Gould Corp.Download PDFNational Labor Relations Board - Board DecisionsAug 25, 1978237 N.L.R.B. 881 (N.L.R.B. 1978) Copy Citation 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 Copy with citationCopy as parenthetical citation