Before MacKINNON, ROBB and EDWARDS, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
BOARD, RESPONDENT JOHN H. FOURNELLE, INTERVENOR 1982.CDC.21
Petition for Review of an Order of the National Labor relations board.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS
This case initially arose as a result of an unfair labor practice charge filed by John H. Fournelle, an employee at Bethlehem Steel Corporation, on August 4, 1978. A Complaint was issued on September 28, 1978, and amended on March 9, 1979, alleging that Bethlehem violated sections 8(a)(3) and (1) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 158(a)(3) and (1), by suspending Fournelle for ten days "because of his position as welding department committeeman in the Union." Joint Appendix at 3.
On September 14, 1979, the Administrative Law Judge issued a decision finding that Fournelle had in fact participated in and supported an unauthorized strike. However, the ALJ also found that Bethlehem had discriminated against Fournelle on the basis of his union position by suspending him for ten days as compared with the five-day suspensions issued to other strikers. ALJ at 983-87. *fn1 On September 30, 1980, although sharply divided, see note 6 infra, a three-member panel of the National Labor Relations Board ("NLRB" or "Board"), with one member dissenting, affirmed the rulings, findings and conclusions of the ALJ and adopted the ALJ's Recommended Order. ALJ at 982-83. Fournelle and Bethlehem have petitioned for review of the order of the Board, and the NLRB has cross-petitioned for enforcement of that order. *fn2
Two issues are presented on this appeal. First, we must decide whether Fournelle was lawfully subject to any discipline. Fournelle does not dispute the finding of the Board that he traveled to and participated in a strike meeting after he left work, at which meeting he voted and made statements supporting the strikers' cause. Nor does he deny that the other employees engaged in an unprotected strike. Instead he argues that, because he had left work on the day in question, for reasons unconnected with the strike, and because a company work rule prevented his return to work on the day of the strike, he was not properly subject to discipline under a contractual term that forbade employees to encourage, sanction, or take part in strikes. We reject Fournelle's arguments, concluding that the cited collective bargaining agreement effectively waived any rights that Fournelle might otherwise have had to escape discipline for his actions at the union hall.
Second, we must decide whether to enforce the decision of the Board that Bethlehem violated sections 8(a)(1) and (3) *fn3 of the NLRA by punishing Fournelle, a union official, more harshly than other strike participants. We deny enforcement of the Board's order and hold that the Board should have given effect to a clear arbitral decision that interpreted the contract as allowing the selectively greater punishment of union officials who engage in unauthorized strikes. I. BACKGROUND
A. The Strike and its Aftermath
Although the parties disagree about the legal significance of the underlying facts, the facts themselves are not disputed. The findings of the ALJ, affirmed by the Board, may be briefly summarized. *fn4
On the morning of July 28, 1978, approximately 162 employees in the welding department at the shipyard of Bethlehem at Sparrows Point, Maryland, walked off the job and assembled at the union hall. ALJ at 983. The walkout was a protest against the suspension by Bethlehem of Jim Childs, a union steward. Id. This concerted work stoppage, all parties agree, was a "wildcat" strike in violation of the collective bargaining agreement then in effect between Bethlehem and the Industrial Union of Marine and Shipbuilding Workers, AFL-CIO, and its affiliated Local 33 . Fournelle Br. at 4 & n.4; Bd. Br. at 11; Bethlehem Br. at 6. Article XVIII of the Bethlehem-IUMSW agreement provided:
During the term of this Agreement neither the Union nor any Employee shall instigate, encourage, sanction, or take part in any strike, sit-down, slowdown or other stoppage, limitation or curtailment of work or production, or take part in any picketing, boycotting or other interference with or demonstration against any Yard or its business or operations, either in such Yard or elsewhere .... The Company may terminate the employment of or otherwise discipline any Employee who willfully violates any of the provisions of this Agreement in any material respect.
Petitioner Fournelle, an elected union committeeman, left work at about the same time that the other employees left, but, as the ALJ found, Fournelle did not leave for reasons connected with the wildcat strike. Instead, he left because his clothes had become wet in a rainstorm, which made it potentially dangerous to perform his work as an arc welder, and "because he had determined to take the day off in any event to see his dentist to have a broken tooth repaired before the weekend." ALJ at 986. After he left work, Fournelle went home and changed his wet clothes. He then went to a local bar, cashed his paycheck, had a few drinks, and decided to go to the meeting of the wildcat strikers at the union hall. Id. at 985.
When Fournelle joined the strikers at the union hall, he found the place "dark and in some confusion." Id. A television news crew arrived at the hall, and sought permission to film the meeting and interview some of the strikers. Some union officers initially refused to allow the television crew to enter, but upon a motion by Fournelle the workers voted to allow the crew to remain and conduct interviews. Id. One of the workers interviewed was Fournelle, and he expressed his opinion that Bethlehem's discipline of steward Childs was unjustified; he further complained about working conditions at Bethlehem: "They are increasing the amount of work we have to put out. We've been called to the office for low production. They want us to be their slaves, and they're offering us no other choice but to stand up for ourselves." Id. After the meeting at the union hall concluded, Fournelle went to another bar and made an appointment with his dentist. The dentist repaired Fournelle's damaged tooth later that afternoon. Id. at 986.
The next workday, July 31, Fournelle reported for work with a note from his dentist certifying that he had been in the dentist's office for treatment. Management officials attempted to interview Fournelle about his conduct at the union hall, but Fournelle was uncooperative. Three days later, Bethlehem notified Fournelle that he was to be suspended for ten days; the disciplinary report stated that Fournelle was being punished for "participating as an elected union official in a work stoppage on July 28, 1978 in violation of Article XVIII of the Agreement." Id. ...