a valid collective-bargaining
agreement bh disciplining those employees who had
violated specific provisions of such agreement. The
employer-'s action in both cases was for the purpose
of encouraging the process of collective bargaining as
well as the goal of peaceful labor-management rela-
tions. an object which mv colleagues would surely
agree is not prohibited bx Section 8(a)(3) of the Act.
I he practical effect of the majority's opinion is
quite disturbing, to say the least. According to the
mafjority's analysis. an employee who becomes a
union stew ard acquires a battery of benefits and pro-
te(''ionl.' without an iota of burdens or responsibilities
in return. For I aml certain that my colleagues would
not question the accepted principle that union stew-
ards who are engaged in the processing of grievances
max engage in conduct which otherwise would be
unprotected by the Act.' Nor would they dispute the
principle that the maintenance and enforcement of a
clause in a collective-bargaining agreement granting
union stewards superseniority for the purposes of
lavyoff and recall over the rest of the employees in the
bargaining unit is lawful.7 Such benefits or protec-
tions are granted so./e/i because of the employee's po-
sition in the union and for the purpose of properly
administering the collective-bargaining agreement.
H[lo ever. when a union steward is disciplined be-
cause he has improperly administered the collective-
bargaining agreement by failing to fulfill a duty in-
herent in his position and which would not exist but
lor his union position, my colleagues are quick to
find a violation on the part of the employer.
The majority's rationale is clearly inconsistent and
illogical on its face. In addition, their conclusion that
union stewards are under no affirmative dutv to en-
force a no-strike clause of a collective-bargaining
agreement completely ignores the crucial significance
of the grievance-arbitration procedure and its com-
panion no-strike clause to the proper administration
of the collective-bargaining agreement. as mandated
by Congress in the National l.abor Relations Act, as
applied by the courts and the Board, and as consis-
tentlI interpreted by a long line of arbitral authority.
I he grievance-arbitration. no-strike trade-off re-
ceived its initial impetus from Congress in Sections
201(c) and 203(d) of the National Labor Relations
Act. as amended. In those sections. Congress encour-
See Ih, Radi.) (01)tb ci' ' I lrvn 0 the ( wotnm r tcdl Iveraphver I {eniloll v.
\ I.R I , 47 [ S. 17 I1954
'' f arc n ( n'r1 , /'ttttdcutu ( ,. ,t1 ltil 177 N [ R B 122 119691: I lhr Pah} -
l;,,i ( i iriiil 148 N RB 179 (19(,4)
lIi, It ,i,,i , ,i In, 22 I RB H 628 ( 1976) )lirl/e (t ipral e In,
219 NLRB 656 (11975L
884
(GO1 It) ( OR PORA I ION
aged the "final adjustmlent hb a method agretCd upon
by the parties . . . to be the desirable method tfor
settlement of griesvance disputes arising o, el thile ap-
plication of an existini collectivc-h;bat-arnin actree-
ment." 8 Ihe Supreme ('ourt has ackno\% Icdc'cd tills
mandate from C'ongress in its interpi-etation and ap-
plication of Section 301 of the Act. In Ic xl/c It orA-
ers Ltiont o( America, .-1 IH. ('10 N. lo ti(I/n M1ill/ ,L
,Alahunla," the Supreme ('ourt held that rircxance-
arbitration agreements are enforcea;bl iln I cdcral
courts under Section 301 of the Act. he ('OUlt ill
Lincoln M1ills recognized that "tithe agreement to alrhi-
trate grievance disputes is thie liud/ p,' qto, I'o in
agreement not to strike." rels ing heasi lnx o the Ices-
lative histor 5: behind the congressional enactmlent of
Section 301 that:
If unions can break acreements with relatixe
impunit . then such art cements do not telld t
stabilize industrial relations. I'he execution of an
agreement does not hb itself promote induistri;l
peace. lThe chief adsvantage x tici 1 wian emplolerl
can reasonablh expect from a collec tise lahbor
agreement is assurance of unlinterrupted opera-
tion during the term of the ag. reeiient. N\ ithotut
some effective method of assuring freedom frlom
economic warfare for the term of the acreeimenit.
there is little reason h) an cml1plo ier x ouldM de-
sire to sign such a contract.` }
1'he Supreme Court reaffirmed the crucial inlpor-
tance of the grievLance-arhitration. no-strike trade-off
in the Stcel/workcrs 7'rii/o r. statintc that. to conm-
pletely effectuate the F eder;l polics, of promiotill in-
dustrial peace. the collectivxe-baraininl actreelientl
should contain "both an arbitration provision for all
unresolved grievances and an absolute prohibition of
strikes, the arbitration acreement being the 'quid/,rI
quo' for the agreement not to strike. " 12
Today, the enforceability of the crievsance-arbitra-
tion clause against the emploNer and the no-strike
clause against the union are firmlh established under
Federal law. Thus, when an emplo !er is confronted
by a work stoppage which violates a contra;ctual no,-
strike provision of a collectixe-hbartainii ng a reeriment.
it has a number of legal avenues to pursue. In order
to get the employees back to work ;as quickl as pos-
X Natior n al u ..ahr Relnahons \t i Il/; i lci enA. Se 1 l (t Sc ' /, ,t LlR, 1 t
B-rwn, {' ,m R wjh'lfrllq t/I i t ilt , 21 'A t Ro I
(1975)
351 I S 448 (I9)"
Id at 454
I i' totht1j l.'t'J/(tfti t \ 4l tl1ri lt . .l tItlIliliii"r lk ( ii ,l, [l S (IIl;
( 91r0): l nif 'i, S.teel,( r] r, * 411I 11' .' 1I rt t (/,ut, t i arr ,a1, , ( , l/t
LI.S 574 1900: / t1it .l en d tl. oriL ,AL 4 ar l .,-cIi r/,, Ii ir- Lka ( i,
(' r t(n3 I S. 59t i 19t.O).
I pivl m 'st',! 5 ['1lttl ( (ll-1l itlrtkq\tto ( a .. , titI ! ,,(t L 7I f1l
sible. the emplo ier max seek an injunction unlder
Section tt)1 of the Act. If it is possible to determine
the extent to uhich the emploer has been damaged
mIonettarill hb thie x\ork stoppage. the emplo!er ma!
sue the union ftor such damlages under the same sec-
tion. Il. ossexer if tile work stoppage is clearl! unaiiu-
thori/cd h\ the union. as in the instant case. and the
unioin haas done cx ersithing in its power to end the
u-ork stoppage. the emplox er's remedies are much
mlore iniited. InI such a case. the emplo_'er's abilits to
discipline those emplo_'ecs who participated in the
illegal ' or k stoppage is of paramount importance.
I he Sex \enth ('ircuit Court of Appeals recognized
thlis in stu lair O(il ( 'orotrticon v. Oil, (Cheucmial anld
.I /t/ll/< It Jt)liC' hlicrt'latliOntal I VJtmt in which it
held that unioin miembers who breach the no-strike
clause ol a collectixe-bargaining agreement in defl-
ance of their uniornt leaders are not individualli liable
fo, mllla.cs under Section 3()1 of the Act. Accordinc
to tile court.
(onrtress. itl the debates over Section 301. ex-
phlctlI considered the problem of wildcat strikes
aild l possible remedies. Ihe remedies suggested
,,cre dlchllrgc-l and discipline. I here is no indi-
cation that (Conlress considered Section 301 it-
self a reinmed for an aggrieved emploer.
We consider that the primar! remedy of Sinclair
is discharge or discipline of individual defen-
diatlls. 1
I hus. the colul itl .Sim lair ()il recognized thatt the
prillar\ remlleds, otf il emploi'er when confronted bh,
an ulllaulthor-ietd,. illegal uork stoppage is the disci-
plitne of individ ual eoees who participated in the
strike. Ilo, c' er. since it is unreasonable to expect or
require anl ciploxser to discharge or discipline everN
emlplo\xcc ws-ho participated in an illegal strike. a lohng
line of arbitration decisions has established that an
emploNer ma'! selectixel, discharge wildcat strikers.
especiralls the leaders of such strikes."t In affirmlin
the emploer's rigjht to selectivel 3 discharge strike
leade-s. arbitr-lators has.e characterized the dut) of the
unionll stesvard to prevsent or terminate illegal work
stoppailes in the folloss ing manner:
If there is one principle that is universalls rec-
oni/zed in tile field of industrial relations. it is
thIllt shop stewards haxe the highest duty to
I4 2 ' I 2 4" <1 "1 I
I' i '4
i// ,,L hL ~; 5 L /,, 'i I I \RBI =s21 (1Il71) (Ahernelh,. rh 1 t1,
( ,'I MIl.,, {N .L/r, Ll ,it S I \RB =82(4 '6( i ti \(LI Shb 1, LL
/.8',l R .. ',lIll 4' I \ " 1' ir'h4p,4 .\i r b 1: (\l'nrl[ I .L ..r.L.t [H,,,
/,,,tI.l, ( -,U 4' 1\ 142 (m'e,41 oltLik. rh ) See S peitl l, i tl
.StrA,,' L r l I l l, 'e (,oll.l'tt' V LLLl ii , L fLLi¢' )'lt'L''' Si¥L[ i nd ]n
;LL.LiL L 24 1.hi 1 I I i)2 (8 I Itl: Il nkoxlc, Fnhl... ..L IfIl' 5. ,,tS A'
(/ ,mLLX I 1 [L I I /, (1-tt) Ilanldld ker Mrwlu lrlL( ,n itL ,l (/tpL/.rl, t0L
[ / L,,L L 'L/l .l 14 1 . } [ I ;1?1 t l'}(>li
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faithfully adhere to all of the provisions of the
collective bargaining agreement and to actively
instruct each employee to do so as well. While it
is improper for an ordinary employee to deliber-
ately breach the Agreement, a similar act by a
shop steward is untenable and grounds for his
discharge. It is the obligation of the steward to
set an example for all Union members within his
jurisdiction by demonstrating his loyalty to the
terms and conditions of the contract negotiated
by his Union with the Employer. .... [A] shop
steward's duty in the face of an unauthorized
work stoppage is well settled. Not only should
he make a determined effort to prevent the stop-
page before it begins, but upon its development
[he] must actively and unequivocally attempt to
bring an end of the stoppage at the earliest pos-
sible moment.' 6
Although the Board is clearly not bound by such
arbitral authority, we would be ignoring the teach-
ings of the Supreme Court in the Trilogy were we to
disregard the "common law of the shop" that union
stewards have affirmative duties under the collective-
bargaining agreement, and that they may be dis-
charged for failing to fulfill such duties. I can see no
reason why duties which are consistently recognized
by the interpreters of the collective-bargaining agree-
ment should not also be recognized by the Board in
its interpretation of the National Labor Relations
Act.
In fact, in a series of cases going as far back as
1949, the Board has taken the position that union
stewards have a greater duty than rank-and-file em-
ployees to uphold the provisions of a collective-bar-
gaining agreement, especially the no-strike clause of
such an agreement." The Board has also held on sev-
eral occasions that "[a]n employee who attempts to
persuade fellow employees to strike in violation of a
contractual no-strike clause or commit acts of insub-
ordination is not insulated from discipline by the
mere fact of his holding union office." 18 And in a
very recent decision issued by the same panel as that
in Precision Castings Compan i (Chairman Fanning
and Members Jenkins and Murphy). the Board
adopted an Administrative Law Judge's Decision in
which a union steward was found to have been law-
fully discharged for his participation in an unauthor-
' Uniled Parcel Serice. In,.. 47 IA 1100 01 ' 1966) (Schrierlz. Arb.)
Rivera "Manufaciuring Co., 167 NL RB 772 (1967): Unierirl Oc,lard
E.press, Inc., 129 NlRB 82 (1960): Sockham, Pipi fiuting, ( 'impltli . 84
NLRB 629 (1949).
18 Stop & Shop, Inc, 161 NL RB 75. 79 (1966}: See Super I ail EI' rcnia 228
NLRB 1254 (1977); Anaconda A.luoinum (Con'panl, 197 NLRB 33t( (19721)
J. P. Welherbv Construction ('or,.. 182 N L RB 690 (1970): A1 Born hln,,l an
Sons C(o. 174 NL.RB 203 (1969): Russell Pa(king ( opal. 133 N RB 1')4
(1961)
ized, illegal work stoppage because the union
steward's active participation made him the natural
leader of the work stoppage and thus justified his
discharge. i'
In cases in which the Board has found unlavwful the
discharge of a union steward who had been involved
in an illegal work stoppage, it was specifically found
that: (I) the stewsard did not participate in the
strike: 21 (2) the stesvard had no contractual duty to
prevent the strike or bring it to an end; 21 or (3) the
steward had in fact fulfilled his contractual duty to
prevent the strike or to get the employees back to
work?22
In the instant case, the collective-bargaining agree-
ment places a number of affirmative duties on the
union steward in the event of an unauthorized, illegal
work stoppage. l he steward is required to order the
employees back to A5 ork, to refuse to aid or assist the
employees, and to use every effort to bring the stop-
page of work to a conclusion. Yet, when the employ-
ees refused to work on October 13, Moran stood next
to Foreman Scott in front of the assembled employ-
ees and stated that "we aren't going back to work
until we find out Mwhat's going to happen [on the ex-
pediting grievance.l" In addition, Moran specifically
refused a request by Scott to return to work. The
work stoppage lasted for 2 hours and did not end
until two other uni'on representatives interceded, fur-
ther indicating that Moran did nothing to bring the
work stoppage to a conclusion. Thus, the record is
clear that Moran willfully failed to fulfill the three
specific duties required of a union steward in the
event of a work stoppage. As a result, Respondent
lawfully discharged Moran pursuant to article XVI
of the collective-bargiaining agreement, and thus did
not violate Section 8(a)(3) of the Act.
In addition to their finding that Respondent vio-
lated Section 8(a)i3) of the Act by discharging Mor-
an, my colleagues of the majority have adopted the
Administrative lIaw Judge's finding and conclusion
that Respondent xiolated Section 8(a)(4) of the Act
as well. The Administrative Law Judge based his
finding on a "Progress Report." completed by Re-
spondent at the tinec of Moran's discharge. in which
it is stated that "as a result of Mr. Moran's actions in
this case, and in light of Mr. Moran's past activities
as aln employee and a Shop Steward which indicate
repeated violations of the collective bargaining
agreement. other Agreements and Company policy.
Mr. Moran will he discharged effective October 21.
1976." Since theit is absolutely no mention of
Ih( i, /.t ( ,por,. ,ll ,, Ir. k Plant. 212 NLRB 466 11977)
i)(entwrl I rlolirs .7., iii. 218 NlRB 472 119751: Pontiac foloor, Di
<,x,1 i.,/,,,'n ( , ru.,,t, 132 NlRB 413 (1961l
71.,, ,-Abo l,,st, ( .friln. h, . 2.0 NI RB 174 (11974),
If , ",,I, I n ,o,,, , t u rp il/.. 177 Ni RB 452 (1969)
886
GOUL D CORPORATION
Moran's having filed charges with the EEOC,. OSIIA.
and NLRB in the "Progress Report," I am at a loss
to understand the Administrative Law Judge's con-
clusion that Respondent violated Section 8(a)(4) of
the Act. The only conceivable explanation is that the
Administrative Law Judge incorporated the Febiru-
ary 18 letter into the "Progress Report" in order to
reach the conclusion that Respondent relied in part
on the filing of charges by Moran when it discharged
him following the work stoppage. Although such a
conclusion is rather strained, to say the least. it is
completely contradicted by the following facts.
The February 18 letter was sent by Respondent to
the Union in order to complain about repeated viola-
tions of the collective-bargaining agreement by Mor-
an. Respondent cited five specific instances in which
Moran's "actions as a shop steward were entirely in-
appropriate, if not in absolute violation of the collec-
tive bargaining agreement." The only time that the
February 18 letter was brought up in regard to the
discharge of Moran was during the fourth-step griev-
ance meeting. At that meeting. the l!nion requested
that Respondent reduce or mitigate the discharge of
Moran. Respondent refused, citing Moran's pre, ious
involvement in an illegal work stoppage in 1973 and
the verbal warning he was given that a recurrence of
such conduct could result in his discharge. Since the
February 18 letter was the only written record of the
1973 work stoppage, Respondent read that portion of
the letter referring to the 1973 incident. The L'nio,
then requested that the entire letter be read and that
they be given a copy, because they were not sure the!
had it in their files. It is clear that Respondent relied
on Moran's having filed charges with the EEO('.
OSHA, and NLRB neither when it originall\ dis-
charged Moran nor when it refused to reduce his dis-
charge. Rather, Respondent discharged Moran in
October 1976 for violating the no-strike provisions of
the collective-bargaining agreement and, wihen asked
to reduce the discharge, it cited a previous violation
of the contractual no-strike provision b` the veri
same employee. The fact that the progress report is-
sued at the time of Moran's discharge mentioned
Moran's repeated violations of the collective-bar-
gaining agreement is entirely consistent wAith Respon-
dent's rationale in discharging him: namely. that
Moran had continually refused for a period of over 3
years to abide by his duties as a shop steward under
the collective-bargaining agreement: that the Union
had repeatedly been warned of Moran's conduct:
and that such conduct had been repeated b, Moran
when he participated in the October 13 work stop-
page. Therefore. I cannot agree with mv colleagues
that Respondent was motivated to discharge Moran
by his having filed charges with the FEOC. OSHA.
and NI.RB. in violation of Section 8(a)(4) of the Act.
To summarize, my colleagues of the ma ority have
reached a decision today which contravenes the di-
rections of Congress, the courts, prior Board deci-
sions. and the consistent arbitral interpretation of the
collective-bargaining agreement. In support of its po-
sition, the majority has taken an erroneous view of
the facts and has engaged in an incorrect application
of the law. As a result, the majority has endangered
the very foundation of our collective-bargaining sys-
tem. As noted above, no single factor contributes
more to peaceful labor-management relations than
the cgrievxance-arhitration system with its companion
no-strike clause. Yet employers are being told today
that, in return for their promise to submit all disputes
arising under their collective-bargaining agreements
to the grievance-arbitration procedure, they are get-
tiLg absolutelN nothing in return. For if union stew-
aird:, arce permitted to engage in unauthorized. illegal
uxork stoppagles alnd not be subject to discipline for
failing to comply with their affirmative contractual
duties to end such stoppages. the no-strike provision
is essentially a nullity as far as the employer is con-
cerned. Not onlx will industrial peace at the work-
place he threatened bs the specter of wildcat strikes.
but the negotiation of collective-bargaining agree-
ments xwill also be severelx hindered as employers
become less willing to concede grievance-arbitration
clauses when the, know that the' will be getting very
little in return.'
As a practical matter, not onlx will employers be
adverselx affected by the majority decision in the in-
stant case and in Prici.sion Castiings, but unions will
suffer as well. ,An responsible union has a vested
interest in seeing that its agreement with an employer
is enforced. The most important individual to police
the enforcement of the collectixe-bargaining agree-
ment is the one xwho sees the agreement in action
exerN single dax: nameiels. the steward. If the stexward
is told that he may ignore the plain terms of the
agreemient and not suffer the consequences, then the
efforts of any union to enforce its agreement will
clearlx be impeded. Since wildcat strikes are as
anathemla to unions as then are to employers, it is
Ihc mfl rlt' i ta tthitC I lih lnipIlo\er .elf-help against individual
knnion ofklit.[$ for at . l ln' hrciah of ctlnnra.i can ionl\ undernilne the
peaceful ettiinl of dispi le, .iln ce;irs the paih foir employer Intersention in
i. unliiil" Illltcllal affLar, further ildicates their complete misunder\standing
,4 the Il.tinl ii ,c I i, peoisIcl! hec.lue the Llnion did not \iolate the
eli[t, 1 ncl Reopondenlt rcnedile, .ai.lint the l lion. contmbined with
the I lll' dicilmonltratld till"vil ininleXS ti take an'\ internal achtiot aealins,
\ioial i. hl ch fiored Rep llidenil I tlake the onl, reasonahle alternative of
tlt .laillri'l[ hill ]l1 hl.e pelrlliitrcd Moran to cotllinuc ia, an eniphocee
(,up?, tc i le ll ot hotp ,te,.trd. t ci ptc 1a, open dcti e alice if Re-
,porim1 l hi I t,,.. arid tt lc it\ h.t a.r nillg. aLgreetient 'ould haice
h-d .i f.r 1iire d rirtl[,e tIftc. onr the l st ih ts o. th coliletile-hargalnng
relat lihzir nd In the "peteful Cet.hilgli f dispuite" than did th. aittti
diii .hlirL c tlf \J 1 1' ,
887
I)Ci( ISIONS 01' NA TIONAI. I.ABOR REL.AI IONS BOARD
logical to assume that unions would he adverse to
rulings which provide their stewards with a free hand
to lead such wildcat strikes.
In my view, nothing is more repugnant to the pur-
poses and policies of the National labor Relations
Act than to see the sincere efforts of manatemcnt
and labor, in seeking a peaceful resolution of their
disputes, wasted because of the unwillingness of cim-
ployee representatives to assume the bhurl-ens which
go hand-in-hand with the benefits of union represen-
tation. When management and labor are forced to
settle their disputes through disruptions at the work-
place rather than through the orderl! process of col-
lective bargaining. we clearly-fail in the goals de-
clared hby Congress when it enacted the National
Labor Relations Act 43 years aco.
I vigorously dissent.
DEl(ISION
SIA'[iMIN i Of I[ ( .xS
RAi.PIi WINKI FR. Administrative Law Judge: Upon a
charge, a complaint issued by the General Counsel on
April 20, 1977, and an answer filed hby Respondent, a hear-
ing was held in Philadelphia. Pennslvania. on June 13 14,
1977.
Upon the entire record in the case, including my obser-
vation of demeanor of witnesses and consideration of
briefs, I make the following:
FINDING(S Oi 1 :( I
I I ilI :SININSS 01: RK S'PN)I) N I
Respondent (Gould Corporation is a Delaware corpora-
tion engaged in the manufacture of electrical circuit break-
ers in Philadelphia. Pennsylvania. It is an employer within
the meaning of Section 2(6) and (7) of the Act.
11 I lit I ABOR OR(;ANIZA I ION INV()I I 1)
Local 1612, United Automobile. Aerospace and Agricul-
tural Implement Workers of America (the tUnion), is a la-
bor organization within Section 2(5) of the Act.
111 lii ItNIAIR I AB()K PRIA( I IS
This case involves the discharge of James Moran on Oc-
tober 21, 1976, and the Gieneral Counsel alleges that Re-
spondent has thereby violated Section 8(a)( ). (3). and (4)
of the Act. Moran had been with Respondent since 1968
and at the time of his discharge he was employed on the B
shift (4 p.m. 12:30 a.m.) on the third floor of M Building.
Respondent. apparently, has had a long collective-bargain-
ing history with the Union. Moran was elected a union
shop steward in 1971 and at material times here he and
Richard Jones were the only stewards on the B shift, Mor-
an representing employees on the first and third floors and
Jones representing fourth floor employees.
I'here are some 4(0 50 employees on the third floor, and
these employees are paid on a bonus system. They receive
jobs at the time cage on that floor and work against a time
standard. If the,, complete an assignment more quickly
than in the time allotted. they earn bonus pay. There are
no official break periods and employees take their breaks
at an\ time, usually in the vicinitv of vending machines
near the time cage.
Moran's immediate supervisor was Foreman Roger
Scott. Thomas Kenny is also a foreman on the third floor,
anrd John Dallmer is general foreman for the entire B shift.
Jefferv Panciera is director of industrial relations for this
division: his superior is Harold Strack, manufacturing
manager. Strack is the management official whose decision
it was to terminate Moran. Other union representatives in
this case are Shop C(hairman James Brennan and Frank
lannings, the chairmian of the union negotiating commit-
tee. Frank Redmiles is the local union president.
Article XVI of the operative contract between Respon-
dent and the Ulnion provides in part as follows:
SEC(TION I.. .. the Union agrees that it shall not
call, sanction. or engage in any strike, slowdown or
stoppage of swork; ....
SlECI'ION 2. Any employee or employees, either
individuall} or collectively who shall cause or take
part in ans illegal unauthorized or uncondoned strike,
work stoppage, interruption or impeding of work dur-
ing the life of this Agreement. may be disciplined or
discharged b, the ('ompany.
SEC('TION 3. In the event of an illegal, unauthor-
ized or uncondoned strike. work stoppage, interrup-
tion or impeding of work, the Local and International
Union and its officers shall immediately take positive
and evident steps to have those involved cease such
activity. These steps shall involve the following:
The Union. its officers and representatives shall im-
mediately order its members to return to work, not
withstanding the existence of any wild-cat picket
line.
IThe tlnion., its officers and representatives shall re-
fuse to aid or assist in any way such unauthorized
action.
TIlhe Union, its officers and representatives, will in
good faith, use every reasonable effort to terminate
such unauthorized action.
Respondent contends that Moran participated in a work
stoppage in violation of this contract and that it discharged
him for such reason. 1The General Counsel urges, on the
other hand. that there was no work stoppage and that Mor-
an did not participate in a stoppage even if there was one.
'Ihe General Counsel further asserts that Respondent in
ans event discharged Moran at least in part for filing
charges or complaints with the NLRB and with EEOC
(Equal EImployment Opportunity Commission) and OSHA
(Occupational Safety and Health Administration).
In 1974, by appendixes to their existing contract, Re-
spondent and the LUnion agreed to establish and thereupon
888
(,)t LI) C`OR P10R I ON 8
did set up a Joint Occupational Safety and Health ( orn-
mittee and a Fair Emplo ment Practice Committee as in
internal contract mechanism for handlinlL OSHAI and
EEOC-type disputes. Moran, in his steAard capacitt. nie\-
ertheless did thereafter complain to OSIIA anil file chargestc
for employees with FEOC. Hie also filed a charge with the
NLRB concerning his own laNoff in 1975. hich ch;rlice the
Regional Director found to he meritless. Bx letter in I ch-
ruarv 1976, Panciera of Industriial Rel;ations ad ised I nion
President Redmiles that Moran had "repeaLtcdl\ \siolate[d
the procedures established for resol ing disputes" andi Pal-
ciera mentioned in this connection that NMoran had takein
the OSHA, EEOC. and NLRB actiois x without uting or
exhausting the parties' agreed-upon procedures for resoKl-
ing disputes. and also that Moran had been purportedlI
warned in 1973 for his conduct as a steward In cOl)llectiol
with a work stoppage at that time. l'he letter further recit-
ed, in part, that Moran's mentioned resort to ()SIIA.
EEOC, and NLRB "represents a violation of the philoso-
phy and intent of the parties and quite possibhl an absolute
violation of the collective-hargaining agreenient. It is im-
portant to note that the (Company's oblection to these ac-
tions is based on the fact that Mr. Moran is :i shop ste iard
and, as such, is particularl] bound to administer the collec-
tive-bargaining agreement and policies of the parties in a
manner prescribed bh the parties. llts rights to take such
individual actions, as an emplo!ee. aire not in question
A. Eivent Concerning I/he Dci /ulrh
Moran had filed a griesance concerning the perfor-
mance of alleged contract-unit w'ork (expediting) h; a sup-
ervisor. Under the contract gries ance procedure Respon-
dent had a prescribed time within which to file its response.
The period for response was extended. and no claiil is
made by the General Counsel that Respondent \\as deliin-
quent so far as the timeliness of its response is concertlled.
Employees were restive about the grievance. and wkithout
waiting for management's response. a substantial nuinher
of third floor employees engaged in a work stoppage and
congregated in the timeclock area I from approxinilitel} 4
to 6 p.m. on October 13. 1976. The stoppage ended through
the intercession of Union Representatives Brennamn and
Hannings and after they had obtained a commlitment that
foremen would not perform the disputed expediting func-
tion.
Although Moran denied hav ing participated in or has ing
abetted the work stoppage, the credible testimon\ of F ore-
man Scott establishes Moran's role in that actix it. In his
first encounter with Moran during that period. Scott asked
Moran to return to his work area and told Moran that "I
[Scott] thought that [as shop steward] it was as mIuch his
responsibility as mine to help get these people back to aork
and if he returned to his work area that mahbe the thing
Based en the truqs.orlhs t A I 0t 1 1, [ 1 1llLI S-d [[ - ,.r1 iS II,
lesimons * r crowss-e\ llllallli 1i1 .f Shlqp Siet.lrd R l.llh d L ii le iil '111 I "o1e
u asn't much quLestion" th;i :a ork stopl)l ra ilid cd IlrreCd llnd a, pl HiT It tt
menri b another (iencral (C'unr el s.ilile- h' al "iddiii the [ t S hit ;1
large group If i,,rker, 'to pped fol 2 p h oLlr. i .rli o i&, ;lla kl
work Needless to sa.s I hae considered oatn ' lul. tcs to e II ,tm
wilnesses 11 thEls ald . l1 wther fictu] lllAllCI,
would break up and I could address m! self to thie p ro
lem." Moran. `ho aas h;i ,inc coffee at the time. replied
that "I'm nolt oi hb;ck to Aork until we get an expedi-
tor." :henl Scott slorll .asked Foreman Kenn, to tell his
men to retulrn to workl. Mlorin told Scott that the emplo\-
ces were entitled to a,sernlhle under lFederal law and that
Scott n had I "nloiht" lo lell the ettiploxees to go back to
worl. Scott then c ho rled a .rtoup of emplo ees to( return
to v ork and Moran then declared ilthin the group's hear-
in. that he wuas takin-I his coffeehreak and the others were
enltitled o do Ithe samle lthiin and that "we ain't going hack
to \,otk unttil e fin d out `hlit's going to happen [on the
"expediltin" rie uncte." Scott testified that lMoran was
tile ie sinle cnmplo ee x\ hom he engaged in conversation dur-
ing the period In question. and he explained that he did so
hecause of lMoIan',, tce\\i .i hip and that M1oraln was the
persoll to holli he x oultld norliall speak concerning the
stoppige situ.ltioi. I record, hoa e .er., does not establish
that lolln citithe called o( led the stoppage.
Respoldenlll condiuctedi ;in InllMetigition of the ()ctolher
13 stoppage. ad cl P.anclera recommended to Maniufactur-
in \Manal;gtier Str.ack that Moran he fired. Strack concurred
uith Il.incliei'.i recoiliniendation and directed NMotan's dlis-
cilharc. Moia n is accordingll notified on (October 19 that
he .;is terminitnlted. "efftcltie October 21." for "Violation
ofl \rticle \N I of the ( ollecti e-Bargamingnc Areement."
Strac k testified thII hCe iale imaIde the decision to dis-
chlarlge loill tLicd tihal lie did So ifter consulting walth Pan-
ciel .i nid Shop Supe intcendenit \Noods. lie further testified
thlt NIoran's purported `xat nilg respecting a 1973 work
stoppage tind M\oran'n cnmplaints and filings with OSIIA.
I :()((', and NI. RB plai ced ito part in the discharge decision
anld li. delniled haist i ecii been aware at the time of thelse
otlher ictiolls \ Mol-an. 11I this conLectioll Strack also tes-
tifiedl he had heen uIiii are of the I ebruar' 1976 letter
froit Pancmieri to Redmiles ` lhich. ais indicated ahbo e. dealt
ith lMoran's conduct a shop stew ard in circulmi enting
the parties' iinternal displtute procedures and in regard to a
1971 strppae.
Strack testified that upon deciding to discharge Moran.
he ldi-cted Supetrilntenldet V \oods to prepare the neccs-
sarx papers. \, oods and Scott contemporaneousl, sligned
an Internal progress report concerning Moran w'hich readls
in part as follows:
IIi \icv , of Ihi, ic tions .iild statements made to Comp;a-
n, Represecilntltl c tIillt eC\enin. it is clear to) the Conm-
pan) that Mr. \loran has vio lated the pr, visions of
\rticle X\ I of the ( ollectise Bargaining Agreement.
As Shop Steilr. \r MlI. Moran has a particular obli-
gatlon t)o oh>Sel' c the pr>s.liols of the C(ollectie Bar-
g;illillg-t \ctClitliIt. \S .a resutlt of Mr. Moran's actions
in this cac. eInl ill lighlt of Mr. Moranls past action 1as
an eniplosee and a Shop Ste-ard w hich indicate re-
pealted I olatl ons of the ( ollecti e Bargainintug Agree-
menlt. othel A\grcetlenls & C ompan policy, Mr. Mor-
an 'will be d ,chialriCed effecti'e October 21, 197h6.
Panciera testified that he did not know who had drafted
the prorress repornt anld a\\is iot "sure" he had reviewed or
assisted in the drafting. althouLgh he testified he might has e
done so.
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union filed a grievance respecting Moran's October
21 discharge, and a fourth-step grievance meeting was held
on October 25, 1976. Panciera testified that at this session
the union representatives inquired whether Respondent
would "downgrade" or lessen Moran's discharge and that
he, Panciera, refused to do so because of Moran's partici-
pation as a steward in the 1973 stoppage. According to
Panciera, he thereupon referred to the aforementioned
February 1976 letter and then read the entire letter to the
union representatives. Panciera testified that he referred to
the letter only in connection with the UJnion's mitigation
request and that the matters involved in this letter did not
contribute to Respondent's decision to terminate Moran.
Both Respondent and the Union took notes at the griev-
ance meeting of October 25. The Union's notes state, in
part:
Jeff Panciera, We feel after review Mr. Moran did
take part in work stoppage and was in violation of
Article 16 we stand on the discharge.
Frank Redmiles, We put people back to work and did
our job under contract. will you offer discipline.
Jeff Panciera, None at all. Discharge is sustained.
Frank Redmiles, on basis of your evidence? Don't
jack pot us give all eviden :e.
Jeff Panciera, We stated the essence of the case, his
(Moran) actions his previous record, his constantly
going out of grievance procedure, in 1973 he caused a
work stoppage, he was warned the next time he would
be discharged. February of this year I sent you a letter
stating Mr. Moran's constant going outside facilities
instead of the grievance procedure. We have been in-
volved with Moran's abuse of the grievance proce-
dure. (Placement grievance) he put grievance in Ist
step Placement grievance have always been automatic
3rd step grievance. May 1975 Moran while grievance
was in process he filed charges with F.E.O.C.
August 75-Moran while grievance was in process filed
charges with the N.L.R.B. against Company.
February 76-letter sent advising Union continual vio-
lation by Moran going out of contract agreement.
Mr. Moran's behavior distruction of Company prop-
erty has a propensity to violation of the collective bar-
gaining agreement.
Respondent's minutes were contained in a letter it sent to
the Union on November 8, 1976. These minutes read, in
part:
After thorough review and discussion, the Company
advised the Union that in light of Mr. Moran's actions
and statements on the evening of October 13, 1976.
which were contrary to the obligations of a Shop Stew-
ard and, in view of his past actions as an employee
and Shop Steward which indicates repeated violations
of the Collective Bargaining Agreement, other agree-
ments, and Company Policy, the Company feels that
the discharge in this case was entirely justified. (The
Company also outlined Mr. Moran's past violations of
the Agreement as a Shop Steward which were dis-
cussed in a letter to the Union dated Februarv 18,
1976, copy attached, as well as Mr. Moran's record as
an employee.) Therefore, the Company sustained its
position and the discharge will stand.
Moran thereafter filed a claim for unemployment com-
pensation with the Bureau of Employment Security. By let-
ter of November 16, 1976, Respondent advised the Bureau,
in part, as follows:
Mr. Moran was discharged by his department supervi-
sion on October 21. 1976, for violation of Article XVI
of the Collective Bargaining Agreement between the
('ompany and Local 1612, UAW. This Article speci-
fies, in part, the obligations of employees and union
representatives regarding work stoppages, and the
consequences of causing or participating in such ac-
tions.
Mr. Moran was a union representative at the time the
action in question occurred, and he did participate in
a work stoppage on October 13, 1976, in violation of
the provisions of that Article. As a Union representa-
tive, he had a clear responsibility under that article.
and his failure to fulfill that responsibility resulted in
his discharge.
B. Concluding Findings
The record preponderantly establishes that Moran and
other third floor employees engaged in a work stoppage on
October 13.2 This violation of the no-strike contract is gen-
erally unprotected conduct and Respondent asserts that it
was therefore entitled, without liability, to "pick and
choose" in disciplining employees for participating in the
misconduct. But this "freedom to discipline anyone re-
mained unfettered [only] so long as the criteria employed
were not union-related." Precision Castings Company. 233
NLRB 183 (1977).
In the Precision Castings case, five union stewards joined
in an unauthorized strike in breach of a valid contract pro-
vision. The employer disciplined the stewards, but no other
strikers, the admitted reason for their selection being their
shop steward position and their failure to urge the other
strikers to give up the strike. Noting that "under the terms
of the contract" the stewards "could assertedly be held to a
greater degree of accountability for participating in the
strike." the Board concluded that the discipline given them
was nevertheless violative of the Act. The Board thus ex-
plained that "discrimination directed against an employee
on the basis of his . . . 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."
Shop Steward Moran also had a greater degree of re-
sponsibility under the instant contract, and Respondent ac-
knowledged to the Bureau of Unemployment and I find
that he was selected for discharge because he willfully
failed the responsibility of his union position. Under Preci-
sion Castings, this basis for discipline is itself unlawfully
discriminatory. The record establishes, moreover, that
l l, exer. se im ntel erni hrzltIr anld .taunllu-ra tu e In, v. L. R B. 554
1 2d I276 (t( 4. 19771
890
GOULD CORPORATION
other illegal considerations contributed to Respondent's
discharge decision. Thus, Respondent's own progress re-
port plainly shows and I find that Respondent's decision to
discharge Moran was affected or motivated. in part. b) the
fact that Moran had filed charges with or complained to
EEOC and OSHA.3 and also because he had filed a charge
with the NLRB.4
CONI i SIONS 01: LAv
I. Respondent is an employer within Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within Section 2(5)
of the Act.
3. By discharging Moran, Respondent has violated Sec-
tion 8(a)(l), (3), and (4) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REIM OrN
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)( ). (3). and (4) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action, including rein-
stating Moran and making him whole, in order to effectuate
the policies of the Act. All backpay computations shall be
in accordance with F. W. Woolworth Company, 90 NI.RB
289 (1950). and Florida Steel Corporation, 231 NLRB 651
(1977). (See, generally, Isis Plumbhing & Heating Co., 138
NLRB 716 (1962).)
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER
The Respondent, Gould Corporation. Philadelphia.
Pennsylvania, its officers, agents. successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees because they are union stewards or other union
representatives or for filing charges or complaints with
NLRB, OSHA, or EEOC.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer James P. Moran reinstatement to his former
job or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges, and make him whole, as set forth in
"The Remedy" section, above, for ans loss of earnings suf-
fered as a result of the discrimination against him.
(b) Preserve and. upon request. make available to the
Board or its agents. for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sarN to aminalze the amount of hackpay due and the right of
reinstatement under the terms of this Order.
(c) Post at its M Street plant in Philadelphia, Pennsy\lva-
nia, the attached notice marked "Appendix."6 Copies of
said notice. on forms provided by the Regional Director
for Region 4 of the Board, after being duly signed by Re-
spondent, shall he posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter. in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
the notices are not altered, defaced, or covered by any
other material
(d) Notif, the Regional Director for Region 4. in writ-
inc. within 20 day\s from the date of this Order, what steps
the Respondent has taken to comply herewith.
JI,, 1,;,- ( ,irailr,, '22; Nl RB 1064 1'>97%: rIa F/i trlt (o,,ilrilta-
,, 2'10 NI RB 7i7 4 .lri/a, (, oa, Ir ,i 221 NI RB 999
i k75,: A,,, ,,,w, In, 222 NLRB ilo I I1976L) 4diami ( arhbn Pros
ii, /n, 19S NI RB 41 0i72)
(6,,wr., 5,rx ,i lmi 229 NI RB 940 (14771: lh, Ilir.,d P fol (',or-
p/,,. 229 NI RB I 167 11t77 (61/iS, .1antiiclurlni, (irp.lan, 229 NI RB
1025 I 1977)
In thie en.it rn ci epll n, .ir filed .Ia proided bs Sec 102 46 of the
Rule. indi Rc.laut...n, - hwe N h ;ln,i I ahbor Relatli,ns Board. the findings.
collic lullon, and i le rc,,nlnciendcd Order herein shall, is provided in Sec
1112 4 he Ruc, ndhc Revul el, n ht aidopied,· h te the Board a.nd hecome
its flining, inclllll,. an,.l )rdler and .ill ohlection, I hereio shall he
deeniedl .illed for .ll purpu-scs
Iln Ihe ce\nil IthI. thi Order in elfored bid a judgment if a United Sitate
( url f X, l c'.I l Ihu i ordl iIl tihe ni,ctli reading "Posted h Order of the
Na, ,1II. tl I ah - Rel.lt.ll, Bl.Ord , hall read "P',,}ted Puruiani t lo Judg
ricii 4l the iltled Si.ltc (ourt i ,f \ppe.als nforclng an Order of Ihe
Natwiial Ia-h Relaktion Board '"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NA] IONI LABOR RELATIONS BOARD
An Agency of the United States Government
Wvii t. Nor discharge or otherwise discriminate
against employees because they are shop stewards or
other union representatives or for filing charges or
lodging complaints with NLRB, OSHA. or EEOC.
WF wll ',oI in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to engage in protected concerted activities,
and other rights under the Act.
WEi viii. reinstate and make whole James P. Moran
for loss of earnings since his discharge, with interest.
(JOE I ) CORP()RATION
891