Miller Breing Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller Brewing Company and Ervin Szewczuga and Gerald Treichel. Case 30-CA-4468 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELL.O On April 2, 1980, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting 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 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 and to adopt his recommended Order as modified herein.' In reaching his Decision the Administrative Law Judge relied on our prior decisions in Precision Castings Co.,2 Gould Corp.,3 and Indiana and Michigan Electric Co.,4 for support. Respondent's exceptions raised the question of the validity of In- diana 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 opin- ion as placing absolute liability on union stewards and further find that the factual distinctions be- tween 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 viola- tion of a contractual no-strike clause. Five union officials falsely advised 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 em- ployer issued written warnings to the rank-and-file strikers, suspended for I day the three stewards I The Administrative Law Judge recommended that the two discrimin- atees be given backpay beginning with the date of their discharge. No- vember 15. 1977. However, the rank-and-file employees who left the plant were given 3-day suspensions on the same date. Therefore, the remedy is revised to make whole the discriminatees to the extent that the discipline imposed against them exceeded that given to the rank-and-file. The recommended Order and notice are revised accordingly. 2 Precision Castings Company. Division of Aurora Corporation, a wholly owned Subsidiary of Allied Products Corporation, 233 NLRB 183 (1977). 5 Gould Corporation, 237 NLRB 881 (1978), enforcement denied 612 F.2d 728 (3d Cir. 1979). 4Indiana d Michigan Electric Company. 237 NLRB 226 (1978), en- forcement denied 599 F.2d 227 (7th Cir. 1979). who helped to end the walkout, and suspended for 3 days the two officials who took no action to ter- minate the strike. The court reasoned that union of- ficials have a higher responsibility than other em- ployees not to engage in conduct which violates their duties as employees and repudiates their re- sponsibilities as union officials. The court found that the employer's action in disciplining the union officials more severely than the other strikers did not violate the Act because it was "entitled to take into account the union official's greater responsibil- ity and hence greater fault." 5 In the instant case, Stewards Treichel and Szewczuga were informed by Respondent of a work assignment decision which they knew would upset their membership. Their initial response was to contact Union Business Representative Carrera to inform him of the decision, to register their dis- agreement, and to seek his help in investigating methods by which the decision might be reconsid- ered. The stewards agreed that the best course of action was to wait until the newly assigned em- ployees began the disputed work and thereupon file a grievance in accord with the contract procedure. In keeping with past practice, the stewards in- formed their fellow electricians about this most recent decision. However, the angry reaction which this news elicited exceeded their expecta- tions and talk of a walkout began immediately. The employees' anger was directed not only at Respon- dent for its decision, but also at the stewards and the Union for their inability to represent successful- ly 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 restor- ing 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 in- sisted on coming to the union hall, to keep them together as a single group. Following this advice both stewards attempted to convince the employ- ees 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 continued efforts, the employees refused to be pacified. When it became apparent that the em- ployees 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. Thereafter Respondent issued letters of reprimand r Indiana & .Michigant Electric Compay. upra at 232 254 NLRB No. 24 266 MILLER BREWING COMPANY and temporary suspensions to the rank-and-file strikers, but discharged Treichel and Szewczuga for "participation in and leadership of the wal- kout." While acknowledging that it has no basis for believing that either Treichel or Szewczuga incit- ed, suggested, or encouraged the walkout, Respon- dent asserts that Treichel and Szewczuga, by virtue of their union stewardship positions alone, were leaders in the unlawful strike and thereby deserved the harsher discipline. 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 rep- resentative 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 fa- voring 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 Adminis- trative Law Judge's determination that Respon- dent's imposition of more severe discipline on the stewards violates Section 8(a)(l) and (3) of the Act. Contrary to Member Jenkins, the remedy pro- vided herein is fully appropriate and in accord with the traditional 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 im- posed a "greater discipline" (emphasis supplied) on union stewards than that imposed upon rank-and- file employees who also participated in the unpro- tected walkout. In this case, as in Precision Castings and its progeny, the very heart of the Board's ra- tionale is that an employer may not rely on union- related considerations to justify a more severe dis- cipline for stewards. However, an employee's status as a steward does not insulate him or her from the lawful discipline imposed upon all em- ployees. Thus, in these circumstances, the violation directly results from the additional penalty imposed on a steward by an employer. For that violation, a proper remedy must be provided. In the Chairman's view, the remedy advocated by Member Jenkins fails to correlate with the vio- lation found. In this case, inasmuch as the walkout was unprotected, Respondent could and did lawful- ly discipline those employees who participated in the walkout. Thus, to the extent that all electri- cians-including the stewards-who participated in the walkout received a 3-day suspension without pay, Respondent's discipline was lawful. However, Respondent's imposing a greater discipline upon 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 unresolved, 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 Distilling Company6 - cited by Member Jenkins-involved just such a sit- uation. There, an employee, who was also the union president, was suspended for 90 days for vio- lating 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 re- ceived the greater discipline because he was the union president. The case did not involve a group of employees engaging in the same conduct 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 un- certain what penalty, if any, the employee would have received absent union considerations, the em- ployer's entire discipline violated the Act and it was fully proper that the remedy included backpay for the full 90-day suspension. 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 discipline be- cause of their position, the violation found must be that the additional penalty violated the Act and a remedy provided for the discrimination actually suffered. 7 Certainly, in analogous situations, though it is clear that a discriminatory act has taken place, the Board nonetheless limits a remedy to fit the viola- tion. For example, when an employee is discharged or laid off for discriminatory reasons, the make- whole remedy will be limited if it can be shown a 245 NLRB 1148 (1979). ' See, e.g., Westinghouse Electric Corporation, 243 NLRB 306 (1979). 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the employee later would have been terminat- ed or laid off for nondiscriminatory reasons.8 Here, by imposing a remedy which makes whole the dis- criminatees to the extent their discipline was un- lawful, the Board is recognizing the nature and extent of the violation found and fulfilling its func- tion to fashion a proper remedy. 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, as modi- fied below, and hereby orders that the Respondent, Miller Brewing Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a) of the recommended Order: "(a) Make whole Ervin Szewczuga and Gerald Treichel, with interest, for any loss of earnings in- curred as a result of the discriminatory discipline. Said interest shall be computed as set forth in the remedy section of this Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, concurring: I agree with the remedy provided herein, but, in addition, I would order a complete make-whole remedy, providing backpay to Szewczuga and Treichel for the entire length of their discrimina- tory discharges, beginning November 15, 1977. The limited remedy fashioned herein represents an un- warranted 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 ef- fects of the unlawful conduct actually committed is not affected by the fact that a respondent lawfully a See, e.g., Ohio Valley Graphic Arts, Inc., 234 NLRB 493 (1978). In that case, an employer, for discriminatory reasons, accelerated the dis- charge of an employee, whom it would have lawfully discharged 6 days later. In fashioning a remedy, the Board did not order reinstatement. Rather, the Board directed the employee be awarded backpay for the 6 days by which his discharge preceded the date, absent unlawful consider- ations, upon which he would have been lawfully discharged. Thus, the Board precisely tailored the remedy so as to make whole the discrimina- tee only to the extent the employer's action was unlawful. could have imposed less severe discipline upon a discriminatee. A simple illustration demonstrates the folly in- herent in the remedy herein. In a typical disparate treatment case, the prounion employee receives greater discipline for 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.9 Indeed, the Board has applied its traditional make-whole remedial approach in cases similar to the instant case. For example, in The American Dis- tilling Company, 245 NLRB 1148 (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 imposed by that respondent, not for some lesser period over and above that which may have reflected a nondis- criminatory suspension. Thus, it has never been the Board's function to administer discipline fairly for those employers who administer it discriminatorily. If the Board ventures into this area of formulating "appropriate" levels of discipline, its processes will be steeped in an analytical mire of disciplinary sys- tems and efforts to find the appropriate level where nonunion employees are disciplined to different de- grees, all consuming great amounts of time, and re- sulting in arbitrary and unpredictable remedies for discriminatees. Simply stated, if Respondent's con- duct is found unlawful, the Board may not amelio- rate the effects of the unlawful conduct by, in effect, imposing lesser discipline on the discrimina- tees. Accordingly, I would order the traditional make-whole remedy. MEMBER PENELLO, dissenting: Contrary to my colleagues, I would reverse the Administrative Law Judge and dismiss the com- plaint in this case. Once again I must reiterate my continuing disagreement with the majority's con- clusion that it is a violation of the Act for an em- ployer 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.' ° Furthermore, 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 9 See, e.g., Windsor Plastics. Inc., 231 NLRB 1222 (1977). '0 See my dissenting opinion in Gould Corporation. 237 NLRB 881 (1978), enforcement denied 612 F.2d 728 (3d Cir. 1979), and my concur- ring opinion in Midwest Precision Castings Company, 244 NLRB 597 (1979). 268 MILLER BREWING COMPANY cases to be erroneous. ' Inasmuch as I find the ma- jority's attempts to distinguish the facts in this case from those in the Indiana & Michigan case singular- ly 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 disci- plining Charging Parties Szewczuga and Treichel more severely than other employees who partici- pated in the unprotected strike, because as union officials they had a higher duty than other employ- ees 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, violat- ed 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 requests by Re- spondent'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 par- ticipated in the illegal strike. While Szewczuga and Treichel also took some steps to prevent the wal- kout 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 posi- tions 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 under- mining the Union's contractual no-strike commit- ment. For the reasons set forth in my dissenting opin- ion 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 nevertheless breached their primary responsibility as union officials to enforce the con- tract by participating in a strike which violated the no-strike clause of the contract. Therefore, I would find that Respondent acted lawfully in holding them to a higher standard of conduct and disciplin- ing them more harshly than other employees who participated in the illegal strike. Accordingly, I dis- sent. 'L See Indiana & Michigan Electric Company v. NL.R.B., 599 F.2d 227 (7th Cir. 1979), denying enforcement of 237 NLRB 226 (1978). 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 opportu- nity 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 dis- criminate against them in regard to their hire, tenure, or any term or condition of employ- ment, because of their protected concerted ac- tivities or because they hold union office in 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 discriminatory discipline. WE WILL offer to both said employees im- mediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prej- udice to their seniority or other rights or privi- leges previously enjoyed. MILLER BREWING COMPANY DECISION HERZEL H. E. PLAINE, Administrative Law Judge: This case is concerned with the discharge of the Charg- ing Parties, two electrician employees of Respondent, who were stewards for Local 494, International Brother- hood of Electrical Workers, AFL-CIO-CLC (IBEW or the Union), in connection with a wildcat walkout to the IBEW union hall, on November 1, 1977, of most of the first-shift electricians employed at Respondent's Milwau- kee brewery, in contravention of the union contract with Respondent abjuring strikes and walkouts in favor of set- tlement of disputes by the grievance and arbitration pro- cedures of the contract. The work stoppage was of several hours duration. It was a mixed reaction of the electricians to what they re- garded as management favoritism toward Machinist Union (IAM) employees in reversing, on November 1, a prior management decision and awarding to machinists certain Filtec work being performed by electricians, and the seeming inadequacy of their IBEW union representa- tion, under the contract grievance procedure, to hold on to work performed by the electricians. Only the two 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union stewards were punished by discharge. The other participating employees were disciplined by up to a 3- day loss of pay and reprimand in their files. The complaint alleged,' and the General Counsel con- tends, that the discharge of the two stewards was dis- criminatory and imposed on them alone because of their union status as stewards, in violation or Section 8(a)(3) and (1) of the National Labor Relations Act (the Act). Respondent claims that the discharge of the two em- ployees 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 lead- ership in breach of the contract obligation. The case was heard before me on January 15, 16, and 17, 1979, at Milwaukee, Wisconsin. All three parties have filed briefs. Upon the entire record of the case, including my ob- servation of the witnesses and consideration of the briefs, I make the following:2 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- sentative period, Respondent realized gross revenues in excess of $500,000 from its operations and shipped and 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 Act. As the parties also admit, the Union is a labor organi- zation 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 in- volved in this case, is a collection of buildings where beer is brewed and packaged in bottles, cans, and kegs. 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 12 unions. The employees of direct concern were electricians, members of the IBEW (the Union), who constitute a segment of the maintenance force in the brewing and packaging depart- ments. The electricians provided coverage for the brewery's 3 shifts, with about 28 men on the first and predominant shift, and about 6 men each on the second and third shifts. The first shift hours were from 7 a.m. to 3:30 p.m. Most of the buildings comprising the brewery are in groups with some inside interconnections within each I The charge was filed on December 13, 1977. 2 Certain errors in the transcript are hereby noted and corrected. group, but only exterior ingress and egress between the several groups. The main dividing line between the groups is State Street (running east and west) so that the 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 Resp. Exh. 6). A second electric shop is on the first floor of south building 60, sometimes called south bottling, which building, along with south building 61, comprise the south packaging plant (see Resp. Exh. 6). A third electric shop is on the first floor of south building 15, which building is concerned with brewing (see Resp. Exh. 6). 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 serv- ing 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 build- ing 15, the appointed steward was Theodore Collins (re- ferred to as Ted in the testimony), an employee for 22 years and steward for about 3 years. Among the supervisory and management personnel in- volved 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 Paulici- vic reported; Resident (or Plant) Manager Fred Mundt, to whom Feinsinger reported; Corporate Manager of all Industrial Relations Departments Koenig; Supervisor Edward Beers, who was an electrical and mechanical maintenance supervisor in south packaging; and Supervi- sor Gary Grande, who was an electrical maintenance su- pervisor in north packaging. B. The Union Contract Local 494 IBEW (the Union) has represented the elec- tricians employed at Respondent's Milwaukee brewery between 30 and 40 years, according to Union Business Representative Henry Carrera. Carrera had been business representative for almost 10 years at the time of the hear- ing. The latest and current 3-year contract, which is a con- tract of the Union with the Pabst and Schlitz Milwaukee breweries as well as Respondent's Milwaukee brewery, became retroactively effective on October 1, 1977, after 270 MILLER BREWING COMPANY being ratified by the parties on October 31 and signed November 11, 1977,3 and runs to October 1, 1980. The pertinent "no strike" provision of the contract is article IX, paragraph 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 outlined herein, and the Union agrees for itself and its mem- bers that there shall be no strike of any kind, walk- out, slow-down, picketing, stay-in, or work stop- page of any type. Should the Union, or any employ- ee or group of employees violate the provisions of this paragraph, it is mutually agreed that the Em- ployer may impose such disciplinary action against any or all employees involved as it may deem nec- essary, including discharge. 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 Ar- bitration Procedure set forth in this Article IX. C. The Filtec Dispute and Prior Disputes History For years, the electricians, represented by IBEW, and the machinists, represented by District 10 of the Interna- tional 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 forklift trucks used in and about the plant. Although in 1958 the electricians had been awarded the work by Re- spondent involving what was then a very few such elec- tric 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 Man- ager 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, Interna- tional Association of Machinists and Aerospace Workers, District No. 10, AFL-CIO, 222 NLRB 688, 689-690 (1976). This episode, as did others involving contests 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- 3 The prior contract had expired October 1. 1977. hut as extended for another month while negotiations continued. visors, and fostered a belief that management was siding with the machinists. The belief was fed by employee un- derstanding 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 employ- ees Liske, Rutz, and Collins among others, and testimony of Jablonowski and Beers indicating previous machinist 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 the 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 electricians to refrain from walking out; and, lastly, the dispute over the Filtec work, which precipitat- ed the work stoppage of November 1, 1977. The Filtec, an inspection reject device in packaging to determine the liquid level in containers, 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 radi- ation through the can or bottle to sense the liquid level by differentiation of the density. Apparently, 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 electri- cians 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 con- veyor. The work had been divided between the electricians and the machinists, and, as electrician steward Szewc- zuga 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 install- ing item (b), the inspection head. In October 1977 or earlier, Respondent had engaged 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, 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which work included bolting the inspection head to the floor and insuring that it was level to the conveyor. 4 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 overtones of a strike threat) that the electricians were doing the machinists' work. On October 26, Pauli- civic called a meeting that included electrician stewards, Szewczuga 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 the hearing, that this was merely a temporary decision, but electrician stewards Szewczuga and Treichel testified they understood this was a final decision. Paulicivic ap- parently contributed to the understanding or misunder- standing 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 ad- ditional information. He testified that Packaging Mainte- nance Manager Jablonowski later suggested that he, Pau- licivic, get some further information for the electricians through Project Manager Brockmeyer in order to have the whole old history; and Brockmeyer came to electri- cian steward Szewczuga after the McGaw electricians resumed work on October 27 and (either inadvertently or intentionally) perpetuated the misunderstanding con- cerning the decision of October 26 by telling Szewczuga that he, Brockmeyer, was getting "heat" from the ma- chinists and needed some information from the electri- cians to tell the machinists. Szewczuga supplied Brock- meyer with a letter or letters concerning earlier history. It was therefore with a reply of surprise that Szewc- zuga was told by Paulicivic and Jablonowski, on the morning of November 1, that they wanted a further meeting at 11 that morning with him and electrician ste- ward Treichel and the two machinist stewards to "clari- fy" the Filtec decision of October 26. Szewczuga replied he thought the matter had been clarified on October 26. Nevertheless the meeting was held and Szewczuga and Treichel attended along with the machinists' and man- agement representatives. At the 11 a.m. meeting of November 1, Szewczuga for the electricians and White for the machinists were each handed a paper (G.C. Exh. 2), which reversed the Octo- ber 26 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 dis- pute) 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 instal- lation 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 4 Electricians Szewczuga, Rutz, and others of Respondent's electri- cians testified that they had no objection to, or problem with, the work being done by the outside electricians who were fellow members of their Union. Relations Manager Paulicivic claimed that both the elec- tricians and machinists representatives responded heated- ly, the electricians because it was unfair to take from the electricians work they had been doing, the machinists be- cause 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 machinists 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." Jab- lonowski said he replied, "Don't go using self-help, you have a grievance procedure to follow." Szewczuga did not recall any reference to "rabble rouser." He was quite clear in his testimony that he made no threats. In this regard, Jablonoski's further testimony was corroborative of Szewczuga, Jablonowski saying that he did not feel the rabblerouser remark was a matter of concern or that it indicated trouble, and that it was typical of remarks made in this and other meetings. 5 Indeed, after the meeting ended at or about 11:30 a.m., both Managers Jablonowski and Paulicivic went off to lunch, as they testified, without any foreboding of trou- ble, particularly interruption of work, at the plant. D. The Work Stoppage Following the forenoon meeting of November I 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 electri- cians. The two stewards decided that each would go back to his own shop for lunch but rejoin and see electrician ste- ward Ted Collins in the south brewing department for any ideas he had, as a result of his participation in the most recent contract negotiation, for preparing or deal- ing with the Filtec grievance, and that if there were any need Treichel would be in touch with Carrera. I. 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 I Labor Relations Manager Paulicivic was careful to point out that in the meeting neither electricians nor machinists used the term work stop- page, and that when they referred to "trouble," as a result of the assign- ment, they were talking of being extremely unhappy, not a work stop- page. 272 MILLER BREWING COMPANY 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, and asserting that they were going down to the Union to find out. The discussion and participants moved to the electric shop now involving most of the electricians at- tached to the shop. Treichel managed to call and reach Carrera again at the union hall and told him the men were talking of leaving and coming down to the union hall on account of the Filtec decision. Carrera counseled Treichel that Treichel should try to hold the men there while Carrera got in touch with the plant's industrial re- lations department (IRD) to try and stop the employees; and added, as Treichel described it, that if he could not hold the employees there to keep them together as a group if they were coming down to the union hall. 6 Coming back to his electricians, said Treichel, the sen- timent appeared to be growing for going down to the union hall. He testified that he told them it was the wrong thing to do and 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 ste- ward 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 electri- cians were up in arms and wanted to go to the union hall, that this would be contrary to the union contract, and that they did not 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 Szewc- zuga and Treichel departed for their buildings. 7 Treichel testified that, when he returned to the electric shop in south building 60, he found that a consensus of his colleagues had hardened against his view that they stay, that they would not listen to him but were deter- mined to leave for the union hall, and that they 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 of the building shop 60 were determined to go to the union hall and that he, Treichel, had to go 6 Union Representative Carrera testified that he tried to reach Labor Relations Manager Paulicivic and his assistant Olsen and learned they were out to lunch, was told that IRD Manager Feinsinger was also out, and, after leaving a message for Feinsinger to call him, went out to lunch himself. When he got back to his office just before I o'clock. Carrera got a call from Feinsinger to come to the plant at once and help deal with a chaotic situation of people leaving. He complied and arrived, he said, in about 15 or 20 minutes. 7 Electrician steward Collins thought that his discussion with the other two stewards was by a joint telephone call from both, but the others were quite clear it was a personal meeting, and I credit their testimony There was no disagreement among the three as to what was said 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 and 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, Treichel said, 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 testified. 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 de- cision, it was then Liske's impression that this was Trei- chel'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 deci- sion and given the machinists the installation of the in- spection 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 until the union contract was ratified the previous day, October 31, before announcing the Filtec decision because there had been a rejection of the company con- tract offer prior to October 31. Others said the Company had been knuckling under to the machinists. Liske felt as did others, he said, that going the legal route of griev- ance and arbitration was futile. Further, he was in agree- ment with the suggestion (which he said he did not make) of "hitting the bricks" (walking out). Liske testi- fied that Treichel did not suggest the walkout or support the decision in favor of it, nor was there anything that Treichel said that influenced him to leave work on No- vember 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 Su- pervisor Orville Witt and Unit Manager Ed Beers, who ordered him to go back to work, or be subject to disci- pline including discharge. Liske replied that the men were going to the union hall to get the Filtec matter re- solved, 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 be- cause his fellow employees were going to the union hall and so was he, that the decision to disobey was his own, and that there was no threat of union discipline if he did not walk out. Further, he was aware that some electri- cians 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 electri- 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cians of decisions by management. However, he said he was not present when steward Treichel communicated the Filtec decision to his colleagues, having been work- ing on a breakdown in shipping just before noon on No- vember 1, but he learned of the decision from several of the men as he came into the south building 60 lunchroom just after noon. Steward Treichel was not there. Rutz said the men were saying "nasty" things, expressing dis- gust with the stewards, saying that they could not get their stewards to do anything, and saying it was time that the men themselves did something. He said he par- ticipated in about 25 minutes of discussion in which the group decided to leave to go to the union hall. There was no indication, said Rutz, that Treichel had suggested they leave, and it was clearly not Treichel's decision, nor the decision of steward Szewczuga who was stationed on the north side, that the men leave their work to go to the union hall. Rutz testified that he was aware of the no- strike clause in the union contract and that by leaving work he could be subject to discipline including dis- charge. 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 and 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 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 that if he and they did not come back all were risk- ing discipline including discharge. According to Beers, Treichel answered that they knew this but they could not come back. Beers said that there were established procedures for handling the problem, and, according to Beers, Treichel answered, not for us Ed. Treichel testi- fied that 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 that he wished Triechel would come back, and Treichel answering that he wish he could. Treichel rejoined the others and went to the union hall. 2. The walkout from North Packaging As already noted, after 11:30 a.m. on November 1, fol- lowing 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 60 and to its lunchroom, and Szewczuga went to the nearby lunchroom in his area, on the third floor of north building 26 not far from the third floor electric shop in the adjacent north build- ing 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 inspec- tion head and given the installation of it to the machin- ists. As Szewczuga testified, the men were irate, accused the stewards and the Union of not doing their jobs, and asked the stewards what they were doing to represent them. Szewczuga answered that the stewards were doing the best they could and that Union Representative Car- rera 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 break- down 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 a.m. meeting. He did the repair (of a Filtec not rejecting partly filled cans) in or about 5 minutes, watched it for about 10 min- utes to see that it worked properly, and then returned to the lunchroom just a few minutes before 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 deci- sion he had left in the lunchroom. Steward Treichel called from south packaging, and he and Szewczuga exchanged information on the angry re- actions 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 Trei- chel 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), Szewczuga came back to the north side, and apparently went directly to his work sta- tion. Szewczuga testified that at or 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. Szewc- zuga immediately headed for the electric shop on the third floor of building 29. On his way there, Szewczuga said that 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 until 274 MILLER BREWING COMPANY Union Representative Carrera could do something, such as file a grievance; but the response he got, Szewczuga said, was that they were not ready to believe in griev- ances at this point after the experience with the electric lift trucks and other lost grievances, and now being de- prived of the Filtec assignment on the day after they ratified the union contract. Electrician Ken Entringer, who was stationed on the north side but temporarily doing work in south side packaging, 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 an- grily 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 Company, but also with the Union and the stewards. There was talk of "let's hit the bricks" and "go to the Union hall," and by the time he left the meeting, said Entringer, there was close to a unanimous consensus to go to the union hall.8 Further, he said that there was no arrangement by the men with the stewards to leave concertedly. Electrician Entringer testified that he went back to his work station on the south side to put away his tools, came back to north side to the locker room to change to street clothes, then came back to the electric shop for his lunch box, and encountered Szewczuga for the first time that day. When Szewczuga asked Entringer where he was going, he replied, flippantly, look out the window, and, without 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 the employees 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. Szewczuga testified that, when he realized his pleas to the men were of no avail, he tried to reach Treichel on the south side by phone for any word on Carrera, and then tried to reach Carrera directly, both without suc- cess. Szewczuga concluded that he should accompany the men to the union hall, went to the locker room to change to his street clothes, and returned to the electric shop in order to pick up whatever documentation he had on the Filtec and to clock out. While Szewczuga was getting his documents from his work bench, Packaging Maintenance Manager Jablon- owski and Supervisor John Scobie came in and told Szewczuga 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 under- stood, but that he could do nothing with the men, they were angry and were going to the union hall and wanted 8 Szewczuga testified that four of the north side electricians did not join the walkout, and that he had said nothing to them or they to him their steward at the union hall. He testified that he men- tioned 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 apprehen- sion 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. Jablonowski testified that, after his return from lunch on November 1, he was alerted that there might be a work slowdown of the electricians going on, and Super- visors Grande and Fry came to him saying Grande had been told by electrician steward Szewczuga that a union meeting was in progress. Jablonowski 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 il- legal work stoppage and were subjecting themselves to being disciplined, and to order them to return to work. Observing Szewczuga gather papers at his work bench, Jablonowski asked Szewczuga if he could stop the men, and there ensued the discussion described above by Szewczuga. Jablonowski further testified that Szewc- zuga gave no direction to any of the employees to leave, and did not countermand any order by a supervisor to an employee. Likewise, Electrical Supervisor Grande, who was among the supervisors directing the employees to return to work on penalty of discipline including dis- charge, testified that Szewczuga did not countermand or interfere with Grande's instructions to the electricians. 3. Stay-in at the South Brewing department lunchroom The seven first-shift electricians in south brewing de- partment building 15, of which electrician Ted Collins was one and also a union steward, were apparently the last of the three groups of electricians to learn, officially, of the revised Filtec decision on November 1, when Treichel and Szewczuga, after first informing their re- spective groups in packaging, transmitted the information to 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 wal- kout to the union hall. Collins informed his group, who were in the lunch- room, of what he had learned. According to Collins they took up the cry that everything was going to the ma- chinists, because it was said that 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 explana- tion did not seem to help. Collins said that he decided to go with his group, and went to his supervisor, Floyd McFadden, electric super- visor for brewing operations, to tell him what the group had decided, and that he was going with them to keep 275 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order if he could. Supervisor McFadden immediately called Industrial Relations Manager Feinsinger. Fein- singer took Labor Relations Manager Paulicivic with him, gathered up McFadden, and together the three management representatives went into the lunchroom of south building 15. According to Paulicivic and Fein- singer the electricians were upset, and some were al- ready 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 replied, 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 Szewc- zuga, but Collins was unable to reach them. Paulicivic testified that 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 or about 15 minutes. Feinsinger then told ste- ward 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 seven electricians in the lunchroom who would not go back to work and that the other electri- cians had left 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 lunchroom to talk to the seven men about getting back to work. Carrera testified that they were in a bad state, complaining of their stewards and of him, saying that when they "went by the book" on grievance and arbitra- tion in the electric forklift truck case they still did not get the work that was awarded to them in the arbitra- tion, and shouting let's " let's get out and join the others." Carrera asked them, 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 Corporate Industrial Relations Manager Koenig, Mil- waukee 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 installa- tion of the inspection head to the machinists, and the electricians' Union would inform Respondent by letter of an intention to strike on that account, affording Respon- dent 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 indication to him by Respondent's representatives of what would likely eventuate. As Labor Relations Man- ager Paulicivic said, Carrera stated he did not want any of his people fired. In reply, Corporate Manager Koenig referred to past practice where he said, the worst that had happened (when employees resumed work prompt- ly) was a reprimand and warning, which was put into the offending employee's file, and that Koenig did not expect that anything more severe would happen here. (Paulicivic thought Koenig had been referring to past sit- uations where employees did not leave the plant proper- ty, but Carrera's testimony did not indicate that Koenig had drawn any such distinction.) With these understandings on the two matters, Carrera indicated that 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 2 stewards Trei- chel 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 ar- rangement he had made with the Company on the Filtec assignment, and that, on discipline, (management had in- dicated there would be no repercussions other than writ- ten reprimands and warnings in the employees' files). According to Collins, the electricians in the lunchroom apparently were satisfied with Carrera's explanation, par- ticularly that there would be no discipline for any elec- trician 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's request, 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 In vestigation Having obtained the promise of the brewing depart- ment electricians to return to work the next day, No- vember 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 or about 1:30 p.m., and Carrera arrived about 3:30 p.m., after telephoning from the brewery and telling Sczew- zuga 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 await- ed Carrera. According to the testimony, Szewczuga and Treichel attempted to keep order, but had little to say otherwise except that when several employees suggested 9 This arrangement was kept. Respondent filed a charge before the Board under Sec. 10(k) of the Act, and the Board decided the dispute in favor of the machinists, Local 494, International Brotherhood of Electrical Workers, AFL-CIO, 235 NLRB 1550 (1978). 276 MILLER BREWING COMPANY 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 Trei- chel, "jumped" on him with their frustration and anger and clamored 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 them that if they returned to work the next day he had been informed by management that up to this time punishment meted out in similar situations had been a written reprimand for the infraction and a warning notice in the personnel file of the offending em- ployee. Based upon this information, Carrera said he began to obtain general agreement on the men returning to work. While most of them reacted guardedly to the solution, said Carrera, both stewards Treichel and Szewczuga spoke in favor of it and told the employees that returning to work was the best thing to do. Carrera testified that from what he observed in the 3 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 inspec- tion head work pending resolution of the jurisdictional issue, Union Representative Carrera took two of the most vociferous of the employees (not the stewards) to the telephone with him and called Corporate Manager Koenig. Koenig stated that the machinists 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 disput- ed work from the manufacturer of the Filtec or from a millwright company. The meeting at the union hall ended at or about 6:30 p.m. on November 1, 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 inves- tigation and, together with Packaging Maintenance Man- ager Jablonowski, who participated in the investigation, made the effective recommendations for discipline of the employees who participated in the work stoppage. The recommendations were approved by Milwaukee Industri- o1 Apparently, however, one of the proposers of the idea, electrician Greg Mecha, called electrician Jerome Moss, who was normally a first- shift employee but worked the second-shift that week, and Moss got hold of two other second-shift electricians in his neighborhood and all three went to the union hall after telephoning the plant they would be late. Ul- timately, the three forfeited pay for the several hours not worked that day. al 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, Respon- dent 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 six 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 2 Stewards Treichel and Szewczuga, who walked out with the other 15 electricians, discharge, be- cause of "participation in and leadership of' the walkout (Resp. Exhs. I and 2). The announcement was made in a meeting on Novem- ber 15 held by Labor Relations Manager Paulicivic and Packaging Maintenance Manager Jablonowski, to which Collins was summoned first, and then Treichel and Szewczuga. According to the participants, concerning the discharges of Treichel and Szewczuga, Paulicivic read the discharge notice of Treichel (Resp. Exh. 2, above) and told Szewczuga that the same applied to him. Collins testified that this was a total surprise to him and that Treichel asked, for himself and Szewczuga, if they were being fired because they were stewards, and that Paulicivic replied yes, that because they were stewards they were supposed to be able to control their men and make them do what they wanted them to do.' At hearing, Paulicivic and Jablonowski explained 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 investi- gation, he did not know who actually called or started or led the walkout, and that in his personal dealing on November 1, with the north side walkout, he did not see I Treichel testified that his words were, "[Alre" you "singling us out" because "we are stewards?" Paulicivic said Treichel asked, are you firing us "for that," but did not contradict Collins' testimony and conceded that he did reply that as stewards Treichel and Szewczuga should be more aware than any of the employees of the contract respecting grievances and work stoppages. I credit the testimony of Collins, a more disinterest- ed participant. and because the additional explanations, infra, indicate that Paulicivic and his colleagues equated "stewardship" with "leadership" in the walkout; the answer attributed to him was reflective of his views. 277 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Szewczuga direct any employees to leave or counter- mand orders of the supervisors to return to work. How- ever, 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 I to impart infor- mation to them on the Filtec dispute that he wanted con- veyed to the electricians. When the two stewards report- ed to their fellow employees that the disputed Filtec work went to the machinists, they were not misstating Respondent's position, said Jablonowski. But, when the electricians started walking out and the two stewards walked out with them, the stewards were thereby con- doning the actions of their fellows, signifying leadership. In sum, said Jablonowski, in the discussion at the dis- charge meeting of November 15, "we considered Trei- chel and Szewczuga as leaders because they were ste- wards." Likewise, Manager Paulicivic testified, as did Jablon- owski, that, from personal knowledge and the investiga- tion, he had no direct knowledge that Treichel or Szewczuga started or encouraged or led the walkout. However, since they were stewards and transmitted the Employer's message to the affected employees on the Filtec dispute he, Paulicivic, assumed that they had done it in such a way as to cause the walkout.' 2 Indeed, he said, he regarded Treichel and Szewczuga responsible for the conduct of the electricians who stayed in at the lunchroom in south building 15, because they were the only two electrician stewards to whom Respondent dis- seminated the decision on the Filtec dispute on Novem- ber 1. He conceded that he did not know how the elec- trician stewards distributed the decision on November 1. He also conceded that the machinists' representatives were given the same decision to disseminate to the ma- chinists, and did not know and had not investigated whether they passed word around the plant that the elec- tricians had lost again. In this regard, though Paulicivic claimed to know that the machinists were unhappy with the part of the Filtec assignment that did go to the elec- tricians (though it was apparently with mutual consent), he admitted that the machinists filed no grievance con- cerning the Filtec assignments. 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 Man- ager Feinsinger and Labor Relations Manager Paulicivic for Respondent, and Carrera and Union Business Man- 2 To bolster this assumption, Paulicivic took out of context several remarks by the two stewards in prior meetings with management which Paulicivic inferred to be indicative of a frame of mind to create a work disturbance; but it will be recalled that he and Jablonowski in referring to some of the same remarks described them as typical of the way represen- tatives of both machinists and electricians talked at their meetings on work assignments, see fn. 5, supra, and related text. In making inferences from past events, Paulicivic took no account of Szewczuga's and Trei- chel's unblemished records as employees for 26 years and 12 years, re- spectively, and for 4 years each as stewards. ager Kruse for the Union, Feinsinger explained the sev- eral grades of discipline. In referring to the more severe penalty of discharge for Treichel and Szewczuga, ac- cording to Carrera and Kruse, Feinsinger said, the ste- wards wore the badges and consequently had a greater responsibility. 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 ste- wards and that the whole flavor of his conference discus- sion centered on their greater responsibility as stewards. Feinsinger testified that he relied on and approved the Paulicivic investigation and recommendations, and it is clear that he accepted and approved the Paulicivic-Jab- lonowski view that equated the stewardship of the two discharged electricians with leadership of the walkout. Union Business Manager Kruse and Union Representa- tive Carrera pointed out that the stewards were not offi- cers 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- betweens or means of communication between the men and the Company and between the Company and the men. In this connection the third steward, Collins, testi- fied that when he heard the management views on stew- ardship, expressed in the course of the November 15 dis- charge meeting, he resigned as steward; and Carrera tes- tified (as did several employees) that he has since been unable to persuade any of the electricians at the plant to serve as stewards. 3 G. Conclusions Regarding 8(a)(1) and (3) Violations As already reviewed, the principal testimony concern- ing the actual conduct of Treichel and Szewczuga before the electricians started to walk out of the plant with their fellow electricians came from the participants in the work stoppage. That testimony indicated that each of the two stewards in transmitting the Filtec decision to his group urged his fellows to let the Union handle the matter 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 employees' 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 aimed at the seeming favoritism shown by management to machinists over electricians. There was thus no evi- dence that the stewards were cranking up sentiment for a walkout to the union hall or otherwise exerting leader- ship of the walkout, but rather that after it was apparent that the two groups were going to the hall each steward went along hoping to keep his group orderly. On its part, Respondent assumed that the two electri- cian stewards not only led the walkout of the two 13 Manager Feinsinger testified that the union grievances on discipline including the discharge went to arbitration. As a matter of information only, counsel for Respondent noted in his opening statement at the hear- ing that the arbitration upheld the discharges, but it was further noted that Respondent's answer to the complaint did not raise this result, or de- ferral to the arbitration, as a defense. 27X MILLER BREWING COMPANY 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 transmit- ted it. Obviously, in discharging employees Treichel and Szewczuga for leadership of the work stoppage Respon- dent acted on an assumption or belief, without founda- tion 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,' 4 in transmitting Respondent's work assign- ment 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 vio- lates Section 8(a)(l) of the Act, N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 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 3-day suspension or less, except Treichel and Szewczuga who were discharged because they were stewards and allegedly had a greater responsibility than the other employees to refrain from, if not deter, such conduct. The evidence was that both stewards did at- tempt to deter the walkout by arguing with their fellow employees for use of the grievance procedure and against the walkout. The question reduces itself to whether their joining their fellows, who had decided 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 em- ployee participants who were not stewards. The Board recognizes that a greater penalty than that given other participants may be applied to the participat- ing steward where he actively led and directed the wild- cat strike, Chrysler Corporation, Dodge Truck Plant, 232 NLRB 466, 477 (1977), or sought to induce employee participation in a contractually prohibited slowdown, Midwest Precision Castings Company, 244 NLRB 597 (1979). However, the Board has held that selecting an em- ployee for discipline, or imposing upon him a greater penalty than imposed upon others who breached a no- walkout contract provision, because the employee is a union steward, is discrimination against the employee on the basis of his holding union office and violates Section 8(a)(3) of the Act, Precision Castings Company, Division of Aurora Corporation, a wholly owned subsidiary of Allied Products Corporation, 233 NLRB 183, 184 (1977), where the employer selected for suspension five employees, who joined a contractually forbidden walkout, because 14 The union office of steward or committeeman "embodies the es- sence of protected concerted activities," General Motors Corporation, 218 NLRB 472, 477 (1975), enfd. 535 F.2d 1246 (3d Cir 1976). the five were stewards and supposedly failed to abide by their contractual obligation to take all reasonable steps to restore normal operations: Indiana and Michigan Electric Company, 237 NLRB 226 (1978), finding that the con- tractual 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 Cor- poration, 237 NLRB 881 (1978), holding that the steward, who joined a 2-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 impermissi- ble criterion for discipline under the Act that was not validated by the contract clause specifying responsibil- ities of union officers. The Seventh and Third Circuit Courts of Appeals, re- spectively, declined to enforce the latter two decisions, Indiana & Michigan Electric Company v. N.L.R.B., 599 F.2d 227 (7th Cir. 1979); and Gould Inc. v. N.L.R.B., 612 F.2d 728 (3d Cir. 1979), and in the course of doing so also expressed disapproval of the lead case, Precision Castings Co., supra. The principal disagreement between the courts, on the one hand, and the Board, on the other hand, is the courts' view that selecting the steward for separate, or more severe, discipline (than is applied to other employ- ee participants in a work stoppage forbidden by contract) is not inherently destructive of protected employee rights under the Act because the steward is already bound as an employee, as well as a union official, not to violate the contract prohibition; and the more severe punishment is based upon breach of the higher responsibility that ac- companies the official status as steward, a breach that makes the steward's misconduct more serious than that of the rank-and-file (Indiana and Michigan Electric Co.. supra at 229; Gould Inc., supra at 730-732). Both courts derived from the contractual provisions in each case a positive duty upon the stewards to take steps to termi- nate the illegal work stoppage (in Gould, provisions bind- ing the union officers and representatives to take steps to cause the illegal activity to cease, to refuse 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 permitted by the union to engage in illegal work stoppages). In comparing these two cases with the case at bar, there may be a basis for a distinction in that the contract clause pertaining to unlawful work stoppages (see sec. B, above) has no special undertaking that could be said to place a special or specific duty upon the stewards in con- nection with forbidden work stoppages. It simply pro- vides that the Union agrees for itself and its members that there shall be no (forbidden) work stoppage. ' '1 In a more recent decision of September 28, 1979, Armour-Dial. Inc.., 245 NLRB 959, where the Board found that the employer had singled out four union committeemen for discipline of suspension because of a work stoppage that the four employees did not engage in or induce but from which they refused to disassociate themselves, the Board held that the employer violated Sec. 8(a)3) and (I) of the Act because the basis for the discipline must be misconduct itself, and not the employee's position as a union official (citing its Precision Casiing and Gould decisions. Continued 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ad- dressed itself 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 decided by the Board, as the existing Board law not reversed by the Board or the Supreme Court, Insurance Agents International Union AFL-CIO (The Pru- dential Insurance Company of America), 119 NLRB 768, 773 (1957); Novak Logging Company, 119 NLRB 1573, 1575-76 (1958); Iowa Beef Packers, Inc., 144 NLRB 615, 616-617 (1963); Nello Pistoresi & Son, Inc. (S & D Truck- ing Co., Inc.), 203 NLRB 905, 906, fn. 2 (1973), notwith- standing the fact that the case at bar arose in the territo- rial jurisdiction of the Seventh Circuit. Hence, I am of the opinion that the discharge by Re- spondent of employees Treichel and Szewczuga, consti- tuting a greater discipline than that visited upon the other participants in the walkout and imposed because the two employees were union stewards, was discrimina- tory and in violation of Section 8(a)(3) and (1) of the Act. In this connection it should be noted that the dis- charges of the two stewards have actually discouraged all of the remaining electricians, including the former third steward who resigned as steward as a result of the discharges, to decline to serve as stewards, and has effec- tively deprived the unit of its full statutory and contrac- tual right of representation in matters requiring or calling for the presence or participation of stewards. 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 November 1, 1977, imposed as a greater discipline than was imposed upon the other participants because the two employees were union stewards, was discriminatory and constituted 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 Respondent 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: supra). The Board pointed out that the no-strike clause contained no re- quirement that union officials take appropriate steps to prevent violations of the clause or allowing the employer to discipline officials on the basis of their failure as union officers to abide by the contract; and the Board added that it was not reaching the issue of whether a union could. by contract, waive an employee's right to engage in protected concerted ac- tivity through holding of union office by providing for the discipline of union officials. (1) Cease and desist from its unfair labor practices. (2) Offer to reinstate employees Szewczuga and Trei- chel, and give each backpay from the date of his dis- charge, November 15, 1977, said backpay to be comput- ed on a quarterly basis as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with interest as prescribed in Florida Steel Corpo- ration, 231 NLRB 651 (1977).16 (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 the Act, there is hereby issued the following recom- mended: ORDER 1 7 The Respondent, Miller Brewing Company, Milwau- kee, Wisconsin, its officers, agents, successors, and as- signs, shall: i. 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 con- certed activities or because they hold union office in the bargaining unit when engaging in protected concerted activities. (b) In any like manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make employees Ervin Szewczuga and Gerald Treichel whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings incurred by them as a result of their discharges on November 15, 1977. (b) Offer to both of said employees immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix."18 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by one of its autho- '6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 17 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. 18 In the event 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." 280 MILLER BREWING COMPANY rized representatives, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 281