# Appendix — Miller Brewing Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1009%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 460 U.S. 1098 ## Text No. 81-1054 ERVIN SZEWCZUGA and GERALD TREICHEL, PETITIONERS v. NATIONAL LABOR RELATIONs Ab, RESPONDENT No. 81-1413 MILLER BREWING COMPANY, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT Petitions for Review of an Order of the iF S i i * II looks with disfavor upon motions to file tills of costs out of time. A2 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 1 J iat: 411151 111155 py were. We rent. care 1982) : ote eli er bargaining process has not explicity created higher duties for union officials i tion found. 1113425 1 ů 11 111115 under 29 US.C, $$ 160 (e) & This court has * Miller Appendix (“App.”) at 2. “id. at 35. * Id. at 21-49. A4 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. 12272111 ees ee EU e i eae een ine : ils: Halil 143 1233 Ae tet l At 1111 2 13 Hf 10 1 11 1 11 111311 1411 1 THT i 8 : ; A6 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 A7 833 die 7133 f : 4 ; 11114 HES 1 335 Be 114 alts 10 115 10 0 bs ie 111k if App. at 25. AB 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- AY 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 ; i 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. 5 f E * i : N f 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- N 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 2 tf 7 123 2111157 2313413 8 i Fournelle v. NLRB, 670 F.2d 331 (D.C. Cir. 1982), i i 11 Lili i 32 1 fi 100 N e Al5 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 1112 11100 ie 1 1001 e ie ee Ilie % 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 ; 1 killt 3. BE order. ng 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- if i 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 P= 3433 - 11 nui it 128 . See, e. g., 1 i 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 on t that Miller ‘he whiten on appeal.“ was not to raise it ournelle, present Te have generally suggests to a order is not cumstance within the meaning of section 10 (e) Cir. 1974); NLRB v. objection 1 0 Al 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 i 12 i il i b Hig 1 iy 111 Fel ee 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. 1111 71h Bi 110 43 e challenge elaim that full back that, could two stewards 3 to limit com given simple answer Fanning 82 11111 23771817 HE ee IV. THe STewarpe’ CHALLENGE TO THE BOARD'S ORDER ee ee Se eee 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 Se 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 a 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 (c) the reject conveyor. 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. (c) For the two stewards Treichel and Szewczuga, 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 8 2 8 f a 5 5 72 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. (c) Preserve, and, upon request, make available to 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1009%3A2. Public record. Not legal advice.