concurring.
I agree fully with the majority’s conclusion that the Board’s application for enforcement should be granted and the Hammermill Paper Company’s petition for review denied. I also concur with the majority’s reasoning on the appropriateness of the Board’s refusal to defer to an arbitration award where the arbitrator did not decide the unfair labor practice issue. I write separately only to express my views on the issue of whether an employer commits an unfair labor practice when it disciplines a union officer more severely than rank-and-file workers similarly situated.
I.
The Hammermill Paper Company employs four “tour crews” of maintenance mechanics at its Erie, Pennsylvania mill. Thomas Stritzinger was a ten-year employee at the mill and the union steward for Tour Crew D. On the night in question, Stritzinger had agreed to work the Tour Crew A shift as a substitute for a fellow employee. He was not serving as a steward when the work stoppage occurred. All of the negotiations over whether Tour Crew A would build the fire transpired between the mill foreman and the union steward for Tour Crew A. Yet, when the company sent out its disciplinary notices, Stritzinger was informed that he had been fired. Of the remaining members of Tour Crew A, six who had participated in an earlier work stoppage were also fired and two who had clean records were suspended for two weeks. Stritzinger had a clean record prior to the work stoppage at issue but was fired all the same because he was a union steward at the mill. The contract between the company and the union contained a no-strike clause but did not impose an explicit duty on union officers and stewards to end any illegal work stoppages.
A. The Third Circuit’s Decision in Gould, Inc. v. NLRB
In Gould, Inc. v. NLRB, 612 F.2d 728, 730 (3d Cir. 1979), we considered “whether it was an unfair labor practice for the employer to single out for disciplinary charge a union steward who participated with a number of rank-and-file union members in an illegal work stoppage where the steward failed to discharge his contractual obligation to take steps to terminate that work stoppage.” There the collective bargaining agreement contained a no-strike clause as well as a company authorization to discipline or discharge employees who participated in illegal work stoppages. The contract further provided that:
In the event of an illegal unauthorized or uncondoned strike, work stoppage, interruption or impeding of work, the Local and International Union and its officers shall immediately take positive and evident steps to have those involved cease such activity. These steps shall involve the following:
Within not more than twenty-four (24) hours after the occurrence of any such unauthorized action, the Union, its officers and representatives shall publicly disavow same by posting a notice on the bulletin boards throughout the plant. The Union, its officers and representatives shall immediately order its members to return to work, notwithstanding the existence of any wild-cat picket line. The Union, its officers and representatives shall refuse to aid or assist in any way such unauthorized action.
The Union, its officers and representatives, will in good faith, use every reasonable effort to terminate such unauthorized action.
Id.- at 730-31. The court concluded that, since the contract gave the employer the power to fire illegal strikers and imposed an affirmative duty on union officers to at*167tempt, in good faith, to end the strike, the employer did not commit an unfair labor practice by discharging a union steward who breached his contractual duties. Id. at 733.
I believe that this court’s opinion in Gould was far too expansive and ladened with dicta which stated precepts far beyond the unique facts of that case, but Gould is the rule of our circuit unless and until it is changed by the full court sitting en banc. I question the Gould court’s reliance on the Seventh Circuit’s decision in Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227 (7th Cir. 1979).
In Indiana & Michigan Electric, a union steward was discharged under a collective bargaining agreement much less specific than Gould in the duty it imposed upon union officials. The court found no unfair labor practice because:
Differentiating between union officers and rank-and-file in meting out discipline for participating in a clearly illegal strike did not penalize or deter the exercise of any protected employee right. We believe the employer was entitled to take into account the union officials’ greater responsibility and hence greater fault, and that the resulting different treatment of union officials could not be reasonably considered inherently destructive of important employee rights.
Id. at 232 (footnote omitted). Insofar as the Seventh Circuit based its conclusion on the theory that a union steward’s status conveyed rights and responsibilities, not specifically enumerated in the contract, which justified more severe discipline, I would reject its decision completely. The Board in its brief in the present case argues convincingly that:
Shop stewards may receive certain special treatment to accommodate their role in processing grievances. Thus, contracts frequently provide that stewards get time off with pay for grievance handling (as in the contract in this case, A. 202a) or extra protection against layoffs (“super-seniority”). See Bureau of National Affairs, Basic Patterns in Union Contracts, at 36-37 (8th ed. 1975). However, such special treatment is statutorily permitted only to the extent that it reflects the union’s “legitimate and substantial” need for having the grievance-handling function performed in the plant, and is incorporated in the parties’ agreement. See NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162, 1165-1167 (2d Cir. 1976); Teamsters Local 20 v. NLRB, 610 F.2d 991, 994-995 (D.C.Cir. 1979); Paintsmiths, Inc. v. NLRB, 620 F.2d 1326, 1330-1331 (8th Cir. 1980). The special benefits are thus confined to a legitimate and agreed-upon need; they clearly do not justify exposing the stewards to a countervailing set of obligations unilaterally devised and enforced by the employer. But see, Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 231, n.10 (7th Cir. 1979), and Co. Br. p. 25.
Brief for the NLRB at 10 n.5 (emphasis added).
Therefore, I would limit the rule in Gould to cases where the collective bargaining agreement is as precise in its obligations as it was in Gould and the employee in question is serving in an official capacity at the time of the incident. Stritzinger’s discharge constitutes an unfair labor practice in my view under both circumstances. The collective bargaining agreement imposed no affirmative duty on a union steward and Stritzinger was not functioning as a steward for Tour Crew A.