General Telephone Co. of Michigan

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 737 (N.L.R.B. 1980)

GENERAL TEI.EPHONE COMPANY OF MICHtlIGAN 7 17 General Telephone Company of Michigan and Local 1106, International Brotherhood of Electrical Workers, AFL-CIO. Cases 7-CA-15680, 7- CA-15708, and 7-CA-15874 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, ANI) TRUESDALE On December 17, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel and Charging Party Union filed exceptions and supporting briefs; Respondent filed cross-ex- ceptions and a supporting brief; and the Charging Party filed an answering brief to the cross-excep- tions. 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, cross-ex- ceptions, and briefs, and has decided to affirm the rulings,' findings, 2 and conclusions of the Adminis- trative Law Judge only to the extent consistent herewith. In this proceeding, the General Counsel alleged that Respondent had violated Section 8(a)(3) and (1) of the Act by: (a) discharging employees, (b) suspending employees, and (c) issuing written rep- rimands to employees because of their participation in a lawful economic strike which ran from May 15 to July 7, 1978. The General Counsel further al- leged that, by disciplining certain employees for al- leged strike misconduct because the Union had chosen to invoke its internal disciplinary proce- dures respecting certain employee conduct during the strike, Respondent had also violated Section 8(a)(3) and (1) of the Act. Additionally, the amend- ed complaint alleged that Respondent had violated I On October I, 1979, the first day of the hearing herein, Respondent filed motions to stay the proceedings indefinitely and to postpone the proceedings pending response from the General Counsel to Respondent's motion pending before him for production of certain records and certain persons under subpena in connection with another proceeding. We concur with the Administrative Lay, Judge's denial of these motions. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Producr. Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings We hase further considered the Union's contention that the Administra- live Law Judge has evidenced a bias or at least an appearance of bias in this proceeding We have carefully considered the record and the atl- lached Decision and reject these charges of bias alleged b) the lUnion as unsupported 251 NLRB No. 99 Section 8(a)(1) of the Act when its agent, Richard Good, allegedly informed employees that they were being disciplined because the Union chose to invoke its internal disciplinary procedures. Finally, the amended complaint alleged that Respondent violated Section 8(a)(5) and (1) of the Act by refus- ing to furnish certain personnel records to the Union. In his Decision, the Administrative Law Judge recommended that all of the complaint alle- gations be dismissed., Background The amended complaint in this proceeding al- leges that two groups of employees were illegally disciplined for strike activities occurring during a lawful economic strike. Specifically, paragraph 11 of the complaint alleges that, between July and Oc- tober 1978, certain employees were disciplined for their participation in the strike. 4 Further, the com- plaint at paragraph 12 alleges that between Septem- ber and October 1978 certain employees were also disciplined for strike activity because the Union chose to invoke certain internal disciplinary proce- dures against nonparticipants in the strike.5 With regard to the allegation at paragraph I1, the Ad- ministrative Law Judge found that, although Re- spondent had disciplined some employees for strike-related activity, Respondent had established an honest belief that those employees had engaged in unprotected strike activities. Accordingly, the Administrative Law Judge found that Respondent's disciplining of those employees did not violate the Act. We disagree. From May 15 to July 7, 1978, there was a strike of approximately 3,000 of Respondent's nonsu- pervisory employees, who were represented by the Charging Party at 13 locations in the State of Michigan. About 100 unit employees did not quit work during the strike. On June 28, 1978, the par- ties reached a detailed strike settlement agreement which was later ratified by the employees. The agreement contains two clauses which are relevant here. Paragraph 3,A, deals with discipline and reads as follows: Whenever Management has or shall have a reasonable and honest belief that employees have participated in unlawful or unprotected activity during the period of strike, discharge : The Administrative aw Judge's dismissal of the 8(a)(5) allegation respctling the furnishing of personnel records ha, not been excepted to and will not be addressed These employees tire listed im Appendix A of the amended complaint s These emploees disciplined h Respondent are listed at Appendix H of the complaint It appears that all emplosees 1. ith one exceptioli. ee fri. 21I hbelos ) ho are listed in Appendix B as hs iig been dlsciplined on or after September 2 1 9 78. are also alileged n Appendcll A as ha ing heen disciplined for participating in the trike 738 I) ECISIONS O()F NATI()NA I AB()R RELATIO)NS BOARI) or lesser disciplinary action has been or may be taken. Following this clause is a detailed grievance and arbitration procedure for use when either an em- ployee or the Union felt that a particular disciplin- ary action was unwarranted. Additionally, para- graph S,B, concerning discrimination reads as fol- lows: Both Management and Union agree that nei- ther shall discriminate in any manner in the treatment of persons who are employees be- cause of their participation or nonparticipation in a lawful and protected activity during the period of the strike. During the strike, Respondent discharged several employees for misconduct occurring during the strike. These discharges are not the subject of any complaint allegation. Shortly after the strike ended, however, Respondent commenced further action against a number of other employees, again asser- tedly for strike misconduct. During the period from July I I through October 17, 1978, Respond- ent disciplined about 37 employees, including 2 em- ployees who were discharged. After the strike ended, the Union proceeded to arbitration on at least some of the disciplinary ac- tions,i but for the most part it is unclear which cases went to final arbitration and with what re- sults. After the strike, the Union also proceeded to bring internal charges against some of its members either for working during the strike or for refusing to join the Union's picket line. 7 At the hearing, the parties stipulated that the in- dividuals named in Appendixes A and B of the amended complaint "were disciplined by Respond- ent in the amounts of discipline indicated on the documents for conduct occurring during the course of the strike."8 (Emphasis supplied.) Respondent con- i it.s cross-exccptions. Respondent contenlds that, cronlrarN to the finding of the Administratise Lau Judge. the Union did not follou tihe arbitration procedure set forth in the strike settlement agreement hut i- stead pursued Respondent's disciplinar actionlls under the regular gries- ance procedire In view of our decision belows, we finld it unllecessar to resollse this apparent factual conflict ' On August 22. 178, Respondent filed a charge With the Board (Case 7 Ctt 4233) alleging that. by disciplining its members for srike-related conduct, the Uniron had breached the strike settlement agreement arid its duty to bargain in good faith. Thile Regional Director advised Respondent ii September 29. 1978 of his refusal Io issue a complailnt il that case the Regionlial Director's decision not t issue a complainlt wa;ls susta;ined by the iGeneral Counsel's ()ffice of Appeals in Washilgtlrl. I)C. it N- 'ember 30. 1978 A moltionl fior reconsideration was denied on Septemhber 18. 1979 M he Admilistrative l.al Judge pparetlly concluded that the mncal- inag of this stipulation was confiounided wshen, after reading tire stipulation into the record but hefore Responldenlt's counsel joined ill it. counsetl fir the General Counrsel paraphrased the stipulation hy saying they swere disciplined for what happened during that perird." We d nrot agree that the (ieneral Counsel's paraphrasing f the stipulation renders its ileanlilng unclear Mreover, inarsmuc h as Responideli's defense the tllfair labr tended, however, that these employees were disci- plined based on its honest belief that they had en- gaged in misconduct during the strike. Respond- ent's assertion of honest belief consisted primarily of oral testimony of its representatives, who de- scribed, in general terms, the procedures through which it had arrived at the list of employees to be disciplined, and the type of discipline to be meted out. In this regard, Respondent's representatives testified that they had relied on reports from police and security officers retained to oversee Respond- ent's property during the strike, as well as affida- vits signed by Respondent's supervisors and other individuals who had been at the various strike loca- tions. Respondent's witnesses further testified that so-called disciplinary action reports were prepared for, and given to, each disciplined employee. These reports allegedly indicated in writing what conduct constituted the reason or reasons for the disci- pline. 9 Discussion The Administrative Law Judge apparently con- cluded that Respondent established an "honest belief' that the disciplined employees had engaged in misconduct. Accordingly, he reasoned that, under the case law discussed below, the burden shifted to the General Counsel to prove that the employees did not engage in such misconduct. Un- fortunately, the Administrative Law Judge did not explain the basis for his finding that Respondent had established the requisite "honest belief." The Administrative Law Judge did find, however, that there were indications in the record that the listed employees, in fact, had engaged in unprotected ac- tivity. We deal with these latter comments of the Administrative Law Judge below. The law is clear that when an employer disci- plines an employee because he has engaged in an economic strike, such discipline violates Section 8(a)(3) and (1) of the Act. An employer may defend its action by showing that it had an honest belief that the employee disciplined was guilty of strike misconduct of a serious nature. If the em- ployer is able to establish such a defense, then the General Counsel must come forward with evidence that either the employee did not engage in the con- practice allegatilns is Its assertlioll Iat thre trained erlployrees Stere dici- pliled for strike miscillduct, it is clearly coinceding that the eplo ees wvere disciplined flr conrduct ccurrrig during the course of the strike t Wilth the exceptirun of those pertaining t ermpl oyee Michael Mohr, discussed below, nole t ,f the docunents relied on by Respoindent or Ihe disciplinary action reports uail placed ill evideuce by Responldert 'Whil Mohr was included ill Appendix A of the amillended c0Iuirplatlll as a c1m- ployer swhol had been illegally disc iplned for particilpatilng il the strike, the jGeneral Counsel ctlltenlds ill his brief that NMihr l as a special case in that lie wails 111I disciplined hccIausc (if his strike acitlieC p.tr 'i - His sluilttr i Is siscjused hcol\s (I'GNFRAI I II'It()NF C()NMPANY ()F NMIC11itl(,AN 7 q duct asserted, or that such conduct \as protected. The burden then shifts back to the employer to rebut such evidence. ° While Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage ill other concerted activity for their mutual aid and protection, not all conduct which occurs in the course of a labor dispute is within the purview of Sections 7 and 13. 1 In this regard, strikers have been deemed to lose the Act's protection when they seized the employer's property, or engaged in acts of "brutal vio- lence" against a nonstriker. At the same time, it is true that not every impropriety committed in the course of a strike deprives an employee of the protective mantle of the Act. Thus, absent violence, the Board and the courts have held that a picket is not disqualified from rein- statement despite participation in various inci- dents of misconduct which included using ob- scene langauage, making abusive threats against nonstrikers, engaging in minor scuffles and disorderly arguments, momentarily block- ing cars by mass picketing, and engaging in other minor incidents of misconduct. [Citations omitted.] 1 2 In short, the seriousness of each act of misconduct alleged must be analyzed and the cases of mere "animal exuberance" differentiated from those in which the misconduct is so flagrant or egregious as to require subordination of the employee's protect- ed rights in order to vindicate the broader interests of society as a whole.' And, while an employer may premise its belief of striker misconduct on re- ports from its guards and other written reports, it cannot rely upon a mere showing of general vio- lence and destructive activity. It must rely instead on specific misconduct of the strikers whom it dis- ciplined.' 4 The mere fact that there may have been misconduct engaged in by some strikers does not without more impute culpability to the individual employees disciplined. Moreover, unauthorized acts of violence on the part of individual strikers are not chargeable to other strikers in the absence of proof that identifies them as participating in such violence. ' "' Rubin Brothcr liot.rcur. i,,-. NI RR 10 (1152): -merlln (Clal,- atoid (Comrpuin. /, 2 N R 4410 (1 8) See, generalls. N I.R Burelup anrdl S,. Inc , 7 11 21 1164) , ( UC)cualcd. Im1, 220 NIRt 51 (1975) ,ron rerCe (Cauuul, Ie .27 N RBH 304 (1973) l C. McQuaide I. supra at 594. rel ting. ner c/lia. oln M;I/Ai Wcagoin Dr,rc [ 'ntmon - .Vcodv,4mtcccr Durc. s .. I12 L: S 287 23 1 141) 14 Gidding & L.xH, . na, . 241) NI R 441. 447 (197 '). citing, iter a/lic. M, r Rfluclcvn s Ior,,tm,. I1r.. 224 Nl.R H 3 1197h). arid -ilr ild u ircl. . Ir/1t, 184 NlRH 472 (1970) ', lincrican ( aiuarti C(orepun/ . I1c. cupr. , id (C oron[ Ju/al, Inc cupr at 105 Here, by virtue of its stipulation at the hearing. Respondent has conceded that the listed employees were disciplined for conduct occurring in what Re- spondent concedes was a lawful economic strike. Thus, the General Counsel has established a prinma Jbcic violation of the Act. 6 In its defense, Re- spondent has merely contended in a general fashion that the disciplinary actions were based on its honest belief of the strikers' unprotected activity. but has not, with the exception of employee Larry Thrash discussed below, presented any evidence showing specifically what conduct it claims re- moved each disciplined employee from the protec- tion of the Act. 17 By failing to supply the neces- sary evidence at the hearing, Respondent has not sustained its burden of establishing a basis for its as- serted "honest belief' that the particular employees named herein engaged in unprotected activities.' We note in passing that the burden of establish- ing an "honest belief' of misconduct requires more than the employer's mere assertion that an "honest belief' of such misconduct was the motivating force behind the meting out of discipline. Meeting the burden also requires more than a general state- ment about the guidelines used in establishing the alleged "honest belief." Rather, it requires some specificity in the record, linking particular employ- ees to particular allegations of misconduct. The di- lemma which the Administrative Law Judge's ac- ceptance of Respondent's concept of "honest belief' has created is borne out by the following. As noted, under the Rubin Brothers burden of proof, once the employer establishes an "honest - Sec. fir example Narteroal/ lummutin. lvsmon o/ icaoti Sil. (' r- prlrili. 242 NI.RH 24 (1979) i7 f Ohio Power Comlpant, 215 Nl RH t 62 ( 174) here the respond- enl offered In eidence a letter rtten to the alleged discrimiinaec the dl) fllhcl ilg he allged mis n ldclict setting forth the grounds for the discharge ' As noted. Respondent stipulaled that the empl)yees named in Ap- pendixes A and H f the amended complaint ere disciplined for conduct occurring during the course of the strike. After obtaining this lipulatilon. the (teneral Counsel e essentially rested Its case At fn 2 f h [Decisioln, Ihe Administrative I. a Judge recommended Ihat. i the Hoard fi und that he Administrative Law lJudge had misapplied the "holnesl belhel" hurdclen of proof, the record. upon proper motiln. hould be rcopened Ior further offer% of proof by Respondent respecting e dence cof emplo)et misconlduct due ict thle "blique way the seeming admissiln o)l sroullngdo- inlg wis drawn from Respondent" and the "persuasi e ndicalltll" that Relpoi"icn actiallN possessed evidence of misconduct bh the emplosees inl'olxed Although we cionclude thai the Adnimllislrall. I .as Judge ap plied thile burden of proof incorrectl. sve do nol find, as suggested b te Adnmilictratilc l.a Judge Ihat Respondenl is therebi entilled it a second opportulnily to offer pecific evidence f srike misconductl en- gaged i hb eploecs named in the amellded complaint In seeking the stlpulatiln, the General Counsel did not obtain a conclusive adminlsson of rongdoiing" bt rather established a pririo ,Jcic case it killa fuI C Ol- dtlue Respo dlldenl i;as I1ti1 presented a:i the hlrlilg from presenclllllg ci- denltcc i oerc.-rlle this pria.J cice ciase, nor frnm il;kiig ani .approlpriate ,,fter of prcof Norcoxse. ss f hc oIegsItanling Hoard precedent ilct'rl sciltiig ftoriih tle ialure of thte respcecii e hurdeln, of prcof in cascs such a1s t1I ililal 1e. Resplonident caolilt be ald Ic1 ha been tIlnallrl surprised hs 1 (ieral ('ctiiisel Il'di c.I tf p[tceslltilng it, case 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belief" of misconduct, it is the General Counsel's responsibility to show that the disciplined employ- ees, in fact, did not engage in the misconduct. But, in this case, that is an impossible task for the Gen- eral Counsel since Respondent has failed to identify the alleged misconduct of each employee. It is not the General Counsel's responsibility to ferret out what alleged misconduct Respondent relied on in disciplining each employee. That burden should rest on the party who is in the best position to know; i.e., Respondent. Further, as noted above, not every act of misconduct during a strike auto- matically warrants discipline. Accordingly, by fail- ing to detail in the record the activity each striker was accused of, Respondent has made it impossible for us to determine whether, in any event, the al- leged activity was sufficiently serious to warrant the discipline imposed.' 9 Thus, we conclude that Respondent's disciplining of the employees named in Appendix A of the amended complaint20 violat- ed Section 8(a)(1) of the Act. 21 19 See American Cyanamid Company. Inc.. supra. As noted above, the Administrative Law Judge appears to have concluded that Respondent had met its burden of establishing an "honest belief' in these proceedings though the Administrative Law Judge failed to articulate any basis for so finding. He did elaborate on various factors which, in his estimate, indi- cated "that in fact the listed employees engaged in unprotected activity." We disavow any reliance on this analysis of the Administrative Law Judge set out at sec. Ill, , par. 8-12, which is based in large part on a combination of conjecture, supposition, or legally inaccurate reasoning While we do not here dissect each of the factors noted by the Adminis- trative Law Judge in this analysis, we do specifically disavow the com- pletely unwarranted inferences the Administrative Lass Judge drew from: (1) the hiatus between the date of the disciplinary actions and the date of the filing of the charge herein (see, e.g., Harold L. Fleenor. Jr., d/b/a 7- Eleven Food Store, 242 NLRB 104 (1979), involving the same Administra- tive Law Judge); (2) the withdrawal from the case during the hearing of two names listed in the amended complaint; (3) the failure to include in the complaint two employees named by Respondent in a letter to the Union advising it of disciplinary actions: and (4) the General Counsel's alleging two theories of violation covering certain of the strikers. 20 Exception is made for employee Michael Mohr named in Appendix A who is treated separately below. Additionally, we note that Respondent did present evidence with regard to the alleged misconduct of employee Larry Thrash upon which it assertedly relied in disciplining him. Thus, Respondent's labor relations manager, Robert Koneckny, testified that Thrash was suspended for 30 days for striking a security guard and for trespassing on company proper- ty. This testimony effectively shifted the burden, with regard to Thrash, back to the General Counsel to establish either that Thrash did not engage in such conduct, or that the alleged conduct was protected by the Act. Thrash did not testify, nor did any witness aside from Koneckny testify regarding Thrash's conduct. Therefore, the General Counsel has not sustained his burden, and we must conclude that the disciplining of employee Thrash was not violative of Sec. 8(aX I) of the Act. 2 In such circumstances, we find it unnecessary to decide whether the discipline found unlawful herein was also violative of Sec. 8(a)(3) of the Act. NL.R.B. v. Burnup d Sims. supra; National Aluminum, supra. And, in view of our conclusion that Respondent's disciplining of the employees named in Appendix A was violative of Sec. 8(a)(l) of the Act, we also find it unnecessary to pass on the alternate grounds of liability posed in par. 12 of the amended complaint alleging, in substance, that the employ- ees in Appendix of the amended complaint were disciplined as well be- cause the Union chose to invoke its internal disciplinary procedures In this regard, we note that employee Roger Hinton was included on the list of employees disciplined for the alternate grounds (Appendix B of the complaint) but was omitted from the list of employees disciplined solely for protected strike activity (Appendix A). Nevertheless, employees on The 8(a)(1) Allegation General Counsel also alleged in this proceeding that Respondent violated Section 8(a)(l) of the Act by its supervisor, Richard Good, informing certain employees at one of the involved facilities that they were being disciplined because the Unon had invoked intraunion disciplinary procedures against certain of the nonstrikers. We shall dismiss this al- legation for reasons we note below.2 2 Good, one of Respondent's local company serv- ice managers, had the responsibility of handing out five disciplinary notices to employees whom Re- spondent had disciplined for strike-related conduct. The precise testimony regarding Good's remarks when handing out these notices is less than consist- ent. Employee Starkweather testified first that, when Good gave him his disciplinary notice, Good said something "to the effect that" the disciplinary action was in retaliation for the Union's internal disciplining of employees. Then, upon objection by Respondent's counsel, Starkweather stated more positively that Good had said that, in fact, the dis- cipline was for that reason. Union Steward Brush testified that, when Good gave him his notice, Good "made the statement that he felt it was in re- taliation for the Union fining of its members," and that "he [Good] also made a statement to the effect that he felt it would be a trade-off between the Company and the union." (Emphasis supplied.) Good himself denied that he indicated the disci- pline was in retaliation for the Union's disciplining its members. The Administrative Law Judge made no credi- bility resolutions respecting Good's alleged re- marks. However, even if the General Counsel's witnesses were to be credited, we find it is simply not clear what Good said. In this regard, Brush and Starkweather's testimony concerning Good's use of such terms as "felt that" and "to the effect that" renders uncertain the content and import of his remarks. It thus appears that the General Coun- sel has not, even relying solely on his own wit- nesses, established that, as alleged in the amended complaint, Good "informed" employees that Re- spondent, in fact, had a retaliatory motive for the disciplinary actions. Accordingly, we dismiss this complaint allegation. both lists are stipulated to have been disciplined for strike-related conduct and Respondent has presented no evidence of unprotected activity spe- cifically on the part of Hinton Hence, we find that Hinton, as well as the employees listed in Appendix A. with the exception of Michael Mohr and Larry Thrash, was unlawfully disciplined 22 Although the Administrative Law Judge discussed Good's remarks in the context of other violations alleged, he made no specific finding re- garding whether the remarks themselves were unlawful. He did find affir- matively that Good was in the lowest rung of supervisory authority and had nolhing to do with Respondent' decision to take disciplinary actions GENERAL TELEPHONE C()MPANY ()OF MICHIGAN 741 The Status of Michael Mohr As noted above, Respondent also disciplined em- ployee Michael Mohr, but his status is different from those of the other employees listed in Appen- dixes A and B of the amended complaint. Mohr was given a 10-day suspension on September 8, 1978, for allegedly harassing some employees, who had ,.'t joined the strike, after the strike had termi- nated.2 3 Mohr's case went to arbitration. The arbi- trator found some but not all of the incidents of ha- rassment alleged and reduced the suspension to 3 days. The General Counsel introduced into evi- dence in the hearing here copies of both the arbi- tration hearing transcript relating to the discipline of Mohr and the arbitrator's award. The General Counsel asserts, in essence, that these exhibits es- tablish that Mohr's conduct was protected; that the Board should not defer to the arbitrator's award; and that Respondent's disciplining of Mohr was violative of Section 8(a)(3) and (1) of the Act. 24 According to the record of the arbitral proceed- ing and the arbitrator's report, Mohr was disci- plined for allegedly harassing two employees, Aaron and Carol Rockwell (father and daughter), during the month following the conclusion of the strike for not having participated in the strike. Such alleged harassment consisted primarily of var- ious derogatory, threatening, and vulgar remarks directed toward the Rockwells, and, on at least two occasions, spitting at Carol Rockwell. Even assuming that Mohr engaged in the lesser degree of harassment found by the arbitrator, such conduct clearly occurred after the termination of the strike. Thus, the General Counsel has not established that the conduct was prima facie protected activity. Nor has the General Counsel established that such ha- rassment was, in fact, protected activity.25 Accord- ingly, we agree wth the Administrative Law Judge that the complaint allegation with respect to employee Mohr should be dismissed. CONCLUSIONS OF LAW 1. The Respondent, General Telephone Compa- ny of Michigan, is an employer engaged in com- 23 Contrary to the Administrative Law Judge, all parties agree that Mohr was not disciplined for any activity occurring during the strike 24 As urged by the General Counsel. the arbitration proceeding re- garding Michael Mohr is inappropriate for deferral under Spielherg Man- ufacturing Company, 112 NLRB 1080 (1955) In reaching his decision, the arbitrator relied on the subjective reactions of the employees who were the object of Mohr's actions However, the Board has long held that it will look to the effect such conduct may reasonably tend to produce rather than subjective reaction that is actually engendered. See, for exam- ple, Twilight Haven. Incorporated. 235 NLRB 1337, 1343 (1978) Accord- ingly. the arbitrator's decision is repugnant to the Act and is inappropri- ate for deferral a2 See, e g. The Timrnkln Companr. 213 NLRB 486, 489 491) (1974) merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1106, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By discharging certain employees, suspending certain employees, and issuing written reprimands to certain employees because of their protected participation in an economic strike, Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as found herein, Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has violated Sec- tion 8(a)(l) of the Act by discharging, suspending, and otherwise disciplining Roger Hinton and the employees listed in Appendix A2 6 of the amended complaint for their protected participation in a strike, we shall order Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully dis- charged certain employees listed in Appendix A for their participation in a lawful strike, we will order Respondent to reinstate these employees to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. Additionally, these employees and the employees listed in Appendix A whom Respondent unlawfully suspended and oth- erwise disciplined for their participation in the strike, plus Roger Hinton, shall be made whole for any loss of pay, benefits, or other rights and privi- leges they may have suffered as a result of the dis- crimination against them. Backpay thereon is to be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).27 Finally, Respondent shall be ordered to expunge from the personnel records of these employees all references to the discharges, suspensions, and disciplinary actions found unlaw- ful herein. 2, All references Io Appendix A hereinafter shall not include employ- ees Michael Mohr or Larry Thrash 27 See, generally. isi Plumbing Heatring Co., 138 NLRB 716 (1962) Member Jenkins would award interest on the backpay due based on the formula set forth in his dissent in Olympic Medical Corporation, 250 NLRB Ni 11 (19801 742 DI):CISIONS ()F NAONAINA I Al()R REL.AI'I()NS H()ARI) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, General Telephone Company of Michigan, Muske- gon, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Suspending or issuing written reprimands to employees because of their participation in protect- ed concerted activity including an economic strike. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make Roger Hinton and the employees listed in Appendix A of the amended complaint who were unlawfully suspended or otherwise disciplined whole for any loss of pay, benefits, or other rights and privileges they may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision and Order enti- tled "The Remedy." (b) Expunge from the personnel records of' the discriminatees all references to the unlawful sus- pensions and disciplinary actions. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plants in Muskegon, Owosso, Imlay City, Alma, Edmore, Hubbard Lake, Mt. Pleasant, Long Lake, Howard City, Tecumseh, Hillman, Ossineke, and Alpena, Michigan, copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. 28 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the sords in the notice reading "Posted by Order of the National ahbor Relations Board" shall read "Posted Pursu- ant I a Judgment of the L nited Statles Court of Appeals Enforcing an Order of the NationaI labor Relution,, Board" (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX No'riCt To EMPI OYEFS POSTI I) BY O)RI)IR OF THE NATIONA. LABOR R L.A IONS BOARD An Agency of the United States Government WE WIll. NOT suspend or give written repri- mands to employees because of their participa- tion in protected concerted activities including an economic strike. WE WIL.L. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the Act. WE wnll. make the employees unlawfully suspended or otherwise disciplined for their participation in the economic strike whole for any loss of pay, benefits, or other rights and privileges they may have suffered, with inter- est. W. Wlli. expunge from the personnel re- cords of the employees unlawfully suspended and disciplined all references to the unlawful suspensions, and disciplinary actions. GENERA TEI.EPHONE COMPANY OF MICHIGAN DECISION SIAIINM1NI 01- THI CASE THOMAS A. RIcc, Administrative Law Judge: A hear- ing was held in this proceeding in Alma, Michigan, on October I and 2, 1979, on complaint of the General Counsel against General Telephone Company of Michi- gan, herein called the Respondent or the Company. The GE(NERAl. TI.FI141)NIE C()MPANY ()F MICHIGAN 743 complaint issued on January 23. 1979, based upon charges filed by Local 1106, International Brotherhood of Electrical Workers, AFL-CIO. herein called the Union. The issues presented are whether the Respondelt violated Section 8(a)(1) and (3) of the Act by taking dis- ciplinary action against a number of its employees. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FIND)IN;S OF FACI I. THE BUSINESS Of THE RSPONI)DNT The Respondent, a state of Michigan corporation, with its principal office in Muskegon, Michigan, is engaged in furnishing telephone and related services throughout that State. During the calendar year 1979, a representative period, its gross revenues were in excess of $1 million, of which more than $50,000 was received for the transmis- sion of interstate messages. During the same period the Respondent purchased goods and materials from out-of- state sources valued in excess of $50,000. 1 find that the Respondent is engaged in commerce within the meaning of the Act. I1. THE I.ABOR ORGANIZATION INVOI.VE) I find that Local 1106, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Il. THE ALLEGED UNFAIR LABOR PRACTICES A Picture of the Case In 1978 there was a strike by this telephone company's approximately 3,000 nonsupervisory employees; it lasted from May 15 to July 7. About 2,900 employees quit work while less than 100 did not. Bargaining towards contract renewal, which had begun before the strike, continued, and on June 28 the parties reached total agreement upon strike settlement. The negotiated com- promise, very detailed and fully written up, was ap- proved by vote of the employees and signed. During the strike, the Company discharged several employees because of misconduct on their part in con- nection with the strike activities. Just what form their misbehavior took, whether it was violence or threats of violence, or what, the parties chose not to explain at this hearing. But there is no question about the fact these per- sons were fired because they engaged in conduct not protected by this statute. Shortly after the strike ended, the Company began to take further disciplinary action against a number of other employees. And again, according to the position the Re- spondent took at the hearing and as management agents told each and every employee involved at the moment of discipline, the reason was because of their misconduct of one kind or another in the course of the strike. Starting on July 11 and ending in October 17, the Company disci- plined about 37 persons-2 were discharged, 15 were suspended from work for periods varying from I to 30 days, and the rest were given formal warning notices. No one on behalf of the Union complained to the Na- tional I.abor Relations Board as all this %was going on On October 20, the Union filed its first charge against the Company, accusing it of two illegal purposes in all these disciplinary actions-the first being just to punish people for having struck, and the second to interfere in the Union's internal affairs vis-a-vis its members. This charge listed disciplinary actions taken from September 27 to the filing of the charge. On October 27, and again on December 14, the Union filed two other charges, nowx adding the disciplinary actions taken against eight named employees, all dated between July 11, 4 days after the strike ended, and July 17. The General Counsel's first complaint issued on De- cember 19. As to all the disciplinary actions taken by the Company, it lists 30, dated from Jul)y 23 to October 17, and alleges only that in each instance the Respondent's reason was because the employees had gone on strike, ergo, multiple violations of Section 8(a)(3). On January 23, 1979, the General Counsel issued an amended com- plaint, now listing 34 disciplinary actions. Here the alle- gation of illegality is twofold. As to all 34 of the disci- plinary actions taken, the Company is accused of having issued them to punish these particular employees for having participated in the strike. As to 25 of these-all those occurring from September 29 on, the Company is also accused of having done this "because the Charging Party chose to invoke its internal disciplinary procedure with respect to certain of its members or former mem- bers." The Respondent denies the commission of any unfair labor practices. Affirmatively, it contends, among other defenses, that the sole reason why all these people were disciplined as they were is because they had all each en- gaged in some form of misconduct not protected by the statute. The facts thus far stated are clear on the record be- cause they appear explicitly in the pleadings and other formal documents received in evidence. Beyond this, there is confusion in the total picture presented so that clarification is required before the real issue in law can be justly appreciated. The blurring of reality was caused in part by the inevitable friction between the parties to the collective-bargaining process still visible a year after the strike, and in part by the way the case was tried. In any event, the following facts, also proved of record, bear a direct relationship to what happened and must be set forth. Company and union representatives met a number of times during the strike in a continuing effort to put an end to the industrial strike which was badly damaging both sides. This Union has represented these employees for upwards of 30 years, always amicably. Such a long story for the least reflects their common appreciation of the virtue of the basic principle of this statute, that the procedures of collective bargaining, whereby binding compromise of economic differences takes the place of strike and recrimination, is a good thing, and to be en- couraged. On June 28, they signed a complete strike set- tlement agreement; it put at rest all their conflicting de- mands as to the terms of a new contract covering the 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD usual terms and conditions of employment for a further fixed period. The strike settlement also provided, after full discussion between the parties, the following clauses with respect to the employer's interest in properly disci- plining employees who had misbehaved during the strike and with respect to the desire to both parties that neither side keep alive the inevitable antagonism which all too often develops during a strike between strikers and non- strikers. One part of the strike settlement agreement-called paragraph 3A-Discipline- reads as follows: Whenever Management has or shall have a reason- able and honest belief that employees have partici- pated in unlawful or unprotected activity during the period of strike, discharge or lesser disciplinary action has been or may be taken. This clause is followed in the contract by a very de- tailed grievance and arbitration procedure to be used in the event any employee or the Union should feel that any particular disciplinary action by the Company was unwarranted, or too severe. Another clause of the strike settlement agreement- called paragraph 5B-Discrimination-reads as follows: Both Management and Union agree that neither shall discriminate in any manner in the treatment of persons who are employees because of their participation or non- participation in a lawful and protected activity during the period of strike. It is what the parties to the strike settlement then pro- ceeded to do that is somewhat confused in the record. And the main reason for the absence of a true picture is the continuing objections made, on almost every page of the transcript, by both the General Counsel and counsel for the Union. It was their repeated insistence that any evidence concerning the making of the strike settlement agreement, its very terms, as well as the initial implemen- tation of the agreement, are irrelevant to any issues raised by this complaint. Nevertheless, the record does establish two facts that in my considered judgment are pertinent, as follows: (1) The Company started its disci- plinary actions, assertedly based upon the misconduct of certain employees, and the Union proceeded to the arbi- tration procedures, as agreed upon in paragraph 3A of the strike settlement. How many grievances were started, how many went to final arbitration, what the decisions were in those, it is not possible to say on this record. (2) Its signature to paragraph 5B of the strike settlement agreement notwithstanding, the Union quickly started to bring internal charges against certain of its members, dis- ciplinary action taken for working during the strike or for refusing to join the picket line. The record also shows, albeit indirectly, that there came a time when the Company, indignant at the Union's flouting of its express agreement not to "discriminate" against any employees "because of their participation or nonparticipation" in the strike, took the position it too would deem itself no longer bound by the settlement contract, or any of its terms. With this, the arbitration proceedings which were going on floundered, and charges and countercharges were then thrown back and forth. The intended peace which the collective-bargaining process was theoretically intended to bring about, went up in the air. There are a number of other distracting elements in the transcript of testimony and among the documents re- ceived in evidence. Many of these were offered in con- nection with a variety of motions made by the Respond- ent, all of which were denied. Talk here about all these additional unsupported statements of fact would make this decision as unintelligible as much of the record argu- ment. One final oddity, however, must be mentioned. At the start of the hearing the General Counsel pro- grammed continuance of the hearing from one city to an- other in the State of Michigan, throughout which the Respondent furnishes telephone service. With the 35 or so employee victims of 8(a)(3) violations so dispersed, it was going to be necessary to take 15 witnesses or so at each of 3 cities. Within half an hour, after calling only two witnesses to a single brief conversation of a very minor nature, the General Counsel announced he was resting his entire case and he would call no further wit- nesses at all. The Union, as Charging Party, then said it too would offer nothing in support of the complaint. To say the least, the Respondent was taken by surprise. This technique could be viewed as virtually a motion for summary judgment on the pleadings. In a situation of this kind, the best approach is to revert to fundamental law. Does the substantial evidence on the record consid- ered as a whole prove the allegations of the complaint? N.L.R.B. v. Glen Raven Silk Mills, Inc., 203 F.2d 946 (4th Cir. 1953). I. The first of the two complaint allegations In meaningful part, paragraph 11 of the complaint reads: "Respondent discharged . . . suspended . . . and issued written reprimands to certain employees . . . be- cause of their participation in the strike..." The Re- spondent's answer denies that paragraph. Within minutes after the hearing opened, the General Counsel proposed a stipulation on the record precisely reading that: "the individuals named [in the complaint] . . . were disciplined by the Respondent . . . for con- duct occurring during the course of the strike..." Before the Respondent could agree or not agree, the General Counsel paraphrased his idea-an absolutely confusing error in the hearing of a case such as this!- adding the phrase "they were disciplined for what hap- pened during that period .... " The Respondent on the next page of the transcript agreed with the proposed stipulation. This is the totality of the proof said to sup- port paragraph 11 of the complaint. Not a single witness was called on the entire issue. I find the evidence said to prove this complaint allega- tion insufficient. I shall therefore recommend dismissal of the complaint to that extent. The affirmative burden of proof always resting upon the General Counsel has not been met. A man may not be disciplined for striking. Does the phrase "what hap- pened during that period" state the same thing as "strik- ing"? Is the act of striking the same as "conduct occur- ring during the course of the strike"? I think not. What "happened" this record does not show. What "conduct" GENERAL TELEPHONE COMPANY OF MICHIGAN 745 was it that the Respondent admitted reacting to, this record does not show. To say, as the General Counsel suggests in his brief, that by agreeing to these words counsel for the Respondent intended to admit the men were disciplined for the mere act of striking is an absur- dity-considering everything of record. If the prosecution argument made here is correct, it means that whenever a complaint alleges a man has been fired "for striking," and the answer contains no more than a denial, the burden of proof shifts before the hear- ing starts, and unless the employer comes forth with a convincing case in support of an affirmative defense of discharge for cause, an unfair labor practice finding must automatically be made. I think the General Counsel mis- conceives Board law. The lead case in point, and the one upon which the General Counsel in fact relies in his post-hearing brief, is Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952). In per- tinent part it reads as follows: "We are . . . of the opin- ion that the honest belief of an employer that striking employees have engaged in misconduct provides an ade- quate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the Gener- al Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such miscon- duct. The employer then, of course, may rebut the Gen- eral Counsel's case with evidence that the unlawful con- duct actually did occur. At all times, the burden of prov- ing discrimination is that of the the General Counsel. This modification [of an older rule] . . . does no more than recognize the true nature of the General Counsel's obligation to establish all the essential elements of a charge that discrimination has occurred when a striking employee is refused his job. It merely places an employ- er's honestly asserted belief in its true setting by credit- ing it with prima facie validity."' That the General Counsel was well aware, indeed all participating parties, that this respondent had an "honest belief" that the employees here involved had engaged in misconduct, cannot be questioned. If, as the quoted rule states, the employer "may rebut" the General Counsel's affirmative proof in support of the complaint, it necessar- ily means that it need not offer the proof positive of mis- conduct until after the General Counsel has come forth with his own case in support. Entirely apart from the Respondent's claim of "alleged illegal and unprotected" conduct (to quote the General Counsel's brief), there is much in this record indicating that in fact the listed employees engaged in unprotected activity. (1) The strike settlement agreement expressly provides the Respondent could "discharge" or impose "lesser disciplinary" punishment where it had "a reason- able and honest belief' that there had been unprotected or unlawful activity. The Union would hardly have agreed to such a clause in what it signed had it not itself known some culprits did exist. (2) Several men were in fact fired during the strike for misbehavior of some kind This principle as affirmed by the Supreme Court in N. L RR Burnup and Sims. Inc. 379 I S. 21 (1964). with no charge being filed-undoubtedly part of "what happened" during the strike. (3) One of the Union's charges says Gerald Normandin and Betty Normandin were disciplined on July 11, their names even listed in the complaint later. But both were taken out of the case at the hearing, a clear admission that the two merited discharge. (4) In its answer to the General Counsel's complaint, the Respondent stated: "Disciplinary action referred to in the complaint was taken by Respondent against the named individuals in each and every instance because they engaged in activities which were illegal and unprotected...." With that document in evidence, as his own exhibit, can it possibly be said the General Counsel won an admission of guilt with his stipulation? (5) A number of the itemized disciplinary actions listed in the complaint went to arbitration; the record does not explain what happened there. But it does appear one man at least lost his case, although the arbitrator reduced his suspension to a lesser number of days. This means he was guilty of at least some form of misconduct, else the arbitrator surely would have cancelled the entire disci- pline imposed. (6) Each and every man disciplined was handed a formal document called a DAR (disciplinary action report) prepared by the personnel department. On it was written the direct statement he was being pun- ished "for illegal and unprotected activity," a list of the documents in the hands of the Company which proved his misconduct, such as police reports, security guards statements, supervisors' notes, etc., and the man was even told which of the management people it was who had seen what "happened" and made the damaging re- ports. The "facts" thus far listed are proved on this record in part by the reality that witnesses for the Re- spondent so testified, and in part by the fact that 10 or 15 employees present in the hearing room, who were sup- posed to testify in support of the complaint but never did, and the Union's lawyer, in many respects alert and understandably outspoken, all stood mute as the wit- nesses talked. (7) Less than a month after the strike ended, before the settlement agreement really blew up, the Company sent a letter, pursuant to the contract, ad- vising the Union of employees who had been disciplined. It includes the names of four employees as having been terminated for strike misconduct. In addition to the two Normandins mentioned above, it also names Daniel Fran- cek and Wally Francek. But the last two are not named anywhere in this proceeding. Does not this show that two more employees did engage in "illegal or unprotect- ed activities"? But the more significant thing that shows the Re- spondent was "honest" (a word from Rubin Bros.) in its belief that it did what it did for just cause, is the fact that the final complaint, by belated amendment, lists two en- tirely different theories of illegality. Paragraph II says "discharged because they struck"; this is plain assertion none of the employees ever did anything wrong. Paragraph 12 says "disciplined because the Union fined its members for not striking." The anal- ogy, if any, must be to the employer who discharges an employee who both broke the machine by his incompe- tence and went to the union meeting. If he was fired 74h ))ECISIONS OF NATIONAL LABOR REI.ATI()NS BOARD only for breaking the machine, the employer is in the clear; if he was fired only for the second reason you find an unfair labor practice; if his boss fired him for both reasons, it was an illegal act anyhow. A double motive--one legal and one illegal-is a coherent con- cept. Back to the case at bar: Could an employer have two illegal purposes in a single discharge, or suspension, or warning? If the disciplinary actions were taken merely because the men struck, and there was no misconduct, it is a cold unfair labor practice picture. In that event, the next paragraph becomes meaningless verbiage. It can only have relevance, and be understandable, if the first alleged illegal motive never existed. Paragraph 12 only comes into play if the proceeding theory fails. What it means, and the only situation where it would appear co- herent at all, is that the Respondent did have an objec- tive, perfectly lawful basis for the discipline, but would not have imposed it had the Union not proceeded with internal charges in disregard of the strike settlement con- tract. This is an understandable double-motive case, like the man who breaks the machine and goes to the union meeting. In the end, all this proves is that injection of the second concept-retaliation by the Company against the Union in resentment of its violation of the settlement contract-was a pure afterthought by the union repre- sentatives. From July 7, when the employees returned to work, up to October 20, after all the disciplines had been imposed, it went to arbitration and never voiced a word about illegal purpose, or an alternative, dual-motive theory. Its very silence throughout that period, if noth- ing else, shifts the burden of proving the unfair labor practice allegation back to the General Counsel under case law. 2 2. The alternative theory of illegality As already stated, the complaint also alleges that the reason for 25 of the disciplinary actions, all those that came after September 29, was because of internal action the Union took against its members. Here the argument is that the Respondent coerced the employees, by dis- criminating against them, in order to infringe upon their statutory right to run their union affairs as they saw fit. The truth of the matter is that insofar as its treatment of all 35 employees in question is concerned the Company did nothing different after September 29, than it had done before. Indeed, the Union's internal trials against recalcitrant members had already been in progress long before the end of September. Why does the complaint pick September 29 as the cutoff date for this special theory? The answer lies in a communication received from the Board's Regional Director to the Company re- lating to another proceeding. 2 If anlly reviewing authority should hold that I have misapplied legal precedent on he question of burden of proof. r be of he opinion that by its agreement to the factual stipulation proposed by the General Coun- sel the Respondent even inad'ertently admitted guilt, I think justice de- mands that the record be reopened, i the Respondent requests, for fur- ther offers of proof. I say this because of the oblique way the scenlillg admission of wrongdoing was drawn from the Respondent, and he very persuasive indication that the Company does possess evidence of strike misconduct hy the employees in' olved Resentful of the fact that the Union reneged in its ex- press agreement not to mistreat nonstrikers, the Compa- ny filed a charge with the Board-Case 7- CB-4233- labeling the Union's violation of the collective-bargaining agreement a refusal to bargain in good faith, as the stat- ute commands. Whether his reasons were right or wrong, the Regional Director refused to issue a com- plaint in that case and so advised the Company by letter dated September 29, 1978. One of the reasons given by the Regional Director was that there had been no "meet- ing of the minds" when the strike settlement agreement wes signed, at least with respect to paragraph 5. The Re- spondent reacted in two ways. It filed an appeal in Washington asking reversal of the Regional Director's decision. Next: Up to that date it had been processing regular grievances over the disciplines through arbitra- tion, as provided for in paragraph 3 of the strike settle- ment. With the Regional Director having decided, in his letter of dismissal, that the Union was not bound by one restrictive clause because the parties had not really "agreed" on how to live together, the Respondent decid- ed it would deem itself also free from any strictures con- tained in the same contract. Its position was that in all collective-bargaining contracts, each and every clause bears a relationship to all the others; one clause may make a concession in return for something gained in an- other clause. It implemented its decision to act, as did the Union, independently of the total contract, by at that moment refusing to participate further in the pending ar- bitrations. That this position-involving only paragraph 3 of the contract, limited to arbitration-was provoked by the failure of the Respondent to put a stop to the Union's in- ternal trial proceedings is clear, indeed, admitted by the contemporaneous correspondence. But it had nothing to do with clause 5B of the contract, issuance of disciplin- ary notices where there had been misconduct. There is simply no evidence worthy of merit to prove this second aspect of the complaint. The only two witnesses called by the General Counsel limited their testimony to a talk they had with Richard Good, a local company service manager. It was Good's responsibility to hand out five disciplinary notices to em- ployees in his station. Employee David Starkweather tes- tified that when giving him his warning slip Good said he was reluctant to do so, but under orders. When the employee asked why was this happening, Good, still ac- cording to the employee, "said something to the effect that it was in retaliation to the union fining its employ- ees." Edward Brush, the Union's chief steward, was a witness to Starkweather receiving the notice. He testified he heard Good say that day it was because the Union was fining its members, and "that he felt it was going to be a trade off between the Union and the Company." Brush also received a written notice himself the day before. As to his own talk, he recalled Good saying "to the effect that he felt it would be a trade off between the Company and the Union." Good said there was mention of the Union's trial board when he talked to Brush, but his story is that all he told the steward was he hoped what was happening GENERAl. TEI.EPHONE COMPANY ()F NMICIGAN 747 would not spoil their relationship, and that he personally was opposed to issuance of these disciplinary notices. He added that when asked if the discipline was a form of re- taliation for what the Union was doing, he denied it. I think that whatever opinion Good may have ex- pressed in the presence of these two employees means nothing in the light of the record as a whole. With so many disciplines being imposed, and with the Union bringing members up on charges, talk about the entire affair must have been rampant throughout the system. Good was in the lowest rung of managerial authority; he had nothing to do with the decisional process in giving the disciplines. Opposed to the entire idea, it would not be surprising if he "felt," as Brush said, that it was the Company still fighting the Union. He may very well have used the word "retaliate" in voicing his view of ev- erything that was going on. Certainly a mere expression of opinion by him can hardly suffice to prove illegal motive throughout the entire corporation in all of these disciplinary actions. I will assume Good did use the word retaliate. But I still think, considering all of the rel- evant facts, there is no persuasive proof that the Re- spondent issued so many disciplinary notices because of the Union's internal proceedings. Accordingly, I shall recommend dismissal of this coim- plaint allegation also. 3. Section 8(a)(5) It will be recalled that throughout the months of August and September the parties were regularly going to arbitration over some of the disciplinary actions taken by the Company. In direct connection with seven of these pending arbitrations, the Union wrote to the Com- pany on September 12, 1978, requesting certain record information concerning the men who had been disci- plined. It wanted copies of performance appraisal re- views, disciplinary actions taken, reprimand records, and other similar documents from the Company's records. Its letter said they were to be used in the arbitration pro- ceedings. The Company responded to this after receiving the September 29 letter from the Regional Director saying there had been no meeting of the minds between the Union and Company in at least part of the strike set- tlement agreement. In an October 17, 1978, response to the Union, the Company took the position that so long as the contract was not binding in one part, it, the em- ployer, would no longer honor another part, the arbitra- tion clauses. It therefore said it would not furnish the in- formation for the pending arbitrations. The complaint alleges that on October 9 the Respond- ent refused to furnish personnel records on demand of the Union and thereby violated Section 8(a)(5) of the Act. The complaint is wrong. What happened on Octo- ber 9 is that the Company advised the Union that it would no longer proceed with the pending arbitrations since the strike settlement agreement was not binding, according to the Regional Director. There is no claim or evidence that the Respondent did anything wrong in re- fusing to continue to process grievances through arbitra- tion. As to this aspect of the case also, after placing into evidence the correspondence set out here above, the General Counsel offered no other proof to support the refusal to bargain portion of the complaint. As witness for the Respondent in defense, Robert Koneckny, labor relations manager, testified that after initially refusing to furnish the requested documents, the Company changed its mind and actually delivered to the Union all the documents called for in the demand letter. Koneckny went on to say that the arbitrations then pro- ceeded in regular course, and that he was present at six of the seven then pending He added, of course ,, ithout contradiction. that at none of the arbitration hearing w.as there any protest or claim b union representatives that they had not received all documents called for. I shall recommend dismissal of this final allegation of the complaint also. Again, the truth is that although first quarreling with the Union despite the strike settlement agreement, and even sayving no when it could have said yes, the Company did furnish the necessary and request- ed information. Moreover, so far as this record shosxs. it was all timely supplied and in no sense inconlvenienced the bargaining agent in the discharge of its responsibil- itics. I think it only fair to add that had the Respondent per- sisted in its initial reaction and refused to furnish any- thing to further the arbitration proceedings, it would have done nothing swrong, either under the statute or under the contract which fell short of being a "meeting of the minds." However others may read it. I read this contract as an agreement by the Union that it would not take internal disciplinary action against its members for refusing to join in the strike. If there is one thing this entire statute was intended to force upon unions and em- ployers, it is adherence to collective-bargaining agree- ments regularly achieved through the negotiation proc- ess. Anything short of honoring such contracts makes a mockery of the entire objective of this statute. See Sta- tionary Engineers,. Local 39, International Union of Operat- ing Engineers, AFL-CIO (The San Jose Hospital and Health Center, Inc.), 240 NLRB 1122 (1979), on the sub- ject of amnesty agreements. 4. A final item One of the employees listed in the complaint is Mi- chael Mohr; his discipline was a 10-day suspension given on September 8. At the hearing, counsel for the Union moved that the issue as to this man be separated from the rest of the case and tried some other time. The Gen- eral Counsel did not quite understand what was being asked and then said he did not object. Before resting, he placed into evidence testimony taken at an arbitration hearing based upon the same disciplinary action set out in this complaint. All it shows is that during the strike. on the picket line, Mohr was involved in rough stuff with employees who went to work instead. There is not a word in that transcript of testimony indicative of union animus on the part of the Respondent. The later state- ment in the Government brief that the exhibit proves this complaint allegation as to that employee has no support whatsoever. The Union did not file a brief. If anything, that exhibit proves all the more that the Respondent has come forth 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a good faith belief that that man too engaged in misconduct, for the arbitrator so found. " 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 find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and ORDER a It is hereby recommended that the complaint be, and it hereby is, dismissed. become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.