Ohio Stove Co.Download PDFNational Labor Relations Board - Board DecisionsJan 22, 1970180 N.L.R.B. 868 (N.L.R.B. 1970) Copy Citation 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 Copy with citationCopy as parenthetical citation