METROPOLITAN EDISON COMPANY, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, ET AL. No. 81-1664 In the Supreme Court of the United States October Term, 1982 On writ of certiorari to the United States Court of Appeals for the Third Circuit Brief for the National Labor Relations Board TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement A. The record before the Board B. The Board's decision and order C. The decision of the court of appeals Introduction and summary of argument Argument I. An employer violates Section 8(a)(3) and (1) of the Act by disciplining employees holding union office more severely than it does other employees for identical conduct that violates a general no-strike clause, where the collective bargaining agreement contains no express provision requiring union officers to take affirmative steps to prevent or curtail contractually prohibited work stoppages A. The Act generally prohibits employer actions that directly penalize participation in protected union activities, because such penalties are ordinarily inherently destructive of the right to engage in those activities B. An employer's augmentation of discipline predicated on an employee's status as a union officer is an unlawful discriminatory penalty, at least absent an adequate union waiver C. The Board's application of the Act to the disparate discipline of employees holding union office is responsive to the realities of industrial life II. The Board reasonably declined to defer to the decisions of arbitrators construing the general no-strike clause of prior collective bargaining agreements as imposing special obligations respecting contractually prohibited work stoppages on employees holding union office and thereby permitting them to be punished more severely than other employees for participation in such work stoppages A. A waiver that is not clear and unmistakable will not suffice to validate disparate discipline based on the holding of union office B. A clear and unmistakable waiver of the right at issue in this case is not manifested by a general no-strike clause or by arbitral awards construing prior collective bargaining agreements with such clauses as permitting disparate discipline, based on the holding of union office, for violations of the no-strike clause C. In deciding whether a current collective bargaining agreement contains a clear and unmistakable waiver, the Board is not required to defer to arbitral awards construing prior agrements in which the arbitrators considered neither whether the Act confers the employee right in question nor whether the union clearly and unmistakably waived the right Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A-1 to A-21) is reported at 663 F.2d 478. The decision and order of the National Labor Relations Board (Pet. App. A-22 to A-29), and the underlying decision of the administrative law judge (Pet. App. A-30 to A-49), are reported at 252 N.L.R.B. 1030. JURISDICTION The judgment of the court of appeals (Pet. App. A-50) was entered on December 9, 1981. A petition for rehearing was denied on January 5, 1982 (Pet. App. A-51). The petition for a writ of certiorari was filed on March 4, 1982, and granted on June 14, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The relevant provisions of the National Labor Relations Act ("the Act"), 29 U.S.C. (& Supp. IV) 151 et seq., are set forth at Pet. Br. 2. QUESTIONS PRESENTED 1. Whether an employer violates Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. 158 (a)(3) and (1), by disciplining employees holding union office more severely than it does other employees for identical conduct that violates a general no-strike clause, where the collective bargaining agreement contains no express provision requiring union officers to take affirmative steps to prevent or curtail contractually prohibited work stoppages. 2. Whether the Board reasonably declined to defer to the decisions of arbitrators construing the general no-strike clause of prior collective bargaining agreements as imposing such an affirmative obligation on employees holding union office and permitting them to be punished more severely than other employees for the same acts of participation in a contractually prohibited work stoppage. STATEMENT A. The Record before the Board 1. Petitioner Metropolitan Edison Company ("the Company") produces and sells electrical power in Southeastern Pennsylvania (Pet. App. A-3; J.A. 25). /1/ About half of the Company's employees in its various operating divisions are represented by five local affiliates of the International Brotherhood of Electrical Workers ("the International Union"), including the charging party in this case (Local 563 or "the Union"). Those five locals negotiate together for a single collective bargaining agreement (Pet. App. A-31; J.A. 26). The agreement in effect at the time of the events at issue, as well as predecessor agreements, contained the following no-strike clause (Pet. App. A-32; R. Exh. 1, Art. XI): No Strikes -- No Lockouts 11.1 The Brotherhood and its members agree that during the term of this agreement there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public. The agreement also contained a grievance and arbitration procedure for employee grievances (R. Exh. 1, Art. IX), and provided that any decision by an arbitrator would be binding "for the term of this agreement" (id. at Art. IX, Section 9.2, 4th para.). 2. Work stoppages by members belonging to a local other than Local 563 occurred on three occasions, in 1970, 1972, and 1974. Following each incident the Company disciplined all involved through warnings or suspensions; the punishments for certain union officials involved (including a shop steward) were more severe than those imposed on other employees. The local involved took to arbitration the question whether the disparate punishment in connection with the 1972 and 1974 work stoppages was justified, and the arbitrators upheld the Company's discipline (Pet. App. A-36 to A-37; J.A. 29-32, 25-26; Pet. App. A-52 to A-61 (Arb. Howard), A-62 to A-72 (Arb. Seidenberg)). Members of Local 563 engaged in a refusal to report for work in 1973 and on two occasions in 1977. In 1973 and on the second occasion in 1977, the Company imposed more severe discipline (longer suspensions) on union officers than on other employees (Pet. App. A-36 to A-37; J.A. 14-15, 32, 36, 38-39, 41). These work stoppages occurred at the Company's Three Mile Island nuclear generating station, a two-unit plant located on an island in the Susquehanna River (Pet. App. A-3, A-32, A-36 to A-37; J.A. 32, 36, 39-41). /2/ 3. The first 1977 incident occurred on August 4, when employees in Local 563 refused to cross a picket line established at one of two bridges to the island by members of the Pipefitters' union, who were picketing a construction subcontractor on the island (Pet. App. A-37; J.A. 38, 82-83). A Company representative told David Lang, the president of Local 563, that he and the other officials were "in trouble" if they did not cross the picket line and get the other Union members to work (Pet. App. A-37; J.A. 83). Lang then talked to the Pipefitters' business agent and got him to agree to "take the line down" (J.A. 83-84). /3/ By 9:00 a.m., most of the Company employees were back at work (J.A. 84). Approximately 35 to 40 employees did not report, however, until later in the day, and 45 to 50 employees failed to report at any time that day (G.C. Exh. 6). 4. Following the August 4 incident, there were several meetings between the Executive Board of Local 563 and the Company. The Company asserted that Union officials Lang and Light had an "absolute obligation to have their employees report to work" and should themselves cross any picket line immediately so that others, following their example, would also return to work (J.A. 40, 109). However, like the other employees who had reported to work at 9 a.m. on August 4, after the picket line was down Lang and Light were not disciplined for refusing to cross the picket line at the time of their scheduled shifts (J.A. 39, 45). After work on August 4, Local 563 held a meeting (Pet. App. A-37; J.A. 85). President Lang and other Union officials had decided to hold the meeting "to get things straight because half the people did not show up and half the people were mad() at us for going in" (J.A. 85). At the meeting, Lang explained that he had telephoned the International Union and had been told that the employees "should have crossed the picket line and gone to work" (J.A. 85-86). The employees "vociferously" disagreed and the meeting "got out of hand" (Pet. App. A-37 to A38; J.A. 86). One employee stated that anyone who crossed the picket line was a "scab," particularly if he was on the Union Executive Board (J.A. 94). The he offered a motion that "the next time there is a picket line * * * no one should cross" (J.A. 86). Lang refused to accept this motion, stating that it was "out of order," but the clamor continued. Before the meeting ended, Lang again advised the employees that they were not right in thinking that it was permissible to refuse to cross a picket line, but that if they nevertheless refused they should at least go to the union hall rather than "hang() out in bars" (J.A. 86, 96). /4/ 5. On August 30, 1977, at about 6 a.m., members of the Operating Engineers' union began picketing at the north gate of the Company plant, the main island entrance normally used by Company employees; they were protesting a maintenance subcontractor's refusal to hire members of their union (Pet. App. A-3, A-33; J.A. 38, 62-63, 87). Several Company representatives were informed of this at home and one of them, Personnel Administrator Gary Hahn, telephoned Union President Lang at his home, advising him that Company employees represented by the Union were refusing to cross the Operating Engineers' picket line and that Lang "ought to come in and see what could be done" and "try to straighten it out" (J.A. 78, 87). It is stipulated that the employees' refusal to cross the picket line was a violation of the no-strike clause (Pet. App. A-33; J.A. 21). Lang, Hahn, and Company Coordinator Walter Poyck went to the north gate of the plant. There Lang talked to the leader of the picket line, who said he would not remove the line until ordered to do so by his union's business agent. Lang decided to talk to the business agent directly and got his telephone number for the picket leader. He then spoke with Administrator Hahn, who told Lang that his "obligation (was) to go in and work." While Hahn and Lang were talking, an employee arrived in his car, asked Lang what he should do, and then went to the Union hall, which was in the town of Middletown, about three miles from the plant (Pet. App. A-34, A-41; J.A. 87-88, 52, 54). /5/ At about 7:05 a.m., Union Vice President Gene Light, while driving to the plant, saw other employees heading toward the Union hall. They signalled him to follow. Since Light's work shift was not scheduled to begin until 7:30, he believed he had enough time to go to the Union hall before work (J.A. 102). At about 7:15, Lang arrived at the Union hall, where a number of employees had gathered. He was unable to reach the Operating Engineers' business agent to urge removal of the picket line, so he told Vice President Light and two other employees to go to the picket line and try to negotiate with the picketers to "get them off the bridge so the people can go to work" (Pet. App. A-35; J.A. 88). Soon after Light left, Company Personnel Director Thomas Hombach arrived and told Lang that he "should by trying to report to work and ask the members to follow him." Lang said that "it was the consensus of opinion" that the Union employees would not cross the picket line and that they would not report to work "until the line was completely down" (Pet. App. A-35; J.A. 88). Meanwhile, Light arrived at the picket line and spoke with the picket leader about the reason for the picketing. He then talked to Company representatives Poyck and Hahn, explaining that, even if he were to cross the picket line, the other employees would probably not follow. He said that he was "trying to get the picketers removed" and asked if the Company was doing anything "to get this thing squared away." Poyck said the Company was "doing something internally at the Island to try to handle the situation" and that Lang and Light were in "big trouble" if they did not cross the picket line (Pet. App. A-35; J.A. 102-103). When Light returned to the Union hall, he explained to Lang and the other employees why the picketers were there and what the picket leader had said. After a few minutes, Lang told Light and another employee to go back to the picket line, talk to the picket leader to try to "get him to change his attitude or anything like that," and to "make any kind of deal" he could to remove the picket line and allow the Union employees to go to work (J.A. 103). Light and the other employee returned to the line and talked to the picket leader, asking if there was "any way" the pickets could be removed. Light was given the telephone number of the Operating Engineers' union hall, and he told the picket leader he would talk to his business agent. Then, Personnel Director Hombach approached and told Light that he and Lang were in "big trouble" because they were union officials. Light replied that the Union wanted "to get this thing resolved once and for all so it doesn't happen again" (Pet. App. A-35; J.A. 103-104). Meanwhile, at the Union hall, Company representative Poyck told Lang he should go to work and lead the other employees in. Lang answered that the employees had already decided not to go in and that the felt it would be better for all concerned if he stayed out with the others; this, he reasoned, would at least enable him to negotiate with the picketers (Pet. App. A-35; J.A. 89). Shortly before 11:00 a.m., Lang again went to the picket line and urged the picketers to leave the north gate. He asked the picket line leader, "(w)hat do (we) have to do to get you guys off the bridge?" The picket leader responded, "(w)hat we need is no more contractors crossing the north bridge" (Pet. App. A-35; J.A. 89-90). Lang then told Poyck what the picket leader had said. Soon thereafter, at about 11:00 a.m., the Company established a "reserved gate" for the maintenance subcontractor's employees at the island's south entrance. As a result, the north gate picketing stopped (Pet. App. A-35; J.A. 66-67, 90). Meanwhile, Supervisor Hombach had gone to the Union hall. Shortly after he arrived, he received a telephone call from a Company superintendent, who dictated a letter to Hombach, directing Lang, as president of the Union, to "forceably and emphatically tell" the employees that, by not reporting to work, they were in violation of the contract and were therefore subject to "severe disciplinary action including termination of employment" (J.A. 90; R. Exh. 7). As Lang was assembling the employees, he received a telephone report that the picket line had left the north gate. Lang announced that the picket line was down and that everyone could go to work. He also read the Company superintendent's letter aloud. Immediately thereafter, the employees went to work (J.A. 90-91). 6. The Company thereafter disciplined employees participating in the August 30 incident by suspending 121 for five days and another 14 for ten days. Lang and Light, however, were suspended for 25 days (Pet. App. A-33; J.A. 16-17, 36). At a meeting called to discuss the discipline, a Company vice-president explained to Lang and Light that, as union officials, they had had a duty to cross the picket line (J.A. 46, 92). On its "Record of Disciplincary Action" forms compiled for all 137 disciplined employees, the Company stated that discipline was being administered for "failure to report to work" and for "participation in an unlawful work stoppage" (Pet. App. A-33; J.A. 16-17; G.C. Exhs. 4 & 5). The forms completed for Union officials Lang and Light also stated (Pet. App. A-33 to A-34; J.A. 16-17): In addition, you are being disciplined for your failure as an elected official of Local Union 563 IBEW to demonstrate to the Company, in an objective manner, your affirmative duty as an elected officer to: (a) Make every effort to uphold the sanctity of the Agreement and its established grievance procedures. (b) Make every bona fide effort to prevent the unlawful work stoppage. (c) Make every effort, including returning to work yourself, to end the unlawful work stoppage. The forms further warned Lang and Light that their participation in "any unlawful work stoppage in the future" would result in their "immediate discharge" (ibid.). Shortly thereafter, concerned over the discharge threat, Lang resigned his job with the Company (J.A. 80). B. The Board's Decision and Order The issue before the Board was the legality under the Act of the additional discipline imposed on Lang and Light for the August 30 incident. The Board noted that it was not questioning the Company's right to discipline employees, including union officials, for refusing, in violation of a no-strike clause, to cross a picket line (Pet. App. A-39 n.4). In addition, the Board rejected the Company's contentions that Lang and Light were active leaders of the Operating Engineers' strike and that they fomented the work stoppage (id. at A-43). It found that the union officers had simply failed to take the affirmative steps deemed appropriate by the Company to stop the workers' refusal to cross the picket line (id. at A-40 to A-41, A-43). Thus, the Board reasoned, they were singled out for extra discipline solely because of their status as union officers -- an action that violates Section 8(a)(3) and (1) of the Act because it discourages employees from becoming active as officials in their unions (Pet. App. A-22 n. 1, A-43 to A-44). Board Member Penello dissented, stating that the Company could lawfully discipline Lang and Light more severely because they had "failed to comply with their responsibility as union officers to enforce the contract" (id. at A-24 to A-27). The Board's order requires, inter alia, that the Company revoke the suspensions of Lang and Light to the extent that they exceeded discipline meted out to other employees and compensate Lang and Light for the loss of earnings attributable to the discrimination (Pet. App. A-45 to A-47, A-22 to A-23 & n.2). C. The Decision of the Court Appeals The court of appeals, with one dissent, enforced the Board's order (Pet. App. A-1 to A-12). Relying on prior Third Circuit precedent, it accepted the proposition that "(a)n employer may impose greater discipline on union officials if the collective bargaining agreement enumerates specific affirmative steps a union official is to take in the event of an illegal work stoppage and the official has failed to perform those actions" (Pet. App. A-5 to A-6). Because the holding of union office is a protected activity, however, the court held that, absent clear contractual language showing that a union has consented to placing additional duties on union officials, an employer violates Section 8(a)(3) and (1) of the Act by disciplining union officers more severely than other employees for engaging in a strike in violation of contract or failing to take affirmative steps to end it (Pet. App. A-8 to A-10). The court concluded that such clear contractual consent was not present here. The bargaining agreement contained no language placing additional duties on union officials in connection with work stoppages, and the court rejected the Company's contention that the Board was required to find a clear union consent to the imposition of such duties by virtue of two arbitral decisions under predecessor agreements with identical no-strike clauses (Pet. App. A-10 to A-12; see pages 2-3, supra). INTRODUCTION AND SUMMARY OF ARGUMENT Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. 158(a)(3), expressly prohibits employers from discriminating "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." In this case and in the line of authority on which this case relies, the Board has concluded that an employer unlawfully discriminates on the basis of union consideration when it disciplines one employee more harshly for participation in a contractually-prohibited work stoppage than it does another, merely because the former employee is a union officer. It follows a fortiori that the Board also finds a violation when the employer punishes the employee holding union office for failing to take what the employer deems adequate steps to prevent or curtail such a work stoppage, while imposing no such obligation or penalty on rank-and-file employees. In both instances, in the Board's analysis, the employee is receiving augmented discipline based not on his participation in unprotected activity -- a work stoppage in violation of contract -- but on his status as a union officeholder. Several courts of appeals have upheld Board findings that employers violated Section 8(a)(3) of the Act by imposing such disparate discipline. These courts have concluded also that a union may contractually consent to an attenuation of the right to hold union office by agreeing in clear and unmistakable language to the imposition on union officers of affirmative obligations to prevent or curtail contractually prohibited work stoppages. Thus, in cases where there has been an unambiguous waiver of the right of union officers to be free of augmented discipline, the courts have concluded that an employer does not violate the Act by imposing more severe discipline on union officers in accordance with the clear contract provisions. The Board has not resolved the question whether a union may thus waive rights of employees under the Act, and it is not necessary to resolve that question in the present case. As explained below, neither the general no-strike clause of the collective bargaining agreement nor the arbitral awards on which the Company relies constitute a clear and unmistakable waiver of employees' statutory rights. I The disciplinary notices that the Company issued to its employees who declined to cross the Operating Engineers' picket line on August 30, 1977, made it clear that Lang and Light had received the longest suspensions solely because they were Union officers. The notices also made it clear that Lang and Light would be subject to discharge if they participated in another such work stoppage. Such a disciplinary standard constitutes disparate treatment that foreseeably discourages employees from engaging in the protected activity of serving in union office, and it is inherently destructive of the right to engage in such activity. For that reason it violates Section 8(a)(3) of the Act. NLRB v. Erie Resistor Corp., 373 U.S. 221, 227-228 (1963); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). This is not to say that union officers enjoy any right to engage in activity that violates no-strike clauses, free from the threat of discipline. Under the Board's analysis, an employer may discipline employees holding union office as severely as it does other rank-and-file employees for such conduct, and may discipline them more severely if they instigate or lead the strike. A major reason that the disparate treatment at issue in this case is inherently destructive of the right to hold union office is that, given the realities of industrial life, it is not a simple matter for union officers to prevent or control unauthorized ("wildcat") strikes in violation of contract. Moreover, in many cases, a union officer may reasonably believe that he can bring a wildcat strike to a more rapid end by remaining off the job with the members rather than by going, alone, into the plant. In such circumstances, an employer policy of subjecting the officers -- but not the rank-and-file employees -- to especially harsh discipline for participation in the work stoppage will discourage employees from seeking union office but will do little to discourage wildcat strikes. The Board's construction of Section 8(a)(3) of the Act as permitting unlimited discipline for engaging in contractually prohibited strikes so long as that discipline is not based on the holding of union office or other protected union activities represents a reasonable accommodation of both employer and employee interests. II. It is generally accepted that in the case of statutory rights of employees that are waivable by a union, a waiver will be effective only when it is clear and unmistakable. That principle should apply also in the case of the right in question here, assuming that it is waivable. Unless there is clear and unmistakable evidence that a union has deliberately agreed with an employer that union officers will bear specific, well-defined responsibilities to prevent or curtail work stoppages in violation of contract, one cannot readily infer that the union has considered all of the relevant circumstances and concluded that the prospect of a double standard of discipline in the case of wildcat strikes will not unduly hamper its recruitment of union officers by discouraging employees from assuming the jobs. The applicable standard has not been met in this case. The no-strike clause in the collective bargaining agreement contains no references whatsoever to union officers. The arbitral awards under prior agreements on which the Company relies do specifically state that union officers have special responsibilities with respect to contractually prohibited work stoppages and can be disciplined more harshly than other employees for the same acts of participation; but in making these awards the arbitrators were not construing any particular language of the agreement. Thus, there was no contractual language that the Union could ask to have deleted to ensure against any future such arbitral awards. Under the Company's theory that those awards automatically became part of any new agreement unless bargained away by the Union, the Union could avoid a waiver of the employees' right to be free of discipline based on the holding of union office only by negotiating an express disclaimer of any such waiver. This turns upon its head the principle that waivable employee rights may be surrendered only by clear and unmistakable consent. In deciding the statutory issue in this case, the Board was not required to defer to the arbitrators' awards under prior agreements. The arbitrators, who were free to apply any standard in deciding whether to uphold the harsher penalties for union officers, so long as that standard drew "its essence from the collective bargaining agreement" (Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)), did not consider whether employees enjoy any rights under the National Labor Relations Act to be free of such disparate discipline and thus did not decide whether any provision in the agreement met the clear and unmistakable waiver standard. Because the arbitrators thus neither considered the statutory question at issue here nor applied the correct standard, even assuming they decided the statutory issue sub silentio, the Board properly declined to defer to the arbitral awards in deciding whether the Company violated Section 8(a)(3) of the Act by imposing additional days of suspension on Lang and Light solely because of their status as union officers. ARGUMENT I. AN EMPLOYER VIOLATES SECTION 8(a)(3) AND (1) OF THE ACT BY DISCIPLINING EMPLOYEES HOLDING UNION OFFICE MORE SEVERELY THAN IT DOES OTHER EMPLOYEES FOR IDENTICAL CONDUCT THAT VIOLATES A GENERAL NO-STRIKE CLAUSE, WHERE THE COLLECTIVE BARGAINING AGREEMENT CONTAINS NO EXPRESS PROVISION REQUIRING UNION OFFICERS TO TAKE AFFIRMATIVE STEPS TO PREVENT OR CURTAIL CONTRACTUALLY PROHIBITED WORK STOPPAGES A. The Act Generally Prohibits Employer Actions That Directly Penalize Participation in Protected Union Activities, Because Such Penalties Are Ordinarily Inherently Destructive of the Right to Engage in Those Activities Section 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." /6/ This includes protection against discrimination that encourages or discourages "participation in union activities" as well as that which encourages or discourages "adhesion to union membership." Radio Officers' Union v. NLRB, 347 U.S. 17, 39-40 (1954) (footnote omitted). Whether encouragement or discouragement is at issue, the central thrust of the provision is to "insulate employees' jobs from their organizational rights." Id. at 40 (footnote omitted). It is thus designed to ensure, among other things, that those who become union members may be as active or inactive and as "good, bad, or indifferent" in their commitment to their union as they wish "without imperiling their livelihood." Ibid. For this reason, an employer violates the Act if he discriminates on the basis of the employees' active participation in union affairs, such as holding union office or serving as the union's plant steward. /7/ General Motors Corp., 218 N.L.R.B 472, 477 (1975), enforced mem., 535 F.2d 1246 (3d Cir. 1976); Western Cartridge Co. v. NLRB, 134 F.2d 240, 245 (7th Cir. 1943); NLRB v. Southport Petroleum Co., 117 F.2d 90, 92 (5th Cir. 1941). See also Caterpillar Tractor Co. v. NLRB, 638 F.2d 140, 141 (9th Cir. 1981). As the court below observed (Pet. App. A-8, citing General Motors Corp., supra), "the holding of union office is the essence of protected union activities." In most cases involving alleged violations of Section 8(a)(3), any linkage between the action taken by the employer and the union activities or sentiments of the particular employees who are benefited or penalized by that action is not apparent on the surface. Such cases call for a detailed analysis of the surrounding circumstances to determine whether the employer acted with discriminatory intent or for a legitimate business purpose. But, in some cases, the basis for the employer's action may "speak for itself -- it is discriminatory and it does discourage union membership"; and it "carries with it unavoidable consequences" that the employer may be found as having intended. NLRB v. Erie Resistor Corp., 373 U.S. 221, 228-229 (1963). In Erie Resistor, the Court found such inherent intent in an employer's policy, during an economic strike, of granting super-seniority to all strike replacements and to those employees who abandoned the strike and returned to work. The Court noted (id. at 231) that "super-seniority by its very terms operate(d) to discriminate between strikers and non-strikers, both during and after the strike, and its destructive impact upon the strike and union activity (could) not be doubted." The Court concluded (id. at 231-232) that the Board could properly find that the employer's business purpose of keeping his plant in operation during the strike did not justify a means so damaging to the employees' right to engage in concerted activities. In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), the Court reiterated the principle, observing that "(s)ome conduct * * * is so 'inherently destructive of employee interests' that it may be deemed proscribed without need for proof of an underlying improper motive" (id. at 33, quoting NLRB v. Brown, 380 U.S. 278, 287 (1965)). In Great Dane, the issue was the employer's refusal to pay accrued vacation benefits to strikers, and the Court had no difficulty in seeing this as "discrimination in its simplest form," since the denial was plainly predicated on the employees' having engaged in concerted activities. 388 U.S. at 32. The violation of Section 8(a)(3) was clear because the employer offered no evidence whatsoever of legitimate business motives (id. at 34); but the Court further noted that, in cases in which an "employer's discriminatory conduct was 'inherently destructive' of important employee rights," the Board might find a violation "even if the employer introduces evidence that the conduct was motivated by business considerations" (ibid.). As in Erie Resistor and Great Dane, it is ordinarily reasonable to conclude that an employer's policy of directly and overtly attaching penalties to participation in protected union activities is inherently destructive of the right to engage in those activities. Kansas City Power & Light Co. v. NLRB, 641 F.2d 553, 557-560 (8th Cir. 1981); Kaiser Engineers v. NLRB, 538 F.2d 1379, 1386 (9th Cir. 1976). See also NLRB v. Haberman Construction Co., 641 F.2d 351, 359-360 (5th Cir. 1981) (en banc). As we show below, an employer's practice of making an employee's status as a union officer the predicate for augmenting discipline imposed on him is inherently destructive of the right to hold union office; and, at least absent a clear waiver by the union of the employees' right to be protected against such disparate treatment, such a practice constitutes discrimination in violation of Section 8(a)(3) and (1) of the Act. B. An Employer's Augmentation of Discipline Predicated on an Employee's Status as a Union Officer is an Unlawful Discriminatory Penalty, at Least Absent an Adequate Union Waiver It is not disputed in this case that, had Lang and Light not been officers in the Union, their failure to cross the picket line to begin their scheduled work shift on August 30, 1977, and their failure to urge fellow employees to cross it, would have resulted in less severe sanctions than the 25-day suspensions they received. The court below properly upheld the Board's finding that those suspensions constituted unlawful penalties imposed on the protected activity of holding union office insofar as they exceeded the penalties Lang and Light would have received for refusing to cross the picket line had they been rank-and-file employees. Because the penalties in question were imposed in the context of an activity that was prohibited by contract, however, it must first be made clear that this case does not involve any right to engage in work stoppages that violate a no-strike clause. The Board accepted a stipulation that the employees' refusal to cross the picket line established by the Operating Engineers violated the no-strike clause (Pet. App. A-33; J.A. 21). Such a refusal is not protected by the Act. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246 (1962), overruled on other grounds, Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970); NLRB v. Sands Manufacturing Co., 306 U.S. 332, 344 (1939); Chrysler Corp., Dodge Truck Plant, 232 N.L.R.B. 466, 474 & n.17 (1977), aff'd without opinion, 85 Lab. Cas. 11,073 (D.C. Cir. 1979). The Board thus does not question the right of an employer to discipline employees, including those who hold union office, for such activities. Miller Brewing Co., 254 N.L.R.B. 266, 267 (1981), enforced sub nom. Szewczuga v. NLRB, 686 F.2d 962 (D.C. Cir. 1982), petition for cert. pending, No. 82-666. Neither does it question an employer's right to impose more severe discipline on those employees who instigate or provide leadership for unprotected strikes, whether or not such employees are union officers. See, e.g. Midwest Precision Castings Co., 244 N.L.R.B. 597, 598 (1979); Chrysler Corp., Dodge Truck Plant, supra, 232 N.L.R.B. at 474-475; J. P. Wetherby Construction Corp., 182 N.L.R.B. 690, 695 (1970); University Overland Express, Inc., 129 N.L.R.B. 82, 92 (1960). /8/ Indeed, an employer may, without violating the Act, selectively discipline employees who strike in violation of contract, using any grounds for selection he chooses, so long as those grounds are not "union-related." C.H. Heist Corp., 250 N.L.R.B. 1400, 1403 (1980), enforced, 657 F.2d 178 (7th Cir. 1981); Precision Castings Co., 233 N.L.R.B. 183 (1977); American Beef Packers, Inc., 196 N.L.R.B. 875 (1972). When, however, an employer punishes one employee more harshly than another simply because the former holds union office and the latter does not, he has gone beyond punishing prohibited conduct and has overtly penalized a protected form of union activity. /9/ A declared policy of imposing such additional discipline on union office holders foreseeably discourages employees from seeking and holding union office. Szewczuga V. NLRB, supra, 686 F.2d at 973; Hammermill Paper Co. V. NLRB, 658 F.2d 155, 163 (3d Cir. 1981), petition for cert. pending, No. 81-1438 (Pet. App. A-41). /10/ The Board has therefore concluded that such disparate discipline -- inherently destructive of employee interests -- represents impermissible discrimination based on union considerations, and it has found such conduct to be a violation of Section 8(a)(3) of the Act without the need of elaborate inquires into employer motives. E.g., Consolidation Coal Co., 263 N.L.R.B. No. 188, 111 L.R.R.M. (BNA) 1205 (Sept. 20, 1982); C.H. Heist Corp., 250 N.L.R.B. 1400, 1403 (1980), enforced, 657 F.2d 178 (7th Cir. 1981); Indiana & Michigan Electric Co., 237 N.L.R.B. 226, 229 (1978), enforcement denied, 599 F.2d 227 (7th Cir. 1979); Precision Castings Corp., 233 N.L.R.B. 183, 184 (1977). /11/ The Company both ignores the realities of industrial life and essentially begs the question when it contends (Pet. Br. 40-43) that harsher discipline of union officers is not disparate discipline because officers, unlike rank-and-file employees, are natural leaders and bear special responsibilities with respect to avoiding and halting wildcat strikes. An employer, so the Company's argument goes, simply accords varying treatment to unlike cases when it differentiates on the basis of union office in selecting the relative severity of discipline for no-strike clause violations. As we argue below (pages 25-27), in the circumstances of an unauthorized strike, it ssimply cannot be assumed that employees look to union officers for guidance. Indeed, where the strike is an expression by dissident employees of dissatisfaction with both the employer and the union, the union officers may be in the worst position to quell the strike. /12/ Moreover, to contend, as the Company does (Pet. Br. 40-43), that special responsibilities to prevent or curtail contractually prohibited strikes are inherent in union office, is to beg the question in issue. Contrary to the Company's argument, it is not self-evident that Union office invests its holders with "natural leadership" or "inherent responsibilities" in all situations (see pages 25-31, infra). The Company's contention is essentially an argument that the responsibilities in question may reasonably be attributed to union office notwithstanding the absence of any provision so specifying contained in a union constitution, collective bargaining argrement, or statute. And that is the question in this case -- whether it is proper to assume that union office necessarily carries with it the burden of preventing and curtailing contractually prohibited strikes and thereby gives rise to additional grounds for disciplining employees for engaging in the same conduct engaged in by rank-and-file employees solely because of their status as union officers. The courts have generally agreed with the Board that that question should be answered in the negative -- i.e. that it is inherently destructive of an important employee right to impose such additional burdens and penalties on union officers simply by virtue of the fact that they hold that office, and that such disparate discipline constitutes unlawful discrimination. NLRB V. South Central Bell Telephone Co., No. 81-4159 (5th Cir. Oct. 4, 1982), slip op. 60; Szewczuga V. NLRB, supra, 686 F.2d at 973; Hammermill Paper Co. V. NLRB, supra, 658 F.2d at 163-165; C. H. Heist Corp. V. NLRB, 657 F.2d 178, 181-183 (7th Cir. 1981). /13/ As we show below, this construction of the Act takes account of practical constraints on employees holding union office, and it represents a reasonable accommodation between an employer's right to seek to deter work stoppages prohibited by a no-strike clause and the employee's right not to be discouraged from serving as a steward or other union officer. This construction does not preclude the possibility of imposing special responsibilities on the officers by means of the collective bargaining agreement. /14/ It recognizes, however, that, to the extent duties and responsibilities are inherent in the mere holding of union office, those duties are to the union membership and others in the bargaining unit being represented (cf. Vaca V. Sipes, 386 U.S. 171 (1967)), rater than to the employer. A union officer's inherent duties to his employer arise instead out of the employment relationship, i.e., out of his status as an employee rather than as a union officer. C. The Board's Application of the Act to the Disparate Discipline of Employees Holding Union Office is responsive to the Realities of Industrial Life In answering the question whether an employer commits an unfair labor practice by imposing on his employees the kind of disparate discipline at issue in this case, the Board is engaged in its "special function of applying the general provisions of the Act to the complexities of industrial life." NLRB V. Erie Resister Corp., supra, 373 U.S. at 236, citing Republic Aviation Corp. V. NLRB, 324 U.S. 793, 798 (1945), and Phelps Dodge Corp. V. NLRB, 313 U.S. 177, 194 (1941). The positions of the Company and the amici in this case take little account of those complexities. To begin with, the contention of the amicus Edison Electric Institute (EEI Br. 16) that the decisions of the Board and the courts of appeals on this question would "encourag(e) disavowal of no-strike commitments" by employees holding union office ignores the fact, already noted, that under those decisions union officers are not immune from discipline for participating in contractually prohibited work stoppages. More significantly, suggestions that the alleged special duties inherent in the status of union officer are a simple matter of "stand(ing) up for the contract by taking affirmative steps to induce the employees to return to work" (Pet. Br. 44) or "set(ting) an example for the rest by not participating in the unlawful activity and by attempting to bring about its cessation" (EEI Br. 19-20) disregard the more complicated chemistry of interactions between union officers and rank-and-file employees in the throes of a wildcat strike. If it were the case that -- at a word from a union officer, or by the mere force of his example in crossing a picket line or going to work during a strike -- employees bent on a wildcat strike would immediately cease their contractually prohibited activity and continue thereafter to accept the officer's advice in matters concerning their rights and obligations under the collective bargaining agreement, then the threat of additional discipline for union officers might be seen as an acceptable way for an employer to combat prohibited strikes. The justification for the employer's actions might be said to outweigh the effects on the right to hold union office; for the prospect of holding union office under the threat of special penalties for a failure to take the lead in going back into work during any contractually prohibited work stoppage would not make the choice of assuming union office appear especially dangerous to any leaders who could reasonably expect no difficulties in coping with wildcat strikes. As noted, however, this facile assumption is false. Unauthorized work stoppages -- whether they are an expression of resentments that have built up in the workplace or, as in the present case, are the result of the employees' aversion to crossing another union's picket line -- often do not begin under the leadership or control of union officers. Atleson, Work Group Behavior and Wildcat Strikes: The Causes and Functions of Industrial Civil Disobedience, 34 Ohio St. L. J. 751, 762-763, 811-812 (1973); Sayles, Wildcat Strikes, 32 Harv. Bus. Rev. 42, 50 (1954), citing Paterson & Willett, Unofficial Strike 43 The Sociological Rev. 57 (1951). That wildcat strikes may have a life of their own and that union officers may be powerless to prevent or end them is demonstrated by the facts of the present case and of others that have come before the Board. Here, following the August 4 work stoppage, Union President Lang specifically communicated to the members of the Union at a meeting the legal advice he received from the International Union -- that the employees should have crossed the picket line and gone to work. The response was an accusation that anyone -- especially a member of the Union's executive committee -- who crossed a picket line was a "scab" and a motion that the membership never cross any picket lines again (J.A. 86, 94). Lang's refusal to accept the motion produced a further uproar that he was unable to control (J.A. 86, 96). As the administrative law judge found (Pet. App. A-43), Union members had come to an informal agreement on the matter of refusing to cross picket lines against "Lang's urgings and advice." Similarly in C. H. Heist Corp. V. NLRB, supra, 657 F.2d at 180, a contractually prohibited walkout occurred despite the steward's previous advice to angry employees that they deal with their problems through the contractual grievance procedures. And in Miller Brewing Co., supra, 254 N.L.R.B. at 267, the Board found that the stewards "were caught in a series of events whereby an employer's decision provoked a hostile, and ultimately uncontrollable, reaction against the Employer, the Union, and themselves." A union officer who is not eager to have his members out on unauthorized strikes in violation of contract and who wishes to curtail such incidents when they occur finds himself in a serious dilemma when he is faced with the prospect of especially severe discipline for failing to go to work while his members are outside refusing to do so. He may, with good reason, believe that complying with this demand of the employer will not only destroy the credibility of his authority with respect to any further controversies but will also prevent him from taking steps that he has reason to believe will bring the work stoppage more quickly to an end. Union officers "must walk a narrow line between 'responsibility' and 'selling out the membership'" (Atleson, Work Group Behavior, supra, 34 Ohio St. L. J. at 810) and are wary of finding themselves labeled a "'company stooge'" (Sayles, Wildcat Strikes, supra, 32 Harv. Bus. Rev. at 50). And, on some occasions, accompanying the membership on a walkout may be the more responsible course. Thus, in Miller Brewing Co., supra, 254 N.L.R.B. at 266, the stewards -- on the advice of the union's business agent -- accompanied a group of angry employees to the union hall, trying "to keep them together as a single group." As the court of appeals, in its opinion enforcing the Board's order, noted (686 F.2d at 968), "(t)o the extent that the stewards helped to keep the walkout orderly, they helped to bring about its speedy conclusion." The circumstances in the present case were somewhat similar: Union President Lang was aware that, during the August 4 incident, some employees who had refused to cross the picket line had not gone to work that day at all but instead "had gone drinking" (J.A. 86), and this was less likely to happen when the employees assembled at the Union hall. Despite his earlier statement to rank-and-file members that they had no right to honor such picket lines, Lang knew that "(his) people would not go in" when they saw the picket line. He further believed that he could bring the work stoppage to an end more readily by staying out and attempting to get the picketers to leave rather than by crossing the picket line himself (J.A. 89). /15/ As the Seventh Circuit noted in an analogous situation in C.H. Heist Corp. V. NLRB, supra, 657 F.2d at 183: "To have taken that extra step would have been suicidal to his union stewardship and his capacity to enforce any provision of the bargaining contract." In sum, a union officer whose employer has threatened to impose especially severe discipline on all officers who fail to follow the employer's own prescription for the proper exercise of union office during a contractually-prohibited work stoppage finds himself in the following dilemma: Confronted with threats to his leadership position and confronted with an unauthorized stoppage brought about by the activities of unauthorized leaders, the average union steward finds himself between two fires. If he fails to "run with the crowd," he may shortly find himself out of office. If he does run with them, he may shortly find himself out of employment. Yaffe, The Protected Rights of the Union Steward, 23 Indus. & Lab. Rev. 483, 493 n.28 (1970), quoting Gabriel Alexander, Management Rights and the Arbitration Process, Proceedings of the Ninth Annual Meeting of the National Academy of Arbitrators. It is thus not unreasonable to conclude that -- at least absent contractual waiver by the union -- an employer discourages union membership in violation of Section 8(a)(3) of the Act when he imposes on union officers discipline above and beyond what he is free to impose on every employee, including any union officer, who engages in a contractually prohibited work stoppage. One need not merely hypothesize the deterrent effect of such disparate discipline on holding union office, for examples are readily at hand. The steward involved in C.H. Heist Corp., supra, 250 N.L.R.B. at 1402, perhaps fearful of the selective discipline that was to come, announced his resignation as steward when the wildcat strike drew to a close. In Szewczuga V. NLRB, supra (686 F.2d at 973; footnote omitted), after the employer announced the discharge of two union stewards for their role in the walkout, another steward resigned his union post, "and since then the union has been unable to persuade any of its members to serve as stewards." In the present case, Union President Lang, when informed by the Company that his participation in any future work stoppage would result in his discharge, sought employment elsewhere because "being a family man I could not allow myself to be in that situation" (J.A. 80). Finally, it is not the case, as the Company suggests (Pet. Br. 41), that pursuing a policy of disparate discipline that discourages employees from seeking union office should be lawful so long as the Board permits employers and unions to agree on and enforce contractual clauses that give certain employment preferences to union office (usually plant stewards) who have grievance handling obligations. Such favorable treatment is permitted only to the extent that it is necessary to accommodate the union's "'legitimate and substantial'" need to have grievance-handling performed in the plant at times when grievance controversies are likely to arise. NLRB V. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162, 1166 (2d Cir. 1976), quoting NLRB V. Great Dane Trailers, Inc., supra, 388 U.S. at 34. Where a contractual provision gives a union steward job benefits beyond preferences respecting layoff and recall, it is presumptively unlawful; and if it appears that a contractual clause grants job benefits to union stewards "only because they are union stewards," it will be found violative of Sections 8(a)(3) and (1) and 8(b)(2) and (1)(A) of the Act, 29 U.S.C. 158(a)(3) and (1) and 29 U.S.C. 158(b)(2) and (1)(A). Dairylea Corporative, Inc., 219 N.L.R.B. 656, 657 (1975), enforced, NLRB V. Milk Drivers & Dairy Employees, Local 338, supra, Accord, Teamsters Local 20 V. NLRB, 610 F.2d 991 (D.C. Cir. 1979); W.R. Grace & Co., 230 N.L.R.B. 259 (1977). The Dairylea rule, if anything, supports the rationale for the Board's rule that an employer may not unilaterally impose harsher discipline on union officers in connection with contractually prohibited work stoppages simply because those individuals hold union office. The employer possesses the right, as noted, to discipline all employees, including union officers, for engaging in such work stoppages and to punish actual strike leaders more harshly. There is no substantial justification for permitting further punishment of certain employees "only because they are union (officers)," at least in the absence of a clear contractual waiver by the union. II. THE BOARD REASONABLY DECLINED TO DEFER TO THE DECISIONS OF ARBITRATORS CONSTRUING THE GENERAL NO-STRIKE CLAUSE OF PRIOR COLLECTIVE BARGAINING AGREEMENTS AS IMPOSING SPECIAL OBLIGATIONS RESPECTING CONTRACTUALLY PROHIBITED WORK STOPPAGES ON EMPLOYEES HOLDING UNION OFFICE AND THEREBY PERMITTING THEM TO BE PUNISHED MORE SEVERELY THAN OTHER EMPLOYEES FOR PARTICIPATION IN SUCH WORK STOPPAGES As we have shown, the Board and four courts of appeals have reasonably construed Section 7 of the Act, 29 U.S.C 157, as conferring on employees a right not to be subjected to increased penalties for particular conduct -- such as participating in a contractually prohibited work stoppage -- solely because they are union officers; and, accordingly, they have concluded that an employer violates Section 8(a)(3) and (1) of the Act if he imposes such disparate discipline on the theory that union officers inherently have a greater obligation to refrain from violating the collective bargaining agreement and to seek to dissuade others from violating it. To be sure, some statutory rights may be waived. Compare, e.g., NLRB V. Rockaway News Supply Co., 345 U.S. 71 (1953) (right to engage in sympathy strike waivable), with NLRB V. Magnavox Co., 415 U.S. 322 (1974) (employees' right to distribute literature in nonwork areas of plant in nonwork time is not waivable). The Board has reserved judgment on the question whether a collective bargaining representative may waive the right of employees holding union office not to be subjected to disparate discipline of the kind at issue here. /16/ All the courts of appeals that have considered the issue, including the court below, however, have either explicitly or implicitly concluded that the right may be waived in a collective bargaining agreement. Pet. App. A-5 to A-6; NLRB V. South Central Bell Telephone Co., supra, slip op. 57, 60-61; Fournelle V. NLRB, 670 F.2d 331, 340 (D.C. Cir. 1982); C.H. Heist Corp. V. NLRB, 657 F.2d 178 (7th Cir. 1981). /17/ It is unnecessary, however, for this Court to decide whether the right to be free from the disparate discipline at issue here is waivable; for, as we show below (pages 34-43, infra), no contractual waiver has been shown. Moreover, as we also show (pages 43-45, infra), in determining whether that conclusion respecting waiver may be upheld, the Court need not resolve general questions concerning the duty of one arbitrator to consider himself bound by the decision of a prior arbitrator, notwithstanding the Company's reliance in this case on two arbitral awards under collective bargaining agreements that preceded the agreement in effect during the events at issue. The question is not whether one arbitrator should read a collective bargaining agreement (or a successor agreement) in exactly the same manner as arbitrators who preceded him, but rather whether a particular agreement, in the light of arbitral constructions of prior agreements, constitutes evidence of a waiver of a particular employee right under the Act that meets the waiver standard generally applied by the Board and the courts. See NLRB V. South Central Bell Telephone Co., supra, slip op. 53-54, 57-58 n.8. A. A Waiver that is Not Clear and Unmistakable Will Not Suffice to Validate Disparate Discipline Based on the Holding of Union Office In Mastro Plastics Corp. V. NLRB, 350 U.S. 270 (1956), this Court was called upon to decide whether a contract clause providing, inter alia, that "(t)he Union further agrees to refrain from engaging in any strike or work stoppage during the term of this agreement" was a sufficiently clear waiver of the right of employees to engage in a strike in protest of their employer's unfair labor practices. 350 U.S. 281. Notwithstanding the literal application of the clause to "any strike or work stoppage," the Court concluded that, even assuming the right to be waivable, the clause did not waive the right in question. Noting that the contract dealt only with "the economic relationship between the employers and their employees," and that reading the clause as broadly as the employer suggested would present the employees from striking even in protest of such unfair labor practices as the unlawful ouster of their bargaining representative, the Court held: "Whatever may be said of the legality of such a waiver when explicitly stated, there is no adequate basis for implying its existence without a more compelling expression of it than appears in (the pertinent section) of this contract." Id. at 281-283. In decisions issued after Mastro Plastics, the courts of appeals have generally required that any waiver of an employee right under the Act be "clear and unmistakable." E.g., C & P Telephone Co. V. NLRB, 687 F.2d 633, 636 (2d Cir. 1982) (right to receive information pertinent to grievance processing); NLRB V. Southern California Edison Co., 646 F.2d 1352, 1364 (9th Cir. 1981) (right to engage in sympathy strikes); Communication Workers of America, Local 1051 V. NLRB, 644 F.2d 923, 927 (1st Cir. 1981) (grievance processing information); NL Industries, Inc. V. NLRB, 536 F.2d 786, 789 (8th Cir. 1976) (right to bargain over conditions of employment during term of a contract that does not address the subject in question); Timken Roller Bearing Co. V. NLRB, 325 F.2d 746, 751 (6th Cir. 1963), cert. denied, 376 U.S. 971 (1964) (right to receive collective bargaining information). The Court below correctly applied this principle in assessing the adequacy of the alleged waiver in the present case (Pet. App. A-8). NLRB V. South Central Bell Telephone Co., supra, slip op. 60-61; Szewczuga V. NLRB, supra, 686 F.2d at 970; C.H. Heist Corp. V. NLRB, supra, 657 F.2d at 178. Where it is not entirely clear that a union has agreed to the imposition of greater duties on union officers with respect to securing compliance with a no-strike clause -- and to the threat of greater employer discipline for violation of such duties -- it cannot be assumed that the union has weighed the consequences of such an arrangement and consented to it. That is to say, one cannot assume that the union has made a judgment concerning the potentially destructive effect of a system of disparate discipline on the willingness of employees to take on the burdens of union office or the ability of the bargaining unit to secure leaders other than those who pay little heed to threats of discipline. Similarly, where there is no clear contractual provision, officers may be unsure of the precise nature of the duties that they are expected to fulfill under threats of discipline. /18/ In short, in the absence of precise contractual language, there is nothing to indicate that the threat of disparate discipline would not be inherently destructive of important employee rights. In any event, we do not understand the Company to contend that, assuming arguendo that a waivable statutory right is at issue in this case, the waiver may be considered valid even if it is less than clear and unmistakable. Rather, the Company appears to argue (Pet. Br. 21, 34-36) that arbitral awards under prior collective bargaining agreements permitting an employer to discipline employees holding union office more severely than other employees for violations of the no-strike clause -- together with a general no-strike clause in the existing agreement -- manifest a clear and unmistakable waiver by a union of the employees' statutory right not to have the severity of discipline imposed upon them depend upon their decision whether or not to serve in union office. As we shall now show, that argument is unsound. B. A Clear and Unmistakable Waiver of the Right at Issue in this Case is Not Manifested by a General No-Strike Clause or by Arbitral Awards Construing Prior Collective Bargaining Agreements with such Clauses as Permitting Disparate Discipline, Based on the Holding of Union Office, for Violations of the No-Strike Clause Neither the Company nor the amici suggest that there is any language in the applicable collective bargaining agreement to the effect that employees holding union office have special responsibilities under the agreement -- to be carried out under threat of discipline more severe than that imposed on other employees. The Chamber of Commerce alludes to, but does not identify, the "collective bargaining language at issue," said to have been "construed" by earlier arbitral decisions (Chamber Br. 21); the Edison Electric Institute suggests (EEI Br. 16) that a special responsibility of stewards is implied in a no-strike commitment; and the Company appears to rely simply on the arbitral awards themselves (Pet. Br. 13-14, 29, 34-36), although its references to the no-strike clause and to "strike-related obligations" (Pet. Br. 13-14, 29) suggest that it can identify no other basis in contract language for imposing the obligations and discipline at issue, either under the present agreement or prior agreements. The Company's reluctance to rely on the no-strike clause alone is understandable. That provision merely states (Pet. App. A-32; R. Exh. 1, Art XI): 11.1 The Brotherhood and its members agree that during the term of this agreement there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public. The provision makes no reference to union officers; it clearly requires all members of the Union to abide by the no-strike commitment. And it contains no suggestion that the Union is waiving anything other than its right to strike. No court has ever construed such a clause as waiving the statutory right in question, and both the District of Columbia Circuit, in Szewczuga V. NLRB, supra, 686 F.2d at 970, and the Fifth Circuit in NLRB V. South Central Bell Telephone Co., supra, slip op. 52, 62-63, have squarely held that such a clause is an insufficient waiver. The heart of the Company's waiver contention, then, lies in two arbitral awards -- the Howard Award in May 1973 (Pet. App. A-52 to A-61) and the Seidenberg Award in December 1975 (Pet. App. A-62 to A-72). /19/ Essentially, the Company contends that these awards clearly construed prior collective agreements as permitting the kind of disparate discipline at issue here and that, because the agreements have been changed in no material way, the Union has clearly waived the employees' right not to be subjected to discipline on the basis of the holding of union office. In assessing the contention, it is well to begin with an examination of the basis on which those arbitrators construed the collective bargaining agreement as permitting disparate discipline. In holding that, in the aftermath of a contractually prohibited work stoppage, the Company could impose "more serious discipline" on certain employees "by reason of their Union position" (Pet. App. A-58), Arbitrator Howard did not purport to be construing any particular language in the agreement. /20/ Rather, he relied on decisions of other arbitrators -- construing collective bargaining agreements negotiated by unions and employers different from the parties before him -- that purported to reflect a general view that "Union officials have an affirmative duty to protect the authority of the Union leadership from illegitimate action on the part of the employees, and to uphold the sanctity of the Agreement and its established grievance procedures" and that "(f)ailure to exercise this responsibility subjects them to more serious penalties" (Pet. App. A-60; footnote omitted, emphasis in original). Examination of the cited authorities reveals that some of them relied on the stated general principle in upholding disparate treatment of union officers (e.g., Vickers, Inc., 33 Lab. Arb. (BNA) 594, 600-601 (1959) (Bothwell, Arb.)), while two of them relied in part on contract language requiring union officers to take affirmative steps to curtail work stoppages (Philips Industries, Inc., 45 Lab. Arb. (BNA) 943 (1965) (Stouffer, Arb.); American Hoist & Derrick Co., 53 Lab. Arb. (BNA) 45, 50, 58-59 (1969) (Stouffer, Arb.)). Arbitrator Howard did not cite any of the existing contrary precedents, in which arbitrators had declined to uphold extra discipline for union officers; /21/ but in one of the cases he did cite, International Harvester, 14 Lab. Arb. (BNA) 986 (1950) (Seward, Arab.), the arbitrator included a final section titled "Dangers of Misinterpreting Instant Decision," in which the following limitations on the holding were stated (id. at 989; emphasis in original): 1. This is not a decision that if a Union steward endeavors in good faith to prevent a stoppage, the mere fact that he thereafter goes along with it justifies a more severe penalty than is imposed on the other employees. 2. This is not a decision that Management or its Supervisors may properly dictate to Union officials the methods and measures they must adopt in dealing with a stoppage. 3. This is not a decision that a Union representative who neither instigates nor participates in a stoppage ma(y) properly be disciplined because he does not take affirmative action to stop it. 4. This is not a decision that if it is once established that a Union representative participated in a work stoppage, Management thereafter has unlimited discretion in determining his discipline, free from any requirement to consider mitigating circumstances or to see that its penalties are reasonable and fair. Obviously, if an arbitrator had applied the rule of International Harvester in the present case, he might have declined to uphold the discipline of Union President Lang, since he could have found that Lang had attempted in good faith at the Union's meetings and in his early morning activities on August 30 to head off the work stoppage and was guilty only of going along with it after it appeared inevitable. But what is more significant for the purposes of the issue in this case is that Arbitrator Howard's award singled out no language in the contract giving rise to special duties for union officers or their vulnerability to increased discipline, and the cases he cited likewise provided no guide as to what part of the agreement was critical. Arbitrator Seidenberg's award in 1975 upholding similar discipline /22/ was similarly silent on this point, citing the no-strike clause only as the provision that made the work stoppage in question illegal (Pet. App. A-63). It seems plain, therefore, that had the arbitrators been charged with deciding whether the Union had clearly and unmistakably waived rights enjoyed by employees under the National Labor Relations Act not to be dealt with more severely because of their union office, the arbitrators would have had considerable difficulty in finding evidence of such a waiver in the contract they were construing; and the varying rationales of the cited opinions of other arbitrators would hardly supply the missing evidence. The Company, however, suggests (Pet. Br. 30) that, although the Union may never have waived the right to begin with, it did so by inaction, in failing to alter agreements negotiated subsequent to the Howard award. A problem with this agreement, however, is that, since there was no specific language in the agreement that might constitute a waiver in the first place, there was nothing that could be removed. Thus, according to the Company's theory, in order to avoid waiving the statutory right in question, the Union would be required to write a disclaimer of waiver into the agreement -- e.g., to specify that union officers may not be disciplined more harshly than other employees for participating in a work stoppage or failing to take steps to curtail work stoppages. By thus failing to take steps to curtail work stoppages. By thus suggesting that the Union can avoid a waiver of employees' statutory rights only by disclaiming waiver in clear and unmistakable language, the Company stands the applicable principle on its head. /23/ A related problem with the Company's position is that it is essentially relying on silence in the agreement. As the Fifth Circuit has pointed out (NLRB V. South Central Bell Telephone Co., supra, slip op. 58), "judicial interpretation of silence in a document or in a law is always a tricky and controversial undertaking(,)" and should not be "dispositive of the parties' intent in a labor contract." Finally, even accepting the contention of the Company (Pet. Br. 24-27, 30) that, as a general rule, an arbitral decision construing a particular collective bargaining agreement will be followed by other arbitrators interpreting either that agreement or subsequent agreements that are not altered in any way that affects the issue, the uncertainties are still sufficiently numerous to make it unreasonable to rely on the awards of Arbitrators Howard and Seidenberg as clear and unmistakable evidence of the Union's waiver of the statutory right at issue. Since, as explained above, it was apparently the agreement as a whole -- and not particular language used in it -- that supported the earlier awards, a later arbitrator might decline to follow the earlier awards on the theory that the agreement as a whole has not remained the same. An arbitrator might, like the court below (Pet. App. A-11 to A-12), determine that the contractual provision declaring that "(a) decision (by an arbitrator) shall be binding * * * for the term of this Agreement" (R. Exh. 1, Art. IX, Section 9.2, 4th para.) relieves him of any necessity of following awards issued under prior agreements. Or an arbitrator might decide that he was free to apply the limiting conditions stated in the award in International Harvester, supra, since Howard had cited that opinion. In sum, the mere fact that an arbitrator construing the agreement in effect when the events at issue occurred might be likely to follow the Howard and Seidenberg awards in determining the validity of disparate discipline of the kind at issue in this case is not a sufficient basis for concluding that, in that particular collective bargaining agreement, the Union clearly and unmistakably waived the statutory right of employees not to have the severity of discipline imposed upon them depend upon whether or not they hold union office. C. In Deciding Whether a Current Collective Bargaining Agreement Contains a Clear and Unmistakable Waiver, the Board is not Required to Defer to Arbitral Awards Construing Prior Agreements in Which the Arbitrators Considered Neither Whether the Act Confers the Employee Right in Question Nor Whether the Union Clearly and Unmistakably Waived the Right The Company (Pet. Br. 27-29) and two of the amici (Miller Br. 24-26; Chamber Br. 21-25) also suggest that the question in this case is whether the Board and the court of appeals improperly failed to defer to, or to consider themselves bound by, the arbitral constructions of the prior agreements with respect to discipline of union officers. Their contentions that the Board and the court were bound to follow those arbitral awards reflect a misunderstanding of the relationship between arbitral decisions and Board rulings under the National Labor Relations Act and are, in addition, based on the false promise that the Board in this case was resolving an issue already decided by Arbitrator Howard, followed by Arbitrator Seidenberg. Section 10(a) of the Act, 29 U.S.C. 160(a), expressly provides that the Board's power to prevent persons from engaging in unfair labor practices is not "affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Thus, while arbitrators are free to decide contract questions that may also arise in Board unfair labor practice controversies, the Board's authority is in no way displaced by an arbitrator's resolution of a matter. NLRB V. South Central Bell Telephone Co., supra, slip op. 54, 59. The Board, in its discretion, has established a policy of deferring to an arbitral decision where certain conditions are met -- principally, where the proceedings have been "fair and regular," the parties have agreed to be bound, and the decision is "not clearly repugnant to the purposes and policies of the Act" (Spielberg Manufacturing Co., 112 N.L.R.B. 1080, 1082 (1955)) and where the statutory issue raised by the unfair labor practice complaint has been considered and decided by the arbitrator (Suburban Motor Freight, Inc., 247 N.L.R.B. 146, 146-147 (1980)). If the Board, in a reasonable application of its deferral standards, reaches a result contrary to that of an arbitrator, the Board's ruling "take(s) precedence" (Carey V. Westinghouse, 375 U.S. 261, 272 (1964)), and it is entitled to stand so long as it represents a tenable construction of the Act and meets the substantial evidence standard. See also Alexander V. Gardner-Denver Co., 415 U.S. 36, 53 (1974). /24/ Here, the established deferral standards have not been met since Arbitrator Howard (followed by Arbitrator Seidenberg) neither considered nor decided the critical statutory question; even assuming they had done so sub silentio, their decisions would have been satisfied the rule requiring a clear and unmistakable waiver of statutory rights. The question before Arbitrator Howard was merely whether a basis for permitting the Company's disparate discipline might somehow be discerned in the collective bargaining agreement. In making that determination, he was not confined by any rule requiring a demonstration that the union had clearly and unmistakably manifested its intent to permit such discipline. Although, as this Court has cautioned, arbitrators do not "sit to dispense (their) own brand of industrial justice," they are free to look for guidance from "many sources," and an award will be "legitimate only so long as it draws its essence from the collective bargaining agreement." Steelworkers V. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Thus, Arbitrators Howard and Seidenberg were not concerned with any rights the employees might possess under the National Labor Relations Act or with what evidence might be required, in controversies arising under the Act, to show that the Union had waived those rights. They were concerned only with what rights and obligations might be inferred from the collective bargaining agreement, however vague or general its terms. In sum, the arbitrators did not decide the statutory issue and, in construing the collective bargaining agreement, did not apply the standard that would be required for deciding the waiver question in a manner that would not be "repugnant to the purposes and policies of the Act." Spielberg Manufacturing Co., supra, 112 N.L.R.B. at 1082. Accordingly, the Board properly declined (Pet. App. A-39 to A40) to consider the two arbitral awards as binding authority with respect to the question whether the Union had clearly and unmistakably waived the rights of the employees not to suffer penalties based on their participation in protected activities -- i.e., not to be subjected to discipline solely because of their status as union officers. /25/ CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General JERROLD J. GANZFRIED Assistant to the Solicitor General WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel ELINOR HADLEY STILLMAN Attorney National Labor Relations Board OCTOBER 1982 /1/ "Pet. App." refers to the appendix to the petition for certiorari, "J.A." to the joint appendix filed in this Court, "G.C. Exh." and "R. Exh." to exhibits introduced by the General Counsel and the Respondent (petitioner here), respectively, in the Board proceedings. /2/ Construction commenced on the plant in 1968. The first unit went into commercial operation in 1974, and the second unit was still under construction at the time of the hearing (Pet. App. A-3; J.A. 37). /3/ Lang testified that, in 1976, the Operating Engineers' union, protesting a subcontractor's hiring practices, had picketed the Three Mile Island plant and that Company Superintendent Jack Herbine had contacted him by telephone to advise him that it was his "duty" as the Local 563 president to "see that all of the (Local's) members * * * go to * * * work" and that it was his "responsibility to move pickets" (J.A. 81). Herbine told Lang to "find out why the pickets are there and get them out of there" (ibid.). Lang's efforts resulted in the removal of the picket line (ibid.). /4/ At a subsequent Union meeting, Lang reiterated his position on members' responsibilities in such situations. A rank-and-file member stated that the Union should adhere to the sentiment of the August 4 meeting -- that they would not cross a picket line. And, as Lang testified, "(t)hat is how the meeting ended. We could not get the people to change their mind" (J.A. 91). /5/ According to Lang, he responded to the employee's query by saying, "you know what you are supposed to do" (J.A. 88). According to Hahn, Lang answered, go to the union hall" (J.A. 73). The administrative law judge found it unnecessary to resolve this difference in testimony (Pet. App. A-43 n.8). /6/ The single exception to the Section 8(a)(3) prohibition, which concerns union security agreements meeting certain criteria, has no application to this case. The violation of Section 8(a)(1) of the Act found by the Board is merely derivative of the Section 8(a)(3) violation. /7/ Stewards, strictly speaking, are representatives of the employees in the collective bargaining unit that is represented by a particular union, but they are often appointed by the union and obviously have a connection to it that other unit employees do not. General Motors Corp., supra, 218 N.L.R.B. at 477. The two employees concerned in the present case are not stewards, but the Board's principles apply to stewards as well. For simplicity's sake we shall use the term "union officers" throughout, whether referring simply to those holding elective union office (as was the case here) or to the larger category of officeholders including plant stewards. /8/ In the present case, the Board found (Pet. App. A-43) that Lang and Light did not act as strike leaders, and the court of appeals, after reviewing the entire record, concluded that the finding was supported by substantial evidence (id. at A-12). Under this Court's customary practice, that finding should be permitted to stand. NLRB V. Pittsburg Steamship Co., 340 U.S. 498, 502-503 (1951). See also Graver Manufacturing Co. V. Linde Co., 336 U.S. 271, 275 (1949). In any event, the disciplinary notices issued to Lang and Light contained no suggestion that the suspensions were imposed for affirmative acts of strike leadership (Pet. App. A-33 to A-34). /9/ Starting with the proposition that, "(i)f a concerted activity is not protected, the employee (engaged in that activity) is without the protection of the Act," the Edison Electric Institute, as amicus curiae, contends (EEI Br. 10-13) that, because Lang and Light had engaged in an unprotected strike, they forfeited all rights to non-discriminatory treatment by the Company with respect to that event. The argument misconstrues the Board's theory and, if it were to be accepted as the law, would lead to ludicrous results. As explained above, the Board has never held that employees who participate in an unprotected strike are protected by the Act from being disciplined for that activity. Thus the Company did not violate the Act by suspending Lang and Light for declining to cross the picket line. But the degree by which their suspensions exceed those of rank-and-file employees is attributable solely to an activity that clearly is protected -- the act of holding union office. The cases on which EEI relies (EEI Br. 11) merely hold either that strike activity may lose the protection of the Act when it is carried on for an unlawful purpose (Hoover Co. V. NLRB, 191 F.2d 380, 386 (6th Cir. 1951)), or that in some circumstances an otherwise protected activity may be so injurious to the employer that it loses its protected status (NLRB V. Local 1229, 346 U.S. 464 (1953)). Under EEI's theory, employers would be free in the aftermath of a contractually prohibited strike to discharge all the union members and impose no penalties at all on nonmembers, thereby penalizing the activity of holding union membership -- an action that doubtless would give pause to any remaining employees who had entertained the possibility of joining a union. Further, under EEI's theory, an employer could similarly discriminate between union members and nonunion members in disciplining employees for engaging in other types of conduct that the Board has held to be unprotected, such as protesting the appointment or discharge of a particular supervisor where the supervisor's identity and ability have no impact on the employees' working conditions. See, e.g., Puerto Rico Food Products Corp., 242 N.L.R.B. 899 (1979). Such a construction of the Act is plainly untenable. The Chamber of Commerce, as amicus curiae, misconceives the theory of the violation in this case in a manner similar to that of EEI when it argues (Chamber Br. 14-15) that the proviso to Section 10(c) of the Act, 29 U.S.C. 160(c), which bars the Board from requiring the "reinstatement of any individual as an employee who has been suspended * * * or discharged for cause," precludes the Board from ordering that the suspension of Lang and Light be reduced to the length of those that would be imposed on them if they were not union officers. The Board has directed the rescission only of that portion of the suspension that is predicated on the fact that Lang and Light held union office and not that portion for which the "cause" is their participation in the unprotected work stoppage. /10/ As we explain below (pages 25-30, infra), given the realities of industrial life, such an employer policy would tend to deter employees from seeking union office whether they sincerely hope that all of the union's obligations under the contract will be carried out or, instead, are heedless of those obligations. /11/ The Company and the Miller Brewing Company, filing as amicus curiae, contend (Pet. Br. 39-40; Miller Br. 11-17) that the Board, in Precision Castings, departed from a clear line of authority (beginning with Stockham Pipe Fitting Co., 84 N.L.R.B. 629 (1949), and including such decisions as University Overland Express, supra), which allegedly held that union officers have a special duty of obedience to uphold the collective bargaining agreement by virtue of their union office and thus may lawfully be punished more severely than other employees for engaging in contractually prohibited work stoppages, or for failing to take adequate steps to prevent or halt them. That line of authority is hardly as clear as the Company and the amicus suggest. See Rummage, Union Officers and Wildcat Strikes: Freedom from Discriminatory Discipline, 4 Indus. Rel. L. J. 258, 265 (1981)); Note, Harsher Discipline for Union Stewards than Rank-and-File for Participation in Illegal Strike Activity, 56 Chi.(-) Kent L. Rev. 1175 (1980). The Board made clear, as early as its decision in Pontiac Motors Division, General Motors Corp., 132 N.L.R.B. 413, 414-415 (1961), more than a decade before Precision Castings, that, at least absent a clear contractual waiver by the union, an employer could not lawfully discipline an employee for his "failure to fulfill what the (employer) considered his obligation as a union committeeman" to persuade employees engaged in a contractually-prohibited strike to return to work. In any event, in Precision Castings and its progeny, including the recent decision in Consolidation Coal Co., supra, the Board has explained why it has concluded that, at least in the absence of an adequate contractual waiver by the union of the pertinent employee rights, an employer violates Section 8(a)(3) of the Act by engaging in disparate discipline of the kind at issue in the present case. Even assuming that the Board in Precision Castings altered its reading of the statute, its present position is entitled to stand so long as it represents a "defensible construction of the statute." NLRB V. Iron Workers, Local 103, 434 U.S. 335, 350 (1978). "An administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes." Id. at 351. /12/ Of course, as explained above (page 19, supra), where the officers in fact use their positions to provide leadership for the strike, the employer may punish them more severely than it does those who engage in the strike but do not act as strike leaders. /13/ In three of these decisions, the courts of appeals distinguished earlier cases involving disparate discipline of union officers in which the Board's orders finding violations of Section 8(a)(3) and (1) of the Act had been denied enforcement. In Szewczuga, the panel distinguished Fournelle V. NLRB, 670 F.2d 331 (D.C. Cir. 1982), as a case in which the harsher discipline of a union officer was lawful because "the collective bargaining process ha(d) imposed higher duties upon union officials than (on) the rank and file.'" 686 F.2d at 969, quoting F.2d at 341. Similarly, in Hammermill (658 F.2d at 163), the Third Circuit distinguished its opinion in Gould, Inc. V. NLRB, 237 N.L.R.B. 881 (1978), enforcement denied, 612 F.2d 728 (1979), cert. denied, 449 U.S. 890 (1980), as holding only that, "where a collective bargaining agreement explicitly requires union officers and representatives to use every reasonable effort to terminate an unauthorized 'work stoppage,' an employer may single out for disciplinary discharge a union steward who fails to take affirmative steps to terminate that work stoppage." Finally, in C.H. Heist, the Sevent Circuit explained (657 F.2d at 181-182) its earlier decision in Indiana & Michigan Electric Co. V. NLRB, 599 F.2d 227 (1979), as involving a "contractual basis" for imposing higher responsibilities on union stewards than on other employees to end contractually prohibited strikes. In NLRB V. Armour-Dial, Inc., 245 N.L.R.B. 959, enforcement denied, 638 F.2d 51 (8th Cir. 1981), the court of appeals denied enforcement of a Board order in a case involving a similar issue, relying on both Gould, Inc. and Indiana & Michigan Electric. The case differs from these and all of the other appellate cases involving this discipline issue, however, because the court concluded that the union officers in question had actually "fomented the illegal work stoppage" 638 F.2d at 56. /14/ See note 13, supra. /15/ The intensity of feeling on the part of some of the employees concerning the question of honoring the Operating Engineers' picket line reflects an ingrained viewpoint in the American labor movement respecting one union's support of another. Harper, Union Waiver of Employee Rights Union the NLRA: Part I, 4 Indus. Rel. L.J. 335, 372-373 (1981). See also NLRB V. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505-506 (2d Cir. 1942). In this regard, Personnel Director Hombach testified (Tr. 53) that Union President Lang told him that respecting the Operating Engineers' picket line would make it likely that the Operating Engineers would respect the Union's picket lines if the Union later went on strike. Land did not report having made such a remark, but, in any event, if such a conversation occurred, it may well have represented Lang's attempt to explain to Hombach why the rank-and-file employees were stubbornly refusing to cross the picket line. Such sentiments do not excuse the violation of a no-strike clause (for which, as noted above (page 19, supra), the employer may impose discipline without infringing any rights protected under the Act), but they explain the difficulty a union officer often has in controlling such conduct. /16/ In Super Valu Xenia, 228 N.L.R.B. 1254, 1259 (1977), the Board upheld discipline of union officers where the contract expressly permitted the employer to discharge stewards for failing to "'undertake every reasonable means to induce (striking) employees to return to their job(s).'" But the viability of that case as precedent for the waivability of union officers' right to be free of disparate discipline was put in doubt by such later cases as Gould, Inc., 237 N.L.R.B. 881 (1978), enforcement denied, 612 F.2d 728 (3d Cir. 1979), cert. denied, 449 U.S. 890 (1980), in which discipline of a steward for breach of a no-strike clause was found violative of the Act notwithstanding a contract clause specifying the responsibilities of union stewards. In Armour-Dial, Inc., 245 N.L.R.B. 959, 960 n.8 (1979), enforcement denied, 638 F.2d 51 (8th Cir. 1981), the Board expressly stated that it was declining to reach the question "whether a union could, by contract, waive an employee's right to engage in protected concerted activity through the holding of union office by providing for the discipline of union officials." Recently, in Consolidation Coal Co., 263 N.L.R.B. No. 188, 111 L.R.R.M. (BNA) 1205 (Sept. 20, 1982) (Chairman Van de Water and Member Hunter dissenting), the Board held that the employer violated Section 8(a)(3) and (1) of the Act by disciplining two union committeemen more severely than rank-and-file employees for participation in a contractually prohibited work stoppage. An arbitrator had found that the two men had not in any way instigated the strike, but he nonetheless upheld the discipline as a justified punishment for violation of their duties as union officers. 111 L.R.R.M. at 1206. The Board's opinion does not address the question whether the right to hold union office without becoming subject to a more stringent disciplinary standard can be waived by a union, and Member Fanning (111 L.R.R.M. at 1210 n.18) observed that it was unnecessary to decide that question because there was no contract provision placing any affirmative obligations upon union agents. However, Member Zimmerman specifically rested his concurrence on the fact that the bargaining agreement contained no "express provision which requires union officers to take affirmative steps to prevent or curtail unauthorized work stoppages," and indicated that he would uphold augmented discipline for union officers where such obligations were contractually specified. 111 L.R.R.M. at 1210-1212. Chairman Van de Water, dissenting, indicated that he regarded participation by a union officer in a contractually prohibited work stoppage as inherently more serious than participation by other employees and therefore a proper basis for disparate discipline without regard to the presence of any contractual clause specifying particular duties for the officers (111 L.R.R.M. at 1212-1215). Member Hunter, implicitly finding the statutory right waivable, would find implicit in any no-strike obligation a special undertaking by union officers not to violate the clause. 111 L.R.R.M. at 1215-1221. Because the dissenters thus did not find the arbitrator's decision upholding the discipline imposed on the committeemen to be repugnant to the Act, they would have deferred to that arbitral award. /17/ The Eighth Circuit did not address this question in NLRB V. Armour-Dial, Inc., 638 F.2d 51 (1981). As noted above (page 24, note 13, supra), that opinion contained language suggesting that union officers inherently shoulder heavier obligations that can subject them to heavier discipline, but its holding is obscure because the court found that the officers in question had themselves "fomented the illegal work stoppage" 638 F.2d at 56. /18/ "Quite simply, obligations of this magnitude, which cary with them not only the principal responsibility for maintaining stability in the workplace, but also the very real risk of discipline at the hands of the employer and intense resentment on the part of rank-and-file fellow employees, cannot be thrust upon union officers without clear notice to them of such special obligations attendant to their union position." Consolidation Coal Co., supra, 111 L.R.R.M. at 1211 (Member Zimmerman, concurring). Notice given through the results of prior arbitrations dealing with differing kinds of incidents or thorugh unilateral lectures by the employer's officers or supervisors (see Pet. App. A-36 to A-37) is simply not the equivalent of clear language that has been worked out in collective bargaining negotiations and placed in an agreement signed by representatives of both parties. As this case illustrates, the employer's response to union officers who engaged in prohibited work stoppages may not be consistent. The August 4 incident resulted in no discipline to many of the participants, including Lang and Light (see pages 3-4, supra). Moreover, even on those prior occasions when the Company dealt more harshly with Union officers, the disparity in discipline was much less than in this case and the sanctions imposed on the officers far less severe (see notes 20, 22, infra,; J.A. 6, 14-17, 29-32; Pet. App. A-54 to A-55, A-62 to A-63, A-72). /19/ A caption on the Howard Award as reprinted in the appendix to the petition (Pet. App. A-52) contains a typographical error: it should read "International Brotherhood of Electrical Workers, Local 603," not "Local 563." /20/ In that case rank-and-file members were issued warnings and the union officers were assessed five day suspensions, later reduced to three days (Pet. App. A-54 to A-55). Arbitrator Howard upheld the three day suspensions (Pet. App. A-61). /21/ E.g., International Shoe Co., 45 Lab. Arb. (BNA) 81 (1965) (Larkin, Arb.); Pittsburgh Standard Conduit Co., 33 Lab. Arb. (BNA) 807 (1959) (McCoy, Arb.); American Airlines, Inc., 31 Lab. Arb. (BNA) 144 (1958) (Gray, Arb.). /22/ Following the incident that gave rise to Arbitrator Seidenberg's decision, 15 employees received a written warning, 47 employees (who had participated in a prior work stoppage) received one day suspensions, and three union officers received three day suspensions (Pet. App. A-62 to A-63). Arbitrator Seidenberg upheld the three day suspension of one officer and reduced the suspensions of the other two to one day (id. at A-72). /23/ The Company is therefore mistaken in relying (Pet. Br. 30) on Carbon Fuel Co. V. UMW, 444 U.S. 212, 222 (1979), for the proposition that the later agreements necessarily subsumed the principle announced by Arbitrator Howard and that in those agreements the Union clearly and unmistakably waived rights of the employees under the Act. In Carbon Fuel, the Court observed (id. at 221-222) that, where (1) the union and the employer had reached agreements that omitted a clause contained in prior agreements, (2) courts had recognized the force of that omission in construing the later agreements, and (3) the parties had not reinstated the omitted provision, the parties' failure to make explicit any understanding contrary to those judicial interpretation "strongly suggests the parties incorporated the courts' interpretation of the agreements." But here there is no history of any such deleted provision, and the question is whether a party has clearly and unmistakably waived certain statutory rights. In Carbon Fuel, no such rights under the Act were at issue, and it was enough that the evidence "strongly suggested" that the parties to the agreement had incorporated the prior judicial construction. /24/ In suggesting that the Board and the court below were bound by the arbitral awards, the Company is, in part, confusing the role of a court in deciding whether to enforce an arbitration award with the role of the Board and a reviewing court in determining whether an unfair labor practice has been committed, and, as part of that determination, interpreting contractual provisions that have also been construed in a particular arbitral award. See NLRB V. South Central Bell Telephone Co., supra, slip op. 53-54; Comment, Judicial Review and the Trend Toward More Stringent NLRB Standards on Arbitral Deferrals, 129 U. Pa. L. Rev. 738, 751-753 1981. /25/ The Company invokes an irrelevancy when it suggests (Pet. Br. 35) that, by entering into a stipulation that the employees' refusal to cross the Operating Engineers' picket line violated the no-strike clause, the General Counsel demonstrated his belief that a prior arbitration award applying waiver of the employees' right to engage in such actions. Counsel for the General Counsel may have entered into that stipulation simply because the charging party Union did not press the matter in its charge. His reasons, however, are not revealed in the record. Moreover, the Board is not bound by any unexpressed understandings of the General Counsel, and it had no occasion to pass on any issues underlying this unchallenged stipulation. Cf. United States Steel Corp., 264 N.L.R.B. No. 10, 111 L.R.R.M. (BNA) 1200 (Sept. 24, 1982).