c30:No. 80-2588

VAN DUSEN, Senior Circuit Judge,
dissenting:
I respectfully dissent from the majority opinion because my analysis indicates that it is contrary to Gould, Inc. v. N.L.R.B., 612 F.2d 728 (3d Cir.), cert. denied sub nom. Moran v. Gould Corp., 449 U.S. 890, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980), which is this court’s most pertinent decision on the facts presented by this record, and hence in violation of Chapter VIII, paragraph C (p. 25), of the Internal Operating Procedures (IOP) of this court. I would vacate the Board’s order and remand the case to the Board for reconsideration and application of the principles of Gould, supra, to the factual situation presented by this record.
In addition to the language qüoted from the decision of the ALJ on page 480 of the majority opinion, that decision contains this wording at p. 1034 of 252 N.L.R.B.:
“Respondent contends that Lang and Light were given the greater discipline not because they held union office but rather:
... it was awarded because of things they did or did not do; statements they made or did not make; and, the misuse of the union office they held. “Respondent points out that, while violations of the no-strike agreement were not frequent at its plants, the August 30 incident was not the first. On prior occasions in 1970, 1972, 1973, and 1974, members of various IBEW locals engaged in work stoppages in violation of the contract. In each of those incidents the participating employees were disciplined and the union officers or stewards involved were given greater discipline for failure' to make bona fide efforts to get the employees back to work. Indeed, in the 1973 work stoppage, which occurred at T.M.I., Lang and Light, as union officers, received the greater discipline. In 1972 and 1974, when the Union took to arbitration the question of the greater discipline assigned to the union officers, the Company’s discipline was upheld. In both arbitration decisions, the arbitrators held that union officials had an affirmative duty, by virtue of their office, to honor and protect the collective-bargaining agreement, and that failure to exercise that responsibility subjected them to more severe penalties. Respondent also pointed out that both Lang and Light had been told repeatedly, both prior to the August 30 incident and while it was occurring that Respondent expected them to set an example for the other employees by crossing the picket line and that it would discipline them if they failed to do so. Further, Respondent argued, by attempting to secure the removal of the picket line as a means of getting the employees back to work, rather than leading the employees across the picket line or ordering those employees to cross, Lang and Light ‘became the active leaders of the strike.’ This, Respondent stated, was a factor considered significant in determining the degree of their discipline.
“Respondent also adduced evidence that a work stoppage similar to that of August 30 had taken place on August 4. At that time, various participating employees, not including Lang and Light, were disciplined. Lang and Light were both told, quite emphatically, that the Employer considered it their obligation to cross a picket line and set a proper example for their members. At a union meeting following this work stoppage, Lang told his membership of their legal obligations. The membership vociferously rejected his urgings that they cross such picket lines.
“Finally, Respondent points to an incident involving David Lang which it contends provides separate justification for the greater discipline accorded him. Early on the morning of August 30, after Lang had been summoned to the line by Hahn, an employee drove up, observed the pickets, and asked what he should do. According to Hahn, Hahn said ‘come to work,’ but Lang told the employee, ‘go to the union hall.’ According to Lang, when the employee (identified by Lang as Tom Lynch) asked what he should do, Lang told him ‘you know what you are supposed to do.’ The employee never left his vehicle but drove off in the direction of the union hall Lang saw Lynch later at the union hall.”
(Emphasis supplied; footnotes omitted.)
The majority has chosen to follow language in two separate opinions of two individual judges on the panel in Hammermill Paper Co. v. N.L.R.B., 658 F.2d 155 (3d Cir. 1981), a case where each of the two members of the panel concurring in the judgment of the court stated his own views separately, rather than the very clear and strong language used by a unanimous panel of this court in Gould, supra, the facts of which are closer to those in this case than are the facts of Hammermill In Gould, this court used the following language at pp. 732-33:
“We first consider the law applicable to the § 8(a)(1) and (3) violations and begin by noting our prior holding that ‘strikes carried out in violation of a no-strike provision in a collective bargaining agreement are not protected by the Act, and therefore the discharge of employees who engage in such strikes is not an unfair labor practice.’ Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 395 (3d Cir. 1974). Also relevant are Board rulings that an employer need not fire all illegal strikers, but may ‘pick and choose’ which participants will be discharged as long as the basis for so doing is not union related. Precision Castings, supra; Chrysler Corp., 232 NLRB 466, 474 (1977); McLean Trucking Co., 175 NLRB 440, 450-51 (1969). See also NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939). And we note, finally, the holding of the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), that if the discriminatory discipline complained of is so inherently destructive of employee rights there is no need to establish any specific anti-union motivation in order to sustain a § 8(a)(3) violation.
“. . . when the Board followed Precision Castings with a similar ruling in Ind. & Mich. Elec. Co., 237 NLRB No. 35 (1978), that ruling was reversed on appeal, Ind. & Mich. Elec. Co. v. N.L.R.B., 599 F.2d 227 (7th Cir. 1979). The Board had ruled that the greater responsibility which accompanies the holding of union office was insufficient reason for imposing more severe discipline on officers than rank-and-file strikers. In reversing, the court reasoned:
Employees have no right to participate in an illegal strike. Accordingly, if an employee right is threatened here, it must be one relating to union office. The Board has said and we recognize that union office ‘embodies the essence of protected concerted activities.’ See General Motors Corp., 218 N.L.R.B. 472, 477 (1975), enforced, 535 F.2d 1246 (3d Cir. 1976). Employer action that would impair some right or restrict some legitimate activity of union officials and thereby discourage members from holding office would no doubt have an inherently adverse effect on employee rights. The same is not true, however, of employer action that at most deters union officials from deliberately engaging in clearly unlawful conduct that is both a violation of their duties as employees and union members and a repudiation of their responsibilities as union officials.
In arguing that status as a union official may not be the sole criterion for differentiating among employees in meting out discipline, the Board somewhat misstates the issue. The more severe punishment was not based merely on the officials’ status but upon their breach of the higher responsibility that accompanies that status, a breach that makes their misconduct more serious than that of the rank-and-file. 599 F.2d 230.
******
Differentiating between union officers and rank-and-file in meting out discipline for participating in a clearly illegal strike (footnote omitted) 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. 599 F.2d 232.
“We concur in that reasoning and believe that it applies as well to the instant case and supports our conclusion that the Board’s finding of a § 8(a)(1) and (3) violation must be vacated. More specifically, we cannot agree with the Board’s deduction that since Moran was a steward and was discharged it follows logically that he ‘was singled out for discipline solely because he was the steward.’ On the contrary, it is clear that he was disciplined because he participated in an illegal strike and failed to perform his contractual obligation to take positive steps to halt that work stoppage. True, this duty devolved upon him because he fell within the class of persons upon whom the collective bargaining agreement imposed that duty, to wit, officers of the union, but the agreement could just as well have imposed this duty on individuals by name regardless of their office, and the result would be the same. In other words, it was a breach of a duty Imposed by his office and not his office as such which formed the basis for his discharge. Viewed in this light, Moran’s discharge was permissible and did not constitute an unfair labor practice. Indeed, if we were to hold otherwise, the union officer who participated in an illegal work stoppage would be placed in a more advantageous position than the rank-and-file members, and this would be neither fair, logical nor just.
“The General Counsel’s argument that since the company lacked the right under the contract to discharge Moran for violating Article XVI § 3 his discharge was unlawful is unpersuasive. It is true that § 3 contains no provision for the discipline of those who violate it, however, § 2 does give the company the right to discharge those who participate in illegal work stoppages. Section 3 of Article XVI was relied upon merely as a basis for singling out Moran from among the strikers subject to discharge. This was lawful.
“. . . As for the contention that as a result of this ruling prospective stewards will be dissuaded from seeking union office, an obvious and short answer is that they should be deterred from seeking office if they intend thereafter to participate in illegal work stoppages or to repudiate contractual obligations which were freely negotiated and voluntarily assumed. The company’s action and our ruling deters no other kind of ‘union’ activity.”
(Emphasis in original.)
Also, in Hammermill, supra, Judge Rosenn, writing the OPINION OF THE COURT, pointed out that
“. . . the result we reach is not at all inconsistent with Gould and Indiana. Nor do we see any need to reconsider our decision in Gould. . . . [W]e caution the Board that insofar as Gould holds that an employer may use discipline as a means of enforcing the individual duties of union officials, we continued to adhere to that precedent.”
It is noted that -Indiana, cited above, is referred to in that portion of the Gould opinion quoted above.
There is no showing that the company ever approved, condoned, or ratified the personal decision of the two union officials to negotiate with the pickets, thereby prolonging the work stoppage, instead of leading their fellow union members across the picket line to work for this electric utility supplying power to the Harrisburg area of southeastern Pennsylvania.
I believe the terms of VIII — C quoted above in note 2 require that this case, at the least, be remanded to the Board, which may decide to have it reconsidered by the AU, who heard the witnesses, in light of Gould, as amended, and Hammermill, neither of which decision in its final form was considered by the ALJ (see note 1 above).
. Note 3 of the dissenting opinion of Member Penello makes clear that the Board, in promulgating its September 1980 decision, see Metropolitan Edison Company, et al., 252 N.L.R.B. 1030, 1031 (1980), was referring to the December 1979 opinion of this court in Gould, as opposed to the opinion in that case as it was amended in March 1980, since Gould, supra, was cited at 252 N.L.R.B. 1031 and 103 LRRM 2207 as 612 F.2d 728 (3d Cir. 1979), rather than as a 1980 decision. On March 13, 1980, the court added this wording to the Gould opinion in place of the last two sentences on page 12 of the 1979 slip opinion:
“We reaffirm this court’s previous statement of the proper precept to be applied where there is a mixed motivation attending employer’s action: ‘Although there might exist a justifiable cause for discharge of an employee, there is a violation of the Act if the real motive for the discharge is found to be the employer’s dislike of union activity or affiliation .... Such real motive will be found where union activity by the employee is recognized as a substantial or motivating cause of his discharge.’ N.L.R.B. v. Gentithes, 463 F.2d 557, 560 (3d Cir. 1972) (per Chief Judge Seitz). It is also controlling case law of this court that where there is substantial evidence that the employee’s discharge was motivated by the employee’s protected activity, there is a violation of the Act notwithstanding the concurrent existence of an otherwise valid reason. N.L.R.B. v. Princeton Inn Co., 424 F.2d 264, 265 (3d Cir. 1970). From our review of the entire record we conclude that there is no substantial evidence to support a finding that Moran’s discharge was because he had filed charges with the EEOC, OSHA, and the Board. Accordingly the Board’s holding of a § 8(a)(4) violation must be vacated.”
612 F.2d at 734. The report in 103 LRRM 2207 does not contain this new language, but it contains the previous language from the 1979 slip opinion. See 103 LRRM at 2211 (last two sentences).
More importantly, the majority of the Board cited and relied on Precision Castings Company, 233 N.L.R.B. 35 (1977), a decision which this court implicitly rejected in Gould when it adopted the reasoning of Ind. & Mich. Elec. Co. v. N.L.R.B., 599 F.2d 227 (7th Cir. 1979), in the passage quoted on pp. 486 & 487 of this dissent. 612 F.2d at 732-33. The Board’s brief in this appeal admits that it refused to follow our decision in Gould and instead applied its own case law. Respondent’s brief at pp. 32-35.
. Paragraph C of Chapter VIII of the IOP reads as follows:
“It is the tradition of this court that reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court in banc consideration is required to overrule a published opinion of this court.”
. I note that this court had pointed out in Eazor Exp., Inc. v. International Bro. of Team., Etc., 520 F.2d 951, 964 n.6 (3d Cir. 1975), cert. denied, 424 U.S. 935, 96 S.Ct. 1149, 47 L.Ed.2d 342 (1976), overruled on other grounds sub nom. Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979): “That .. . discipline has been successfully used by a Teamsters local and that its use ' might well have been successful here is indicated by the case of an unauthorized strike by members of Local 241 of the Teamsters International Union against Eazor at Sharon, Pennsylvania in April 1968 where the strike was ended when a steward who refused to cross the illegal picket line was removed by the officers of the local union and another put in his place who led most of the strikers back to work across the picket line.”

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