Appendix — Miller Brewing Co. v. National Labor Relations Board

Supreme Court brief1983

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No. 81-1054

ERVIN SZEWCZUGA and GERALD TREICHEL, PETITIONERS

NATIONAL LABOR RELATIONs Ab, RESPONDENT

No. 81-1413

MILLER BREWING COMPANY, PETITIONER

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

Petitions for Review of an Order of the

looks with disfavor upon motions to file tills of costs out of time.

Erle Phillips, with whom Mark E. Edwards and Daniel

HP. Dockery were on the brief, for petitioner in No. 81-

1413.

Gerry M. Miller, with whom Scott D. Soldon was on the

brief, for petitioners in No. 31-1054.

Elliott Moore, Deputy Association General Counsel, Na-

tional Labor Relations Board, with whom John G. Elli-

gers, Attorney, National Labor Relations Board, was on

the brief, for respondent.

Before RoBINSON, Chief Judge, McGowan, Senior Cir-

cuit Judge, and NorTHRop *, United States Senior Dis-

trict Judge for the District of Maryland.

Opinion for the Court filed by Senior Circuit Judge

McGowan.

McGowan, Senior Circuit Judge: Following a con-

tractually forbidden strike by some of the electricians at

its Milwaukee brewery, Miller Brewing Company sus-

pended the rank-and-file participants for three days, but

discharged two union stewards who joined the walkout.

“Board”) decided that Miller had violated sections 8(a)

(1) and (3) of the National Labor Relations Act

(“NLRA” or Act“) * by discharging the two stewards,

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

Sections 8 (a) (1) and (3), 29 U.S.C. §§ 158 (a) (1), (3),

provide, in pertinent part:

(a) Unfair labor practices by employer

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bargaining process

has not explicity created higher duties for union officials

tion found.

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under 29 US.C, $$ 160 (e) &

This court has

* Miller Appendix (“App.”) at 2.

“id. at 35.

* Id. at 21-49.

ALJ and adopted his order with modifications on Janu-

ary 14, 1981.“ A summary of the ALJ’s findings follows."

On the morning of November 1, 1977, Miller manage

ment called a meeting with stewards from the machinists’

and electricians’ unions. Stewards Treichel and Szewczuga

were present for the electricians.* Company officials in-

formed the stewards that the company had decided to

assign certain disputed work to the machinists, although

the work had previously been assigned to an outside group

of electricians.’ The representatives of both unions re-

sponded to the announcement with heated displeasure, and

said that it might produce “trouble,” in the sense of em-

ployee dissatisfaction. Neither the company officials nor

the union officials foresaw at this time that the decision

might prompt any interruption of work.” Stewards

Szewezuga and Treichel, after leaving the meeting, in-

formed a higher union official, Henry Carrera, of the com-

pany’s decision, and proceeded to their respective shops to

inform the rank and file."

Steward Treichel received an angry response from his

fellow electricians: they expressed dissatisfaction with

their union and their stewards and threatened to leave

work to go to the union hall.” Treichel called union rep-

7g Miller Brewing Co., 264 NL. M M. No. 24 (1961), App. at

*The findings of the ALJ are supported by substantial evi-

dence. Universal Camera Corp. v. NLRB, 340 U.S. 474

(1961). See infra part III A.

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the shop, Szewczuga found the men dressed in street clothes

and ready to leave work. Szewezuga attempted to dis-

suade them from leaving, and asked that they stay at

work at least until representative Carrera had had an

from leaving and that they wanted their steward at the

union hall. Szewezuga punched out and was the last elec-

trician to leave his shop. He did not direct any employee

to leave the plant, and did not countermand any super-

visor’s order to remain at work.”

In a third shop, steward Collins and his group were the

last electricians to learn of the work-assignment decision.

of the decision from Szewezuga and

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App. at 25.

On November 15, 1977, after conducting an investiga-

sentative Carrera has been unable to persuade any of the

electricians at the plant to serve as stewards.”

II. THe ADMINISTRATIVE PROCEEDINGS

Having made the findings that we have just sum-

strike.” The ALJ found no evidence in the record to

the collective bargaining agree-

had agreed that union officials were to be held to

ties than the rank and file during un-

Under existing Board precedent, he

the selective discharge of the two stewards was

an unfair labor practice.” His recommended order di-

Miller to cease similar violations of the Act in the

;

Id. at .

"Jd. at 44-46. See, ¢.g., Precision Castings Co., 233

NLRk R. 183 (1977). The rule announced in Precision Cast-

ings has had a mixed reception in the courts of appeals. See

Fournelle v. NLRB, 670 F.2d 3831, 938-40 (D.C. Cir. 1982),

and cases cited there.

E *

4 Michigan Elec. Co. v. NLRB, 599 F.2d 227 (7th Cir 1979).

The Indiana & Michigan decision denied enforcement of 3

Board order that found it a violation of the Act for an em-

ployer to impose disparate discipline on union officials who

participated in, but did not lead, an unauthorized work stop-

page. The ALJ noted that the collective bargaining agree-

ment in Indiana & Michigan imposed special duties on union

Al0

back pay from the date of the discharge of the two

stewards, as the ALJ had recommended, the Board or-

dered back pay for the period by which the discipline

given the stewards exceeded the discipline given to the

rank and fle.“ This reduced the amount of back pay

ordered by three days. Chairman Fanning explained that

such a reduction was necessary to tailor the relief to the

violation found.

We now proceed to a consideration of the contentions

made in the petitions for review.

in C.H. . v.

657 F.2d 178, 182-88 (7th Cir. 1981), has interpreted Indiana

& Michigan to require some contractual basis a union

official’s higher responsibilities. The Third Circuit in Metro-

All

III. MtLLer’s CHALLENGES TO THE BOARD’s ORDER

A. Strike Leadership

Miller presents two arguments concerning the stewards’

alleged leadership of the strike: first, that the stewards

were in fact leaders of the work stoppage,“ and second,

that discharge of the two stewards was permissible be-

cause Miller officials had a good faith belief that the two

were leaders, even if they were not so in fact.“ Both

arguments lack merit.

As this court noted in Fournelle v. NLRB, 670 F.2d

331 (D.C. Cir. 1982), “Board precedent is clear that

union officials who are strike leaders may be selectively

punished.” Id. at 340 n.18 (citing Chrysler Corp., 232

N.L.R.B. 466 (1977); J.P. Wetherby Constr. Co., 182

N.L.R.B. 690 (1970)). Strike leadership has been de-

work stoppage, see, e. g., NLRB v. Armour-Dial, Inc., 638

F.2d 51, 56 (8th Cir. 1981), but also actions giving im-

petus and direction” to a strike. Chrysler Corp., supra,

232 N.L.R.B. at 474 (decision of ALJ).

Miller contends that the actions of stewards Szewczuga

and Treichel constituted leadership of the walkout, be-

they “provided this ‘spontaneous’ walkout a certain

that was otherwise lacking.“ Miller points to tes-

in the record that the two stewards tried to keep

at the beginning of the meeting in the union hall,”

that Szewezuga was requested to accompany his men to the

Al2

management officials in ending the walkout.“ All of this

testimony, however, is consistent with the conclusion of

the Board that “(t]he leadership which was exerted by

Treichel and Szewczuga was not in causing the walkout,

but rather in a futile attempt to quell the rising tide

favoring the walkout.” ** Miller concedes that the stew-

ards did not initiate the walkout.“ To the extent that

the stewards helped to keep the walkout orderly, they

helped to bring about its speedy conclusion. Although

they were not in close contact with management officials,

they did contact Carrera, a higher union official, who ad-

vised them to stay with their men; “ Carrera then worked

wth management officials to limit the walkout to half a

day’s duration.“ Miller's nonspecific assertion that

neither steward “made a significant effort to deter any

individuals from walking out“ “ is rebutted by credited

testimony. Miller’s arguments about strike leadership

reduce, at bottom, to the proposition that the stewards

“assumed a natural role of responsibility in ensuring that

the walkout was orderly”;* this argument essentially

equates leadership with stewardship, and we reject it, just

as the Board did.“ The Board’s conclusion that the

stewards were not strike leaders is supported by substan-

tial evidence, and we affirm it.”

Miller Br. at 20; App. at 182.

“ App. at 11.

Miller Br. at 22.

App. at 29.

Id. at 88-89.

Miller Br. at 22.

Id. at 22.

App. at 43.

“ Universal Camera Corp. v. NLRB, 840 U.S. 474 (1961).

Al3

Miller’s second argument is that, even if the stewards

were not in fact the leaders of the strike, Miller officials

had a good faith belief that they were leaders, and so

were entitled to discharge them. This argument fails in

its initial premise: Miller officials did not have such a

good faith belief. The management officials who conducted

the post-strike investigation testified that they had no

direct knowledge that the two stewards had incited or

encouraged the walkout.” Instead, as the Board found,

those officials treated the stewards as leaders simply be-

cause they were stewards.“ Manager Jablonowski testi-

fied that he believed that the two were leaders simply

because they had joined the walkout; Manager Paulici-

vie testified that he assumed that because the stewards

had transmitted the work-assignment decision to the rank

and file, and because a strike had resulted, the stewards

must have transmitted the decision “in such a way as to

cause the walkout.“ The Miller official who approved

Al4

B. Selective Discipline as an Unfair Labor Practice

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Fournelle v. NLRB, 670 F.2d 331 (D.C. Cir. 1982),

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bargained higher duties, and if the union official] did not

lead the unprotected strike. Id. at 338."

The ALJ noted, and Miller does not contest,” that the

no-strike clause of the collective bargaining agreement

between Miller and the electricians “has no special under-

taking that could be said to place a special or specific

duty upon the stewards in connection with forbidden work

stoppages. It simply provides that the Union agrees for

itself and its members that there shall be no (forbidden)

work stoppage.” This is what the court in Fournelle

referred to as a “neutral” or “general” no-strike clause,“

and hence is an insufficient waiver under Fournelle.

In Fournelle, the parties’ permanent umpire had clearly

App. at 45.

“ 670 F. ad at 888.

Id. at 341-45.

diy De dee t nn

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extraordinary circumstances. . .

shall apply to the court for lea

evidence and shall show to the satisfaction of

court that such additional evidence is ma

that there were reasonable grounds for the

adduce such evidence in the hearing before the

its member, agent, or agency, the ma

such additional evidence to

Board, its member, agent, or

a part of the record. The Board may modify i

ings . . and shall file its recommendations,

for the modification or setting aside of its

two

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order.

Section 10(e) requires that we ask questions: 1)

was there a failure to raise an “objection”

the arbitrator’s decision, and (2) was any

excused because of “extraordinary circumstances”? If

the objection was raised, or if failure to raise it was ex-

The argument that the arbitrator’s decision might pro-

thorized, the argument based upon the arbitral award

is not a new “objection” within the meaning of section

10 (e).“ We disagree. As this court stated in Consoli-

Als

21224721 5714 f

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it 128

. See, e. g.,

Pinkerton’s National Detective

NLRB v. Newton-New Haven Co., 506 F.2d 1035 (2d

Agency, 202 F.2d 230 (9th Cir. 1953)." Miller relies on

NLRB

inquiry”

presented

is “whether the

to put

t that Miller

‘he whiten

on appeal.“

was not

to raise it

ournelle,

present

have generally

suggests to a

order is not

cumstance within the meaning of section 10 (e)

Cir. 1974); NLRB v.

objection

1 0

the Fifth Circuit’s decision in NLRB v. Robin American

Corp., 667 F.2d 1170, 1171 (5th Cir. 1982), in which the

court held that an intervening Supreme Court decision

that overruled a “previously controlling” Fifth Circuit

doctrine was an extraordinary circumstance justifying

remand. The court noted, however, that it reached this

result only because, at the time of the administrative

proceedings, it would have been “futile, if not frivolous”

to present an appropriate objection, given the previously

controlling Fifth Circuit precedent.” The court suggested

that the simple pronouncement of an intervening “new

doctrine” would not constitute an “extraordinary circum-

stance” under section 10(e), and cited the Newton-New

Haven and Pinkerton’s cases, supra, for comparison.”

It is apparent that the present case is quite different

from the Robin American case. The Fournelle decision

did not overrule any previously controlling precedent that

would have made an objection based on the arbitrator’s

award futile or frivolous. Fournelle holds that certain

arbitral awards must be given effect as the authoritative

interpretation of the no-strike clause. But the Board has

had, since Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955),

a policy of deferral to arbitration awards in appropriate

circumstances. See Banyard v. NLRB, 505 F.2d 342

(D.C. Cir. 1974). Miller might have argued for such

deferral in this case, but did not do so. Such an attempt

should perhaps have reached the opposite result, was not an

circumstance justifying remand, when an ap-

propriate objection had not been presented to the Board. 202

F. ad at 232-33.

See also NLRB v. Good Foods Mfg. & Processing Corp.,

492 F.2d 1302, 1305-06 (7th Cir. 1974) ; Cascade Employers’

Ass’n v. NLRB, 404 F.2d 490 (9th Cir. 1968). But cf. NLRB

ee ee

8 667 F. ad at 1171.

W Id.

that objection now, and decline to remand to the Board.

We therefore proceed to decide this case on the record

before us.”

2. Selective discipline under the NLRA

limitations that have been strictly interpreted. See, ¢.g.,

NLRB v. Cheney California Lumber Co., 327 U.S. 385, 388-89

(1946). Different considerations may be controlling in other

contexts. Compare, e. g., United States v. L.A. Tucker Truck

Lines, Inc., 344 U.S. 83, 37 (1952), with Hormel v. Helvering,

312 U.S. 552, 568-59 (1941).

In enacting section 10(e), “Congress has said in effect

that in a proceeding for enforcement of the Board’s order the

A21

discipline any or all of the participants in a contractually

forbidden strike, as long as the discipline does not imper-

missibly discriminate against the employees’ exercise of

the rights protected by section 7 of the Act, 29 U.S.C.

§ 157.7" See Fournelle, supra, 670 F.2d at 335-36 and

cases there cited. The collective bargaining agreement

between Miller and the electricians recognizes this gen-

eral employer’s prerogative. The question in the present

case, however, is whether the selective discipline of union

officials, without explicit collectively bargained authori-

zation for that selective discipline, discriminates against

the exercise of section 7 rights so as to violate sections

8(a)(1) and (3) of the Act. The Third and Seventh

Circuits have addressed this question, and have held that

such selective discipline violates the Act.

In Metropolitan Edison Co. v. NLRB, 663 F.2d 478

(3d Cir. 1981), cert. granted, 50 U.S.L.W. 3974 (June

14, 1982), the court began with the indisputable prem-

ise that the right to hold union office “is the essence

of protected union activities,” id. at 482 (citing General

Motors Corp., 218 N.L.R.B. 472, 477 (1975), enforced

mem., 535 F.2d 1246 (3d Cir. 1976)). The exercise of

* Section 7 provides:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to col-

ment as authorized in section 158(a) (3) of this title.

29 U.S.C. § 157.

ae oe ee

Hig

111 Fel

ull

has had just such a destructive effect on employee rights:

after the announcement of the discharges, steward Col-

lins resigned his union post, and since then the union

has been unable to persuade any of its members to serve

as stewards.“ The right of union officials to be free

from selective discipline for participation in unauthorized

strikes may be waived, Fournelle, supra, 670 F.2d at 338-

41, but that does not mean that an employer may uni-

laterally increase the burdens associated with the holding

of union office. Therefore we hold that an employer vio-

lates the Act by punishing union officials more harshly

than the rank and file for their simple participation in

conduct in violation of the no-strike clause, when the col-

officials ; the distinction rested on the ground that in the pre-

vious case there was a contractual basis, albeit a “tenuous”

one, for the imposition of higher responsibilities on stewards.

657 F. ad at 182. See supra note 33.

arbitral awards will be precedentially binding. Compare

Fournelle, 670 F.2d at 343-45, with Metropolitan Edison, 668

F.2d at 483-84. That portion of Metropolitan Edison disap-

proved by Fournelle is irrelevant here.

See Radio Officers Union v. NLRB, 347 U.S. 17, 61

(1954) (“subjective evidence of employee response” to em-

ployer discrimination is not required “where encouragement

or discouragement can be reasonably inferred from the na-

ture of the discrimination”) .

™ App. at 42.

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Fanning

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IV. THe STewarpe’ CHALLENGE TO THE BOARD'S ORDER

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A25

than those which can fairly be said to effectuate the

policies of the Act.” Virginia Electric & Power Co. v.

NLRB, 319 U.S. 533, 540 (1943). We find no reason

to disturb the Boards order.

V. CONCLUSION

For the reasons set forth above, we enforce the Board’s

order in all respects. We reject Miller’s contentions that

the two stewards were strike leaders, that Miller believed

in good faith that they were strike leaders, and that the

Act permits the selective discharge of union officials in

circumstances like these. We further reject the stewards’

contention that the Board erred in failing to award them

full back pay to the date of their discharge.

It is so ordered.

A26

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

Case 30-CA-4468

MILLER BREWING COMPANY

and

ERVIN SZEWCZUGA AND GERALD

TREICHEL, Individuals

DECISION AND ORDER

On April 2, 1980, Administrative Law Judge Herzel

H. E. Plaine issued the attached Decision in this proceed-

ing. Thereafter, Respondent filed exceptions and a sup-

porting brief, and the General Counsel filed a brief in

opposition to Respondent’s exceptions.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has de-

of their — See 1 1977. 1 2 the rank-and-

left the

same date. Therefore, the remedy is revised to

make whole the discriminatees to the extent that

A27

In reaching his Decision the Administrative Law Judge

relied on our prior decisions in Precision Castings Co.,“

Gould Corp.“ and Indiana and Michigan Electric Co.,“ for

support. Respondent’s exceptions raised the question of the

validity of Indiana and Michigan, supra, as precedent in

light of the Seventh Circuit’s refusal to enforce the Board’s

Order. We do not read the Seventh Circuit’s opinion as

placing absolute liability on union stewards and further

find that the factual distinctions between that case and

the instant case place this case outside the reach of its

precedential impact.

In Indiana and Michigan Electric, supra, the court

found that 50 bargaining unit employees walked off their

jobs and left the employer’s premises in violation of a con-

tractual no-strike clause. Five union officials falsely ad-

vised their supervisors that they were ill and left with

the other strikers. Three of the five union officials later

assisted in ending the strike. As a result of this unlawful

activity the employer issued written warnings to the rank-

and-file strikers, suspended for 1 day the three stewards

who helped to end the walkout, and suspended for 3 days

the two officials who took no action to terminate the strike.

The court reasoned that union officials have a higher re-

sponsibility than other employees not to engage in conduct

which violates their duties as employees and repudiates

their responsibilities as union officials. The court found

that the employer’s action in disciplining the union of-

ficials more severely than the other strikers did not violate

Precision Castings Aurora Corpo-

Or — 3

tion, 233 NLRB 183 (1977).

3. Gould 237 NLRB 881 (1978), enforcement

denied 612 F.2d 728 (3d Cir. 1979).

4. Indiana & M Electric Company, 237 NLRB 226

(1978), enforcement 599 F.2d 227 (7th Cir. 1979).

A28

the Act because it was “entitled to take into account the

Union official’s greater responsibility and hence greater

fault.“

In the instant case, Stewards Treichel and Szewezuga

were informed by Respondent of a work assignment deci-

sion which they knew would upset their membership.

Their initial response was to contact Union Business Rep-

resentative Carrera to inform him of the decision, to regis-

ter their disagreement, and to seek his help in investigat-

ing methods by which the decision might be reconsidered.

The stewards agreed that the best course of action was to

wait until the newly assigned employees began the dis-

puted work and thereupon file a grievance in accord with

the contract procedure. In keeping with past practice,

the stewards informed their fellow electricians about this

most recent decision. However, the angry reaction which

this news elicited exceeded their expectations and talk

of a walkout began immediately. The employees’ anger

was directed not only at Respondent for its decision, but

also at the stewards and the Union for their inability to

represent successfully their interests. The rank-and-file

strikers wanted to go to the union hall to find out why

they so often came out on the losing end. Both stewards

tried to calm their men and Treichel contacted Carrera

for further advice and assistance in restoring order.

During this conversation, Carrera told Treichel to continue

to try to calm the men and to keep them inside the plant,

but if the employees insisted on coming to the union

hall, to keep them together as a single group. Following

this advice both stewards attempted to convince the em-

ployees that the matter was being pursued through the

appropriate channels and that they should return to their

jobs and allow the process to work. Despite their con-

tinued efforts, the employees refused to be pacified. When

5. Indiana & Michigan Electric Company, supra at 232.

A29

it became apparent that the employees were determined

to leave, Treichel and Szewczuga each notified supervisory

personnel about what was happening. As their men exited

the plant, the stewards observed Carrera’s instruction to

keep their men together and followed them out. There-

after Respondent issued letters of reprimand and tempo-

rary suspensions to the rank-and-file strikers, but dis-

charged Treichel and Szewczuga for “participation in and

leadership of the walkout.” While acknowledging that it

has no basis for believing that either Treichel or Szewczuga

incited, suggested, or encouraged the walkout, Respondent

asserts that Treicel and Szewczuga, by virtue of their

union stewardship positions alone, were leaders in the

unlawful strike and thereby deservei the harsher dis-

cipline.

The facts of this case clearly portray a situation where

these two stewards could have done little else but what

they did. They were caught in a series of events whereby

an employer’s decision provoked a hostile, and ultimately

uncontrollable, reaction against the Employer, the Union,

and themselves. Credited testimony reveals that at each

step in the situation’s progress, they attempted to restore

order, to persuade their men to remain on the job, to

seek assistance from others in the Union, and to apprise

Respondent truthfully about what was happening. Both

the union business representative and their men wanted

the stewards to accompany the rank-and-file to the union

hall. The leadership which was exerted by Treichel and

Szewczuga was not in causing the walkout, but rather in

a futile attempt to quell the rising tide favoring that

walkout. Based on these findings, the Seventh Circuit's

characterization of a steward’s “greater responsibility and

hence greater fault” is inapplicable herein and we agree

with the Administrative Law Judge’s determination that

A30

Respondent’s imposition of more severe discipline on the

stewards violates Section 8(a)(1) and (3) of the Act.

Contrary to Member Jenkins, the remedy provided

herein is fully appropriate and in accord with the tradi-

tional remedies imposed by the Board. The Chairman

views his disagreement with Member Jenkins to be less a

difference over remedy than one over the nature of the

violation found.

At the outset, it is important to note exactly what

conduct has been found violative of the Act. Here, we

are affirming the Administrative Law Judge’s finding that

Respondent unlawfully imposed a “greater discipline” (em-

phasis supplied) on union stewards than that imposed

upon rank-and-file employees who also participated in

the unprotected walkout. In this case, as in Precision

Castings and its progeny, the very heart of the Board's

rationale is that an employer may not rely on union-re-

lated considerations to justify a more severe discipline for

stewards. However, an employee’s status as a steward

does not insulate him or her from the lawful discipline

imposed upon all employees. Thus, in these circumstances,

the violation directly results from the additional penalty

imposed on a steward by an employer. For that viola-

tion, a proper remedy must be provided.

In the Chairman’s view, the remedy advocated by

Member Jenkins fails to correlate with the violation found.

In this case, inasmuch as the walkout was unprotected,

Respondent could and did lawfully discipline those em-

ployees who participated in the walkout. Thus, to the

extent that all electricians—including the stewards—who

participated in the walkout received a 3-day suspension

without pay, Respondent’s discipline was lawful. How-

ever, Respondent’s imposing a greater discipline upon

A31

the union stewards was unlawful, and the stewards are

therefore entitled to be made whole to the extent that

their discipline exceeded that found lawful.

Should the litigation raise, and leave otherwise unre-

solved, any doubt whether the total discipline or only an

additional discipline was imposed upon an employee for

discriminatory reasons, Chairman Fanning would resolve

that doubt against the wrongdoer. The American Dis-

tilling Company*—cited by Member Jenkins—involved just

such a situation. There, an employee, who was also the

union president, was suspended for 90 days for violating a

work rule. No other employee had ever been suspended

for more than 30 days for the same offense, and the Board

found that the employee received the greater discipline

because he was the union president. The case did not

involve a group of employees engaging in the same con-

duct at the same time (e.g., such as the unprotected

walkout herein) and for which union stewards received a

greater penalty. In American Distilling, as it was uncer-

tain what penalty, if any, the employee would have re-

ceived absent union considerations, the employer’s entire

discipline violated the Act and it was fully proper that

the remedy included backpay for the full 90-day sus-

pension. But, when litigated on the theory of disparate

punishment and the facts clearly show that all employees

similarly situated received the same lawful discipline

except that the union stewards received a greater dis-

cipline because of their position, the violation found must

be that the additional penalty violated the Act and a

remedy provided for the discrimination actually suffered.

6. 245 NLRB No. 148 (1979).

7. — , Westinghouse Electric Corporation, 243 NLRB

No. 44 (1979).

A32

_ Certainly, in analogous situations, though it is clear

that a discriminatory act has taken place, the Board none-

theless limits a remedy to fit the violation. For example,

when an employee is discharged or laid off for discrim-

inatory reasons, the make-whole remedy will be limited

if it can be shown that the employee later would have

been terminated or laid off for nondiscriminatory reasons.“

Here, by imposing a remedy which makes whole the

discriminatees to the extent their discipline was unlawful,

the Board is recognizing the nature and extent of the

violation found and fulfilling its function to fashion a

proper remedy.

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

recommended Order:

A33

a result of the discriminatory discipline. Said inte rest shall

be computed as set forth in the remedy section of this

Decision.”

2. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington, D.C. January 14, 1981

John H. Fanning, Chairman

(Seal) National Labor Relations Board

MEMBER JENKINS, concurring:

I agree with the remedy provided herein, but, in addi-

tion, I would order a complete make-whole remedy, pro-

viding backpay to Szewczuga and Treichel for the entire

length of their discriminatory discharges, beginning No-

vember 15, 1977. The limited remedy fashioned herein

represents an unwarranted departure from the Board’s

traditional remedies in disparate treatment cases.

It is the Board’s function to remedy the effects of an

unfair labor practice and to restore the status quo ante.

It is neither the purpose nor the design of an unfair labor

practice proceeding for the Board to assume the role of an

arbitrator, meting out what it considers to be appropriate

discipline when it finds that a respondent’s discriminatory

action has resulted in inappropriately severe discipline.

Rather, the Board’s obligation to remedy the effects of the

unlawful conduct actually committed is not affected by the

fact that a respondent lawfully could have imposed less

severe discipline upon a discriminatee.

A simple illustration demonstrates the folly inherent

in the remedy herein. In a typical disparate treatment

case, the prounion employee receives greater discipline for

A34

the same offense than does the nonunion employee. If

the violation is found, the Board orders a complete make-

whole remedy; we do not reduce the discipline or alter the

nature of it.“ Indeed, the Board has applied its traditional

make-whole remedial approach in cases similar to the

instant case. For example, in The American Distilling

Company, 245 NLRB No. 148 (1979), a union official was

suspended for 90 days for misconduct for which rank-and-

file employees had received suspensions ranging from 1

week to 30 days. The Board ordered that the discriminatee

be given backpay for the full term of the suspension im-

posed by that respondent, not for some lesser period over

and above that which may have reflected a nondiscrimina-

tory suspension. Thus, it has never been the Board’s func-

tion to administer discipline fairly for those employers

who administer it discriminatorily. If the Board ventures

into this area of formulating “appropriate” levels of dis-

cipline, its processes will be steeped in an analytical mire

of disciplinary systems and efforts to find the appropriate

level where nonunion employees are disciplined to differ-

ent degrees, all consuming great amounts of time, and re-

sulting in arbitrary and unpredictable remedies for dis-

criminatees. Simply stated, if Respondent’s conduct is

found unlawful, the Board may not ameliorate the effects

of the unlawful conduct by, in effect, imposing lesser dis-

cipline on the discriminatees. Accordingly, I would order

the traditional make-whole remedy.

Dated, Washington, D.C. January 14, 1981

Howard Jenkins, Jr. Member

National Labor Relations Board

9. See, e.g., Windsor Plastics, Inc., 231 NLRB 1222 (1977).

A35

MEMBERS PENELLO, dissenting:

Contrary to my colleagues, I would reverse the Ad-

ministrative Law Judge and dismiss the complaint in this

case. Once again I must reiterate my continuing disagree-

ment with the majority’s conclusion that it is a violation

of the Act for an employer to discipline union officials

more severely than other employees for breaching their

duty to enforce the contract by participating in a strike in

violation of a contractual no-strike provision.“ Further-

more, I note that this case arose within the Seventh

Circuit, which has clearly indicated that it considers the

majority’s analysis of the law in such cases to be erro-

neous." Inasmuch as I find the majority’s attempts to

distinguish the facts in this case from those in the Indiana

& Michigan case singularly unconvincing, I would follow

that precedent, which coincides with my analysis of the

law in this area. Thus, I would find that Respondent

did not violate Section 8(a)(3) and (1) of the Act by

disciplining Charging Parties Szewczuga and Treichel more

severely than other employees who participated in the

unprotected strike, because as union officials they had a

higher duty than other employees to abide by and enforce

the contractual no-strike provision.

It is undisputed that the walkout of Respondent's

first-shift electricians on November 1, 1977, violated the

no-strike clause of the contract and was thus unprotected.

It is also undisputed that Stewards Szewczuga and Treichel

walked out of the plant with the other electricians, despite

yi Ae K ting opinion in Gould C , 237

NLRB 881 (1978), enforcement denied 612 F.2d 728 (3d Cir.

— Tg in Midwest Precision Castings

Company, 244 NLRB No ds 11979).

11. * AYN eee NL. R. B.

sin 1979), denying enforcement of 237 NLRB

A36

requests by Respondent’s officials that they remain on

the job, and went with the striking electricians to the

union hall. By this conduct, they clearly joined and

participated in the illegal strike. While Szewczuga and

Treichel also took some steps to prevent the walkout and

to end it after they were unsuccessful in forestalling it,

their conduct in walking out with the striking employees

was inconsistent with their attempts to prevent the strike

and breached their duty to enforce the contract. In light

of their positions of authority within the Union, they

would logically be viewed by the employees as leaders

in any strike situation. Their actions in walking out

along with the other employees thus spoke louder than

their words, effectively demonstrating their tacit approval

of the employees’ strike and undermining the Union’s

contractual no-strike commitment.

For the reasons set forth in my dissenting opinion

in Metropolitan Edison Company, 252 NLRB No. 147

(1980), I would find that, regardless of the actions taken

by Szewczuga and Treichel to end the strike, they never-

theless breached their primary responsibility as union

officials to enforce the contract by participating in a strike

which violated the no-strike clause of the contract. There-

fore, I would find that Respondent acted lawfully in

holding them to a higher standard of conduct and dis-

ciplining them more harshly than other employees who

participated in the illegal strike. Accordingly, I dissent.

Dated, Washington, D.C. January 14, 1981

John A. Penello, Member

National Labor Relations Board

A37

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 opportunity

to present evidence and state their positions, the National

Labor Relations Board found that we have violated the

National Labor Relations Act, as amended, and has ordered

us to post this notice.

WE WILL NOT discharge employees or discrim-

inate against them in regard to their hire, tenure, or

any term or condition of employment, because of their

protected concerted activities or because they hold

union office ir the bargaining unit when engaging

in protected concerted activities.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed them in Section 7

of the National Labor Relations Act.

WE WILL give Ervin Szewczuga and Gerald

Treichel backpay with interest to compensate for any

loss of earnings they incurred as a result of the dis-

criminatory discipline.

WE WILL offer to both said employees immediate

and full reinstatement to their former jobs or, if such

positions no longer exist, to substantially equivalent

positions, without prejudice to their seniority or other

rights or privileges previously enjoyed.

Miller Brewing Company

(Employer)

Dated By

This is an official notice and must not be defaced

by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any ques-

tions concerning this notice or compliance with its provi-

sions may be directed to the Board’s Office, Commerce

Building, Suite 230, 744 North Fourth Street, Milwaukee,

Wisconsin 53203, Telephone 414—291—3866.

A39

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

Case 30-CA-4468

MILLER BREWING COMPANY

Respondent

ard

ERWIN SZEWCZUGA and GERALD TREICHEL,

Individuals

Charging Parties

Rocky L. Coe, Esq.,

Milwaukee, WI,

for the General Counsel.

Patrick W. Schmidt, Esq. and

Laurence E. Gooding, Jr., Esq., of

Quarles and Brady,

Milwaukee, WI,

for the Respondent.

Kenneth R. Loebel, Esq., of

Goldberg, Previant and Uelmen,

Milwaukee, WI,

for the Charging Parties.

DECISION

HERZEL H. E. PLAINE, Administrative Law Judge:

This case is concerned with the discharge of the

Charging Parties, two electrician employees of the Re-

spondent, who were stewards for Local 494, International

Brotherhood of Electrical Workers, AFL-CIO-CLC (IBEW

or the Union), in connection with a wild-cat walkout to

A40

the IBEW union hall, on November 1, 1977, of most of

the first shift electricians employed at Respondent’s Mil-

waukee brewery, in contravention of the Union contract

with Respondent abjuring strikes and walkouts in favor

of settlement of disputes by the grievance and arbitration

procedures of the contract.

The work stoppage was of several hours duration.

It was a mixed reaction of the electricians to what they

regarded as management favoritism toward Machinist

Union (IAM) employees in reversing, on November 1, a

prior management decision and awarding to machinists

certain Filtec work (see note 2 infra) being performed

by electricians, and the seeming inadequacy of their IBEW

Union representation, under the contract grievance proce-

dure, to hold on to work performed by the electricians.

Only the two Union stewards were punished by discharge.

The other participating employees were disciplined by

up to a three-day loss of pay and reprimand in their files.

The complaint alleged,’ and General Counsel contends,

that the discharge of the two stewards was discriminatory,

imposed on them alone because of their Union status as

stewards, in violation of Section 8(a)(3)and (1) of the

National Labor Relations Act (the Act).

The Respondent claims that the discharge of the two

employees was not solely because of their status as Union

stewards, but rather because of their active leadership

of the employees in the work stoppage and walkout, and

therefore constituted justified action to discourage leader-

ship in breach of the contract obligation.

The case was tried before me on January 15, 16 and

17, 1979, at Milwaukee, Wisconsin. All three parties have

filed briefs.

1. The charge was filed on December 13, 1977.

Findings of Fact

I. Jurisdiction

Respondent is a Wisconsin corporation that operates

breweries and related facilities throughout the United

States, including the brewery in Milwaukee involved in

this case.

In the year prior to issuance of the complaint, a repre-

received goods valued in excess of $50,000 to and from

points outside Wisconsin.

As the parties admit, Respondent is an employer

within the meaning of Section 2(2), (6), and (7) of the

As the parties also admit, the Union is a labor orga-

nization within the meaning of Section 2 (5) of the Act.

II. The Unfair Labor Practices

A. Respondent’s Business Operations

Respondent’s Milwaukee brewery, the facility involved

in this case, is a collection of buildings where beer is

and

level in the

= ares Se ak © ee filed [(sic) filled)

yt reference to the “ company or elec-

tricians read “McGraw” company or electricians.

A42

According to Joe Paulicivic, who was Respondent’s

labor relations manager for the Milwaukee brewery in

November 1977 and earlier, Respondent’s employees were

variously affiliated with twelve labor unions. The em-

ployees of direct concern were electricians, members of

the IBEW (the Union), who constitute a segment of the

maintenance force in the brewing packaging departments.

The electricians provided coverage for the brewery’s

three shifts, with about 28 men on the first and pre-

dominant shift, and about 6 men each on the second and

third shifts. The first shift hours were from 7 am. to

3:30 p.m.

Most of the buildings comprising the brewery are

buildings, denominated by numbers, are usually described

as north or south or on the north side or south side (of

State Street).

The electricians work out of three electric shops. One

is located on the third floor of north building 29, some-

times called north bottling, which is part of the group

of north side buildings concerned with packaging (see

exhibit R-6).

A second electric shop is on the first floor of south

building 60, sometimes called south bottling, which build-

ing, along with south building 61, comprise the south

packaging plant (see exhibit R-6).

south

A third electric shop is on the first floor of

is with

building 15, which building is concerned

(see exhibit R-6).

A43

In connection with the three electric shops, for the

first and predominant shift the Union business agent had

appointed from among the electricians three stewards,

one for each shop. One of the stewards was Ervin

Szewczuga (referred to as Erv in the testimony), an em-

ployee of Respondent for 26 years, who had been serving

as steward for 4 years of the electric shop in north

building 29. For the electric shop in south building 60,

the appointed steward was Gerald Treichel (referred to

as Gerry in the testimony), an employee for 12 years

and steward for 4 years. For the electric shop in south

building 15, the appointed steward was Theodore Collins

(referred to as Ted in the testimony), an employee for

22 years and steward for about 3 years.

Among the supervisory and management personnel

involved in the events of this case were Paul Jablonowski,

then packaging maintenance manager; Joe Paulicivic, then

labor relations manager for the Milwaukee brewery; Daniel

Feinsinger, industrial relations division (IRD) manager

for the Milwaukee brewery, to whom Paulicivic reported;

Resident (or Plant) Manager Fred Mundt, to whom Fein-

singer reported; Corporate Manager of all Industrial Rela-

tions Departments Koenig; Supervisor Edward Beers, who

was an electrical and mechanical maintenance supervisor

in south packaging, and supervisor Gary Grande, wlio

who was an electrical maintenance supervisor in north

packaging.

B. The Union Contract

Local 494 IBEW (the Union) has represented the

electricians employed at Respondent’s Milwaukee brewery

between 30 and 40 years, according to Union Business

Representative Henry Carrera. Carrera had been busi-

ness representative for almost 10 years at the time of trial.

A4t4

The latest and current 3 year contract, which is a

contract of the Union with the Pabst and Schlitz Milwau-

kee breweries as well as Respondent’s Milwaukee brewery,

became retroactively effective on October 1, 1977 after

being ratified by the parties on October 31 and signed

November 11, 1977, and runs to October 1, 1980.

The pertinent “no strike” provision of the contract

is Article IX, para. 5, which reads as follows:

ARTICLE IX

GRIEVANCE AND ARBITRATION PROCEDURE

5. During the term of this Agreement, all disputes,

grievances, complaints and adjustments pursuant

to this Agreement shall be settled in accordance

with the Grievance and Arbitration Procedure out-

lined herein, and the Union agrees for itself and

its members that there shall be no strike of any

kind, walk-out, slow-down, picketing, stay-in, or

work stoppage of any type. Should the Union,

or any employee or group of employees violate

the provisions of this paragraph, it is mutually

agreed that the Employer may impose such dis-

ciplinary action against any or all employees in-

volved as it may deem necessary, including dis-

charge. The Employer agrees that there shall be

no lock-out on its part. It is agreed that any

dispute arising under Paragraph 5 shall be disposed

of through the Grievance and Arbitration Proce-

dure set forth in this Article IX.

3. The prior contract had October 1, 1977 but

was extended for another month negotiations continued.

A45

C. The Filtec Dispute and Prior

Disputes History

For years, the electricians, represented by IBEW,

and the machinists, represented by District 10 of the

International Association of Machinists etc. (IAM), had

been vying for jurisdiction over items of in-plant work.

A prime example, with origins going back many years,

was the repair of electrical parts on battery-operated fork-

lift trucks used in and about the plant. Although in 1958

the electricians had been awarded the work by Respon-

dent involving what was then a very few such electric

trucks, in 1973 when Respondent acquired a large fleet

of them it assigned the work to an internal vehicle repair

shop operated by the machinists. The electricians in 1974

took Respondent’s assignment to arbitration, and in 1975

the arbitrator ordered Respondent to assign the work to

the electricians. Nevertheless, as many of the employee

witnesses testified and Labor Relations Manager Paulicivic

conceded, Respondent refused to assign the work to the

electricians and instead cooperated with the machinists

(who to meet technical requirements threatened a work

stoppage) in having the matter brought to the Board for

determination under Section 10(k) of the Act. In 1976,

the Board, relying heavily on Respondent’s preference

for the machinists (noting that both crafts were equally

suited by background, practice, and skills), awarded the

work to the machinists, International Ass’n of Machinists,

District 10, 222 NLRB 688, 689-690 (1976).

This episode, as did others involving contest with the

machinists and work decisions prior to November 1977,

soured the views of the electrician employees concerning

the impartiality of Respondent’s management and super-

visors, and fostered a belief that management was siding

with the machinists. The belief was fed by employee

A46

understanding that some of the supervisors of the electrical

and mechanical departments came from machinists back-

grounds, for example Beers, Jablonowski, and a Gene

Salkowski, and that there was no electrician in the rel-

evant management (see testimony of electrician employees

Liske, Rutz, and Collins among others, and testimony of

Jablonowski and Beers indicating previous machinists ties).

The disenchantment of the electricians, according to

electrician Liske a 16 year employee, extended not only

to their employer but also to the Union representatives

and stewards who, said Liske, appeared to be only losing

in the grievance procedure over work previously done

by electricians. Among some of the other disputes that

the electricians lost was the refusal of the machinists to

allow electricians use of certain company tools, for which

Maintenance Manager Jablonowski first gave a promise

to correct but then repudiated under machinists’ pressure

(testimony of electrician Szewczuga); removal of motors

from gear heads (testimony of electricians Liske and

Rutz); a matter concerning brackets in July 1977, as to

which Szewczuga said he had persuaded his fellow electri-

cians to refrain from walking out; and lastly, the dispute

over the Filtec work, which precipitated the work stoppage

of November 1, 1977.

The Filtec, an inspection reject device in packaging

to determine the liquid level in containers (see note 2,

supra), was going through a process of replacement in

the plant. The old style, mainly on the bottle lines, uses

an optical system that passes a beam of light through

the bottle and senses the difference in light refraction

to determine the fill level of the liquid. The replacement

style, useable for packaging cans as well as bottles, passes

a beam of radiation through the can or bottle to sense

the liquid level by differentiation of the density. Appar-

A47

ently, the new style Filtec is more electronically oriented

than the old style. The gradual process of replacing

the old with the new had begun when the dispute between

the electricians and machinists erupted at the end of

October 1977.

The installation of the new Filtec system, in various

locations, involved three parts, namely, installing

(a) the totalizer,

(b) the inspection head, and

The work had been divided between the electricians and

the machinists, and, as electrician steward Szewczuga

testified, there had been agreement between the contesting

sides that electricians would install item (a), the totalizer,

and machinists would install item (c), the reject conveyor.

There had been no agreement on installing item (b), the

inspection head.

In October 1977 or earlier, Respondent had e gaged

an outside electrical contracting firm, the McGaw Com-

pany, whose employees are IBEW electricians, to do the

mounting of the inspection heads; and in the last week

in October 1977 McGaw electricians were working on

four units on a dual line for quarts and 12-ounce bottles,

which work included bolting the inspection head to the

floor and insuring that it was level to the conveyor.‘

On October 24, 1977, according to Labor Relations

Manager Paulicivic, the McGaw electricians were told to

stop work, as a result of the machinists’ complaint (with

4 Mectriciens Goowemge, Ruts, end others of Respentunts

electricians testified that Ose bee ae T- A

with, the work being done by the ou

fellow members of their Union.

A48

overtones of a strike threat) that the electricians were

doing the machinists’ work. On October 26, Paulicivic

called a meeting that included electrician stewards,

Szewezuga and Treichel, and two machinist stewards,

White and Lysek, and told them that Respondent had

decided to have the McGaw electricians continue with

the Filtec work assigned to them. Paulicivic claimed, at

trial, that this was merely a temporary decision, but

electrician stewards Szewczuga and Treichel testified they

understood this was a final decision. Paulicivic apparently

contributed to the understanding or misunderstanding of

the electrician stewards by not putting what he said had

been decided in writing, and by asking only the machinist

stewards at the meeting to supply some additional infor-

mation. He testified that Packaging Maintenance Manager

Jablonowski later suggested that he, Paulicivic, get some

further information for the electricians through the project

manager Brockmeyer in order to have the whole old his-

tory; and Brockmeyer came to electrician steward

Szewezuga after the McGaw electricians resumed work

on October 27 and (either inadvertently or intentionally)

perpetuated the misunderstanding concerning the decision

of October 26 by telling Szewczuga that he, Brockmeyer,

was getting “heat” from the machinists and needed some

information from the electricians to tell the machinists.

Szewczuga supplied Brockmeyer with a letter or letters

concerning earlier history.

It was therefore with a reply of surprise that

Szewczuga was told by Paulicivic and Jablonowski on

the morning of November 1, that they wanted a further

meeting at 11 a.m. that morning with him and electrician

steward Treichel and the two machinist stewards to

“clarify” the Filtec decision of October 26. Szewczuga

replied he thought the matter had been clarified on Octo-

A49

ber 26. Nevertheless the meeting was held and Szewczuga

and Treichel attended along with the machinists’ and

management representatives.

At the 11 a.m. meeting of November 1, Szewczuga

for the electricians and White for the machinists were

each handed a paper (exhibit GC-2), which reversed the

October 26th decision, so that installation of the disputed

item (b), the Filtec inspection head, previously awarded

to the electricians, was now awarded to the machinists.

The November 1 decision noted (what had not been in

dispute) that electricians would continue to be responsible

for wiring and adjustments of the inspection head as in

the past, and stated also (what apparently had not been

in dispute) that installation of the totalizer (item (a))

would be done completely by the electricians, and installa-

tion of the reject conveyor (item (c)) would be done

by the machinists except for wiring by the electricians.

Packaging Maintenance Manager Jablonowski told the

four stewards that the decision was final. He and Labor

Relations Manager Paulicivic claimed that both the electri-

cians and machinists representatives responded heatedly,

the electricians because it was unfair to take from the

electricians work they had been doing, the machinists

because they had not also been given the installation of

the totalizer (although there was contradictory evidence

that they had agreed that this item would be done by

the electricians, and Paulicivic conceded that the machin-

ists filed no grievance over the assignment).

Manager Jablonowski testified that in the course of

the discussion electrician Szewczuga said, it looks like to get

anything here you have to be a rabble rouser. Jablonowski

said he replied, don’t go using self-help, you have a griev-

ance procedure to follow. Szewczuga did not recall any

reference to “rabble rouser.” He was quite clear in his

A50

testimony that he made no threats. In this regard,

Jablonowski’s further testimony was corroborative of

Szewczuga, Jablonowski saying that he did not feel the

rabble rouser remark was a matter of concern or that it

indicated trouble, and that it was typical of remarks made

in this and other meetings.“

Indeed, after the meeting ended at about 11:30 a. m.,

both Managers Jablonowski and Paulicivic went off to

lunch, as they testified, without any foreboding of trouble,

particularly interruption of work, at the plant.

D. The Work Stoppage

Following the forenoon meeting of November 1 on

the Filtec installation assignments, electrician stewards

Szewczuga and Treichel proceeded to the electric shop

in north building 29 and telephoned the results of the

Filtec meeting to Union Business Representative Henry

Carrera. In essence they reported that Respondent had

reversed its earlier decision of October 26 on electricians

installing the Filtec inspection head and awarded the work

to the machinists. According to the two stewards, Carrera

said he would see what he could do about it. Carrera

testified that he also told them that it looked like another

jurisdictional dispute under the contract with Respondent,

as in the electric forklift case, and he would look about

for someone to argue the case for the electricians.

The two stewards decided that each would go back

to his own shop for lunch but rejoin and see electrician

steward Ted Collins in the south brewing department

for any ideas he had, as a result of his participation in

A51

the most recent contract negotiation, for preparing or

dealing with the Filtec grievance, and that if there was

any need Treichel would be in touch with Carrera.

The Walkout from South Packaging

Leaving steward Szewczuga, steward Treichel went

from north building 29 across the street to the electric

shop on the first floor of south building 60, found no one

there and went to the second floor lunchroom, From

his testimony, it appeared that he found a good number

of his fellow electricians and, eating his lunch, told them

of the new and changed Filtec decision by Respondent

and that Union Representative Carrera was going to work

on it. He got an angry response, his fellow employees

asking, why did they come out on the short end when

he represented them, demanding that the Union tell them,

got in touch with the plant’s Industrial Relations Depart-

ment (IRD) to try and stop them; and added, as Treichel

described it, if he couldn’t hold them there to keep them

together as a group if they were coming down to the

Coming back to his electricians, said Treichel, the senti-

ment appeared to be growing for going down to the Union

hall. He testified that he told them it was the wrong

thing to do, that Hank Carrera was going to work on the

matter.

Steward Treichel put a call in to steward Szewczuga

and learned that he had been getting the same angry re-

action from his electricians but no indication of any action

yet and, as prearranged, both decided to see steward Collins,

and they met him briefly in south building 15 at or near the

first floor electric shop, which services the south brewing

department. As Collins related, they told him of the Filtec

decision, that their fellow electricians were up in arms

and ¥ ted to go to the Union hall, that this would be

contrary to the Union contract, and they didn’t want this

to happen. Szewczuga and Treichel asked Collins if there

were any things in the recent contract negotiations or

terms that would help in preparing a grievance, but the

three quickly decided it would be best to let the machinists

start the work and then file a grievance. The meeting

was brief, and Szewczuga and Treichel departed for their

buildings.’

Steward Treichel testified that when he returned to

the electric shop in south building 60, he found that a con-

sensus of his colleagues had hardened against his view

that they stay, that they would not listen to him but were

determined to leave for the Union hall, and began moving

out of the electric shop to pack away their tools and change

to street clothes. Treichel then sought out Supervisor

Orville Witt, in his office, and told him that the electricians

A53

of the building 60 shop were determined to go to the Union

hall and that he, Treichel, had to go with them. Treichel

then went back to the electric shop, still in his work garb,

punched out (the clock is in the shop), but did not leave,

instead went to the locker room to change to street clothes.

He said he told the men there, who were dressed to leave,

that if they were going to the Union hall to stay together.

He did not, said Treichel, direct anyone to stop work or

to leave the plant.

Treichel testified that he then went back to the electric

shop and, after his colleagues punched out and left, he

followed behind them, Electrician Roland Liske immedi-

ately preceding him.

In connection with the foregoing testimony, two elec-

tricians who were part of the crew in south packaging testi-

fied. They were Roland Liske and Carl Rutz.

Electrician Liske testified that he had been in the

second floor lunchroom of south building 60 starting at

11:30 a.m. and left for the first floor electric shop before

(as he discovered later) steward Treichel had come into

the lunchroom. When Treichel came into the electric

shop at or shortly after noon and discussed the Filtec

decision, it was then Liske’s impression that this was

Treichel’s first communication of the Filtec decision to the

electricians in south packaging.

Liske testified that Treichel informed the employees

present that the company had reversed its earlier decision

and given the machinists the installation of the inspection

head previously performed by the electricians. According

to Liske, the men accused Treichel and the Union of not

doing enough. Some said the company had waited till

the Union contract was ratified the previous day, October

31, before announcing the Filtec decision because there

A54

had been a rejection of the company contract offer prior

to October 31. Others said the company had been knuckl-

ing under to the machinists. Liske felt as did others, he

said, that going the legal route of grievance and arbitra-

tion was futile. Further, he was in agreement with the

suggestion (which he said he did not make) of “hitting the

bricks” (walking out). Liske testified that Treichel did

not suggest the walkout or support the decision in favor

of it, nor was there anything that Treichel said that in-

fluenced him to leave work on November 1.

Electrician Liske further testified that after he changed

to street clothes and was on his way from the locker room

heading to clock out, he was stopped by his Supervisor

Orville Witt and Unit Manager Ed Beers, who ordered him

to go back to work, or be subject to discipline including

discharge. Liske replied, the men were going to the Union

hall to get the Filtec matter resolved and went down the

stairway and punched out with his fellow employees. He

also testified that he did not obey the supervisor’s order

to return to work because his fellow employees were going

to the Union hall and so was he, that the decision to dis-

obey was his own and that there was no threat of Union

discipline if he did not walk out. Further, he was aware

that some electricians stayed on and that there was no

Union action taken against them.

Electrician Carl Rutz testified, as did Liske, that it

was normal practice for the stewards to inform the elec-

tricians of decisions by management. However, he said

he was not present when steward Treichel communicated

the Filtec decision to his colleagues, having been working

on a breakdown in shipping just before noon of Novem-

ber 1, but he learned of the decision from several of the

men as he came into the south building 60 lunchroom just

after 12 noon. Steward Treichel was not there. Rutz

in about 25 minutes of discussion in which the group

cided to leave to go to the Union hall. There was

indication, said Rutz, that Treichel had suggested they

leave, and it was clearly not Treichel’s decision, nor the

no-strike clause in the Union contract and that by leaving

work he could be subject to discipline including discharge.

Rutz further testified that he went to put away equip-

ment he had been working with in the shipping area and

his tools before coming to the locker room to change

clothes, and found most of the men changing or already in

street clothes. Steward Treichel came in in his work

clothes and changed and, following the other men, went

downstairs with Rutz to the electric shop. Rutz went to

the timeclock and punched out, but Treichel bypassed the

clock telling Rutz he had already punched out before

coming up to change clothes.

Unit Maintenance Manager Ed Beers testified that he

accosted several of the electricians as they were about to

punch out or go out. He said he told electrician Roland

Liske to return to work and that Liske replied he could

not. Beers said he ordered electrician Greg Nowacki to

return to work, but that Nowacki refused and answered

that he was concerned with peer pressure, that he had to

work with his fellow employees.

Steward Treichel testified that he was the last of his

group to leave the building. Unit Maintenance Manager

Ed Beers followed and called to the retreating figures to

A56

come back. Apparently Treichel, Liske, and Rutz heard

him, but only Treichel stopped and returned to talk to

Beers. According to Treichel, Beers asked what was

happening, and Treichel replied he was going to the Union

hall with the men on Union business. Beers told him, if

he and they didn’t come back, all were risking discipline

including discharge. According to Beers, Treichel an-

swered, I know but we can’t. Beers said there are es-

tablished procedures for handling the problem, and, ac-

cording to Beers, Treichel answered, not for us Ed.

Treichel testified he did not recall saying that or what

if any comment he made to the reference to procedures.

In any event, according to Treichel, the conversation ended

with Beers saying, I wish you’d come back, and Treichel

answering, I wish I could. Treichel rejoined the others

and went to the Union hall.

The Walkout from North Packaging

As already noted, after 11:30 am. on November 1,

following telephone notification of Union Representative

Carrera by Union stewards Treichel and Szewczuga of

the Filtec decision, the two stewards separated. Treichel

returned to his south building and to its lunchroom,

and Szewczuga went to the nearvy lunchroom in his area,

on the third floor of north building 26 not far from the

third floor electric shop in the adjacent north building 29.

A group of Szewczuga’s fellow electricians were there

having lunch and asked the result of the 11 o’clock meeting

on the Filtec. Szewczuga told them that the company

had reversed the prior decision on the inspection head

and given the installation of it to the machinists.

As Szewczuga testified, the men were irate, accused

the stewards and the Union of not doing their jobs, and

asked what are you fellows doing to represent us.

457

Szewczuga answered, they were doing the best they can,

that Union Representative Carrera knew of the decision,

and would take proper action.

Approximately 5 minutes after he arrived in the lunch-

room, Szewczuga was called to take care of a breakdown

of the Filtec on a can line which was in a part of his work

area, one floor below in north building 26. He went to do

the work, leaving on the table the copy of the written

decision given him in the 11 am. meeting. He did the

repair (of a Filtec not rejecting partly filled cans) in about

5 minutes, watched it for about 10 minutes to see that it

worked properly, then returned to the lunchroom just a

few minutes before 12 noon. The men were gone, and

he picked up his lunch pail and went on to his electric

shop in north building 29. He found the men discussing

and arguing about the written Filtec decision he had left

in the lunchroom.

Steward Treichel called from south packaging, and

he and Szewczuga exchanged information on the angry

reactions each was getting from his colleagues, and agreed,

as prearranged, to meet and talk to steward Collins in

south brewing building 15. Szewczuga told his fellow

electricians he was going across the street to join Treichel

in talking to Collins about any help they might get out of

the recent contract negotiations.

From the brief meeting with Collins and Treichel (al-

ready discussed above), steward Szewczuga came back to

the north side, and apparently went directly to his work

station. Szewczuga testified that at about 12:40 p.m., he

received a page call, picked up the phone and an uniden-

tified voice told him, we're going to the Union hall and

we want you to come down too, and hung up. Szewczuga

immediately headed for the electric shop on the third

floor of building 29.

On his way there, said Szewczuga, he passed Elec-

trical Supervisor Gary Grande and alerted him (as the

first supervisor he had seen, according to the testimony

of Supervisor Grande), that it appeared that Szewczuga’s

fellow employees were going to a meeting at the Union

hall. Arriving in the electric shop, Szewczuga said, he

found some of the men already in street clothes. He told

the men it would be best if they stayed and tried to re-

solve the matter, and asked that they at least wait till

Union Representative Carrera could do something, such

as file a grievance; but the response he got, said Szewczuga,

was that they were not ready to believe in grievances at

this point after the experience with the electric lift trucks

and other lost grievances, and now being deprived of the

Filtec assignment on the day after they ratified the Union

contract.

Electrician Ken Entringer, who was stationed on the

north side for temporarily doing work in south side pack-

aging, spent about 15 minutes in the noon period meetings

of the north side electricians in the lunchroom and electric

shop when steward Szewczuga was not there. Entringer

testified that the electricians spoke angrily of being used

as “pawns” of the company by a seeming grant of the

work on the Filtec inspection head before they ratified

the Union contract with Respondent, and taking it away

the day after the electricians ratified the contract; and

they spoke of their exasperation with not only the com-

pany, but also with the Union and the stewards. There

was talk of “let’s hit the bricks” (walk out) and go to the

Union hall, and by the time he left the meeting, said En-

tringer, there was close to a unanimous consensus to go

to the Union hall.“ Further, he said, there was no arrange-

ment by the men with the stewards to leave concertedly.

8. Steward testified that four of the

88888888 walkout, and that he had said noth-

ing to them or they to him.

250

Electrician Entringer testified that he went back to

his work station on the south side to put away his tools,

then came back to north side to the locker room to change

to street clothes, then to the electric shop for his lunch

box, and encountered steward Szewczuga for the first time

that day. When Szewczuga asked Entringer where he was

going, he replied, flippantly, look out the window and, with-

out giving Szewczuga time to say more, left. Entringer

testified that he was aware of two electrical supervisors,

Fry and Grande, who had appeared and were attempting

to give orders to return to work; and he knew he should

have returned to work and knew of the contract prohibition

against walkouts. Entringer punched out (the timeclock

was in the electric shop), and testified that he was the

first of his section to leave the plant and that Szewczuga

was the last to come out.

Steward Szewczuga testified that when he realized his

pleas to the men were of no avail, he tried to reach steward

Treichel on the south side by phone for any word on Union

Representative Carrera, and then tried to reach Carrera di-

rectly, both without success. Szewezuga concluded he

should accompany the men to the Union hall, went to the

locker room to change to street clothes, and returned to

the electric shop in order to pick up whatever documenta-

tion he had on the Filtec and to clock out.

While Szewczuga was getting his documents from his

work bench, Packaging Maintenance Manager Jablonow-

ski and Supervisor John Scobie came in and told Szew-

ezuga it would be illegal for the men and him to go out

and that all were subjecting themselves to discipline and

possible discharge. Szewczuga replied that he understood,

but that he could do nothing with the men, they were

angry and were going to the Union hall and wanted their

steward at the Union hall. He testified that he mentioned

A60

some of the causes of anger of which the men had told

him, such as taking away the Filtec assignment after the

electricians ratified the Union contract, and apprehension

that the Filtec would be lost as they lost the electric forklift

truck assignment. Szewczuga then clocked out and went

to the Union hall with his fellow electricians. He testified

that, in his 26 years of employment, this was the first

walkout by the electricians.

Packaging Maintenance Manager Jablonowski testified

that after his return from lunch on November 1, he was

alerted that there might be a work slowdown of the elec-

tricians going on, and Supervisors Grande and Fry came

to him saying Grande had been told by electrician steward

Szewczuga that a Union meeting was in progress. Jablon-

owski called Supervisor Ed Beers to check on the south

side, and himself took several supervisors to the third floor

electric shop in north side building 29. They encountered

employees in street clothes. He asked his supervisors to

go about and remind the employees that they were engaged

in an illegal work stoppage and were subjecting themselves

to being disciplined, and to order them to return to work.

Observing steward Szewczuga gather papers at his

work bench, Manager Jablonowski asked Szewczuga if he

could stop the men, and there ensued the discussion de-

scribed above by Szewczuga. Jablonowski further testified

that Szewczuga gave no direction to any of the employees

to leave, and did not countermand any order by a super-

visor to an employee. Likewise, Electrical Supervisors

Grande, who was among the supervisors directing the em-

ployees to return to work on penalty of discipline including

discharge, testified that Szewczuga did not countermand

or interfere with Grande’s instructions to the electricians.

A61

Stay-In at the South Brewing Department Lunchroom

The 7 first shift electricians in south brewing depart-

ment building 15, of which electrician Ted Collins was one

and also Union steward, were apparently the last of the

three groups of electricians to learn, officially, of the re-

vised Filtec decision on November 1, when stewards

Treichel and Szewczuga, after first informing their respec-

tive groups in packaging, transmitted the information to

steward Collins. Collins also learned of the angry reaction

of the other two groups from the two stewards, and of the

indication, which had already surfaced in Treichel’s south

packaging group, that they were talking of a walkout to

the Union hall.

Collins informed his group, who were in the lunchroom,

of what he had learned. According to Collins they took up

the cry that everything was going to the machinists, be-

cause, it was said, many management people had been

machinists at one time. They said they would go down to

the Union hall to get explanations and action. Collins told

them it was against the contract and rules to leave their

work, but as he testified, his explanation did not seem to

help.

Collins said he decided to go with his group, and went

to his supervisor, Floyd McFadden, electric supervisor for

brewing operations, to tell him what the group had decided,

and that he was going with them to keep order if he could.

Supervisor McFadden immediately called Industrial Re-

lations Manager Feinsinger. Feinsinger took Labor Rela-

tions Manager Paulicivic with him, gathered up Supervisor

McFadden, and together the three management represen-

tatives went into the lunchroom of south building 15. Ac-

cording to Paulicivic and Feinsinger the electricians were

upset, and some were already in street clothes ready to

leave for the Union hall.

Paulicivic testified that he and Feinsinger ordered the

men back to work on penalty of discipline including dis-

charge, telling them they were engaging in an illegal work

stoppage in violation of the Union contract. The men re-

plied, he said, you are violating the contract by giving

away our work as you did in the electric forklift case.

None of the men returned to work. Feinsinger told steward

Collins to call stewards Treichel and Szewczuga, but Col-

lins was unable to reach them.

Paulicivic testified that steward Collins was having a

difficult time in controlling his colleagues, and said so, but

that he was asked to try to hold them in the lunchroom.

Feinsinger called Union Representative Carrera to come

out to the plant in a hurry to stop a walkout, and he ar-

rived in about 15 minutes. Feinsinger then told steward

Collins that Carrera had come to the plant and to hold the

electricians in the lunchroom until the matter was settled.

Collins informed his colleagues that Carrera was now in the

plant, and they stayed in the lunchroom.

When Union Representative Carrera arrived he was

met by Industrial Relations Manager Feinsinger and

Labor Relations Manager Paulicivic, who told Carrera

that there were 7 electricians in the lunchroom who

wouldn’t go back to work and that the other electricians

had lefi the plant. Carrera reproved Paulicivic (as the

latter acknowledged) for not calling Carrera before the

Filtec decision was announced so that he could have talked

to the electricians about it, and then went into the lunch-

room to talk to the 7 men about getting back to work.

Carrera testified that they were in a bad state, complain-

ing of their stewards and of him, saying that when they

“went by the book” on grievance and arbitration in the

electric forklift truck case they still didn't get the work

that was awarded to them in the arbitration, and shouting

A63

let’s get out and join the others. Carrera asked, what

would it take to get them back to work. The response was,

assurances of no reprisal against the employees, including

those who had walked out.

Union Representative Carrera went to consult with the

management representatives. He ended up talking to Cor-

porate Industrial Relations Manager Koenig. Milwaukee

Industrial Relations Manager Feinsinger, and Milwaukee

Labor Relations Manager Paulicivic. They discussed two

matters.

In the matter of the Filtec work assignment, it was

agreed that Respondent would give notice that it was in-

stituting the revised work condition giving the installation

of the inspection head to the machinists, and the electri-

cians’ Union would inform Respondent by letter of an in-

tention to strike on that account, affording Respondent an

opportunity to file a charge with the Board under Section

10(k) of the Act alleging a violation of Section 8(b) (4) (ii)

(D), thereby putting the jurisdictional dispute before the

Board to decide.“

In the matter of discipline of employees for the work

stoppage, there was no clear agreement or promise as

Union Representative Carrera conceded, but rather an in-

dication to him by Respondent’s representatives of what

would likely eventuate. As Labor Relations Manager

Paulicivic said, Carrera stated he didn’t want any of his

people fired. In reply, Corporate Manager Koenig referred

to past practice where he said, the worst that had hap-

pened (when employees resumed work promptly) was a

9. This arrangement was kept. Respondent filed a charge

before the Board under Section (k) of the Act, and the Board

decided the dispute in favor of the machinists. Local 494, In-

ternational Brotherhood of Electrical Workers, 235 NLRB 1550

A64

reprimand and warning, which was put into the offending

employee’s file, and that Koenig did not expect that any-

thing more severe would happen here. (Labor Relations

Manager Paulicivic thought Koenig had been referring to

past situations where employees did not leave the plant

property, but Carrera’s testimony did not indicate that

Koenig had drawn any such distinction.)

With these understandings on two matters, Carrera in-

dicated he would be helped in getting the men back to

work. He called the Union hall and found that there were

17 men there, including the two stewards Treichel and

Szewczuga, and asked that the stewards hold everyone

there till he got back. He then proceeded to the lunchroom,

and, as he testified, explained the arrangement he had

made with the company on the Filtec assignment, and that,

on discipline, management had indicated there would be

no repercussions other than written reprimands and warn-

ings in the employees’ files. According to steward Collins,

the electricians in the lunchroom, apparently were satis-

fied with Carrera’s explanation, particularly that there

would be no discipline for any electrician greater than a

reprimand and warning, and, it being close to quitting time,

agreed to return to work in the morning and checked out.

At management request, steward Collins went across

the street to tell the second shift electricians to start work

and in turn to tell the third shift electricians to start work

when they came in.

E The Return to Work and Respondent’s

Investigation

Having obtained the promise of the brewing depart-

ment electricians to return to work the next day, November

2, Union Representative Carrera hurried from the brewery

to the Union hall where the 17 electricians of the first

shift packaging department were awaiting his arrival. They

had come to the hall in their cars at about 1:30 p.m., and

Carrera arrived about 3:30 p.m., after telephoning from

the brewery and telling stewards Sczewczuga and Treichel

to hold everyone there until he got back.

As several employees testified, there was a good deal

of turmoil and display of temper as the employees awaited

Carrera. According to the testimony, stewards Szewczuga

and Treichel attempted to keep order, but had little to say

otherwise except that when several employees suggested

inviting the second shift electricians to the Union hall both

stewards said it was not a good idea, and it was not done.“

Carrera testified that when he arrived at the Union

meeting hall, the men, other than Szewczuga and Treich«

“jumped” on him with their frustration and anger aud

clamor that they would not go back to work. When he got

the men quiet enough to listen, he said, he explained the

solution he had arrived at with Respondent for resolving

the Filtec dispute under Section 10(k) of the Act, and told

10. , however, one of the proposers of the idea,

electrician Mecha, called electrician Jerome Moss, who was

normally a first shift loyee but worked second shift that

stewards Treichel and Szewczuga spoke in favor of it and

urged that returning to work was the best way to go.

Carrera testified that from what he observed in the three

hours of meeting with these employees he did not gather

that Treichel or Szewczuga had led the employees out of

the plant.

Because he had forgotten to discuss with Corporate

Industrial Relations Manager Koenig the matter of who

would do the installation of the disputed Filtec inspection

head work pending resolution of the jurisdictional issue,

Union Representative Carrera took two of the most vocifer-

ous of the employees (not the stewards) to the telephone

with him and called Corporate Manager Koenig. Koenig

stated that the r »inists opposed any electricians doing

the work even tentatively. including outside electricians

such as McGaw’s employees, and he would therefore try to

obtain interim help for the disputed work from the manu-

facturer of the Filtec or from a millwright company.

The meeting at the Union hall ended about 6:30 p.m.

on November i, with a resolve that the electricians would

return to work November 2.

The second and third shift electricians did not engage

in a work stoppage on November 1, and all shifts were back

to work on November 2 and thereafter.

On November 2, Respondent launched an investigation

of the work stoppage, consisting of interviews of first the

supervisors on November 2 and then the electricians on

November 3. The investigation appeared to have been

largely if not entirely completed on November 3. Labor

Relations Manager Paulicivic was in charge of the investi-

gation and, together with Packaging Maintenance Manager

Jablonowski, who participated in the investigation, made

the effective recommendations for discipline of the em-

A867

ployees who participated in the work stoppage. The rec-

ommendations were approved by Milwaukee Industrial

Relations Manager Feinsinger, then by Resident (Plant)

Manager Mundt, and passed on for adoption and adopted

by Corporate Industrial Manager Koenig and Corporate

Labor Relations Manager Dockery.

Union Representative Carrera and several employees

called attention, in their testimony, to the fact that Re-

spondent withheld announcing the discipline until after

the Union signed its new contract with Respondent on

November 11.

F. The Discipline Including Two

Discharges

On November 15, 1977, without any advance notice or

intimation to the Union or to the electricians, Respondent

announced the discipline it was imposing for the work

stoppage and walkout of November 1.

According to Labor Relations Manager Paulicivic there

were three levels of discipline.

(a) For the 6 electricians who stopped work but

stayed in the lunchroom of south building 15, written

reprimands and warnings in their personnel records and

loss of pay for the 3 hours of lost work. Steward Collins,

who was the seventh electrician with them, was given

no reprimand or warning but was docked for the 3 hours of

lost work.

(b) For the 15 electricians who walked out, suspen-

sions for 3 days without pay and letters of reprimand and

warning in their personnel records.

who walked out with the other 15 electricians, discharge,

A68

because of “participation in and leadership of” the walkout,

exhibits R-1 and R-2.

The announcement was made in a meeting on No-

vember 15 held by Labor Relations Manager Paulicivic

and Packaging Maintenance Manager Jablonowski, to

which steward Collins was summoned first, and then stew-

ards Treichel and Szewczuga. According to the par-

ticipants, concerning the discharges of Treichel and

Szewczuga, Paulicivic read the discharge notice of Treichel,

exhibit R-2 above, and told Szewczuga that the same ap-

plied to him. Collins testified that this was a total sur-

prise and that Treichel asked, for himself and Szewczuga,

are we being fired because we're stewards, and that

Paulicivic replied yes, that because you are stewards you

are supposed to be able to control your men and make

them do what you want them to do.”

At trial, Manager Paulicivic and Jablonowski ex-

plained how they arrived at the judgment that stewards

Treichel and Szewczuga were the “leaders” of the walkout.

Manager Jablonowski testified, that as a result of both

his personal knowledge and participation in the investiga-

tion, he did not know who actually called or started or

steward Szewczuga direct any employees to leave or

of the respecting grievances and work I

credit the testimony of a more disinterested

and because the additional explanations, that

Paulicivic and his colleagues equated “leader-

However, he, Jablonowski, considered both Szewczuga and

Treichel leaders because during his term as maintenance

manager they were always in his office as leaders and

spokesmen of their group of electricians; and, because the

employer put them in the role of carrying messages to

the rest of the electricians, Jablonowski expected them

to report decisions to their fellow electricians and called

them both to the office on November 1 to impart informa-

tion to them on the Filtec that he wanted conveyed to the

electricians. When the two stewards reported to their

fellows that that disputed Filtec work went to the ma-

chinists, they were not misstating Respondent’s position,

employer’s message to the affected employees on the Filtec

dispute he, Paulicvic, assumed that they had done it in

such a way as to cause the walkout.” Indeed, he said, he

some

of the same remarks, them as of the rep-

— — talked at thei

~ „ tat —, -h-b

text. Seren

account of Szewczuga’s and Treichel’s unblemished records as

for 26 years and 12 years, respectively and for 4 years

A70

regarded Treichel and Szewzuga responsible for the con-

duct of the electricians who stayed in at the lunchroom in

south building 15, because they were the only two elec-

trician stewards to whom Respondent disseminated the

decision on the Filtec on November 1. He conceded that

he did not know how the electrician stewards distributed

the decision on November 1. He also conceded that the

machinists representatives were given the same decision

to disseminate to the machinists, and did not know and

had not investigated whether they passed word around

the plant that the electricians had lost again. In this

regard, though Paulicivic claimed to know that the ma-

chinists were uphappy with the part of the Filtec assign-

ment that did go to the electricians (though it was ap-

parently with mutual consent), he admitted that the ma-

chinists filed no grievance concerning the Filtec assign-

ments.

The Union filed grievances on the discipline meted out

to all who took part in the work stoppage, according to

Union Representative Carrera. Several days after No-

vember 15, in a conference of Industrial Relations Manager

Feinsinger and Labor Relations Manager Paulicivic for

Respondent, and Carrera and Union Business Manager

Kruse for the Union, Feinsinger explained the several

grades of discipline. In referring to the more severe

penalty of discharge for stewards Treichel and Szewczuga,

according to Carrera and Kruse, Feinsinger said, the stew-

ards wore the badge and consequently had a greater re-

sponsibility. While Feinsinger disclaimed using the words

“wore the badge,” saying he spoke of leadership of the

walkout, he conceded that in discharging the two men it

was an obvious consideration that they were stewards

and that the whole flavor of his conference discussion

centered on their greater responsibility as stewards. Fein-

A7l1

singer testified that he relied upon and approved the

Paulicivic investigation and recommendations, and it is

clear that he accepted and approved the Paulicivic-

Jablonowski view that equated the stewardship of the two

discharged electricians with leadership of the walkout.

Union Business Manager Kruse and Union Represen-

tative Carrera pointed out that the stewards were not of-

ficers of the Union and were not elected, but were ap-

pointed by the Union representative to serve and served,

without additional compensation or benefits, as go-be-

tweens or means of communication between the men and

the company and between the company and the men. In

this connection the third steward, Collins, testified that

when he heard the management views on stewardship,

expressed in the course of the November 15 discharge

meeting, he resigned as steward; and Carrera testified (as

did several employees) that he has since been unable to

persuade any of the electricians at the plant to serve as

stewards.”

G. Conclusions Regarding Section 8(a) (1)

and (3) Violations

A72

of the Filtec assignment by the contract grievance process,

and urged against a work stoppage when talk of a walkout

to the Union surfaced; but that the employee anger and

protest that put the walkout talk into action was as much

aimed at the stewards and the Union for their apparent

lack of success or inadequacy in holding work assignments

under the contract process, as it was at the seeming favor-

itism shown my [ (sic) by] management to machinists over

electricians. There was thus no evidence that the stewards

were cranking up sentiment for a walkout to the Union

hall or otherwise exerting leadership of the walkout, rather

that after it was apparent that the two groups were going

each steward went along hoping to keep his group orderly.

On its part, Respondent assumed that the two elec-

trician stewards not only led the walkout of the two groups,

but also created the work stoppage of the third group who

stayed in the brewing department lunchroom, because the

two electricians were stewards, and as such had been

handed the Filtec work assignment decision by Respondent

to transmit to the electricians and transmitted it.

Obviously, in discharging employees Treichel and

Szewczuga for leadership of the work stoppage Respondent

acted on an assumption or belief, without foundation

in and contrary to the fact, that employees Treichel

and Szewczuga had performed in a wrongful manner their

Union related and protected function under the Act as

stewards,” in transmitting Respondent’s work assignment

decision to their fellow employees. An employer may not

discharge an employee for even a good faith but mistaken

belief that he was guilty of misconduct while engaging in

protected activity, and such discharge violates Section

14. yo fg RA Yt --—, B—

ee oe ee concerted activities,” General

n 472, 477 (1975), enf’'d 535 F. 2d 1246

(CA. 3, 1976).

A7Z

8 (a) (1) of the Act, N. L. R. B. v. Burnup and Sims, Inc., 379

US. 21, 23-24 (1964).

In connection with disciplining the two stewards for

their actual participation in the illegal walkout, while it is

true that the employer may pick and choose” from among

the offending employees it proposes to discipline including

discharge, it cannot discriminate among such employees on

the basis of union considerations, American Beef Packers,

Inc., 196 NLRB 875 (1972). Here all of the participants

who engaged in the work stoppage were punished by a

three day suspension or less, except Treichel and Szew-

czuga who were discharged because they were stewards

and allegedly had a greater responsibility than other em-

ployees to refrain from, if not deter, such conduct. The evi-

dence was that both stewards did attempt to deter the walk-

out by arguing with their fellows for use of the grievance

procedure and against the walkout. The question reduces

itself to whether their joining their fellows, who had de-

cided to walk out, justified the employer in imposing the

greater penalty of discharge upon the stewards because

they were stewards, in contrast to the lesser penalty on

employee participants who were not stewards.

The Board recognizes that a greater penalty than that

given other participants may be applied to the participating

steward where he actively led and directed the wildcat

strike, Chrysler Corp., 232 NLRB 466, 477 (1977); or sought

to induce employee participation in a contractually pro-

hibited slowdown, Midwest Precision Castings Co., 244

NLRB No. 63, 102 LRRM 1074, 1076 (August, 1979).

However, the Board has held that selecting an em-

ployee for discipline, or imposing upon him a greater pen-

alty than imposed upon others who breached a no-walkout

contract provision, because the employee is a union stew-

ard, is discrimination against the employee on the basis

A74

of his holding union office and violates Section 8(a) (3)

of the Act, Precision Castings Co., 233 NLRB 183, 184

(1977), where the employer selected for suspension, five

employees, who joined a contractually forbidden walkout,

because the five were stewards and supposedly failed to

abide by their contractual obligation to take all reason-

able steps to restore normal operations; Indiana and Mich-

igan Electric Co., 237 NLRB No. 35, 99 LRRM 1111, slip

op. 6-8 (1978), finding that the contractual language did not

constitute a recognition that the stewards (who joined a

walkout after it began) had taken a higher risk than other

employees; and, Gould Corp., 237 NLRB No. 124, 99 LRRM

1059 (1978), holding that the steward, who joined a two

hour work stoppage and was the only employee discharged,

was discharged not for his actions as an employee but

because of his lack of actions as a steward, which the

Board said was a legally impermissible criterion for dis-

cipline under the Act that was not validated by the contract

clause specifying responsibilities of union officers.

The Seventh and Third Circuit Courts of Appeals, re-

spectively, declined to enforce the latter two decisions,

Indiana and Michigan Electric Co. v. N.L.R.B., 599 F. 2d

227, 101 LRRM 2475 (C.A. 7, May 1979); and, Gould Inc. v.

N. L. R. B., F. 2d , 103 LRRM 2207 (C. A. 3, Decem-

ber 1979), and in the course of doing so also expressed dis-

approval of the lead case, above, Precision Castings Co.

The principal disagreement between the two Courts,

on the one hand, and the Board, on the other hand, is the

Court view that selecting the steward for separate, or more

severe discipline (than is applied to other employee par-

ticipants in a work stoppage forbidden hy contract) is not

inherently destructive of protected employee rights under

the Act because the steward is already bound as an em-

ployee, as well as a union official, not to violate the con-

A75

tract prohibition; and the more severe punishment is based

upon breach of the higher responsibility that accompanies

the official status as steward, a breach that makes the

steward’s miscouduct more serious than that of the rank-

and-file, C. A. 7 at 101 LRRM 2477, CA. 3 at 103 LRRM

2210-2211. Both Courts derived from the contractual pro-

‘visions in each case a positive duty upon the stewards to

take steps to terminate the illegal work stoppage (in Gould,

provisions binding the union officers and representatives

to take steps to cause the illegal activity to cease, to re-

fuse to aid such action, and to use reasonable efforts to

terminate such action; in Indiana and Michigan Electric,

provisions that the employees will not be called upon or

A76

However, aside from the question of whether the two

circuit opinions in Indiana and Michigan Electric and Gould

are distinguishable from the case at bar on the contract

issue, it appears that the Board has not yet addressed it-

self to the question of whether it acquiesces in (or declines

to follow) the disapproval by the two Circuit Courts of the

Board rationale in the two cases (as well as the earlier

Precision Castings case). In that state of affairs, I am

obliged under established precedent to adhere to Precision

Castings, Indiana and Michigan Electric, and Gould, as de-

cided by the Board, as the existing Board law not reversed

by the Board or the Supreme Court, Insurance Agents In-

ternational Union, 119 NLRB 768, 773 (1957); Novak Log-

ging Co., 119 NLRB 1573, 1575-1576 (1958); lowa Beef

Packers, Inc., 144 NLRB 615, 616-617 (1963); Nello Pis-

toresi and Son, 203 NLRB 905, 906, n. 2 (1973), notwith-

standing the fact that the case at bar arose in the ter-

ritorial jurisdiction of the Seventh Circuit.

Hence, I am of the opinion that the discharge by Re-

spondent of employees Treichel and Szewczuga, constitut-

ing a greater discipline than that visited upon the other

participants in the walkout and imposed because the two

employees were Union stewards, was discriminatory and

in violation of Section 8 (a) (3) and (1) of the Act. In this

connection it should be noted that the discharges of the two

stewards have actually discouraged all of the remaining

electricians, including the former third steward who re-

signed as steward as a result of the discharges, to decline

to serve as stewards, and has effectively deprived the unit

of its full statutory and contractual right of representa-

tion in matters requiring or calling for the presence or

participation of stewards.

AT77.

Conclusions of Law

1. Respondent’s discharge of employees Szewczuga

and Treichel, from among the 24 electrician employees

who participated in an unauthorized work stoppage on No-

vember 1, 1977, imposed as a greater discipline than was im-

posed upon the other participants because the two em-

ployees were Union stewards, was discriminatory and con-

stituted unfair labor practices in violation of Section

8(a) (3) and (1) of the Act. The discharge, on the further

basis of an unproven accusation or mistaken belief by Re-

spondent that the two stewards were the leaders of the

work stoppage and walkout, constituted further unfair

labor practices in violation of Section 8(a)(1) of the Act.

2. These unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

The Remedy

It will be recommended that the Respondent,

(1) cease and desist from its unfair labor practices;

(2) offer to reinstate employees Szewczuga and

Treichel, and give each backpay from the date of their

discharges, November 15, 1977, said backpay to be com-

puted on a quarterly basis as set forth in F. W. Woolworth

Co., 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up

Bottling Co., 344 U.S. 344 (1953), with interest as pre-

scribed in Florida Steel Corporation, 231 NLRB 651

(1977) % and

(3) post the notices provided for herein.

Upon the foregoing findings of fact, conclusions of law,

and the entire record, and pursuant to Section 10(c) of

16. See generally, Isis Plumbing & Heating Co., 231 NLRB

716 (1962).

A78

the Act there is hereby issued the following recom-

mended: *”

ORDER

Respondent, its officers, agents, successors, and assigns

shall:

1. Cease and desist from:

(a) Discharging employees or discriminating against

them in regard to their hire, tenure, or any term or con-

dition of employment, because of their protected concerted

activities or because they hold union office in the bar-

gaining unit when engaging in protected concerted ac-

tivities.

(b) In any like manner interfering with, restraining,

or coercing employees in the exercise of their rights

guaranteed in Section 7 of the Act.

2. Take the following affirmative action necessary

to effectuate the policies of the Act:

(a) Make employees Ervin Szewezuga and Gerald

Treichel whole, in the manner set forth in the section of

the decision entitled “The Remedy,” for any loss of eorn-

ings incurred by each of them as a result of their dis-

charges on November 15, 1977.

(b) Offer to both of said employees immediate and

full reinstatement to their former jobs, or if the jobs no

longer exist, to substantially equivalent positions, without

A79

prejudice to the seniority or other rights and privileges of

each.

the Board and its agents, for examination and copying,

all payroll records, social security payment records, time-

cards, personnel records and reports, and all other records

necessary to ascertain the backpay due under the terms

of this Order.

(d) Post in the plant at Milwaukee, Wisconsin, copies

of the attached notice marked Appendix. Immediately

upon receipt of said notice, on forms to be provided by

the Regional Director for Region 30 (Milwaukee, Wis-

consin), the Respondent shall cause the copies to be signed

by one of its authorized representatives and posted, the

posted copies to be maintained for a period of sixty con-

secutive days thereafter in conspicious places, including

A80

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL

LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

THE NATIONAL LABOR RELATIONS BOARD HAVING

FOUND, AFTER A TRIAL, THAT WE VIOLATED THE

NATIONAL LABOR RELATIONS ACT:

WE WILL NOT discharge employees or discriminate

against them in regard to their hire, tenure, or any

term or condition of employment, because of their

protected concerted activities or because they hold

union office in the bargaining unit when engaging in

protected concerted activities.

WE WILL NOT, in any like manner, interfere with,

restrain, or coerce employees in the exercise of rights

guaranteed in Section 7 of the National Labor Rela-

tions Act.

BECAUSE the Board found that we unlawfully dis-

charged employees ERVIN SZEWCZUGA and

GERALD TREICHEL, WE WILL offer them their

former jobs, and

WE WILL give each of them backpay with interest

from the time of their discharges, November 15, 1977.

A81

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, Commerce Building - Suite

230, 744 North 4th Street, Milwaukee, Wisconsin 53203,

Telephone (414) 291-3866.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.