PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Board No. 4-CA-9144
Before Seitz, Chief Judge, and Van Dusen and Higginbotham, Circuit Judges.
Metropolitan Edison Company (the Company) petitions for review of an order of the National Labor Relations Board (the Board) finding that the Company violated section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by disciplining two officers of intervenor Local Union 563 (the Local) more severely than rank-and-file members for participating in an illegal work stoppage. The Board cross-petitions for enforcement of its order. This court has jurisdiction under section 10(e) and (f) of the Act, as amended. 29 U.S.C. § 160(e) & (f) (1976).
The Company, a public utility that provides electrical power to customers in Southeastern Pennsylvania, started construction of a two-unit nuclear generating station at Three Mile Island (TMI) in 1968. The construction was still underway in 1977. At that time, over half of the Company's employees were represented by five local unions of the International Brotherhood of Electrical Workers (the Union) under a collective bargaining agreement that took effect on May 1, 1976. Article XI of the agreement provided:
The Brotherhood and its members agree that ... there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public.
Under prior collective bargaining agreements containing the same provision, members of the Union had violated the no-strike provision four times. On each occasion the Company disciplined the Union officers more severely than its members. The Company justified the disparity in discipline on the ground that union officers, unlike the members, have an affirmative duty to try to end an illegal strike. Twice the Union grieved to arbitration the issue of whether the Company could impose the extra discipline, and twice the Union lost.
The events that gave rise to this dispute occurred on August 30, 1977. Members of the Operating Engineers' Union picketed the north entrance to TMI. Members of the Local, including its president Lang and vice-president Light, refused to cross that picket line. The administrative law judge succinctly described the events on that morning:
Both (Lang and Light) spent the morning of August 30, 1977, seeking to secure removal of the picket line so that their members, who had earlier indicated an unwillingness to cross any picket line, would go to work. Thus, Lang had come to (TMI) early on the morning of August 30, pursuant to a phone call from (the Company's personnel administrator), in which (he) advised (Lang) that there was a picket line which the (Local's) members were refusing to cross and requested him to see what could be done. In the course of their conversations that morning, (the administrator) reiterated to Lang a position taken by the Company a number of times previously that the union officers had a particular obligation to cross the picket line so that other employees would follow. When Lang arrived at the gate he spoke to the Operating Engineers' picket captain, learned the reason for the picket line, and was told that the line would not be removed unless removal was ordered by his business agent. Lang called the business agent. Subsequently, Lang went to the union hall, ... and directed Gene Light to go the Operating Engineers to see whether he could negotiate with them to get them off the bridge. When he returned to the picket line, Lang was again told (by two Company officers) that he had a particular obligation as a union official to cross the picket line. Lang told (one of them) that it was the consensus of the members that they were not going to cross until the picket line came down and he told (the other) that he felt it was better if he stayed out because then he could at least negotiate with the pickets. Gene Light had substantially similar conversations with both (officers).
In the course of discussing what it would take to have the picket line removed, the Operating Engineers' steward told Lang that they would remove the picket line if the contractors ceased using the north bridge.
After Lang related this conversation to the Company's coordinator of services, the Company set up a reserved gate for the contractors' employees at the south bridge, the picket line came down, and the Local's members went to work.
Of the 135 rank-and-file members who refused to cross the picket line, 121 received five-day suspensions, and fourteen who had participated in previous illegal stoppages received ten-day suspensions. Lang and Light each received a twenty-five-day suspension. The Company stated in the written records of its disciplinary action that the harsher discipline for each was justified because in addition to violating the no-strike clause, each had
(failed) as an elected official of (the Local) to demonstrate to the Company, in an objective manner, (his) affirmative duty as an elected officer to:
(a) Make every effort to uphold the sanctity of the Agreement and its established grievance procedures.
(b) Make every bona fide effort to prevent the unlawful work stoppage.
(c) Make every effort, including returning to work (himself), to end the unlawful work stoppage.
The Local filed an unfair labor practice charge, and the General Counsel issued a complaint against the Company. The administrative law judge found that the Company's actions violated section 8(a)(1) and (3) of the Act, and the Board adopted his rulings, findings, and conclusions, although modifying the terms ...