Bethenergy Mines

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1242 (N.L.R.B. 1992)

1242
308 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1988 unless otherwise specified.
2 The Respondent was represented by Tom Robertson, manager-
human resources, and Tom Ehrke, senior supervisor-labor relations.
The Union was represented by Paul Lemon, secretary-treasurer, of
the Union’s District 5, and August Martos, executive board member,
of the Union’s District 5.
Bethenergy Mines, Inc. and Mark Segedi. Case 6–
CA–21560
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by Mark Segedi, an individual,
on January 27, 1989, and an amended charge filed on
August 29, the General Counsel of the National Labor
Relations Board issued a complaint and notice of hear-
ing on September 11, alleging that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by condi-
tioning the reinstatement of employees Mark Segedi,
Fred Eimer, Patsy Bava, Joseph Goblesky, and Jared
Dobrinski on their written agreement not to hold office
in United Mine Workers of America, Local 1197 (the
Union) until the expiration of the current contract on
January 31, 1993.
On November 14, 1991, the General Counsel, the
Charging Party, and the Respondent filed with the
Board a stipulation of facts and motion to transfer the
case to the Board. The parties stated that the original
charge, amended charge, complaint, stipulation of
facts, and attached exhibits constitute the entire record
in this case and that they waive a hearing before an
administrative law judge. On February 11, 1992, the
Board approved the stipulation and transferred the pro-
ceeding to itself for issuance of a decision and order.
On March 3, 1992, the General Counsel and the Re-
spondent filed briefs with the Board.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation with an
office and facility in Eighty-Four, Washington County,
Pennsylvania, is engaged in the mining and sale of bi-
tuminous coal. During the 12-month period ending
June 30, 1989, the Respondent shipped from its
Eighty-Four, Pennsylvania facility goods and materials
valued in excess of $50,000 directly to customers out-
side the Commonwealth of Pennsylvania.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Mark Segedi, Fred Eimer, Patsy Bava, Joseph
Goblesky, and Jared Dobrinski were employed by the
Respondent on July 5 and 6, 1988,1 and prior to that
time. The Union is the collective-bargaining represent-
ative of a unit of approximately 400 employees. On
the dates specified, Bava was president of the Union,
Eimer was the Union’s safety committee chairman, and
Segedi was a safety committee member for the Union.
Goblesky and Dobrinski held no union office.
On July 5, the Respondent’s employees represented
by the Union, including Segedi, Eimer, Bava,
Goblesky, and Dobrinski, commenced an unauthorized
work stoppage at the Respondent’s Eighty-Four work-
site because of a dispute concerning health care bene-
fits. On July 6, Segedi, Eimer, Bava, Goblesky, and
Dobrinski picketed the U.S. Steel Mining Company’s
Maple Creek facilities in furtherance of the work stop-
page. The work stoppage continued through July 7.
The contract between the Respondent and the Union
provides mandatory administrative procedures for the
resolution of disputes about health care benefits. The
work stoppage at the Respondent’s Eighty-Four work-
site did not involve an existing dispute at the U.S.
Steel facilities.
On July 15, the Respondent suspended with intent to
discharge Segedi, Eimer, Bava, Goblesky, and
Dobrinski. The Respondent cited the five named em-
ployees’ participation in the unauthorized work stop-
page at the Respondent’s facility and the picketing at
the U.S. Steel facility. The Respondent admonished:
‘‘Unauthorized work stoppages are a terribly serious
business. People who instigate a work stoppage, ac-
tively support it and spread it to other coal producers
by picketing must expect to suffer the consequences of
their acts.’’
On July 18 and 19, Segedi, Eimer, Bava, Goblesky,
and Dobrinski filed grievances concerning their sus-
pensions with intent to discharge. The Union asked the
Respondent to reduce the discharges to a lesser pen-
alty. In response to the Union’s request, the Respond-
ent commenced settlement discussions with the Union2
in an effort to resolve the dispute over the suspensions
with intent to discharge, without resort to arbitration.
The Respondent proposed that it would require, as a
condition of reinstatement in lieu of discharge for the
five employees, that each agree in writing not to hold
1243BETHENERGY MINES
3 The Respondent required that the five named employees also ac-
cept a suspension with loss of pay and holidays but not seniority
from July 15 until August 29, 1988; agree not to engage in or en-
courage unauthorized work stoppages or illegal picket activity at the
Respondent’s facilities or any other coal operator; and agree to im-
mediate discharge in accordance with the provisions of the contract
in the event of any violation of the stated terms.
4 The complete agreement is as follows:
LAST CHANCE AGREEMENT
I lllllllll recognize that my personal actions
and involvement in the picket activities and dealings with the
members of UMWA Local Union No. 1197 before and during
the course of the unauthorized work stoppage were completely
inconsistent with my obligations as a UMWA member and/or
representative and employee of BethEnergy Mines Inc.
I realize that my actions jeopardized the economic well being
of both BethEnergy Mines Inc. and the members of Local Union
No. 1197.
Based upon this recognition I voluntarily agree to the follow-
ing terms as a fair and just settlement to my grievance in lieu
of discharge.
1. I agree to accept a suspension with loss of pay and holi-
days, but with no loss of seniority or any benefits from July
15, 1988 until August 29, 1988.
2. I agree that I will not hold or seek to hold any union
office or act as a representative for the term of the NBCWA
of 1988, as defined by the UMWA International Constitution,
or any subsequent UMWA Constitution.
3. I agree that I will not at any time during the course of
my employment with BethEnergy Mines Inc. engage in or en-
courage an unauthorized work stoppage or illegal picket activ-
ity at a mine or related facility of BethEnergy Mines Inc., or
any other coal operator.
4. I agree that if I violate any provision of this Last Chance
Agreement that I shall be discharged immediately, in accord-
ance with the provisions of the NBCWA.
Therefore, I voluntarily enter into this settlement under the
terms described above.
lllllllllllllll Date lll
Grievant
lllllllllllllll Date lll
UMW Representative
lllllllllllllll Date lll
BethEnergy Mines Inc. Representative
5 Bava did not return to work and retired on September 1.
6 These union offices include president, vice president, mine com-
mitteeman, and safety committee member.
union office for the balance of the collective-bargain-
ing agreement. The Union stated that it had no objec-
tions to this condition or the three other conditions
proposed by the Respondent,3 but it was compelled to
review them with the affected employees. The Union
discussed the Respondent’s conditions with Segedi,
Eimer, Bava, Goblesky, and Dobrinski, and each stated
that he was willing to sign a document incorporating
the Respondent’s conditions.
The Union informed the Respondent that Segedi,
Eimer, Bava, Goblesky, and Dobrinski would comply
with the stated conditions. On July 29, the five named
employees signed the ‘‘Last Chance Agreements,’’ to-
gether with representatives from the Union and the Re-
spondent.4
On August 29, Segedi, Eimer, Goblesky, and
Dobrinski returned to work.5 Segedi had previously
been elected to the Coal Miners Political Action Com-
mittee (COMPAC). Unlike Segedi’s prior safety com-
mittee membership, the COMPAC position involved
no direct dealing with the Respondent as a representa-
tive for the Union. Segedi sought clarification as to
whether the Respondent viewed his position with
COMPAC as foreclosed by the ‘‘Last Chance Agree-
ment.’’ The Respondent advised Segedi that continuing
to hold his position with COMPAC was permissible,
and the Respondent allowed him to continue in that
position notwithstanding the language of the ‘‘Last
Chance Agreement.’’
In May 1990, Segedi ran for the position of finan-
cial secretary of the Union, another position which in-
volved no direct dealing with the Respondent as a rep-
resentative of the Union. On May 21, the Respondent
suspended Segedi with intent to discharge. The Re-
spondent claimed that Segedi had violated the terms of
the ‘‘Last Chance Agreement.’’ Segedi grieved the Re-
spondent’s conduct.
On June 11, Arbitrator Thomas M. Phelan issued a
decision and award sustaining Segedi’s grievance. The
arbitrator noted that the ‘‘Last Chance Agreements’’
had been interpreted as precluding the signers from
holding only those positions involving direct dealing
with the Respondent. The arbitrator found this limita-
tion consistent with the collective-bargaining agree-
ment and the National Labor Relations Act. He stated:
The members of the Union have the statutory
right to be represented by someone of their own
choosing, and that right would be diluted here for
no good and valid reason. Who the Union has as
its representative to deal with the internal affairs
of the Union is not a legitimate concern of Man-
agement in the employment relationship, and
when Management bases employment decisions
on an Employee’s participation as an officer of
the Union dealing only with the internal affairs of
the Union, it is discriminatory treatment based
upon the Employee’s intra-Union activity.
The Respondent complied with the arbitrator’s deci-
sion and applied the ‘‘Last Chance Agreements’’ only
to those union positions which involve dealing directly
with the Respondent as a representative of the Union.6
B. The Parties’ Contentions
At issue is whether the Respondent violated Section
8(a)(3) and (1) of the Act by conditioning the rein-
statement of the five employees on their resignation
from union positions that involved dealing directly
with management, and their agreement not to hold
such positions for the duration of the current contract.
The General Counsel argues that because the right
to hold union office is clearly protected by Section 7,
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Barton Brands, 298 NLRB 976, 980 (1990), and cases cited.
8 [T]he deferral principles apply equally to settlements arising from
the parties’ contractual grievance/arbitration procedures because they
further the national labor policy which favors private resolutions of
labor disputes.’’ Alpha Beta Co., 273 NLRB 1546, 1547 (1985), pe-
tition for review denied sub nom. Mahon v. NLRB, 808 F.2d 1342
(9th Cir. 1987); Postal Service, 300 NLRB 196 (1990); Catalytic,
Inc., 301 NLRB 380 (1991), petition for review denied sub nom.
Plumbers Local 520 v. NLRB, 955 F.2d 744 (D.C. Cir. 1991).
9 Olin Corp., 268 NLRB 573 (1984).
10 The arbitrator explained:
While the grievant’s actions in the course of the wildcat strike
in July 1988 may have been appropriate grounds for removing
him from his Safety Committee position and precluding him
from seeking or holding any other Union office in which he
would be dealing directly with mine Management as a rep-
resentative of the bargaining unit, to go beyond that and pre-
clude him from seeking or holding a Union office in which
he does not deal at all with Management as a representative
of the classified Employees, seems to be an unwarranted inter-
ference in the internal affairs of the Union and discrimination
on the basis of intra-Union activity. The members of the
Union have the statutory right to be represented by someone
of their own choosing, and that right would be diluted here
for no good and valid reason. The Employer’s concern was
with having to deal with the grievant as a representative of
the Employees, not what he was doing away from the oper-
ations.
an employer may restrict this right only by offering
compelling evidence of legitimate business consider-
ations. That evidence is said to be lacking here be-
cause there is no clear nexus between holding union
office and the employees’ participation in the unau-
thorized work stoppage and picketing.
The General Counsel also contends that the signing
of the ‘‘Last Chance Agreements’’ by a representative
of the Union and by the employees was not a waiver
of statutory rights by either the Union or the employ-
ees. The General Counsel maintains that an agreement
to sign the ‘‘Last Chance Agreements’’ is not a direct
expression of such a waiver. Finally, the General
Counsel asserts that the Board should defer neither to
the ‘‘Last Chance Agreements’’ as a prearbitral settle-
ment of the employees’ July 15, 1988 suspension with
intent to discharge, nor to the June 11, 1990 arbitra-
tor’s award. According to the General Counsel, there
is no factual parallel between the contractual issue and
the unfair labor practice issue; the arbitrator made only
passing reference to the National Labor Relations Act;
and the annulment of a Section 7 right is repugnant to
the purposes and policies of the Act.
The Respondent contends that both the Union and
the five employees waived the right to hold union of-
fice and that the ‘‘Last Chance Agreements’’ as inter-
preted by the June 11, 1990 arbitrator’s award meet
the Board’s standards for deferral. The Respondent ar-
gues that the right at issue may be waived; that neither
the Union nor the employees objected to this condition
in the ‘‘Last Chance Agreements’’; and that the ex-
press language in the ‘‘Last Chance Agreements’’ con-
stitutes a clear and unmistakable waiver. The Respond-
ent asserts further that the ‘‘Last Chance Agreements’’
as interpreted by the arbitrator warrant deferral as a
settlement arising from the parties’ contractual griev-
ance-arbitration procedures. Such deferral, it contends,
furthers the national labor policy favoring private reso-
lution of labor disputes.
C. Discussion
It is axiomatic that the right to assist a union by
holding union office is protected by Section 7 of the
Act and that employees and their unions may choose
their own representatives. An employer therefore vio-
lates Section 8(a)(3) and (1) of the Act by refusing to
employ an individual because he has been designated
as union steward, or by conditioning an employee’s re-
instatement on resignation from the union and an
agreement not to run for union office for a set period
of time.7 Standing alone, the ‘‘Last Chance Agree-
ments’’ would appear to violate these principles. Nev-
ertheless, the particular facts of this case do not war-
rant finding a violation of Section 8(a)(3) and (1) of
the Act. We find that it is appropriate to defer to the
‘‘Last Chance Agreements,’’ as interpreted by the June
11, 1990 arbitration award, as a settlement of the
grievances arising from the July 15, 1988 suspensions,
with intent to discharge, of the five employees. We
defer because we find that the restriction on the five
employees’ participation in union affairs was substan-
tially justified by the unprotected conduct of the five
employees. We also rely on the fact that the employees
themselves waived their Section 7 rights.
In deferring to the ‘‘Last Chance Agreement,’’ as
interpreted by the June 11, 1990 arbitration award, we
are guided here by our established policy favoring pri-
vate resolutions of labor disputes.8 We have long ap-
plied a four-part standard for deferral; that: (1) the pro-
ceedings were fair and regular; (2) all parties agreed
to be bound; (3) the unfair labor practice issue was
presented to and considered by the arbitrator; and (4)
the decision is not repugnant to the purposes and poli-
cies of the Act.9 There is no contention here that either
the 1988 meetings between the Union and the Re-
spondent that produced the ‘‘Last Chance Agree-
ments’’ or the grievance procedure that culminated in
the 1990 arbitration decision were not fair and regular
or that all participating parties had not agreed to be
bound by the results.
The arbitrator considered the unfair labor practice at
issue. He specifically stated in his decision that the re-
striction on holding union positions imposed by the
‘‘Last Chance Agreements’’ applied legitimately only
to those positions having direct contact with manage-
ment pursuant to both the National Labor Relations
Act and the collective-bargaining agreement.10 Accord-
1245BETHENERGY MINES
11 The arbitrator rejected Respondent’s interpretation which would
have included union positions which involved only internal union re-
sponsibilities. The arbitrator’s interpretation of the agreement is, in
law, the agreement of the parties. See Mine Workers Local 9735
(Westmoreland Coal), 117 NLRB 1072 (1957).
12 This nexus between employee misconduct and the restriction
imposed on the Sec. 7 right distinguishes this case from those cited
by the General Counsel. In Dravo Corp., 228 NLRB 872 (1977), the
Board found that the employer violated Sec. 8(a)(3) and (1) of the
Act by conditioning an employee’s recall on his refraining from act-
ing as steward on behalf of the union. The Board particularly noted
that, although the employee as steward had interfered with other
contractors, these events occurred well before the end of the employ-
ee’s last tenure as steward and the employer had merely issued some
perfunctory verbal warnings and ignored the contractual provisions
that were applicable to the employee’s conduct. Dravo Corp., supra
at 874. In Sycon Corp., 258 NLRB 1159 (1981), the Board likewise
found that an employer violated Sec. 8(a)(3) and (1) of the Act by
conditioning an employee’s reinstatement on his signing an agree-
ment that he not serve as chairman or committeeman of the union
for the duration of the next two collective-bargaining contracts. The
administrative law judge’s decision, adopted by the Board, particu-
larly noted that there was ‘‘no evidence in the record that [the em-
ployee] in any way abused his privileges of acting as committee
chairman or committeeman in presenting grievances or other matters
on behalf of his fellow employees.’’ Sycon Corp., supra at 1160.
Similarly in Vulcan-Hart Corp., 262 NLRB 167, 168 (1982), the
Board found a violation where an employer proposed to a lawful
economic striker that he would be permitted to return to work if he
resigned from union office and agreed not to run for union office
during the term of the 3-year contract. Such a proposal clearly vio-
lates the Act. It falls within the parameters of the long-established
prohibition on employers refusing to hire employees solely because
of their affiliation with a labor union. Phelps Dodge Corp. v. NLRB,
313 U.S. 177 (1941). None of these cases involve employee union
officials whose conduct showed contempt for the collective-bargain-
ing agreement and whose employer contemporaneously mitigated
lawful discipline by reinstating them with a limit on their exercise
of Sec. 7 rights narrowly tailored to the situation. That is the case
here.
ing to the arbitrator, the grievant had to be free to hold
all other union positions dealing with internal union af-
fairs. Although the arbitrator’s analysis did not include
a lengthy discussion of the unfair labor practice issue,
we are satisfied that this issue was not ignored. Indeed,
the arbitrator’s conclusion accords with our own analy-
sis as set forth below. Like the arbitrator, we also find
no impediment under the National Labor Relations Act
if, as here, the restriction imposed by the ‘‘Last
Chance Agreements’’ applies only to those union posi-
tions that deal directly with management and continues
only for the duration of the current contract.
As to the fourth standard, we find that the ‘‘Last
Chance Agreements,’’ arrived at through negotiations
involving the employees and their Union, as inter-
preted by the 1990 arbitration award are not repugnant
to the purposes and policies of the Act on the facts of
this case.
Thus, it is undisputed that Mark Segedi, Fred Eimer,
Patsy Bava, Joseph Goblesky, and Jared Dobrinski en-
gaged in an unprotected, unauthorized work stoppage
at the Employer’s facility and extended this mis-
conduct by picketing an unrelated employer. Three of
the five employees held union office; Bava was presi-
dent. By engaging in an unauthorized work stoppage
in contravention of the contract’s mandatory proce-
dures for the peaceful resolution of disputes over
health care benefits, the five employees exhibited con-
tempt for the collective-bargaining agreement. Their
conduct was thus inimical to the welfare of the unit
and the Union’s representative function. In these cir-
cumstances, it was not arbitrary for the Respondent to
seek to prohibit employees who had blatantly ignored
the contract from holding union positions that required
the occupants directly to deal with management for the
duration of that contract. See NLRB v. Kentucky Utili-
ties Co., 182 F.2d 810, 811 (6th Cir. 1950), cited with
approval in NLRB v. Roscoe Skipper, Inc., 213 F.2d
793 (5th Cir. 1954).
The prohibition was a condition narrowly drawn to
fit the situation and designed to be prophylactic. The
Union had requested that the Respondent reduce the
discharges to a lesser penalty. The compromise agree-
ment, as interpreted by the arbitrator, forbade the em-
ployees from holding union positions which entailed
dealings with the Respondent.11 The ban on holding
such offices was limited to the term of the contract. In
our view, there was a nexus between the employees’
unprotected conduct and Respondent’s legitimate inter-
ests as reflected in the agreement. The agreement was
designed to ensure that those who had shown contempt
for the collective-bargaining agreement would not hold
collective-bargaining positions (vis-a-vis Respondent)
for the remainder of the collective-bargaining agree-
ment. Thus, there would be a diminished likelihood
that persons in union positions of responsibility (vis-a-
vis Respondent) would use their influence for purposes
inimical to the collective-bargaining relationship.12
We also find that the five employees waived their
Section 7 rights. No doubt, a waiver of a statutory
right must be clear and unmistakable. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693 (1983). In this
case, however, the evidence shows that the Union dis-
cussed with Segedi, Eimer, Bava, Goblesky, and
Dobrinski the Respondent’s proposed limitation on the
exercise of their Section 7 rights. The five affected
employees stated that they were willing to sign a docu-
ment incorporating this condition and they did so.
With full awareness of what they were doing, they
signed the ‘‘Last Chance Agreements,’’ which stated:
‘‘I agree that I will not hold or seek to hold any union
office or act as a representative for the term of the
NBCWA of 1988, as defined by the UMWA Inter-
national Constitution, or any subsequent UMWA Con-
stitution.’’ In these circumstances, Segedi, Eimer,
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 We find no merit to the General Counsel’s argument that there
can be no waiver because the five employees acted under duress.
The General Counsel contends that the alternatives presented to the
employees—relinquish the right to hold union office or possibly re-
linquish employment through pursuing the discharge grievances—
amounted to a ‘‘Hobson’s choice.’’ We disagree. We note specifi-
cally the uncontroverted evidence that: (1) the Union first ap-
proached the Respondent and asked the Respondent to reduce the
discharges to a lesser penalty; (2) the Union and the Respondent en-
gaged in settlement discussions; (3) the Union discussed the Re-
spondent’s proposed conditional reinstatement with the employees;
and, (4) the five employees then consented to the conditions. Segedi,
Eimer, Bava, Goblesky, and Dobrinski thereby willingly relinquished
the option of pursuing their discharges through the grievance-arbitra-
tion procedure and participated in each step of the settlement discus-
sions and their consummation with the ‘‘Last Chance Agreements.’’
We find that their conduct reflected informed consent, not duress.
14 We need not reach the issue of whether a union may waive em-
ployees’ rights to hold union office. See Barton Brands, supra at
980; NLRB v. Aces Mechanical Corp., 837 F.2d 570, 573 fn. 3 (2d
Cir. 1988).
15 282 NLRB 928 (1987), enf. denied 837 F.2d 570 (2d Cir. 1988).
16 Barton Brands, supra at 979.
17 Ibid.
18 We note that in Sycon Corp., the employee involved similarly
signed an agreement with a comparable limitation. As we have al-
ready noted, however, in that case there was no nexus between the
employee conduct and the limitation imposed by the employer. Thus
the issue of waiver was irrelevant in the face of the employer’s un-
warranted limitation of the employee’s exercise of his Sec. 7 right
to hold union office.
Bava, Goblesky, and Dobrinski clearly and unmistak-
ably waived the Section 7 right at issue.13
The waiver by the affected employees themselves14
distinguishes this case from Barton Brands, supra, and
Aces Mechanical Corp.15 relied on by the General
Counsel. In Barton Brands an arbitrator found an em-
ployee’s discharge valid but held that mitigating cir-
cumstances warranted a lesser penalty than discharge.
The arbitrator reinstated the employee but required that
he resign from his position as plant chairman and re-
frain from holding those union offices dealing directly
with the company for 3 years. The arbitrator also im-
posed immediate discharge for violation of this condi-
tion. The employer reinstated the employee to layoff
status following the arbitrator’s decision. While on lay-
off, the employee was elected president of the union.
The employer discharged him pursuant to the arbitra-
tor’s award.
In finding that the discharge violated Section 8(a)(3)
and (1) of the Act, the Board noted, inter alia, that the
arbitrator, in formulating his conditional reinstatement
remedy, did not consider whether the employee had
waived his Section 7 right to hold union office.16 The
Board also rejected the argument that the union’s
agreement to arbitrate the discharge gave the arbitrator
the authority to formulate the conditional reinstatement
remedy. The Board stated that ‘‘an agreement to arbi-
trate a specific discharge, without more, does not meet
the exacting standards we require of a waiver of an
employee’s statutory rights.’’17 By contrast, in this
case, Segedi, Eimer, Bava, Goblesky, and Dobrinski
discussed the limitation on the exercise of their right
to hold union office with their union representatives
and affirmed the limitation in writing.18
In Aces Mechanical Corp., the union president sug-
gested to the employer’s president that the steward
who had been discharged for tardiness be permitted to
return to work as a journeyman plumber and not as
shop steward. The employer’s president declined and
said he intended to pursue the arbitration over the dis-
charge. When the steward returned to work, the fore-
man told him that he was only a journeyman plumber
not a steward. The steward disputed this and contacted
the union. The secretary-treasurer of the union reported
to the jobsite and told the foreman that the employee
was the steward. The applicable collective-bargaining
agreement gave the union’s secretary-treasurer the au-
thority to appoint the steward. When the employer’s
president advised the union’s secretary-treasurer that
he had made an agreement with the union’s president
that the employee could no longer be steward, the
union’s secretary-treasurer insisted that the employee
was still the steward.
In finding that the employer violated Section 8(a)(3)
and (1) of the Act by insisting that the employee could
not continue to work as steward, the Board specifically
noted that even assuming without deciding that the
union could waive the employee’s protected right to
act as union steward, there was no clear and unmistak-
able waiver. Thus, both the employee and the union
agent empowered to appoint the steward adamantly
maintained that the employee was the steward. Again,
the situation is unlike that of Segedi, Eimer, Bava,
Goblesky, and Dobrinski. They discussed the limitation
on the exercise of their right to hold union office with
their union representatives and agreed to the limitation
in writing.
Accordingly, we find the General Counsel’s reliance
on Barton Brands and Aces Mechanical Corp. to be
misplaced.
Under all these circumstances we find that the arbi-
tration award is not palpably wrong. Accordingly, we
defer to the award and shall dismiss the complaint.
1247BETHENERGY MINES
CONCLUSION OF LAW
By conditioning the reinstatement of Mark Segedi,
Fred Eimer, Patsy Bava, Joseph Goblesky, and Jared
Dobrinski on their written agreement not to hold office
or seek to hold any union office or to act as represent-
ative of the Union before February 1, 1993, in the cir-
cumstances of this case, the Respondent did not en-
gage in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
ORDER
The complaint is dismissed.