PETITION FOR REVIEW OF ORDER OF THE NATIONAL LABOR RELATIONS BOARD AND CROSS APPLICATION FOR ENFORCEMENT OF THAT ORDER (Case No. 4-CA-8519)
Before Aldisert and Weis, Circuit Judges, and Diamond, District Judge*fn* .
Gould, Inc. (Gould) has petitioned for review of an order of the National Labor Relations Board (Board) in which it held that Gould committed unfair labor practices in violation of §§ 8(a)(1), (3), (4) of the National Labor Relations Act (Act), 29 U.S.C. §§ 158(a)(1), (3), (4),*fn1 when Gould discharged an employee for disciplinary reasons. The Board has filed a cross petition for the enforcement of that order. We have jurisdiction under §§ 10(e), (f) of the Act, 29 U.S.C. §§ 160(e), (f).
The principal question which we must decide is whether it was an unfair labor practice for the employer to single out for disciplinary discharge a union steward who participated with a number of rank-and-file union members in an illegal work stoppage where the steward failed to discharge his contractual obligation as a union officer to take steps to terminate that work stoppage. The Board held that it was. We disagree and, for the reasons set forth below, grant the petition for review and deny enforcement of the Board's order.
The relevant facts found by the administrative law judge (ALJ), affirmed by the Board, and which appear to be supported by substantial evidence, may be summarized as follows. On October 13, 1976, a number of members of Local 12, United Automobile, Aero Space and Agricultural Implement Workers of America (Union) engaged in an illegal work stoppage at Gould's plant in Philadelphia, Pennsylvania. Among those participating in the strike was shop steward James P. Moran.*fn2 At the time of the work stoppage Gould and the Union were signatories to a collective bargaining agreement, Article XVI of which dealt with strikes and lockouts. Section 1 of that Article contained a no-strike clause, § 2 provided that violators of the no-strike clause were subject to disciplinary action including discharge, and § 3, required union officials to take positive steps to terminate illegal work stoppages.*fn3
Following an investigation into the strike, Gould singled out Moran for discharge from among the group of approximately fifty illegal strikers, and the Union responded by filing a grievance. At a fourth step grievance meeting the company stated that it had singled out Moran for discipline because he failed to carry out his Article XVI § 3 duty as steward to attempt to restore order and terminate the work stoppage and also because he had participated in a similar strike some three years earlier. To substantiate the latter claim, Gould cited excerpts from a February, 1976, letter which it had sent to the Union's president complaining, inter alia, of Moran's participation in a 1973 illegal strike. In that letter Gould had also complained of certain other activities of Moran; specifically, his filing of charges against Gould with the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), and the Board itself. With regard to these acts, however, the letter stated that while the company believed that Moran should have first used or exhausted the parties' agreed-upon procedures for resolving disputes, it nevertheless conceded that he had acted within his rights.
The grievance subsequently was withdrawn and unfair labor charges were filed against petitioner with the Board whose General Counsel then filed a complaint against Gould. The complaint charged that in addition to Gould's above-stated bases for selecting Moran for discharge, it was also motivated by his having filed the various charges with EEOC, OSHA, and the Board and was thus in violation of § 8(a)(4) of the Act, which prohibits retaliation against those who file charges alleging labor law violations. The complaint further alleged that one of the company's admitted grounds for discharging Moran his failure to attempt to restore order and terminate the work stoppage was in and of itself violative of the provisions of §§ 8(a)(1) and (3) prohibiting, inter alia, interference with or discouragement of the exercise by employees of their right to organize or join unions.
As to the §§ 8(a)(1) and (3) charges the ALJ found that while as a steward Moran had a greater degree of responsibility than the other strikers under Article XVI § 3, discharging him because he ignored that responsibility was unlawfully discriminatory. In this ruling, the ALJ relied on the Board's decision in Precision Castings Company, 233 NLRB 183 (1977). In that case the Board held that selection for discipline of a steward from among a group of illegal strikers on the ground that he failed to restore order constituted "discrimination directed against an employee on the basis of his or her holding union office (and) is contrary to the plain meaning of Section 8(a) (3)." 233 NLRB 184.
The ALJ also concluded that the § 8(a)(4) charge had been substantiated, finding that Gould's decision to discharge Moran "was affected or motivated, in part, by the fact that Moran had filed charges with or complained to EEOC and OSHA, and also because he had filed a charge with the NLRB."
The Board affirmed the ALJ's findings and conclusions. As to the § 8(a)(4) violation for retaliatory conduct, the Board merely stated that it agreed with the conclusion that the evidence indicated Moran's filing of charges without prior resort to internal union procedures contributed to his discharge. In affirming the §§ 8(a)(1) and (3) violation, however, the Board set forth its reasoning in detail:
Arguing that an individual may be discharged for violating a contract provision while acting in his position as union steward begs the question. Here the steward acted in concert with approximately 50 other employees, but was singled out for discipline solely because he was the steward. He was discharged not because of his actions as an employee, but because of his lack of actions as a steward, a legally impermissible criterion for discipline under the Act, and one which is not validated by a contract clause that specifies the responsibilities of union officers while acting as union officers. The contract is binding between the employer and the union, but does not grant the employer the power to enforce it by discharging union officials. The employer's recourse is against the union entity rather than against the individuals who serve the unit by holding union office. Employer self-help against individual union officials for a union's breach of contract can only undermine the peaceful settling of disputes and clears a path for employer intervention in a union's internal affairs in a way that is specifically barred to unions in the corollary situation by Section 8(b)(1)(B), which prohibits restraint or coercion of an employer in the selection of his representatives for collective bargaining or adjusting grievances. 237 NLRB No. 124, 2-3.
We first consider the law applicable to the §§ 8(a)(1) and (3) violations and begin by noting our prior holding that "strikes carried out in violation of a no-strike provision in a collective bargaining agreement are not protected by the Act, and therefore the discharge of employees who engage in such strikes is not an unfair labor practice." Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 395 (3rd Cir. 1974). Also relevant are Board rulings that an employer need not fire all illegal strikers, but may "pick and choose" which participants will be discharged as long as the basis for so doing is not union related. Precision Castings, supra; Chrysler Corp., 232 NLRB 466, 474 (1977); McLean Trucking Co., 175 NLRB 440, 450-51 (1969). See also NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S. Ct. 490, 83 L. Ed. 627 (1939). And we note, finally, the holding of the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967), that if the discriminatory discipline complained of is so inherently destructive of employee rights there is no need to establish any specific anti-union motivation in order to sustain a § 8(a)(3) violation.
While there may be some question as to the Board's earlier position on the issue,*fn4 in Precision Castings the Board flatly held that the selective dismissal, in and of itself, of a shop steward who participated in and made no effort to terminate an illegal strike constituted discrimination based solely on the holding of union office and, thus, was violative of §§ 8(a)(1) and (3). However, when the Board followed Precision Castings with a similar ruling in Ind. & Mich. Elec. Co., 237 NLRB No. 35 (1978), that ruling was reversed on appeal, Ind. & Mich. Elec. Co. v. NLRB, 599 F.2d 227 (7th Cir. 1979). The Board had ruled that the greater responsibility which ...