Babcock & Wilcox Co.

BABCOCK &r WLCOX CO. 739 Babcock & Wilcox Co. and Alpheus L. Stanford. Case 8-CA-I 1386 May 23, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 6, 1979, Administrative Law Judge John C. Miller issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order. We agree with the Administrative Law Judge's conclusion that the arbitration award respecting the discharge of the Charging Party, Alpheus L. Stan- ford, is clearly repugnant to the purposes and poli- cies of the Act. For the reasons set forth below, we do not defer to the award and, having consid- ered the case on its merits, we find that Respond- ent discharged the Charging Party unlawfully. The pertinent evidentiary facts, as found by the arbitrator, are as follows: On March 10, 1977, Stan- ford, the Charging Party and president of the Union, headed off a wildcat strike by persuading the prospective strike leader not to go ahead with it. Nevertheless, a wildcat strike occurred on March 15, in Stanford's absence. Stanford was out of town, but returned on being notified of the strike and immediately tried to stop it. He persuad- ed the same strike leader to leave, but by this time the strike had gained the support of a sufficient number of employees so that Stanford could not stop it. Respondent sent telegrams to each union officer requesting that the strike be stopped and re- questing a meeting. None of the officers responded. A union member with the Union's printing press in his possession printed a list of grievances which was distributed on the picket line. At a special union meeting held on March 16, the grievances printed on the previously distributed list were aired. After the meeting a telegram was sent to Re- spondent informing it that the officials of the Union had declared the strike to be illegal and unauthor- ized and had requested the members to return to 249 NLRB No. 99 work, but that the members blamed the situation on Plant Manager D. A. Edgecomb. Stanford filed a complaint, containing those grievances pertaining to safety, with the Occupational Safety and Health Administration (OSHA). He also acted as the Union's spokesman, in lieu of an attorney, at an in- junction hearing on March 18 and, according to the arbitrator, failed to attempt to get the employ- ees back to work. Stanford assured the judge, at the hearing, that the Union would hold a mass meeting to order the employees back to work. This meeting, the arbitrator found, was never held.' The strike ended on March 21, 1977. The arbitrator made several additional findings referring particularly to Stanford's activities. He found that, although Stanford persuaded the strike leader to leave on March 15, Stanford did not use his influence to get everyone back to work. Of all the union officers, only Stanford "came forward and he adopted the strike." Here is the arbitrator's peroration of the case against Stanford: Stanford is the President of the local and is primarily responsible for exerting his influence in getting the men to go back to work ... Stanford might have been able to stop the strike . . . if he had shown any determination to do so. He clearly did nothing to stop the strike and instead adopted the strike and sought to prevent the issuance of the injunc- tion. He was the only local union officer who openly supported the strike from March 16 to March 21 when the employees finally returned to work. Nowhere does the arbitrator explain what ac- tions of Stanford's constituted "adoption" and "open support" of the strike, except for his court- room representation of the Union in the injunction proceeding. 2 Aside from these characterizations, the arbitrator made no findings as to Stanford's participation in the strike. On the contrary, the ar- bitrator refused to find that Stanford instigated or conspired in the strike. He found, rather, that after March 15 "the local officers had completely lost control." Nevertheless, the arbitrator described Stanford as being among those whom Respondent selected as being the most active of the strike lead- ers. In his award he characterized strike leaders at one point as those whose "picket line activity was sufficiently outstanding to justify the Company I The arbitrator's finding in this respect is unaccountable. The arbitra- tor had before him the minutes of the meeting in question. The minutes show that 197 union members were present and that they voted to end the strike and go back to work, which they did. The arbitrator gave no indication that the minutes were unworthy of belief. 2 The Administrative Law Judge found the events occurring in the courtroom to be far different from what the arbitrator found. These dif- ferences, however, need not concern us here. Babcock & Wilcox Co. and Aipheus L. Stanford. BABCOCK & WILCOX CO. 739 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusion that these men were primarily reponsi- ble for continuing the strike." It is apparent, as the Administrative Law Judge found, that the arbitrator did not uphold Stanford's discharge on the basis of his actual participation in the strike. 3 He upheld the discharge on two grounds. The first was Stanford's failure or inabil- ity to stop the strike. Reliance on this ground, however, is a direct repudiation of the principle upheld in Gould Corporation, 237 NLRB 881 (1978), where the Board held that union officials may be disciplined on the same basis as other em- ployees for participating in unlawful strikes, but not for their failure to satisfy an affirmative duty to attempt to stop the strike. 4 Significantly, Respond- ent does not rely on this ground of the arbitrator's award before the Board. 5 The arbitrator's second ground was Stanford's "adoption" or "open sup- port" of the strike. As noted, nothing in the deci- sion indicates the evidentiary basis of these charac- terizations except for Stanford's participation as spokesman or representative for the Union in legal proceedings.6 Whether or not this is what the arbi- trator had in mind, he did not base his conclusion that Stanford was one of the most prominent strike a Since Stanford was on leave status at the time of the strike, his fail- ure to go to work during the strike is, in itself, proof of nothing. 4 The arbitrator's reliance on this ground is consistent with his stated understanding of Board law as being that an employer may "discriminate against even the most active union employees for participating in an un- lawful strike." 5 Our dissenting colleague believes that Stanford's failure to stop the strike is, alone, a sufficient basis for discharging him, despite the fact that Respondent does not rely on this failure in justifying having done so. Our dissenting colleague relies on the Third Circuit's decision denying en- forcement in Gould Corporation, supra. Gould Incorporated [sic] v. N.L.R.B., 612 F.2d 728 (1979). The court relied there, however, on an express contractual duty, undertaken by union officers, to take positive steps to terminate illegal work stoppages. The court's holding, whatever its merits, does not control the instant case, where there is no such duty, express or implied. The court's reliance on a passage from its previous decision in Indiana & Michigan Electric Company v. N.L.R.B., 599 F.2d 227 (7th Cir. 1979), further excerpted by our dissenting colleague, is inapplicable to the issue we address here. Indiana & Michigan Electric concerned union officials' active participation in an illegal strike, not their failure to stop it. The full passage quoted by the court in Gould, including portions omitted by our dissenting colleague, negates the implication that the Gould court was ex- panding on Indiana Michigan Electric or reading into it an implied duty to stop strikes. 6 Conceivably, the arbitrator drew on other evidentiary facts he found, although he did not mention them in stating his ultimate findings. These facts are too marginal to constitute substantial evidence that Stanford was one of the most active strike participants. Thus, Stanford attended and, as we know from the record in the Board proceeding, presided at the March 16 meeting at which grievances were aired. The arbitrator found that at this meeting the employees present "adopted" the strike. Howev- er, there is no evidence, either in the arbitrator's decision or the Board proceeding, of Stanford's role, if any, in bringing about this result. The arbitrator stated that Stanford's filing of a complaint with OSHA follow- ing the meeting was "significant." Whatever significance this action had, it sheds no light on Stanford's role in the strike. Finally, the possibility exists that the arbitrator relied on Stanford's supposed failure to call a Ineeting after the injunction hearing to end the strike-a meeting which took place and resulted in ending the strike. For all the reasons stated above, such an omission could not justify Stanford's discharge. activists on any substantial evidence that Stanford's actual participation was at all comparable to the activities of the other discharged employees. In the absence of substantial evidence to support the arbi- trator's finding in this regard, it is not Board policy to defer to such a finding. Illinois Bell Telephone Company, 221 NLRB 989, 991 (1975). 7 For these reasons, the arbitrator's award is repugnant to the purposes and policies of the Act and we shall not defer to it. Turning to the merits of the case, the Adminis- trative Law Judge was justified in concluding on the record before him that Stanford had no signifi- cant role either in the planning or the execution of the strike." Therefore, he properly found that Re- spondent discharged Stanford because of an errone- ous belief that, while engaged in protected activi- ties associated with his office of union president, he had instigated the strike and promoted it within the Union. This finding would make the discharge a violation of Section 8(a)(1) of the Act. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 22-24 (1964). In this light, and since the remedy is the same, it is unnecessary to decide whether or not Respondent also violated Section 8(a)(3), as alleged in the com- plaint. See K-D Lamp Division, Concord Control, Inc., 228 NLRB 1484, fn. 3 (1977). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Babcock & Wilcox Co., Alliance, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommneded Order. MEMBER PENELLO, dissenting: I disagree with the Administrative Law Judge's conclusion, and the majority's adoption of that 7 For this reason, the award fail, t, ineet one of the standards set forth by another panel in Atlantic Steel Company, 245 NLRB No. 119 (1979), sl. op., fn. 2: "The findings are consistent with the record evidence." Fur- ther, we need not engage in any review of the record made before the arbitrator, de novo or otherwise, in order to determine that the arbitrator's conclusions find no support from the evidentiary facts he found. s Inadvertently, the Administrative Law Judge referred several times in his Decision to the testimony of Jerome Loy. Loy did not testify. However, those matters for which the Administrative Law Judge stated he was relying on Loy's testimony were part of the testimony of William Roosa, an associate of Loy in the activities in question. This error in identifying the witness in no way affects the correctness of his findings. Respondent has excepted to certain credibility findings made by the Administrative Lav. Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Prod- ucts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings. BABCOCK WILCOX CO. 741 conclusion, that the arbitration award respecting the discharge of the Charging Party, Alpheus L. Stanford, is clearly repugnant to the purposes and policies of the Act. To the contrary, I believe the award upholding Stanford's discharge is in accord with the principles of Spielberg Manufacturing Company, 112 NLRB 1080 (1955), would defer to that award, and accordingly, would dismiss the complaint in its entirety. Briefly, between March 15 and 20, 1977, employ- ees of Respondent engaged in a strike in violation of the collective-bargaining agreement then in effect between Respondent and Local 3059, United Steelworkers of America. Respondent monitored the strike activities of its employees and, analyzing the information it obtained, placed its employees in several categories with respect to the extent of their participation in the strike. Respondent dis- charged nine employees it found to have been the most active participants. Among these nine was Stanford, the president of the Union. All nine filed grievances which in due course were presented to an arbitrator for resolution. After a hearing at which all parties were fully represented and given opportunity to be heard, the arbitrator dismissed the grievances and sustained the discharges. The arbitrator reviewed all the evidence of the griev- ants' participation in the unlawful strike and found that the activity of each was sufficient to justify discharge. Unlike the others, Stanford was on dis- ability leave at the time of the strike and was not an actual participant in the strike. Thus, the arbitra- tor did not sustain Stanford's discharge on the basis of his actual participation in the strike but on the basis that Stanford did nothing to stop the strike and adopted and openly supported the strike. Stanford then filed a charge with the Board, and a complaint issued alleging that he was discharged because of his protected union activities. The ma- jority concludes, as did the Administrative Law Judge, that the Board should not defer to the arbi- trator's decision and finds merit in the complaint allegation. The majority finds the award repugnant to the Act because the arbitrator "did not base his conclusion that Stanford was one of the most prominent strike activists on any substantial evi- dence that Stanford's actual participation was at all comparable to the activities of the other discharged employees" and because the only other basis of the arbitrator's conclusion-that Stanford was union president and that he failed to stop the strike-di- rectly repudiates the principle of Gould Corpora- tion, 237 NLRB 881 (1978). I believe, however, that the arbitration award is based on a reasonable reading of the evidence presented to the arbitrators and that the result is not wholly at odds with the Act. As indicated above, the arbitrator, in upholding Stanford's discharge, concluded that Stanford adopted and openly supported the strike. That con- clusion has, I believe, a reasonable evidentiary basis including the following four factors: (1) Stanford failed to attempt to get the employees back to work. This shows at least tacit approval of the strike by Stanford. (2) A union meeting presided over by Stanford blamed the strike on the plant manager's "harassing and intimidating practices." This shows support of the striking employees. (3) Stanford acted as spokesman for the Union at an injunction hearing at which "the entire emphasis was placed on trying to continue the strike." This shows active support of continuing the strike. (4) Stanford filed safety complaints with OSHA, which the arbitrator found "significant." The sig- nificance is that, after the strike began, the purport- ed reasons adopted by employees for the strike in- volved safety matters. This shows adoption of the purported aim of the strike. In my opinion, the above factors, although in certain respects individually ambiguous, when taken as a whole, form a reasonable basis for con- cluding that Stanford actively and openly adopted and supported the unlawful strike and, thus, a rea- sonable basis for concluding that Stanford's dis- charge was warranted. Although Stanford's activi- ties in support of the strike were different from the active participation of the others selected for dis- charge, the arbitrator also had, I believe, a reason- able basis for concluding that Stanford's activities were of comparable gravity to warrant his being selected by Respondent for discharge. After all, Stanford did act in several different ways to sup- port the strike by approving the strike, supporting the strikers, supporting continuation of the strike, and adopting the purported aims of the strike. The majority, however, views these factors differently than the arbitrator and, substituting its judgment for that of the arbitrator, concludes that Stanford should not have been included among the discharg- ees. This, I submit, is contrary to the principles of Spielberg deferral. 9 In deciding whether to defer to an arbitration award the Board looks at the evidence presented to the arbitrator. The arbitrator's factual find- ings need not be the same as the Board would find on de novo review involving, perhaps, different evidence, or even as the Board would find on identical evidence. However, in fn. 13 of his Decision, the Administra- tive Law Judge stated, "I may well have reached the same conclusions [as the arbitrator] based on the record in the arbitration proceeding," and that his Decision was based on the record in this unfair labor practice proceeding. Thus, the Administrative Law Judge engaged in just that sort of de novo review which the Board has rejected. See The Kansas City Srar Company, 236 NLRB 866 (1978). believe the majority has also done so. BABCOCK & WILCOX CO. 741 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As Stanford was discharged for committing acts in support of the unlawful strike rather than for failing to act to stop the strike,' ° Gould Corpora- tion, 237 NLRB 881 (1978), is inapposite. Gould, in which I dissented, held that union officials may not be disciplined for failing to attempt to stop an un- lawful strike. In my view, Gould does not prohibit an employer from considering whether an employ- ee who is engaged in an unlawful strike is an agent or official of the union. Stanford was president of the Union and, as such, was a union leader. Thus, when Stanford actively supported the strike, Stan- ford became, by the nature of his position, a lead- ing strike activist. In any event, as indicated above, I dissented in Gould Incorporated v. N.L.R.B., 612 F.2d 728 (3d Cir. 1979).1' I believe the principles set forth by the court would make Stanford's fail- ure to stop the strike, alone, a sufficient basis to warrant discharge and a sufficient basis for Re- spondent's selecting him for discharge. According- ly, I believe that the result reached by the arbitra- tor is not clearly repugnant to the purposes and policies of the Act. I would, therefore, defer to the award and dismiss the complaint in its entirety. "' ' his, however, was a factor indicating Stanford's adoption of the strike Trhe court quoted with approval the follohwing reasons stated i In- diana & Michigan Electric Company v N.L.R.B., 599 F.2d 227, 232 (7th Cir 1q79) Differentiating between union officers and rank-and-file in meting out discipline for participating in a clearly illegal strike did not pe- nalize or deter the exercise of any protected employee right. We be- liese the employer was entitled to take into account the union offi- cials' greater responsibility and hence greater fault, and that the re- sulting differenlt treatment of union officials could not be reasonably considered inherently destructive of employee rights. Thus, although an express contractual duty was a factor in Gould. it is not the operative principle relied upon by the court. The operative prin- ciple is that an employer in disciplining participants in an unlawful strike may differentiate between employees and union officials. Contrary to the implication of the majority, the full lengthy quote, as well as the part I have excerpted, and indeed the whole of the court's decision support this point It is the majority's position which is contrary to the court's deci- sion The thrust of my position on this point is that Stanford's support of the strike amounts to participation in the strike, and that under the princi- ple stated by the court the Employer herein could take into account Stanford's greater responsibility and greater fault in disciplining him along with the most active strikers. I also believe that the opinion of the Gould court generally, although not explicitly, supports my additional position that Stanford's failure to act to stop the strike is alone a sufficient reason to justify his inclusion with the most active strikers, DECISION STATEMENT OF THE CASE JOHN C. MI..ER, Administrative Law Judge: This case was heard in Alliance, Ohio, on October 2, 3, and 4, 1978. The complaint alleges that Alpheus Stanford, union president, was discharged on or about March 27, 1977, because he engaged in union activities or protected con- certed activities, and that said discharge was in violation of Section 8(a)(3) and (1) of the National Labor Rela- tions Act, as amended. On the record in this case, including my observation of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION Babcock & Wilcox Co., herein called Respondent, op- erates a plant in Alliance, Ohio, where it is engaged in the production of tubular products. The complaint al- leges that Respondent annually, in the course of its oper- ations, ships products valued in excess of $50,000 from its Alliance, Ohio, plant directly to points located outside the State of Ohio. Respondent, while denying this mone- tary allegation in the complaint, does admit that as to paragraph 3 of the complaint Respondent is now, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. Irrespective of such denial, and in view of the fact that the Board has asserted jurisdiction over this Respondent in prior cases,' I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Complaint The complaint alleges that Alpheus L. Stanford, presi- dent of Local 3059, United Steelworkers of America, was discharged on or about March 27, 1977, because he engaged in union activities or protected concerted activi- ties, and that said discharge was in violation of Section 8(a)(3) and (1) of the Act. In its response, Respondent admitted that Stanford was discharged on March 30, 1977, but contends that his discharge was prompted by his participation in an illegal work stoppage which was in violation of section 23 of the then-existing labor agree- ment between Respondent and the United Steelworkers of America. B. Contentions of the Parties The General Counsel contends that Stanford neither participated nor instigated the illegal work stoppage, and that, after it occurred, he affirmatively tried to get the employees to return to work. He further urges that an arbitration decision upholding Stanford's discharge is re- pugnant to the purposes and policies of the Act, and that under such circumstances Spielberg Manufacturing Com- pany, 112 NLRB 1080 (1955), does not require deferral to the arbitration decision. Respondent contends that this case is barred by Sec- tion 10(b), the 6-month statute of limitations section of the Act; and that, in any event, the arbitration award of Sidney Lawrence satisfies the standards set forth in Spiel- berg, supra, and warrants deferral to that arbitration deci- sion. I The Babcock & Wilcox Company, 175 NLRB 1003 (1969); Teamsters, Chauffeurs, Warehousemen, Industrial & Allied Workers d Helpers, Local Union No. 920, etc. (Babcock d Wilcox, et al.), 199 NLRB 1171 (1972), BABCOCK & WILCOX CO. 743 C. The Issues2 1. To what extent, if any, did Stanford instigate, par- ticipate in, or adopt the illegal strike. 2. Was the Company's discharge of Stanford based on a mistake of fact as to Stanford's instigation or participa- tion in the strike? 3. If Stanford did not in fact instigate, participate in, or adopt the strike, should there still be deferral to the arbi- trator's decision upholding the discharge, or is such deci- sion repugnant to the purposes and policies of the Act? D. Background Facts3 Stanford was president of Local 3059, United Steel- workers of America, from July 13, 1970, to early 1976. On December 15, 1976, he was reelected president and officially took office on January 12, 1977. Stanford, an employee of some 24 years, was employed in Respond- ent's tubular products plant in Alliance, Ohio. In May 1976, Stanford was placed on disability leave until termi- nated by Respondent effective March 30, 1977, for his participation in the strike. On March 9, 1977, a regular union meeting was held at which a number of safety problems were discussed. The possibility of a strike was not mentioned at this meeting. Following the meeting, employees Jerome Loy and William Roosa discussed safety problems between themselves and decided to do something about it. Loy mentioned that he had the phone number of a Paul Blumberg, and that he had heard that Blumberg had started strikes at other companies. 4 They called Blum- berg's home that evening but failed to reach him, and ul- timately reached him at work early on the morning of March 10. After explaining the safety problems they had, they asked him if he would come down and help shut down the plant. As he was working at the time, he gave them the telephone number of friends who might be able to assist them in shutting down the plant. They followed his suggestion and one of Blumberg's friends agreed to round up others and come down to Alliance that morn- ing. Blumberg was also informed of the arrangements and he himself drove the group of friends to Alliance. At or about p.m. on March 10, 1977, Blumberg phoned Stanford from the Alliance area and informed him that he had received telephone calls from employees about safety problems at the plant and was in town to shut down the plant. Stanford asked him not to do any- thing and told Blumberg to meet him in a parking lot in downtown Alliance. Stanford and Blumberg met and en- gaged in a heated exchange about shutting down the I2 find no merit in Respondent's contention that this proceeding is barred by Sec. 10(b) of the Act. The charge herein was filed on Septem- ber 26, 1977, and served on September 27, 1977. Respondent's brief con- cedes that Respondent's formal notice of discharge was mailed on March 29, 1977, confirming Stanford's discharge effective as of March 30, 1977. Accordingly, the 10(b) argument is rejected as without merit. 3 Based on the credited testimony of Stanford, Blumberg, Loy, and Zink. 4Paul Blumberg was a union member and an employee of U S. Steel Co. in Cleveland, Ohio The record discloses that Blumberg was an ac- tivist on behalf of many causes and was one of the leaders of a dissident group of union members. He contributed to the "Steelworker," a newspa- per, and assisted in demonstrations seeking to get Local 3059 out of "re- ceivership" in 1976 plant, with Stanford stating a shutdown would screw things up and he needed time to work out the safety problems himself. Blumberg would not identify the em- ployees who had called him, but contended that a major- ity of the employees wanted the plant shut down. Stan- ford told Blumberg to get out of town and Blumberg agreed to leave, but informed Stanford that he planned to sell the "Steelworker" newspaper at the plant gates and thereafter did so. At 2:30 p.m. that same day, March 10, 1977, Stanford went to the plant to attend a grievance meeting, and, before attending the meeting, he went to the office of the employment manager, John Hoyle, to request retirement. Stanford informed Hoyle that he had received his social security disability award, effective March 4, and could now afford to apply for retirement; he requested retire- ment effective March 14, 1977. Later that afternoon on March 10, employee Loy tele- phoned Roosa and told him that Blumberg stated that Stanford did not want him to shut the plant down, and that Stanford would handle the safety problems. Later that evening Loy and Roosa again called Blumberg and advised him to forget about coming down to the plant at this time. On March 11, Stanford signed his retirement papers at the plant, and, about 5:30 p.m. that same day, Loy tele- phoned Stanford to complain that Foreman Curry did not respond to his complaint that employee Ernie West was in danger of being injured because he was required to use a hand crane to move steel coils instead of a tow- motor. According to Loy, as testified by Stanford, Curry stated that, if a coil fell on a man and killed him, they would write the incident up and get another man to take his place. Stanford called Wagner, personnel manager of Bab- cock & Wilcox, at or about 6 p.m. that evening, and re- lated the incident involving Curry, asked him to check on the matter, and advised him that he was leaving town the next day to visit his brother in Cleveland. At or about 9:30 a.m. on the morning of March 12, Wagner phoned Stanford and stated that the comment attributed to Curry was untrue. Stanford then called Loy and told him Wagner said in effect that Loy was a liar. Before leaving town, Stanford called his son and ar- ranged to be called at his brother's house in Middleburg Heights, Ohio, a suburb of Cleveland. Their arrangement was to ring three times, hang up, and repeat the process as a signal that something had occurred involving the Union warranting Stanford's presence. Stanford did in fact leave for Cleveland on March 12, 1977, where he participated in several rallies on behalf of Ashby Leach. a Vietnam veteran.5 On March 14, Loy and Roosa again discussed the safety situation while at work, and, after picking up two friends to shoot archery, the four men stopped at Stan- ford's home because Gullet, one of the men, had prom- ised to stop by and feed Stanford's pets and turn on a light during Stanford's absence from town. While Gullet was outside feeding Stanford's pets, Loy used Stanford's 5 The record indicates that Stanford prepared his resignation as union president effective April 1, 1977 As a result of the strike, he l ithdrt' his resignation and the membership neer acted ,n it BABCOCK & WILCOX CO. 743 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD telephone to call Blumberg and again asked his help in shutting the plant down. A second call to Blumberg a short time later confirmed that Blumberg and some men would be down the next morning and would meet Loy at a restaurant called Edie & Al's between 4:30 and 5 a.m. The meeting came off as arranged, and employees Loy, Roosa, and Sanders met Blumberg and four friends and thereafter began picketing at the plant gate prior to the 7 a.m. shift's reporting to work." As a result of the picketing, employees refused to cross the picket line and a strike ensued on the morning of March 15, 1977. Stanford received the agreed-upon telephone signal at or about 11 a.m. on March 15 and immediately left for Alliance, arriving there about 12:30. Stanford arrived at the union hall about 1 p.m. and inquired what was going on. He was informed that Blumberg was down at the plant gates and employees were out on strike. Stanford got employee Brownfield to drive him down to the picket line to speak to Blumberg. When Stanford met Blumberg, he asked Blumberg who had called him in, and, getting no names, he told Blumberg that they were going to have a hell of a time trying to straighten the situation out, and told Blumberg to "get his ass out of town." According to Stanford, he returned to the union hall and told employees that the strike was illegal, and they would have to return to work before Respondent would talk about the safety problems. On March 15, 1977, the day the strike began, local union officials bought radio time on a local radio station to advise employees that the work stoppage was illegal and they should return to work. According to Stanford, he also went to the picket line, advising employees that the strike was illegal and urging employees to return to work. On March 16, at a union mass meeting held in Alli- ance, Stanford opened the meeting by informing employ- ees that the strike was illegal and in violation of the con- tract, and again urged employees to return to work. Em- ployees continued to voice their complaints about unsafe working conditions, and it was agreed to draft a letter to Respondent and to OSHA. Stanford was among the list of employees who signed the letter, and it was mailed on March 16. On March 17, a telegram was sent to Respondent on behalf of the Union without the prior knowledge of Stanford. When the telegram was sent, Stanford, accom- panied by employee George Paxson, was meeting with OSHA officials in Cleveland in an effort to get OSHA officials to investigate the safety complaints and convince employees that the problems were being handled and they should return to work. According to Stanford's credited testimony, he first learned of the telegram's con- tents on the evening of March 17 or the morning of March 18 (see G. C. Exh. 5).7 As a copy of the telegram s The record is not entirely clear whether the initial picketing was at the plant gates or whether it was at two intersections located approxi- mately one block from the gates, which had to be passed to get to the plant gates. The record appears to establish that subsequent gatherings of employees and/or pickets were at intersections one block from the plant gates 7 The text of the telegram stated: The officials of Local #3059 U.S.W.A. wish to inform the company that the work stoppage at the B & W Alliance Plant has been de- was to be distributed to employees on the picket line, Stanford signed the copy. He stated that as union presi- dent he felt he should sign the telegram and receive any blame that might result from it. On the afternoon of March 17, Stanford and other local union officials met with Edgecombe, the plant man- ager, who told union officials they had to get the em- ployees back to work before there would be any discus- sions. Later that evening, Stanford went to the Christo- pher Columbus bowling alley, where employees were bowling in the company bowling league, and advised employees to return to work. The employees were ap- parently unpersuaded and some told Stanford in impolite terms "where to go." On March 18, a hearing was held in state court on a company request for an injunction against the strike. Stanford acted as counsel for the local union as the In- ternational Union refused to provide the Local with an attorney. Stanford took the position that the strike was illegal and that the men must return to work. However, he emphasized that he had attempted to get the men back to work, and that they would not return because of complaints about safety. Stanford agreed with the enter- ing of an injunction to end the work stoppage. The court enjoined the strike as a result of the injunc- tion hearing, and Stanford and other local union officials arranged for a mass meeting to be held on March 19, and had announcements made on radio station WFAH about the meeting. Employees at the picket line were also in- formed of the meeting. On Saturday, March 19, a mass meeting of union members was held at the Moose Lodge in Alliance at 9:30 a.m., and Stanford presided at the meeting. Approxi- mately 200 employees, local union officials, and the In- ternational staff representative, Junie Hose, attended. Stanford and other union officials informed the employ- ees that the work stoppage was illegal and they must return to work. When safety violations were again raised by the employees, Zink, the editor of the local union paper, asked the men to return to work so that the union safety committee could try to correct the problems.8 A vote was called for and, upon a voice vote, employees voted to return to work beginning with the evening shift on Sunday, March 20, sometimes referred to as the first shift of March 21. On March 24, Stanford was called and asked to come to the plant. He was taken to Wagner's office where he was met by Shively, union vice president, Laubert, su- perintendent of the inspection department, and Wagner. Stanford was accused of being involved in the work stoppage, and, in accordance with contractual procedure, he was given a 5-day suspension subject to discharge. At dared illegal and unauthorized and have requested the members to return to work. The membership refuses to accept any more of D. A Edgecombe's harassing and intimidating practices. D. A. Edge- combe essentially caused the action which was undertaken by the membership of Local 3059 and its officers hold D. A. Edgecombe, Plant Mgr., responsible for the work stoppage. A. L. Stanford, President of Local #3059 a Zink testified credibly that Stanford had asked him to use his influ- ence and urge the men to return to work BABCOCK &r WILCOX CO. 745 Stanford's request, a disciplinary hearing was set for the following day. At the disciplinary hearing on Stanford held on March 25, Stanford stated that on numerous occasions he had attempted to get the employees to return to work. Wag- ner's response was that he "didn't see you [Stanford] lead them down the street . . . you [Stanford] could have led the people in." 9 On March 28, Stanford was ad- vised by telephone that his suspension had been convert- ed to discharge, effective as of March 30. As a result of the strike, Respondent discharged Stan- ford and eight other employees, with four other employ- ees receiving suspensions of 7 and 14 days and six em- ployees receiving warning letters. The discipline meted out was determined by the degree of participation in the strike. Respondent placed employees into four categories with the nine most active being discharged, the next cat- egory receiving 14-day suspensions, the third category receiving 7-day suspensions, and the fourth category re- ceiving warning letters. Respondent had monitored the strike activities of the employees and, in deciding to discharge Stanford, had a compilation of some eight incidents (discussed in detail at a later point in this Decision) regarding Stanford, which a committee of management concluded warranted his discharge. Respondent contends that on the basis of the above in- formation it was decided to discharge Stanford, and that, following usual procedure, Personnel Manager Wagner issued Stanford a 5-day suspension subject to conversion to discharge for his having participated in the strike. After Stanford and eight other employees were ad- vised of their discharge, they filed grievances under the contract; said grievances were taken to arbitration, and, thereafter, Arbitrator Sidney Lawrence was appointed impartial arbitrator to hear the grievances. The arbitra- tion lasted 3 days, and Stanford and eight other grievants were represented by Steelworkers District 27 staff repre- sentatives. The parties were fully represented and given the opportunity to be heard. Both Respondent and the Union submitted post-hearing briefs. On July 11, 1977, Arbitrator Lawrence issued his decision sustaining the discharges of Stanford and the eight other employees. E. The Arbitration A ward ' Arbitrator Sidney Lawrence, in disposing of the nine grievances filed by the individuals who were discharged in violation of the no-strike clause, stated he was treating all grievances alike and found no extenuating circum- stances with respect to any of those discharged. In his decision, Lawrence stated: The arbitrator will, therefore, be unable to treat each grievant as an individual except that he will take into account any ameliorating circumstances that might exist in each case. Thereafter, at various points in his decision, he made references to Stanford and Stanford's conduct which are repeated herein. G0. C. Exh. 10. 10 G. C. Exh. II. 1. At page 1, paragraphs 4 and 5, he stated: On March 10, 1977, when rumors of a wildcat strike were noted, there were no issues which had come to the surface between the company and the union or among rank-and-file employees. The safety issues which were later alleged as being the cause of the walkout had either been completely correct- ed or had been voiced. Even Stanford agreed that there were no issues because he admitted that he had talked with Blumberg on March 10, 1977, and requested Blumberg not to come to Alliance. I can only assume that if it were not for Stanford's state- ment to Blumberg, the strike would have occurred on March 10, as it was rumored to begin. Again, on March 14, 1977, the Company called in all of the local officers of the union except Stan- ford who was not available, to see if there was some reason for the rumble. Each officer testified and each and every officer agreed that he had no knowledge of any issue that might cause a strike. Each one of them denied being aware of the so- called safety grievances. 2. At page 12, after discussing the picketing on March 15, 1977, he stated: Admittedly, Stanford contacted Blumberg at 2:30 p.m. the afternoon of the 15th and asked Blumberg and his associates to leave. Admittedly, Blumberg agreed and did leave Alliance at about 2:30 p.m. on March 15, 1977. If Stanford had used his influence and if everyone had returned to work at that time, I might have understood this and found a basis to support the picketeers. 3. Again at page 12, in discussing subsequent events, he stated: There was no one with whom it [Respondent] could deal. The officers of the local had denied that there were any issues. None of them except Stanford came forward and he adopted the strike. What could Edgecombe, the Plant Manager, reply to a telegram which stated ". . . the rank and file refused to accept D. A. Edgecombe's harassing and intimidat- ing practices"? Where is there an issue stated over which there could be negotiations? 4. Lastly, at pages 13 and 14, the arbitrator discussed Stanford again, stating: I have reviewed the individual conduct of the nine grievants to determine whether there is any in- dividual whose conduct might merit special consid- eration. Stanford is the President of the local and is pri- marily responsible for exerting his influence in get- ting.the men to go back to work. The Employer at- tempted to subpoena the records of the phone com- pany to show a whole series of phone calls between Paul Blumberg's home phone number and Stan- ford's home phone as representing a conspiracy be- BABCOCK & WILCOX CO. 745_ 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween Stanford and Blumberg to arrange the strike. The Company also tried to subpoena the Mayor of Alliance, Ohio, to show a similar conspiracy. I re- jected this testimony and find that there was no evi- dence to show that Stanford inspired Blumberg and his friends to start the picketing at this Plant. How- ever, Stanford admitted that he knew Blumberg and stopped the picketing on March 10, 1977, and stopped Blumberg's activity on March 15, 1977. However, Stanford might have been able to stop the strike when Blumberg left if he had shown any determination to do so. He clearly did nothing to stop the strike and instead adopted the strike and sought to prevent the issuance of an injunction. He was the only local union officer who openly supported the strike from March 16 to March 21 when the employees fi- nally returned to work. [Emphasis supplied.] From a careful reading of the arbitrator's decision, it is clear that on the facts recited he did not uphold Stan- ford's discharge on the ground that he either personally participated or instigated the walkout, but rather because he subsequently adopted the strike, did nothing to stop the strike, and sought to prevent the issuance of an in- junction against the strike. Finally the arbitrator found that Stanford was the only local union officer to openly support the strike during the period from March 16 to 21, 1977. There were facts develops in this hearing which dif- fered from the arbitration hearing. In the Board hearing, it was established that, although certain phone calls were made from Stanford's home to Paul Blumberg before the strike on March 15, 1977, the calls were made by Loy while Standford was out of town, and that in fact the in- stigation of the picketing and the strike and plant shut- down was the idea of employees by Loy and Roosa. Since the arbitrator had found, in any event, that Stan- ford had not instigated the walkout, the new evidence adduced merely corroborated that finding. Thus, the critical area requiring examination is wheth- er and to what extent Stanford's actions amounted to an "adoption" of the strike, or, stated conversely, what af- firmative actions, if any, did Stanford make to get the employees to return to work? It is necessary, therefore, to determine whether the ar- bitrator's factual findings as to Stanford are supported by the record in this proceeding. If this record supports such factual findings by a preponderance of the evi- dence, then deferral should be made to the arbitration award. If this record does not support such findings, it can be argued that an arbitration decision upholding a discharge of a union president who made reasonable ef- forts to end an unlawful work stoppage would be repug- nant to the Act. F. Stanford's Conduct Before and During the Strike 1. As to instigation of the strike, I credit the testimony of Blumberg, Loy, and Stanford that Stanford was un- aware of the planned shutdown (by picketing) that oc- curred on March 15, 1977, and that he played no role in having Blumberg and his friends come to Alliance to picket and shut down the plant. While Respondent at- tempted to show through subpena of telephone records that several phone calls were made to Blumberg from Stanford's phone on March 14, 1 credit the testimony of Loy that he used Stanford's phone to call Blumberg on the evening of March 14, 1977. I further credit Stanford and Blumberg's testimony that Stanford was unaware of and played no role in having Blumberg come to Alliance on March 15. While the arbitrator also concluded that Stanford did not instigate the strike, this record is much clearer that Stanford played no role in instigating the il- legal strike. 2. As to Stanford's conduct during the strike, the record establishes the following: I credit the testimony of Ray Calladine, Philip Novel- lino, Richard Zink, and Al Stanford that, on numerous occasions after the strike began, Stanford stated that the strike was illegal and urged employees to return to work. Calladine credibly testified that, during the walkout, he congregated with groups of striking employees daily at intersections located a block from the plant, and that Stanford addressed the group on some four to six occa- sions telling them the strike "was illegal, unlawful, and we must return to work." According to Calladine, a bunch of people told Stanford to go to hell. He further testified that Stanford did nothing or said nothing to en- courage employees to stay off from work. Novellino credibly testified that he saw Stanford at in- tersections a block from the plant on four or five occa- sions during the strike, where he talked to the employees as a group telling them that the strike was illegal "and the only way that the Company would even think about talking was for us to be back inside working." He ac- knowledged that he told Stanford to go to hell and used stronger language than that. He also stated that to his knowledge Stanford did not do anything or say anything to encourage employees to stay off from work. Zink, one of those discharged as a result of the illegal strike, credibly testified that on the first day of the strike Stanford came out "and told us what we are doing is wrong and that we are supposed to break it up and go back to work." He further testified that Stanford ar- ranged an emergency meeting to talk to all the guys to get them to go back to work. He also testified that Stan- ford did not say anything to encourage employees to stay off from work, and that Stanford in fact asked his support in getting employees to return to work. The question arises whether Stanford's position of urging employees to return to work was newly formulat- ed; i.e., subsequent to the end of the strike or the arbitra- tion decision upholding his discharge. This question is re- solved in Stanford's favor by the testimony of Gary Wagner, plant personnel manager, who was asked to ex- plain his comment to Stanford at the discharge hearing of March 25, 1977, that "you [Stanford] could have led the people in." Wagner responded that Stanford's discipline was not for failing to lead employes in, and further stated: Mr. Stanford was persisting through this thing [that] he did everything in his power to get people back, and my response was 'Why didn't you lead them BABCOCK &r WILCOX CO. 747 in?' Just a response to his assertion that everything in his power was done. There remains for consideration the reasons Respond- ent utilized or concluded that Stanford's activities during the strike made him a "participant" subject to discharge. They include the following eight items:'' (1) On March 10, 1977, Stanford requested that retire- ment forms be prepared for him effective March 14, 1977. On Friday, March 11, Stanford returned to the plant to sign the forms. (2) Personnel Manager Gary Wagner and other com- pany officials were aware of the close association of Stanford and Steelworkers activist, Paul Blumberg, and the fact that they had participated together in demonstra- tions in the past. Blumberg and others initiated the pick- eting at the plant, and Wagner was told that, during the course of the work stoppage, Stanford and Blumberg communicated by telephone. (3) Stanford was sighted frequently on the picket line during the course of the strike. (4) Stanford never responded to a telegram from Plant Manager Edgecombe which advised him of the illegal stoppage and requested him to advise Respondent of what action he was taking. (5) Stanford made a statement at 8:50 p.m. on March 15 to Employment Manager Hoyle that, although he did not start the strike, he was 100 percent behind the guys, and "the Union was behind the strikers now." (6) Stanford sent a telegram to company officials on March 17, stating the union membership refused to accept any more harassment from Plant Manager Edge- combe, and that Edgecombe was responsible for the work stoppage. (G.C. Exh. 5). A copy of this telegram was signed by Stanford and was distributed to the pick- ets. (7) In response to Mill Foreman Muniz's question asking whether the Union and Respondent were distant in resolving this wildcat strike, Stanford responded that it would be a good idea if Muniz decorated the Christ- mas tree (Resp. Exh. 8). (8) On September 9, 1975 (almost 2 years prior), Stan- ford was given a written warning for threatening to shut the plant down if the Company failed to abide by his views with regard to labor relations. The letter also warned that any future participation in an illegal work stoppage would subject him to immediate discharge. Items I and 2 concern Stanford's request for retire- ment on March 11, 1977, to be effective March 14, 1977, and management's knowledge of the close association be- tween Stanford and Blumberg. While certainly the timing of the request for retire- ment several days before the illegal walkout and the ab- sence of Stanford from the city the day of the walkout raises suspicions that Stanford was or may have con- spired with Blumberg to instigate the illegal walkout, other established facts previously discussed refute such possible theory. Stanford had in fact received on March 7, 1977, a social security disability award, effective March 4, 1977, which prompted his retirement application. Moreover, I I' See Resp. br., pp. 3-5. have credited testimony that Stanford did talk Blumberg out of a potential walkout on March 10 in a conversation in which Stanford stressed that he should be given an opportunity to resolve the safety problems. It is highly unlikely that 4 days later Stanford would have given a green light to an illegal walkout without having an op- portunity to raise the safety problems with management. With the exception of the Curry-Loy incident, there was no evidence in the record that Stanford raised any safety problems with management in the period from March 10 until the strike occurred on March 15. Secondly, Stan- ford had previously been invited to attend rallies in Cleveland on behalf of Vietnam veteran Ashby Leach scheduled for March 12 and 13. Finally, Stanford had previously advised Wagner that he planned to visit his brother in Cleveland while attending the rallies on behalf of Leach. Wagner testified that he was aware of the close associ- ation Stanford had with Blumberg. Apparently, Re- spondent assumed "guilt by association," and concluded that, since Blumberg initiated the picketing resulting in the strike, Stanford must have been a party to such action. Item 3 simply notes that Stanford was sighted fre- quently on the picket line during the course of the strike. Mere presence does not prove participation, and, if Stan- ford sought to break up the strike, the best way was to go to the picket line where the strikers were located. Again Respondent assumed that mere presence meant ap- proval and participation in the illegal walkout. Mere presence there was ambiguous-it is what Stanford did or said while there that would establish his adoption or disapproval of the strike. Item 4 concerns Stanford's failure to respond to a tele- gram from Edgecombe, the plant manager. Whether an oversight in a fast-moving situation or not, the Local Union did send a telegram on March 17, 1977, acknowl- edging the illegality of the strike and requesting employ- ees to return to work, while claiming it was caused by intimidation of employees by Edgecombe. No explana- tion was given at the hearing why there was no immedi- ate response from Stanford. While the failure to respond is unexplained on the record, it does not affirmatively es- tablish Stanford's adoption of the strike in light of the Union's telegram on March 17. Items 6 and 7 are also ambiguous. The union telegram and Stanford's response to Muniz' inquiry about the strike do not establish that Stanford was adopting the strike. The first part of the telegram acknowledged the illegality of the strike and that employees had been re- quested to return to work. Items 5 and 8 are more meaningful. Item 8 concerns Stanford's being warned in 1975 for threatening to shut the plant down. The warning included the statement that any future participation by Stanford in an illegal work stoppage would subject him to immediate discharge. It lends some support to a conspiracy theory. However, if in fact Stanford neither initiated or participated in the 1977 strike, it is not a factor. As to Item 5, Hoyle did not testify in this hearing, al- though his report indicated that Stanford stated "the Union was behind the strikers now." However, guards B A B C O C K & W I L C O X.CO .. 7. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roth and Emery credibly testified to the same effect. It is logical that loyalty to members on strike prompted Stanford's statement. However, the context in which such statement was made is also important. Respondent's Exhibit 15, a note to the file about Stanford written by John Hoyle, Re- spondent's employment manager, stated, in pertinent part: He said he [Stanford] didn't want this [the strike] to happen now either. But since Edgecombe told Shi- vely, Sydor, and Grimes that if the strike came off, Marcus Gullett, Arvile Barker, and Richard Zink would be fired, he was 100% behind the guys. He said the Union was behind the strikers now. He said it wasn't right for Edgecombe to tell Shively, Sydor, and Grimes that. [Resp. Exh. 15, par. 2.] In summary, I find that the conduct of Stanford enu- merated in items 1 and 2 was merely circumstantial in nature, was rebutted, and ultimately was of no weight; that items 3, 4, 6, and 7 were ambiguous and do not show or prove adoption of the strike; that item 5, indi- cating Stanford's (and the Union's) adoption of the strike, must be considered in context;12 that item 8, a former warning in 1975, is insufficient, standing alone, to warrant any conclusion as to Stanford's conduct in this dispute since Stanford had effectively worked to stop an illegal walkout in 1974. In determining to what extent, if any, Stanford adopted the strike, the record must be con- sidered as a whole and not be based on an isolated inci- dent or comment. For example, what, if any, affirmative efforts were made by Stanford to end the strike? As pertinent background I note that the local union had been split by dissension, in part between the rank and file and the local union officials and in part among the union officers themselves. The Local had been under the administration of the International in 1976, and Stan- ford was reelected by a narrow margin in late 1976. I have also considered the testimony of James Puckett, mayor of Alliance, Ohio. While I credit Puckett's testi- mony, his testimony was based on what Stanford told him. The version attributed to Stanford is chronological- ly inaccurate, and appears to reflect Stanford's assess- ment that he and others discharged were the victims or martyrs of the illegal walkout, For example, Puckett tes- tified: He [Stanford] had gone to Cleveland, talked to the State and Federal people. He had secured a petition signed by a number of people at the plant, and no one would do anything. As a result of this, he took the men out. In fact, Stanford talked to Federal officials (OSHA) and a petition was signed after the strike began. Thus, even if Puckett's testimony is credited, it does not repre- sent a factual version of what transpired, but simply rep- 2 simply note in passing that, to effectively influence employees on strike, a union official must demonstrate some impathy with eniployees complaints lest he completely alienate himself from the rank and file and lose all influence in affecting employees subsequent actions. resents Stanford's garbled and exaggerated version in this instance of his role in the strike. I find that, while Stanford's statements to Hoyle indi- cated a partial adoption of the strike, Stanford did in fact continue to stress to employees that the strike was il- legal, and that employees must return to work if safety problems were to be resolved. While the statement made to Respondent may have given Respondent some basis for concluding that Stanford had in fact adopted the strike, the key factor is what position he took in discus- sions with employees. As Stanford was on disability leave at the time of the illegal walkout, it is obvious that Respondent did not dis- charge him because he personally refused to work. Stan- ford's participation, if any, concerned either instigating or adopting the strike. I find that the record establishes to my satisfaction that Stanford did not plan or instigate the illegal walkout. I do believe that Respondent viewed Stanford a participant because of circumstantial evi- dence; namely, his applying for retirement at that time and his past association with Blumberg in other demon- strations.13 I do not believe Respondent would have dis- charged him solely for the statement that the Union was behind the strikers in the context stated if they had been aware that Stanford had worked to stop the strike and get employees to return to work. Under all the circumstances previously enumerated, I find that Respondent discharged Stanford because it mis- takenly believed he had instigated the strike and was un- aware of his affirmative efforts to end the illegal walk- out. The question still remains, since the contract provided that arbitration awards are final, what justification, if any, exists for not deferring to the arbitration award which upheld Stanford's discharge. G. Whether To Defer to the Arbitration Award14 We begin with a basic presumption that an arbitrator's decision will be upheld if the proceedings were fair and regular on their face; i.e., the parties were afforded a full opportunity to present their respective evidence and po- sitions. The Board has stated that, even though it may have reached a different conclusion if originally consid- ered by the Board, this does not by itself necessarily 1 3 The record establishes a monetary incentive for Stanford's retirement.While on disability leave from Respondent, he received ap- proximately $490 a month. After his social security award for disability, Respondent's sickness and accident benefits (after the first 26 weeks) would pay only that portion of sickness and accident benefits over and above the social security payment. In sum, if Stanford remained solely on the Respondent's sickness and accident plan, he could only receive a total of approximately $490 a month. If Stanford retired, he would get his company retirement and social security disability which would approxi- mate 680 a month. Thus, full retirement would give him approximately S190 a month more. 14 My comments herein are not to be construed as a criticism of the arbitration decision, which I find to be a thoughtful, well-written deci- sion. While some of the exhibits and testimony are similar, I do not know the full extent of the record garnered in the arbitration proceeding since there apparently was no verbatim transcript of the record in that pro- ceeding I may well have reached the same conclusions as the arbitrator based on the record in the arbitration proceeding. My decision herein is based, of course, on the entire record in this proceeding. ---- BABCOCK & WILCOX CO. 749 warrant a reversal of an arbitrator's decision. 5 It ap- pears, however, that the Board will ignore an arbitrator's decision which resulted from a misinterpretation or mis- application of existing law. It also follows that, if there is a gross error in the arbitrator's finding of facts that would in turn affect the conclusion reached, the Board would not defer to such decision."6 Having found that Stanford was discharged for "par- ticipation" in an illegal strike that he neither instigated, participated in, or adopted, a formidable obstacle remains nevertheless; namely, whether it is more important from the standpoint of national labor policy to defer to the ar- bitrator's decision or whether such decision is so repug- nant to the purposes and policies of the Act that such de- cision should be disregarded. What must be balanced here are competing interests. As the Supreme Court has noted, national labor policy favors the use of arbitration in settlement of labor disputes.'7 Thus, upholding an ar- bitration award gives vitality and meaning to the con- tractual and arbitral process. Balanced against this, how- ever, is whether an arbitrator's award which does injus- tice to an individual, here a president of a union local, is so repugnant to the purposes and policies of the Act as to warrant disregard of the award. The fact that Stanford was president of the Local Union and was discharged for "participation" in an il- legal walkout makes it more important, in my view, than if he were simply an individual employee. It is important that a union president, who neither instigated, participat- ed in, or adopted an illegal strike, be protected from dis- charge, just as it would be equally important to uphold his discharge if he participated in or failed to make a rea- sonable effort to get employees to conform to their no- strike agreement. The negotiation of collective-bargaining agreements and the parties' fulfillment of their obligations under such contracts are a basic cornerstone of this Nation's labor policy. It follows that it is necessary to sustain and not undermine that cornerstone by decisions lightly reached. Since I am firmly convinced that Stanford did not insti- gate, participate in, or adopt such illegal walkout, it would, in my judgment, be repugnant to the purposes and policies of the Act to uphold the arbitration award sustaining his discharge. Accordingly, I find that Stanford's discharge was il- legal and violative of Section 8(a)(3) and (1) of the Act. The decision not to defer to the arbitrator's decision in this case has not been lightly taken. I am cognizant of the equally important role that arbitration plays in the Nation's labor policy and in effectuating the policies of the Act. However, I believe that a greater injustice would be done to uphold a decision which I find im- proper and illegal on the record made in this proceeding. I' See United States Postal Service, 241 NLRB No. 192 (1979), a recent decision in which a Board majority denied a petition to review an arbi- tration decision and discussed the application of Spielberg principles. " Illinois Bell Telephone Company, 221 NLRB 989. 990 (1975). " United Steelworkers of America v American Manufacturing Company, 363 U.S. 564 (1960); United Steelworkers of .4merica v Warrior d Gulf Vavigation Co., 363 U.S. 574 (1960); United Steelworkers of America En- terprise Wheel & Car Corp., 363 U.S 593 (1960). CONCLUSIONS OF LAW 1. By discharging Alpheus Stanford for his alleged "participation" in an illegal strike, Respondent has en- gaged in conduct violative of Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since Alpheus Stanford was permitted to retire on dis- ability on March 30, 1977, the normal backpay and rein- statement order is not applicable. Early in the hearing, I questioned why this proceeding was being held if in fact Stanford had voluntarily retired on the basis of disability, and was informed that Stanford had been terminated from his paid position as union president by the Union as a result of the arbitration award upholding his dis- charge. While the Union's constitution and bylaws have not been admitted into evidence, it is probable that the discharge made him ineligible to hold or retain union office. Any remedy directed to Respondent shall be lim- ited to a correction of its records, deleting any references to "discharge" and simply substituting therefore the term "retirement" or "retirement on disability," and a notifica- tion to the Union of such action. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 9 The Respondent, Babcock & Wilcox Company, Alli- ance, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging Alpheus Stanford for his alleged par- ticipation in an illegal strike. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Correct Respondent's personnel or other records pertaining to Alpheus Stanford, expunging any reference thereto to "discharge" and substituting therefor the term "retired" or "retired on disability" whichever may be ap- propriate. (b) Notify Local 3059, United Steelworkers of Amer- ica, and the International United Steelworkers of Amer- ica of the above action and the reasons therefor. is While one may question why, if at all, a complaint was issued in light of the limited remedy available, I can only assume that the principle involved was deemed important enough to warrant this additional litiga- tion i9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes B A B C O C K & W I L C O X C O ~ ~~~~~~~~.7 4 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant premises in Alliance, Ohio, copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge Alpheus Stanford, former president of Local 3059, United Stelworkers of America, for allegedly "participating" in an il- legal strike in view of the finding that he did not instigate, participate in, or otherwise adopt the strike. WE WILL NOT in any other manner, interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL correct all personnel or other records pertaining to Alpheus Stanford, expunging there- from any reference to discharge and substitute therefore "retired" or "retired on disability," which- ever is appropriate. WE WILL notify Local 3059, United Steelworkers of America, and the International United Steel- workers of America of the change of status of Al- pheus Stanford from that of "dischargee" to that of "retired" or "retired on disability." BABCOCK & WILCOX COMPANY