Gould Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1978

238 N.L.R.B. 618 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gould Inc., Switchgear Division (formerly Terac Con-
trols, Inc.) and International Brotherhood of Electri-
cal Workers Local Union 584. Case 16-CA 7061
September 28. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPtlY
ANI) TRULESDAI E
On May 31, 1978, Administrative Law Judge Her-
zel H. E. Plaine issued the attached Decision in this
proceeding. Thereafter. Respondent filed exceptions
and a supporting brief, and the General Counsel and
the Charging Party each filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings, and
conclusions2 of the Administrative lvaw Judge and to
adopt his recommended Order.
I Respondent has requested orual argument. Ihis request is hereby denied.
as the record, exceptions. and briefs adequately present the issues and the
positions of' the parties.
2 For the reasons fully set iorth by him, we agree with the Administrative
L.aw Judge's finding that Respondent violated Sec. 8(a) 1) of the Act by
discharging employees Virginia Beekman and Clifford Edgar because thes
participated in a sympathy walkout which, in the circumstances, was a pro-
tected concerted activity. Having oIund, in agreement with the Administra-
tive Law Judge. that the employees' sympathy walkout was it protected con-
certed activity. we do not reach the question (discussed by the
Administrative Law Judge at fn. 8 of his i)ecision) of whether Respondent's
willingness to accept the returning strikers without discipline constituted
condonation of their asserted misconduct. Also, in viewl of lour finding that
the discharges violated Sec. 8(al) 1I of the Act. we deem it unnecessary to
pass on the Administrative Law Judge's further finding that the discharges
also violated Sec. 8(a)(3) of the Act, inasmuch as such additional finding
could not affect the remedy herein. Finally, in view of' our agreement with
the Administrative Lasw Judge's finding that the strike was a protected con-
certed activity, Prtcil.ion ('avings ('ornpani Divisiun of Aurora ( orporution, a
whollhi, owned subhidiaun rf .41ihed Products ( Corporation, 233 NL.RB 183
(1977). is inapplicable, since that decision cotncerned only unprotected ac-
tivity.
Although the Administrative l.aw Judge correctly bound that the doctrine
of Redwing Carriert. Inc., and RockAana (arriner, In'. 137 N RB 1545
(1972). afforded Respondent no defense to its discharge lof Beekman and
Edgar and is inapplicable to the lacts herein. he failed to n ute the Board's
recent decision in Torringiton ('oistriulion (Ctnlpani, In.. 235 NL.RB 1540
(1978), which holds that while a sympathy striker may be replaced when
necessary to the continued operation of' the emploer's business, such striker
may not lawfully be discharged.
Finally, we agree with the Administrative Law Judge that defcrral to the
arbitrator's award is not appropriate in these circumstances, but not with his
characterization of' this proceeding as ixoking to' "'indication of individual
rights under the Act." inasmuch as the Board's processes function only in
vindication of the public interest, even though the slatutuory rights of individ-
ual employees may be involved. Howeser, in findingg deterral inappropriate,
we do not rely on General A.4 eril, n Iran. ptortltion ( trporiatioun. 228 NL RB
808 (1977). inasmuch as the a.rbitrator's award hls alreadls issued in this
case. Instead. we find that the arbitration award does not mleet the standard
olf Spielberg Manufacturing GCompman, 112 N.RB 108 (1 955), tir the re.asons
set forth in Raytheon (ompnuani 140 NI.RB 883 (1963) enfoircement denied
on other grounds 326 .2d 471 ((.A 1. 1964)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Gould Inc., Switchgear
Division (formerly Terac Controls, Inc.), Tulsa, Okla-
homa, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
I)ECISION
HIER/E. H. E. PI.AINI!, Administrative Law Judge: The
question presented is whether the Respondent, Gould Inc.,
Switchgear Division (formerly Terac Controls. Inc.), vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, (herein called the Act) by discharg-
ing the two employees of' its bargaining unit of'
manufacturing employees who were the two elected union
representatives of the unit represented by the Charging
Party, International Brotherhood of' Electrical Workers lo-
cal Union 584 (hereinafter the Union). The two employees
had participated with most of the other employees in a
walkout and brief strike of several hours, allegedly in sym-
pathy for the division of construction employees of the
Union who were conducting informational picketing
against a nonunion contractor doing electrical construction
for Respondent in an expansion of the manufacturing plant
in which the manufacturing employees worked.'
The union contract governing the relationship between
Respondent and its manufacturing employees contains a
no-strike clause tied to the procedure for the orderly settle-
ment of' grievances arising within the terms of' the contract.
TIhe Union and General Counsel are of the view that such
clause is a limited ban on strikes over matters subject to the
grievance procedure and does not expressly or impliedly
prohibit the employees from engaging in sympathy strikes,
under the reading of Buqffalo Forge ('o .v. l'ited .Steelw4ork-
ers of tAmerica, 428 U.S. 397. 407 408 (1976). Hence Gen-
eral Counsel and the Union contend that the employees
sympathy strike was protected activity under the Act and
that the discharges for engaging in it were unlawful.
Further. General Counsel and the Union contend that
the sympathy strike was spontaneous. individual action of'
the employees, not directed by the Union or its agents or
the two elected representatives among the employees. and
that the discharges of only the two elected union represen-
tatives from among all of' the striking employees were dis-
criminatory.
Respondent contends that the strike action of' its manu-
facturing employees was unlawful and unprotected because
theN had no labor dispute with Respondent. and because
the union purpose behind its informational picketing of the
nonunion electrical construction contractor was to cause a
work stoppage by the manufacturing employees, in viola-
tion of Section 8(b)(7) of the Act, with the objective of' lorc-
Complanln was tiled oin MaN 19, 1977. on a charge filed hs the itnion on
March 3, 1977
238 NLRB No. 88
618
a.m. and the late shift commencing at 4 p.m. The early shift
has about 90 employees, the late shift about 30 employees.
In overall charge of plant is General Manager Donald-
son. Shop superintendent is Adam Bellis, who answers to
the general manager, and under Bellis are several foremen.
including Shop Foreman Donald Purkey and Electrical
Foreman Grover Whitten. The director of personnel is
Louis Ellis. who is also in charge of labor relations. All of
the foregoing are admitted statutory supervisors or agents
with authority to speak for and on behalf of Respondent.
Respondent's manufacturing employees comprise a bar-
gaining unit that has been represented for a number of
sears by the Union Local 584 under a collective-bar-
gaining contract with Respondent.
The union local's chief representative is its business man-
ager, Clinton Sroufe. According to Sroute. the Union's ter-
ritorial jurisdiction in Oklahoma is large, stretching from
the Kansas line to below McAllister. Oklahoma, and from
Stroud,. Oklahoma, to the Arkansas border. Sroufe testified
that the Union comprises three autonomous divisions of
workers, construction, manufacturing, and maintenance.
and that no one division votes on the business of the others.
Respondent's bargaining-unit employees belong to the
manufacturing division of the Union.
Apart from its professional union representation, the bar-
gaining unit had two elected representatives. Shop Steward
Virginia Beekman. a class A electrician, and Bargaining-
U nit Chairman C(lifford (Toby) Edgar, a class A welder.
At the time of the events in this case, the plant operations
were all on one floor, with a mezzanine floor for offices and
an employees' lunchroom. Respondent had embarked upon
a plant expansion and remodeling and for this purpose was
using construction contractors, including an electrical con-
struction contractor. Prior to February 28. 1977. the electri-
cal contractor for some of the work was Stewart Electric
Co.. which had a collective-bargaining agreement with the
Union. and whose employees were members of the Union's
construction division. On about February 28. 1977. Re-
spondent brought in a nonunion electrical contractor.
Ilouchin Electric Co., for work on which Houchin had un-
derbid Stewart. Houchin was a comparatively small electric
construction contractor who used two to four men on the
job at the plant.
On March 1. 1977. the Union set up an informational
picket at the plant on behalf of the members of its construc-
tion division.
The picket sign read: "Information: Houchin Electric
does not have an agreement with Local Union 584. IBEW."
B. 7he t Lnion ('oniracl
The collective-hargaining agreement between the Union
and Respondent (G.C. Exh. 2). effective November I .
1975,. through November 10, 1978. covered the plant em-
ployees (other than office employees, clericals, guards, and
professionals), largely made up of manufacturing electri-
cians and some welders, sheet-metal workers, painters. in-
spectors, stockroom employees, and janitors.
Among other things, the agreement has a grievance pro-
cedure. coupled with compulsory arbitration of grievances
not satisfactorily settled, article XX. To be arbitrable, a
grievance must allege misapplication or violation of a spe-
ing Respondent to stop doing business with the nonunion
electrical construction contractor, in violation of Section
8(b)(4) of the Act.
Respondent also claims that since its employees engaged
in strike activity forbidden by the collective-bargaining con-
tract they were subject to discipline. including discharge.
under the contract and that Respondent enjoyed discretion
to choose for discharge those employees whom it regarded
as having special culpability in the forbidden action. in this
case the two elected representatives of the employees.
The matter of the discharges had been referred to arbitra-
tion before the hearing of the case at bar. Respondent ar-
gues that the arbitrator found that the two discharged em-
ployees violated the collective-bargaining contract and that
the Board should defer to that finding.
Actually. the arbitrator assumed that the two discharged
employees had breached the collective-bargaining contract
and concerned himself only with whether discharge was too
severe a penalty. He found that the discharges were too
severe a penalty for the breach and commuted the dis-
charges to 60-day suspensions.
Respondent claims that the arbitrator had no authority
to modify the penalty which Respondent had invoked. and
at the time of hearing of this case. Respondent had not
complied with arbitrator's award. Therefore. Respondent
has not asked that the Board defer to the arbitrator's award
but has moved for deference only to the alleged finding
therein that the collective-bargaining contract was
breached by the two employees. General Counsel and the
Union oppose such deference.
The case was heard in Tulsa, Oklahoma. on July 21.
1977. Counsel for all three parties have filed briefs.
Upon the entire record of the case, including m) observa-
tion of the witnesses and consideration of the briefs, I make
the following:
Flsl)il(¢s (i)o F.XA(
1. It RISI)I 11()N
Respondent is a corporation with an office and place of
business in Tulsa, Oklahoma, where it is engaged in the
manufacture of electrical switchgear and components.
In the calendar year prior to filing the complaint, a repre-
sentative period, Respondent sold and shipped finished
products valued in excess of $50,000 directly to customers
outside Oklahoma.
As the parties admit. Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. IHI: INl AI AHOR B PRA('t I S
A. Re.v7ondent' Buvine.s and L nion Relationship
Respondent manufactures electrical switchgear in its
Tulsa plant and for this purpose uses largely electricians
and some welders. sheet-metal workers, and related person-
nel.
There are two shifts, the early shift commencing at 7:30
GOI!l.D INC. 619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cific provision of the agreement and is limited to subject
matter expressly contained in the agreement, article XX,
section 2.
The agreement also provided:
ARTI(LE XXII--SIRIKF.S ANI) IO()(KOUIS
In view of' the procedure for the orderly settlement
of grievances provided under the terms of this Agree-
ment, the Union agrees that there will be no strike,
work interference, or other stoppage or slowdown of'
work, total or partial, during the term of this Agree-
ment.
An employee or employees who participate in any
such action in violation of this Agreement may be dis-
ciplined or discharged from the Company's service,
subject to the employee's right to submit a grievance
alleging improper discharge in accordance with the
provisions of Article XX, Section 3, paragraph (c) of
this Agreement.
The Union agrees that it will take immediate, posi-
tive action to forestall or suppress any action on the
part of employees in violation of' this Agreement.
The Company will not lock out any employee or
employees while this Agreement is in force.
C. The Walkout
According to Respondent's Personnel Director Ellis, the
informational picketing at the plant, directed at Houchin
Electric Co., began on March 1, 1977, after 9 a.m. There
were two pickets, one of them an assistant business man-
ager of the Union and one carrying the picket sign (see
heading A, above), which Ellis read.
The manufacturing employees became aware of the pick-
eting between 9 a.m. and 9:30 a.m. Employee Harold Web-
ber told Shop Steward Virginia Beekman of it. She then
saw it for herself and went to the telephone about 9:30 a.m.
to ask Union Business Manager Sroufe what it was about
and what to do about it.
Union Business Manager Sroufe told Shop Steward
Beekman that a nonunion electrical construction contractor
(Houchin) with nonunion employees was working in the
plant, that the picketing was informational picketing di-
rected at Houchin and did not involve a violation by Re-
spondent of its collective-bargaining contract covering the
plant employees, that the Union was not going to tell or
advise her or the other employees what to do, and that any
actions by employees would have to be their individual ac-
tions.
Word of the picketing spread through the plant, and at
10 a.m. most of the morning-shift employees gathered in the
lunchroom, as was not unusual, for the 15-minute morning
coffee and refreshment break. The gathering was unusually
noisy, according to employees Stack, Beekman (the shop
steward), and Edgar (the unit chairman), since, in addition
to getting and consuming refreshments, the employees were
discussing the picket, what to do about it, whether to walk
out or continue working behind the picket line, or whether
they were obliged to do one or the other. Unit Chairman
Edgar succeeded in getting the attention of the gathering
long enough to have Shop Steward Beekman explain what
she had learned about the picketing, and she concluded by
saying any employee reaction would be up to each of them
as individuals.
Some of the employees talked of' walking out of the plant
at once, according to Unit Chairman Edgar and Shop Stew-
ard Beekman. Beekman testified that she did not get into
the discussion of: or advise, a walkout. Edgar testified that
he did not advise against a walkout but said that the em-
ployees ought to wait until 4 p.m. (the end of the day shift)
to give Respondent and the Union time to talk and avoid a
walkout. Though there was no organized meeting in pro-
gress, employee John Burgess made a motion to walk out at
4 p.m.. quitting time, unless the Union and Respondent had
worked things out before then. There was a voice vote of
approval, and some employees started leaving the lunch-
room, presumably for their workplaces.
However, others stayed on and, despite the vote, talked
about an immediate walkout, because there were employees
who would be going out and returning to the plant during
the day on business errands or lunch. causing them to cross
the picket line in returning for work. A second voice vote
was taken, by the lesser number of employees still in the
lunchroom, and this time the vote was to walk out of the
plant immediately.
It was now approximately between 10:10 a.m. and 10:15
a.m. The bell rang. signaling coffeebreak was about to end
and time to return to work. The employees in the lunch-
room, on the mezzanine floor, started moving to and down
the stairway to the ground floor shop area. They apparently
halted uncertainl\ at the foot of and on the stairway be-
cause, said Unit Chairman Edgar. employees were there
who were unaware of the second vote in the lunchroom.
Further confused discussion ensued on the conflicting views
and votes already taken, and, according to Edgar, employee
Doug Dodwell broke through the discussion with a motion
to walk out now, which was approved by voice vote.
Nonetheless, said Unit Chairman Edgar, the employees
hesitated and stood where they were. Employee Stack de-
scribed it as an emotional situation in which the employees
wanted to do something. but with no one among them tak-
ing the initiative to start.
At this point Foreman Whitten approached the assem-
bled employees at the stairway. Whitten testified that at the
direction of Personnel Director Ellis he announced that
those employees who had punched out (or clocked out)
were to leave and those who had not were to go back to
work. None of' the employees had punched out or clocked
out- and Whitten testified that he later verified this to be
the fact -but when he made his announcement, said Whit-
ten, the whole group of employees moved to the timeclock,
clocked out. and left the plant. As employee Stack testified,
corroborating Foreman Whitten's description. Whitten's
statement to the employees had the effect of supplying the
initiative for them to do something, and they walked out.
Almost all of the 90 employees on the shift walked out,
testified Shop Superintendent Bellis, and when he observed
a half dozen employees who had not left, he told them they
might as well go home too, and sent them home.
In this connection, the evidence indicated that the plant
management made scant, if any, effort to try to head off or
avoid the walkout. Shop Superintendent Bellis testified that
620
ing-unit employees in January 1977. Sroute said he men-
tioned that he had heard of the possibility of the nonunion
contractor getting some of Respondent's electrical construc-
tion work, but according to Sroufe and several employees
who testified, he added no more other than that he could
probably work out any problem with Respondent. Sroufe
said he had no meeting or discussion with any of Stewart's
management and learned that Houchin had obtained the
work when Houchin's men started working at the plant at
the end of F:ebruary.
Sroufe further testified that for about 2 years prior to the
hearing the Union had been engaged in organizing employ-
ees of electrical construction employers and that it had a 2-
year history of informational picketing of such employers
whose employees were not unionized. Because the Union
had been concentrating on the larger employers, said
Sroufe, there had been no informational picketing of Hou-
chin Electric, a small operator, prior to the picketing that
began March 1, 1977, at Respondent's plant.
The informational picketing of Houchin lasted 13 days,
according to Sroufe, from March I through March 13.
1977. Beginning on the second day of the picketing, after
the sympathy walkout and strike of Respondent's manufac-
turing employees had ended, Respondent had the Houchin
employees use a reserved gate of their own, which they
erected the previous day, said Sroufe. Shop Steward Beek-
man testified that she observed that the picket moved to the
new location on March 2.
D. The Enmplqoees Return To WH1ork
In the afternoon of the walkout on March 1,. 1977. Re-
spondent sent a telegram to Union Business Manager
Sroufe and caused copies to be delivered to each of the
bargaining-unit employees (C.P. Exh. 1.)
In the message, Respondent stated that the strike was an
unlawful secondary boycott and was a violation of article
XXII of the collective-bargaining agreement. Each of the
employees was told that if he or she did not report to his or
her next regularly scheduled shift he or she would be sub-
ject to discharge, as provided in article XXII., and the
Union was called on to take immediate positive action to
return the employees to work.
Union Business Manager Sroufe testified that before he
received his copy of the telegram in the afternoon of March
I he had been called about 4 p.m. by employee Jeff Ott, the
employee representative on the second or late shift, who
had observed the absence of first-shift employees and was
inquiring what to do. Sroule said he told employee Ott that
there had been picketing earlier in the day, that he was told
the first-shift employees left the plant, that the picketing
had no relation to the employees collective-bargaining con-
tract, and that Ott should proceed with the second-shift
duties. Sroufe also testified that he talked to day- or first-
shift employees and advised them to report to work at their
next regularly assigned shift.
The second shift went to work as scheduled on March 1,
and the next morning. March 2, all of the first shift returned
to work as scheduled, and the strike ended. The Union's
informational picketing at the newly set up reserved gate
for Houchin Electric continued from March 2 through
March 13.
he had been made aware of the gathering in the lunchroom
and the talk of walkout, had personally observed the (third)
vote to walk out taken at the stairway, but made no attempt
to talk to the employees about going back to work or the
possible consequence of not doing so, or of talking to Unit
Chairman Edgar, whom he saw among the employees at
the stairway. Bellis did walk over to the telephone, behind
and away from the stairway, where Shop Steward Beekman
had gone from the lunchroom (without participating in the
stairway gathering) to report to Union Business Manager
Sroufe on what had occurred at the lunchroom gathering.
Bellis interrupted her phone conversation to ask what was
going on. She replied that the employees had voted to hon-
or the picketing outside the plant. Bellis answered that the
picketing had nothing to do with the employees, or their
union contract, and they were subjecting themselves to dis-
charge. Beekman handed Bellis the telephone and he took
over the conversation with Sroufe. Sroufe agreed with Bellis
that the picket line had nothing to do with the union con-
tract of Respondent's unit employees. and asked Bellis to
have General Manager Donaldson or Personnel Director
Ellis get in touch with him to resolve the problem before it
came about. Ellis did not call Sroufe until about 4 p.m.,
approximately 6 hours later.2
Shop Steward Beekman and Unit Chairman Edgar were
the last of the employees to walk out. Edgar had walked
over to Beekman at the telephone to inform her of the third
vote at the stairway. Neither of them had advised their fel-
low employees against voting or against walking out but
Beekman had not voted in any of the three employee votes,
she said, and Edgar said he had voted in all three. Beekman
testified she saw five or six employees still in the shop at the
timeclock when she punched out (these were the few em-
ployees whom Shop Superintendent Bellis then sent home).
Bellis and some of his supervisors were also at the clock,
and Bellis asked her if she knew that the employees who
had walked out could be discharged. She replied that they
made their decision, and left the plant.
In connection with the March I walkout, Union Business
Manager Sroufe testified that at no time did he or the
Union give any instructions or directions to anyone for a
walkout or strike action. He noted that in December 1976
he had heard, from a union member and employee of the
union construction contractor Stewart Electric, that non-
union construction contractor Houchin Electric might be
getting some of Respondent's plant expansion work that
Stewart thought it had, and that he, Sroufe. asked Person-
nel Director Ellis about it. Ellis said he had nothing to do
with contract awards but would find out. However, Ellis
provided Sroufe with no advance information,' and Sroufe
tried in vain to obtain information from General Manager
Donaldson.
At the monthly union meeting of Respondent's bargain-
2 Personnel Director Ellis had also been fully aware of the actions of the
employees as they occurred in the morning of March 1. Like Shop Superin-
tendent Bellis, he too made no effort to head off the walkout or advise
employees of possible consequences but merels directed Foreman Whitten to
make the statement he made, supra.
Interestingly, the arbitrator in his award appeared to regard the Whitten
statement as an invitation for a mass exodus of the employees.
Ellis did tell Sroufe, a week after the March 1. 1977, walkout, that Hou-
chin had underbid Stewart by a considerable amount for the particular job.
GOULDINC. 621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the late afternoon of March 1, Personnel Director Ellis
finally responded to Union Business Manager Sroufe's
morning request to call Sroufe. They discussed the morning
walkout of the employees and whether the collective-bar-
gaining contract had been violated. Sroufe contended that
article XXII of the contract pertained to the orderly settle-
ment of grievances under the contract, that there was no
grievable offense under the contract that prompted the
Union's picket or the employee activity that followed, and
that therefore, since the contract does not bar sympathy
strikes, the employees committed no violation of the con-
tract. Ellis asked what the Union position would he if
Houchin Electric were not there, and Sroufe answered that
there would have been no need for a picket if Houchin were
not there.
As a result of the March 1 walkout and strike, Respon-
dent filed unfair labor practices charges against the Union,
charging violations of Section 8(b)(4)(i), Section
8(b)(4)(ii)(A) and (B), and Section 8(b)(7)(C) of the Act.
Following investigations of the charges, the Regional Direc-
tor found further proceedings unwarranted and refused to
issue complaints against the Union (see C.P. Exh. 2 5).
E. The Discharges of Emiplovees BeeAkman and Edgar
When the day-shift employees reported to work on the
morning of March 2, all were put back to work without
discipline or talk of discipline for the walkout on March 1
except Shop Steward Beekman and Unit Chairman Edgar.
Ihe two employees were interviewed separately by Person-
nel Director Ellis, with several supervisors present. and in-
terrogated about the walkout. Both were handed suspen-
sion letters. already prepared, charging each with a
substantial role in the strike of March I and removing them
from the payroll. (G.('. Exhs. 3 and 5). Both were sent
home.
Following a further separate meeting for each of them
with management representatives, employees Beekman and
Edgar were discharged as of March I by letters dated
March 10, 1977 (G.C. Exhs. 4 and 6). Both were charged
with being the leaders of the work stoppage on March I.
Added in was a charge of having violated company rules,
i.e., refusing to return to work despite a foreman's direct
order (which was identified at hearing as the Whitten state-
ment made to all employees to leave if clocked out or return
to work) and being absent from duty for the 6 hours on
March 1.
While none of Respondent's witnesses testified as to the
discharges, it was made plain by Respondent that it had
determined that these two employees "had a special respon-
sibility and higher duty" than the other employees (by vir-
tue of being the elected shop steward and unit chairman.
respectively), and therefore should be disciplined rather
than the 83 or 84 other employees "who may have been
misled by their actions or inaction."
The Union filed grievances on behalf of the two dis-
charged employees, which went to arbitration. In his award
the arbitrator. though he copied down the arguments of the
Union and Respondent, assumed without explanation that
the walkout was a violation of the collective-bargaining
contract and dealt only with whether the discipline of dis-
charge invoked by Respondent was too severe. [le found
that the discipline was too severe and reduced the dis-
charges to 60-day suspensions (G.C. Exh. 7). At the time of
hearing, Respondent had not complied with the award and
had not reinstated the two employees, contending that the
arbitrator had no authority to modify' the discharge pen-
alty.
FI. Concluding Findings
1. Protected activity
The employee walkout and 6-hour work stoppage of
March 1, 1977, by Respondent's unionized manufacturing
employees was in sympathy for the construction employee
members of the Union, who had begun informational pick-
eting that morning of a nonunion electrical construction
contractor engaged in work for Respondent with nonunion
employees at Respondent's plant.
The walkout was the spontaneous action of about 85 of
the 90 first-shift employees, who decided in unorganized
assemblages in the plant that they would not work behind
the picket line. The decision and action was not directed by
the Union, whose business manager, Sroufe, advised the
shop steward, and through her the employees, that what-
ever action the employees took would be their individual
choice and action. Such advice does not constitute union
authorization or union inducement within the meaning of
Section 8(b)(4)(i) of the Act. Building eand Construction
7rad,.es C(ouncil of! Tampa and l icinity, AFL CIO (Tampa
Sand and M1aterial Co.). 132 NLRB 1564, 1565 66 (1961).
Moreover, the Union was not required to actively discour-
age the sympathy strike in order to disestablish any connec-
tion to secondary activity. Building anid Construction Trades
Council qo Los Angeles., and Laborers & Plaster Tenders l.o-
cal 507 (Kon Lee Building Co ., 162 NLRB 605. 608 609
(1967).
Before the picketing and sympathy walkout, the Union
made no threats to force Respondent to stop doing business
with the nonunion contractor Houchin Electric, and the
union business manager's comment after the sympathy
strike began that there would have been no need for an
informational picket. in reply to Respondent's question on
what the union position would be if there was no nonunion
contractor, was hardly a threat of economic reprisal to
force cessation of business with another within the meaning
of Section 8(b)(4)(ii)(B) of the Act.
Under the no-strike provision, article XXII, of the collec-
tive-bargaining contract with Respondent, quoted under
heading B, above, Respondent's manufacturing employees
did not waive their right to engage in sympathy strikes. The
right is not expressly prohibited by the language, and a
prohibition may not be implied, because the contract re-
striction on strikes is tied to the procedure for the orderly
settlement of grievances arising under the contract. Since
neither the cause of nor the issue underlying the sympathy
strike are subject to the settlement procedures of the con-
tract, a ban on the sympathy strike may not be implied.
Buflalo Forge Co, v. United Steelworkers of America, A FL
(1I0, 428 U.S. 397, 407 408 (1976): Xfontana-Dakota Utili-
ties Co.. 189 NLRB 879, 882 883 (1971). reversed on an-
622
dence that the 6-hour sympathy work stoppage of Respon-
dent's manufacturing employees had any effect on Houchin
Electric, let alone the substantial disruptive effect the Board
would require to be shown when the legitimacy of an infor-
mational picketing is challenged under the "effect" clause
of Section 8(b)}7)(C). Retail Clerks Union Local 324 and
Retail C'lerks Union Local 77(, both qafiliated wtith Retail
Clerks International A.ssociation, A FL C10 (Barker Bros.
Corp. and Gold's In(-.), 138 NLRB 478, 490 491 (1962).'
The 6-hour work stoppage by Respondent's employees
was therefore protected concerted activity under Section 7
of the Act, and discharges founded upon participating
therein were in violation of Section 8(a)(I ) of' the Act.'
Respondent made no claim of justifying the discharges of
employees Beekman and Edgar under a balancing of the
employer's business needs against the employees' rights (to
engage in protected activity) under the Redwing Carriers
doctrine discussed above. On the contrary, as discussed be-
low, the Respondent selected the two employees for dis-
charge not for any economic reason but for allegedly violat-
ing a claimed special duty owed by these two employees as
elected union representatives of the unit of employees.
2. Discrimination against the employee union
respresentatives
Respondent requested each of the striking emplosees to
return to work by the start of the next regular shift, or risk
discharge. All of the employees complied with the request
and were put back to work without penalty or talk of pen-
alty. except the two elected employee union representatives,
Shop Steward Beekman and Unit Chairman Edgar. These
two employees were first suspended and later discharged.
Out of the 85 strikers, Respondent selected these two em-
ployees for discipline because, in Respondent's view, by vir-
tue of their status as elected shop steward and unit chair-
man they supposedly had a special responsibilits, and
higher duty than the other employees to take steps to pre-
vent rather than participate in the work stoppage.
Discharge for this reason was discriminatory under Sec-
tion 8(a)(3) of the Act. and has been held so even where the
walkout was unprotected activity. In Precision Castings
Companv. Division of Aurora Corporation, a wholli, owned
Suhsidianr of Allied Products Corporation. 233 NLRB 183
(1977), where the employer disciplined only the union stew-
ards following a walkout unauthorized under the governing
collective-bargaining contract, the Board held that select-
ing for discipline the employees who held the position of
7 Indeed, Respondent prosided no evidence in support of its claim of
statutory violations by the Union beyond the assertions thereof that were
apparently the same assertions before the Regional Director when he refused
to, issue complaints against the Union on charges filed by Respondent (see
heading D, above )
I Even it the walkoul tof the first day by Respondent's employees were not
regarded as protected activity at its inception. Respondent condoned the
concerted actis'its by its demonstrated willingness to forgive the unprotecied
aspect oft it in offering to aiccept, and accepting. the return ofI the employees
without discipline at the start of the shift on the second day. Super rIIu
X\enl,4 DniisTin o/ Super I alu .Storesr. Inc. 228 NI RB 12
5
4. 1260 ( 1977):
(on/tlclonenr & TIh lbasco Dri'ers and 4iltrehousemlenv U mon. lIt wal $0.5,
IBT( IHH.4 v NI..R AB 312 F 2d 108. 113 114 (('A 2. 19631. enlg .U
Eiskin & Son. 135 NL.RB 666 (1962); Rrinti/ H/lhcopter (Corp,-alril,m 135
Nl.RB 142. 1411. 1417 18 41962)
other ground Montana-Dakota Utilities (Co. v. V. L. R. B., 455
F.2d 1088 (C.A. 8. 1972).'
In both of the cited cases, the employees who engaged in
the sympathy strikes were under no-strike provisions of col-
lective-bargaining contracts similar to article XXII of the
contract in this case. It was held, by the Court in the Bu[/alo
Forge case' and by the Board in the Montana-Dakota case,
that such provisions do not imply a waiver by employees of
the right to engage in sympathy strikes.
In Buffalo Forge the sympathy strike was by the produc-
tion unit on behalf' of the striking office workers unit of the
common employer. when the office workers failed to obtain
a collective-bargaining agreement: the employees were rep-
resented by two locals of the same union, not unlike the
situation here, where the union local represents several au-
tonomous divisions of workers.
The facts in Montana-Dakota were even closer to those of
the case at bar. A group of the utility's unionized employ-
ees, who were assigned to work on a housing development
project, refused to cross or work behind an informational
picket set up by a union other than their own, directed at a
nonunion construction contractor. As in the case at bar, the
utility employees were advised by their union steward that
the picketing did not involve any issue or dispute with their
employer and that each of them had to make his own deci-
sion as to whether he would cross the picket line.
It is useful to note, as was noted in Montana-Dakota,
supra at 882. that though employees (who have not waived
their right) are engaged in protected concerted actisvity
when they respect a picket line established by other em-
ployees, the employer of those engaged in the svmpaths
action is not without a balancing remedy. As set out in
Redwing Carriers6 and related cases, the protected right of
the employees must be balanced against the specific busi-
ness interest of the employer to conduct his business. Where
the employer's business need to replace the employees
clearly outweighs the employees' right to engage in pro-
tected activity, an invasion of the statutory right is justified
and the employer may suspend or terminate such employ-
ees so that he can immediatels or within a short period
thereafter replace them with others willing to perform the
scheduled work.
Here, Respondent's employees engaged in a sympathv
walkout and refusal to work behind or cross an informa-
tional picket line. The informational picketing was legiti-
mate under Section 8(b)(7)(C). The picketing was directed
at nonunion electrical construction contractor Houchin
Electric, informing the public, on behalf of the construction
members of the Union, that Houchin had no collective-
bargaining agreement with the Union. There was no evi-
' Th he r ground and resulting disagreement between the circuit court
and the Board was the court's view (iontrary to the Boalrd) that under a
special picketing clause, separate from and in addition to the no-strike
clause. of their contract the utilits emploees had waived an! right ihes
might othervise have had to cease sork when confronted ho a picket line.
There is no such complication in the case at har.
' In Bulfalb Forge, the issue arose on application ifr . district court ijiunc-
tion against ihe strike. which 'as, denied.
I Reding Carier.s, 11n and Rockamna (' rreri. nl, 1137 NtlRB 1545
1962). moditsing 130 NL.RB 1208 11961 ).al'd. vh noal 7lcln'L'er., (Chaul
leurs and Helperi LraJl Vi '79 Interntllional BRrtherhossd si Tcarnolteers si,
[Redw ing (arrierv. Ins . and Rk'Anal (Carriers. Ins I v, RR. . B 325 2d
1011 ('A D.('.. 1963) cert denied 377 1 S 905 (1964).
GOULD IN(C. 623
DC ('ISIONS OF NATIONA. LABOR RELATIONS BOARD
shop steward, assertedly because they could be held to a
greater degree of accountability for participating in the
strike, was discrimination directed against an employee on
the basis of his or her holding union office contrary to the
meaning of Section 8(a)(3) of the Act. The discipline was
held to violate Section 8(a)(3) and ( I ) of the Act.
Respondent went a step further and accused employees
Beekman and Edgar not merely of participation but of
leadership in the walkout. However, the proof adduced at
the hearing did not sustain the accusation. Rather it ap-
peared that the employees assembled spontaneously in un-
organized fashion on their morning break and discussed
walkout to avoid working behind and crossing the picket
line. Beekman made clear to the employees that they were
acting individually, and Edgar asked them to delay any
walkout until the end of the day to allow time for discussion
between Respondent and the Union and avoidance of a
walkout. His request was initially agreed to but was subse-
quently overridden by successive votes of the employees,
and Beekman and Edgar followed the rest of the employees
in walking out of the plant.
Assuming that proven leadership by the two elected em-
ployee representatives in connection with the sympathy
walkout might have been regarded as misconduct justifying
employer discipline including discharge. the discharges of
these two employees (who had participated in the protected
concerted activity) based on unfounded accusations or mis-
taken belief that they engaged in strike leadership or mis-
conduct, constituted acts of interference, restraint, or coer-
cion infringing rights under Section 7 of the Act in violation
of Section 8(a)( ). N.L.R. B. v. Burnup and Simr, Inc., 379
U.S. 21, 23 (1964).
The discharges of employees Beckman and Edgar were
unlawful. in violation of Section 8(a)(l) of the Act.'
3. No deferral to arbitration
Respondent has not asked for deference to the arbitra-
tor's award. Actually, Respondent opposes the award, since
the arbitrator commuted the discharges of Beekman and
Edgar to 60-day suspensions and Respondent had not rein-
stated either employee at the time of the hearing. Respon-
dent nevertheless has moved for deference to an alleged
finding in the award that the two employees breached the
collective-bargaining contract by participating in the walk-
out. General Counsel and the Union have opposed such
deference.
There is no sound basis for granting the motion. While I
doubt that a party may pick and choose the part he likes
from the part he doesn't like in asking Board deference to
an arbitrator's award, there was no such finding in the
award as Respondent alleges. The arbitrator, though he had
the issues laid out for him, simply assumed that the sympa-
thy walkout was illegal. He stated that all of the striking
employees, including Beekman and Edgar. were equally at
fault, and that while neither Beekman nor Edgar exerted
TI he additional claim by Respondent that the two employees disobeyed a
direct order to return to work as the walkout began was without substance.
The "order" was the statement or request of Foreman Whitten addressed to
all of the employees in general (and not to Beekman and Edgar in particu-
lar). saying. in effect. leave the plant if you are going to strike, else go back to
w ork
affirmative leadership in causing the walkout, nevertheless
Respondent had the right to discipline them, intimating
that by reason of their union-related functions they owed
some (undefined) special duty to prevent the walkout. The
major concern of his conclusions was with the penalty of
discharge invoked by Respondent. Fle held that the dis-
charges were too severe a penalty and awarded instead a
60-day suspension without pay for both employees, with
reinstatement to follow.
It is also obvious, therefore, that the arbitrator's award
did not deal with the issues that required decision, supra, in
dealing with the unfair labor practices alleged in the com-
plaint: and that, to the extent that the arbitrator assumed or
intimated views in those areas. such views appeared to be
repugnant to Board law.
I or these reasons. and since the case at bar looks toward
vindication of individual rights under the Act, deferral to
the arbitration, or more exactly to a portion of' it, is not
appropriate. General .4merican Transportation Corporation,
228 NLRB 808 (1977).
CON( I USIONS O() IAWV
1. The 6-hour work stoppage on March 1, 1977, by Re-
spondent's manufacturing employees, members of the
Union's manufacturing division, in sympathy fbr informa-
tional picketing by construction employees who were mem-
bers of the Union's construction division, directed at a non-
union electrical construction employer performing
construction services tbr Respondent at the manufacturing
plant. was a spontaneous sympathy strike by the manutfac-
turing employees involved and was not directed by the
Union. The sympathy strike was not forbidden by the no-
strike provision of the collective-bargaining contract gov-
erning the unit of manufacturing employees, which provi-
sion was limited to a ban on strikes for grievances arising
and arbitrable under the collective-bargaining contract. Re-
spondent's employees who participated in the sympathy
strike were engaged in protected concerted activity under
Section 7 of the Act.
2. Respondent's discharges of the two elected employee
union representatives of the manufacturing unit from
among the 85 employee participants in the sympathy strike,
on the basis of their holding union office, were discrimina-
tory against the two employees and constituted unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
The discharges, on the further basis of an unproven accusa-
tion or mistaken belief that the two employees engaged in
misconduct by providing the leadership for the walkout,
infringed upon their right under Section 7 of the Act to
engage in protected concerted activity and constituted fur-
ther unfair labor practices in violation of Section 8(a)(l).
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
TiiF REMFDY
It will be recommended that Respondent:
(I) Cease and desist from its unfair labor practices.
(2) Offer to reinstate employees Beekman and Edgar,
and give each backpay from the effective date of their dis-
charges, March 1, 1977, said backpay to be computed on a
624
Board and its agents, for examination and copying, all pay-
roll records. social security payment records. timecards,
personnel records and reports, and all other records neces-
sary to ascertain the backpay due under the terms of this
Order.
(d) Post at its plant in T'ulsa. Oklahoma. copies of the
attached notice marked "Appendix."'2 Immediately upon
receipt of said notice, on forms to be provided by the Re-
gionil Director for Region 16. Respondent shall cause the
copies to be signed by one of its authorized representatives
and posted, the posted copies to be maintained for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered. defaced. or covered by ans
other material.
(e) Notify the Regional Director for Region 16. in writ-
ing. within 20 clays from the date of this Order, what steps
Respondent has taken to comply herewith.
12 In the event that this Order is enforced b> ajudgment of a United States
C(ourt of Appeals. the ,ords in the notice reading "Posted by Order of the
National l.abor Relations Board" shall read "Posted Pursuant to a Judgment
of the IUnited States (ourt of Appeals Enforcing an Order of the National
Isibor Relatlions Board."
APPEN )IX
NoTII( I To EMPI ON[L:S
PoSIED BY ORDER ()F Tilt
NAII()NAI. LABOR REI .AIIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found
after a hearing that we violated the National Labor
Relations Act:
W V wI.t. NO t discharge or suspend employees
or discriminate against them in regard to their
hire, tenure, or any term or condition of employ-
ment because of their protected concerted activi-
ties or because they hold union office in the bar-
gaining unit when engaging in protected
concerted activities.
w it.l. NOT, in anv other manner, interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed in Section 7 of the Na-
tional Labor Relations Act.
Because the Board found that we unlawfully
discharged employees Virginia Beekman and
Clifford Edgar, wE WIL L offer them their former
jobs, and Wv- nIItL give each of them backpay
with interest from the time of their discharges
effective March, 1, 1977.
GoUlD INC., S\W11( IlG(; AR DI vSION(
(FORME Ri Yi TERA( CONIROI S, IN( .)
quarterly basis as set forth in F: W. ' Woolworth Company, 90
NLRB 289 (1950). approved in N.L.R.B. v. Seven-CLp Boi-
dins Company o' Miami, Inc. 344 U.S. 344 (1953), with in-
terest as prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).1"
(3) Post the notices provided for herein: and because Re-
spondent violated fundamental employee rights guaranteed
by Section 7 of the Act, and because there appears from the
manner of the commission of this conduct an attitude of
opposition to the purposes of the Act and a proclivity to
commit other unfair labor practices. It will be further rec-
ommended that Respondent cease and desist from in ans
manner infringing upon the rights guaranteed by Section 7
of the Act. N.I.R.RB. v. Entwistle Manulfctcuring Companre,
120 F.2d 532, 536 (C.A. 4, 1941): P. R. ,Mallors & Co., Inc.
v. N.L.R.B.. 400 F.2d 956, 959 960 (C.A. 7. 1968), cert.
denied 394 U.S. 918 (1969): ;%.L. RB. v. The Bamla Co.. 353
F.2d 320. 323 324 (C.A. 5, 1965).
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER"
The Respondent. Gould Inc., Switchgear Division (for-
merly Terac Controls. Inc.). Tulsa. Oklahoma. its officers.
agents. successors, and assigns shall:
1. ('ease and desist from:
(a) Discharging or suspending employees or discriminat-
ing against them in regard to their hire, tenure, or any term
or condition of employment because of their protected con-
certed activities or because they hold union office in the
bargaining unit when engaging in protected concerted ac-
tivities.
lb) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make employees Virginia Beekman and Clifford Ed-
gar whole, in the manner set forth in the section of this
Decision entitled "The Remedy." for any loss of earnings
incurred by each of them as a result of their discharges
effective on March 1. 1977.
(b) Offer to both of said employees immediate and full
reinstatement to their former jobs or. it' the jobs no longer
exist, to substantially equivalent positions, without preju-
dice to the seniority or other rights and privileges of each.
(c) Preserve and. upon request, make available to the
1See, generalls, Fvo Plumbing & Heating (o, 138 NL.RB 716 (1962).
11 In the event no exceptions are filed as provided b> Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall. as prosided in Sec. 102.48
of the Rules and Regulations. be adopted bh the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
wasied foir all purposes
GOUILD INC. 625