Altex Ready Mixed Concrete Corp.

National Labor Relations Board - Board DecisionsApr 7, 1976

223 N.L.R.B. 696 (N.L.R.B. 1976)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Altex Ready Mixed Concrete Corporation and Billy J. APPENDIX Johnson . Case 15-CA-5373 April 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 26, 1975, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Charging Party filed a brief in opposition to Respondent's exceptions, and General Counsel filed a brief in support of the Ad- ministrative Law Judge' s Decision, and a brief in an- swer to Respondent's exceptions and cross-excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after hearing, that we violated Federal law by dis- charging two employees for signing affidavits in sup- port of a union petition for a court injunction against us, we notify you that: WE WILL NOT discharge any of you for engag- ing in any lawful union or other protected activi- ty under Section 7 of the National Labor Rela- tions Act. WE WILL NOT in any other manner interfere with your right to engage in protected concerted activities or to refrain therefrom. WE WILL offer full reinstatement to Mr. John Mattire and Mr. James White to their former jobs or, if such jobs no longer exist, to substan- tially equivalent ones, without prejudice to their seniority or other rights and privileges, with backpay plus 6 percent interest from the time of their discharge on April 15, 1974. ALTER READY MIXED CONCRETE CORPORA- TION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Altex Ready Mixed Concrete Corporation, Baton Rouge, Louisiana, its officers , agents , successors, and as- signs, shall take the action set forth in the said rec- ommended Order as so modified: 1. Substitute the following for paragraph 1(b): "(b) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. ' In his recommended Order the Administrative Law Judge uses the nar- row cease-and-desist language "in any like or related manner ." The dis- charges of employees John Mattire and James White for engaging in pro- tected concerted activities are unfair labor practices which go to the very heart of the Act. We shall, therefore , modify the Administrative Law Judge's recommended Order to require Respondent to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Sec. 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was heard at Baton Rouge, Louisiana, on July 29-31 and August 1, 1975. The charge was filed by an individual, Billy Johnson, on July 30, 1974,' and the complaint was issued on May 28, 1975. A dispute over drivers being required to load red dye in mixer drums led to two unauthorized work stoppages, the suspension of 50 employees, an authorized strike, and an injunction proceeding. About 2 weeks after the dispute was settled and the suspensions were withdrawn, the Company discharged four of the drivers who had signed inaccurate affidavits in the court case and/or purportedly had en- gaged in strike misconduct. The primary issues are whether the Company, the Respondent, (a) unlawfully threatened employees with discharge if they refused to load the red dye, notwithstanding a specific contractual provision that "drivers will not be required" to do so, and (b) unlawfully discharged three of the drivers for engaging in protected concerted activities, in violation of Section 8(a)(1) of the National Labor Relations Act. 1 All dates are in 1974 unless otherwise stated. 223 NLRB No. 92 ALTEX READY MIXED CONCRETE Upon the entire record ,2 including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a Louisiana corporation, is engaged in the manufacture and sale of ready-mixed concrete in Ba- ton Rouge, Louisiana, where it annually receives goods valued in excess of $50,000 directly from outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union, the Teamsters, Chauffeurs, Warehousemen & Helpers, Local 5, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Work Stoppages and Strike 1. Dispute over loading red dye The Company, Dolese Concrete Company, and four other ready-mixed concrete companies are members of the Baton Rouge Ready Mix Association, which has an agree- ment with the Union covering ready-mix drivers and cer- tain other employees. In the 1972-75 agreement, the parties agreed (in art. III, sec. 6e) to the following compromise of a longstanding dis- pute over whether drivers would add 50 pounds of red dye to the load when red concrete is ordered by a customer: The drivers will not be required to put coloring into the mixer drums. The Company will erect within nine- ty (90) days loading facilities for handling coloring equal to that now in existence at Dolese Concrete Company. [Emphasis supplied.] As explained by Dolese's general manager, James Hay- wood, an Association negotiator who testified for the Com- pany, the drivers objected during the negotiations to add- ing the red dye because "the red coloring got on their clothes and so forth." However, after a union caucus, it was reported to Haywood that his union steward had com- mented that the drivers at Dolese, which had a dye-loading platform, "didn't mind putting it in." Thereafter in the ne- gotiations, the Union requested the other five companies to build equal dye-loading facilities. "It was indicated, at that time, although not stated [emphasis supplied], but my inter- pretation of it was that should a loading platform be put up" by the other companies, then the drivers would be more "cooperative." It "would eliminate their having to take the bag and climb up on the truck." The parties agreed to the compromise language, calling for equal dye- loading facilities to be erected in 90 days, but retaining the provision that drivers "will not be required" to add the coloring. 2 The General Counsel's unopposed motion to correct the transcript, dat- ed September 26, 1975, is granted and received in evidence as G.C. Exh. 14. 697 Under this contractual provision (which remains in the 1975-78 agreement), the batchman at Dolese customarily adds the red dye, instead of the driver. As credibly testified to by Dolese's assistant steward, Leo B. Bradford, the Dolese drivers are not required to load the red dye. "Some- times they may ask you," but "They leave it up to you I have been asked but I refused to load it." Following the negotiations, the Company did not erect dye-loading facilities which were located, as at Dolese, on the concrete-loading platform where the batchman could conveniently add the red dye to the mixer drum. Instead, the Company built a separate stand, some distance away, for the drivers to load the dye. The Company's drivers, who had previously done the dye loading, continued to do so under the 1972-75 agreement until about the first part of March when steward Aaron Phillips told the drivers "they was not supposed to load it . . . and not to load it." 2. Threat of discharge and work stoppage On March 21, the Company had an order for a load of red concrete, and Plant Manager Orville Kalkofen told the driver that he would have to add the red dye "or he would fire him." The driver sought the advice of assistant steward James White, who said "I didn't know that much about it. But if I was him I would load it." Thereupon Kalkofen (as White credibly testified) asked the driver if he was going to load it, and threatened that if he did not, "we are going to fire you" and "anybody else that don't load it." The driver loaded the dye. The next morning, Friday, March 22, steward Phillips questioned Plant Manager Kalkofen about the discharge threat, and told the drivers to wait in the waiting room until the matter was settled. Phillips also talked to Presi- dent Heck twice over the telephone, and to Union Business Agent Ed Partin (who had promised Heck on the preced- ing Monday, in settlement of another dispute, that there would be no more work stoppages or strikes in violation of the no-strike clause, and that disputes would be submitted to arbitration). Heck refused to countermand Kalkofen's threat, but "begged" Phillips to have the drivers go to work in order that customers could be supplied. Partin told Phil- lips, "I advise you to go to work." Phillips insisted that the drivers would not go to work under the threat of discharge. Meanwhile, Plant Manager Kalkofen (as assistant stew- ard White credibly testified) announced to the drivers that if they "did not load the red dye, he would fire them." Later, as the drivers were waiting in the hopes of settling the dispute, Kalkofen told them (in assistant White's words) "that if the drivers wasn't going to put the red in the drums and didn't want to work, go home. He cursed and then said go home." (White impressed me most favorably as an honest witness. Kalkofen, who appeared less than candid, denied that he told the drivers to go home. I dis- credit the denial.) All 50 of the employees, who had been engaging in the unauthorized work stoppage in violation of the no-strike provisions in the agreement, then left the premises. (I note that White took no part in encouraging the employees not to work. As assistant steward he acted only in the absence of steward Phillips, who ordered the work stoppage. The agreement, in art. III, sec. 3, provides 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "There shall be no more than one Steward in each company.") The arbitration provisions in the Agreement (art. VIII, sec. 1) provide that if "any disagreement between the Com- pany and the Union as to the interpretation or application of the terms of this agreement or as to any grievance" is not settled, "the party or parties complaining shall reduce the disagreement or grievance to writing and such question shall then be submitted to arbitration." However, the Union did not file a grievance over the discharge threat, and the Company did not file a complaint either over the steward's earlier order that the drivers not load the red dye, or over the unauthorized March 22 work stoppage. (The Company sought the Union to file grievances instead of striking. Steward Phillips contended that there were repeat- ed contractual violations by the Company, and expressed fear of reprisal-that President Heck "can lay you off, fire you, or whatnot"-if the employees filed grievances.) 3. Suspensions and warning notices There were two restrictions in the agreement against dis- charge of the employees who engaged in the 1-day work stoppage. In the no-strike and no-lockout provisions (art. IX, sec. 1), which stated that "all matters in dispute covered by this agreement shall be settled in accordance with the arbitra- tion procedure," the agreement provided that in the event of "any unauthorized cessation of work, in violation of this agreement ," the Company during the first 24 hours "shall have the sole and complete right to discipline short of dis- charge [emphasis supplied]," and the right of immediate discharge thereafter. The "just cause" provision in the agreement (art. V, sec. 5) contains the other restriction. It states that the Company "shall give at least one warning notice of the complaint in writing against such employee" before discharging him (ex- cept for certain offenses, which do not include unauthor- ized work stoppages). With these restrictions in mind and faced with repeated strikes "to the point where we couldn't operate," the Com- pany sent two letters to each of the 50 employees on March 22. One set of letters gave the employees suspensions of 1 or 2 weeks (effective during alternative weeks), and the other set constituted formal warning notices. The employees did not continue the work stoppage be- yond the first day. No work was scheduled on Saturday, and there was no picketing. 4. The second work stoppage and the strike On Saturday, March 23, the Company accepted applica- tions for new employees , while some of the suspended em- ployees were outside the fence , observing the arrival and departure of the applicants. On Monday morning, March 25, all the employees who were not on suspension that week returned to work. Stew- ard Phillips appointed driver Phillip Green as the acting steward (during Phillips' suspension), after informing Green that "the drivers was not supposed to train anyone while we was off." Green reported back to Phillips, who was standing outside the gate, that Green learned in the office that the drivers would have to train new employees. Without consulting anyone, Phillips told Green, "Well, they gave us off Friday. We are taking off today on a 24-hour basis. . . . Bring them out." Phillips then began motioning for the drivers to come out of the plant, and all 27 of the employees left their work and did so. Some of the drivers left their trucks running (although there is no evi- dence of any resulting damage to the trucks). Despite the company rule that employees were required to clock out before leaving work, none of the employees except Green clocked out. (The drivers did not receive any wages for the day.) That Monday evening, the Union called an official strike (which also was in violation of the no-strike provisions in the agreement). Picketing began on Tuesday, and contin- ued on Wednesday and Thursday. Meanwhile, the Union filed a petition for an injunction, and the Company filed a counterpetition. 5. Settlement of the dispute After 1 day of hearing in the injunction proceeding on Thursday, March 28, the Company and Union settled the dispute. President Heck rescinded the threat to discharge drivers if they refused to load the red dye; agreed to drop the remaining suspensions; but indicated that he had four drivers under investigation for possible discharge. The Union called off the strike and told the employees to report back to work the next day. On Friday morning, March 29, President Heck and Business Agent Ed Partin held a meeting with the drivers. It is undisputed that Heck announced that he would not discharge drivers if they refused to put in red dye, and Partin said that if he were by there, he would kick in the bags of red dye himself. Heck did not disclose which of the drivers were under investigation. B. Alleged Unlawful Discharges 1. The discharges On the same day, March 29, the Company wrote letters to drivers John Mattire, James White, Billy Johnson, and Aaron Phillips, notifying them that it was taking under advisement whether to discharge them. Then on April 15, the Company wrote each of them a letter, stating that he was terminated for just cause. (The discharge of steward Phillips is not in issue. A fifth employee, who, like Johnson and Phillips, was accused of strike misconduct, had not returned to work and had already been terminated.) Before discussing the Company's specific grounds for singling out Mattire, White, and Johnson for discharge, I note that the first stated basis for their discharge was their participation in the unauthorized March 22 work stoppage "for which you received a warning letter" (and also the March 25 walkout in the case of Mattire). Thus, over 3 weeks after recognizing that the agreement did not permit the Company to discharge any of the 50 employees for engaging in the March 22 work stoppage (causing the Company to give each of them merely a suspension and a ALTEX READY MIXED CONCRETE warning letter), and 3 weeks after taking no action against any of the 27 employees for engaging in the March 25 walkout, the Company was claiming that it was belatedly discharging these three employees because of the work stoppages. Citing the Board's decision in California Cotton Coopera- tive Association, 110 NLRB 1494, 1496-97 (1954), the Com- pany contends. "The employer is free to pick and choose those it wishes to single out as examples for discipline." That decision is clearly inapplicable. There, a slowdown was in its third day, and the Board found that "the most plausible and real reason for the five discharges was be- cause the five dischargees had participated in the slow- down, and the Respondent made the discharges as an 'ex- ample' in order to stop the slowdown." Here, the drivers had been back to work for over 2 weeks Moreover, Presi- dent Heck has not even claimed that he discharged these particular employees as an "example." (He testified instead that he told the judge in the court proceeding that "we had five men that we felt that we couldn't work with.") I find that the participation of Mattire, White, and John- son in one or both of the work stoppages was merely a pretext and not the real reason for singling out these em- ployees for discharge. In view of this finding, I deem it unnecessary to rule on whether the unauthorized work stoppages for less than 24 hours (during which time the agreement permitted only discipline "short of discharge") was protected activity, as contended by the General Coun- sel, Wagoner Transportation Co, 177 NLRB 452, 456-458 (1969), enfd. 424 F.2d 628 (CA. 6, 1970); Wintle Delivery and Refrigeration Truck Service, 200 NLRB 898, 903 (1972); or whether the work stoppages were unprotected ac- tivity, as contended by the Company, Food Fair Stores, Inc, 491 F.2d 388, 393-397 (C.A. 3, 1974). 2. Discharge of John Mattire Mattire's April 15 discharge letter, after listing his ac- tions on March 22 and 25 (in company with other drivers), specified the one basis for singling him out for discharge. The letter charged that he stated in a "knowingly false" affidavit, which was dated March 25 and attached to the Union's injunction petition against the Company: that on March 21, 1974, defendant, through Wallace E. Heck, demanded that he put coloring into the mixer drum and that when he refused, he was suspended and locked out of the premises of Altex Ready-Mixed Concrete Corporation. The affidavit, which Mature signed, showed on its face that it was a form affidavit-not an individual affidavit given by him. It, like identical ones signed by drivers White and Phillips, had a blank space on the second line where Mattire's name was written in. All three affidavits attached to the Union's injunction petition were acknowledged on the same date before the union attorney as notary public. Thus, from the face of the affidavit, the Company was placed on notice that it did not contain Mattire's personal version of the facts, but was prepared for several persons to sign. 699 It was also obvious from the face of the affidavit that the facts had been garbled, evidently by the attorney who pre- pared the form affidavits. (March 21 was when Plant Man- ager Kalkofen-not President Heck-demanded one driv- er to add the red dye, and when the driver did so upon threat of discharge. On both March 21 and 22, Kalkofen- not Heck-threatened to discharge any driver who refused to add the red dye Instead of the drivers refusing on March 22 to load the coloring, they refused to work under the threat of discharge if they did not load the dye. It was then, while they were waiting in the plant, hoping to get the matter settled, that Kalkofen sent the drivers home-or "locked out" the drivers in the language of the affidavits. Later that day, the Company sent out the suspension no- tices.) However, the inaccuracies did not prejudice the nghts of the Company. Even if the form affidavits had contained an entirely accurate version of the facts, the Union would still have been able to allege in the injunction petition that the Company violated the express terms of the union agreement by requiring the employees to put in the coloring, and that the Company locked out the employees when they refused to work under those conditions, and gave them suspensions. (The Company had not investigat- ed to determine the reason for the inaccuracies in the form affidavits. Mattire and the two other drivers had merely signed the affidavits at the union hall without having read them.) President Heck was asked "what would you say was the single most important thing that you looked at that Mr. Mattire did" when Heck was "trying to decide which ones you had to let go " He finally answered that "the worst was the affidavits," because "We had to hire attorneys to de- fend our lawsuit and go to court when the affidavit was filed." The Company contends that Mattire and the other two drivers would be grossly negligent in failing to read the affidavits, and that they "were also disloyal to their em- ployer and disloyalty is just cause for discharge"-citing the clearly inapplicable case, N.L.R.B. v. Local 1229, Elec- trical Workers [Jefferson Standard Broadcasting Co.], 346 U S. 464, 471-472 (1953), in which the Court upheld dis- charges for disloyalty where the strikers "sponsored or dis- tributed 5,000 handbills making a sharp, public, disparag- ing attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income." The General Counsel contends that concerted conduct in furtherance of legitimate union objectives, such as the filing of a civil suit, is protected by the Act unless the activ- ity is done with malice or in bad faith. He cites Walls Mfg. Co, 137 NLRB 1317, 1319 (1962), enfd. 321 F.2d 753, 754 (C A.D.C., 1963), cert. denied 375 U.S. 923 (1963), in which the Board held. "Employees do not forfeit the pro- tection of the Act if, in voicing their dissatisfaction with matters of common concern, they give currency to inaccu- rate information, provided that it is not deliberately or ma- liciously false " He contends that "No cogent evidence was adduced that the allegations contained in the affidavits, although erroneous in minor respects, were made with in- tent to falsify or maliciously injure the Respondent or that the affidavits were defamatory or insulting in character or 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the affidavits were manifestly destructive of disci- pline." It is clear that whether or not the March 22 and 25 work stoppages were protected activity, the filing of the Union's petition (seeking an injunction against the Company's re- quiring employees , in violation of the agreement, to load the red dye) was a protected concerted activity. Mattire was participating in this activity when he signed the sup- porting affidavit which had been prepared by the union counsel . Although the form affidavit, which Mattire signed in good faith without reading , contained several inaccura- cies, the inaccuracies were not prejudicial to the Company and the affidavit was substantially correct in stating that the Company was making a demand (subsequently with- drawn in settlement of the matter) that drivers add the coloring despite a specific prohibition against their being required to do so in the agreement . In these circumstances, and notwithstanding the inaccuracies in the form affidavit, I find that Mattire 's signing of the affidavit was protected conduct within the meaning of Section 7 of the Act Accordingly I find that the Company violated Section 8(a)(1) of the Act by discharging Mattire for engaging in protected concerted activity. 3. Discharge of James White White's April 15 discharge letter first lists his participa- tion in the March 22 work stoppage as a cause for his discharge . As previously found, this was a mere pretext for the discharge . I also find that the Company 's statement later in the letter that it took into consideration the fact that he was an assistant steward at the time, is also pretex- tual. It is clear that the steward himself (Phillips) induced the work stoppage ; that White had no authority or duties as an assistant steward except in the absence of the stew- ard; and that White in no way encouraged or induced the work stoppage . In fact, on the previous day (in the absence of steward Phillips ), White advised a driver to go ahead and load the red dye, and the driver did. The second stated grounds for White 's discharge was "Encouraging other employees to continue in such walkout on March 25 , and thereafter ." President Heck admitted that he did not see White motioning any of the drivers to leave on March 25, and that no driver reported to him that White had encouraged anybody to walk out . Steward Phil- lips, who admittedly called out the employees on his own, credibly testified that he did not remember even seeing White that day. Moreover White (who impressed me most favorably as an honest witness ) credibly testified that he had nothing to do with the March 25 walkout; that he never crossed the railroad tracks that morning , and was 20 to 30 feet from where Phillips was standing at the gate when Phillips talked to acting steward Green and waved for the drivers to come out; and never even talked to Green about why the drivers came out. (I discredit , as after- thoughts , the Company 's testimony that White was stand- ing near Phillips .) I find that this stated grounds for the discharge was also merely a pretext The third stated grounds for the discharge was White's signing of the affidavit on March 25 . 1 find that White signed it under the same circumstances as Mattire signed it, that he signed it in good faith , and that he was thereby engaging in protected concerted activity. Accordingly I find that the Company discharged White in violation of Section 8(a)(1) of the Act. 4. Discharge of Billy Johnson a Unprotected strike Johnson 's April 15 discharge letter listed his participa- tion in the March 22 work stoppage , and then stated that (on Tuesday, March 26, the first day of the authorized union strike) "you engaged in an act of violence on the picket line at Altex in that you assaulted the driver of a truck , which incident could have resulted in damage to persons and property." (As already noted, the union stew- ard and another driver were also terminated after purport- edly engaging in strike misconduct.) Johnson's discharge occurred under far different circum- stances from those under which drivers Mattire and White were discharged . Mattire and White were discharged for executing form affidavits which the Union had prepared to support a lawful court action to enjoin purported viola- tions of the Agreement They were thus engaged in protect- ed concerted activity when they executed the affidavit which contained inaccuracies. Johnson , on the other hand, was not engaged in protected activity on March 26. Al- though the strike which began that morning was authorized by the Union, the strike was in violation of the no-strike provisions in the Agreement. Therefore, when Johnson purportedly assaulted the truck driver who was crossing the picket line with a load of concrete , Johnson was not engaged at the time in protected activity. b. Picket line violence About noon on Tuesday, March 26, driver Johnson at- tempted to drag nonstriking driver Glenn Clark from the cab of a loaded concrete mixer which Clark was driving across the picket line where Johnson was picketing. Mean- while , one or more other strikers interfered with the outside controls on the truck , causing the truck to proceed, out of control, into a busy street where the safety brakes finally locked in time to avoid collision with other vehicles. The General Counsel contends that nonstriker Clark provoked the incident and that Johnson was acting only in self-protection . The Company contends that the incident was unprovoked. After weighing all the conflicting testimony, I make the following findings : Clark had hauled two loads of concrete, across the picket line that morning without incident. On this occasion , Johnson was walking the picket line and was "about 8 to 10 feet out in the driveway" when Clark drove very close (within a foot or foot and a half) to where John- son had stopped. Steward Phillips (who was beside John- son) stepped back, but Johnson "stood his ground" and shouted to Clark, "Hey man , what are you trying to do? Run over me?" At that point (contrary to Johnson 's testi- mony), Johnson started jumping up on the running board, pulling open the door (which had a broken lock), and at- tempting to drag Clark out of the cab. On the third at- ALTEX READY MIXED CONCRETE tempt, Johnson was pulling on Clark's leg when Clark, with a "re-bar" (a piece of reinforcement rod) in his hand, freed himself and kicked Johnson away. At the same time, one or more of the others-in the large crowd of strikers- approached the truck and opened the water valve and throttle, causing the water to flow into the concrete, the air to bleed from the brakes, and the engine to race out of control Johnson left the scene before the police arrived. (This load of concrete was ruined; deliveries ceased for the day; and this and two other loads were dumped.) In making these findings, I discredit Johnson's testimony that Clark himself opened the truck door and began kick- ing and swinging the re-bar at Johnson. I also discredit, on the other side, the testimony by Clark and by President Heck's sons Raymond and Wallace, Jr., that Johnson was shouting to Clark, "I am going to kill you; I am going to kill you." Other witnesses testifying for the General Coun- sel and the Company impressed me as being more trust- worthy. (None of the other witnesses heard such a threat.) c. Concluding findings Johnson created a dangerous situation. In the presence of a large crowd of other strikers, he first "stood his ground" when nonstriker Clark drove very close to him, and then proceeded to jump onto the running board of the truck, repeatedly forced open the door, and attempted to drag the driver from the cab. The driver was able to free himself, avoiding more serious physical violence However, Johnson's resort to violence disrupted the peace on the picket line, and the resulting disabling of the truck created a potentially hazardous situation. I find that even if the strike had been protected concert- ed activity (and not in violation of the no-strike provisions in the agreement), and despite the extent to which Johnson's actions were provoked, his conduct "exceeded permissible or protected bounds" and was "sufficiently egregious to remove [him] from the protective mantle of the Act." W. C. McQuaide, Inc, 220 NLRB No. 80 (1975). Accordingly I find that the Company was justified in discharging Johnson for the strike misconduct, and dismiss the complaint as to him. C. Alleged Coercion The General Counsel contends that inasmuch as the agreement specifically provides (in art. III, sec. 6a) that drivers "will not be required" to load the red dye, "to threaten discharge if a driver sought refuge under the pro- teciio;l of contractual language would constitute " unlawful coercion. However, I agree with the Company that instead, this involves a dispute over the interpretation of the agree- ment, and that the employees should have filed a grievance rather than resort ;o self-help. Not only did the agreement require such disputes over "the interpretation or application of the terms of this agree- ment" to be submitt :d to arbitration , but 4 days before Plant Manager Kalkofen made the threat of discharge, the union business agent had promised that in the future, all disputes would be settled by arbitration rather than by strikes. 701 It is true that the specific, unequivocal prohibition against requiring drivers to put the coloring into the mixer drums remains in the agreement, although a second sen- tence was added to section 6a, requiring the Company to erect dye-loading facilities "equal" to such facilities at Dolese. A company witness, Dolese's general manager, Haywood, credibly testified that in the 1972 negotiations, there was merely an unstated indication that if the dye- loading facilities were installed, the drivers would be more "cooperative"-not that they could be required to add the red coloring. Furthermore at Dolese, which already had the dye-loading facilities, the drivers have not been re- quired to add the coloring since the 1972-75 agreement went into effect, and the batchman customarily performs this function, as Dolese's assistant steward, Bradford, cred- ibly testified. Moreover, it is clear that the separate stand built by the Company is not "equal" to the Dolese facility in the sense that the stand, built some distance from the concrete-loading facilities, was intended to be used solely by the drivers and not by the batch-man as at Dolese. However, there was at least arguably a contract-interpre- tation dispute. The Company's drivers had continued to load the red dye after the 1972-75 agreement went into effect-until the union steward advised them in March that they were not supposed to do so. Furthermore, the Compa- ny contended that the second sentence of section 6e (con- cerning building "equal" dye-loading facilities) nullified the first sentence (that drivers "will not be required" to load the dye), claiming that "the drivers agreed to put the red coloring in at the bargaining table if we would build a stand like Dolese had. And we built a stand like Dolese had." President Heck also argued, "why would we build a stand at all if [the drivers] are not going to put it in there?" I recognize that when the drivers invoked their purport- ed contractual right not to be required to load the coloring, all of them were suspended, and none of them was com- pensated for lost time when the suspensions were with- drawn. However, they were suspended for engaging in the March 22 work stoppage instead of filing a grievance to protest the discharge threat. I also note that the drivers thereafter continued to load the red dye, despite President Heck's rescission of the discharge threat on March 29. However, this proceeding does not foreclose the filing of a grievance if the drivers believe their contractual rights are being violated. Accordingly I find that the Company did not violate the Act when Plant Manager Kalkofen threatened the drivers with discharge on March 22 if they refused to place the red dye in the mixer drums, and I dismiss this allegation in the complaint CONCLUSIONS OF LAW I By discharging John Mattire and James White on April 15, 1974, for participating in protected concerted ac- tivity, the Company engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. The Company did not violate the Act by discharging Billy Johnson for strike misconduct. 3. The March 22 threat to discharge drivers if they re- 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fused to place red dye in the mixer drums did not unlawful- ly coerce the employees in violation of Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take cei- tam affirmative action designed to effectuate the policies of the Act. The Respondent having unlawfully discharged two em- ployees, I find it necessary to order it to offer them full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatement Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDERS Respondent, Altex Ready Mixed Concrete Corporation, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activity 3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act- (a) Offer John Mature and James White immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the Remedy. (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at its plant in Baton Rouge, Louisiana, copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's au- thorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "