Metropolitan Edison Co. v. N.L.R.B.

Decision Date13 November 1981
Docket NumberNo. 80-2588,80-2588
Citation663 F.2d 478
Parties108 L.R.R.M. (BNA) 3020, 92 Lab.Cas. P 13,110 METROPOLITAN EDISON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local Union 563, International Brotherhood of Electrical Workers, Intervenor.
CourtU.S. Court of Appeals — Third Circuit

Anthony A. DeSabato (argued), George A. Burnstein, Kleinbard, Bell & Brecker, Philadelphia, Pa., for petitioner.

Robert G. Sewell, Michael R. White (argued), Attys., N.L.R.B., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., for respondent.

Paul Alan Levy (argued), Alan B. Morrison, Public Citizens Litigation Group, Washington, D. C., for intervenor.

Before SEITZ, Chief Judge, and VAN DUSEN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Metropolitan Edison Company (the Company) petitions for review of an order of the National Labor Relations Board (the Board) finding that the Company violated section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by disciplining two officers of intervenor Local Union 563 (the Local) more severely than rank-and-file members for participating in an illegal work stoppage. The Board cross-petitions for enforcement of its order. This court has jurisdiction under section 10(e) and (f) of the Act, as amended. 29 U.S.C. § 160(e) & (f) (1976).

I.

The Company, a public utility that provides electrical power to customers in Southeastern Pennsylvania, started construction of a two-unit nuclear generating station at Three Mile Island (TMI) in 1968. The construction was still underway in 1977. At that time, over half of the Company's employees were represented by five local unions of the International Brotherhood of Electrical Workers (the Union) under a collective bargaining agreement that took effect on May 1, 1976. Article XI of the agreement provided The Brotherhood and its members agree that ... there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public.

Under prior collective bargaining agreements containing the same provision, members of the Union had violated the no-strike provision four times. On each occasion the Company disciplined the Union officers more severely than its members. The Company justified the disparity in discipline on the ground that union officers, unlike the members, have an affirmative duty to try to end an illegal strike. Twice the Union grieved to arbitration the issue of whether the Company could impose the extra discipline, and twice the Union lost.

The events that gave rise to this dispute occurred on August 30, 1977. Members of the Operating Engineers' Union picketed the north entrance to TMI. Members of the Local, including its president Lang and vice-president Light, refused to cross that picket line. The administrative law judge succinctly described the events on that morning:

Both (Lang and Light) spent the morning of August 30, 1977, seeking to secure removal of the picket line so that their members, who had earlier indicated an unwillingness to cross any picket line, would go to work. Thus, Lang had come to (TMI) early on the morning of August 30, pursuant to a phone call from (the Company's personnel administrator), in which (he) advised (Lang) that there was a picket line which the (Local's) members were refusing to cross and requested him to see what could be done. In the course of their conversations that morning, (the administrator) reiterated to Lang a position taken by the Company a number of times previously that the union officers had a particular obligation to cross the picket line so that other employees would follow. When Lang arrived at the gate he spoke to the Operating Engineers' picket captain, learned the reason for the picket line, and was told that the line would not be removed unless removal was ordered by his business agent. Lang called the business agent. Subsequently, Lang went to the union hall, ... and directed Gene Light to go the Operating Engineers to see whether he could negotiate with them to get them off the bridge. When he returned to the picket line, Lang was again told (by two Company officers) that he had a particular obligation as a union official to cross the picket line. Lang told (one of them) that it was the consensus of the members that they were not going to cross until the picket line came down and he told (the other) that he felt it was better if he stayed out because then he could at least negotiate with the pickets. Gene Light had substantially similar conversations with both (officers).

In the course of discussing what it would take to have the picket line removed, the Operating Engineers' steward told Lang that they would remove the picket line if the contractors ceased using the north bridge.

After Lang related this conversation to the Company's coordinator of services, the Company set up a reserved gate for the contractors' employees at the south bridge, the picket line came down, and the Local's members went to work.

Of the 135 rank-and-file members who refused to cross the picket line, 121 received five-day suspensions, and fourteen who had participated in previous illegal stoppages received ten-day suspensions. Lang and Light each received a twenty-five-day suspension. The Company stated in the written records of its disciplinary action that the harsher discipline for each was justified because in addition to violating the no-strike clause, each had

(failed) as an elected official of (the Local) to demonstrate to the Company, in an objective manner, (his) affirmative duty as an elected officer to:

(a) Make every effort to uphold the sanctity of the Agreement and its established grievance procedures.

(b) Make every bona fide effort to prevent the unlawful work stoppage.

(c) Make every effort, including returning to work (himself), to end the unlawful work stoppage.

The Local filed an unfair labor practice charge, and the General Counsel issued a complaint against the Company. The administrative law judge found that the Company's actions violated section 8(a)(1) and (3) of the Act, and the Board adopted his rulings, findings, and conclusions, although modifying the terms of his cease and desist order. Metropolitan Edison Co., 252 N.L.R.B. 1030 (1980).

II.

An employer may impose greater discipline on union officials if the collective bargaining agreement enumerates specific affirmative steps a union official is to take in the event of an illegal work stoppage and the official has failed to perform those actions. In Gould Inc. v. NLRB, 612 F.2d 728 (3d Cir. 1979), cert. denied sub nom. Moran v. Gould Corp., 449 U.S. 890, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980), this court held that an employer did not commit an unfair labor practice when it singled out from among fifty participants in an illegal work stoppage a union steward for discharge. The collective bargaining agreement contained a no-strike clause, and also required union officials to take affirmative steps to end illegal work stoppages:

In the event of an illegal (work stoppage), the Local and International Union and its officers shall immediately take positive and evident steps to have those involved cease such activity. These steps shall involve the following: Within not more than twenty-four (24) hours after the occurrence of any such unauthorized action, the Union, its officers and representatives shall publicly disavow same by posting a notice on the bulletin boards throughout the plant. The Union, its officers and representatives shall immediately order its members to return to work, notwithstanding the existence of any wildcat picket line. The Union, its officers and representatives shall refuse to aid or assist in any way such unauthorized action. The Union, its officers and representatives, will in good faith, use every reasonable effort to terminate such unauthorized action.

612 F.2d at 730 n.3. The court held that the employer's discharge of the steward did not discriminate against the exercise of protected section 7 concerted activities because the company disciplined the steward not because of his status as a union officer but because of his failure to fulfill the responsibilities imposed on him by the collective bargaining agreement. The court further held that the discharge of the steward for violation of that contractual duty was not inherently destructive of employee rights and thus an unfair labor practice under the doctrine of NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967), because (1) there is no right to strike illegally or to violate contractually imposed duties, and (2) anyone dissuaded from seeking union office by such a rule should be dissuaded if he or she intended to engage in illegal strikes or to violate contractual obligations. Id. at 730-33.

If the collective bargaining agreement requires in general terms that union officials take affirmative steps to end an illegal work stoppage, a union official does not breach that duty simply because he does not take the exact affirmative steps the employer ordered him to take. Only if his actions in complying with that duty are not in good faith does he become subject to greater discipline. In C. H. Heist Corp. v. NLRB, 657 F.2d 178 (7th Cir. 1981), an employer discharged only one out of twenty-five employees who participated in an illegal work stoppage-the shop steward. There was a no-strike provision in the collective bargaining agreement. The court held that the only basis for finding a greater obligation on the steward than on the other employees was a provision that, "The...

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