Emarco, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 832 (N.L.R.B. 1987)

832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Emarco, Inc. and William F. Grindel and Kevin
Stringer. Cases 4-CA-10265-1 and 4-CA-
10265-2
30 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 August 1981 Administrative Law Judge
Karl H. Buschmann issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent did not
violate the Act by refusing to reinstate the two
Charging Parties. For the reasons set forth below,
we disagree.
The facts in brief are as follows. The Respondent
is engaged in the construction, repair, and service
of elevators. The Respondent's president is Al
Makuta, and his son John is its secretary-treasurer
and business manager. At times relevant here, the
Respondent employed William Schreuder, William
Grindel, Gerry Setta, and Kevin Stringer as me-
chanics. The Respondent's employees' collective-
bargaining representative is International Union of
Elevator Constructors, Local 76.
At the time of the events discussed here, the Re-
spondent and the Union were parties to a collec-
tive-bargaining agreement which contained a no-
strike clause set forth in pertinent part in the
judge's decision. Under the same agreement, the
Respondent was obligated to make payments on
behalf of its employees to the Union's welfare and
pension plan. From 1976 to 1980, the Respondent
was consistently in arrears in its payments to the
welfare and pension plan and had often been 1 or 2
months and sometimes 3 months late in its payment
into the plan.
As of April 1979, 2 the Respondent was 5 months
late in its payments to the plan. The employees
1 The General Counsel excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an admuustra-
trive law Judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3rd dr.
1951). We have carefully examined the record and find no basis for re-
versing the fmdings
2 All dates hereinafter are in 1979 unless otherwise noted.
were informed by the First Bank of Pennsylvania
(the Bank) that it would no longer honor medical
bills or death benefits and employees would be in-
eligible for unaccumulated retirement benefits. 2 On
3 April the Respondent's employees wrote a letter
to the Respondent concerning its delinquency. In
the letter, the employees stated that if the Respond-
ent was not current in its payments by 20 April,
the employees would not report to work.
On 5 April John Makuta held a meeting with the
Respondent's mechanics to discuss their concern
about the welfare and pension plan. The result of
the meeting was inconclusive. On 19 April, howev-
er, John Makuta showed employee Schreuder a
check made out to the welfare and pension plan
and then mailed it to the Bank. On 20 April em-
ployee Grindel called John Makuta to see if pay-
ment had been made and was assured that the
check had been mailed. Later, Grindel and the
other employees individually called the Bank and
found that it had not received the check. When
Schreuder called the Bank on Monday, 23 April,
and discovered that the check ha&still not been re-
ceived, the four mechanics refused to report for
work. The Bank had still not received the check as
of 26 April. The Respondent stopped payment on
the 19 April check and sent a new check. The me-
chanics' strike lasted until 7 or 8 May when the
Bank fmally received the Respondent's November
1978—May 1979 payment.
Employees Setta and Schreuder were called to
work by Al Makuta on 8 May. On the same day,
Union Vice President Koch telephoned John
Makuta to find out why employees 'Grindel and
Stringer had not been called back to Work. Makuta
replied that the Respondent was having some prob-
lems getting back to work and, according to
Koch's testimony, that the two men would be back
to work the following morning.4
On 10 May Grindel and Stringer visited a jobsite
where the Respondent was a subcontractor to see
if anyone was working on the elevator job there.
As they were leaving the site Grindel and Stringer
ran into Poleri, the general contractor on the
project. According to Grindel and Stringer, they
asked Poleri if anyone was working on the elevator
job. Poleri replied that the elevator employees
were on strike. Grindel and Stringer explained that
the strike was over but that only two employees
had been recalled. On response to Poleri's query
about the cause of the strike, the two men ex-
3 One employee had two medical bills which were not honored by the
Bank
4 John Makuta testified that he told Koch that the employees would be
back to work as soon as possible This testimonial discrepancy is not ma-
tenal
284 NLRB No. 91
EMARCO, INC. 833
plained that the Respondent's 5- or 6-month delin-
quency in payments to the health and welfare fund
had precipitated the strike. When Poleri asked why
the Respondent was behind in its payment, the men
answered that the Respondent did not have the
money.
Poleri's version of this conversation is somewhat
different. He testified that the employees also said,
inter alia, "these people never pay their bills," the
Respondent "can't finish the job" and "is no damn
good," and "this job is too damn big for them. . . .
It will take a couple of years to finish the job."
Poleri testified that the men referred to Al Makuta
as "no damn good" and as "a son of a bitch." The
judge credited Poleri's characterization of the con-
versation with the two Charging Parties "keeping
in mind that the quoted language was an exaggerat-
ed version of the actual statements of Grindel and
Stringer."
The next day, Al Makuta went to check on Po-
leri's jobsite. Poled told him what Grindel and
Stringer had said about the Respondent and
Makuta. Makuta decided that he would not recall
the two employees because of their remarks to
Poleri. Stringer and Grindel were offered reinstate-
ment on 20 July, at which time they declined the
Respondent's offer.
The judge assumed that the Respondent's 5-
month delinquency in payments into the health and
welfare fund constituted an unfair labor practice.
He concluded that, even as such, the Respondent's
action was not, under Arlan 's Department Store of
Michigan, 133 NLRB 802 (1961), and Dow Chemi-
cal Co., 244 NLRB 1060 (1979), so "serious" or
"flagrant" to "justify a finding that the resulting
strike which was not in accord with the provisions
of the contract, was protected activity." We find it
unnecessary to pass on the judge's conclusions with
regard to the nature of the employees' 'strike. In
this regard we conclude that whether the Respond-
ent's delinquency constituted an unfair labor prac-
tice and, if so, a serious or flagrant one, the Re-
spondent "condoned" the resulting strike activity.
Such condonation rendered the strike, in effect,
protected activity, regardless of whether it was ini-
tially protected or unprotected. 5 In this regard, as
the judge notes, the Respondent had already re-
called two of the striking employees and indicated
its intent to recall Stringer and Grindel at the time
the incident with Poleri occurred. Moreover, the
Respondent acknowledges here that its failure to
recall the two employees was because of their re-
marks to Poleri and not their participation in the
strike, in effect conceding that the Respondent con-
5 Richardson Paint Co., 226 NLRB 673 (1976), ea. granted in part and
denied in part 574 F.2d 1195 (5th dr. 1978).
doned their participation in the strike, whether pro-
tected or unprotected. 6 Accordingly, at the time
the remarks to Poleri were made, Grindel and
Stringer had reinstatement rights identical to those
of employees who engage in protected strikes.
We disagree, however, with the judge's further
conclusion that because the failure to recall the em-
ployees "does not reflect any anti-union animus,"
the Respondent's decision not to recall them was
lawful. We conclude that, even though the employ-
ees' remarks to Poleri were subsequent to the Re-
spondent's condonation of the strike activity and,
hence, cannot be considered to have been con-
doned,1 these remarks in and of themselves were
protected by Section 7 of the Act. Accordingly, by
making these remarks, the employees did not for-
feit their rights to reinstatement.
Our dissenting colleague states that we ignore
the teachings of NLRB v. Electrical Workers IBEW
Local 1229 (Jefferson Standard), 346 U.S. 464
(1953). Our decision, however, does not signal a re-
treat from the principle of that decision. On the
contrary, our decision is entirely consistent with
the Supreme Court's holding in Jefferson Standard
and the Board's decisions in a number of cases
cited herein which apply that holding. Jefferson
Standard held that employees may engage in com-
munications with third parties in circumstances
where the communication is related to an ongoing
labor dispute and when the communication is not
so disloyal, reckless, or maliciously untrue to lose
the Act's protection. As set forth below, we find
that Grindel and Stringer's remarks meet each of
these criteria.
First, in our view, the Charging Parties' remarks
were an extension of a legitimate and ongoing
labor dispute which predated the strike and of
which the strike proper was only one manifesta-
tion. In this regard, we believe our dissenting col-
league's conclusion that there was no evidence of a
labor dispute other than the strike itself, results
froth an overly restrictive view of what constitutes
a "labor dispute." The definition of labor dispute
under Section 2(9) of the Act includes "any contro-
versy concerning terms, tenure or conditions of
employment" (emphasis added). Surely, the em-
ployees' actions, which included complaining indi-
vidually and through union intervention, and
which were taken in response to the Respondent's
chronic failure to make contractually mandated
timely payments to the welfare and pension plan,
fall within the purview of that section.
6 See also American River Constructors, 163 NLRB 551 (1967), and Ala-
bama Marble Go, 83 NLRB 1047 (1949), enfd 185 F.2d 1022 (5th dir.
1951), cert. denied 342 U.S 823 (1951).
7 Poloron Products of Indiana, 177 NLRB 435 (1969)
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, with regard to the ongoing nature of
the labor dispute, the remarks of the Charging Par-
ties to Poleri cannot be considered in a vacuum.8
Since 1976, the employees involved had been indi-
vidually and concertedly attempting to compel the
Respondent to make timely fund payments required
under the collective-bargaining agreement.° In this
regard, our dissenting colleague argues, in support
of his contention that the Respondent's payment
ended the dispute, that in the past the Respondent's
delinquencies were consistently remedied when the
employees or the Union's business agent com-
plained. In so arguing, our colleague only empha-
sizes that the Respondent's arrearages were a
chronic problem and that the employees were re-
quired repeatedly to assert their rights under the
contract to have the fund payments made. In this
context, and in light of the fact that the delinquen-
cy which led up to the strike was merely the latest
and apparently most severe in a series of delinquen-
cies, the Respondent's payment which ended the
strike could not have provided the employees with
much assurance that their problems in getting the
Respondent to live up to its financial obligations
under the contract were at an end. Moreover, the
Respondent's failure, as of the time of the conver-
sation with Poleri, to call Grindel and Stringer
back to work could only have served to reinforce
the employees' perception that their problems were
not over.10
With respect to the "related to" aspect of the
Jefferson Standard test, we note further that the re-
marks to Poled were made in the context of and
8 NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965).
9 NLRB v. City Disposal Systems, 465 U.S. 822 (1984). We disagree
with the dissent's assertion that City Disposal Systems is not relevant to
disposition of the instant case In that case, the Court stated that "[t]he
invocation of a right rooted m a collective-bargaining agreement is un-
questionably an integral part of the process that gave rise to the agree-
ment" (465 U.S. at 823) in holding that "]a] lone employee's invocation
of a right grounded in his collective-bargaining agreement is, therefore, a
concerted activity in a very real sense" (465 U S. at 832). In this case, the
affected employees had engaged in various actions, even apart from the
strike, to assert their rights under the agreement Such actions unques-
tionably constituted concerted activity under City Disposal Systems.
is See, e g., NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) As
we noted above, our dissenting colleague views the Respondent's pay-
ment Into the fund as ending the labor dispute and thus terminating the
employees' right to discuss it or engage in other protected concerted ac-
tivity. A similar argument was rejected, however, us the context of a dif-
ferent factual situation in Washington Aluminum, where the Court found
(id., 370 U.S. at 16):
The fact that the Company was already making every effort [to
handle the employees' running dispute by rectifying the problem]
does not change the nature of the controversy that caused the walk-
out At the very most, that fact might tend to indicate that the con-
duct of the men in leaving was unnecessary and unwise, and it has
long been settled that the reasonableness of workers' decisions to
engage in concerted activity is irrelevant to the determination of
whether a labor dispute exists or not.
Similarly, although our dissenting colleague may be correct in asserting
that once the payment had been made, the action of the employees here
was no longer necessary or prudent, such a judgment is not relevant to a
determination of whether a labor dispute is ongoing.
were expressly linked to the labor dispute." Thus,
the remarks were made while the employees were
visiting a jobsite to see if the Respondent had re-
sumed working there and in response to questions
about the cause of the strike and the reasons for
the Respondent's delinquency. In this context, we
cannot agree with our dissenting colleague that the
employeees failed to relate their remarks to a labor
dispute because they were in fact discussing the
strike and the reasons for it. We note in this regard
that employee speech is often an essential means of
achieving group goals and to deny protection to
this type of activity would nullify the rights guar-
anteed by Section 7 of the Act."
Finally, the Charging Parties' remarks were not
such as to forfeit any protection under Section 7 to
which Grindel and Stringer might otherwise have
been entitled. As the judge found in his decision,
the remarks made by Grindel and Stringer here,
name-calling aside, were not malicious falsehoods,
but reflected to some extent the Respondent's
actual inability to meet its financial obligations,
which concern was at the heart of the employees'
labor dispute with the Respondent. The Respond-
ent does not except to this finding of the judge. As
noted above, these remarks were not in the nature
of a personal attack unrelated to the employee's
protest of the Respondent's labor practices."
Moreover, to the extent that the Charging Parties'
credited remarks reflect bias or hyperbole," in the
context of an emotional labor dispute clearly identi-
fied as such to Poleri, they cannot be said to be so
disloyal, reckless, or maliciously untrue as to lose
the Act's protection." Indeed, the judge found
that the credited remarks did not constitute serious
misconduct sufficient, under the circumstances, to
nullify the Charging Parties' reinstatement rights
following protected activity." In short, it is only
11 See, e.g., Community Hospital of Roanoke Valley, 220 NLRB 217,
222 (1975), enfd. 538 F.2d 607 (4th Qr. 1976).
12 Atlanta Newspapers, 264 NLRB 878 (1982). Contrary to the dissent,
m our view this case supports our analysis because here, as there, "there
can be little doubt that the subject of [the employees' remarks] related to
protected activity." Atlanta Newspapers, supra, 264 NLRB at 879.
18 See, e g., Richboro Community Mental Health Council, 242 NLRB
1267, 1268 (1979)
" Like our dissenting colleague, we rely on the credited version of the
Charging Parties' remarks to Poleri, although we note that the judge
himself found Poleri's to be an "exaggerated version of the actual state-
ments."
18 See, e.g., Richboro, supra, and NLRB v. Owners Maintenance Corp.,
581 F.2d 44, 49-50 (2d Qr. 1978). Because, as stated previously, we find
that the Respondent's payment mto the, fund did not terminate the em-
ployees' right to engage in protected concerted activity relating to the
labor dispute, we believe, contrary to the dissent, that these cases are ap-
posite
18 We note that, apart from any reinstatement rights the Charging Par-
ties here had, an employer may not deny employment for discriminatory
reasons. See, e.g., Spencer Foods, 268 NLRB 1483 (1984), affirmed and re-
versed on other grounds 768 F.2d 1463 (D.C. Cir. 1985) (employer's not
Continued
EMARCO, INC. 835
by a selective reading of the undisputed facts of
this case that the dissent can find the Charging Par-
ties' remarks unprotected under the principles in
Jefferson Standard."
Accordingly, we conclude that the Respondent
violated Section 8(a)(1) 18 of the Act by its refusal
to reinstate the Charging Parties.
CONCLUSIONS OF LAW
1.The Respondent, Emarco, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, International Union of Elevator
Constructors, Local 76, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing to reinstate certain employees be-
cause of their protected activity, the Respondent
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
5. Except as found herein, the Respondent has
not otherwise violated the Act.
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(1) of the Act by refusing to reinstate
William Grindel and Kevin Stringer because of
their protected activity, we shall order the Re-
spondent to cease and desist and take certain af-
firmative action designed to effectuate the policies
of the Act. Additionally, these employees shall be
made whole for any loss of pay and other benefits
they may have suffered as a result of the discrimi-
nation against them from the date of the unlawful
failure to reinstate on 8 May 1979 until 20 July
1979, the effective date of the Respondent's offer
of reinstatement. Backpay is to be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB
considering job applicant for future employment based on honoring
lawful picket line held violative of Sec. 8(a)(1)), and Mount Desert Island
Hospital, 259 NLRB 589 (1981), remanded on other grounds 695 F.2d 634
(1st Cir. 1982) (employer's refusal to rehire former employee based on
her engaging in protected concerted activities of writing letter to news-
paper, organizing employee meeting, and circulating petition complaining
of working conditions constituted violation of Sec 8(a)(1)).
i7 disagreement with our dissenting colleague, in our view although
Jefferson Standard and the instant case both arguably mvolve employee
disloyalty, Jefferson Standard dictates that we reach a result here different
from the one reached there. Thus, the quotation from that case excerpted
by the dissent itself stresses that the employee speech there "related itself
to no labor practice of the Company" and "made no reference to wages,
hours, or working conditions." Jefferson Standard, supra 346 U S. at 476
As noted above, the facts in the instant case in this critical aspect are en-
tirely different.
18 The General Counsel alleged that the refusal to reinstate Grindel
and Stringer Violated Sec. 8(aX3) and (1). We find it unnecessary to pass
on whether the Respondent's conduct violates Sec. 8(a)(3) because we
find that it violates Sec 8(a)(1). See NLRB V. Burnup & Sinn Inc., 379
U.S. 21 (1964)
289 (1950), with interest as prescribed in New Hori-
zons for the Retarded.19
ORDER
The National Labor Relations Board orders that
the Respondent, Emarco, Inc., Hazelton, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to reinstate employees who have
participated in a strike because of their participa-
tion in protected concerted activity.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make William Grindel and Kevin Stringer
whole for any loss of pay and other benefits they
may have suffered as a result of the discrimination
against them in the manner set forth in the remedy
section of this Decision and Order.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Remove from its files any reference to the
unlawful failure to reinstate Grindel and Stringer
and notify them in writing that this has been done
and that this unlawful action will not be used
against them in any way.
(d) Post at its place of business in Hazelton,
Pennsylvania, copies of the attached notice marked
"Appendix." 2 ° Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
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.
19 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S.C. § 6621.
" If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
836

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I find that the Re-
spondent did not unlawfully refuse to reinstate
Charging Parties Grindel and Stringer. More spe-
cifically, I find that the Charging Parties engaged
in sufficiently serious acts of poststrike misconduct
so as to forfeit any protection under Section 7 of
the Act to which they may otherwise arguably
have been entitled.'
As seen from the judge's and my colleagues'
recitation of the facts, the Respondent's four em-
ployees (including Charging Parties Grindel and
Stringer) went on strike on 23 April 1979, in pro-
test against the Respondent's failure to make timely
payments to the welfare and pension fund. On 7 or
8 May the Bank received the Respondent's over-
due payment to the fund. On 8 May the Respond-
ent recalled employees Schreuder and Setta to
work. The Union asked the Respondent why Grin-
del and Stringer had not also been recalled. The
Respondent replied that it was experiencing prob-
lems getting back to work, but that Grindel and
Stringer would be returned to work the following
morning, 9 May, or as soon as possible.
On 10 May Grindel and Stringer, neither of
whom had as yet been returned to work, went to
one of the Respondent's jobsites. They asked Vito
Poleri, the general contractor, whether any of the
Respondent's employees were working on the job.
Poleri replied that the Respondent's employees
were on strike. Grindel and Stringer advised Poleri
that the strike had ended, but that only two em-
ployees had been recalled to work. Poleri asked
what had caused the strike. According to Poleri's
credited testimony, Grindel and Stringer replied
that it was because the Respondent "don't pay the
backpay." Poleri further testified that Grindel and
Stringer then said:2
1 In light of my finding on this ultimate issue, I, like my colleagues,
find it unnecessary to pass on the Judge's characterization of the Re-
spondent's failure to make timely payments into the welfare and pension
fund as an unfair labor practice under the circumstances. See my dissent-
ing opinion m Rapid Fur Dressing, 278 NLRB (1986), and note also that
the Respondent's conduct in this regard was neither alleged, litigated, nor
conclusively found by the Judge to be an unfair labor practice. In any
event, I agree with my colleagues that regardless of whether the Re-
spondent's conduct in this regard constituted an unfair labor practice and,
if so, a sufficiently serious one so as to render the strike m protest against
that conduct protected, the Respondent effectively condoned the strike
As discussed infra, it is the poststrike conduct of the Charging Parties,
and specifically whether that conduct was protected under the Act, that
is at issue between my colleagues and me.
2 It is not clear from the record whether Grindel or Stringer, or each
in turn, was speaking.
Why you give the job to Emarco? These
people don't work. They never pay their bills.
They don't have capital enough to do the
work. They ain't got no credit nowhere. They
can't finish the job.
[Al Makuta, the Respondent's president] was
no god damn good plus. . . he was a son of a
bitch.
They should give the job to somebody else
good, because this company is no god damn
good.
This job is too damn big for them. They
ain't big enough to finish the job. It will take a
couple of years to finish the job.3
The next morning, 11 May, Poleri met Makuta at
the jobsite. Poleri asked Makuta, "[W]hat kind of
man are you? Are you going to finish the job?"
When Makuta replied that he would and asked
Poleri why he was asking such a question, Poleri
recounted to Makuta the former's conversation
with Grindel and Stringer the day before. Accord-
ing to Poleri:
I wanted speed. I wanted to, know why the
strike was on for. [I wanted to make sure he
would finish the job]. . . . I told [Makuta] be-
cause I want no trouble in the job, because
when they tell you "He ain't got no credit,
they can't finish the job, and he can't pay"
. . . that's why I asked him.
Makuta decided not to reinstate Grindel and
Stringer because of their disparaging remarks to
General Contractor Poleri about the Respondent's
financial stability and performance capability.4
My colleagues find that the Respondent's refusal
to reinstate Grindel and Stringer because of their
disparaging remarks about the Respondent to Gen-
eral Contractor Poleri was unlawful, because those
3 In creditmg Poleri's testimony about his conversation with Grindel
and Stringer, the judge characterized Polen as an "excitable witness"
who had considerable difficulty in understanding and expressing himself
in English. The Judge also found that Poleri seemed "confused at times"
and had a "natural inclination to exaggerate" Nevertheless, the Judge
found that Polen had no reason to misstate the contents of this conversa-
tion He therefore credited Poleri's testimony, although admonishmg that
it was an "exaggerated version" of what Grmdel and Stringer actually
said. However, inasmuch as the latter two individuals simply denied
making the statements attributed to them by Poleri, it would be pure
speculation to imagine a "less exaggerated" version of what Grindel and
Strmger said. I decline to engage in such speculation, and I note that the
Judge similarly refrained from doing so Polen's testimony is on the
record and is credited I rely on it, and not on some unspoken, unsur-
mised "less exaggerated" version.
4 Subsequently, on 20 July, the Respondent did offer reinstatement to
both Grindel and Stringer, but these offers were refused
EMARCO, INC. 837
remarks were protected by Section 7 of the Act. I
disagree.
At the outset, I note that the labor dispute be-
tween the Respondent and the employees had been
resolved, and the strike had ended, 2 days before
Grindel and Stringer made their disparaging re-
marks about the Respondent to Poleri. I also note
that Grindel and Stringer were well aware that the
dispute had been resolved and the strike ended at
the time they disparaged the Respondent. Indeed,
Grindel and Stringer themselves told Poleri at the
start of their 10 May encounter that the Respond-
ent was no longer on strike, and that two other
employees had already been reinstated. Thus, my
colleagues overstate the situation when they imply
that Grindel and Stringer, in attacking the Re-
spondent's fmancial and operational reputation,
were engaged in concerted activity to compel the
Respondent to make fund payments in compliance
with the terms of the collective-bargaining agree-
ment. As seen, at the time of the incident in ques-
tion, the Respondent was already in compliance
with the collective-bargaining agreement—and
Grindel and Stringer knew it.5
My colleagues are also inaccurate in their char-
acterization of Grindel's and Stringer's statements
as "an extension of a legitimate and ongoing labor
dispute which predated the strike and of which the
strike proper was only one manifestation." First,
there was no "ongoing labor dispute which predat-
ed the strike." Second, there was no manifestation
of the instant labor dispute other than the strike
itself.
As to the first while it seems clear that the Re-
spondent had indeed been repeatedly late in
making its payments to the welfare and pension
fund, my colleagues cite no evidence in support of
their assertion that this matter had become the sub-
ject of an ongoing labor dispute at any time prior
to the April-May events in question here. Indeed,
Charging Party Grindel himself testified that in the
past, prior to the instant events, when the Respond-
ent got behind in payments to the welfare and pen-
sion fund, "we would try normally to handle it
within the company itself, and not involve the
Union or anybody else in it, we would have a talk
5 NLRB v City Disposal Systems, 465 U.S 822 (1984), cited by my col-
leagues in this regard, is factually inapposite to the instant case Unlike
the case at hand, in which the contractual dispute—late payments into
the welfare and pension fund—had unquestionably been resolved at the
time the Charging Parties launched their attack on the Respondent's rep-
utation, the precise contractual question in City Disposal—whether a par-
ticular garbage truck was in fact in "safe operating condition"—remained
unresolved throughout the course of that proceeding. Indeed, resolution
of that contractual question was determined to be immaterial to resolu-
tion of the case itself, winch involved only the issue of whether the asser-
tion by as individual employee of a right grounded in a collective-bar-
gaining agreement constitutes concerted activity within the meaning of
Sec. 7 of the Act—an issue obviously not present in the instant case.
with them and normally it was paid." Charging
Party Stringer also recalled "discussing" pensions
with the Respondent's business manager on one oc-
casion, but he had "no idea when that was." The
Respondent's clerk, Patricia Grier, testified that in
the past, when the employees or the Union's busi-
ness agent contacted her about delinquent pay-
ments to the welfare and pension fund, she would
"take care of it and get it paid." Contrary to the
assessment of my colleagues, the situation de-
scribed by Grindel, Stringer, and Grier is hardly
the stuff of an "ongoing labor dispute."
As to my colleagues' assertion that the strike was
not the only manifestation of the instant labor dis-
pute, they offer no evidence of any other such man-
ifestation. I find none.
The starting point and standard for analysis of
questions about whether employee activity which
generally might be protected under Section 7 of
the Act has under the circumstances been carried
beyond the scope of that protection was set out
more than 30 years ago by the Supreme Court, in
the landmark case of NLRB v. Electrical Workers
IBEW Local 1229 (Jefferson Standard), 346 U.S.
464 (1953).
In Jefferson Standard, technicians employed by a
radio and television station picketed the station
during contract negotiations to protest the compa-
ny's refusal to agree to arbitration for discharges.
After 6 weeks of picketing, several technicians dis-
tributed it handbill bearing the signature "WBT
Technicians" which attacked the quality of the
company's product and its business policies. The
company discharged 10 technicians for sponsoring
or distributing the handbill. The Board found that
nine of the discharged employees had sponsored or
distributed the handbill, and that in doing so they
had failed to disclose their ultimate purpose—"to
extract a concession from the employer with re-
spect to the terms of their employment"—and in-
stead "purported to speak as experts, in the interest
of consumers and the public at large." Jefferson
Standard Broadcasting Co., 94 NLRB 1507, 1511
(1951). The Board found the handbill's subject
matter unrelated to the technicians' employment re-
lationship and therefore unprotected under Section
7 of the Act. The Supreme Court agreed. More
specifically, the Court agreed with the company's
interpretation of the handbill as a "demonstration
of such detrimental disloyalty" as to provide the
company with just cause for its discharge of the
6 I make this determination with both a knowledge of the literal defini-
tion of the term "labor dispute" in Sec. 2(9) of the Act as well as an as-
sessment and appreciation of the record evidence, summarized above, of
such a "labor dispute" in the instant case.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees responsible. 7 The Court stated, "There
is no more elemental cause for discharge of an em-
ployee than disloyalty to his employer." In lan-
guage remarkably apt to the instant case, the Court
found that:
Their attack related itself to no labor practice
of the company. It made no reference to
wages, hours or working conditions. The poli-
cies attacked were those of finance and public
relations for which management, not techni-
cians, must be responsible. The attack asked
for no public sympathy or support.
[The handbill] attacked public policies of the
company which had no discernible relation to
[the labor] controversy.9
Thus, Jefferson Standard teaches that even if em-
ployees are arguably engaged in concerted activity,
if the nature of their action involves a malicious
attack on the products, services, or reputation of
their employer, unrelated to any dispute over terms
or conditions of employment, their activity will
lose the protection of Section 7 of the Act and pro-
vide their employer with just cause for their dis-
charge.
It is clear, and my colleagues agree, that the Re-
spondent denied reinstatement to Grindel and
Stringer solely because of their disparaging state-
ments about the Repondent's financial and oper-
ational capabilities to General Contractor Poleri.
Applying the well-settled principle of Jefferson
Standard to the instant facts, I fmd, contrary to my
colleagues, that Grindel's and Stringer's attack on
the Respondent was not protected by Section 7 of
the Act.
Given the totality of the circumstances here—
that the labor dispute in question had already been
resolved and the strike ended at the time Grindel
and Stringer made their attack on the Respondent;
that Grindel and Stringer were fully aware of that
circumstance at the time; that the disparaging re-
marks of Grindel and Stringer did not even men-
tion the Respondent's past failure to make timely
payments to the welfare and pension fund—the re-
marks of Grindel and Stringer constituted a broad-
side, reckless, and malicious attack on the general
financial and operational integrity of the Respond-
ent, resulting in a public disparagement of the Re-
spondent's business reputation in the community,
not related to any existing labor dispute, 1 ° not
7 346 U.S. at 472.
8 Id.
9 Id. 346 U.S. at 476.
" Community Hospital of Roanoke Valley, 220 NLRB 217 (1975), relied
on by my colleagues as support for their contrary assessment, i e., that
the remarks of Grindel and Stringer were related to the Respondent's
practice of untimely payments to the pension and welfare fund is rills-
based on any factual information, and far beyond
the scope of the protection of Section 7 of the Act.
Under these circumstances, there was ample just
cause for the Respondent to deny reinstatement to
Grindel and Stringer."
Nevertheless, my colleagues would excuse all
this and cloak it with the mantle of Section 7 pro-
tection on the asserted grounds that the statements
of Grindel and Stringer to General Contractor
Poleri were made "in the context of an emotional
labor dispute clearly identified as such to Poleri."
However, as seen above, these statements were
clearly not made in the context of a labor dispute,
emotional or otherwise. The delinquent payments
had been made, the strike had ended, two employ-
ees had already been recalled, and Grindel and
Stringer were well aware of all this at the time.12
placed. In my view, Community Hospital is inapposite to the instant case
and provides no support for the result reached by my colleagues here.
In Community Hospital, the employer violated' the Act by taking ad-
verse personnel actions against two employees (nurses) m order to (as
found by the Board) control, contain, or at least channel the organiza-
tional efforts of the nursing staff. The Board found pretextual the em-
ployer's asserted defense that it took these adverse personnel actions be-
cause the two employees m question had publicly (letters to editors; tele-
vision interviews) complained about low pay and nursing shortages in
general, and at the employer's hospital in particular. The Board rejected
the employer's contention that one of the nurses in question, Weinman,
had gone beyond the scope of protection of Sec. 7 of the Act when she
stated publicly that there were nursing shortages on some shifts at the
employer's hospital, caused by low pay and poor benefits. The Board af-
firmed the administrative law judge's finding that:
[T]he Respondent concedes that what Weinman said was true and I
have found above there were no reasonable grounds for the Re-
spondent to conclude that the viewing audience was misled to the
detriment of the hospital's public image I have also found that
Wemman's statement was made in a context of, and was specifically
related by her to, the employees' efforts to improve wages and
working conditions, Nor it there any evidence at all that Weinman
deliberately intended to alienate the public by impugning the quality
of the hospital's patient care.
In this regard, the judge, affirmed by the Board, also noted that there
was no evidence that Weinman's remarks were calculated to expose the
employer to public contempt.
Thus, I find Community Hospital to be fundamentally inapposite to the
instant case, in which the remarks of Grindel and Stringer were not
shown to be true, Poleri clearly was misled by the remarks of Grindel
and Stringer, to the detriment of the Respondent's image in the business
community; and it is equally clear that Grindel and Stringer fully intend-
ed to expose the Respondent to public contempt, and to alienate Poleri,
by impugning the Respondent's financial and operational integrity.ii See Jefferson Standard Broadcasting, supra; Sahara Datsun, 278
NLRB 1044 (1986); Studio S.J.T , 277 NLRB 1189 (1985) (employee
Fast), Stanley Furniture Co. 271 NLRB 702 (1984), American Arbitration
Assn., 233 NLRB 71(1977); Firehouse Restaurant, 220 NLRB 818 (1975).
See generally my dissenting opinion in Mitchell Manuals, 280 NLRB
(1986); Philander Smith College, 246 NLRB 499, 505-507 (1979) (general
discussion of instant issue, specific finding of protected activity). Cf.
American Hospital Assn., 230 NLRB 54, 57 (1977) (leaflets critical of em-
ployer found protected when, inter alia, not distributed to general public
but kept within confines of employer's business).
72 Thus, my colleagues' reliance on Richboro Community Mental
Health Council, 242 NLRB 1267 (1979), and NLRB v. Owners Mainte-
nance Corp, 581 F 2d 44 (2d Cir 1978), in this context is misplaced. In
Rrchbom, the subject of the labor controversy—an allegedly discriminato-
ry discharge of an employee—had not been remedied or otherwise re-
solved at the time the assertedly unprotected letter, in that case was writ-
ten Likewise, in Owners Maintenance, the allegedly discriminatory dis-
charges of two employees had not been resolved at the time of the asser-
tedly unprotected leafletting in that case
EMARCO, INC. 839
However, my colleagues assert—without factual
support—that the arrearage in payment which led
directly to the instant strike "was merely the
latest" (thus, impliedly, not the last) in a series of
delinquent fund payments. On the basis of this con-
jecture (and notwithstanding the contemporaneous
payment in full of arrearages by the Respondent
and cessation of strike activity by the employees),
my colleagues imply that the employees could rea-
sonably anticipate that the Respondent would
resume its practice of tardy fund payment. From
this, my colleagues reason that the problem of de-
linquent fund payments had not really been re-
solved after all, the labor dispute over such late
payments was therefore still ongoing, and Grindel
and Stringer were therefore still embroiled in this
so-called ongoing emotional labor dispute when
they made their disparaging remarks about the Re-
spondent to Poleri, 2 days after the payment of all
delinquent obligations and the end of the strike. I
simply cannot agree with such a speculative analy-
sis, and I choose not to follow the attenuated
course laid out by my colleagues in their finding
that Grindel and Stringer were engaged in protect-
ed activity."
Finally, my colleagues also assert that to deny
the protection of Section 7 of the Act to the type
of statements in question here "would nullify the
rights" guaranteed by that section. I fail to see—
and my colleagues fail to enlighten me—how deny-
ing the protection of the Act to the instant reckless
and malicious attack on the financial and operation-
al integrity of the Respondent, where the state-
ments in question are unrelated on their face to any
particular term or condition of employment, would
nullify the organizational, collective-bargaining, or
mutual aid and protection rights set forth in Sec-
tion 7 of the Act.14
13 In this regard, I do not, contrary to the assertion of my colleagues,
view the Respondent's payment of arrearages as "terminating the em-
ployees' right to discuss it or engage in other protected concerted activi-
ty." Had Grindel and Stringer simply "discussed" with Poleri the Re-
spondent's practice of making untimely payments into the welfare and
pension fund—the undisputed and openly acknowledged cause of the
strike—they might not have been denied reinstatement by the Respond-
ent. But instead of "discussing" the Respondent's practice of late fund
payments with Polen, Gnridel and Stringer simply launched into a
sweeping attack on the Respondent's fiscal and operational integrity—an
attack that I likely would have found to be unprotected in this case even
if it had been made during the strike, prior to the Respondent's payment
of overdue fund contributions.
14 Nor does Atlanta Newspapers, 264 NLRB 878 (1982), relied on by
my colleagues in this regard, persuade me to the contrary. In that case, a
nonunit employee was discharged for spreading a strike rumor She had
asked a supervisor whether he had heard that employees in the unit were
going to go on strike, and had later, under questioning, advised a man-
agement official that she had earher been told by another employee that
such a strike would occur. The Board found the discharge to be unlaw-
ful, on the grounds that the nonumt employee's remarks to the employ-
er's officials were related to the protected strike activity of the unit em-
ployees; the fact that the nonumt employee did not demonstrate that she
supported the rumored strike was not found to have disqualified her re-
Thus, for all the reasons discussed above, I find
that the statements of Grindel and Stringer dispar-
aging the Respondent's general financial and oper-
ational capability and integrity are beyond the
scope of the protection of Section 7 of the Act and
constitute just cause for the Respondent's denial of
reinstatement to these two employees. According-
ly, I would dismiss the complaint in its entirety,
marks as protected activity. Although I may not have reached the same
result in Atlanta Newspapers as the Board did, I find it unnecessary to re-
solve that question, because the case itself is so clearly inapposite to the
instant facts. Here, there are no indirect references to a rumored strike in
a different work unit; here, there are instead direct and dehberate dispar-
agements of an employer's financial and operational integrity, in a con-
text unrelated to any existing labor dispute. Thus, Atlanta Newspapers
provides no support for my colleagues' position in this case.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to reinstate employees who
have participated in a strike because of their par-
ticipation in protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make the employees unlawfully denied
reinstatement because of their protected concerted
activities whole for any loss of pay and other bene-
fits they may have suffered, with interest.
WE WILL remove from our files any references
to the unlawful failure to reinstate and notify the
employees unlawfully denied reinstatement in writ-
ing that we have done so and that we will not use
our unlawful Action against them in any way.
EmAaco,
Robert Kofman, Esq. and Larry Rappoport, Esq., for the
General Counsel.
Robert Ufberg, Esq. (Rosenberg and Ufberg), of Scranton,
Pennsylvania, for the Respondent.
DECISION
KARL H. BUSCHMANN, Administrative Law Judge.
This case arose on the filing of two charges on June 11,
1979, 1 one filed in Case 4-CA-10265-1 by William F.
1 All dates are 1979, unless otherwise stated.
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Grindel and the other filed in Case 4-CA-10265-2 by
Kevin Stringer. The consolidated complaint issued on
July 30 and alleged that the Respondent, Emarco, Inc.,
had violated Section 8(a)(1) and (3) of the National
Labor Relations Act by its failure and refusal to reinstate
the two Charging Parties pursuant to their unconditional
offers to return to work following a strike by Respond-
ent's employees. Respondent's answer, filed on August
10, denied that it had violated the Act and asserted that
unconditional offers to return to work had not been
made. A hearing was held on June 30 and July 1, 1980,
in Wilkes-Barre, Pennsylvania. The General Counsel's
brief, filed on August 26, 1980, submits the following
three issues:
(1) Whether the strike by Respondent's employees was
protected by Section 7 of the Act.
(2) Whether an unconditional offer to return to work
was made by or on behalf of William Grindel and Kevin
Stringer.
(3) Whether Grindel and Stringer engaged in such se-
rious acts of strike misconduct so as to lose the protec-
tion afforded employees by Section 7 of the Act.
Respondent's brief was filed on September 21, 1980.
On consideration of the entire record and my observa-
tion of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FAC"T
The Respondent, Emarco, Inc., is a Pennsylvania cor-
poration with its principal place of business in Hazelton,
Pennsylvania. Respondent is engaged in the construction,
repair, and service of elevators in northeastern Pennsyl-
vania and has purchased and received, during the past
year, goods valued in excess of $50,000 from firms locat-
ed outside the Commonwealth of Pennsylvania (Tr. 8-9).
During the material time, Respondent's president was Al
Makuta (Tr. 95), and its secretary treasurer and business
manager was John Makuta, Al Makuta's son (Tr. 15-16).
Respondent employed William Schreuder, William Grin-
del, Gerry Setta, and Kevin Stringer as mechanics (Tr.
25-26, 241), and Carl Makuta, classified as a helper. On
occasion, he performed office and sales work (Tr. 26,
28).
The International Union of Elevator Constructors,
Local 76 (the Union) operates within the Scranton!-
Wilkes-Barre area and is the collective-bargaining repre-
sentative of Respondent's employees.
The Union's business agent during all material times
was Michael Barrett (Tr. 78). The Union and Respond-
ent, as a member of the National Elevator Industry, Inc.
(NEII), had entered into a standard agreement, effective
from July 9, 1977, to July 8, 1982 (Tr. 281-282, G.C.
Exh. 11). This agreement provided for a full grievance
and arbitration procedure (G.C. Exh. 11, art. XV) and
contained a no-strike clause that read, in pertinent part,
as follows:
Par. 1 It is agreed by both parties to this agree-
ment that so long as the provisions herein contained
are conformed to, no strikes or lockouts shall be or-
dered against either party.. . .
Par. 2 No strike will be called against the Em-
ployer by the Union unless the strike is approved
by the International Office of the International
Union of Elevator Constructors. Sufficient notice
shall be given to the Employer before a strike shall
become effective.
Under this same agreement, Respondent was also obli-
gated to make payments on behalf of its employees to
the Union's welfare and pension plan (G.C. Exh 11, arts.
XVII and XVIII). However, Respondent had developed
a practice, between 1976 and 1980, of making late pay-
ments to the pension plan (Tr. 54-55, 202, 305-306, 321;
R. Exhs 3 and 4). In the past, Respondent was often 1
or 2 months, and sometimes 3 months late with its sched-
uled payments (Tr. 54-55, 321-312).
As of April, Respondent was delinquent in its payment
of the November 1978 through March 1979 contributions
to the plan, a period of 5 months. On April 3, Respond-
ent's employees sent Respondent a letter expressing their
concern over the nonpayment under the plan a because
the First Bank of Pennsylvania (the Bank) informed them
that it would no longer honor medical bill 3 or death ben-
efits and that the employees would not be eligible for un-
accumulated retirement benefits. The employees' letter
set forth the following ultimatum to Respondent (G.C.
Exh. 2):
Therefore, Emarco employees have decided that
if all monies due to the fund are not paid by April
20, 1979, said employees will not report to work.
On April 5, Respondent called a meeting of its me-
chanics at Misaro's Sun Valley Inn in Drums, Pennsylva-
nia (Tr. 18, 174, 253). John Makuta was Respondent's
spokesman; Gloria Makuta and Pat Grier, both secretar-
ies, were also present for Respondent. The mechanics
who were present were Grindel, Stringer, Setta, and
Schreuder, the latter as the main spokesman for the em-
ployees (Tr. 54, 128, 174). The participants discussed the
April 3 letter and the pension welfare problem (Tr. 19,
194, 265, 347), and the employees expressed their con-
cern about unpaid medical bills (Tr. 128, 195, 243). John
Makuta, Gloria Makuta, and Jerry Setta, an employee,
all testified that John's response to the April 3 letter was
that he "would take care of it" (Tr. 18-19, 244, 348).
Stringer recalled that John was going to discuss it with
his father, and that he stated "they were kind of tight on
money and they would either have to buy, parts or pay
the Pension Welfare or not have the parts." Stringer was
not clear as to what was going to be done about the
funds payment (Tr. 129, 146).. Grindel recalled that "it
was hashed around for a good half hour, 35 minutes,
anyway, Bank [sic] and forth, that this should be paid or
it shouldn't be paid" (Tr. 174-175). Grindel also was up
in the air about what was going to be done because
"John said he would try to have the money, he would
2 Union Business Agent Barrett as well as employees Grindel,
Schreuder, Setta, Thornteth, and Stnnger were all signatones to this
letter (G.C. Exh. 2).
3 One employee had two outstanding medical bills that were not hon-
ored by the Bank, at this time (G.C. Exh. 2)
EMARCO, INC. 841
let us know about a week ahead of time" (Tr. 195). Al-
though no direct reference to a possible strike was made
at the meeting, Grindel did tell Makuta that "it had to be
paid, we made an agreement among the men and that's
the way it has got to stand," an obvious reference to the
ultimatum of the April letter (Tr. 175, 195). Stringer tes-
tified that on April 6 he called John Makuta to ask if he
had discussed the pension and welfare problems with his
father, Al Makuta. John replied that they were still dis-
cussing it (Fr. 129-130, 154).
Respondent mailed the funds payment check on the
afternoon of Thursday, April 19 (Tr. 57, 61, 244-245,
271). At this time, John Makuta showed Bill Schreuder
the check and accompanying form to indicate that Re-
spondent had made the payment (Tr. 21, 57, 331-332).
Schreuder passed on this information to Stringer some-
time between April 20 and 23 (Tr. 147-148). Makuta tes-
tified that he thought the matter was settled as of April
19 and that there would not be a strike (Tr. 332).
On the afternoon of Friday, April 20, Grindel called
John Makuta to find out if payment had been made.
Makuta told him the check had been mailed (Tr. 191,
200-201). Grindel then explained that he was calling
during his shift because he wanted to determine whether
he should leave his tools at his current jobsite. He told
Makuta, "I would have to pack my tools if it wasn't
[paid]," as an obvious reference to the threatened strike.
Grindel later called Leigh of the First Pennslyvania
Bank and discovered that the Bank had not yet received
the check (Tr. 192). 4 In fact, subsequently, all the strik-
ers called Leigh at various intervals to inquire about the
payment (Tr. 148).
Over the weekend, the employees decided that if Re-
spondent's check was not at the Bank by Monday, April
23, they would not report to work (Tr. 166-167, 193).
Schreuder called the Bank early Monday morning, and
when he was informed that it had not received the
check, all four mechanics refused to report to work as
stated in the April 3 letter (Fr. 20, 193). Stringer contact-
ed Union Business Agent Michael Barrett sometime be-
tween April 20 and 23, after the employees decided to
strike (Tr. 167-168), but Respondent first learned of the
strike that morning, April 23, when Schreuder refused to
work (Fr. 21-22, 96, 247). Schreuder explained that
Union Business Agent Barrett told the men not to report
to work because the check had not been received at the
Bank (Tr. 22, 60, 62). The strike lasted until May 7 or 8
when the Bank finally received Responddent's Novem-
ber 1978-March 1979 payment check (Tr. 34-35, 102,
181-182, 277; G.C. Exh. 4).
On May 8, Setta and Schreuder returned to work after
Al Makuta had recalled them (Tr. 22-23, 35). However,
Respondent did not recall Grindel or Stringer.
6 When the Bank had not received Respondent's check by April 26,
Respondent stopped payment on the April 19 check and sent a new
check, special delivery, to cover the November-March payment (Tr. 63-
64, 275-276; R. Exhs. 1 and 2). Because the check was not certified, Re-
spondent had to wait until the check cleared before the Bank would say
that payment was made and authorized the employees to go back to
work (Tr. 64-65). The Bank notified Respondent that it had received
both checks on May 6 or 7 (Tr. 277)
On May 8, Union Business Agent Barrett called Union
Vice President George Koch 6 to inform him that Re-
spondent's employees engaged in a strike and that only
two of the four strikers had been reinstated (Tr. 84, 87,
89). Koch called John Makuta to find out why Grindel
and Stringer had not been put back to work. Makuta
told him that they had problems just getting back to
work, and assured Koch that the two men would be
back to work the following morning, May 9.6
On the morning of May 10, Grindel and Stringer went
to Respondent's jobsite at St. Joseph's Hospital in Hazel-
ton, Pennsylvania, to check whether anyone was work-
ing there (Tr. 132, 160, 183). Respondent was the sub-
contractor responsible for the construction of a hydraulic
elevator system (Tr. 106-107). As Grindel and Stringer
were leaving the site, Vito Poled, the general contractor,
came over to them and asked them to move their car
(Tr. 183, 205-206). One of the two men asked if anyone
was working on the elevator job. Poleri replied that they
were on strike. Grindel or Stringer then explained to
Poled that the stike was over, but that only two men
had been recalled (Tr. 132-133, 161-162, 183-164). When
Poled asked what had caused the strike, the men ex-
plained that the strike occurred because Respondent was
5 or 6 months behind in its pension and welfare pay-
ments. Poleri asked why Repondent had failed to make
these payments; they answered that Respondent did not
have the money (Fr. 133, 162, 184).
Poleri's testimony about this incident went further. He
testified that Grindel and Stringer told him they were on
strike "because they don't pay back pay" (Fr. 220, 228-
229). Poleri testified further that these two men made the
following remarks 7 about Respondent and about Al
Makuta personally (Tr. 221, 222, 228):
They told me, "why you give the job to
Emarco? These people don't work. They never pay
their bills. They don't have capital enough to do the
work. They ain't got no credit nowhere. They can't
finish the job."
That Al was no god damn good plus they said he
was a son-of-a-bitch.
. . . .
They should give the job to somebody else good,
because this company is no god damn good. . . .
"This job is too damn big for them. They ain't big
enough to finish the job. It will take a couple of
years to finish the job."
5 Koch had been Regional Director of the New York State New Eng-
land region since 1971 and union vice president since 1966 (Ti. 76-78).
Koch "pinch hits" for Pennsylvania Regional Director John McCarton
whenever he is unavailable (Tr 78, 86-87).
6 Makuta acknowledged that this conversation took place, but denied
that he promised the men would return to work the next day. Makuta
claims he told Koch that he would discuss tt with his father, but that he
saw no problem, and that the men would be back as soon as possible (Fr.
36, 71).
7 Grindel and Stringer denied making any of these comments (Fr. 133,
160, 184, 206-207)
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
They said they never go back to work again
unless they got back pay.
Poleri was an excitable witness, he had considerable dif-
ficulty in the English language, for example in under-
standing the questions of counsel and in expressing him-
self. He seemed confused at times and could not remem-
ber the date of this conversation, nor the day of the
week on which it occurred (Tr. 220, 224-225). However,
beyond his natural inclination to exaggerate, he had no
reason to misstate the incident. I therefore credit Poleri's
testimony, keeping in mind that the quoted language was
an exaggerated version of the actual statements of Grin-
del and Stringer. -
Later that day, sometime before noon, Grindel and
Stringer were driving past the Scranton Life Building in
Scranton, Pennsylvania, when they saw one of Respond-
ent's trucks. They stopped and saw Schreuder. Grindel
first spoke with Schreuder and then asked Al Makuta
about the work situation, stating, "You knew we wanted
to go back to work." Makuta replied that it was up to
them to call him. When Grindel mentioned that he had
called the other two back to work, Makuta said he
would be in touch (Tr. 85-86, 208, 290). That day Al
Makuta left word with his answering service to call
Grindel in the event of an emergency (Tr. 290). That
night Grindel was actually called to work on an emer-
gency basis, but refused because he was at a fellow em-
ployee's house and did not have the tools or his car with
him (Tr. 180-181, 290-291). On the morning of May 11,
Grindel called in and talked with the secretary, Pat
Grier, explaining why he had not responded to the emer-
gency call (Tr. 187, 208-209, 210).
On the morning of May 11, Al Makuta went to check
on the jobsite at St. Joseph's Hospital and spoke with
Poleri. Poleri recounted his version of the previous con-
versation with Grindel and Stringer. On hearing this,
Makuta testified that: "I blew my cork. When I heard
this, because I couldn't believe it from these two people,
who I trusted" (Tr. 98, 108). Makuta further testified
that, at this point, he made the decision not to rehire
Grindel and Stringer. He stated that: "[T]hey would
have went [sic] back to work. . . . When I went up on
the St. Joseph's job on Friday morning, and Vito Poleri
hit me with that, I just went through the overhead, I
couldn't believe that my men would speak so ill of me
. . . . That was the crowning glory as far as I was con-
cerned" (Tr. 307-308).
That afternoon, Koch called Al Makuta to see why
Grindel and Stringer had not yet been put back to work.
Makuta testified that he told Koch: "I will in no way
hire them back because they bad-mouthed me, called me
a son-of-a bitch, and I just flatly told him that I was
never going to take these people back again" (Tr. 286).
Stringer and Grindel were not recalled by Respondent
until July 20. By the time, they declined Respondent's
offer of reinstatement (Tr. 313-314).
Analysis
It is clear that the strike by Respondent's employees
was prompted by Respondent's failure to make its con-
tractually required payments to the Union's pension and
welfare plan, Although Respondent had made late pay-
ments in the past, they were approximately 5 months in
arrears at the time of the strike. Employees were under-
standably concerned because the Bank had ceased to
honor medical bills and had warned them of lost retire-
ment and death benefits. This concern was clearly ex-
pressed to Respondent in the employees' April 3 letter
and during the April 5 meeting. Two of the employees
promptly returned to work as soon as they were able to
confirm that payment had been effectuated, and Grindel
and Stringer, the other two employees were willing to
return to work on the same day. The strike, from April
23 to May 8, was no more than a protest against Re-
spondent's failure to comply with its contractual obliga-
tion.8
Respondent asserts, however, that the employees lost
the protection of the Act and, therefore their reinstate-
ment rights, by engaging in an illegal strike in breach of
the no-strike clause contained in article XIV of the
standard agreement. Because the strike was illegal and
employee conduct was unprotected, Respondent claims
that it was free to reinstate or not to reinstate the em-
ployees.
It is well established that an employee's right to par-
ticipate in an unfair labor practice strike is not waived by
a general no-strike clause contained in the collective-bar-
gaining agreement. Mastro Plastics Corp. v. NLRB, 350
U.S. 270 (1956). However, the Board has held that, in
the face of a no-strike clause, employees are free to par-
ticipate in only those unfair labor practice strikes that
"serious" or "flagrant" unfair labor practices. Arlan's De-
partment Store, 133 NLRB 802 (1961); Dow Chemical Co.,
244 NLRB 1060 (1979), enf. denied 636 F.2d 1352 (3d
Cir. 1980). In Arlan 's, the Board held an employee strike
in violation of a no-strike clause to be unprotected activi-
ty. The dispute, centered on the discriminatory discharge
of a fellow employee, was not deemed to be "serious" in
that it was not "destructive of the foundation of which
collective bargaining must rest" 133 NLRB at 808. In
Dow, the Board retained this general rule and held that
an employee strike, in protest of the employer's unilater-
al change in the work schedule, but also in violation of
the contractual grievance procedures, constituted pro-
tected activity.
Whether an employer's unfair labor practices are "seri-
ous" depends on their tendency to be "destructive of the
foundation on which collective bargaining must rest."
Mastro Plastics Cc'rp. v. NLRB„ supra, 350 U.S. at 280;
NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974). Exam-
ples are practices "such as massive discharges; complete
repudiation of the bargaining obligation; unlawful assist-
ance and support to a rival union; or a company cam-
paign, intended to fire unionists." 9 Were Emarco's unfair
labor practices, i.e., its failure to make timely payments
to the welfare and pension plans, so flagrant that it ad-
versely affected the established bargaining relationship
and undermined the contractual obligation so as to be
destructive of the very foundation on which collective
8 The complaint did not contam a separate violation of Sec. 8(a)(5) of
the Act.
9 Dow, supra, concurring opinion, and cases cited.
EMARCO, INC. 843
bargaining is based? On the record before me, I cannot
draw such a conclusion.
First, the employees could have challenged Respond-
ent's longstanding habit of making untimely payments to
the pension and welfare plans at any time under the
grievance procedure, and Respondent's unusually long
delinquency in April 1979 could equally have been re-
solved successfully under this procedure; for the record
shows that Respondent attempted to take corrective
action in response to the Union's letter of April 3 and the
subsequent meeting with the affected employees.
Second, the Respondent exhibited a cooperative atti-
tude towards the employees' legitimate concerns and ac-
tually attempted to make required payment prior to the
commencement of any strike. Emarco did not express an
intent to abrogate its contractual obligation, but encoun-
tered difficulties in its cash flow. They were the underly-
ing reasons for the delinquent payments.
Finally, the strike, seemed to be an overreaction by
the employees as a result of their distrust of Respond-
ent's ability to pay. Even after management showed to
one of the employees the letter and check addressed to
the Bank in an effort to allay their concerns, the employ-
ees struck until the Bank was able to confirm the pay-
ment. For the foregoing reasons, I cannot agree that Re-
spondent's unfair labor practices were of such a serious
nature so as to justify a fmding that the resulting strike,
which was not in accord with the provisions of the con-
tract, was protected activity. Respondent was according-
ly not obligated to reinstate the striking employees be-
cause employees who engage in an illegal strike are not
protected by Section 7 or 13 of the Act.
The record is, however, clear that Respondent's actual
reasons for this failure to reinstate Stringer and Grindel
were not the employees' strike activity but a combination
of lack of work and, especially, the "bad mouthing" inci-
dent on May 10. For two of the striking employees were
recalled on May 8, and Respondent expressed its inten-
tion to reinstate Stringer and Grindel as soon as possible.
Parenthetically, I do not agree with Respondent that
these employees failed to make an unconditional offer to
return to work. An application for reinstatement of those
two employees was made by Koch in his May 8 conver-
sation with John Makuta. Respondent's claim that this
call was merely a "check-up" to see why the men had
not been recalled is an obvious misinterpretation of the
signficance of the telephone call. Makuta understood
Koch's phone call for what it was, namely, a request for
reinstatement on behalf of Grindel and Stringer. John
Makuta admitted that the "gist" of Koch's call was that
"he [Koch] wanted to get the men right back to work."
Assuming that the men would be back to work the next
day, Koch did nothing more until Barrett informed him,
on May 11, that the men had not yet been recalled.
Koch again called Respondent and, this time, spoke with
Al Makuta. At that point, Makuta told Koch, that he
would not hire them back "because they bad-mouthed"
him. This response indicated that Makuta understood
Koch's call to be seeking, reinstatement for Grindel and
Stringer and that Makuta had rejected the offer. This re-
jection was reiterated in his May 25 letter to Barrett
(G.C. Exh. 9). Was the Respondent, therefore, obligated
to reinstate the two men based on the theory of "condo-
nation"?
Because Respondent initially reinstated two of the
strikers and then expressed its intention to reemploy
Stringer and Grindel, it might be argued that their strike
activity was "condoned" by their Employer and that the
two Charging Parties were entitled to reinstatement
absent any strike misconduct. 1 ° See St Luke's Memorial
Hospital, 240 NLRB 1180, 1187 (1979). Indeed, Respond-
ent concedes "that the sole reason the two alleged discri-
minatees were not reinstated was their remarks of May 9
or 10 to Vito Poleri about their company and its presi-
dent" and not their strike in violation of the "no-strike"
clause of the contract (R. Br. 24). But it is equally true,
as Respondent argues, that this reason does not reflect
any union animus. The condonation theory and the
above line of reasoning would lead to the anomalous
result that a respondent could be found to have unlaw-
fully discriminated against two employees in the absence
of any antiunion motivation.
Instead, I find, that when the four employees engaged
in the strike in violation of the contract, their conduct
was unprotected by the Act, and the law will not assist
them, even if the Employer condoned this conduct,
unless it engaged in subsequent discriminatory conduct
prompted by union animus.
CONCLUSIONS OF LAW
1. Respondent Emarco, Inc. is and was at all material
times an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, International Union of Elevator Con-
structors, is and was at all material times a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) or (3) of the
Act as alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
10 The employees' characterization of Makuta as a "son-of-a-bitch"
and their reference to Respondent's inability to pay its bills, lack of a
solid credit rating, and incapacity to finish a job did not constitute such
serious misconduct under the circumstances here so as to nulhfy their rein-
statement rights following protected activity The employees' statements,
apart from the name-callmg, were obviously not malicious falsehoods.
These remarks reflected, to an extent, the employer's actual inability to
meet its financial obligations