Union Electric Co.

National Labor Relations Board - Board Decisions

Aug 13, 1975

219 N.L.R.B. 1081 (N.L.R.B. 1975)

UNION ELECTRIC COMPANY 1081
Union Electric Company and Local 1439 , Internation-
al Brotherhood of Electrical Workers, AFL-CIO.
Cases 14-CA-7623, 14-CA-7764, and 14-
CA-7848
August 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On March 6, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in Case
14-CA-7623. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs. Subsequently, on May 6, 1974, the General
Counsel filed a motion to remand and consolidate
the aforementioned case for further hearing with a
hearing on a consolidated complaint issued in Cases
14-CA-7764 and 14-CA-7848. On July 22, 1974, the
Board issued an Order granting said motion of the
General Counsel.
Thereafter, on December 20, 1974, Administrative
Law Judge Winkler issued the attached Consolidated
Decision in this proceeding, to which the General
Counsel and the Charging Party filed exceptions.
The General Counsel also filed a supporting brief.
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 Decisions in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge in
Cases 14-CA-7764 and 14-CA-7848,2 but in Case
14-CA-7623 only to the extent consistent herewith.
With respect to the latter case, the complaint alleg-
es that the Respondent violated Section 8(a)(1) of the
Act by threatening employees with disciplinary ac-
1 The Charging Party 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 As correctly pointed out by the Administrative Law Judge in his Con-
solidated Decision , our remand order reserved for subsequent consideration
the question as to whether evidence which the General Counsel sought to
proffer in Case 14-CA-7623 was in fact newly discovered or unavailable by
the exercise of proper diligence at the time of the original hearing , as alleged
by the General Counsel in his motion . In this respect , we adopt the conclu-
sion of the Administrative Law Judge , for the reasons stated by him, that
the evidence proffered by the General Counsel at the consolidated hearing
was neither "newly discovered" nor previously unavailable to him.
Further, we shall, for the reasons stated by the Administrative Law Judge
in his aforementioned Decision , dismiss the consolidated complaint issued
in Cases 14-CA-7764 and 14-CA-7848 in its entirety.
tion for engaging in certain concerted activity and by
thereafter suspending Fred Welshans and Charles
Henry for subsequently engaging in such activity.
The Respondent concedes that it took the aforesaid
action but contends that the work stoppages which
gave rise to the warnings and subsequent suspensions
were not protected activity. In his original Decision,
the Administrative Law Judge found, in agreement
with the Respondent, that the employees' conduct
was not protected and, accordingly, that the Respon-
dent did not unlawfully threaten or discipline em-
ployees. We disagree.
The material facts, as found by the Administrative
Law Judge, are uncontroverted and may be summa-
rized briefly as follows: The most recent collective-
bargaining agreement , here relevant, between the Re-
spondent and the Union expired on July 1, 1973. Al-
though the parties have been applying the
substantive terms of that agreement during the peri-
od following its expiration, they have been engaged
in a continuing dispute as to the selection process by
which the Respondent, a multistate public utility,
temporarily or partially "upgrades" and assigns a
lineman to complete a single shift for a repairman
who leaves the job after reporting to work. It is the
Union's position that the temporary assignment of a
qualified lineman , to perform a repairman's duties
and assume charge of a road crew, must be made or
proffered on a seniority basis, with each employee,
except that individual with least seniority, having the
right to decline such an assignment. The Union pred-
icates its claim on the expired contract. The Respon-
dent disagreed with the Union's interpretation of the
agreement, asserting that by established practice it
has the right to select for upgrading the nearest avail-
able qualified individual, irrespective of seniority,
where the need for upgrading has occurred in the
middle of a shift. However, in view of our dismissal
of the consolidated complaint in Cases 14-CA-7764
and 14-CA-7848, the issue of contract interpretation
is beyond the scope of this case.
Events giving rise to the issuance of the complaint
herein began on October 3, 1973, when lineman
Shocklee was notified by Earl Ditch, supervisor of
small crews , that he would be temporarily upgraded
to replace a repairman who had fallen ill on the job.
Shocklee inquired whether the assignment had been
tendered to a more senior man. Ditch answered that
the Company did not follow seniority "in the middle
of the day." When Shocklee refused the assignment,
he was instructed to return to the Respondent's
Berkeley headquarters. There, Construction Superin-
tendant Richard Freese asked Shocklee to take the
upgrade. Shocklee inquired whether a more senior
man had been asked. Receiving a negative answer,
219 NLRB No. 164
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shocklee requested and obtained permission for time
to call the union hall. On his return, Shocklee again
refused the upgrade. Freese then stopped Shocklee's
wages for the rest of that day or until such time as
Shocklee would comply with the proffered assign-
ment . Fred Welshans and Charles Henry learned of
the upgrade dispute involving Shocklee and that af-
ternoon they and members of other crews walked off
the job after telling Freese they would remain out "as
long as we had a man suspended." On the following
morning all the employees reported to work and were
permitted to return. Later that same morning Wil-
liam Shores, Respondent's Berkeley district manager,
called a meeting of employees who had walked out
the previous day and informed them that the Compa-
ny would not tolerate any more of the "quick, spo-
radic, intermittent work stoppages of this type" and
threatened, in the event of a recurrence, to take disci-
plinary action up to and including discharge.
On October 11, 1973, Construction Supervisor
Wingren notified Assistant Construction Superinten-
dent John Jackson that a replacement was needed
for repairman Hayes, who had become ill on the job.
Jackson instructed Wingren that lineman Otis, who
was working with a crew about 1 block away from
Hayes' truck and who was the nearest available line-
man qualified for upgrading to repairman, should
take over for Hayes. Otis declined the assignment,
asserting that he was not the most senior qualified
lineman in the district. After repeated unsuccessful
efforts by Jackson to persuade Otis to take the up-
grade, Otis was finally told that he was off the pay-
roll for the balance of the shift. Later that afternoon,
Welshans and Henry observed Otis outside the com-
pany gate with a picket sign reading "UE Unfair."
They stopped and discussed the matter with Otis
and, later, with Jackson. Welshans and Henry then
told Jackson they would not work so long as Otis was
off the payroll, and refused Jackson's request to re-
turn to work.
On the following day, all three employees reported
for work. Otis was permitted to return, but Construc-
tion Superintendent Freese suspended Welshans and
Henry for 1 week because of their walkout.
It is the legality of the Respondent's conduct in
suspending Welshans and Henry because of their
concerted refusal to work and in warning employees,
on October 4, against engaging in similar work stop-
pages which is here in question. The answer to that
question, in turn, depends on the protected nature of
the conduct engaged irr by Welshans and Henry. In
this respect, as the Administrative Law Judge cor-
rectly observed, employees are protected in engaging
in a single work stoppage of short duration or in sev-
eral such stoppages where each is undertaken to pro-
test a separate act of the employer. Beyond this
point, however, we think the Administrative Law
Judge erred in finding that employees Welshans and
Henry were here concerned with causing the Respon-
dent to accept their position, and that of their Union,
with respect to the upgrading dispute, as a perma-
nent condition of employment, in view of their de-
clared purpose to remain away from work indefi-
nitely and so long as their fellow employees,
Shocklee and Otis, were "off the clock." Although, as
the Administrative Law Judge states, Welshans testi-
fied that Otis' refusal to work arose out of the same
dispute between the Union and the Respondent as
did that which precipitated Shocklee's refusal to
work, those refusals coincided with, and were not
shown to be otherwise than in protest against, the
separate actions taken by the Respondent in fur-
therance of its own purposes.
In this situation, we find the Board's decision in
Polytech, Incorporated' to be controlling. There, the
Board held that separate concerted refusals to work
are presumed to constitute protected strike activity
and that this presumption may be rebutted only
when the evidence demonstrates "that the stoppage
is part of a plan or pattern of intermittent action
which is inconsistent with a genuine strike or genuine
performance by employees of the work normally ex-
pected of them by the employer." 4 We find no evi-
dence in this case sufficient to rebut this presumption
of protected strike activity. In these circumstances,
we conclude that Welshans and Henry engaged in
protected activity when they refused to work, in sym-
pathy over the temporary suspension of fellow em-
ployees who refused the disputed upgrade assign-
ments. Accordingly, we conclude that the
Respondent's disciplinary suspension of Welshans
and Henry, for engaging in such activity, violated
Section 8(a)(1) of the Act. A fortiori, the Respondent
violated Section 8(a)(1) of the Act by warning em-
ployees against engaging in similar protected con-
certed activity.
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(1) of the Act, by suspending employees
Fred Welshans and Charles Henry because they en-
gaged in protected concerted activities, we shall or-
der that the Respondent make these employees
whole for any loss of earnings they,may have suf-
fered as a result of the unlawful action taken against
them, by payment to them of a sum of money equal
3 195 NLRB 695 (1972)
4 /d at 696.
UNION ELECTRIC COMPANY 1083
to that each of them would normally have earned as
wages from the date of his suspension to the date the
Respondent reemployed him, less net earnings dur-
ing such period with backpay and interest thereon to
be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). Hav-
ing found that the Respondent also violated Section
8(a)(1) of the Act by threatening employees with dis-
ciplinary action should they engage in similar pro-
tected concerted activity, we shall order that the Re-
spondent take appropriate action to remedy such
unfair labor practices.
CONCLUSIONS OF LAW
1. Union Electric Company is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By suspending Fred Welshans and Charles
Henry for I week, because they had engaged in pro-
tected concerted activities, and by threatening em-
ployees with disciplinary action should they engage
in similar protected concerted activity, the Respon-
dent has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed in Section
7 of the Act, and it has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Berkeley district headquarters, St.
Louis County, Missouri, copies of the attached no-
tice marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region
14, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the consolidated com-
plaint issued in Cases 14-CA-7764 and 14-CA-7848
be, and it hereby is, dismissed in its entirety.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
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,
Union Electric Company, St. Louis, Missouri, its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing em-
ployees by suspending or in any other manner dis-
criminating against employees, or by threatening to
do so, for striking or engaging otherwise in protected
concerted activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Fred Welshans and Charles Hen-
ry for any loss of earnings each of them may have
suffered by reason of the unlawful action taken
against him in the manner set forth in the section of
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or
coerce employees by suspending or in any man-
ner discriminating against them or by threaten-
ing to do so, for striking or for engaging in other
protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL make Fred Welshans and Charles
Henry whole for any loss of earnings they may
have suffered.
UNION ELECTRIC COMPANY
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONSOLIDATED DECISION
STATEMENT OF THE CASE
protest over the respective suspensions of Shocklee and
Otis" ; and that Respondent made a "threat of discipline if
its employees engaged in protected concerted work stop-
pages."
2. The Regional Director determined that "there existed
insufficient evidence [in Case 14-CA-7623] to support the
8(a)(5) unilateral change allegation and the 8 (a)(3) allega-
tion involving the suspension of Shocklee and Otis." The
Union , on November 20, 1973, then filed a second amend-
ed charge in Case 14-CA-7623 "deleting the 8(a)(3) and (5)
allegations contained in the original charge in conformity
with the Regional Director's [mentioned] determination."
And on November 27, 1974, the General Counsel there-
upon issued the complaint in Case 14-CA-7623 "alleging
violation of Section 8(a)(1) of the Act, by Respondent's
conduct in warning and disciplining its employees, Henry
and Welshans for engaging in work stoppages on October
3 and October 11, 1973, in protest over the suspension of
fellow employees Shocklee and Otis."
3. On January 7-8, 1974, hearing in Case 14-CA-7623
was held before me.
4. On January 25, 1974, the Union filed a charge in Case
14-CA-7764 "realleging the disciplinary suspensions of
Shocklee and Otis as violations of Section 8(a)(1) and (3) of
the Act," which , as stated above, had been alleged in the
October 1973 charge filed in Case 14-CA-7623.
5. On February 7, 1974, the Regional Director dismissed
the charge in Case 14 -CA-7764 "insofar as the Charging
Party presented no evidence not previously considered in
the investigation of the original charge in Case No. 14-
CA-7623."
6. On March 6, 1974, I issued the attached Decision and
order dismissing Case 14-CA-7623. Exceptions thereto
were filed by the Union on March 19 , 1974, and by the
General Counsel on March 27, 1974.
7. On March 13, 1974, the Union filed the charge in
Case 14-CA-7848 "realleging the 8 (a)(5) unilateral
change" which, as described in paragraph one above, had
been originally alleged in the October 1973 charge in Case
14-CA-7623.
8. On April 25, 1974, the General Counsel issued a con-
solidated complaint in Cases 14-CA-7764 and 14-
CA-7848 "alleging that Respondent violated Section
8(aX5) by unilaterally changing its temporary upgrading
procedure and Section 8(a)(3) of the Act by disciplining its
employees Shocklee and Otis for attempting to implement
a collectively negotiated condition of employment."
9. On May 6, 1974, the General Counsel filed with the
Board a motion to reopen and remand Case 14-CA-7623
for further hearing on the basis of "new evidence" and to
consolidate such further hearing with hearing in consoli-
dated Cases 14-CA-7764 and 14-CA-7848 "in light of the
common factual basis underlying the alleged 8(a)(3) and
(5) conduct in Cases Nos. 14-CA-7764 and 14-CA-7848
and the disciplinary suspensions of employees Henry and
Welshans considered in Case No. 14-CA-7623."
In his motion to remand and consolidate , the General
Counsel asserted that "During the investigation [of the
Charge filed on March 13 , 1974, in Case 14-CA-7848] . . .
the Charging Party presented new evidence based on testi-
mony elicited on the record by the Charging Party's coun-
RALPH WINKLER, Administrative Law Judge : On March
6, 1974, I issued a Decision in Case 14-CA-7623. On July
22, 1974, the Board issued an order granting a motion of
the General Counsel to reopen Case 14-CA-7623 on the
basis of newly discovered evidence and to consolidate that
case for further hearing with hearing on a consolidated
complaint issued by the General Counsel on April 25,
1974, in Cases 14-CA-7764 and 14-CA-7848. The consoli-
dated hearing was held in St . Louis , Missouri , on October
1, 1974.
Upon the entire record in the case , including my obser-
vation of the demeanor of witnesses and upon consider-
ation of briefs and oral argument, I make findings of fact
and conclusions of law . Except as might be modified here-
in, I reaffirm all findings made in the earlier Decision,
which is attached hereto for purposes of convenience.
In addition to denying the commission of unfair labor
practices alleged by the General Counsel , Respondent
moved to dismiss this consolidated proceeding on proce-
dural grounds . Respondent asserted in its motion that the
General Counsel had not met the preconditions or other-
wise satisfied the requirements for reopening Case 14-
CA-7623 for newly acquired evidence, and it also urged
that the issuance of the complaint in Cases 14-CA-7764
and 14-CA-7848 constituted arbitrary action under Peyton
Packing Company, Inc., 129 NLRB 1358 (1961 ). I reserved
ruling on the motion to dismiss at the hearing because, in
my opinion, the merits of the motion were intertwined with
a consideration of the evidence proffered by the General
Counsel in this proceeding . Preliminarily, I shall set forth
the chronology relevant to Respondent 's motion to dismiss.
Procedural Chronology I
1. On October 12 and 16 , 1973, the Union filed charges
and first amended charges against Respondent in Case 14-
CA-7623, alleging violations of Section 8(axl), (3), and (5).
The charges alleged that Respondent "unilaterally changed
its contractually established procedure for temporarily up-
grading employees from the lineman classification to the
repairman classification by abandoning seniority as the
determinative factor in selecting employees for the tempo-
rary upgrade and by requiring employees to accept tempo-
rary upgrades"; that Respondent "unlawfully discriminat-
ed against Assistant Union Steward Donald Shocklee by
suspending Shocklee on October 3, 1973, for refusing an
upgrade assignment and further discriminated against
Union Steward Charles Otis on October 11, 1973, when
Respondent suspended Otis for refusing an ordered up-
grade"; that Respondent "unlawfully disciplined employ-
ees by issuing disciplinary suspensions to Charles Henry
and Fred Welshans because Henry and Welshans engaged
in work stoppages on October 3 and October 11, 1973, in
1 The quoted matter in this chronological section are taken from the Gen-
eral Counsel's aforementioned motion to remand and consolidate
UNION ELECTRIC COMPANY 1085
sel from witnesses at the hearing [on January 7-8, 1974] in
Case No. 14-CA-7623 and further evidence not available
during the prior investigation of the original charge in Case
No. 14-CA-7848 ." The General Counsel's motion papers
did not in any respect describe the nature of the "new evi-
dence."
Respondent filed an opposition to the General Counsel's
motion to remand and consolidate . By order dated July 22,
1974, the Board overruled Respondent's opposition and
granted the motion to remand Case 14-CA-7623 for fur-
ther hearing with Cases 14-CA-7764 and 14-CA-7848.
The Present Consolidated Cases
As set forth in the attached Decision, there has been a
running dispute between Respondent and the Union con-
cerning the selection and upgrading of a lineman on 2- or
3-man overhead crews to replace a repairman on such crew
who becomes ill or otherwise unavailable during a shift.
There are so-called known and unknown vacancies. A
"known" situation exists where a vacancy occurs before
the start of a shift and the selection of a replacement for
upgrade is thus made before the shift begins. The "un-
known" situation occurs where the vacancy and the conse-
quent need for replacement arises after a shift has started,
and the replacement or upgrading is thus made during the
shift . As explained in the attached Decision , the replace-
ment in the "unknown" situation serves in the upgraded
repairman position for only the balance of that day's shift.
The above-mentioned dispute between Respondent and
the Union was limited to "unknown" upgrades of overhead
lineman in the Berkeley District of Respondent 's Trans-
mission and Distribution Function.
Not all linemen are qualified for upgrade as repairmen
as indicated in the attached Decision, and only some five
to eight linemen (including Shocklee and Otis ) were so
qualified at material times here.
In the original hearing in Case 14-CA-7623, the General
Counsel submitted evidence concerning the suspensions of
Shocklee and Otis for the balance of their respective shifts
upon their refusal of an "unknown" upgrade to repairman,
and the General Counsel also adduced evidence concern-
ing the circumstances of Respondent 's suspension of Hen-
ry and Welshans. The General Counsel acknowledged in
his brief in that hearing that the "underlying dispute [as to
Shocklee and Otis] concerned the right of a lineman under
the expired contract and established company procedure to
refuse an upgrade to repairman." While the Union and
Respondent stated their differing views in the original
hearing in Case 14-CA-7623 concerning contract interpre-
tation and actual practice, the General Counsel took no
position in that proceeding concerning either the matter of
contract interpretation or practice thereunder and he thus
did not allege that Respondent 's suspension of Shocklee
and Otis was inconsistent with Respondent's practice es-
tablished during the period of the expired contract. The
Union there stated, moreover , that the contract -practice
dispute was not an issue in that proceeding. The General
Counsel thus did not allege that Respondent violated Sec-
tion 8(a)(5) by a unilateral change in working conditions or
by consequently suspending Shocklee and Otis in purport-
edly implementing a unilateral change.. The General Coun-
sel accordingly also did not allege that Henry and Wel-
shans were engaged in an unfair labor practice strike. The
theory of the General Counsel in that original proceeding
was merely that Henry and Welshans were engaged in pro-
tected activity regardless of the fact that Respondent did
not unlawfully suspend Shocklee and Otis.
The General Counsel has now enlarged the theory of the
Henry-Welshans suspensions . For, in now alleging for the
first time that Respondent did violate Section 8(a)(5) by
alleged unilateral changes in the upgrading selection pro-
cess in "unknown" situations, the General Counsel con-
tends that Henry and Welshans were allegedly engaged in
an unfair labor practice strike in protest against purported-
ly unlawful unilateral changes.
It is thus clear and undisputed that the entire matter of
this remanded consolidated proceeding was before the
General Counsel in the charges filed in October 1973 in
Case 14-CA-7623, and had been investigated by him when
he issued his complaint in that matter in November 1973.
New Evidence
In this reopened and newly consolidated proceeding, the
General Counsel called three witnesses and also relied on
the expired contract between Respondent and the Union.
The witnesses were Daniel Shocklee, Charles Otis, and
Harold Pitcher. At all material times here, Shocklee was
either a union steward or assistant steward and Otis was a
steward. The attached Decision shows the circumstances
under which Shocklee and Otis were suspended by Re-
spondent for refusing an "unknown" upgrade, and the
General Counsel does not claim that they were unavailable
as witnesses at the time of the original hearing herein or
that their testimony otherwise fits the "newly discovered"
category.
Shocklee stated at the outset of his testimony that, "as
far as I know," the upgrading practice in both "known"
and "unknown" vacancies during the contract period was
done by polling on a seniority basis, with a right of refusal
in senior men. Shocklee testified that his basis for this as-
sertion was that, while, as a Steward, he was not "familiar"
with every upgrade situation, he had not heard of any devi-
ations in the above-stated seniority practice. In later testi-
mony, however, Shocklee said he did not know whether
Respondent did or did not distinguish between "known
and "unknown" vacancies in selecting linemen for upgrade
during the contract period. Shocklee also testified that he
had been asked to take a upgrade in "probably 1970"; later
he testified he did not become qualified for an upgrade to
repairman until June 1973. And Shocklee further testified
that, except for his and Otis' refusal in October 1973 and
one Ron Batzel 's in September 1973, he "[did not] know of
any instance whereby a qualified lineman refused [ an "un-
known"] partial day upgrade."
Otis testified to a similar effect concerning a purported
seniority practice in "unknown" vacancies during the con-
tract period. After stating he was "sure" he had been asked
to take an upgrade during the contract period, Otis then
testified he could not recall having been asked to do so and
he later testified that he did not become a qualified line-
man until July 1973. Otis also testified that he "had heard
that there were people that had refused an upgrade [during
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract period]" but that he did not know the "cir-
cumstances" of such purported refusals . Otis then testified
that-apart from himself and Shocklee in October 1973
and Batzel in September 1973-he was unaware that any
other qualified lineman had refused an upgrade to an "un-
known" vacancy.
Pitcher, the third witness called by the General Counsel,
is superintendent of the Cable Division of the Under-
ground Steam Department . The Cable Department under
Pitcher performs different work from the overhead power
work of linemen and repairmen of the Berkeley District
and its headquarters is some 15 miles from the headquar-
ters of the Berkeley District .The repairman classification in
question in the Berkeley District is in a totally different
promotional series from the classifications supervised by
Pitcher in the Cable Division . Pitcher testified that his en-
tire experience with Respondent has been in the "under-
ground . . . cable division" and that he was wholly unfa-
miliar with the upgrading practices or procedures of the
Berkeley District. The Union also represents the Cable De-
partment and, according to Pitcher , the contract required
the upgrading procedures in the Underground Cable Divi-
sion to be done by polling on a seniority basis, and the
practice in that division comports therewith . In the case of
"known" vacancies in Pitcher's division , all qualified per-
sonnel of the entire division are polled on a seniority basis
at Cable headquarters with a right of rejection in senior
employees ; in the case of both "known" and "unknown"
vacancies arising on the job site , the polling is also done on
a seniority basis but limited to personnel on the particular
crew where the vacancy arises.
Pitcher testified to a somewhat similar effect in an arbi-
tration hearing on or about March 27, 1974, involving dis-
ciplinary action against an underground mechanic in the
Cable Division. The General Counsel asserts this arbitra-
tion testimony to be "newly discovered" for purposes of
the present case but without making any showing or claim
that evidence concerning the Cable Division was unavail-
able in the initial investigation of Case 14-CA-7623.
The General Counsel relies on the language of the ex-
pired contract as establishing or memorializing the upgrad-
ing procedure . This contract was available and was in fact
introduced in evidence in the original hearing in Case 14-
CA-7623. And, as indicated above , the Respondent and
the Union had conflicting interpretations of the agreement
and practice thereunder as to "unknown " upgrading situa-
tions in the Berkeley Division , and the General Counsel
did not allege in that hearing that Respondent's interpreta-
tion and implementing action involved any illegality.
It is noted, finally, that the General Counsel did not call
a single "qualified" lineman who testified to having reject-
ed an "unknown" upgrade on seniority grounds during the
contract term . Nor did he produce a single qualified line-
man who testified to having been polled on a seniority
basis for an "unknown" upgrade during such period.
Motions to dismiss on procedural grounds
claim of newly discovered evidence for the motion papers
did not even "state briefly the additional evidence sought
to be adduced" (NLRB Rules and Regulations , Series 8, as
amended , Sec. 102 .48 (d) (1) ). I can only assume in such
circumstances that the Board 's remand order implicitly re-
served for later consideration whether the evidence was in
fact newly discovered or unavailable "by the exercise of
proper diligence" at the time of the original hearing herein.
See Dock Builders Local 1456 (Vibroflotation Foundation
Co.) v. N.L.R.B., 86 LRRM 2821, 2822 (C.A.D.C. 1974),
enfg . 203 NLRB 381 (1973). "The determination on a mo-
tion for reopening and reconsideration rests with the
Board 's sound discretion" (N.L.R.B. v. Seafarers Interna-
tional Union of North America, etc., AFL-CIO) [Isthmian
Lines, Inc.] 496 F.2d. 1363, 1365 (C.A. 5, 1974), enfg. 202
NLRB 657 (1973) ), and no showing was made to the
Board at the time as a predicate for exercising its discretion
on the newly discovered nature of the evidence.
The General Counsel's brief in this remanded consoli-
dated proceeding states that the "newly discovered and
previously unavailable evidence is primarily that of
Respondent 's Official , Harold Pitcher, taken in the midst
of an arbitration procedure which occurred more than 2
months after the close of the original hearing , in Case No.
14-CA-7623." Passing for later discussion the relevancy
and materiality of Pitcher's testimony and noting that
Pitcher may not be a company "Official" so far as the
record indicates , there is no showing here that during the
investigation of the 1973 charges in Case 14-CA-7623, the
General Counsel had sought out Pitcher and that Pitcher
was unwilling or otherwise unavailable to cooperate or that
the General Counsel had otherwise investigated upgrading
procedures in the Cable Division. Absent any such show-
ing, and again without considering the relevancy and
weight of Pitcher 's testimony, I conclude that the evidence
concerning the Cable Division was not "newly discov-
ered ." 2 Nova Services Company, 213 NLRB 95 (1974);
Rucker Electronics, 213 NLRB 68 (1974); Bio-Science Lab-
oratories, 213 NLRB 171 (1974).
As the General Counsel does not claim that any other
testimony or evidence is newly discovered or was previous-
ly unavailable by exercising appropriate diligence, I con-
clude that the record made in this second hearing is not
entitled to consideration in Case 14-CA-7623 and I shall
accordingly recommend that Case 14-CA-7623 be dis-
missed for the reasons stated in the attached original Deci-
sion in that matter.
Respondent also moves to dismiss Cases 14-CA-7764
and 14-CA-7848 on the ground that all such matters were
before the General Counsel in the October 1973 charges in
Case 14-CA-7623 and investigated by him at that time and
that the General Counsel elected not to proceed on such
additional matters . It is recalled that the General Counsel
himself asserted as a reason for his motion to consolidate
that all three cases herein have a "common factual basis."
In holding that the General Counsel "proceeded improp-
erly" in Peyton Packing Company, Inc., 129 NLRB 1358,
1360 (1961), the Board stated as follows:
In granting the General Counsel's motion to reopen
Case 14-CA-7623, the Board had before it only a naked "newly discovered" nature of the evidence was an issue in this case.
2 The General Counsel was advised at the outset of this hearing that the
UNION ELECTRIC COMPANY 1087
Generally speaking , sound administrative practice,
as well as fairness to respondents , requires the consoli-
dation of all pending charges into one complaint. The
same considerations dictate that, wherever practica-
ble, there be but a single hearing on all outstanding
violations of the Act involving the same respondent.
To act otherwise results in the unnecessary harass-
ment of respondent.
We would note here that the Board does not grant
respondents second hearings to relitigate allegations
made against them because they may have mishan-
dled their defense in the original presentation of the
case . Only in the exceptional instance , such as where
evidence is newly discovered , or where a hearing has
been conducted in a prejudicial manner, does the
Board grant respondents further hearings . The Gener-
al Counsel 's status before the Board in these adversary
proceedings is no greater than that of any respondent.
In short, the General Counsel is not a favored litigant,
and he is not entitled to any privileges not accorded
any other litigant appearing before the Board.
And in dismissing a complaint in Jefferson Chemical
Company, Inc., 200 NLRB 992, footnote 3 (1972), the
Board recently declared that the General Counsel "is duty
bound to investigate all matters which are encompassed by
the charge , and to proceed appropriately thereafter" and
that, "We believe that such multiple litigation of issues
which should have been presented in the initial proceeding
constitutes a waste of resources and an abuse of our pro-
cesses and that we should not permit it to occur."
Sound judicial administration thus does not permit of
either relitigation or piece-meal litigation, and there are
both in this proceeding . I shall accordingly recommend
that Cases 14-CA-7764 and 14-CA-7848 be dismissed on
such bases.
The Merits of the Consolidated Complaints
Because the Board might disagree with my resolutions
that this entire consolidated proceeding be dismissed for
the various aforestated reasons , I shall consider the merits
of the cases on the record as made . The central issue is
whether, after termination of the parties ' contract on June
30, 1973, Respondent unilaterally changed established up-
grading procedures in filling "unknown" repairman vacan-
cies in the Berkeley District.3
7 The critical issue in this case is not the contract but the practice thereun-
der, and I therefore do not consider it necessary to determine a contract-
qua contract-question . The expired contract does not speak of "known"
and "unknown" situations. Absent such expressed distinction , the Union
and the General Counsel contend that the contract applied the same senior-
ity criterion in both situations . Respondent , on the other hand, contends
that it properly interpreted the contract to apply to "known," but not to
"unknown ," situations . Where, however, an alleged violation of Sec . 8(a)(5)
is predicated on a purported unilateral change in working conditions after
expiration of a contract , the critical question is not the contract itself but the
practice-alleged to be changed-that purportedly existed during the opera-
tive period of the contract. Suppose , for example, that a contract explicitly
stated that its upgrading procedures covered both "known" and "unknown"
situations , but the parties ' historical practice during the term of the contract
was not to apply the contract provisions to "unknown" situations . In such
circumstances a violation of unilateral change would not lie , in my opinion,
In the original hearing , all parties acknowledged the con-
flicting views of Respondent and the Union concerning the
upgrading practice in "unknown" vacancies during the
contract period ; the Union claimed that all qualified line-
men had been polled on a seniority basis with a right of
rejection by senior linemen, while Respondent asserted
that its "historical" practice has been to select "the avail-
able qualified trained men irrespective of seniority " (testi-
mony of William Sanford , Respondent vice president in
charge of labor contract administration). The General
Counsel , as also stated above and as appears in the at-
tached Decision , took no position on the "unknown" up-
grading matter at the original hearing.
The General Counsel predicates his changed position-
or rather his now taking a position-on the testimony of
Otis , Shocklee , and Pitcher. Apart from my demeanor ob-
servations of Otis and Shocklee-and I did not consider
them trustworthy witnesses-their own testimony recount-
ed above does not establish a seniority practice in "un-
known" upgrading situation as claimed by the Union and
alleged by the General Counsel . Pitcher was a trustworthy
witness; however, he had no knowledge of practices in the
Berkeley District, and the functions and setup in the Berke-
ley District are substantially different from his own Under-
ground Cable Division and are of little , if any , materiality
and hardly controlling in the Berkeley situation . And while
the Underground Cable Division covers a much larger geo-
graphical area and its crews are sometimes much more
widely dispersed than overhead crews of the Berkeley Dis-
trict, Pitcher testified that , even when his crews work with-
in a half mile of each other , the only employees polled in
upgrading situations are members of the crew where the
vacancy arises. Under this practice, an employee may be
upgraded on an affected crew without polling of more se-
nior employees on other crews.
The record, I find , does not preponderantly establish
that "unknown" repairmen vacancies in the Berkeley Dis-
trict were filled during the contract period by polling all
qualified linemen on a seniority basis with a right of rejec-
tion by senior employees . I find otherwise . I accordingly
find that Respondent did not unilaterally change estab-
lished upgrading procedures in the Berkeley Division after
the contract 's termination and that Respondent did not
unilaterally deviate from established upgrading practices in
selecting Otis and Shocklee as replacements for "un-
known" repairmen vacancies and by then suspending Otis
and Shocklee on grounds of insubordination for refusing
their assignments . Respondent , therefore, has not violated
Section 8(a)(1), (3), and (5) of the Act in the respects al-
leged in Cases 14-CA-7764 and 14-CA-7848.
Having found that Respondent did not violate the Act in
making the "unknown" upgrading assignments to Otis and
Shocklee and by then suspending Otis and Shocklee for
rejecting these assignments, I accordingly also find that the
refusal to work by Welshans and Henry was not an unfair
labor practice strike . For the reasons set forth in the at-
tached Decision , I therefore conclude that Respondent did
not violate the Act in suspending Welshans and Henry or
should the employer continue the historical practice beyond the contract's
termination
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the other respects alleged in Case 14-CA-7623.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within Section 2(6) and (7) of the Act.
2. The Union is a labor organization within Section 2(5)
of the Act.
3. The testimony adduced by the General Counsel at the
hearing of October 1, 1974, is not entitled to consideration
as "newly discovered evidence" in Case 14-CA-7623.
4. Respondent has not violated the Act in any respects
alleged in Case 14-CA-7623, even considering the testimo-
ny adduced by the General Counsel in this reopened con-
solidated matter.
5. The complaint in Cases 14-CA-7764 and 14-
CA-7848 was improperly issued.
6. Respondent has not violated the Act in any respects
alleged in Cases 14-CA-7764 and 14-CA-7848 even if the
complaint therein be deemed to have been issued properly.
Upon all the foregoing, and pursuant to Section 10(c) of
the Act, I accordingly issue the following recommended:
ORDER4
The complaints in Cases 14-CA-7623, 14-CA-7764, and
14-CA-7848 are hereby dismissed.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Relations Board , the findings, con-
clusions, and recommended Order herein shall, as provided in Sec. 102.48 of
the Rules and Regulations, be adopted by the Board and become its find-
ings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge : Hearing in
this matter was held in St . Louis, Missouri , on January 7
and 8 , 1974, upon a complaint issued by the General Coun-
sel on November 27, 1973, and Respondent's answer there-
to.
Upon the entire record in the case , including my obser-
vation of the demeanor of witnesses and upon consider-
ation of briefs and oral argument , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a multistate public utility incorporated in
Missouri, with its principal office located in St. Louis.
Upon conceded facts , I find that Respondent is engaged in
commerce within Section 2(6) and (7) of the Act. Union
Electric Company, 196 NLRB 830 (1972).
11. THE LABOR ORGANIZATION INVOLVED
Local 1439 , International Brotherhood of Electrical
Workers , AFL-CIO, herein called the Union, is a labor
organization within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges and Respondent in effect con-
cedes that Respondent cautioned employees and threat-
ened them with disciplinary action should the employees
engage in certain concerted activity and that Respondent
then suspended two employees who did subsequently en-
gage in such activity . The issue involved here concerns the
protected nature of the concerted activity under consider-
ation, the General Counsel contending that it is protected
and the Respondent asserting it is not.
Respondent is an electric utility generating and trans-
mitting electric energy to approximately 750,000 customers
in Missouri , Iowa , and Illinois . Respondent 's geographical
operations are divided into districts or divisions. The
Berkeley District, consisting of approximately 100 crew-
men, is one of several districts in the St. Louis Metropoli-
tan area . Respondent was party to a 1971-73 labor agree-
ment which terminated by its terms on July 1, 1973. The
union parties to the contract were the Union herein (Local
1439) as well as the Union's parent international and two
other sister locals . The contract contained a 4-step griev-
ance provision, the last step providing for binding arbitra-
tion . At all times since the July 1973 expiration of this
contract and pending negotiations of a new agreement, the
parties thereto have continued to observe all substantive
terms and conditions of the expired agreement except the
arbitration clause , and they have continued to process
grievances under the grievance machinery contained in
that agreement . The parties have not been doing this on a
contract basis, however, for the record establishes that the
parties have not mutually bound themselves to continue
the contract conditions. Thus, while the expired 1973 con-
tract contained no-strike limitations, no party contends
that such contractual limitations were operative beyond
July 1, 1973.
This case involves two classifications of employees,
namely, lineman and overhead repairman. The repairman
is a working leader of a crew of two or three men and is
immediately above the lineman on the seniority promo-
tional roster established by the parties . There are occasions
that a repairman has to be relieved-because of illness, for
example-after the start of a shift. In these situations the
Respondent will assign and temporarily upgrade a lineman
to perform as repairman for the balance of the shift. The
repairman classification requires certain training and certi-
ficated qualifications not possessed by all linemen. There
has been a continuing dispute between the Union and Re-
spondent as to the selection process by which Respondent
should temporarily or "partially" upgrade and assign a
lineman to complete a single shift for a discommoded re-
pairman. The Union's position is that such temporary as-
signment must he made or proffered on a seniority basis
within the Berkeley District, with a right of declination in
the lineman offered the job. The Union predicates its claim
UNION ELECTRIC COMPANY
on the language of the parties ' expired agreement. Dis-
agreeing with the Union's interpretation of their agree-
ments, the Respondent asserts that its uniform "historical"
practice , has been to select "the available qualified trained
man irrespective of seniority ." The parties also agree, in
effect , that the issue of contract interpretation is outside
the scope of this case.
A. The October 3 Incident
Richard Freese is the construction superintendent at
Respondent's Berkeley headquarters which handles con-
struction and maintenance on overhead and underground
power lines . The shift involved here runs from 7:30 a.m.
until 4 p.m. The supervisor of small crews, Earl Ditch, noti-
fied Freese at about 11:30 a.m. on October 3 that a repair-
man named Brightwell was ill and that Ditch needed a
man upgraded to take Brightwell's place . Freese checked
his manning board-this shows the location and makeup
of all small crews-and he ascertained that the available
man was one Shocklee . Shocklee was part of a three-man
crew on a basket truck doing two-man work that morning,
and he was the only man on the truck who was qualified to
take the upgrade . Ditch located the basket truck at about
12:30 p.m. and advised Shocklee that he would be tempo-
rarily upgraded and take over for Brightwell . Shocklee in-
quired whether the assignment had been tendered to a
more senior man, whereupon Ditch explained that the
Company does not follow seniority "in the middle of the
day" on these temporary replacements ; Ditch or Freese
further explained to Shocklee that only two men were
needed on the basket truck at the time (some jobs require
three-man crews , others only two) and that taking someone
from another three -man crew would require closing down
that latter crew for the day. Shocklee still refused , where-
upon he was instructed to return to headquarters where he
met Freese at about 1 p.m. Freese told Shocklee that a
two-man crew needed a leader and Shocklee was asked
again to take the upgrade . Shocklee said he did not want
the upgrade and he again inquired whether a more senior
man had been asked. Freese explained the situation to
Shocklee as Ditch had done earlier; and when Freese
asked Shocklee whether it would make any difference if
Freese had requested a more senior man, Shocklee said he
didn't know. Shocklee then said he wanted to call the
"hall"-which in context, I interpret to mean the union
hall. Shocklee went out for a few minutes and upon return-
ing he told Freese he would not take the upgrade . Freese
then in effect stopped Shocklee 's wages for the rest of that
day or until such time that day that Shocklee would take
the upgrading for the balance of that single shift.
Fred Welshans and Charles Henry were part of a three-
man crew on October 3. They learned of the upgrade dis-
pute involving Shocklee and went to Berkeley headquarters
at or about 3 p.m. that afternoon. They and members of
other crews walked off the job at or about 3:30 p. m., after
telling Freese they would remain out "as long as we had a
man suspended."
The following morning (October 4), Shocklee and the
crew members who had walked out, including Welshans
and Henry, reported for work and were permitted to re-
1089
turn. That same morning , William Shores, Respondent's
district manager at Berkeley , called a meeting of the men
who had walked out the previous day. Referring to that
walkout and to other work stoppages ,' Shores told the
men, according to Freese 's testimony, that the Company
would not put up with "any more sporadical intermittent
work stoppages and if there were any more , there would be
disciplinary action taken up to and including discharge."
B. The October 11 Walkout
John Jackson is assistant construction superintendent in
the Berkeley District. At or about 11:45 a.m. on October
11, Construction Supervisor Wingren notified Jackson that
he needed someone to replace a repairman, Hayes, who
had become ill on a job . Wingren at the time had two or
three crews , including a lineman named Otis , on that job.
Otis' crew was working about a block from Hayes' truck.
Jackson instructed Wingren that Otis should take over for
Hayes for the remainder of the shift . Otis was the nearest
available lineman qualified for temporary upgrading to re-
pairman . Otis refused the assignment saying, in effect, that
he was not the most senior man in the district.
About noon that day, Wingren told Jackson that Otis
had refused an upgrade . Jackson then explained to Otis
that he needed Otis to run Hayes' crew. Otis said he didn't
want the upgrade , but without stating any reason . Jackson
again asked Otis , and Otis again said he wouldn't do it.
About 2 p.m., Otis once more refused Jackson's request,
and Jackson thereupon told Otis he was off the payroll for
the balance of that shift . Otis said he wanted to go outside
to make a phone call . He didn't return; but at 2 : 15 p.m. he
appeared outside the Company gate with a sign reading
"U.E. unfair."
About 2:30 p.m. that same afternoon, Welshans and
Henry observed Otis with the picket sign. They stopped,
and Otis informed them that he had been taken off the
payroll for refusing an upgrade . They then discussed the
matter with Jackson. They told Jackson they would not
work so long as Otis was off the payroll, and they refused
Jackson's request to return to work.
Otis, Welshans, and Henry reported for work the follow-
ing day . Otis was permitted to return , but Freese suspend-
ed Welshans and Henry for a week because of their walk-
out. Welshans testified that the Otis matter "is the same
dispute that [he] walked out over on October 3rd," and at
the hearing in this matter in January 1974 he further testi-
fied that this same upgrading dispute "is still here ." Eugene
Roedder, the Union's business manager, testified that it
was his understanding that so-called "quickie strikes" are
not protected under this Act; however , he also testified
that during the period from July 1 until October 11, 1973,
he and other union leaders advised the membership (em-
ployees of Respondent) that they were entitled to strike to
protect their working conditions upon termination of the
1972-73 contract.
1 1 do not consider it necessary to consider these other stoppages since
expiration of the 1971-73 contract.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Contentions of the Parties
The General Counsel does not contend that Respondent
unilaterally changed established working conditions or
otherwise violated the Act in its selection of Shocklee and
Otis for temporary upgrading ; nor does he contend that
Respondent violated the Act by taking them "off the pay-
roll" for the remainder of their respective shifts because
they had refused their assignments . The Respondent as-
serts inter alia, that the union leadership sought to enhance
its position at the bargaining table by fomenting intermit-
tent work stoppages and it contends that such intermittent
stoppages are unprotected under the Act.
The Act protects employees who strike their employer to
protest disciplinary action against a fellow employee. It is
also hornbook law that such strike may be protected even
though the conduct for which an employee is disciplined is
itself not protected under the Act. It is also established that
employees are protected in engaging in a single work stop-
page of short duration 2 or in several such stoppages where
each individual stoppage was to protest a separate unlaw-
ful action of the employer.3
The right to strike prescribed in Section 13 of the Act is
not unlimited , however, and the statutory protections ac-
corded such activity is subject to a consideration of both
the objective and the manner of the activity . International
Union, UAW, AFI, Local 232, et al. [Briggs & Stratton
Corp.] v. Wisconsin Employment Relations Board 336, U.S.
245, 252-265 (1949); N.L.R.B. v. Blades Manufacturing
Corporation, 344 F.2d 998, 1004-5 (C.A. 8, 1965); First Na-
tional Bank of Omaha v. N.L.R.B., supra. Among the means
denied protection are so-called intermittent or recurrent
work stoppages , as discussed in the aforecited cases.
The employees in this case unquestionably had a right to
2 First National Bank of Omaha v. N.L.R B., 413 F .2d 921 , 921-925 (C.A.,
8, 1%9), enfg. 171 NLRB 1145; N.L. R.B. v. Tonkawa Refining Co., 452 F.2d
900, 902 (C.A. 10, 1971), enfg . 184 NLRB 41; Polytech, Incorporated, 195
NLRB 695 (1972).
l Blades Manufacturing Corporation, 144 NLRB 561, 566 ( 1%3), reversed
on other grounds 344 F .2d 998 (C.A. 8, 1%5).
strike their employer to compel it to accede to their "up-
grading" demand as a condition of their employment.
They also had, as stated above , a right to strike in sympa-
thy with another disciplined employee . However , if the pre-
sent case be viewed in terms of the first objective , then the
established limitation on repeated stoppages comes into
play, namely , Welshans and Henry were free to strike and
to remain on strike as long as they choose but not to en-
gage in recurring stoppages for the purpose of achieving
that upgrading demand . If, on the other hand , each stop-
page be separately viewed as solely protesting individual
disciplinary action against Shocklee on October 3 and Otis
on October 11, the stoppages on those dates are the usual
sympathetic strikes protected under the Act.
Although the stoppages on October 3 and 11 occurred
only on the occasion of employer disciplinary action, I am
satisfied that such disciplinary action was an incidental
condition of, but not the reason for, the stoppages. Wel-
shans' and Henry's true purpose , I find , was to cause Re-
spondent to accept their (and the Union 's) upgrading posi-
tion as a permanent condition of employment whenever a
lineman chooses to reject an upgrading assignment. Wel-
shans testified, as set forth above, that the Otis matter was
the "same dispute" over which the stoppage had occurred a
week earlier, and both Welshans and Henry were fully
aware of the reason for Otis' "suspension" before walking
out on October 11. This record convinces me, and I find,
that Henry and Welshans gave Respondent every reason to
believe that Henry and Welshans would continue leaving
their job whenever Respondent might take employees "off
the payroll" for refusing an upgrade assignment , and they
did in fact do so on October 11. Compare Polytech, Inc.,
supra; First National Bank of Omaha, supra at 924.
Whether or not Welshans and Henry acted at the urging
or suggestion of the Union , I conclude , upon the foregoing,
that Respondent was entitled to warn employees against a
repetition of an upgrade stoppage and that Welshans and
Henry were not protected in repeating that stoppage on
October 11.
[Recommended Order for dismissal omitted from publi-
cation.]