West Penn Power Co.

National Labor Relations Board - Board Decisions

Mar 28, 1985

274 N.L.R.B. 1160 (N.L.R.B. 1985)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
West Penn Power Company and Edward L. Pattock
and Frank R. Zubal . Cases 6-CA- 13010-1 and
6-CA-13010-2
28 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 September 1981 Administrative Law
Judge Leonard M. Wagman issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent, which im-
posed a 5-day suspension on five of the seven em-
ployees participating in an unprotected work stop-
page, violated Section 8(a)(3) and (1) of the Act by
singling out for harsher treatment the other two
employees, namely, Union President Edward L.
Pattock and Union Vice President Frank R. Zubal,
and discharging them because of their status as
union officers.
In so concluding, the judge declined to defer to
the award of an arbitration board because he found
it repugnant to the policies and purposes of the
Act. The award determined that the Respondent
could properly impose harsher punishment on Pat-
tock and Zubal in view of their failure to comply
with the "no strike-no lockout" provision of the
collective-bargaining agreement that requires union
officers to make a "sincere, active effort" to end
any work stoppage. For reasons given below, we
find deferral appropriate and, without reaching the
merits of the alleged unfair labor practices, we
shall dismiss the complaint.
The collective-bargaining agreement contains,
inter alia, the following provisions:
Section XV-INCLEMENT WEATHER
Employees engaged in the construction and
maintenance of lines . . . will not be required
to work outdoors in inclement weather on jobs
which can reasonably be deferred until weath-
er conditions are less severe. . . .
It is the supervisor's responsibility to deter-
mine when weather conditions are too severe
for the work at hand . . .
Section XXX-NO STRIKE-NO LOCKOUT
There shall be no strike or lockout or any
slowdown or refusal to carry out work assign-
ments during the term of this Agreement or
any renewal thereof, nor during any period of
time while the parties are negotiating a change
or renewal of the Agreement. All matters of
dispute arising under this Agreement shall be
settled by conference or by arbitration as
herein provided.
It is further agreed that if any employees
engage in any strike, slowdown, or refusal to
carry out work assignments during the term of
this Agreement, the Union and its officers will
forthwith make a sincere, active effort to have
work resumed at a normal rate, and it is un-
derstood that if the Union and its Officers take
such action there shall be no further liability
upon the Union and its Officers for such inci-
dents. However, should such action on the
part of the Union and its Officers fail to end
such a strike, slowdown, or work refusal, it is
agreed that the Company shall have the un-
qualified right to discipline or discharge em-
ployees participating in or encouraging such
violations; the Union shall, however, have the
right of recourse to the grievance and arbitra-
tion procedures herein provided, to the extent
of establishing fact as to whether or not any
individual employee has participated in or en-
couraged such violations.
On 15 November 1979 the seven employees in-
volved herein discontinued their outdoor work be-
cause of what they regarded as inclement weather.
Despite the repeated order of their foreman, Jerry
Cooper, who disagreed with their assessment of the
weather, the employees, including union officials
Pattock and Zubal, refused to resume work.
In the course of the employees' discussion as to
whether to comply with Cooper's back-to-work
order, Pattock told his fellow employees that, in
the past when employees were ordered to work
under what they deemed to be inclement weather
conditions, they resumed their work and thereafter
filed grievances asking for double time. However,
neither Pattock nor Zubal told their fellow em-
ployees that they had a contractual obligation to
go back to work or urged them to do so. In this
connection, these union officials rejected the re-
quest of another representative of the Respondent
to engage in a private discussion concerning this
matter
On 19 November Cooper notified Pattock and
Zubal of their discharge because of their "refusal
to proceed with a work assignment and to make an
274 NLRB No. 173
WEST PENN POWER CO
active effort as [union officers] to have work re-
sumed by other union employees." Cooper also no-
tified the other employees that they were suspend-
ed for 5 days. On the same day, the employees
filed a grievance protesting the suspensions and dis-
charges
On 26 August 1980, following a hearing, an arbi-
tration board sustained the 5-day suspensions and
Pattock's discharge, but reduced Zubal's discharge
to a 30-day suspension.' In so holding the arbitra-
tion board reasoned as follows:
Under section XXX of the collective-bargaining
agreement, management clearly had authority to
discipline any of the grievants for refusal to work.
The Company's determination to discharge Pattock
and Zubal, rather than to impose suspensions on
them, was due largely to their failure to make
active efforts as union officers to have work re-
sumed. Section XXX contains and imposes on
union officers the responsibility to initiate positive
action to have work resumed in situations such as
that which arose on 15 November 1979. The fail-
ure to carry out this responsibility may warrant the
imposition of discipline where, as here, nothing in
the record suggests that management is thereby at-
tempting to discourage union membership or other-
wise improperly interfere with or discriminate
against union officers in the exercise of their lawful
rights. As Pattock on an earlier occasion failed to
discharge his contractual duties, the penalty of dis-
charge stands However, as Zubal had no previous
record of any refusal to carry out his duties as a
union officer in a refusal-to-work situation and was
a lower ranking union official, the discharge penal-
ty is reduced to a 30-day suspension.
In Olin Corp., 268 NLRB 573 (1984), we recently
adopted the following standard for deferral to arbi-
tration awards in order to effectively carry out the
declared purpose of Spielberg,2 namely, recognition
of the arbitration process as an important aspect of
the national labor policy favoring private resolu-
tion of labor disputes: An arbitrator will be deemed
to have adequately considered an unfair labor prac-
tice allegation if (1) the contractual issue is factual-
ly parallel to the unfair labor practice issue, and (2)
the arbitrator was presented generally with facts
relevant to resolving the unfair labor practice. In
this respect, difference, if any, between the con-
tractual and statutory standards of review will be
weighed by the Board as part of its determination
i The parties in the instant case stipulated that the General Counsel is
not contending that the 5 -day suspensions constituted unfair labor prac-
tices
z Spielberg iYtfq Co, 112 NLRB 1080 (1955) The parties in the instant
unfair labor practice proceeding stipulated that the arbitration proceed-
ings were fair and regular and that the parties agreed to be bound there-
by
1161
under the Spielberg standards of whether an award -
is "clearly repugnant" to the Act. Unless the award
is "palpably wrong," i.e., unless the arbitrator's de-
cision is not susceptible to an interpretation consist-
ent with the Act, the Board will defer.
The evidence herein shows that a full factual
record was made before the arbitration board; the
board considered and rejected the contention that
Pattock and Zubal were unlawfully singled out for
excessive punishment because of their status as
union officers; and the board found that the Re-
spondent was specifically empowered by its collec-
tive-bargaining agreement with the Union to
impose penalties on Pattock and Zubal for failing
to take affirmative action to terminate the unau-
thorized work stoppage. As noted above, the judge
concluded that the decision of the arbitration board
was repugnant to the Act and that therefore defer-
ral was inappropriate. In so doing the judge, rely-
ing, inter alia, on Gould Corp., 237 NLRB 881
(1978), concluded that the failure of union officials
Pattock and Zubal to attempt to end the work
stoppage did not constitute a lawful basis for sin-
gling them out for harsher treatment. Contrary to
the judge, we conclude that the decision of the ar-
bitration board was not clearly repugnant to the
Act. In this regard, the substantive issue involved
in Gould and here was recently considered by the
Supreme Court in Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983), in which the Court
stated that "[a] union and an employer reasonably
could choose to secure the integrity of a no-strike
clause by requiring union officials to take affirma-
tive steps to end unlawful work stoppages,"3 and
that a union may lawfully bargain away the statu-
tory protection accorded union officials in order to
secure gains it considers more valuable to its mem-
bers. A union's "decision to undertake such con-
tractual obligations," the Court added, "promotes
labor peace and clearly falls within the range of
reasonableness accorded bargaining representa-
tives."4 In view of the language of the no-strike
provision involved in the instant case, the arbitra-
tion board had a reasonable basis for finding, as it
did, that management clearly had the authority
under the collective-bargaining agreement to disci-
pline the union officials for their failure to make
active efforts to have work resumed. We find that
the contractual interpretation of the arbitration
board is not clearly repugnant to the letter or the
spirit of the Supreme Court's opinion in Metropoli-
tan Edison which held that a union may waive the
3 Metropolitan Edison Co v NLRB, supra at 707
4 Id
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right of its officials to acquiesce in unprotected
work stoppages.
In view of the foregoing, it is evident that the
statutory and contractual issues are not factually
dissimilar and that the facts generally relevant to
the unfair labor practice issue are not absent from
the record made before the arbitrator. In addition,
the General Counsel has failed to show that the ar-
bitrator 's decision is not susceptible to an interpre-
tation consistent with the Act. Accordingly, we
shall defer to the arbitration award and give it con-
clusive effect. We shall therefore dismiss the com-
plaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE -
LEONARD M WAGMAN, Administrative Law Judge.
Upon a charge in Case 6-CA-13010-1, filed by Edward
L. Pattock, and a charge filed in Case 6-CA-13010-2 by
Frank R Zubal, each alleging that the Company, West
Penn Power Company , had engaged in unfair labor prac-
tices in violation of the National Labor Relations Act (29
U S C § 151), the Regional Director for Region 6 issued
a consolidated complaint and notice of hearing on No-
vember 3, 1980 , alleging that the Company had violated
Section 8(a)(1) and (3) of the Act by terminating its em-
ployees Pattock and Zubal Specifically , the consolidated
complaint alleges that the Company terminated Pattock
and Zubal rather than suspending them for 5 days, as it
had done to other participants in a work stoppage , solely
because of Pattock's and Zubal 's status as officers in
System Local No 102 of the Utility Workers Union of
America, AFL-CIO (the Union).' The Company by its
answer to the consolidated complaint denied commission
of the alleged unfair labor practices . The hearing in this
consolidated case was held before me in Pittsburgh,
Pennsylvania , on June 18, 1981.
On the entire record in these cases , from my observa-
tion of the demeanor of the witnesses , and after having
considered the briefs filed by the General Counsel2 and
the Company, I make the following
FINDINGS OF FACT
1. THE COMPANY' S BUSINESS
The Company, a Pennsylvania corporation with an
office and place of business at Arnold, Pennsylvania, is
engaged as a public utility in the generation , transmis-
sion, distribution , and sale of electricity . During the 12-
month period ending October 1, 1980, the Company en-
joyed gross revenues in excess of $250,000 from its busi-
ness operations . In addition, the Company, in the con-
' The parties stipulated that Pattock and Zubal were officers of Branch
Local 102-B of the Union
2 The General Counsel's motion to correct transcript is granted
duct of its business operations , received at its Pennsylva-
nia facilities products , goods, and materials valued in
excess of $5,000, which were shipped directly to those
facilities from points outside the Commonwealth of
Pennsylvania . From the foregoing facts, which the Com-
pany admitted in its answer , I find that the Company is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find
that System Local No. 102 of the Utility Workers Union
of America , AFL-CIO has been at all times material to
this case a labor organization within the meaning of Sec-
tion 2 (5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues Presented
On November 19, 1979,3 the Company, by letters to
Pattock and Zubal, notified each of them that they had
been "discharged , effective November 16 . . . for your
refusal to proceed with a work assignment and to make
an active effort as a union officer to have work resumed
by other union employees "
Pattock and Zubal filed grievances challenging the dis-
charges. Five of their fellow employees involved in the
same incident , who were suspended for 5 days, also filed
grievances After a hearing, a board of arbitration issued
an award on August 26, 1980, sustaining Pattock's dis-
charge and the five suspensions, and reducing Zubal's
punishment to a 30-day suspension.
The parties have raised the following issues here re-
garding the Company's treatment of its employees Pat-
tock and Zubal and the arbitration award : (1) whether
the Company violated Section 8(a)(3) and (1) of the Act
by imposing harsher penalties against Pattock and Zubal
only because they were union officers; and (2) whether,
under its policy set out in Spielberg Mfg. Co, 112 NLRB
1080 (1955), the Board should defer to the arbitration
award to the extent it dealt with the punishment imposed
on Pattock and Zubal.
B. The Facts
At 7.30 a.m. on November 15 Pattock and Zubal, who
at the time were president and vice president, respective-
ly, of Local 102-B, a branch local of the Union, reported
as usual to the Company's crewroom at Arnold , Pennsyl-
vania, to receive their job assignments for that day. The
Company assigned Pattock and Zubal , along with em-
ployees Robert H Artman, Lawrence T. Brown, Donald
S. Kiebler, Roy F . McLaughlin , and Walter Roberts to
work under Foreman Jerry Cooper. The assigned task
was to "dress out" a series of utility poles for the attach-
ment of wire This task required the assembly of cross-
beams, brackets, insulators , and other components on the
ground and the hoisting of the assembly to the top of a
utility pole where a lineman , who was either attached to
the pole by a climbing belt or suspended in the air next
3 Unless otherwise stated, all dates refer to 1979
WEST PENN POWER CO
to the pole by a "bucket truck," would position and
attach the equipment to the utility pole The situs of this
job was on Dr. Thomas Boulevard at Arnold, Pennsyl-
vania.
The Company divided the seven employees into three
work groups Brown and Artman worked together with
a bucket truck The second crew, consisting of
McLaughlin, Zubal, and Kiebler, was also equipped with
a bucket truck. Pattock and Roberts were assigned to a
digger truck. As part of their assigned work, Kiebler and
Pattock were expected to climb utility poles that morn-
ing Zubal, Pattock, and Brown were classified as line-
men. Employees McLaughlin, Kiebler, Artman, and
Roberts were classified as leadmen
As the seven employees began work on the nearby
jobsite, between 8 and 8.15 a m., a light snow was fall-
ing. About 9:30, when Foreman Cooper arrived at the
jobsite with a bucket truck, the snow had become mixed
with rain and weather conditions had generally deterio-
rated Pattock approached Cooper and asked whether
the foreman considered the weather to be inclement
Cooper answered, "[N]ot now, I'll tell you when."
About the same time, employee Don Kiebler came down
off a utility pole and told Zubal that the pole "was too
slippery" and that he, Kiebler, would not climb it again.
About 10 o'clock, Foreman Cooper gave all of his
crewmembers a coffeebreak, The employees took their
break in the cabs of the company trucks at the jobsite.
Foreman Cooper went back to the Company's Arnold
headquarters, where he took his own coffeebreak. At this
juncture, Superintendent Thomas A Joswick, his imme-
diate supervisor, questioned Cooper about the men
taking a coffeebreak in the trucks. Cooper explained that
he put the men on coffeebreak because of a squall which
had beset them Joswick invited Cooper to check the
weather and asked Cooper if he thought it was inclem-
ent. When Cooper replied no, Joswick directed him to
put the men back to work. Cooper finished his coffee
and went back to his crew
On his arrival at the jobsite, Cooper's crewmembers
gathered around and advised him that they would not
return to work because of the inclement weather.
Cooper ordered the men to go back to work. The seven
employees refused on the ground that the weather was
too inclement to perform the assigned work on the pole.
Cooper warned the employees that, if they persisted in
their refusal, they would probably be sent home He re-
jected the employees' offer to perform other work.
Cooper sought out Superintendent Joswick at the
Arnold center. When the two supervisors met at the
center, Joswick directed Cooper to return to the seven
employees and afford them another opportunity to return
to work
While Cooper was talking to Joswick, the seven em-
ployees discussed their options under the collective-bar-
gaining agreement. Pattock told his fellow employees
that in the past, when ordered to work under inclement
conditions, bargaining unit employees had performed the
work and thereafter filed a grievance asking for double
time After hearing Pattock, the employees agreed
1163
among themselves that they would not work under what
they viewed as a dangerous condition.4
However, Cooper's further effort to get his men back
to their assigned work was to no avail He told his crew
that they could either work as ordered or, if they re-
fused, they would go home. When the seven employees
persisted in their refusal, Cooper told them to load up
their trucks and head for the Company's office.
Employee Zubal, who said he wanted to talk to Super-
intendent Joswick, arrived about 5 minutes ahead of his
colleagues and confronted him
Joswick and Zubal discussed the applicable bad weath-
er provision in the collective-bargaining agreement,5 the
safety on the job, and Pattock's remarks to the crew.
Joswick seemed most concerned about having the as-
signed work performed.
When the remainder of Foreman Cooper's crew
caught up to Zubal at the Company's Arnold office, Jos-
wick sought a separate discussion with Pattock and
Zubal. Zubal rejected Joswick's request, stating, "It's a
common thing here and everybody wants to hear the
answer, we'll settle it as a group."
A group discussion ensued However, Joswick, Zubal,
and Pattock did most of the talking. Joswick asked each
member of Cooper's crew if he felt the weather was too
inclement to work. Each employee answered affirmative-
ly. Joswick rejected the employees' suggestion that they
be assigned other work on the ground until the weather
cleared up. He also announced to the assemblage that he
had stopped their time at 10 o'clock that morning. Pat-
tock suggested that they all go out of the building and
observe the weather. Joswick instructed Cooper to take
the men outside and put them back to work.
* My findings as to Pattock's remarks to his fellow employees during
Cooper's absence are based on Pattock's testimony On cross-examina-
tion, Pattock claimed that he made an effort to get his colleagues back to
work (Tr 40) However, his account of what he said at Tr 22, 38, 39,
and elsewhere on Tr 40 show that Pattock told the employees what op-
tions they had under the collective-bargaining agreement I discounted
Zubal's inconsistent testimony as to Pattock's remarks At Tr 54, Zubal
testified that Pattock did not order the men back to work, but told them
that they had to option to work and file a grievance At Tr 57, the
"option" became an "obligation" to work and file a grievance
This provision reads
Section XV-INCLEMENT WEATHER
15 1 LINES, INSTALLER, AND SUBSTATIONS
Employees engaged in the construction and maintenance of lines
and substations will not be required to do work outdoors in inclem-
ent weather on jobs which can reasonably be deferred until weather
conditions are less severe It is understood that there are times in
which work cannot be deferred Examples of when work cannot be
deferred are when there is an emergency, which is a combination of
circumstances which call for immediate action consistent with the
safety of employees, or when it is necessary to protect life and prop-
erty or to restore or maintain customer service
It is the supervisor's responsibility to determine when weather
conditions are too severe for the work at hand with due regard to
the nature of work to be performed, temperature, wind velocity, pre-
cipitation, snow or ice accumulation on ground or structures, avail-
ability of shelter, or combination of these factors In general, tem-
peratures of 10 degrees F or lower will be considered inclement
weather for linemen or installers required to work on pole tops,
towers, or structures It is recognized that weather too inclement for
climbing may not be considered inclement for work involving less
exposure or exposure of shorter durations
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Cooper led the group on to the building's
porch and asked each crewmember if he would return to
work. At this point, a heavy rain was falling Each of the
employees refused to return to outside work Foreman
Cooper rejected employee Roberts' suggestion that the
men work on the ground assembling material for use on
the poles, eat an early lunch, and then see how the
weather looked. Cooper responded negatively, adding
that the controversy had "gone too far" and that the
only option available to the men was to return to the
jobsite and work on the poles as ordered The men re-
mained adamant in their refusal. At this, Cooper remind-
ed them that they were not being paid, adding that they
"might as well go on home." Cooper went back into the
office.
Cooper shortly returned and announced that Superin-
tendent Joswick wanted to see the four lead linemen in
his office Artman, Kiebler, McLaughlin, and Roberts
went to Joswick's office. Thus, Pattock, Zubal, and
Brown remained outside.
While the four leadmen were in the office, Zubal went
to his truck and retrieved his lunch pail and thermos.
Pattock and Brown also left the porch and stood nearby,
near the adjacent garage doors. Zubal joined them after
retrieving his belongings from the company truck. When
the four leadmen returned shortly from their visit with
Joswick, they reported on their discussion with the su-
perintendent At this, all of the crewmembers left the
Company's premises
On November 19, Cooper, by letters, notified employ-
ees Brown , Artman, Kiebler, McLaughlin, and Roberts
that because of their refusal to proceed with their work
assignment on November 15, they were suspended for 5
days without pay, beginning Friday, November 16.
On the same day, Cooper wrote letters to Pattock and
Zubal advising them of their discharges, effective No-
vember 16, because of their "refusal to proceed with a
work assignment and to make an active effort as a union
officer to have work resumed by other union employ-
ees." In his letters to Zubal and Pattock, Cooper also
stated that the two union officers "made the initial deci-
sion to go home," and that it was their status as union
officers which imposed responsibility on Zubal and Pat-
tock "to proceed with the assigned work and make
every effort to have Messrs Artman, Roberts, McLaugh-
lin, Brown , and Kiebler return to work."
On November 19, the seven employees filed a griev-
ance protesting the suspensions and the two discharges
On August 26, following a hearing before a three-
member Board, a Board majority issued an opinion and
award sustaining the five suspensions and Pattock's dis-
charge and reducing Zubal's discharge to a 30-day sus-
pension without pay. Among the provisions of the col-
lective-bargaining agreement which the panel considered
were the portion of the inclement weather section
quoted in fn 5, above, and the following:
Section XXX-NO STRIKE-NO LOCKOUT
30.1 There shall be no strike or lockout or any
slowdown or refusal to carry out work assignments
during the term of this Agreement or any renewal
thereof, nor during any period of time while the
parties are negotiating a change or renewal of the
Agreement. All matters of dispute arising under this
Agreement shall be settled by conference or by ar-
bitration as herein provided
It is further agreed that if any employees engage
in any strike, slowdown, or refusal to carry out
work assignments during the term of this Agree-
ment, the Union and its officers will forthwith make
a sincere, active effort to have work resumed at a
normal rate, and it is understood that if the Union
and its Officers take such action there shall be no
further liability upon the Union and its Officers for
such incidents. However, should such action on the
part of the Union and its Officers fail to end such a
strike, slowdown, or work refusal, it is agreed that
the Company shall have the unqualified right to dis-
cipline or discharge employees participating in or
encouraging such violations, the Union shall, how-
ever, have the right of recourse to the grievance
and arbitration procedures herein provided, to the
extent of establishing the fact as to whether or not
any individual employee has participated in or en-
couraged such violations
The majority noted that the arbitration board had pre-
viously held
. . that Section 30.1 contains and imposes upon
Union Officers an independent responsibility, dis-
tinct from and above their obligation to personally
refrain from participation in or encouragement of
the enumerated prohibited activities, to initiate posi-
tive action to have work resumed in situations such
as that which arose on November 15, 1979.
The panel majority also noted that they had previously
found-
. . that failure to discharge these responsibilities
may warrant the imposition of discipline therefor so
long as nothing on record suggests that Management is
thereby attempting to unlawfully discourage Union
membership or otherwise improperly interfere with or
discriminate against Union Officers in the exercise of
their lawful rights.
After finding that the evidence before it did not estab-
lish that any of the grievants, including Pattock and
Zubal, were ringleaders of the November 15 work stop-
page, the panel majority stated:
Their discharges must in effect stand or fall on the
basis of the gravity of their respective violations of
the "sincere, active effort" duty they had as Union
Officers, especially since Management emphasized
the responsibilities of Pattock and Zubal as Union
Officers in citing the reasons for their discharges
The panel majority noted that earlier Pattock had suf-
fered a disciplinary "corrective" suspension because of
his failure in another situation "to expend the requisite
`sincere, active effort " Confronted by what they viewed
as a repetition of that misconduct, the panel majority
WEST PENN POWER CO
found that Pattock's conduct on November 15 was an
aggravated violation of his contractual duty warranting
discharge
Turning to Zubal, the panel majority noted that he
had not previously neglected his duty as a union officer
in a "refusal-to-work situation " On this ground, the
panel majority held Zubal was entitled to "the benefit of
some corrective discipline, as Mr. Pattock once was "
Accordingly, the panel majority reduced Zubal's punish-
ment to a 30-day suspension
At the hearing before me, I accepted the following
stipulations regarding the arbitration proceedings' (1)
Neither Pattock, nor Zubal, or the Union appealed the
arbitrator's decision in any state or Federal court (2)
The arbitration proceedings concerning Pattock, Zubal,
and their five colleagues were fair and regular and the
parties to that proceeding agreed to be bound by those
proceedings
I also accepted further stipulations that (1) The Board
is not contending that the 5-day suspensions imposed on
employees Roy McLaughlin, Donald Kiebler, Robert
Artman, Lawrence Brown, and Walter Roberts were un-
lawful, and (2) Edward Pattock and Frank Zubal partici-
pated in the same events on November 15 as the five em-
ployees named above
C Analysis and Conclusions
The Board has recognized that union office "embodies
the essence of protected concerted activities." General
Motors Corp., 218 NLRB 472, 477 (1975), enfd. 535 F 2d
1246 (3d Cir 1976) Accordingly, in Precision Castings
Co, 233 NLRB 183, 184 (1977), the Board declared that
"discrimination directed against an employee on the basis
of his or her holding union office is contrary to the plain
meaning of Section 8(a)(3) and would frustrate the poli-
cies of the Act if allowed to stand." Later, in Gould
Corp., 237 NLRB 881 (1978), enf denied 612 F.2d 728
(3d Cir 1979), the Board found that an employer violat-
ed Section 8(a)(3) and (1) of the Act by discharging a
shop steward because he failed to take positive action to
terminate a strike as required by a no-strike clause 6 In
Gould, the Board held that the following provision "[did]
not grant the employer the power to enforce it by dis-
charging union officials (237 NLRB at 881, 888)
SECTION 1. . the Union agrees that it shall
not call, sanction, or engage in any strike, slow-
down or stoppage of work; . . .
SECTION 2 Any employee or employees, either
individually or collectively who shall cause or take
part in any illegal unauthorized or uncondoned
strike, work stoppage, interruption or impeding of
work during the life of this Agreement, may be dis-
ciplined or discharged by the Company.
SECTION 3 In the event of an illegal, unauthor-
ized or uncondoned strike, work stoppage, interrup-
tion or impeding of work, the Local and Interna-
I note that the United States Court of Appeals for the Third Circuit
found the discharge to be lawful and denied enforcement of the Board's
order in Gould Nevertheless, I am required to look to the Board's deci-
sion in Gould as binding precedent Insurance Agents (Prudential Insur-
ance), 119 NLRB 768, 773 (1957)
1165
tional Union and its officers shall immediately take
positive and evident steps to have those involved
cease such activity. These steps shall involve the
following
The Union, its officers and representatives shall
immediately order its members to return to work,
not withstanding the existence of any wild-cat
picket line
The Union, its officers and representatives, will
in good faith, use every reasonable effort to ter-
minate such unauthorized action.
I note also that the Board has refused to extend such
protection to union officials "who actively led and di-
rected an unauthorized illegal work stoppage." Midwest
Precision Castings Co., 244 NLRB 597, 598 (1979)
In the instant case, the parties stipulated that, on No-
vember 15, Union Officials Pattock and Zubal participat-
ed in a work stoppage along with five other employees.
Further, from my view of the record, I find that the two
union officers neither fomented nor assumed leadership
of the stoppage
Nor is there any support for the Company's assertions
that Pattock and Zubal "made the initial decision to go
home" and that by not returning to work and by decid-
ing to go home they "led the men in a work refusal." (J.
Exhs. 17 and 18). Indeed, I find from Zubal's testimony
(Tr 60 and 66) that it was Robert Artman who said
"let's go home" to the assembled crew after he and the
other three leadmen had concluded their final meeting
with Superintendent Joswick. Artman's suggestion was
apparently inspired by Foreman Cooper's earlier remarks
after his last attempt to end the work stoppage For at
that point the exasperated foreman told his assembled
crew including Artman: "[Y]ou're not getting paid for
this so you might as well go home." (Tr 59.) In any
event, there is no evidence suggesting that either Pattock
or Zubal voiced such a suggestion at any time on No-
vember 15. In sum, I find that on November 15 the two
union officers merely participated along with their fellow
employees in the work stoppage and the subsequent
exodus from the Company's premises
The first paragraphs of Foreman Cooper's letters to
Pattock and Zubal and Superintendent Joswick's testimo-
ny make plain that it was their failure to attempt to end
the work stoppage which provoked the Company to dis-
charge the two rather than impose a 5-day suspension on
them. Thus, although Pattock and Zubal merely partici-
pated in the stoppage to the same extent as the other em-
ployees, the Company singled them out for harsher treat-
ment because of their status as union officers, thereby
violating Section 8(a)(3) and (1) of the Act. South Cen-
tral Bell Telephone Co , 254 NLRB 315 (1981) 7
As shown above , the arbitration board determined that because Pat-
tock and Zubal neglected their respective contractual duties as union offi-
cers to end the stoppage, the Company could properly impose harsher
punishment or, them than had been accorded the five other participants
in the work stoppage I find this determination and the award based on it
are repugnant to the policies and purposes of the Act regarding employ-
ees' protected union activities Therefore, I reject the Company 's conten-
Continued
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Edward L Pattock and Frank R.
Zubal on November 16, 1979, solely because they were
union officers, the Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the
Act
4. The Company's unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It having been found that the Company has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that the Company
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that the Company violated the Act by
discharging Edward L. Pattock and Frank R. Zubal, in-
stead of imposing a 5-day suspension on each of them as
had been imposed on the other employees who partici-
pated with them in the unprotected work stoppage on
tion that the Board should defer to the arbitration award in this case
South Central Bell Telephone Co, supra at 317 fn 4, Hammermtll Paper
Co, 252 NLRB 1236 (1980) See also Kansas City Star Co, 236 NLRB
866, 867 (1978)
November 15, 1979. I have also found that the Company
has reinstated Frank R. Zubal, pursuant to the arbitration
award of August 26, 1980, under which his discharge
was reduced to a 30-day suspension, and that backpay
was awarded to Zubal for the period between the end of
the 30-day suspension and his reinstatement. I also note
that, at the time of Zubal's reinstatement, the Company
imposed a 2-year probationary period on him
In light of these circumstances, I shall recommend that
the Company offer employee Pattock immediate and full
reinstatement to his former position or, if that position is
not available, to a substantially equivalent position with-
out prejudice to his seniority or other rights and privi-
leges, and make Pattock and Zubal whole for any losses
of pay they may have suffered, by paying to each of
them the sums they would have computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).8 I shall
also recommend that the Company be required to pre-
serve and make available to Board agents, on request, all
pertinent records and data necessary to analyze and de-
termine whatever backpay may be due.
[Recommended Order omitted from publication ]
8 See generally Isis Plumbing Co, 138 NLRB 716 (1962)