Hammermill Paper Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1236 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hammermill Paper Company and David G.
Szczesnv. Case 6-CA-12303
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 6, 1980, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order,2 as modified
herein.
The facts are that Union Steward Stritzinger and
eight other employees participated in a contractual-
ly prohibited work stoppage. Respondent, contrary
to its admitted practice of discharging previously
disciplined employees and suspending those with
clean records, discharged Stritzinger, who had a
clean record, rather than suspending him as it had
the other clean-record strikers. His termination
letter, which was in evidence at both the arbitra-
tion hearing and this proceeding, states that he was
discharged because of his strike activity "and addi-
tionally, your failure to take affirmative action as a
Union Representative in the face of a concerted
action in violation of [contract] Article IV, para.
(a)," i.e., the no-strike clause. Stritzinger then filed
a grievance which culminated in an arbitration
award wherein the arbitrator rejected Respondent's
admitted and unrefuted union-affiliated reason for
Stritzinger's discharge because of his determination
that Respondent's position that "a union steward is
a union steward, regardless of whether he is acting
in that capacity-contradicts both the collective
bargaining agreement and the whole nature of the
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently failed to indicate in his
recommended Order the manner in which backpay and the appropriate
interest rate were to be completed. We shall modify his recommended
Order accordingly.
Member Jenkins would compute interest on the backpay due based on
the formula set forth in his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980)
252 NLRB No. 172
stewards' jobs." Based on this disregard of the evi-
dence and of the protection of the Act, the arbitra-
tor found that Respondent's treatment of Strit-
zinger was unrelated to his union affiliation because
he was not acting in his union capacity during the
time of the incident, further found that he was dis-
ciplined because of is refusal to perform legitimate-
ly assigned tasks, and, remedially, ordered him to
be reinstated but without backpay. The Administra-
tive Law Judge reached a contrary conclusion,
found that Stritzinger's discharge was directly re-
lated to his union affiliation and was discriminatory
and disparate, and declined to defer to the arbitra-
tion award because the arbitrator's ruling that Strit-
zinger, who had been reinstated, is not entitled to
backpay is contrary to Board law.
The arbitrator's views and his rejection of the
unrefuted evidence are unaccountable. Whatever
the arbitrator had in mind, the fact remains that he
rejected, not interpreted or misinterpreted, but re-
jected, material evidence which was admitted, un-
challenged, and formed a primary basis for Strit-
zinger's discharge and the unfair labor practices al-
leged.
Despite this disregard of material evidence,
which also precluded the arbitrator from affording
legitimate consideration to the unfair practice
charges, our dissenting colleague nevertheless
would defer to the award which provides a remedy
incompatible with the Board's established policy
and practice of restoring the status quo ante wher-
ever possible. In view of that policy and practice,
it is curious to say, as our dissenting colleague
does, that the failure to compensate Stritzinger "is
not wholly at odds with Board law [because] . . .
the Act does not require backpay" when, in fact,
the result urged by our colleague could not be
more at odds with Board precedent.
The award notwithstanding, our colleague avers
that he "would find that Respondent was free to
fire Stritzinger for not trying to stop the strike,"
and thus makes clear that the underlying thrust of
his position is, as he expressed in Gould and its
progeny, that union stewards must fulfill duties and
responsibilities which, in his view, are inherent in
that position, including enforcement of a contrac-
tual no-strike clause. By advocating Respondent's
position that it lawfully may discharge a union offi-
cer because of his lack of action as such an officer,
our colleague again is applying a legally impermis-
sible criterion for discipline under the Act, 4 and
one which is not validated by a contractual no-
4Midwest Precision Castings Company, 244 NLRB 597 (1979); Gould
Corporation, 237 NLRB 881 (1977); Precision Castings Corporation Division
of Aurora Corporation, a wholly owned subsidiary of Allied Products Corpo-
ration, 233 NI.RB 183 (1977)
1236
HAMMERMILL PAPER COMPANY
strike clause. Moreover, assuming that the contract
specifies the responsibilities of a union steward, the
contract nevertheless does not cede to the Employ-
er the power to enforce it by discharging union of-
ficials. As we stated in Gould, supra, "Employer
self-help against individual union officials for a
union's breach of contract can only undermine the
peaceful settling of disputes and clears a path for
employer intervention in a union's internal affairs
The arbitrator's failure to afford legitimate con-
sideration to the central issue herein scarcely exem-
plifies what our colleague calls the arbitral "flexi-
bility" to examine any areas of the dispute, let
alone the "gray areas" which our colleague finds
present herein. Deferring to the arbitration result
here would mean the abandonment of the Spielberg
tests5 our colleague extols. His standard would ulti-
mately lead to deferring in every case where an ar-
bitration clause exists, because it presents the possi-
bility that an arbitrator could decide the unfair
labor practice issue. Indeed, our colleague, in
adopting his "could have been decided in arbitra-
tion" standard for deferral, has already traveled
most of the distance toward allowing the bare exis-
tence of an arbitration clause to foreclose the
Board's ability to assure the protection of the Act.
We decline to follow this path.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hammermill Paper Company, Erie, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Make Thomas Stritzinger whole for any loss
of pay he may haved suffered by reason of the Re-
spondent's discrimination against him. Backpay
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with in-
terest as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). 5"
2. Substitute the following for paragraph 2(d):
"(d) Notify the Regional Director for Region 6,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
MEMBER PENEI.I.O, dissenting:
I Spielberg 1Manufacturng Compano, 112 NlRB IO80 (1955)
I would defer to the arbitration award herein
and dismiss in its entirety the complaint alleging
that Respondent unlawfully discharged Union Ste-
ward Thomas Stritzinger because he was a union
steward. Stritzinger and eight other employees en-
gaged in a work stoppage in violation of the con-
tract. Two employees were given suspensions;
seven including Stritzinger were discharged. Of the
seven, all but Stritzinger had previously received
disciplinary reprimands. The Company contends
that Stritzinger was a singled out because he was
steward who had a specific contractual responsibil-
ity to take affirmative action to stop the strike6 and
because he was a leader of the work stoppage.
The suspensions and discharges were grieved
and went to arbitration. The arbitrator found the
men to have been wrong in their action-that their
safety fears were premature. Accordingly, he
upheld the suspensions. However, he found that
discharge, under the circumstances, was too harsh
a penalty. With respect to the steward, the arbitra-
tor found that there was no evidence that Strit-
zinger was the ringleader on the evening in ques-
tion but that the was an equal participant. The arbi-
trator further found that Stritzinger was not the
steward on the evening in question and the Compa-
ny had no reason to single him out for differential
discipline on the grounds of his stewardship. With
respect to the remedy the arbitrator stated, "I be-
lieve that the evidence justifies the finding that the
men acted in an egregiously improper manner, that
they refused to perform work tasks assigned to
them, that whatever their concern for safety, it was
at best premature, that they should have proceeded
to the tasks assigned to them." In conclusion the
arbitrator stated, "In this case, I feel that to award
backpay to these employees would be interpreted
as a reward for their activity on the night in ques-
tion. It was not conduct which ought to be re-
warded. It was conduct that ought to be con-
demned in the most stringent of terms." Accord-
ingly, the arbitrator concluded that the seven em-
ployees should be returned to work without back-
pay.
In my opinion that award is not repugnant to the
purposes and policies of the Act and is not wholly
at odds with Board law. This standard was recent-
ly applied by the court in N.L.R.B. v. Pincus Broth-
t The Administrative L.aw Judge found he was singled out because he
was a steward and found a violation, following the majority In Gould
Corporation, 237 NLRH 881 (1978), reversed sub nom. Gould, Inc.. 612
F 2d 728 (3d Cir. 1979) On the merits of this proceeding Gould would
be clearly applicable. As I dissented in that case, I would find that Re-
spondent was free to fire Stritzinger for not tr)ilg to stop the strike and
therefore that anything the arbitrator did would be repugnant to the Act
Nonetheless, I believe deferral is appropriate here whatever one's iew of
Gould
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers, Inc.-Maxwell, 620 F.2d 367 (3d Cir. 1980),
wherein the court stated that, "it is an abuse of dis-
cretion for the Board to refuse to defer to an arbi-
tration award where the finding of the arbitrator
may arguably be charactrrized as not inconsistent
with Board policy." The majority be refusing to
defer run afoul of this standard-the Speilberg Man-
ufacturing Company, 112 NLRB 1080 (1955), stan-
dard for deferral.
The majority state that my standard for deferral
"would ultimately lead to deferring in every case
where an arbitration clause exists." This of course
is hyperbole. Instead, the standard I apply is the
Speilberg standard. I am willing to let an employer
which has recognized, bargained with, and reached
agreement with a union and the union which has
been recognized by, bargained with, and reached
agreement with the employer to mutually decide in
the maturity of their bargaining relationship to
submit all disputes arising during the term of their
agreement to grievance-arbitration. I beleive it
furthers the purpose of the Act to let the griev-
ance-arbitration forum settle such disputes and
would generally take a hands off approach. This is
what the term "deferral" means and what Spielberg
holds. The majority, however, stretch the term
"deferral" to mean something considerably differ-
ent; they do not "defer" to the process of arbitra-
tion but instead either "adopt" or "reject" a par-
ticular award. In addition, in applying the Spielberg
standards for review of an award, the majority
stretch the meaning of the term "clearly repug-
nant" to some standard much looser than the
narrow scope of review established by that term.
In fact, they seem to defer only when they agree
with both the language and the results of the
award. By stretching the meaning of "deferral" and
"clearly repugnant" to the point of distortion, if
not the breaking point, the majority have so attenu-
ated Spielberg that it no longer serves either institu-
tional or statutory purposes. Thus, it is the major-
ity, I submit, which misconstrues and misapplies
Speilberg.
Where the majority initially go wrong is to
adopt the Administrative Law Judge's rationale
that deferral is inappropriate because the failure to
compensate Stritzinger is contrary to Board law.
Simply put, the Act does not require backpay. Sec-
tion 10(c) states that when a party is found to have
committed a violation of the Act the Board shall
order the respondent "to take such affirmative
action including reinstatement of employees with
or without back pay, as will effectuate the policies
of the Act." The arbitrator found that Stritzinger
and the others engaged in an egregious refusal to
work and that to order backpay would be to
reward such conduct. This is not inconsistent with
Board policy, for the Board has not precluded em-
ployers from disciplining employees for disobeying
work orders or engaging in strikes in violation of
the contract. The majority, however, have decided
to reward Stritzinger for his misconduct by award-
ing him full backpay.
Once again this case points to the efficacy of de-
ferral to arbitration and of arbitration to achieve a
fair and just result and to foster industrial peace.
An arbitrator has greater flexibility to handle gray
areas, as involved herein, and call them gray; the
Board, as the majority do herein, must determine
whether the gray area is black or white. It is just
this flexibility which has made arbitration one of
the most important tools in industrial relations in
this country today. The majority, by refusing to
defer in this situation, have reached a decision
which ultimately serves to undermine the flexibility
which makes arbitration the valuable tool that it is.
Accordingly, I would, as I have previously stated,
defer to the arbitration award herein for I believe it
fully meets the Spielberg standards for deferral.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hear-
ing in this proceeding was held on February 11, 1980, at
Erie, Pennsylvania, on complaint of the General Counsel
against Hammermill Paper Company, herein called the
Respondent. The complaint issued on September 19,
1979, based upon a charge filed on April 26, 1979, by
David Szczesny. The sole issue presented is whether the
Respondent discharged a union steward named Thomas
Stritzinger in violation of Section 8(a)(3) of the Act.
Briefs were filed after the close of the hearing by the
General Counsel and the Respondent.
Upon the entire record, and from my observation of
the witnesses, I make the following:1
FINDINGS OF FACT
i. THE BUSINESS OF THE RESPONDENT
Hammermill Paper Company is a corporation engaged
in Erie, Pennsylvania, in the manufacture and nonretail
sale of paper, pulp, and related products. During the 12-
month period preceding issuance of the complaint at this
location it sold and shipped products valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania. During the same period at this location the
Respondent purchased and received products and goods
valued in excess of $30,000 directly from out-of-state
sources. I find that the Respondent is engaged in com-
merce within the meaning of the Act.
' Error, il the transcript have hbeen noted and corrected.
1238
HAMMERMILL PAPER COMPANY
II. THE LABOR ORGANIZA ION INVOL.VI)
I find that United Paper Workers International Union,
Erie Local Union No. 620, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
it. THE UNFAIR LABOR PRACTICE
A. The Case in a Nutshell
One day a crew of nine men who did mechanical
work were asked to do a certain maintenance job-a
risky one-because the men in the maintenance crew,
who were supposed to do it, were not available then.
The mechanical crew refused to do the job. This con-
certed action, by all nine of them, was clearly a refusal
to obey a work order. It could also be called a strike, but
the use of descriptive and distracting language is beside
the point in this case, because the question to be decided
has nothing to do with that.
The Company punished all nine men for such refusal.
Whatever it is called-disobedience or strike action-in
this proceeding no one disputes the right of the Compa-
ny to discipline the men. Seven were fired and two were
only suspended. The distinction which management
drew was based upon the fact that the seven had re-
ceived previous disciplinary warnings or reprimands of
one kind or another, whereas the other two had perfect-
ly clean records, and that is why they were only sus-
pended.
The trouble is that one of the discharged men, Thomas
Stritzinger, had also never been reprimanded, yet was
not treated the same as were John Hughes and Paul Gal-
lagher, the two who were only suspended. Why this
"discrimination" against Stritzinger, to quote a phrase
from the statute? The answer to this question is the
answer to the complaint. And as in all cases where a
man is discharged, there can be no clearer proof of the
employer's reason than the one he writes down then and
there in a letter of dismissal he hands the employee when
telling him to go home. Here the letter reads as follows:
As a result of your refusal to perform the work
assignment given to you by your Foreman and the
General Foreman on February 18, 1979, specifical-
ly, to prepare materials for a fire at the Woodroom
Jackladder, and, additionally, your failure to take
affirmative action as a Union Representative in the
face of a concerted action in the violation of Article
IV, para. (a), your employment with Hammermill
Paper Company is terminated.
C.R. Gittere
Industrial Relations Manager
You look at this language and you see the purest
direct proof, out of the pen of the employer-far more
reliable than mental recollection-of an unfair labor
practice in violation of Section 8(a)(3) of the Act, under
plain Board law. Stritzinger was fired because, although
he was a union steward, he did nothing when the nine
men decided not to work, because he stood by, as silent
as the others, and failed to take positive action of some
kind.
The same thing happened in a very recent case (Preci-
sion Castings Corporation, Division of Aurora Corporation,
a wholly owned Subsidiary of Allied Products Corporation,
233 NLRB 183 (1977)),2 where five men, all union shop
stewards, participated in a strike and did nothing to stop
it. In finding that their employer illegally discriminated
against them contrary to Section 8(a)(3) of the Act when
it fired them for such inaction, the Board said:
The fact that the disciplined employees partici-
pated in an unauthorized strike in breach of a valid
contract provision does not legitimize Respondent's
action in this situation. Respondent's freedom to dis-
cipline anyone remained unfettered so long as the
criteria employed were not union related. In the
case before us, however, Respondent admits that
the reason for selecting these five employees for dis-
cipline was that each held the position of shop ste-
ward and, therefore under the terms of the contract,
could assertedly be held to a greater degree of ac-
countability for participating in the strike. However,
discrimination directed against an employee on the
basis of his or her holding union office is contrary
to plain meaning of Section 8(a)(3) and would frus-
trate the policies of the Act if allowed to stand.
Stritzinger was discharged on February 19, 1979.
There is also uncontradicted testimony by an employee
who was present that at an arbitration hearing 9 months
later, in November, where all these dismissals and sus-
pensions were considered, that company representatives
defended Stritzinger's dismissal as having been based
upon the fact "he was a union steward and he felt that
he should have taken the action at that time." Moreover,
a prehearing affidavit given by Foreman Karle makes no
mention of Stritzinger having taken any positive action
to generate the concerted activity of the nine employees.
But at the hearing in this proceeding, in February
1980, the Respondent came up with a completely new
and different reason for the discharge-an assertion at
such variance from its contemporaneous record as to
reveal a pure afterthought. Now it says Stritzinger was
the instigator of the nine-man concerted action, a
"leader" who egged the others on to refuse a work order
in the very presence of the manager who was asking
each man individually to do him a favor. By counsel for
the Respondent on the record: "The disciplinary action
which was taken with respect to Mr. Stritzinger was
more severe than was the discipline given to people who
had no prior record of disciplinary actions, which he had
none, on the basis of the leadership role which he exert-
ed . . . .
Gone is the whole idea that inaction by a steward
damns him. As to whether or not Stritzinger did any-
thing other than stand by idly, doing nothing more than
anyone else, the oral testimony conflicts, pitting employ-
ees against management witnesses. Were there no reason
other than this reversal of position by the Respondent-
2 See also American Beef Packer. Inc., 196 NLRB 875 (1972). and
.4rmour Dial. Inc. 245 NLRB 959 (1979).
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now attempting to give the lie to its own records-I
would discredit its witnesses today.
B. The Testimony
In February 1979, Stritzinger was a union steward for
maintenance crew D, on the 7 to 3 p.m. shift. He
switched crews with another man on crew A, the 3 to I
p.m. shift, for work on February 18, for personal, permit-
ted reasons. It was very cold that day, close to Lake
Erie, and a very large jackladder machine had frozen
over, with inches upon inches (24?) of ice on every
ladder, completely immoblizing it. It had to be defrosted
and the managers conceived the notion of piling refuse
woodchips beneath it and on top of it, and setting fire to
the whole machine. The jackladder, made of metal,
would not be damaged but all the ice would melt off.
Foreman Karle, over the maintenance crew, testified that
the men of the utility crew, under Foreman Fera whose
work this was, had been unavailable to do it.
We look first at the testimony of the General Coun-
sel's witnesses as to what happened then. Hughes, a
member of crew A, said that at or about 7 p.m. Farle
told him to get Stritzinger so that the two of them could
put wood under the jackladder, but that Hughes refused
to do so. Hughes made clear that Stritzinger was not
there when Farle first gave the order. Szczesny, also a
member of crew A and its designated union steward, tes-
tified that Farle talked to him about the job and how he
wanted the mechanical crew to place the combustible
material under the jackladder, add gas and diesel fuel,
and set fire to the whole thing. Szczesny said his answer
was others, not the mechanical crew, should do it, that it
was not the work of crew D and that he then telephoned
the president of the Local Union, reported the whole
story, and was told the men should put all the firewood
in and about the ladder but have nothing to do with set-
ting fire or maintaining a fire on it. Stritzinger heard this
telephone conversation with the union president and the
men then together told the foreman they would do no
more than place the combustible materials in the proper
place. Now Farle told them the material had already
been put in place by others and that Stritzinger and an-
other should just bring the gas and diesel oil close to the
ladder. They did that, and then the foreman told the
whole crew to wait until General Foreman Lafferty ar-
rived.
The prosecution testimony continues with what hap-
pened when the general foreman came at on or about 9
p.m. Lafferty gathered all nine men in a circle in front of
him. He repeated that what had to be done was to set
the fire and keep it burning by adding fuel until all the
ice had melted. When he asked what was the problem,
Steward Szczesny, spoke up and said the Local president
had told the men they should not do that, but to limit
themselves to putting on the burnable materials. All
three of the employee witnesses who were present-
Stritzinger, Hughes, and Szczesny-then consistently tes-
tified that Lafferty's first asked them to volunteer, that
each refused, that he then ordered each of them as indi-
viduals to do it, and again that each man refused. Two of
them, Hughes and Szczesny, also said that when Hughes
asked Lafferty how about Hughes' widow if he should
be killed by the fire, Lafferty said, "That's your prob-
lem." Their testimony closes that Lafferty then told
them all to go home and that they were suspended. The
discharge and suspension notices were issued the next
day.
Stritzinger denied having told any other employee
what to do whether to obey the work order or not. He
admitted he discussed the question as part of the group,
that he was of the opinion that setting and maintaining
such a fire was not anything they were hired to do: "I
figured I'd just ride along with whatever they decided
on." Most important of all, he directly denied telling any
employee in the presence of Manager Lafferty that this
was not their work and they should refuse to do it. Strit-
zinger's testimony is completely corroborated by that of
Hughes and Szczesny.
Three supervisors testified for the Respondent. Fore-
man Karle, over the maintenance crew, said that when
Lafferty talked to the nine men standing in a semicircle
in front of him, he admitted the work he was asking him
to do was not their work. Karle continued that when
Lafferty said this, Stritzinger "stepped in front of every-
body and said that's not our job." (Why would Strit-
zinger tell the men it was not their work right after the
manager himself had directly conceded that fact?) Before
closing his testimony Karle said he could not remember
whether Stritzinger made that statement before or after
the men together had refused the work order.
Foreman Fera, over the utility crew, also testified to
say Stritzinger had been outspoken in front of Lafferty
to say it was not the work of the maintenance crew.
Fera was not as direct as Karle in his testimony. He said
someone else also spoke to say this was not the work of
these men and then added Stritzinger had made the state-
ments "on the third time around." By this, I suppose, the
witness was saying after all the employees individually
had twice refused the work order.
Lafferty, who, as already stated, told the nine men
when he arrived that he was asking them to do what was
not their work, has Stritzinger stepping forward not
once, but four times, each time to again tell the men this
was not their work and they should not do it. From Laf-
ferty's testimony: ". . . it immediately began with Tom
Stritzinger saying that it was not our job, we're not
going to perform the task .... " Lafferty continued that
after listening to the objection of the employees and dis-
cussing it with them, "Mr. Stritzinger reiterated it was
not their job and we're not going to perform this work."
The witness then quoted Stritzinger as stepping forth a
third time:" "And so then it was decided that I would
appoint individuals to go, I started with Mr. Stritzinger
on my left, Mr. Stritzinger once again stated it was not
his job, they were not going to do it." Again, speaking
of his final request of the men, Lafferty added that
"Stritzinger stepped one step forward and said it is not
your job fellows, I've checked it out and you don't have
to do this, what he's instructing you to do."
To add to the credibility of these three witnesses, the
Respondent then called Robert Gittere, the manager of
its industrial relations department. In a single, blanket
conclusionary statement this man said the reports he re-
1240
HAMMERMILL PAPER COMPANY
ceived from management agents at the time of the events
"were consistent with" what the three supervisors had
said at the hearing before he took the stand. The person-
nel officer's final statement, in response to his counsel's
question as to why Stritzinger had been discharged, was,
the seventh employee we determined to discharge
[Stritzinger] on the basis that he took steps affirmatively
to insure that the employees did not work .... "
Gittere stands as a completely discredited witness. If a
personnel director is told, as he said he was told, that a
union agent personally formented a strike (in violation of
a collective-bargaining agreement), and that that was the
reason why the man should be dismissed, the one fact he
would certainly put down in the discharge notice it was
his duty to write and which he did write is the fact the
employee committed that offense. Gittere wrote exactly
the opposite 12 months before he appeared as a witness.
There is no need for further discussion. I credit the
three employee witnesses, of course, and I find Strit-
zinger did not provoke, or in any way cause or encour-
age the other eight men to strike. I find that the discrimi-
natory treatment given him, outright discharge instead of
suspension like all the others, was a violation of Section
8(a)(3) of the Act, as alleged in the complaint.'
IV. THE REMEDY
The Respondent must be ordered to cease and desist
from discriminating against any employee who has en-
gaged in concerted strike action solely because of his po-
sition as union steward. Before the hearing in this pro-
ceeding an arbitrator, following a hearing, ordered the
reinstatement of all seven of the employees who had
been discharged, including Stritzinger. It appears that he
has been put back on the job already. But the arbitrator's
ruling was that Stritzinger was entitled to no backpay. I
agree with the General Counsel's argument that this case
should not be dismissed in deference to that arbitrator's
decision, because the failure to compensate Stritzinger
for the discrimination against him in a monetary sense, is
contrary to Board law.
V. THE EFFECT OF THE UNFAIR ABOR PRACTICE
UPON COMMERCE
That activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
a substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Upon the foregoing findings of fact and conclusions
of law, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 4
The Respondent, Hammermill Paper Company, Erie,
Pennsylvania, its officers, agents, successors, and assigns.
shall:
1. Cease and desist from:
(a) Discharging employees who have participated in a
strike solely because those employees are union stewards.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Thomas Stritzinger whole for any loss of pay
he may have suffered by reason of the Respondent's dis-
crimination against him with interest. s
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, an(: all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Erie, Pennsylvania, plant, copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being signed by its representatives, shall
be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by it to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
' In the event no exceptions are filed, as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions. and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waised for all purposes.
s See, generally. Isis Plumbing A Heating Co., 138 NLRB 716 (1962)
In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States of Appeals Enforcing an Order of
the National L.abor Relations Board."
APPENDIX
CONCLUSIONS OF LAW
I. By discharging Thomas Stritzinger for participation
in an unprotected work stoppage solely because of his
position as union steward, the Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
I In his brief counsel for the Respondent relies upon Gould v
.N'L.R.B., 486 FSupp 164 (1980), reversing 237 NLRB 881 (1978) Under
the scheme of the Statute hearing examiners are bound by oard law'
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wllt. NOT discharge employees who partici-
pate in a strike solely because those employees are
also union stewards.
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DECISIONS ()F NATIONAI IABOR REI.A'TIO)NS H()ARI)
Wl Wll I NOI in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by
Section 7 of the Act.
WE W.ll. make whole Thomas Stritzinger for
any loss of earnings he may have suffered because
of the discrimination against him, plus interest.
HAMMiRMIII PAPER COMPANY
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