Virginia Electric and Power Company

National Labor Relations Board - Board Decisions

Jul 21, 1982

262 N.L.R.B. 1119 (N.L.R.B. 1982)

VIRGINIA ELECTRIC AND POWER COMPANY
Virginia Electric and Power Company and Ronald J.
Zera. Case 5-CA-10466
July 21, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On January 18, 1982, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief. Respondent also
filed limited cross-exceptions and a brief in support
thereof.
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 2 of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I We hereby correct the Administrative Law Judge's inadvertent error
in stating that Respondent's maintenance workers were due into work by
8 a m. rather than 7 a m.
s In adopting the Administrative Law Judge's Decision, we note that
no party excepted to his refusal to defer to arbitration.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge:
This case heard in Cumberland, Maryland, December
17-18, 1980, and May 12-15 and 19-22, 1981. The
charges were filed by Ronald J. Zera, an individual,' on
January 18, 1979, and the complaint was issued on May
30, 1980. The primary issue is whether the Company, the
Respondent, violated Section 8(a)(1) of the National
Labor Relations Act by terminating 25 employees be-
cause they engaged in protected concerted activity by
participating in a grievance meeting on August 7, 1978,2
for the purpose of discussing problems concerning work-
ing conditions with representatives of the Respondent.
I Zeta also participated in the case as lead counsel for the Charging
Party.
2 All dates are in 1978 unless otherwise indicated.
262 NLRB No. 144
Upon the entire record,3 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Virginia corporation with its princi-
pal office in Richmond, Virginia, is engaged as an elec-
tric utility in generating and distributing electric power
within a three-state area. During the 12 months, the Re-
spondent realized gross revenues in excess of $1 million.
The Company admits, and I find, that it is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The International Brotherhood of Electrical Workers,
AFL-CIO-CLC (IBEW), Systems Council U- , and
Local 2308 are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Virginia Electric and Power Company (VEPCO) gen-
erates electricity for 1 million customers in the States of
Virginia, West Virginia, and North Carolina. In the pro-
duction of this electricity, VEPCO operates 10-12
widely separated power stations which are connected to
one another by transmission lines. The only facility of
the Company involved in the case, the Mount Storm,
West Virginia, plant, produces 17 percent of the electric-
ity generated by VEPCO for its residential, commercial,
and industrial customers. It operates on a 7-day week,
24-hour-a-day basis.
VEPCO and the IBEW commenced their contractual
relationship in the early 1940's when the first collective-
bargaining agreement was entered into. In 1964. at the
expiration of the then current contract, the parties had
their first and only systemwide strike.4 The Mount
Storm plant began operations in 1964, and its employees
were then part of the IBEW local union based in Char-
lottesville, Virginia. In 1971, a new local, Local 2308,
was chartered by the IBEW exclusively for the Mount
Storm employees. Local 2308 elects its own officers,
who are full-time employees of the Company. It is one of
nine locals which represent the employees of VEPCO at
its various plants, and the nine locals are part of Systems
Council U-I. This intermediate body employs a full-time
business manager, who works out of Richmond.
In August 1978, the Mount Storm plant employed ap-
proximately 190 production and maintenance employees
represented by Local 2308, all of whom were covered
3 The General Counsel's unopposed motion to correct the transcript,
dated July 30, 1981, is granted and received in evidence as G C Exh 20.
4 This was VEPCO's only experience with an economic strike and up
to August 7, 1978, it had never experienced a wildcat strike at any of its
stations.
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a collective-bargaining agreement that had an expira-
tion date of March 31, 1979.5 The contract, Joint Exh. 1,
contained in article V, captioned "Strikes and Lock-
outs," two sections pertinent to this case:
Section 1. The Brotherhood, the Local Unions,
and its members individually and collectively agree
that they will not call, encourage, or engage in any
strike, slowdown or other interruption of work
during the period of this Agreement or any exten-
sion or renewal hereof. The Company on its part
agrees that there shall be no lockout during the
period of this Agreement or any extension or re-
newal hereof, it being the desire of both parties
hereto to provide an uninterrupted and continuous
service to the public.
Section 4. Each employee agrees that he will not
engage in a strike, slowdown or other interruption
of work during the period of this Agreement or any
renewal hereof and any violation of this Section
will be ground for discipline or discharge and such
discipline or discharge will not be reviewable under
the grievance procedure except on the question
whether such violation occurred.
As noted above, VEPCO had only experienced one
economic strike. However, on August 7 it experienced
its first wildcat strike when the Mount Storm employees
who were represented by Local 2308 admittedly went on
a wildcat strike. 6 Both the General Counsel and Re-
spondent stipulated that the 25 dischargees who, along
with approximately 160 other employees, participated
and engaged to some degree in the strike and work stop-
page at the Mount Storm station did so in violation of
article V, sections I and 4, of the collective-bargaining
agreement, and further stipulated that the strike was not
authorized, sanctioned, or approved by the IBEW, Sys-
tems Council U-l, or Local 2308.
B. Credibility
With but few exceptions, the material facts in this case
are not in dispute. One of the factors contributing to this
situation is that, prior to the instant hearing, various wit-
nesses had testified in from one to five hearings before
other legal forums concerning various facets of the
strike. These were a hearing before the United States
District Court for the Northern District of West Virginia
(the district court) in September; two West Virginia un-
employment compensation hearings, one at Moorefield
I The station had a total work force of approximately 225 employees
but the employees represented by the IBEW are the only employees ma-
terial to this case.
F "Robert's Dictionary of Industrial Relations" 582 (rev. ed. Washing-
ton, D.C.: The Bureau of National Affairs, Inc. 1971) describes a wildcat
strike as follows:
Wildcat Strike-A work stoppage, generally spontaneous in charac-
ter, by a group of union employees without union authorization or
approval. Frequently it is called a group of employees because of
some minor problem such as the disciplining of a union member...
A wildcat strike generally is in violation of applicable agreement.
on January 4, 1979, and one at Keyser on March 27,
1979; and two arbitration hearings under the auspices of
the Federal Mediation and Concilation Service, Case
MS-76 on March 2 and April 3 and 4, 1979, and Case
MS-78 on August 29, 30, and 31, 1979, and April 22,
1980. In addition, the bargaining unit employees had
given sworn statements in "interviews" conducted by the
Employer, which will be discussed below in section
III,C,4.
There are several major factual situations at issue, and
these will be resolved at the time the corresponding testi-
mony is presented herein. One of these issues involves
the Mount Storm Employees Association. In approxi-
mately 1971-72, the production and maintenance em-
ployees (the unit of employees involved herein) at the
Mount Storm plant formed an informal group to get
OSHA to investigate the dust situation at the plant, with-
out the Union being involved. It had no officers, dues, or
bank account, and ceased to function in the early 1970's.
C. Sequence of Events
1. August 4, 1978
On Friday afternoon, following an extensive investiga-
tion, VEPCO notified two employees, Gary Ebert and
Harold Riggleman, that they were being discharged ef-
fective that day for filing false claims for meal money.
Employee Lysle Bobo, vice president of Local 2308, was
told of their discharge and, prior to the end of the day
shift at 3:30 p.m., he filed a grievance with the Compa-
ny, as step 1 of the contractual grievance procedure, pro-
testing the discharge of the two employees. 7
After Bobo left the plant at the end of his day shift, in
driving toward his home at or about 4 p.m., he came
upon an abandoned restaurant. Here he saw "a lot of em-
ployees," which he estimated to be 50 to 75, all from the
Mount Storm station. Bobo joined the group and the em-
ployees discussed the discharges of Ebert and Riggle-
man, as well as other discharges during the past year,
claims of excessive overtime, unsafe working conditions,
and harassment by supervisors. Bobo informed the em-
ployees that the Union had filed a grievance concerning
the two discharged employees, and processed it in step
A. He also told them that a strike would be illegal and
could not be sanctioned by the Union. At the men's re-
quest Bobo agreed that over the weekend he would con-
tact Wilbur Grizzard, the business manager of System
Council U-l, and Lucien Bledsoe, the International rep-
resentative, both located in Richmond, to see what could
be done. It was further agreed that they would meet
again at the same abandoned restaurant on the following
Art. VI, the grievance and arbitration provision of the contract, pro-
vides, in pertinent part, as follows:
Section 1. Grievances: Should any dispute or difference arise be-
tween the Company and the Brotherhood or any employee or em-
ployees as to the interpretation or application or violation of any of
the express provisions of this Agreement, or as to any alleged unjust
supervisory conduct which causes an employee to be disciplined or
lose his job, such grievance shall be handled in accordance with the
grievance and arbitration procedures.
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VIRGINIA ELECTRIC AND POWER COMPANY
Monday at or about 5:45 a.m. s That evening Bobo noti-
fied Gene Ours, the president of Local 2308, that the em-
ployees had had a meeting and were talking about a
wildcat strike.
2. August 5
On Saturday, Theodore Rosiak, the plant superintend-
ent and highest company official at Mount Storm, re-
ceived word from a supervisor that the employees were
talking about going on strike. Rosiak then called Ours
and discussed the situation with him. Ours stated that the
Union did not sanction a strike, and that he understood
employees could lose their jobs if they struck. Rosiak
then reported this situation to VEPCO officials in Rich-
mond. That evening, Rosiak was told by a foreman that
the men were going on strike on Monday morning. Upon
hearing this, Rosiak scheduled all supervisors, and the
technicians and engineers represented by the Utility Em-
ployees Association, into the plant at 6 a.m. on Monday.
3. August 7
At or about 5:45 a.m. on Monday, approximately 30
employees met at the abandoned restaurant. Ours was
present this time, as well as Bobo, and as Ours admitted
there was talk of a strike. The union president advised
the men of the consequences of such a strike, and after a
short period of time left the meeting, proceeding to the
plant.
Employees from the abandoned restaurant, as well as
others, started gathering at the plant's spillway area9
shortly before 6 a.m. At or about 6 a.m. Rosiak drove to
the spillway area to open the coalyard gate.10 Here he
saw Ours and Bobo, as well as 50 to 60 employees who
were spread across the spillway. Rosiak asked Ours what
was going on, and Ours advised him that they were
trying to take a vote. After remaining at the spillway for
5 to 10 minutes, Rosiak returned to his office. Ours ad-
mitted that he told the men that they could be fired if
they went on strike, and that the Union would have
nothing to do with a strike.
Rosiak visited the spillway area again at or about 6:30
a.m., where he again talked with Ours, and the union
president advised Rosiak that the men had not yet decid-
ed what to do. Rosiak then informed Ours that 7 o'clock
was starting time, and for the employees to decide what
they were going to do about work by then. Upon the
union president's telling Rosiak that he was trying to get
them to go to work, Rosiak left for the plant.
I Most of the production employees on the day shift were due at work
by 7 a.m., with maintenance workers due at 8 a.m. Day-shift employees
who relieved midnight-shift employees did so at 6:30 am.
9 The spillway area (spillway) was about 80 feet wide, consisting of the
dam and the plant road entrance located just off the Respondent's prop-
erty, and was adjacent to State Highway 93. The single road leading into
the plant from Highway 93 became two roads about 200 feet from the
highway, where one branch became the coalyard road and the other
became the main plant entrance road. The main plant was approximately
one quarter of a mile from the spillway.
io Rosiak had arrived at the plant about 4:50 a.m.. which was much
earlier than his normal starting time. Opening the gate was not a part of
his normal duties. The plant received an average of 120 truckloads of
coal a day, and the same trucks took the fly ash out on leaving.
Rosiak returned to the spillway for a third time at or
about 6:45 a.m. for the longest and most active visit of
that morning. This time the plant superintendent had
conversations with other employees in addition to the
union president and vice president. Rosiak saw Ours
going through the crowd of, he estimated, 150 men, and,
when he asked him what was going on, Ours told him
that he guessed the men were not going to come into
work. A crowd of men gathered around Rosiak, and
they told him that the discharges of Ebert and Riggle-
man were too tough a penalty. They also brought up
other complaints, which included an employee who had
previously been suspended, safety matters in the coa-
lyard, overtime, and harassment by supervisors.
The men then told Rosiak that they wanted Ebert and
Riggleman reinstated, as well as the suspended employee,
with backpay. Rosiak advised them that he could not re-
instate these men, but that grievances had already been
filed on their behalf by the Union, and he was willing to
proceed with the grievances. At this point Rosiak moved
away from the group, and saw many people raising their
hands as if they were voting. Following this vote, the
men spread out again across the spillway. Seeing this,
Rosiak testified that he told the men that this was no
way to settle the dispute: "I told them that if they'd go
in to work, I'd sit down with the Union representatives
and hear the grievances and that I wasn't going to have
a meeting out there on the picket line, they had to go
into work. " " When the employees expressed concern
about only union representatives being present, Rosiak
then suggested there be a representative from each de-
partment, and, when an employee suggested two instead
of one, he readily agreed.
Bobo completely corroborated this testimony of
Rosiak, as did Ours. Bobo testified, "He wanted all of us
to come into work and he said he would sit down and
talk to the Union officials or so many men from each de-
partment or a combination of both."'2
Shortly after 7 a.m. an employee' a asked Rosiak what
would happen if the employees went into the station and
had the meeting. Rosiak told them that if they went to
work then and there, "I would forget this ever hap-
pened." The employees did not accept Rosiak's offer of
amnesty. The majority wanted to meet with Rosiak, but
were not willing to meet in the plant. No mention was
made at this time to meet on neutral grounds.
After the employees spread across the spillway again,
Ours said to Rosiak, "I guess we're on strike." Rosiak
then told Ours and the other employees that he did not
have any more to say to them, and that they may have
lost their jobs. Just before leaving the spillway he ad-
" Rosiak first saw pickets carrying picket signs several hours later.
The signs were made of cardboard, roughly hand lettered, and read. "On
Strike, Unfair Labor Practice, Unsafe Working Conditions."
12 The General Counsel in his brief contends that Rosiak took an in-
consistent position in the instant case as to who suggested a meeting with
the employees. I do not find any inconsistency Rosiak unquestionably
wanted the employees to come into work, and as he testified in the un-
employment compensation case cited by the General Counsel, there was
a "mutual suggestion" that there be a meeting. But the bottom line was
that Rosiak would not meet with representatives out on the picket line.
but only in the plant after the employees came back to work
' Identified by Gerald Sanders as Danny Cooper
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vised the union president, "If you want me, I'll be in my
office willing to talk." This occurred at approximately
7:15 a.m., about 15 minutes into the day shift.
Shortly before 8 a.m. David Callis, the mechanical su-
pervisor, received a request from two of his employees
who had continued to work after their shift had ended.
Pursuant to this request Callis drove to the plant en-
trance where he told Ours that these two employees
wanted him to come into the plant and talk with them.
Ours advised Callis that he could not go into the plant,
and that the two employees would have to make up their
own minds. Callis then returned to the station. 14
Between 9 and 10 a.m. the employees began to form a
committee to represent each department. As aptly de-
scribed by employee Hubert Murphy, the committee was
formed in a "hit or miss" manner in an atmosphere of
confusion.
Some employees volunteered, and some testified that
they agreed to be on the committee after being told by
unremembered persons to do so. s Robert Harvey testi-
fied that he was asked by Mike Snyder to be on the
committee. Terry Biser testified that he had gone on the
committee at Alonzo Carr's request, but shortly thereaf-
ter asked to have his name removed. Biser then put
Norman Kight's name on the list. Roger Elliot wrote
down the names of those who were to serve on the com-
mittee, and admitted that he volunteered to be the
spokesman.
At approximately 10 a.m. a group of 30 or 40 employ-
ees, which included most of the committee members, met
at the Bismark garage, which is located about 1 mile
from the station. Harold Shoemaker, the Union's record-
ing secretary and a shop steward, was asked by the em-
ployees to write down their complaints.' 6 The meeting
lasted about a half hour and these employees returned to
the spillway between 10:30 and 11 a.m.
Shortly after 10 a.m., pursuant to telephone instruc-
tions from his Richmond superior, J. W. Braswell,
Rosiak, accompanied by Callis, drove to the spillway to
locate Ours. His purpose was to request that the union
officers come into work as a show of good faith. Upon
learning that the union officials had left the picket line to
go to the Bismark store, the plant superintendent and his
assistant proceeded to Bismark. When Rosiak arrived he
found Bobo in the store, 1 and was told that Ours was at
home. Rosiak promptly called the union president and
told him that he wanted him and the other union officials
t" Employee Norman Kight testified that Rosiak came with Callis to
the spillway between 8:30 and 8:45 where he told the employees that he
would like to have a meeting with two or three men from each depart-
ment. Employee Hubert Murphy testified that he saw Rosiak come to the
spillway at or about 7:30 a.m. and ask for a couple of representatives
from each department. Both men testified very hesitantly with no convic-
tion, and I do not credit their testimony as to such a visit. Callis was a
straightforward and impressive witness, and I credit his testimony that he
came alone at approximately 8 a.m. to relay the request of the two work-
ing employees. Ours also corroborated this testimony of Callis.
" Donald D. Feaster, Ronald Funk, Larry S. Raimes, and Gerald L.
Sanders.
6a Shoemaker testified that he was there as an employee, and ascribed
his being so selected to his handwriting ability. He took no further action
to aid the committee.
17 The employees had first gone to the store, but, because of their
numbers, transferred their meeting to the larger nearby garage.
to come into work as a show of good faith and good
will. Ours replied that he could not as he was waiting for
some telegrams, but that he would call Bobo at the store
in a few minutes. While waiting for Ours' call, Bobo ad-
vised Rosiak that there was a list of employees "that
were leading this," and that Roger Elliot had the list. At
or about 10:30 a.m. Ours talked to Bobo on the tele-
phone and informed him that Rosiak wanted the union
officials to go into the plant as a sign of good faith. Ours
then instructed the vice president to go to the spillway
and see what the feelings of the employees were as to
the union officials going into the plant.
Bobo proceeded to the spillway, stood on the back of
his pickup truck, and told the 75 to 100 employees about
Rosiak's request that the union officials go into the plant.
The employees declared that they did not want the
union officials to go into the plant, and told him strongly
that if Rosiak wanted to talk to them "we will talk to
him on neutral grounds in a neutral place." Bobo ad-
mitted that he had not suggested to the employees that
they meet with Rosiak on neutral grounds.
Bobo drove back to the Bismark store, called the
union president, and informed him that the employees
did not want the union officials to go into the plant, but
that they were willing to meet with Rosiak on neutral
grounds. At or about 11:30 a.m. Ours called Rosiak at
the station, and told him that the employees had rejected
his request that the union officials go into the plant, but
that they had a committee of about 22 employees who
wanted to meet with him, and that they would have one
of them call Rosiak. The plant superintendent agreed to
this.
At approximately 12:30 p.m. Rosiak received an anon-
ymous phone call from, he believed, Alonzo Carr. Ac-
cording to Rosiak, the caller stated that he was a
member of the Mount Storm Employees Association,
and that they wanted to meet with Rosiak on neutral
grounds.' 8 Rosiak was told to come to the front gate to
be contacted. The plant superintendent then called his
supervisor in Richmond, and received instructions to
meet with the strikers, but not to bargain or promise
anything.
At or about 1 p.m. Rosiak and Callis went to the spill-
way. Rosiak stated that he understood that a "group of
employees"' 9 wanted to meet with him. Alonzo Carr re-
plied affirmatively and presented a list of about 26 names
which Rosiak had Callis copy. Following the copying of
the list Rosiak asked Carr if he could keep the list, but
Roger Elliot replied that the plant superintendent could
not have it, and it was returned to Carr. There followed
'5 This testimony was unrebutted. Carr did not testify and I credit Ro-
siak's testimony. However, I do not find that this phone call establishes
that the group of employees was in fact calling itself the Mount Storm
Employees Association at that time. The weight of the testimony is that
the committee commenced calling itself the Mount Storm Employees As-
sociation on August 9, after a Show Cause Order was served on pickets
at the spillway. The attorney, then hired by the strikers, required a re-
tainer fee, with payments to be made by each striker. A bank account
was opened for the deposit of these contributions, and the long-unused
name of Mount Storm Employees Association was resurrected and used
by the strikers for this purpose.
ia Rosiak did not testify that he called this group the Mount Storm
Employees Association.
1122
VIRGINIA ELECTRIC AND POWER COMPANY
a brief discussion on where to meet, with the employees
again insisting that the meeting be held on neutral
grounds. Rosiak suggested the nearby Mount Storm
State Park pavillion, and this was agreed to by the com-
mittee.
Rosiak and Callis arrived at the park at or about 1:15
p.m., with the employees arriving at or about 1:20 p.m.
Rosiak was advised that this committee represented all of
the striking employees. Frank Litton proceeded to read a
mixed list of approximately 29 demands, grievances,
gripes, and miscellaneous matters2 0 which Rosiak wrote
down as Litton read them off. (G.C. Exh. 10.) Rosiak
then stated that this was a very large list, and it could
not be handled overnight. He then asked which ones
were paramount and had to be satisfied prior to the em-
ployees' agreeing to return to work. The employees re-
sponded that their main demands were the reinstatement
of four discharged employees, Riggleman, Ebert, Gary
Bean, and R. Earle,2 ' the revocation of the suspension of
S. Goldizer, and a meeting with upper-level management
officials from Richmond. 22 Rosiak then concluded the
20-minute meeting by stating that he would be back in
touch with them.23
Rosiak and Callis returned to the station, and the com-
mittee members returned to the spillway, where they in-
formed the rest of the men of the details of the meeting.
In the late afternoon, VEPCO sent each employee a tele-
gram instructing him to return to work on his next
scheduled shift. No response was made. On the same day
an International vice president of the IBEW sent tele-
grams to Ours, Bledsome, and Grizzard instructing them
to have the men cease any unauthorized work stoppage,
and to process any disputes in accordance with their
labor agreement.
4. August 8, 9, and 10
On the following day, August 8, no employees having
returned to work, VEPCO filed for and received a tem-
porary restraining order in the district court, civil action
No. 78-0136, which was served that evening on several
pickets in the spillway area.24 VEPCO also sent each
employee a second telegram, notifying each that he was
suspended indefinitely pending investigation. During the
course of the day, the picketers placed logs across plant
entrances.
Despite the temporary restraining order, on August 9,
the employees continued to picket the plant's entrances.
VEPCO then secured a Show Cause Order from the dis-
trict court, which was served upon the employees in the
picket-spillway area with a return for the following day.
On Thursday, August 10, at a hearing before the district
2O A fair breakdown of these 29 items show there were 4 demands, 6
grievances, 16 general gripes, 3 specific gripes. I statement, and I request
for a meeting.
I The record does not disclose when Bean and Earle were dis-
charged, for what reasons, or if grievances were processed.
22 The committee specifically did not want the business manager of
Systems Council U-I to be present.
2s As the record discloses Rosiak never did get back in touch with the
committee.
24 Danny M Cooper. William B. Dunham, Roger M. Elliot, Philip C.
Fire, Joseph E. C. Kight. Sr., Leo R. Klosterman, Robert C. Martin,
Roger R. Simmons, and Ralph L. Vance 11.
court judge, it was agreed that the picket line would be
removed immediately, and that all employees who had
not reported to work would remain suspended until
VEPCO concluded individual interviews with each em-
ployee. At these interviews the employee would be
given the opportunity to present his individual com-
plaints and grievances, and also his involvement in the
wildcat strike.-
5. The post-strike events
From August 16 to October 10, interviews were con-
ducted by two teams of VEPCO interviewers. These
teams consisted of various management representatives,
headed by E. Y. Price, the director of employee and
labor relations, Wayne Atwood, the director of security,
and J. W. Braswell, the director of production and main-
tenance operations. The interviews were conducted in
the manner of depositions, and transcripts were made by
court reporters. Each employee was allowed to have his
personal attorney present, as well as his union repre-
sentative.
During the course of the interviews the interrogators
found common activities that were participated in by
many of the strikers. A page, "interview checklist," was
then developed to serve as a summary of an employee's
activities in the strike. The top of the form called for fill-
ing in blanks on matters pertaining to the picket line, and
the bottom half called for subjective comments. (G.C.
Exh. 13.)
As the interviewers proceeded to interrogate the em-
ployees, they looked for what the company termed
"leadership activities" in organizing and carrying out the
strike. Some of the strikers' activities that were regarded
as showing a leadership role were: serving on observa-
tion patrols, stopping vehicles at the various entrances to
the plant, stopping trains attempting to come into the
plant, seeking support from coal miners who worked for
the nearby Laurel Run mine, placing logs across the
plant's entrances, and serving on the strike committee.
On the interview checklists for the employees involved
in the instant case, General Counsel's Exhibits 12(A)
through (Y), there is set forth in the "Other Comments"
section, with one exception, that such employee was a
representative or member of, or on, the Mount Storm
Employees Association committee that met with Rosiak
on August 7. Such a notation did not appear on the
checklist of Roger M. Elliot, but there was the comment
that he "volunteered to be a member of Mt. Storm Em-
ployees Association and actually wrote down names of
members." 2 5
On October 11, Price and the other two interview
leaders made their report and recommendation to higher-
level management in Richmond. This report broke the
188 employees into four categories, which it explained as
follows:
Category A is those employees that were sick, on
vacation, etc., at the time of the strike. Category B
25 Rosiak testified that, while Elliot did not attend the meeting at the
park, he was considered to be on the committee since his name was on
the list given to the plant superintendent.
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is those employees that attempted to come to work,
but did not cross the picket line and went back
home, or simply stayed away. They did not actually
participate other than not reporting to work. Cate-
gory C is those employees that actively took part in
the picket area, but did not assume a leadership
role. Category D is those employees that assumed a
leadership role no matter how minor.
The report concluded by recommending that the 14
employees in category A and 17 employees in category
B be returned to work, with the employees in category
B regarded as on disciplinary suspension from August 7
to the date they returned to work. It was further recom-
mended that the 116 employees in category C and 41
employees in category D be terminated.
For the next several weeks top-level management
became involved in the decisionmaking process.
VEPCO's president made the final decision, deciding not
to discharge the 157 employees, but to discharge the ap-
proximately 40 employees remaining in category D. It
was also decided that 29 out of the 40 approximately 116
employees in category C would receive an additional 3-
week suspension. The Company's decision as to the final
disposition of the 188 employees was set forth in its final
report filed with the district court on October 26. (G.C.
Exh. 14.) From November 7 to 11, the decisions on the
reinstatement and discharges were effectuated.
On January 9, 1979, pursuant to a further order of the
district court, VEPCO filed a more particularized state-
ment as to the reasons for the discharge of the 40 em-
ployees. All 24 of the statements relating to the discharg-
ees herein stated that the employee was discharged for
engaging in an unauthorized work stoppage, and, in addi-
tion, set forth that he "actively represented the strikers."
Price admitted that this term referred to membership on
the strike committee that existed during the course of the
wildcat strike. The record does show that the committee
members agreed to serve on the picket line during the
day-shift hours in case Rosiak wanted to talk to them. A
log was kept at the plant entrance in a notebook by the
strikers that recorded the coming and going of various
persons and vehicles.
D. Deferral to Arbitration
From the first day of the hearing to the filing of its
brief, the Respondent has strenuously argued that the
Board should defer to the board of arbitrators' decisions
rendered in cases MS-76 and MS-78 under the doctrine
contained in Spielberg Manufacturing Company, 112
NLRB 1080 (1955), and its progeny. The record dis-
closes that in April and August 1979 arbitration hearings
took place pursuant to the appropriate provisions of the
collective-bargaining agreement of the parties. In both
cases the arbitrators found for the Respondent, uphold-
ing the discharges.
In Spielberg, the Board held that it would defer to a
private arbitration award disposing of a controversy
before the Board if "the proceedings appear to have been
fair and regular, all parties had agreed to be bound, and
the decision of the [arbitrator] is not clearly repugnant to
the purposes and policies of the Act." Pioneer Finishing
Corporation, 247 NLRB 1299, 1306 (1980). A further
showing must be made that the arbitrator considered and
resolved the underlying unfair labor practice issue. Sub-
urban Motor Freight, Inc., 247 NLRB 146 (1980).
The Respondent in its brief relies heavily on Atlantic
Steel Company, 245 NLRB 814 (1979). However, I do
not find that the instant case meets the test contained
therein. Atlantic Steel requires that the respondent must
show that the unfair labor practice was either impliedly
or expressly considered. There is nothing in either of the
two decisions in cases MS-76 and MS-78 to indicate that
the arbitrators considered the overriding issue in the in-
stant case; i.e., were the 26 employees who met with
Rosiak at 1:20 p.m. on August 7 at the Mount Storm
Park pavillion engaged in protected concerted activities
within the meaning of Section 7 of the Act.
In case MS-76, the first of the two aribitration cases,
the hearing was on the preliminary issue of whether the
employees had engaged in activities in violation of the
collective-bargaining agreement. The arbitrators found
that the employees had engaged in a work stoppage in
violation of the contract. In the second case, case MS-
78, the arbitrators found their authority under the collec-
tive-bargaining agreement to be very limited and stated,
"The Board cannot go beyond the question of whether
the grievants had participated in a strike." The arbitra-
tors, after reviewing the evidence, found that the griev-
ants had engaged in a strike, and had been discharged for
just cause. While it is true that the arbitrators comment-
ed that some employees served on a committee, they in
no way, expressly or by implication, related this to, or
connected it with, protected activity or an unfair labor
practice. Moreover, the arbitrators nowhere conveyed an
awareness of the statutory principles bearing on the Sec-
tion 7 issues in this case. Under these circumstances de-
ferral to the arbitration awards is not appropriate. B & L
Motor Freight, Inc., 253 NLRB 115 (1980); General Ware-
house Corp., 247 NLRB 1073 (1980), enfd. 643 F.2d 965
(3d Cir. 1981).
E. Analysis and Conclusions
The first question to be resolved is whether the 26 em-
ployees who met with Rosiak at 1:20 p.m. on August 7
at the Mount Storm Park pavillion were engaged in pro-
tected concerted activities. It is self-evident that they
were engaged in concerted activities, so the issue reduces
itself to whether these concerted activities were also pro-
tected activities. I am constrained to conclude that they
were unprotected. There was a collective-bargaining
agreement between the Company and the Union which
clearly covered these employees. That longstanding
agreement contained a no-strike clause and a grievance-
arbitration procedure, and the Union had in fact filed a
grievance with the Company protesting the discharge of
the employees, whose discharge had so aroused the ire
of its members. The General Counsel concedes, as he
must, that these employees were engaged in a wildcat
strike26 contrary to the provisions of the bargaining
26 The Charging Party did not concede that the employees engaged in
a wildcat strike, but offered no evidence to rebut this finding
1124
VIRGINIA ELECTRIC AND POWER COMPANY
agreement under which they worked, and that the Com-
pany had a right to discharge all 174 employees who
participated in the illegal work stoppage. However, the
General Counsel argues that the Respondent may not
discharge the employees who attended the Mount Storm
Park meeting because, when they did so, they "were en-
gaged in protected concerted activity during the course
of the unprotected wildcat strike."
One of the premises relied on by the General Counsel
in reaching this conclusion is that it was Rosiak who
asked for the meeting with this committee, and that in
fact the meeting at Mount Storm Park "was sanctioned
and approved, if not in part set up, by the Union." I do
not find that this meeting was sanctioned or approved by
Rosiak, but was merely tolerated, much like the captain
of a ship who would agree to meet with his crew who
had mutinied and surrounded his ship. The plant superin-
tendent did propose just prior to 7 a.m. that, if the em-
ployees would come into the plant to work, he would sit
down with their union representatives and discuss griev-
ances. It is true that Rosiak, at the employees' request,
altered this proposal by saying he would also meet with
two representatives from each department, but this did
not alter Rosiak's proposal that the meeting was to be in
the plant and that the union officials be present.
Rosiak's only other proposal as to a meeting was made
at or about 10 a.m. when he called Ours at his home and
asked him and the other union officials to come into the
plant as a sign of good faith. The strikers again refused
to permit the union officers to enter the plant, but did
offer a counter to Rosiak's proposal. However, their pro-
posal was far different from Rosiak's proposal that the
union officials come into the plant to show good faith.
The group then used Ours as a conduit to notify Rosiak
that they had a committee that wanted to meet with him.
The Mount Storm Park meeting was set up by this
committee by its telephone call to Rosiak at 12:30 p.m.
and by its summons to Rosiak that he meet a committee
member at the picket line. It was at this I p.m. face-to-
face meeting with Alonzo Carr that Rosiak acquiesced to
the committee's demand and agreed that the meeting be
on neutral ground. Likewise, there is nothing in the
record to show, as asserted by the General Counsel, that
the Respondent was aware that they were under an
honest belief that when they met with Rosiak it was be-
cause they understood that he had requested the meeting.
There was no reasonable evidence that would allow
these employees to believe that Rosiak requested the
meeting at the park. Since shortly before 7 a.m., when
they voted not to go to work, employees had been run-
ning their own show free of any union ties. They had re-
pudiated their president's advice not to strike, they had
refused to allow their union officials to go into the plant,
and they were making all decisions, including that they
would meet with Rosiak on neutral grounds, without any
union officials being present.
The General Counsel concedes that there are no cases
directly on point, but points to one case as closely relat-
ed, Walter S. Johnson Building Co.. Inc., 209 NLRB 428
(1974). 1 do not find that this case supports the General
Counsel's position, as it involved the discharge of a shop
steward who engaged in admittedly protected, as well as
unprotected, concerted activities. In the instant case I do
not find that the discharged employees engaged in any
protected activities, so there is no dual motive for their
discharge and the two cases are inapposite.
The General Counsel also contends in his brief that
VEPCO, when deciding which wildcat strikers to dis-
charge, used as a "controlling-deciding criteria" the fact
that 26 of the discharged employees had met with Rosiak
at 1:20 p.m. on August 7.27 The Respondent in turn con-
tends that it discharged only those employees who exer-
cised a "leadership role" in the strike. I find that the
dominant factor used by the Respondent to determine if
an employee played a leadership role in the strike was
membership on the committee or suspected membership
on the committee. Director of Labor Relations Price ad-
mitted that membership on the committee was a criterion
used to determine strike leadership, and that just being a
member of the committee irrespective of any other con-
duct was a sufficient rcason to place an employee in
leadership category D.
However, I find no violation of the Act in the Re-
spondent's use of this criterion. As stated in Chrysler Cor-
poration, Dodge Truck Plant, 232 NLRB 466, 474 (1977):
"It has been long and well established, by both the
Board and the courts, that an employer may lawfully dis-
charge an employee for engaging in a strike which is for-
bidden by the provisions of a no-strike agreement, be-
cause such activity is not protected by the Act." 2 8 It is
also well established that, when a wildcat strike occurs,
an employer "could 'pick and choose' strikers for dis-
charge except that the choices could not be based on
'union considerations."' American Beef Packers Inc., 196
NLRB 875 (1972); J. P. Wetherby Construction Corp., 182
NLRB 690, 697, fn. 31 (1970).
The General Counsel in his brief at no point alleges
that the Respondent's selection of the employees to be
discharged was based on union considerations, nor could
it be because there is not a scintilla of evidence to sup-
port any such contention. VEPCO was then free to pick
and choose among the 174 strikers, and to select those
who were to be discharged for its own economic rea-
sons. VEPCO was not operating some small neighbor-
hood enterprise whose shutdown would have little effect
on interstate commerce. The Mount Storm facility per-
formed an important part in generating electricity for
customers living in a three-state area, and the IBEW
itself recognized this duty to render continuous service
to the public in its collective-bargaining agreement with
the Company. The Respondent then had the right to
z7 Actually, 2 of the 26 employees discharged. Roger Elliot and
Robert Martin, were not at the meeting, as stipulated in G.C. Exh. 2, stip.
19. However, Roger Elliot had been a known organizer of the commit-
tee, and Robert Martin had been at one time checked off by the Compa-
ny as being on the committee.
2" N.LR.B. v. The Sands Manufacturing Company, 306 U.S 332
(1939), IV.LR.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (!974);
N.LR.B. v. Rockway News Supply Company. Inc.. 345 U.S. 71 (1953);
Russel Packing Company and Peerless Packing Company, 133 NLRB 194
(1961); Alron Box Board Company Container Division, 155 NLRB 1025
(1965); Stop d Shop, Inc., 161 NLRB 75 (1966): Chesty Foods. Division of
Fairmont Foods Company, 215 NLRB 388 (1974). Also see .LR.B. v
Fansteel A.etallurgical Corp., 306 U.S 240 (1939): Bechtrel Corporation, 200
NLRB 503 (1972).
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pick and choose those employees whom it wished to dis-
charge based on any economic reason that it deemed
pertinent. It did finally pick and choose out of the 174
employees who had been scheduled to wbrk 25 employ-
ees whom it considered to be the leaders of the illegal
strike. It could just as well have selected for discharge
only those employees who had attended the meeting at
Mount Storm Park, and this would still not have been a
violation of the Act, as the reason for their discharge
would not have been related to union considerations.
It is also argued by the General Counsel that "the
right to engage in protected concerted activity and not
be penalized for such engagement has a greater right of
protection than the 'no-strike' clause." Since I have
found that the discharged employees were not engaged
in protected activity, this proposition need not be exam-
ined.
The General Counsel also cites several cases in which
he contends that the Board has converted a strike in vio-
lation of a no-strike clause "into being protected concert-
ed activity via the doctrine of condonation." I do not
find that the cases cited stand for such a principle. Con-
donation is a doctrine developed by the Board whereby
an employer is deemed to have rescinded an otherwise
lawful discharge, thereby preserving a worker's "em-
ployee" status. As stated in N.L.R.B. v. The Colonial
Press; Inc.:29
The principle of waiver by condonation used in the
context of labor relations is that, if after an employ-
ee commits acts of misconduct lawfully justifying
his discharge, and thereafter the employer, fully
cognizant of the acts, agrees not to discipline him,
the employer may not thereafter rely on the same
misconduct as the basis for discharging or refusing
to reinstate the employee.
In the instant case VEPCO never agreed not to disci-
pline the people on the committee or those who exer-
cised a leadership role. In the lead case cited by the Gen-
eral Counsel to support this theory, Richardson Paint
Company, 226 NLRB 673 (1976), the employer settled an
illegal walkout dispute with the union, and agreed that
there would be no reprisals. Nothing like the settlement
in Richardson occurred in the instant case, and the doc-
trine of condonation is not applicable.
Finally, I find that the committee was not engaging in
protected concerted activities because to so hold would
undermine one of the deepest foundations of the National
Labor Relations Act. It is a basic objective of the Act to
encourage the negotiation and enforcement of collective-
bargaining agreements between employers and the duly
designated collective-bargaining representatives of their
employees. To enforce these agreements, and to deal re-
sponsibly with the employer, a union must have the sup-
port of its membership. The wildcat strike called by the
29 509 F.2d 850, 854 (8th Cir. 1975), cert. denied 423 U.S. 833 (1975),
enfg. in part 207 NLRB 673 (1973).
employees at the power plant, as well as their self-desig-
nation of a committee to meet with the Employer to bar-
gain with it as the representative of all employees, was
totally destructive of the legal right and obligation of the
Union to exclusively represent these employees. Empori-
um Capwell Co. v. Western Addition Community Organi-
zation, et al., 420 U.S. 50 (1975), affg. 192 NLRB 173
(1971).
The General Counsel in his brief asserts that for the
Board to sanction the Respondent's actions in this case
would be to discourage employees from trying to resolve
wildcat strikes. I see no merit in this as the legitimate
union officials, Ours, Bobo, and Shoemaker, were at all
times present and available to lawfully represent the em-
ployees, but were summarily prevented from doing so by
the wildcat strikers. The wildcatters also spurned the as-
sistance of their Systems Council U- 1 business repre-
sentative, as well as their International representative.
The strikers knew that there was a grievance procedure
in their contract, they knew that the Union had filed a
grievance on August 4 concerning the discharge of the
two employees, and yet, in total defiance of their union
officials' advice, on August 7 they called and enforced a
wildcat strike. As stated in United Steelworkers of Amer-
ica v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581
(1960), "The grievance procedure [has long been recog-
nized as] a part of the continuous collective bargaining
process. It, rather than a strike, is the terminal point of a
disagreement." The members of this committee were still
wildcat strikers when they met with Rosiak at the park
and did not become clothed with immunity by taking
part in a meeting in which they purported to be repre-
senting the employees. To hold that the discharged em-
ployees herein became protected by Section 7 of the Act
because they served on the committee at the park would
not only undermine Local 2308, but other collective-bar-
gaining representatives, and would encourage rebellious
employees to engage in wildcat strikes with all their
attendant evils, thinking they would gain immunity from
discipline by forming a rump committee.
Accordingly, I conclude that the Respondent did not
violate Section 8(a)(1) of the Act when it discharged the
employees set forth in appendix A of the complaint, and
when it constructively discharged Robert P. Harvey. I
shall therefore recommend that the complaint be dis-
missed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor
practices violative of Section 8(a)(1) of the Act, as al-
leged in the complaint.
1126
VIRGINIA ELECTRIC AND POWER COMPANY
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3 0
The complaint is dismissed.
50 In the event no exceptions are filed as pr-, ided by Sec 102.46 of
the Rules and Regulations of the National Lanor 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.
1127