Fairmont Foods Co.

National Labor Relations Board - Board Decisions

Dec 9, 1974

215 N.L.R.B. 388 (N.L.R.B. 1974)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chesty Foods , Division of Fairmont Foods Company
and John C . Goodman . Case 25-CA-5951
December 9, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 21, 1974, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed a brief
in support of the Decision and also exceptions and a
supporting brief, and Respondent filed an answering
brief to the General Counsel's exceptions.
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, but only to the extent
consistent herewith.
The Administrative Law Judge found, and we agree,
that Respondent on October 25, 1973,' did not give
"verbal assurance" that it would forgive all of the em-
ployees at its Terre Haute, Indiana, plant, who par-
ticipated in an unprotected strike which took place that
day. The Administrative Law Judge also properly
found that Respondent's refusal to reinstate the seven
ringleaders,' who were discharged at the end of the
first workday after the strike, did not violate Section
8(a)(4) of the Act in the absence of preponderant evi-
dence that said refusal stemmed from Respondent's
desire to penalize them for filing unfair labor practice
charges. However, for reasons which follow, we do not
agree with the Administrative Law Judge's findings
that their termination violated Section 8(a)(1) of the
Act.
On the evening of Wednesday, October 24, Branch
Manager Harold Balagna and Plant Manager Leonard
Peek were advised by Todd Jorritsma and George
Hanks, who were respectively the union business agent
and the president, that it was probable that the em-
ployees might engage in a strike in breach of a nonstrike
clause in their collective-bargaining agreement.
Balagna responded that there was the possibility that
the employees would be terminated for doing so.
As indicated above, the strike, which was not author-
ized by the Union, commenced the next morning when
I The dates below refer to 1973
2 John C Goodman, Sharon Oliver, Keith Sparks, Donald Isle, David
Fox, Imogene Jewel, and Kathryn Sharp.
employees began picketing at or about 6 a.m. At or
about 8 a.m., Balagna spoke to Peek and Phyllis Hurst,
Balagna 's secretary and personnel head, and asked
them to conduct an investigation to identify the ring-
leaders of the strike. About 3 hours later, they reported
to Balagna and showed him a list containing the names
of the ringleaders.
On Thursday evening, Balagna and Peek met with an
ad hoc committee which, with one exception, was com-
posed of employees who were not on the Union's regu-
lar bargaining committee. As the Administrative Law
Judge correctly found, Balagna did not on that occa-
sion promise that he would condone the action of the
strikers.
At 5 a.m. on Friday, October 26, pursuant to a prior
commitment, Balagna left Terre Haute to conduct con-
tract negotiations in Centralia, Illinois, and returned to
his office at 4 p.m. At 6 p.m., Jorritsma called Peek to
advise him that the employees had voted to go back to
work on Monday, October 29. Peek then proceeded to
so inform the employees.
On Monday morning, the employees came to work
and Balagna arrived at his office between 7 and 7:30
a.m. About an hour later, Respondent Vice President
Al Stewart called Balagna who told Stewart that the
ringleaders had been "selected" and that termination
papers were being prepared for them on that day.
shortly thereafter, Balagna called Peek a'hd Hurst into
his office and asked if there were any additions or
deletions in the list of ringleaders. Upon their response
that no changes should be made therein, Balagna di-
rected that they prepare letters of termination which
were handed to the seven ringleaders at the end of their
shift, according to Respondent's customary practice.
It is clear from the foregoing that Respondent at no
time gave any indication that it condoned the un-
protected strike. Thus, as the Administrative Law
Judge found, Respondent on October 24 warned union
officials Jorritsma and Hanks that the employees might
be discharged if they engaged in a wildcat strike. At the
meeting on the following evening with the ad hoc com-
mittee, Respondent did not retreat from its previously
stated position that it might take disciplinary action
against employees if they participated in an unlawful
strike.
Contrary to the Administrative Law Judge, Respon-
dent's action in permitting the ringleaders to return to
work for 1 day before terminating them does not consti-
tute condonation of their role in the unprotected strike.
As the evidence set forth above demonstrates, Respon-
dent's official, Balagna, moved cautiously during the
limited time available to him in a diligent effort to
determine who the ringleaders were. It would have
placed an undue and unnecessary economic burden
upon both Respondent and the employees who wished
215 NLRB No. 43
CHESTY FOODS 389
to return to work to have delayed the reopening of the
plant until the completion of Respondent's investiga-
tion. Thus, we perceive no basis for finding that Re-
spondent condoned the action of the ringleaders of the
strike by permitting them to work for 1 day until it
made certain as to their identity. We therefore find that
Respondent did not violate-Section 8(a)(1) of the Act
by discharging the seven ringleaders on October 29.
Accordingly, we shall dismiss the complaint in its en-
tirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting in part and concurring in
part:
Contrary to my colleagues,- I would adhere to the
Administrative Law Judge's conclusion that Respon-
dent's discharge of the ringleaders of the unprotected
strike violated Section 8(a)(1) of the Act because the
terminations took place after Respondent condoned
their conduct by permitting them to return to work
along with the other strikers.'
As conceded in the majority opinion, Branch
Manager Balagna , who had already been alerted on
Wednesday evening, October 24, about the prospect of
a strike, took prompt steps when the strike began on the
following morning to ascertain the identity of the ring-
leaders. Thus, by 11 a.m., Plant Manager Peek and
Personnel Head Hurst completed their thorough 3-
hour investigation and gave Balagna a list of the seven
ringleaders.
As found by the Administrative Law Judge , Balagna
and -Peek met on Thursday evening with the members
of the ad hoc committee along with three union offi-
cials, including Hanks and Jorritsma, and, after several
hours of discussion of the complaints presented by the
committee, reached agreement that all grievances
would be adjusted to their mutual satisfaction. At the
end of the meeting, Balagna reflected his position about
resumption of work by all employees in the conciliatory
statement that "he would like to come . . . on the
[plant] floor on Monday morning and smile at every-
body and wave as he went by. ,4
As noted above, Balagna , as a result of the investiga-
tion by Peek and Hurst, learned on Thursday morning
exactly who the ringleaders were. Yet when he made
the foregoing statement on Thursday night about "ev-
erybody" being back at work on Monday morning,
Balagna gave no sign that Respondent reserved to itself
the privilege of disciplining any participants in the
work stoppage. Nor is there any evidence that Re-
spondent expressed such a reservation when Peek,
upon being apprised on Friday of the vote to end the
strike, told the employees to come to work on Monday
morning. Indeed, all employees were permitted to re-
turn to. work without any mention whatever by Re-
spondent's officials concerning possible punishment of
the striking employees.
The evidence also clearly demonstrates that Balagna
did not at any time between Thursday morning and the
reopening of the plant on Monday morning indicate the
need or desire for further investigation as to the identity
of the ringleaders. For, as noted above, Respondent's
officials, Peek and Hurst, completed their intensive
investigation on Thursday morning only a few hours
after the commencement of the strike. that Balagna,
prior to arriving at his office on Monday morning, had
no doubt as to who the ringleaders were is obvious from
his testimony that as early as 8 to 8:30 a.m. that day
he unequivocally told Respondent Vice President Stew-
ard that the ringleaders had been "selected."
In sum, the record indisputably shows that, despite
Respondent's completion of the investigation and its
knowledge of the identity of the ringleaders 3 days
before the resumption of work by all of the strikers on
Monday, Respondent at the conclusion of the Thurs-
day night meeting spoke affirmatively and uncondi-
tionally of the return of "everybody" to work and did
not at any time thereafter assert any reservation con-
cerning the possible disciplining of any strikers. Ac-
cordingly, I would find in agreement with the Adminis-
trative Law Judge that Respondent's conduct in
permitting all strikers to return to work constituted
condonation of all participants in the strike. I would
therefore adopt the Administrative Law Judge' s 8(a)(1)
finding and would order both reinstatement and back-
pay for all the dischargees.s '
5 Alabama Marble Company, 83 NLRB 1047 (1949), Brandy Helicopter
Corporation, 135 NLRB 1412 (1962), Poloron Products of Indiana, Inc.,
177 NLRB 435 (1969)
DECISION
STATEMENT OF THE CASE
3 However, I agree with my colleagues' adoption of the Administrative
Law Judge's other findings
4 As noted by the Administrative Law Judge, this statement is based on
the credited testimony of Union Business Agent Jorritsma Keith Sparks,
one of the employees who was also credited with respect to Balagna's
statement, testified corroboratively that Balagna said, "Come Monday
morning he wanted to go around and shake every one of his employees'
hand and say hi, how are you doing "
JOHN P. VON ROHR, Administrative Law Judge- Upon a
charge and an amended charge filed on November 19, 1973,
and January 30, 1974, respectively, the General Counsel of
the National Labor Relations Board, by the Regional Direc-
tor for Region 25 (Indianapolis, Indiana), issued a complaint
on March 1, 1974, against Chesty Foods, Division of Fair-
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mont Foods Company, herein called the Respondent or the
Company, alleging that it had engaged in certain unfair labor
practices within the meaning of Section 8(a)(1), (3), and (4)
of the National Labor Relations Act, as amended, herein
called the Act. The Respondent filed an answer denying the
allegations of unlawful conduct alleged in the complaint
Pursuant to notice, a hearing was held before Administra-
tive Law Judge John P. von Rohr in Terre Haute, Indiana,
on May 7 and 8, 1974. Briefs were received from the General
Counsel and the Respondent on June 17, 1974, and they have
been carefully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
In addition, the complaint alleges that Respondent violated
the Act by refusing to reinstate the above-named employees
for reasons proscribed by Section 8(a)(4) of the Act.
B. The Facts
With one principal exception , the facts are not in material
dispute. Teamsters Local 144 has represented Respondent's
production and maintenance employees for approximately 10
years. At all times material hereto the parties were bound by
two collective -bargaining agreements , one designated as the
Fairmont Foods Master Agreement, the other the Chesty
Foods Addenda to the Master Agreement. Not only does the
Master Agreement contain a no-strike clause,' but section
31.10 thereof further provides in pertinent part as follows:
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Maryland corporation maintaining its
principal office and place of business at Terre Haute, Indiana,
where it is engaged in the manufacture and sale of food snacks
and related products. During the calendar year preceding the
hearing herein, the Respondent purchased goods and materi-
als valued in excess of $50,000 which were shipped to it from
points and places outside the State of Indiana. During the
same period it sold and shipped products valued in excess of
$50,000 from its Terre Haute facility to points and places
located outside the State of Indiana.
The Respondent concedes, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers Local
Union No. 144 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issue
On October 25, 1973, Respondent's employees engaged in
a strike in breach of a no-strike clause in the collective-bar-
gaining agreement. All of the striking employees were permit-
ted to return to work on October 29, but at the end of the day
seven of the ringleaders were discharged. The issue in this
case is whether, under the circumstances herein presented,
Respondent condoned the unprotected activity of these em-
ployees when it permitted them to return and remain at work
for I full day. The seven employees thus terminated are as
follows:
John C. Goodman David Fox
Sharon Oliver Imogene Jewel
Keith Sparks Kathryn Sharp
Donald Isle
While the Union shall undertake every reasonable means
to induce such employees to return to their jobs during
any such period of unauthorized stoppage of work men-
tioned above, it is specifically understood and agreed
that the Company shall have the sole and complete right
of discipline , including discharge , and such Union mem-
bers shall not be entitled to have any recourse to any
other provisions of this Master Agreement.
On the early evening of October 24, 1973, a Wednesday,
Harold Balagna , the branch manager who is in charge of the
Respondent plant, and Leonard Peek, the plant manager,
were summoned to the union hall by Todd Jorritsma, the
union business agent . There they met with Jorritsma and
George Hanks, the union president, who advised them that
it was probable that the employees might go on strike the next
day. During the discussion which ensued , Balagna advised
that there was the possibility of the employees being ter-
minated if they did 2
It is undisputed that the entire maintenance and produc-
tion unit commenced a strike on the morning of Thursday,
October 25. The strike activity started with the appearance
outside the plant of a small group of employees who began
picketing at or about 6 a.m. Suffice it to note that the reason
for the strike involved the employees' dissatisfaction with
certain working conditions at the plant
At or about 8 a.m. on October 25, Balagna spoke to Peek
and his secretary and personnel head , Phyllis Hurst, and
asked if they could identify the ringleaders of the strike. Upon
their reply that they thought they could, but wished to look
into the matter further to be certain, Balagna directed them
to conduct an investigation to this effect. After doing so,
Hurst reported back to Balagna at or about 11 a .m., bringing
with her a list of names of employees , the same as the alleged
1 Specifically, art 31 provides. "The Union and the Company agree that
there shall be no strike , lockout, tieup or legal proceedings without first
using all possible means of settlement as set forth below "
2 Credited and corroborative testimony of Balagna and Peek I do not
credit the testimony of Hanks that Balagna did not give any such warning
Hanks impressed me as a weak and vacillating witness whose testimony at
times was simply implausible For example , at one point, Hanks testified
that he had "no idea" why Balagna and Peek came to the union hall on this
occasion and he also claimed that at this point he was unaware that the
employees had threatened to strike Under all the circumstances , I regard
this testimony as incredible
CHESTY FOODS
discriminatees herein, which she identified to him as being
,the ringleaders of the strike.'
On the afternoon of the same day, October 25, the em-
ployees held a meeting at the union hall and elected an ad hoc
committee to meet with the Employer. After several tele-
phone calls from union representatives, Balagna finally
agreed to meet with this committee (which, with the excep-
tion of employee William Tomes, was not the same as the
regular union bargaining committee ) later in the day. This
meeting took place at the plant early that evening, at which
time Balagna and Peek met with the seven employee members
of the ad hoc committee, together with Hanks, Jorritsma, and
a third union representative, one Glenn Rogers. This meet-
ing, which lasted several hours, was largely spent in discuss-
ing the various employee complaints. The record appears
undisputed that during this discussion the parties reached
agreement that all grievances would be adjusted to their
mutual satisfaction. There is, however, a substantial dispute
in the testimony as to certain remarks alleged to have been
made by Balagna at the end of the meeting after-resolution
of the disputed items. I turn to this testimony now.
Three members of the ad hoc committee who testified con-
cerning the concluding remarks were Keith Sparks, Patricia
Kahmi, and Donald Isle. Sparks testified that near the end of
the meeting Sharon Oliver asked Hanks "if there would be
any disciplinary action against anybody," whereupon Hanks
asked Balagna "if there would be any disciplinary action."
According to Sparks, Balagna replied that "as far as he was
concerned there was no animosity and there would be no
retaliation against anybody." It is noteworthy, however, that
in his pretrial affidavit, taken on December 6, 1973, Sparks
stated , "Harold Balagna said at the meeting that as far as he
was concerned there was no animosity, that there would be
no retaliation . I don't recall his exact words but got the impres-
sion that there would be no retaliation against anybody. "(Em-
phasis supplied.) Kahmi testified that Oliver and two other
committeemen asked if they could return to work the next
day. She said that after Balagna stated that Monday would
be better and that they would return then, Balagna added
"that no reprisals or actions would be taken against anyone."
Isle testified that at the end of the meeting Balagna stated,
inter alia, "that there would be no retaliation on anyone that
was involved in the matter that took place." Isle did not assert
that Balagna made the statement in response to any question
from any person at the meeting, it therefore appearing from
his testimony that the statement by Balagna was volunteered.
Union representative Jorritsma testified, "Mr. Balagna made
a statement that there would be no retaliation , no harassment
or nothing to anybody over this labor dispute that we had."
Concerning the above, I turn to the testimony of Respon-
dent 's witnesses Balagna and Peek . Balagna testified that near
the end of the meeting Kahmi asked the question, "What
happens Monday? Do we get our asses ripped out for this?"
He responded, he said, by stating "that there would be no
reprisals against this committee for bringing these items to our
3 This list, G C Exh. 5, also contains the names of a number of other
employees However, the names identified as the strike ringleaders were
separately set forth on the lower right hand side of the yellow legal size
paper on which they were written Although Balagna did not retain this list,
it is undisputed that this list was shown to him and that at this time he was
apprized by Hurst of the names of the seven employees in question
391
attention." (Emphasis supplied.) Peek testified that Kahmi
"asked a question to the effect of what was going to happen
to them on Monday morning." Peek testified that Balagna's
response was that "there will be no repercussions to these
people whatsoever for bringing any of the items that they had
brought to him."
There remains for discussion the testimony of two further
General Counsel's witnesses on the subject. Union President
Hanks testified that at the end of the meeting Balagna made
the statement "that he would take no retaliation or hold any
animosity toward these people over this incident." Not only
did Hanks fail to state (as did two other General Counsel's
witnesses) that this was in response of any question that he
asked Balagna concerning possible retaliation, but upon close
questioning Hanks insisted that to the best of his recollection
Balagna used the exact words "these people." Sharon Oliver,
who also testified to this aspect of the meeting, simply as-
serted on direct examination that "Mr. Balagna at the end of
the meeting said that there would be no repercussions or no
disciplinary action taken against anyone." Significantly,
however, on cross-examination Respondent brought out that
in her pretrial affidavit dated December 5, 1973, Oliver stated
as follows.
At the end of the meeting I had the impression we had
finally gotten through to the company. Also that we
weren't troublemakers or anything but were generally
interested in conditions and wanting to do something
about them. Mr. Balagna said that he appreciated us
coming and they would do their best to correct all the
situations. He also said there would be no actions or
repercussions taken against the committee. [Emphasis
supplied.]
In resolving the credibility issue posed by the testimony set
forth above, it is well to again point out that it is the burden
of the General Counsel to prove his case by a preponderance
of the evidence. Clearly, in instances of a conflict in the
testimony, this must include his reasonably establishing that
the witnesses called by him are to be believed over the wit-
nesses called by the Respondent. Without writing a treatise
on all the ramifications of this subject, I simply find that on
the record itself the General Counsel has not met this burden
here The question, in short, is whether the Respondent at the
meeting in question gave verbal assurance that all the em-
ployees would be forgiven for participating in the unlawful
strike. Upon the entire record, I find that the General Coun-
sel has not established by credible evidence that it did. In so
finding, I regard it as highly significant that two of the Gen-
eral Counsel's own witnesses gave testimony supportive of
the testimony given by Balagna and Peek that Balagna merely
told the group that no retaliation would be taken against the
employee-members of the committee who were then present.
Thus, I would so construe the testimony of Union President
George Hanks who testified that Balagna, in making the
remark, referred only to "these people." More importantly,
General Counsel's witness Sharon Oliver stated specifically in
her pretrial affidavit that "Balagna said there would be no
actions or repercussions taken against the committee." Not
only was this statement given far more recently than was her
contradictory testimony at the hearing, but in a sense the
statement quoted, in light of the issue presented, must fairly
be regarded as an admission against interest.` In addition,
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and as reflected above , even the testimony of the other em-
ployee witnesses shows various inconsistencies which, al-
though of a lesser nature, cannot be overlooked in view of the
testimony as a whole.
There were two further topics of discussion during the
October 25 meeting which are in dispute. Concerning these,
however, I do not deem it necessary to detail all the tes-
timony . First ,'and in essence , the union representatives and
employee witnesses all testified that Balagna stated that he
"would like to come up on the floor on Monday morning and
smile at everybody and wave as he went by."5 Although this
was denied by Balagna , with Peek testifying that he did not
"recall" any such remark , I do not believe the testimony of
the General Counsel 's witnesses on this subject to have been
fabricated and find that Balagna did make a statement of this
nature . There also is some conflict as to whether Balagna
proposed , but the committee refused , that the employees re-
turn to work the next day, a Saturday. Suffice it to say that
on the record I am satisfied that the committee advised
Balagna that they would hold a meeting with the employees
the next day to explain that agreement on all items had been
reached , and further, that Balagna and the committee tacitly
understood that there would be no problem with the em-
ployees and that they would all return to work the following
Monday . This in fact is just what happened: the employees
met on Friday and all reported to work on Monday.
It is undisputed that all of the employees , including the
seven discriminatees , were permitted to return to work on
Monday morning, October 29. At the end of the day, and
after having worked a full shift , the seven employees were
called into the office, one at a time , and were handed a notice
which advised them they were being discharged.6
Balagna testified that he was solely responsible for the
decision to terminate the seven employees and that he made
this decision without prior consultation with his company
superiors or legal counsel . He further testified that he spoke
to Peek and Hurst around 9:30 or 10 a .m. on Monday and
asked if they felt any additions or deletions should be made
to the "list" of employees they had given him on the morning
of October 25 which identified those employees they had
determined as being the ringleaders of the strike . Upon their
response that no changes should be made , Balagna directed
that they prepare the letters of termination . These, as in-
dicated , were given to the employees at the end of the day.
However , it should be noted that , according to Balagna's
testimony , on the morning of October 29, he received a tele-
phone call from Al Stewart , a company vice president located
in out-of-town headquarters , and at this time advise Stewart
"that we had selected what we thought was the ringleaders
and were preparing termination papers for them this day,
The record reflects that on May 5, 1974, which was 5 days prior to the
hearing herein, the General Counsel obtained a second affidavit from Oliver
in which she changed her version of the statement given in her original
affidavit dated December 5, 1973 Although Oliver testified that she was
initially confused between what was said at the October 25 meeting and a
later telephone conversation which she overheard between Balagna and
Hanks on the subject , upon the entire record, I do not accept this as a
reasonable explanation for her so changing her testimony
5 The quoted testimony is that of Jorntsma
6 The notice read . "This is official notice of termination of your employ-
ment with Chesty Foods as of October 29 , 1973, according to Article 31,
Section 31 10 of the Master Agreement " It was signed by Peek
meaning Monday . Balagna conceded that this call was re-
ceived between 8 and 8.30 a.m. prior to his talking with Peek
and Hurst . From this it would appear that Balagna had
reached a decision to terminate the seven employees prior to
consulting Peek and Hurst.
C. Conclusions as to the Discharges
From the facts above set forth, I have previously found that
Balagna did not, during the meeting of October 25 with the
union representatives and the ad hoc committee, affirmatively
assure them that no retaliation would be taken against the
employees for having breached the contract by engaging in
the strike. Accordingly, and to the limited extent that Re-
spondent did not verbally promise unconditional forgiveness
of the striking employees during this meeting, I find that
Respondent cannot be charged with estoppel.
Respondent's act in advising the employees that they could
return to work and its in fact permitting all of them , including
the alleged discriminatees, to return to work is, however,
another matter. On this point, Board precedent clearly
upholds General Counsel's contention that the Act was vi-
olated. Thus, in Alabama Marble Company,' the facts of
which closely parallel those in the instant case, the Board
stated as follows:
We agree with the Trial Examiner that the Respondent
discharged Charles T. Adair, W. A. Wilson, W. A.
Adams, and C. M. Kinser because of their participation
in the work stoppage of October 6, 1974; and that, al-
though the work stoppage was in breach of a no-strike
clause contained in an existing contract , the Respondent
waived or condoned such conduct by permitting them to
return to work. The Respondent contends that there was
no waiver because it had no knowledge , at the time that
the Respondent agreed to allow these four union officers
to resume work, of the role played by them in the work
stoppage . We find no merit in this contention . At that
time, the Respondent knew that the employees had en-
gaged in a work stoppage in breach of contract ; yet the
Respondent agreed to permit all employees to return to
work without stipulating that it reserved to itself the
privilege of disciplining any participating in the work
stoppage.
Similarly , in Brantly Helicopter Corporation, 135 NLRB
1412 (1962), the Board stated as follows with respect to the
employer 's reinstatement of employees who had participated
in a strike which was in violation of a no-strike clause:
. . . Respondent decided the next working day that it
would take no disciplinary action against any of the
participants. Its decision must have taken into account
the almost certain probability that concerted activity of
such scope had to be proposed by someone, yet it neither
advised the absentees that it considered anyone
primarily responsible for the incident or that it intended
to conduct any further investigation of the matter. Its
decision , in short , was to forgive and forget all aspects
of the incident , including both leadership and participa-
7 83 NLRB 1047
CHESTY FOODS 393
tion. Having once condoned the matter, Respondent's
subsequent change of heart and determination to punish
Lynch for his reputed instigation of the concerted ac-
tivity was in reprisal for his engagement in such activity.
While the rationale in the above cases is predicated on the
principles on condonation and waiver, in the more recent case
of Poloron Products of Indiana, Inc., 177 NLRB 435 (1969),
the Board gave an added reason for finding the Act to have
been violated in cases of this nature, namely, that "the policy
of the cases appear to be that strike settlements are to be
favored, and that employers therefore must be held to pro-
mises made as part of such settlements."8
Returning to the facts in the instant case, perhaps a more
sympathetic view of Respondent's action could be taken if
Balagna had given some reasonable explanation for his defer-
ring the discharges subsequent to his reinstating them for a
full workday. This, however, he failed to do. Thus, as hereto-
fore related, the names of the suspected ringleaders were
provided Balagna by his subordinates after they conducted an
investigation at his behest on the morning of the first day of
the strike. Although on Monday morning after the plant
reopened Balagna asked these subordinates if they had any
additions or deletions to make to this list, it is significant that
at no time did he request that they conduct any further
investigation before answering the question. Moreover, and
perhaps more importantly, the evidence is indisputably clear
that Respondent gave no manifestation whatsoever that it
intended to reserve the right to leave open any question con-
cerning possible discipline of any of the striking employees.
Indeed, the failure to express any such reservation was one
of the principal factors in the Board's finding of condonation
in the cases cited above.
The cases relied on by Respondent are, with one exception,
factually distinguishable from the instant case. The excepted
case is Packers Hide Association, Inc., 152 NLRB 655 (1965),
which involved a typical situation wherein the Board held
that an employer condoned an employee's participation in an
unprotected strike (which was in violation of a no-strike
agreement) by inviting him back to work and then permitting
him to work. Differring with the Board's theory of condona-
tion, the U.S. Circuit Court of Appeals reversed the Board
and denied enforcement.' However, in the absence of any
acquiescence by the Board with the Court's decision on the
principle here involved, which my search of the cases reveal
there was not, I am obliged to follow Board rather than Court
precedent. 10 Accordingly, and in view of all the foregoing, I
find that Respondent's discharge of the previously named
seven striking employees was, as alleged in the complaint,
violative of Section 8(a)(1) of the Act."
8 The above language is that of the Administrative Law Judge, which the
Board adopted Cf Ohio Stove Company, 180 NLRB 868 (1970)
9 Packers Hide Association, Inc v NLR B, 360 F 2d 59 (C A 8, 1972)
10 However, see Jones & McKnight, Inc v NL R B, 445 F 2d 97 (C A
7, 1971), enfg 183 NLRB 82 (1970) There the U S Court of Appeals for
the Seventh Circuit, in a similar factual situation, approved the Board's
principle of condonation as explicated in the cases heretofore cited
" Under the factual circumstances of this case, I deem it unnecessary to
decide whether Respondent's conduct was violative of Sec 8(a)(3) of the
Act Although the Board found an 8(a)(3) violation in the Packers Hidecase,
supra, it is noteworthy that there the employees walked out at the behest
of a union steward In the instant case it appears clear that the Union was
D. The Alleged Violation of Section 8(a)(4) of the Act
The collective-bargaining agreement provides for the es-
tablishment of a Joint Area Committee, consisting of an equal
number of persons appointed by the Company and the Union,
for the purposes of hearing grievances at a certain level in the
contract's grievance procedure. Grievances having been filed
by the discriminatees herein and having been processed
through the initial steps of the grievance procedure, a meeting
of the Joint Area Committee was held on December 13, 1973,
in St. Louis, Missouri, to give further consideration of these
grievances. After holding a meeting and being unable to reach
agreement, the Committee directed Hanks and Balagna to
discuss the matter privately to try to reach an agreement.
They thereupon proceeded to a corner of the ballroom where
the Committee meeting had been held and had a brief discus-
sion between themselves about the matter. Hanks testified
that during this conversation Balagna made the statement,
"George, I think this would have all been settled had not
charges been filed."" Assuming this statement to have been
made, I think it clear that this statement is insufficient to
prove an 8(a)(4) violation." To continue with the narration,
at the end of the aforesaid conversation on December 13,
Hanks and Balagna agreed to meet that evening in Hanks'
hotel room to continue their discussion concerning possible
reinstatement of the seven employees. This they did. Con-
cerning this conversation Hanks testified that Balagna at this
time stated, inter alia, that on the day he received the unfair
labor practice charges he had made up his mind that the
employees were going to stay fired and that his mind had not
changed. Balagna denied that anything was said relating to
the unfair labor practice charge during this meeting. He testi-
fied that after some discussion concerning the equities of
possibly reinstating the seven strikers, he finally told Hanks,
"I am going to give it every consideration on the basis of what
you have told me tonight, and I will meet with you Tuesday
morning [December 18] in my office and give you my an-
swer." He testified that Hanks agreed to this I credit Balagna
over Hanks concerning this conversation. Indeed , Balagna
testified without contradiction that Hanks, accompanied by
Jorritsma, did come to his office on December 18 to ask for
his position concerning the matter Again without contradic-
tion, Balagna testified that on this occasion he advised the
union representative that he had "thought it through and that
the seven people were to remain discharged."
Upon all the foregoing, I find that the General Counsel has
not established by a preponderance of the credible evidence
that Respondent violated Section 8(a)(4) of the Act. Rather,
not involved in initiating the strike, rather that the strike activity occurred
at the behest of the employees themselves
i2 The initial charge, which included the charge pertaining to the seven
discnmmatees herein, was filed on November 19, 1973
13 A number of employees who were present at the Joint Area Committee
meeting testified that they heard a snatch of the Balagna-Hanks conversa-
tion relating to the charges The testimony of these employees was to the
effect that Balagna used stronger language then than testified to by Hanks
Not only was this conversation a private one, but the ballroom at this point
was crowded and noisy, with these employees some distance away More
importantly, the testimony of these employees on the subject was substan-
tially inconsistent and contradictory I deem this testimony to be highly
unreliable and do not credit it
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record is clear that Respondent consistently took the
position-and so notified the Union throughout the griev-
ance procedure-that it discharged the seven strikers solely
because it regarded them as the instigators of the unprotected
strike. Accordingly, I shall recommend that the alleged
8(a)(4) violation be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that Respondent discharged John C.
Goodman, Sharon Oliver, Keith Sparks, Donald Isle, David
Fox, Imogene Jewel, and Kathryn Sharp, I shall recommend
that Respondent be ordered to offer them full and immediate
reinstatement to their former positions or, if these positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they may
have suffered from the date of their discharge to the date of
Respondent's offer of reinstatement. Backpay shall be com-
puted in accordance with the formula in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon com-
puted in the manner and amount prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging John C. Goodman, Sharon Oliver, Keith
Sparks, David Fox, Donald Isle, Imogene Jewel, and Ka-
thryn Sharp, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act and is thereby engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not engaged in the other unfair
labor practices alleged in the complaint.
[Recommended Order omitted from publication.]