Metropolitan Edison Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1030 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metropolitan Edison Company and International
Brotherhood of Electrical Workers, Local
Union No. 563, AFL-CIO. Case 4-CA-9144
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 11, 1978, Administrative Law
Judge Michael O. Miller issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering 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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge' and to adopt his recommended Order, as
modified herein.2
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,
Metropolitan Edison Company, Reading, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
I. Substitute the following as paragraph 2(b):
"(b) Revoke the records of discriminatory disci-
plinary action given to Gene R. Light and David
C. Lang, dated September 9, 1977, and remove
same from their personnel files."
We agree totally with the Administrative Law Judge's well-reasoned
analysis, and we continue to adhere to the sound principles of Precision
Castings Company. 233 NLRB 35 (1977). It suffices to say that ur dis-
senting colleague by allowing Respondenit to discriminate against union
officers who fil to perform their duties according to Respondent's sta1-
dards, would create an anomaly which would have the effect of discour-
aging employees from being active i their union. Thus our colleague's
position is at odds with the intent and meaning f Sec 8(a)(3) of tihe Act.
a We agree with the Administrative Law Judge that RespoIndent dis-
criminated against Union Stewards Gene Light and David Lang by disci-
plining themn more severely than rank-and-file employees for breaching
the no-strike clause in the contract Accordingly, we shall order RespoIl-
detIt to revoke its discipline of lIight and I.aug and records thereof only
to the extent that it was discriminatory that is, exceeded the disciplille
meted out to the other employees.
Member Jellkins approves the remedy, but i addition he would nlake
the unlawfully disciplined uliou officials hole fr the clntire extent of
the discipline impsed. not for just the amonult hy which their loss ex-
ceeded that iof rank-anld-file cmploy ee,
2. Substitute the attached notice for that of the
Administrative Law Judge.
Member Penello, dissenting:
Unlike my colleagues, I would reverse the Ad-
ministrative Law Judge and dismiss the complaint
in this case. I would find that Respondent did not
violate Section 8(a)(3) and (1) of the Act by disci-
plining Union Officials Lang and Light more se-
verely than other employees who participated in an
unprotected sympathy strike, since they had a duty
as union officers to enfocre the contractual no-
strike provision.
The facts in this case may be stated briefly. In
1977, Respondent and the Union were parties to a
collective-bargaining agreement containing a no-
strike clause. Employees Lang and Light were
president and vice president, respectively, of the
Union. Respondent's employees represented by the
Union had engaged in numerous strikes in violation
of the no-strike clause under the current and previ-
ous contracts, for which they had been disciplined.
After an unlawful sympathy strike on August 4,
1977, Respondent informed Lang and Light several
times that it was their duty as union officers to set
an example for the members by crossing such a
picket line in the future.
On August 30, 1977, another union set up a
picket line at Respondent's facility because of a dis-
pute with a contractor, and Respondent's employ-
ees represented by the Union refused to cross the
picket line. Lang and Light did not cross the picket
line, but rather spent the morning attempting to get
the other union to remove the pickets so that their
members would go back to work. On several occa-
sions that morning, Respondent's officials requested
Lang and Light to set an example for the employ-
ees by crossing the picket line and returning to
work rather than continuing their efforts to remove
the picket; however, both Lang and Light refused
to do so. As a result of Lang's discussions with Re-
spondent and the other union, Respondent estab-
lished a reserved gate for employees of the con-
tractor, the pickets were removed, and Respon-
dent's employees returned to work.
Thereafter, Respondent gave all rank-and-file
employees who refused to cross the picket line
either 5- or 10-day suspensions, depending on
whether they had previously participated in an un-
lawful work stoppage; however, Lang and Light
each received 25-day suspensions for their failure
to make every effort, including returning to work
themselves, to uphold the contract and end the un-
lawful strike. The parties have stipulated that the
work stoppage on August 30, 1977, violated the
no-strike clause of the contract.
252 NLRB No. 147
1030
METROPOLITAN EDISON COMPANY
Once again I must reiterate my disagreement
with the majority's conclusion that it is a violation
of the Act for an employer to discipline a union of-
ficial more severely than other employees for par-
ticipating in a strike which violates a contractual
no-strike provision. As I emphasized in my dissent-
ing opinion in Gould3 and in my concurring opin-
ion in Midwest Precision Castings,4 my view is that
a union official who acquires a battery of "benefits
and protections" because of his position with the
union must also be held accountable to fulfill cer-
tain "duties and responsibilities" inherent in that
position of authority and that foremost among
those "duties and responsibilities" is the enforce-
ment of a no-strike clause in a collective-bargaining
agreement. Thus, I concluded that an employer
could lawfully hold a union official to a higher
standard of conduct than other employees because
of the official's responsibilities under the contract. 5
I would continue to find that where a union official
participates in an unprotected strike he can logical-
ly be viewed as the "natural leader" of the strike
and that therefore an employer can lawfully disci-
pline a union official more harshly than other em-
ployees for such participation, since the official has
failed to fulfill his duty to enforce the contract.
In this case, it is undisputed that Lang and Light
refused to cross the picket line and report to work,
despite numerous requests by Respondent that they
do so. I would conclude that by this conduct they
joined and participated in the strike.6 Since the
work stoppage here admittedly violated the no-
strike clause of the contract, I would find that
Lang and Light breached their duty to enforce the
contract by participating in such an unlawful strike.
However, a further question arises because, al-
though Lang and Light clearly participated in the
strike, they also made good-faith efforts to remove
the picket line which was the cause of the work
stoppage. While these efforts might appear to fulfill
their responsibility to take affirmative action to
bring the unlawful strike to an end, their efforts to
remove the picket line were inconsistent with their
refusal to abide by the contract themselves and
cross the picket line to go to work. Thus, their ac-
tions clearly suggested to the employees that as
long as the pickets remained employees had the
right to refuse to cross the picket line, especially
since they made no attempt to remind employees
that the strike violated the contract or to urge
I Gould Corporation, 237 N.RB 881 (1978), enforcement denied 612
F.2d 728 (3d Cir 1979)
Midwest Precision Castings Compaony, 244 NLRB 597 (1979)
s See also Indiana & Michigan Electric Company v N.LR.B., 599 F2d
227 (7th Cir 1979), denying enforcement of 237 NLRB 226 (1978)
( Super alu Xenia. .4 Division of Super [Valu Store. Inc , 228 NI RB
1254, 1259 (1977).
other employees to cross the picket line and re-
turned to work. I would find that, in light of this
inconsistency, their actions effectively demonstrat-
ed tacit approval of the employees' refusal to cross
the picket line and undermined the Union's con-
tractual no-strike commitment.
Furthermore, I note that in cases like this union
officials typically have two different duties under
the contract. The first is a negative duty, which is
usually explicitly stated in the contract but is im-
plicit in any no-strike clause, that the union will re-
frain from breaching its no-strike agreement. Mere
participation by a union official in a strike in viola-
tion of a no-strike clause would breach this nega-
tive duty. The second duty is an affirmative duty
that the union, through its officials, will take affir-
mative action to bring any strike in violation of the
no-strike clause to an end. This affirmative duty
may be explicitly stated in the contract, as it was in
Gould, or may merely be implicit in the no-strike
provisions of the contract, as is the case here. As
this case illustrates, it is possible for a union official
to comply with one duty without necessarily ful-
fulling his obligations under the other duty. Logi-
cally, the negative duty should take precedence.
Thus, I would find that, regardless of what other
actions are taken by a union official, he has respon-
sibility to refrain from participating in a strike in
violation of the no-strike clause. Of course, even if
a union official does not participate in the unlawful
strike, he may still fail to fulfill his responsibilities if
he does not take steps to end the strike, in cases
where the contract imposes such a duty either ex-
plicitly or implicitly. However, I would find that,
at the very least, any no-strike agreement imposes
upon union officials a negative duty to refrain from
participating in an unlawful strike.
Inasmuch as Lang and Light participated in a
strike in violation of the no-strike clause of the
contract and thus clearly failed to comply with
their responsibility as union officers to enforce the
contract, I would find that Respondent acted law-
fully in disciplining them more severely than other
employees who participated in the illegal strike.
Accordingly, I dissent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT give more severe discipline to
employees who are union officers than we
give to other employees because the former
employees hold union office.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist International
Brotherhood of Electrical Workers, Local
Union No. 563, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activity.
WE WILL make Gene R. Light and David
C. Lang whole for any loss of pay they suf-
fered by reason of our discrimination against
them, with interest.
WE WILL revoke the records of discrimina-
tory disciplinary action given to Gene R.
Light and David C. Lang, dated September 9,
1977, and WE WILL remove same from their
personnel files.
METROPOLITAN EDISON COMPANY
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge:
Upon a charge filed on January 9, 1978, by the Interna-
tional Brotherhood of Electrical Workers, Local Union
No. 563, AFL-CIO (herein the Union), a complaint was
issued by the Regional Director for Region 4 of the Na-
tional Labor Relations Board on February 27, 1978, and
a hearing was held before me in Harrisburg, Pennsylva-
nia, on July 17, 1978.
At issue was whether Metropolitan Edison Company
(herein Respondent) violated Section 8(a)(l) and (3) of
the National Labor Relations Act (herein the Act) when
it disciplined Union Officers David C. Lang and Gene R.
Light more severely than rank-and-file union members
for their participation in an unlawful work stoppage.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs, which have
been carefully considered, were filed by the General
Counsel and Respondent.
Upon the entire record, including my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-CONCLUSIONS OF LAW
Respondent is a Pennsylvania corporation engaged in
the generation, distribution, and sale of electric power,
serving the southeast portion of the Commonwealth of
Pennsylvania. Jurisdiction is not in issue. The complaint
alleges, Respondent admits, and I find and conclude that
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. General Background-Collective-Bargaining
History
Respondent has approximately 2,600 employees, ap-
proximately 1,600 of whom are represented by five locals
of the International Brotherhood of Electrical Workers,
AFL-CIO. The five local unions bargain with Respon-
dent as a single unit and all of these employees are cov-
ered by a single collective-bargaining agreement.
The parties' collective-bargaining agreement in effect
at the time of the events herein contained the following
no-strike clause:
Article XI
No-Strikes-No Lockouts
11.1 The Brotherhood and its members agree that
during the term of this agreement there shall be no
strikes or walkouts by the Brotherhood or its mem-
bers, and the Company agrees that there shall be no
lockouts of the Brotherhood or its members, it
being the desire of both parties to provide uninter-
rupted and continuous service to the public.
The locus of events involved herein is the Three-Mile
Island nuclear generating plant (herein referred to as
T.M.I.), located on an island in the Susquehanna River
just south of Harrisburg, Pennsylvania. The plant is a
two-unit nuclear generating station with one unit cur-
rently operating and a second under construction. Work-
ing on the Island are approximately 516 of Respondent's
employees, 300 of whom are members of the Union, cov-
ered by the collective-bargaining agreement. There are
other persons working on T.M.I. as employees of con-
tractors who are engaged in the construction of the
second generating plant and in maintenance work. The
contractors' employees are represented by various unions
in the building trades.
Access to the Island is achieved by two bridges. The
north gate, or bridge, is a permanent entrance which is
used primarily by Respondent's employees and employ-
ees of contractors performing maintenance work on the
generating units. The south gate is a temporary bridge
1032
METROPOI.ITAN EDISON COMPANY
used principally by contractors engaged in the construc-
tion work and their employees. The incident involved
herein occurred at the north gate.
B. The August 30, 1977. Work Stoppage and
Resultant Discipline
On the morning of August 30, 1977,' members of the
Operating Engineers union set up a picket line at the
north gate of T.M.I. protesting the refusal of a contrac-
tor to hire members of their union. Members of the
Union, including its president, David C. Lang, and its
vice president, Gene R. Light, refused to cross the picket
line and did not report for work until the picket line was
removed at or around Il a.m., following the establish-
ment of a reserved gate. It was stipulated that the refusal
of the members of the Union to cross this picket line and
report to work was a violation of the no-strike clause, set
forth above.
In response to this violation of the no-strike clause,
Respondent disciplined the employees involved. One
hundred and thirty-five rank-and-file unit members re-
ceived 5-day and 10-day suspensions. These employees
also received written records of their disciplinary action
which stated that the discipline was assigned for "failure
to report for work as scheduled and participation in an
unlawful work stoppage." Under remarks, the notice of
discipline further stated: ". . . Any future similar action
by you may result in severe disciplinary action, including
diacharge."
Union President Lang and Union Vice President Light
each received 25-day suspensions. Their records of disci-
plinary action set forth the same reason for the discipline
as those given to the other 135 employees but went on to
state:
In addition, you are being disciplined for your fail-
ure as an elected official of Local Union 563 IBEW
to demonstrate to the Company, in an objective
manner, your affirmative duty as an elected officer
to:
(a) Make every effort to uphold the sanctity of
the Agreement and its established grievance proce-
dures.
(b) Make every bona fide effort to prevent the
unlawful work stoppage.
(c) Make every effort, including returning to
work yourself, to end the unlawful work stoppage.
Your participation in any unlawful work stoppage in
the future will result in your immediate discharge.
Additionally, both Lang and Light were told by
Henry L. Robidoux, Respondent's vice president of op-
erations, that they were receiving this discipline because
Respondent felt that as union officials they had an obli-
gation to cross the picket line and set an example for the
other employees to follow.
There is no dispute as to whether Lang and Light re-
fused to cross the picket line. They did. Both of them
spent the morning of August 30, 1977, seeking to secure
I All dates hereinafter are 1977, unless olherwise specified
removal of the picket line so that their members, who
had earlier indicated an unwillingness to cross any picket
line would go to work. Thus, Lang had come to T.M.I.
early on the morning of August 30, pursuant to a phone
call from Gary Hahn, Respondent's personnel adminis-
trator, in which Hahn advised him that there was a
picket line which the IBEW members were refusing to
cross and requested him to see what could be done. In
the course of their conversations that morning, Hahn re-
iterated to Lang a position taken by the Company a
number of times previously that the union officers had a
particular obligation to cross the picket line so that other
employees would follow. When Lang arrived at the gate
he spoke to the Operating Engineers picket captain,
learned the reason for the picket line, and was told that
the line would not be removed unless removal was or-
dered by his business agent. Lang called the business
agent. Subsequently, Lang went to the union hall several
miles away in Middletown, Pennsylvania, opened it up
for the other employees, and directed Gene Light to go
to the Operating Engineers to see whether he could ne-
gotiate with them to get them off the bridge. When he
returned to the picket line, Lang was again told, by both
Thomas Hambach, Respondent's division of personnel,
director and by Walter Poyck, its coordinator of ser-
vices, that he had a particular obligation as a union offi-
cial to cross the picket line. Lang told Hambach that it
was the consensus of the members that they were not
going to cross until the picket line came down and he
told Poyck that he felt it was better if he stayed out be-
cause then he could at least negotiate with the pickets.
Gene Light had substantially similar conversations with
both Poyck and Hambach.
In the course of discussing what it would take to have
that picket line removed, the Operating Engineers ste-
ward told Lang that they would remove the picket line
if the contractors ceased using the north bridge. Lang re-
lated this to Poyck. Respondent subsequently set up a re-
served gate for the contractors' employees at the south
bridge and the picket line came down.
C. The General Counsel's Theory and Respondent's
Defense
The General Counsel contends that the foregoing facts
bring this case squarely within the principles enunciated
by the Board in Precision Castings Company Division of
Aurora Corporation, a wholly owned subsidiary of Allied
Products Corporation, 233 NLRB 200 (1977). In that case,
union stewards who participated in a walkout in viola-
tion of their no-strike clause, who did nothing to prevent
the strike or stop it once it began, and who joined the
picket line established as part of that walkout were sus-
pended. Respondent admitted that the suspensions were
assigned to these individuals because of their status as
shop stewards and because they supposedly failed to
abide by their contractual responsibility as union officials
to take reasonable steps to terminate the work stoppage.
The contract in Precision Castings specifically required
the Union, in the event of any work stoppage, to notify
employees that they were in violation of the agreement
and to take all reasonable steps to restore normal oper-
1033
DECISIONS OF NATIONAL l.AHOR RELATIONS 13OARI)
ations. The Board held that the selection of employees
for discipline on the basis of their positions as union offi-
cers was "discrimination directed against an employee on
the basis of his or her holding union office . . . contrary
to the plain meeting of Section 8(a)(3)" and "would frus-
trate the policies of the Act if allowed to stand." It re-
jected the employer's assertion therein that under the
terms of the collective-bargaining agreement the union
officers could be held to a higher degree of accountabil-
ity for participating in the strike.
Respondent herein contends, at least impliedly, that
Precision Castings was wrongly decided and further
would factually distinguish this case from the case before
the Board in Precision Castings.
Respondent contends that Lang and Light were given
the greater discipline not because they held union office
but rather:
. . .it was awarded because of things they did or
did not do; statements they made or did not make;
and, the misuse of the union office they held.
Respondent points out that, while violations of the no-
strike agreement were not frequent at its plants, the
August 30 incident was not the first. On prior occasions
in 1970, 1972, 1973, and 1974, members of various IBEW
locals engaged in work stoppages in violation of the con-
tract. In each of those incidents the participating employ-
ees were disciplined and the union officers or stewards
involved were given greater discipline for failure to
make bona fide efforts to get the employees back to
work. Indeed, in the 1973 work stoppage, which oc-
curred at T.M.I., Lang and Light, as union officers, re-
ceived the greater discipline. In 1972 and 1974, when the
Union took to arbitration the question of the greater dis-
cipline assigned to the union officers, the Company's dis-
cipline was upheld. 2 In both arbitration decisions, the ar-
bitrators held that union officials had an affirmative duty,
by virtue of their office, to honor and protect the collec-
tive-bargaining agreement, and that failure to exercise
that responsibility subjected them to more severe penal-
ties. Respondent also pointed out that both Lang and
Light had been told repeatedly, both prior to the August
30 incident and while it was occurring, that Respondent
expected them to set an example for the other employees
by crossing the picket line and that it would discipline
them if they failed to do so. Further, Respondent argued,
by attempting to secure the removal of the picket line as
a means of getting the employees back to work, rather
than leading the employees across the picket line or or-
dering those employees to cross, Lang and Light
"became the active leaders of the strike." This, Respon-
dent stated, was a factor considered significant in deter-
mining the degree of their discipline.
Respondent also adduced evidence that a work stop-
page similar to that of August 30 had taken place on
August 4. At that time, various participating employees,
2 The 1973 discipline assigned Lang and Light. which was in language
identical to that used in the August 30 incident, was not taken to arbitra-
lion by the Union.
' Respondent acknowledges at several points in its brief that Lang and
Light were in fact working to secure the removal of the picket line on
August 30, as a means of getting the employees back to ork
not including Lang and Light, were disciplined. Lang
and Light were both told, quite emphatically, that the
Employer considered it their obligation to cross a picket
line and set a proper example for their members. At a
union meeting following this work stoppage, Lang told
his membership of their legal obligations. The member-
ship vociferously rejected his urgings that they cross
such picket lines.
Finally, Respondent points to an incident involving
David Lang which it contends provides separate justifi-
cation for the greater discipline accorded him. Early on
the morning of August 30, after Lang had been sum-
moned to the line by Hahn, an employee drove up, ob-
served the pickets, and asked what he should do. Ac-
cording to Hahn, Hahn said "come to work," but Lang
told the employee, "go to the union hall." According to
Lang, when the employee (identified by Lang as Tom
Lynch) asked what he should do, Lang told him "you
know what you are supposed to do." The employee
never left his vehicle but drove off in the direction of the
union hall. Lang saw Lynch later at the union hall.
D. Analysis and Conclusions
Contrary to the assertions of the Respondent, I find
the instant case to be indistinguishable in any meaningful
way from the relevant portions of Precision Castings,
supra. In Precision Castings, the union violated its no-
strike clause by striking in support of its own dispute
with its employer. Here the employees honored the
picket line of another union which had a dispute with a
second employer working on the site. This distinction
would, if anything, make Precision Castings a stronger
case for Respondent's position. See Keller-Crescent Com-
pany, a Division of Mosler, 217 NLRB 685 (1975). Similar-
ly making Precision Castings a stronger case for the Re-
spondent's position was the fact that in Precision Castings
the contract specifically required the union to take affir-
mative steps to end strikes in violation of the no-strike
clause. No such provision existed in the contract be-
tween Respondent and the Union.
Respondent also argued that its history, since at least
1972, of disciplining union officers, including Lang and
Light, more severely for their involvement in unlawful
strike situations, the upholding of such discipline in two
arbitrations, and the fact that Lang and Light ignored re-
peated admonitions to personally cross the picket line
distinguished this case from Precision Castings. I must
reject these alleged distinctions as irrevelant. Respondent
drew a distinction between those who had previously
participated in unlawful work stoppages and those who
had not when it disciplined the employees with different
periods of suspension. However, in the cases of Lang
and Light, it went further than it did with the rank-and-
file employees and it did so, expressly, because of the al-
leged breach of their duties as union officers. Moreover,
I find it to be totally immaterial that Lang and Light
were told more than once what Respondent expected of
them; their obligation to comply with the no-strike
clause was formed when the contract was signed. It
1034
METROPOLITAN EDISON COMPANY
became no greater with repetition.4 Additionally, I note,
the notices of disciplinary action given to Lang and
Light made no mention of their earlier participation in
such work stoppages or of the repeated orders given
them.
In this same vein, Respondent argued that the arbitra-
tion awards sustaining its greater discipline to union offi-
cers, and delineating a higher degree of obligation upon
them, having "survived repeated renewals and modifica-
tions" of the collective-bargaining agreements, became
"part of 'bargain' under which the Company and the
Union conduct their day-to-day affairs .... " Suffice it
to point out that those arbitration awards predated Preci-
sion Castings and, if the Board were to consider such
awards today in the context of a Spielberg analysis5 , it
would likely find those awards repugnant to the pur-
poses and policies of the Act. See Dreis & Krump Manu-
facturing Inc., 221 NLRB 309 (1975), enfd. 544 F.2d 320
(7th Cir. 1976). Further, to the extent that Respondent
may be arguing that the execution of contracts subse-
quent to those arbitration awards without some modifica-
tion thereof acted as a waiver of the employees' statu-
tory rights to be free from discrimination based upon
their union membership or union offices, its argument
must be rejected. Even assuming that this statutory right
could be waived, "the Board and the courts have repeat-
edly emphasized that a waiver will not be lightly in-
ferred and must be shown by 'clear and unmistakable
language."' Keller-Crescent Company, a Division of Mosler,
217 NLRB 685 (1975); Gary-Hobart Water Corporation v.
N.L.R.B., 511 F.2d 284 (7th Cir. 1975), enfd 210 NLRB
742 (1974). No such "clear and unmistakable" waiver
language is present in the agreement of these parties.
Indeed, their contract specifically sets out what customs
and practices exist in their relationship and makes no ref-
erence to such a waiver of statutory rights.
Respondent stated both in the disciplinary records and
on brief that Lang and Light were disciplined for their
failure as union officers to uphold the contract, to make
efforts to prevent the work stoppage, and to secure the
employees' return to work. Respondent contended that
this was different than disciplining Lang and Light be-
cause they held union office, which, it argued, was the
vice prohibited in Precision Castings. This was discipline
rather for their failure to properly function as union offi-
cers. Respondent contended that as union officers they
had failed in their obligation to make reasonable, good
faith, or bona fide efforts to fulfill their contractual obli-
gations. This is precisely the argument which the em-
ployer made in Precision Castings. Therein, the respon-
dent admitted that the employees were disciplined "be-
cause they supposedly failed to abide by their contrac-
tual responsibility as union officials, to take reasonable
steps to terminate the work stoppage." The Board reject-
ed respondent's argument and found that the discrimina-
tion was directed against the employees on the basis of
their holding union office and was therefore violative of
4 It may be stating the obvious to point out that there was no question
but that Lang and Light were obligated to honor the contract and its no-
strike clause. There is no coniention that their discipline to the extent
that it was the same as given other employees, was unlawful.
I Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
Section 8(a)(3) and (1) of the Act. Moreover, by deter-
mining for itself that the efforts6 of Lane and Light in
seeking to end the work stoppage were not "bona fide,"
"reasonable," or "in good faith," Respondent usurped a
judicial function, determined for itself that there had
been a breach of the collective-bargaining agreement,
and exacted its remedy for that alleged breach. It took
its remedy not from the Union as an organization, as it
would have been required to do had a court awarded
monetary damages, but rather by punishing individuals
who happened to hold union office. Further, Respon-
dent's action intruded on the internal affairs of the Union
when it arrogated the right to discipline for "misuse of
union office." The possibility that an employee might
suffer a penalty exacted out of his or her job tenure for
what an employer perceives to be a "misuse of union
office" would act as a powerful deterrent to an employ-
ee's willingness to assume a leadership role in a union.
Further, there is, in the assignment of greater disci-
pline to union officers for the alleged breach of a collec-
tive-bargaining agreement, a basic inequality which is in-
consistent with both the union's right to act as collec-
tive-bargaining representative and the employees' right
to participate in that representation. Unlike an employer
who has the power to punish employees, a union has no
power to punish management representatives. The union
can only seek to remedy what it believes to be breaches
of the agreement through recourse to the grievance-arbi-
tration machinery. 7 If the collective-bargaining process is
to work, union representatives and officers must be
deemed the equals of their management counterparts and
must be as free from management imposed discipline for
conduct engaged in in their official union capacities as
the management representatives are from union discipline
for conduct engaged in in their managerial capacities. As
the Board has stated (in the context of grievance pro-
cessing), the master-servant relationship does not carry
over to dealings between the employer and the employee
when the employees are acting as union representatives.
At such times, there are only company representatives
on the one side and union representatives on the other.
See Crown Central Petroleum Corporation, 177 NLRB
322, 323, fn. 4 (1969). See also Hawaiian Hauling Service,
Ltd., 219 NLRB 765 (1975). The situation here, I find, is
essentially identical to those cases involving employer at-
tempts to discipline employees for insubordinate state-
ments made to management representatives while those
employees are engaged in collective-bargaining of the
presentation of grievances. As the Board stated long ago
in the Bettcher Manufacturing Corporation, 76 NLRB 526,
527 (1948):
If an employer were free to discharge an individual
employee because he resented a statement made by
that employee during a bargaining conference,
e Respondent acknowledged that both Lang and Light directed their
efforts on August 30 to the removal of the picket line so that their mem-
bers would report to work
It is worth noting that the parties, contract herein, at art X, pro-
vided a procedure, equivalent to the grievance procedure and culminat-
ing in arbitration, for the adjustment of "company complaints." Respon-
dent wuas not without a contractually established avenue of recourse.
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either one of two undesirable results would follow:
collective bargaining would cease to be between
equals (an employee having no parallel method of
retaliation), or employees would hesitate ever to
participate personally in negotiations . . . .
If employers are free to discipline union officers for what
they perceive to be breaches of the collective-bargaining
agreement or "misuse of union office" by the individual
acting in the capacity of a union officer, the same unde-
sirable results would follow: "collective-bargaining
would cease to be between equals (an employee having
no parallel method of retaliation), or employees would
hesitate ever . . ." to assume union office.
Also rejected is Respondent's assertion that Lang and
Light became active leaders in the Operating Engineers'
strike when they sought removal of the picket line and
did not cross it. There is no evidence to support this as-
sertion. Neither Lang nor Light made common cause
with the pickets. They did not foment the strike or their
members' honoring of the picket lines, they did not join
the Operating Engineers on the picket line, and they did
not seek to remedy the dispute with the primary employ-
er. Cf J. P. Wetherby Construction Corp., 182 NLRB 690
(1970), wherein a steward was deemed lawfully dis-
charged for having fomented a strike in violation of a
no-strike clause and for his leadership role in that work
stoppage.
The question remains as to whether David Lang's
statement to employee Tom Lynch, either telling Lynch
to go to the union hall or telling him he knew what he
was supposed to do s8 warranted a higher degree of disci-
pline for David Lang. I do not find that it does. Lang's
statement to Lynch was not an affirmative act to foment
or call the strike. Cf. J. P. Wetherby Construction Corp,
supra. Rather, it was a realistic reaction to a situation
wherein all of the union members were refusing to cross
the picket line, as they had previously indicated they
would do, contrary to Lang's urgings and advice.
Accordingly, I find that Respondent's discipline of
Gene Light and David Lang, to the extent that it ex-
ceeded the discipline given to rank-and-file employees
who refused to cross the picket line on August 30, 1977,
constituted discrimination based upon their holding of
union office and violated Section 8(a)(3) and (1) of the
Act.
FURTHER CONCLUSIONS OF LAW
I. By giving more severe discipline to Gene R. Light
and David C. Lang than was given to other employees
who participated in the August 30, 1977, violation of the
contractual no-strike provision, because said Gene R.
Light and David C. Lang were officers in the Interna-
tional Brotherhood of Electrical Workers Local Union
No. 563, AFL-CIO, Respondent has violated Section
8(a)(3) and () of the Act.
2. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8 In either case. Lang failed to tell the employee to go to work and
either stated or implied that he was not to do so. Therefore I do not con-
sider it necessary to resolve this minor credibility conflict
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and
(I) of the Act, it will be recommended that Respondent
be required to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act.
It having been found that Respondent discriminatorily
assigned greater discipline to Gene R. Light and David
C. Lang by suspending them for longer periods of time
than other employees who participated in the work stop-
page of August 30, 1977, Respondent shall be required to
make them whole for any loss of pay they suffered by
reason of this discrimination. Any backpay found to be
due shall be computed, with interest, in the manner pre-
scribed in F W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). 9
Upon the basis of the entire record, the findings of
fact, the conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER'
The Respondent, Metropolitan Edison Company,
Reading, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discriminating against its employees by giving
more severe discipline to union officers than to other em-
ployees because of their positions as union officers.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
the International Brotherhood of Electrical Workers,
Local Union No. 563, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted ac-
tivities for the purposes of collective-bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make Gene R. Light and David C. Lang whole for
any loss of earnings they may have suffered by reason of
the discrimination against them, in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Revoke the records of disciplinary action given to
Gene R. Light and David C. Lang, dated September 9,
1977, and remove same from their personnel files.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other docu-
9 See, generally. Isis Plumbing Hearing Co., 138 NLRB 716 (1962).
'° 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 waived for all purposes.
1036
METROPOLITAN EDISON COMPANY
ments necessary and relevant to analyze and compute the
amount of backpay due under this Order.
(d) Post at its Three-Mile Island facility copies of the
attached notice marked, "Appendix."
t ' Copies of said
notice on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent's autho-
In the event the Board's 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 Pur-
suant to a Judgmenl of the United States Court of Appeals Enforcing
Order of the National Labor Relations Board"
rized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it 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 cov-
ered by any other material.
(e) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1037