Ohio Stove Co.

National Labor Relations Board - Board Decisions

Jan 22, 1970

180 N.L.R.B. 868 (N.L.R.B. 1970)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Stove Company and Ernest Lindsey. Case
9-CA-4915
January 22, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On July 16, 1969, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the
complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case and finds merit in
Respondent's exceptions. Accordingly, the Board
has decided to dismiss the complaint.
The Trial Examiner found that the Charging
Party, Ernest Lindsey, had engaged in a walkout in
violation of a no-strike clause in an existing
collective-bargaining agreement, that Respondent
could have discharged him for such unprotected
activity but that it condoned his conduct, and by
discharging him thereafter for the same strike
activity, Respondent violated Section 8(a)(1) of the
Act. We do not agree that the evidence establishes
that Respondent condoned Lindsey's unprotected
activity and, accordingly, find that the discharge was
not unlawful.
Respondent and International Molders and Allied
Workers Union, AFL-CIO, herein called the
Molders, are parties to a collective-bargaining
agreement which contains a clause prohibiting
strikes or lockouts during the processing of a
grievance. Lindsey was employed in the cleaning
department on the night shift; he was also the Union
steward for that department's employees on his
shift.
Molders on the night shift walked out over a
grievance. Cleaning department employees were not
involved in the dispute. One of the cleaning
department employees asked Lindsey, as Union
'Respondent also filed a motion for oral argument In our opinion the
record, the exceptions , and brief adequately present the issues and positions
of the parties We therefore deny the motion.
steward, what to do in view of the walkout by the
molders. Lindsey consulted with Union President
Knapp who advised him that the problem was that
of the molders alone, that the matter was going to
be taken up as a grievance on the following day, and
that the cleaning department employees should take
no action. Notwithstanding this advice, a number of
the cleaning department employees decided that they
would walk out. The Trial Examiner found that,
although Lindsey had not originated the idea of the
walkout and did not overtly encourage it, he did
nothing to discourage it and was one of the six-odd
cleaning department employees who made the first
move away from their work places. He was the first
to punch out and was followed by another employee,
James Risner. As a third employee started to punch
out, Supervisor Carl Deemer stopped him and said,
"You're not supposed to punch out on a wildcat."
Thereupon, all but one of the cleaning department
employees left the plant. A few minutes after the
men had walked out, Plant Superintendent Peyton
told the employees on the outside that, if they did
not come back to work, they were fired. Lindsey
asked Peyton if he had the authority to take such
action. Peyton emphatically replied that he did.
Deemer and Knapp then urged the employees to
return to work. Responding to these appeals, the
men began to reenter the plant. Deemer stopped
Lindsey and Risner, however, and said that the rest
of the men could go on in but, as for Lindsey and
Risner, they had punched out. Knapp tried to get
Deemer to change his mind, to allow the men to
return to work but lose pay only for the period of
the walkout. Deemer refused. Knapp then suggested
that Deemer talk with Superintendent Peyton.
Deemer did so and reported thereafter that it was
Peyton's ruling that the two men were suspended for
3 days and were to report to Personnel Manager
Weems in the morning.
On the following morning Lindsey and Risner
went to Weems' office where each received a notice
suspending him for 3 days "pending investigation of
the charge of agitating a work stoppage on
September 19, 1968 and punching out without
notifying your supervisor."
Meanwhile, Respondent investigated the
participation by Lindsey and Risner in the walkout
and, on September 23, held separate hearings for
the two suspended employees. At Risner's hearing
no one testified that he had played any role in
causing the walkout. But at Lindsey's hearing,
Deemer testified that Lindsey had waved a hand to
employees and said, "Let's go." Lindsey denied that
he had instigated the walkout.
On September 26, Respondent announced its
decisions. Risner was permitted to return to work
on September 26, but Lindsey was notified that he
was discharged "because of your actions
immediately prior to and your participation in an
unauthorized strike . ." On the same day,
Respondent informed the Molders that the action
180 NLRB No. 134
OHIO STOVE COMPANY
was necessary because of the history of "wildcat"
strikes at the plant.
The Trial Examiner found condonation of the
unprotected strike in the statements made by Peyton
and Deemer urging the men to reenter the plant and
return to work.
"Condonation necessarily contains the elements of
foregiveness and an intention of treating the
employees as if their misconduct had not occurred."2
We find, contrary to the Trial Examiner, that the
General Counsel has not proved by a preponderance
of the evidence that Respondent condoned Lindsey's
conduct.
The whole strike situation began and ended in 15
minutes. Immediately after the men walked off their
jobs Respondent's officials, Peyton and Deemer,
ordered them back, as did the Union president. As
soon as the men began to return Deemer stopped
Risner and Lindsey from returning. It was only on
Union President Knapp's urging and, after
discussion with Superintendent Peyton, that Deemer
told the two men that they were suspended. We do
not view the few minutes interval between the time
company officials told the men to return and
Deemer's telling Risner and Lindsey that they could
not do so as a condonation of the two employees'
walkout action. We interpret the fact that
Respondent undertook an investigation the day after
the suspension, not as suggesting an "afterthought"
to counteract an earlier condonation as the Trial
Examiner stated, but as showing that Respondent
maintained the same unforgiving attitude that
originally prompted it to suspend Lindsey. Further,
we read Respondent's reasons as given in the
suspension notice and discharge letter to Lindsey as
consistent with showing that Respondent did not
forgive. As Lindsey's conduct was unprotected, and
Respondent had not condoned his conduct, we find
that Respondent did not violate Section 8(a)(1) of
the Act by discharging him. We shall therefore
dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
'bubo Manufacturing Corporation , 148 NLRB 1114, 1119, enfd 353
F 2d 1570 (C.A. 6), See also Complete Auto Transit , Inc. 134 NLRB 652,
657-659
TRIAL EXAMINER'S DECISION
HAROLD X. SUMMERS, Trial Examiner: In this
proceeding, the General Counsel of the National Labor
Relations Board (herein called the General Counsel and
the Board, respectively) issued a complaint' alleging that
Ohio Stove Company (herein, Respondent) had engaged
in and was engaging in unfair labor practices within the
meaning of Section 8(a)(I) and (3) of the National Labor
Relations Act (the Act). The answer to the complaint (as
869
subsequently particularized ) admitted some of its
allegations , denied others, and pleaded affirmatively; in
effect, it denied the commission of any unfair labor
practices . Pursuant to notice , a hearing was held before
me at Portsmouth , Ohio, on February 13 and 14, 1969; all
parties were afforded full opportunity to call and examine
and to cross-examine witnesses , to argue orally, and
thereafter to submit briefs.
The sole question involved is whether Ernest Lindsey,
the charging party herein, was discharged by Respondent
on September 26, 1968, and thereafter not reinstated, (1)
because of his activities on behalf of , his sympathy
toward , and his membership in a local of International
Molders and Allied Workers Union, AFL-CIO-CLC, in
order to discourage membership therein, and/or (2)
because he engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
Upon the entire record in the case, including my
evaluation of the reliability of the witnesses based upon
my observation of their demeanor , I make the following.
FINDINGS OF FACT
1. COMMERCE
Respondent, its principal place of business at
Portsmouth, Ohio, is an Ohio corporation engaged in the
business of manufacturing metallic castings. During the
year preceding the issuance of the complaint in this case,
which is a representative period, Respondent purchased
and caused to be shipped directly to its plant at
Portsmouth from points outside the State of Ohio, parts,
supplies, and equipment valued in excess of $50,000, and
it sold and shipped directly from the plant to points
outside the State products valued in excess of $50,000.
Respondent is an employer engaged in commerce
within the meaning of the Act
II. THE UNION
International Molders and Allied Workers Union,
AFL-CIO-CLC, Local 1072 (herein called the Union), was
a party to a collective-bargaining agreement with
Respondent which was in effect at all times material
herein . I find that the Union is a labor organization
within the meaning of the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Chronology of Events
Since at least 1947, Respondent and the Union have
engaged in collective bargaining over the working
conditions of various of Respondent's employees. The
relationship has been marked by a series of
collective-bargaining agreements, the next to the last of
which - the one in effect at all times pertinent herein -
was a 3-year contract whose term commenced on
November 8, 1965. This agreement, among other things,
contained the following provisions:
The complaint was issued on December 23, 1968 The charge initiating
the proceeding was filed on October 14, 1968.
'At the time of the hearing , the number had been changed to 45
'Neither the local nor the international union was named in the
complaint as a party to this proceeding , nor did either file an appearance
at the hearing (An international representative did appear on behalf of
Ernest Lindsey, the charging party.)
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article III, Grievance Procedure. . . . Step 4. In the
event that the grievance is not disposed of [in the first
three steps described], the Federal Mediation Service
will be requested to intervene in an attempt to settle the
grievance . 5. There will be no strike , slow-down,
sit-down, or lockout, on the part of either the Union,
the Employees, or the Company, until all steps of the
grievance procedure have been exhausted. 6. Any
employee of the Company participating in a strike,
slow-down, or sit-down at any time prior to a period of
30 days after the Federal Mediation Service is
requested to intervene (under Step 4), may be
discharged by the Company without recourse to
grievance procedure.
Article V, No-Strike Provision. 1. The Union and
the employees agree that for the duration of this
agreement . . . there shall be no call, authorization, or
condoning of strikes, or any acts of similar nature to
interfere with production, nor picketing of any kind or
form whatsoever, however peaceable; and the Company
agrees that there shall be no lock-out for the duration
of this agreement. . [except that nothing in this
article shall restrict the Union or employees as to a
course of conduct with respect to a grievance matter 30
days after step 4 in article III has been complied with.]
In September 1968,' Ernest Lindsey, the charging party
herein , was employed by Respondent in its cleaning
department,' an adjunct of the foundry. Having been
originally hired in late 1966, he had performed a number
of foundry-related jobs; now, on the night shift, he sorted
castings at the so-called Wheelabrator, a shaking machine.
During the past few months, he had also acted in
another capacity. Sometime during the summer of 1968,
the employees in the cleaning department on his shift had
selected him as their Union steward, in which capacity he
had represented them with respect to their work problems.
It is Lindsey's discharge on September 26 which gives
rise to the instant proceeding. At the outset, the General
Counsel, in effect, contends that Respondent's action was
in retaliation for Lindsey' s union activities in general and
for his performance as Union steward in particular.
Denying this, Respondent contends that Lindsey was
discharged because, according to its information and
belief, he instigated a walkout of employees in violation of
the collective- bargaining agreement. Countering, the
General Counsel takes a number of positions with respect
to this defense: ( 1) assuming , without conceding, that
Lindsey engaged in a violation of the contract , this was
not Respondent's real reason for the discharge - it was
merely a pretext for the real one, Lindsey's activities as
steward ; (2) assuming, without conceding, that
Respondent was motivated as it claimed , it was mistaken
in its belief that Lindsey instigated the walkout, a
mistaken belief which cannot serve as a lawful defense;
and/or (3) assuming, without conceding, that Lindsey
engaged in a violation of the agreement and that he was
believed to have been the instigator, Respondent, through
its agents, effectively condoned his conduct, thereby losing
the right to discharge him therefor.
The events leading up to the discharge can be
summarized briefly.
For several days prior to September 18, the 11 molders
on the night shift had voiced dissatisfaction because they
were receiving less paid hours of work than were the
'Unless otherwise indicated , all dates referred to herein fall within the
year 1968.
'Sometimes called the finishing or grinding department
molders on the other two shifts. There had been at feast
one meeting on the subject between Respondent and the
Union, and another was scheduled to be held on
September 19. But the molders involved were impatient of
delay, and, when they reported for work at 10 p.m. on
Wednesday, the 18th, they were prepared to walk off their
jobs momentarily. Apprised of this,6 Robert Peyton,
foundry superintendent, forcefully noted that there would
be complications unless the molders at least emptied the
cupola, a task which might take several hours; and it was
"agreed"' that they would not leave while the cupola
contained molten metal.
The third-shift cleaning employees were scheduled to
work that night from l 1 p.m. As they reported, they were
made aware, via fast-spreading rumor, that the molders
were going out at midnight. There was an air of
excitement and, to some extent, confusion as to their own
course of action. At least one of them, forklift operator
Herman Guthrie, specifically asked Lindsey, as Union
steward, what the cleaning department would be doing if
and when the molders went out. Lindsey, who had not
faced such a situation before, temporized; he did not
know, he said, but he would find out.
The molders did leave the plant at or about midnight.
(The 18 "service employees" in the foundry -- i.e., the
non-molders - continued to work.) Guthrie again
importuned Lindsey to say what the cleaning employees
should do; he noted, among other things, that the
outgoing molders were asking for them to leave in
support. Once again, Lindsey said he would find out, and,
shortly thereafter, he left his workplace at the
Wheelabrator to consult with the Union's local president,
Clifford Knapp, a forklift operator who was one of the
foundry service employees still working in the foundry.
Knapp advised Lindsey, in effect, that the problem was
the molders' alone, that it was to be the subject of a
meeting the next day, and, in short, that the cleaning
employees should take no action. Lindsey returned to his
department and conveyed this information to Guthrie and
to others in the vicinity who asked. (At one point,
Cleaning Department Supervisor Deemer asked Lindsey
what was going on; Lindsey said he didn't know but
expressed the opinion that the men were going out; and
Deemer, in effect, told Lindsey to concentrate upon the
work he was supposed to be doing.) Finally, the prevailing
mood of the cleaning employees favoring overt action in
support of the molders, a number of them decided that
they would go out.
To the extent it has relevance, I here find that Lindsey
was not the "instigator" of the action. He did not
originate the idea, he did not speak in its favor,' and he
did not overtly urge others to adopt it.' On the other
hand, except for transmitting Knapp's advice, he took no
action indicating that the advice should be followed; he
neither ordered nor sought to persuade his fellows to
The record is unclear as to who conveyed the information.
'Once again , no one could be identified as spokesman for the molders
Apparently, the agreement was a tacit one.
'I do not credit the testimony of Ralph Powell , Wheelabrator operator,
that Lindsey came to him, saying , "We're going out .. We should go
out with the boys down below , the molders . . . . I think we should go out
with them " Even if Lindsey were willing to go out - and his subsequent
conduct indicated that he was - these purported statements were out of
character with his other actions - e.g , transmitting Knapp's advice to the
employees . Besides, I find that, for personal reasons, Lindsey and Powell
were not on speaking terms.
'In so finding , I do not credit that part of Cleaning Department
Supervisor Deemer's testimony in which he states that , at one point,
OHIO STOVE COMPANY 871
desist from going out. As a matter of fact, not wanting to
run counter to the prevailing sentiment , he was one of the
six-odd cleaning employees who made the first move away
from their workplaces.
The group passed the grinding benches at which six
grinders were working. One of them, Terry Parnell,
looked up uncertainly because of the din of machinery,
it was apparent, the grinders did not know what was afoot
and it was suggested to Lindsey that, as steward, he
apprise Parnell of developments. He stepped over to the
bench and spoke to Parnell.'" He informed Parnell that
the molders had gone out, told him what Knapp had
advised, said that the others in the cleaning department
were nevertheless going out in support, and concluded by
saying that what Parnell should do was up to Parnell
himself. As Lindsey left, Parnell turned off his machine,
removed his workglasses and folded his apron, and joined
the outgoing group followed by the other five grinders.
To the extent it has relevance, I here find that, under
the circumstances, Lindsey knew or should have known
that the message he was giving to Parnell would be taken
as a signal to join those who were leaving and that
Parnell, in fact, so understood it.
The departing cleaning employees, now at least 12
strong, were on the move. Some of them went toward the
exit, others went toward the timeclock in the opposite
direction. Although (I find) Lindsey did not physically
lead either group, he was, in fact, the first to procure his
timecard and was the first to punch out. One other -
James Risner, the other Wheelabrator attendant -- also
punched out. As a third man started to punch his card,
Supervisor Carl Deemer, who had been observing what
was going on, stopped him. "You don't punch out on a
wildcat," he said. Lindsey spoke up. "I didn't know that.
What should [Risner and I] do about our cards?" Deemer
said he would "take care" of the cards. Thereupon, all of
the cleaning department employees but one -- Ralph
Powell, the Wheelabrator operator" left the plant.':
To the extent it has relevance, I here find that Lindsey
did not lead the group outside; he was not the first one
out.
Outside the plant, the cleaning employees found several
persons - one or more of the molders who had gone out
earlier and an off-duty maintenance man but there was
no picketing going on. The members of the group milled
about on the sidewalk in front of the plant or across the
street, uncertain of their next move. In a few minutes,
Peyton came to the doorway. "If you don't come back
into work, you're all fired." Lindsey asked Peyton if he
had the authority to take such action; Peyton, in no
Lindsey waved his hand and called out, "Come on, men we ' re going out."
After testifying in some detail that he had observed Lindsey leave his
workplace to go to the foundry and then talk to one after another of the
employees , Deemer was asked , pointedly, if he had seen any "activity or
gesture" on the part of Lindsey. His first answer was that Lindsey was
away from his work , moving around the room . The question was put
again . Only now did Deemer mention the hand-waving and the purported
walkout-call . I believe this was Deemer 's overinterpretation of what he had
seen.
"My findings as to this conversation are based upon Lindsey's and
Parnell's testimony , as tempered by the inherent plausibilities.
"Earlier , forklift operator Guthrie had asked Powell to shut down the
Wheelabrator , but Powell had refused.
"Before they actually left, the five most recently hired grinders who
were not yet members of the Union asked Deemer what they should do
He said he would find out , and he went to see Local President Knapp.
Knapp gave Deemer the same advice he had earlier given Lindsey, advice
that was now transmitted to the grinders Nevertheless , they joined the
outbound group.
uncertain terms, replied affirmatively, and he went back
into the plant. As the men considered their next step,
Deemer came out "You all had better get back to work,"
he said, "before you get into trouble." The final push was
supplied by Union President Knapp, who now emerged.
He told them that the molders' matter was one of no
concern to them, that it was going to be handled at a
meeting in the morning, and that they ought to avoid
trouble by getting back to their work
Now, by common consent but without formal
consultation , the cleaners decided to go back to work.
They entered the plant and were in an outer corridor on
the way to their department when Deemer stopped them
"The rest of you can go on in," he said, "but, as for these
two [indicating Lindsey and Risner], they punched out; as
far as I'm concerned, they're out." Knapp attempted to
mediate . Seeking to persuade Deemer to change his mind,
he suggested that the two be permitted to punch back in
and then go back to work, only being docked for the
actual time lost Deemer refused Then Knapp suggested
Deemer consult with Peyton before finalizing his decision.
Deemer agreed, and he left to see Peyton. He returned
shortly, conveying Peyton's ruling: Lindsey and Risner
were to be under suspension for 3 days and were to report
in the morning to James Weems, personnel manager
Lindsey, in a state of shock over the turn of affairs, made
a remark to the effect that he was going "to see Bill
Burke about this.""
Thereupon, Lindsey and Risner left for their respective
homes. The rest of the cleaners returned to work and
completed the shift.,'
Beginning the next morning (and for at least the next 5
days), none of Respondent's employees reported for work.
On this record, I find that their services were thus
withheld in support of the cause of the third-shift molders.
When Lindsey and Risner went to Weems' office on the
morning of the 19th, each was given a notice bearing that
date, advising of his suspension for 3 days "pending
investigation of the charge of agitating a work stoppage
on September 19, 1969, and punching out without
notifying your supervisor."
As the result of a telegram sent by Respondent to the
International Union on September 19 protesting against
the plantwide strike by its employees in violation of the
contract and offering to bargain about the molders' hours
only if the employees returned to work, an international
representative, Claude Davis, met with the employees on
the 20th. He sought to persuade them to return to work,
but they refused to return unless Lindsey and Risner were
reinstated (i.e., their suspensions were lifted). Davis
established a tentative contact with Weems, but Weems
refused to meet or to converse with Davis until the
employees returned to work.
Meanwhile, Respondent's investigation of the parts
played by Lindsey and Risner in the September 18
cleaners' walkout was launched. Having received reports
from supervisors, Weems scheduled a "hearing" for the
morning of Monday, the 23rd, and notified the two that
they were expected to appear. They did and, one at a
time , were called into the hearing, which was attended by
a number of Respondent's officials and supervisors and a
Union committeeman.
At Risner' s hearing -- insofar as it is revealed by the
testimony at this hearing - no one reported that he had
"William Burke was Respondent 's president at the time.
"They had been out about 15 minutes altogether No deduction was
made from their pay, but a regular coffeebreak was skipped that night
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
played any relevant part in fomenting the walkout; nor did
he, in responding to questions, lay the blame upon
Lindsey, Guthrie, or anyone else.
Lindsey's hearing took a different turn . Deemer
reported, among other things, that Lindsey had waved a
beckoning hand and had said "Let's go."" One supervisor
reported, among other things, something he had heard
from "someone" that, told he was suspended, Lindsey
had said he would have breakfast with Bill Burke 16
Lindsey was questioned at some length on the part he
played in the walkout, and he repeatedly denied that he
had instigated the walkout in any manner. He did not say
that anyone else was the instigator."
Both Lindsey and Risner were told that they would be
informed of Respondent's decision shortly.
Subsequently the plantwide strike having ended
meanwhile Risner was permitted to return to work on
the night of Thursday, September 26.
Lindsey, on the other hand, was served with
Respondent's decision in the form of a letter dated
September 26. The letter read
Dear Mr. Lindsey.
Your employment with Ohio Stove Company is
terminated as of September 26, 1968, because of your
actions immediately prior to and your participation in
an unauthorized strike against Ohio Stove Company
around midnight, Wednesday, September 18, 1968. The
pertinent facts concerning the incident are as follows.
Beginning about midnight, during work hours and
before the end of your regular shift, you left your place
of work to talk with employees in your department and
outside your department without permission from
your supervisor. You continued to talk to them after
being directed by your supervisor to go back to work
Immediately after your conversation with the grinder
on the 6 wheel, he shut off his wheel and quit work.
Further, you were the first one from your
department to leave the plant, and after punching out
without reporting to your supervisor - - you were
observed motioning with your hand and were heard to
say, "Let's go, we're going out!"
Your actions in leading other employees to engage in
a work stoppage and to quit work during regular
scheduled hours of work was a violation of your
responsibility as an employee and an abuse of your
stewardship. These actions were taken in spite of and
contrary to the specific order of your supervisor and the
advice of Cliff Knapp, president of Local 107 of the
IMAW Union, who advised you to remain on the job.
Your conduct and activities constitute a violation of
the no strike provision of the company/union
agreement , which expressly provides:
[Here the letter quotes article V, paragraph 1. See
supra.,]
The disciplinary action taken in this matter is in
accordance with the company/ union agreement which
provides for discharge in such cases as follows.
"A report consistent with Deemer 's testimony at the instant hearing.
"An interesting , if irrelevant , variation on what was testified to at the
instant hearing
"Although it was clear , from his testimony at the instant hearing, that
he believed that the major responsibility was Guthrie's.
"In subsequent negotiations for a new collective - bargaining agreement,
in November or December , Union representatives attempted to re-raise the
[Here, the letter quotes article III, paragraph 6. See
supra.]
Sincerely,
OHIO STOVE COMPANY
/s/ James P. Weems
James P Weems
Personnel Manager
On the same day it dispatched the letter, Respondent
informed the Union of the action; it was made necessary,
Respondent's Vice President Diehl said, because of the
history of "wildcat" strikes at the plant; and, in reliance
upon article III, paragraph 6 of the agreement, and
despite threats that a charge would be filed with the Labor
Board, Personnel Manager Weems refused to entertain a
grievance covering the discharge or to discuss it further."
B. Discussion Conclusions
At the outset, it should be noted that however much
of the hearing was devoted to these aspects it is
stipulated, and I find, that neither Lindsey's leaving his
workplace on the night of September 18 nor his punching
out as the group left played a part in Respondent's
decision to convert his suspension to a discharge. The sole
reason assigned by Respondent is the fact that, according
to its information, Lindsey instigated a walkout in
violation of the existing collective-bargaining agreement, a
circumstance which, under the terms of the agreement,
permitted the company to effect an ungrievable discharge.
The General Counsel concedes, and I find, that the
walkout of the cleaning department employees was a
strike in violation of the agreement.
It is well settled and the General Counsel here
concedes that, absent circumstances calling for a
contrary conclusion, individuals who violate a contractual
prohibition against striking , while they do not lose their
status as employees, are not thereby engaged in activities
protected by the Act." Without question, Lindsey was
originally subject to lawful discharge for participating in,
let alone instigating , the cleaners' walkout.
As earlier indicated, the General Counsel seeks to avoid
this conclusion by arguing, first, that the part played by
Lindsey in the cleaners' walkout was not the motivating
factor for Respondent's action, that the real reason was
Lindsey's performance i.e., militant performance -- of
his duties as Union steward. In support of this position,
the General Counsel introduced testimony as to such
performance, as well as testimony to the effect that,
although Respondent's recent past had been marked by
unauthorized strikes, Lindsey was the first and only one
discharged in connection with such a strike The short
answer to the General Counsel's contention is that he has
failed preponderantly to prove his point I perceive no
undue militance in Lindsey's performance of his duties as
Union steward indeed, I was given no "normal"
conduct against which to measure his;30 moreover, (1) the
subject of Lindsey's discharge; but they dropped it when Respondent's
representatives indicated that all negotiating would be stopped if the
discharge played any part in the Union 's new contract demands
"N L R.B v. Sands Mfg Co.. 306 U.S 332; Plasti--Line, Inc v
N L.R B , 278 F. 2d 482 (C.A 6); Dyson & Sons, 72 NLRB 445; Scullin
Steel Co, 65 NLRB 1294, enfd . as modified 161 F.2d 143 (C.A 8) Cf
Dubo Mfg Corp, 148 NLRB 1114 (principle applied where strike
prohibition is read into grievance procedure ); N.L R B v. Draper Corp ,
145 F 2d 199 (C A 4) (participants in strikes in derogation of bargaining
agent's authority forfeit reinstatement rights ); and Mastro Plastics Corp v.
NLRB, 350 U.S 270 (principle inapplicable to unfair labor practice
strikes)
"It should be noted that there was no allegation or evidence of any
"background" anti-union or anti-militance animus on the part of
OHIO STOVE COMPANY 873
General Counsel failed to rebut Respondent's convincing
case that the "wildcat situation" needed remedial
attention," and (2) the uncontradicted testimony offered
by Respondent supported the conclusion that it could not
(to its own satisfaction) place the responsibility for any
other unauthorized walkout.32 I find that Respondent
discharged Lindsey because it believed he instigated the
cleaners' walkout of September 18 and not because of his
record of performance as a Union steward
Next, the General Counsel insists that Respondent's
conclusion (if it existed) that Lindsey was the instigator of
the walkout in question was a mistaken one and, citing
N L.R B v. Burnup and Sims, 379 U.S. 21, argues that
it cannot serve as a defense for Respondent's action. On
this record, I find indeed that, while Respondent did
entertain the belief that Lindsey was the instigator, it was
mistaken in this belief'. But Burn up and Sims is
inappropriate, for there the individuals discharged (under
the mistaken impression that they had made threats to
destroy company property) were in fact engaging in
protected activity (soliciting union membership), and the
court held that the good-faith mistake was no defense,2J
while, here, the conduct in which Lindsey did engage
(participation in a strike in violation of contract) was not
a protected activity. Since Lindsey's activity was
unprotected activity in the first instance, Respondent's
mistaken belief' that it was unprotected activity of another
kind does not serve to cloak it with the protection of the
Act.
Finally, the General Counsel argues that Lindsey's
conduct on the night in question was effectively
"condoned" by responsible agents of Respondent, the
result of which condonation was to deprive Respondent
thereafter of the right to discipline him.
The concept of condonation, as it applies to contractual
strike prohibitions, involves a "double-waiver" first,
although the right to strike is (under ordinary
circumstances) one protected under the Act, a bargaining
representative, on behalf' of employees, can waive such
protection in advance by contracting that there be no
strikes, under penalty of discharge for instigation or
participation; likewise, the no-strike provision having been
breached, an employer can waive his right under the
contract to discharge or otherwise discipline by evincing a
desire to forgive and forget, to "wipe the slate clean."
Thus, the protection originally afforded by the Act can be
forgone, and, thus, it may be reinstated
In clear cases there is no problem. In cases presenting
no ambiguity, the Board and/or the Courts have found
that an employer has either condoned otherwise
unprotected activities i.e., has given up his right to
discipline2J or that he has not.2'
In close cases, at least four guidelines have been set
forth. (I) The question of whether there has been
condonation is a factual one.26 (2) The burden of
demonstrating the existence of condonation by a
preponderance of the evidence rests on the General
Counsel." (3) In rejecting arguments of an employer that
he had not condoned the acts of breach-of-contract
strikers since the strikers themselves had not fulfilled
certain conditions of the return-to-work bargain, the
Court of Appeals for the Second Circuit" said that the
arguments were unpersuasive
for they misconceive the nature of the condonation
principle, which, reflecting a clear public interest in the
prompt settlement of labor disputes, is more akin to the
doctrine of waiver than to the technicalities of contract
law. [Emphasis supplied.]
Finally (4), the Courts of Appeals of both the Sixth
Circuit29 and the Eighth Circuit30 have signified approval
of a test laid down by the Fifth Circuit 3i
Where . . misconduct is clearly shown, condonation
may not be lightly presumed from mere silence or
equivocal statements, but must clearly appear from
some positive act by an employer indicating forgiveness
and an intention of treating the guilty employees as if
their misconduct had not occurred We think
Respondent correctly asserts that the essential elements
of condonation, i.e, forgiveness and the resumption of
the former relationship between the strikers and
Respondent, are patently lacking here. [Emphasis
supplied.]
The lesson we draw from these cases -- like the lesson
taught in many other areas under the Act is that, in a
situation lacking crystal clarity, one cannot employ a
wooden approach, one must decry per se principles, and
one must balance the equities.
In their briefs, the parties to this case do not seem to
regard the question as a close one The General Counsel
contents himself with the assertion that the facts in the
case add up to effective condonation.32 Respondent, on the
other hand, blithely assumes that condonation was not
established here because Lindsey, having engaged in a
wildcat strike, was suspended before he arrived back at his
workplace --- an argument which begs the question.
Neither approach is a helpful one.
I regard the question here as a close one because of the
existence of a number of vital questions. under the
circumstances, wherein is the public interest in settling
labor disputes best served? did Peyton's and Deemer's
original statements to the men evince a willingness to
forgive and forget? did the men act in reliance thereon?
what was the legal effect (I) of Peyton's quick change of
Respondent . On the contrary , on this record , it had a long history of
peaceful collective bargaining.
"There were at least two unauthorized, anti-contract strikes in 1967, one
in March 1968; and now, in September 1968, the molders' walkout, the
cleaners' walkout , and the plantwide walkout in quick succession.
"While it is difficult to understand why the identity of the third-shift
molders' spokesman is unknown, the fact remains that, on this record,
Respondent was unaware of his identity.
"Also see Rubin Bros Footwear , Inc., 99 NLRB 610, 611.
"E.g., Brantly Helicopter Corp. 135 NLRB 1412, M Eskin & Son and
Confectionery & Tobacco Drivers , Local 805 , 135 NLRB 666, enfd as
modified in irrelevant respects 312 F 2d 108 (C.A 2); Union Twist Drill
Co, 124 NLRB 1143; Alabama Marble Co , 83 NLRB 1047, enfd 185
F.2d 1022 (C.A. 5), cert . denied 342 U S. 823 , Lone Star Gas Co , 18
NLRB 420, and Stewart Die Casting Corp v. N L R B , 114 F 2d 849
(C.A 7), enfg in relevant respects 14 NLRB 872
"E g, Dubo Mfg Co, supra, Complete Auto Transit , Inc, 134 NLRB
652, and Bechtel Corporation , 127 NLRB 891
I'M Eskin & Son, supra , 667, Bechtel Corp, supra , 895, Merck & Co,
Inc, supra, 70.
"Merck & Co, Inc. 110 NLRB 67, 70
"In Confectionery & Tobacco Drivers , Local 805 v. N L R B, and
NLRB v M Eskin &Son , 312F2d 108, 113
"Plasti-Line , Inc v N L R B, 278 F 2d 482, 487
"Packers Hide Association v N L R B , 360 F 2d 59, 62-63
"In N L R B v Marshall Car Wheel & Foundry Co , 218 F 2d 409,
414
"He cites the Confectionery Drivers and the Board 's Packers Hide
Association cases, only failing to note that the latter decision (152 NLRB
655) was set aside by the Eighth Circuit (Packers Hide Association v
N L R B. supra)
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind, as conveyed by Deemer, and (2) of the notices of
suspension issued next morning?
Having carefully considered the evidence in this matter,
I have formed certain conclusions as to what happened
beginning at 10 p.m. on September 18.
While the employees of the cleaning department
decided to go out on a wildcat strike in support of the
molders, the movement was not instigated by Lindsey; on
the other hand, he did go along with the others. He and
Risner punched their timecards out, and no one else
followed suit. The men had been out no more than 10
minutes when, first Peyton, then Deemer, told them to
return. They said, respectively, that a failure to go back in
would result in the strikers' discharges and would result in
"trouble." The statements, I find, were made in an effort
to end the walkout quickly. The men, in reliance thereon,
abandoned the strike and went into the plant. I am
persuaded, and I find and conclude, that there was an
unequivocal condonation of the men's striking.
Within minutes - and before the men reached their
workplaces - Peyton injected a single reservation:
Lindsey and Risner were under a 3-day suspension for
punching out without authorization. This, I find, did not
serve to revive Respondent's right to discipline for the
walkout. Having condoned, it could not once again strip
its employees of the Act's protection without intervening
cause."
But, in my opinion, there is another reason why the
announcement of the suspension that night did not undo
the condonation. The basis for the suspension, as
announced to the men, was Lindsey's and Risner's
punching out without authority - not participation in or
instigation of a wildcat strike; nor was there any
suggestion that the action was a prelude to further
investigation. Now - from the standpoint of both
Respondent and the strikers" - there was an outstanding
offer for the return to work of all the men, with the single
limitation that Lindsey and Risner would lose 3 days'
work for having punched out without permission. Once
again, the rest of the strikers, in reliance thereon, went in
to work, leaving Lindsey and Risner to serve out their
3-day stint. This, I find, also constituted condonation
within the terms set forth.
It was not until the next morning that Respondent,
through its personnel manager, shifted its position. In its
notice issued at that time, it advised that Lindsey and
Risner were under suspension "pending investigation of
the charge of agitating a work stoppage on September 19,
1968" in addition to punching out without notice. At the
hearing, Respondent conceded that the card-punching
played no material part in Lindsey's discharge; and (as I
have earlier found) it was not a factor in Respondent's
subsequent decision to convert his suspension into a
discharge. I am persuaded that the action of "the morning
after" was an afterthought, specifically designed to avoid
the effects of Respondent's earlier condonation.
In sum , on what I consider to be a fair preponderance
"1 am aware that the reservation came very quickly after the
condonation . But time is only relative, here , one notes, the entire affair
took less than a quarter of an hour.
" 1 make this finding on the credited testimony of a number of witnesses,
including Peyton and Deemer . I am satisfied that the suspension was
imposed , in the terms and for the reason given above , without consultation
with higher management.
of the credible evidence, I find and conclude that
Respondent condoned Ernest Lindsey's role (whatever it
was) in the cleaning department walkout, and that, in
discharging him on or about September 26, 1968, for his
concerted activities, it interfered with, restrained, and
coerced him in the exercise of rights guaranteed under
Section 7 of the Act.
On the other hand, in view of the absence of any
antiunion animus on Respondent's part and in view of the
fact that under the circumstances, Lindsey's discharge
would not tend to discourage Union membership, I find
and conclude that Respondent did not discriminate in
regard to tenure of employment to discourage membership
in a labor organization."
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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 discriminating in regard to hire and tenure of
employment by discharging Ernest Lindsey on or about
September 26, 1968, and failing and refusing to reinstate
him thereafter, because he engaged in protected concerted
activities, Respondent interfered with, restrained, and
coerced him in the exercise of rights guaranteed him in
Section 7 of the Act, in violation of Section 8(a)(1)
thereof.
4 The foresaid acts are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
5. Except for the foregoing, Respondent has committed
no unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the
Act.
I shall recommend that Respondent offer Ernest
Lindsey full and immediate reinstatement to his former or
substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him
whole for any loss of earnings suffered by him because of
Respondent's acts, by payment to him of a sum of money
equal to the amount he should have earned from the date
of his discharge to the date of Respondent's offer of
reinstatement, less his net earnings during said period.
Backpay shall be computed on a quarterly basis with
interest at a rate of 6 percent per annum in the manner
heretofore established by the Board.
As the unfair labor practices committed by Respondent
are of the character striking at the roots of employees'
rights safeguarded by the Act, I shall also recommend
that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the
Act.
[Recommended Order omitted from publication.]
"Cf. Packers Hide Assn, supra, 659