Rogate Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1979

246 N.L.R.B. 898 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD)
Rogate Industries, Inc. and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC, and its Local 708. Case 8CA 11905
December 11, 1979
DECISION AND ORDER
On April 12, 1979, Administrative Law Judge hut-
ton S. Brandon issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
As is more fully set forth in the attached I)ecision,
the International Union of Electrical, Radio and Ma-
chine Workers (herein the Union), represents produc-
tion and maintenance employees at Respondent's
plants in Mansfield, Ohio. The complaint alleges that
Respondent violated Section 8(a)(3) and (1) of the
Act when, based on their union status, it discharged
five union officials following their participation in an
unprotected strike.
The Administrative Law Judge found that Respon-
dent had violated the Act as alleged. In reaching this
conclusion, the Administrative law Judge found that
Respondent's response to grievances filed on behalf of
the discharged officials established that Respondent
had relied in part on their status within the Union.
For the reasons set forth below, we do not agree with
the Administrative Law Judge.
Between February' 28 and March 2, 1978,' the pro-
duction and maintenance employees struck in viola-
tion of the contractual no-strike clause. Thereafter,
Respondent discharged 8 employees, suspended 10
employees for 10 days, suspended 18 employees for 3
days, and issued written warnings to 52 employees.
Five union officials-Unit President2 Eleanor Crall
and Stewards Linda Carroll, Barbara Dill, Patricia
Spurlock, and Betty Kelly-were among the eight
discharged employees, although Carroll was reinstat-
ed without backpay 2 weeks after her discharge. Five
other union officials who participated in the strike
were among the employees who received only written
warnings.
The Administrative Law Judge found that all of
the discharged union officials not only participated in
I Unless otherwise indicated, all dates herein are in 1978
2Local 708 is made up of "units," consisting of the employees of each
individual employer. Each unit selects its own "union committees" consisting
of a unit president, vice president, recording secretary, chief steward, ser-
geant-at-arms, and executive board member. In addition, each plant has
several stewards, who are not members of the union committee.
the strike, but also took steps which distinguished
them from other strikers. He further found, in es-
sence, that, while some employees who escaped dis-
charge were as active in the strike as these officials, no
employee who was more active escaped discharge.
While he noted that a disproportionate number of the
employees who were discharged were also union offi-
cials, the Administrative Law Judge also noted that
other officials who merely participated in the strike,
but played no leadership role, received written warn-
ings. Hence, the Administrative l.aw Judge con-
cluded that Respondent's response to the role as-
sumed bh the five discharged union officials vis-a-vis
other employees was not so disproportionate as to
warrant an inference that Respondent had relied on
union considerations.
The Administrative aw Judge further fund, how-
ever, that there was direct evidence of an unlawful
basis fir Respondent's disciplinary decision. The
Union filed grievances on behalf of the five dis-
charged union officials. At the third-step grievance
meeting, Spurlock and Dill claimed that they were
fired because they were stewards. In response, the di-
rector of industrial relations for Respondent's parent
company admittedly stated that Dill was "[a] steward
actively engaged in a strike." Additionally, the writ-
ten denials of the grievances stated that Spurlock,
Dill, and Kelly were terminated because of their "in-
volvemnent as "union stewards," and that ('rall was
terminated because of her "activities" as a "Union
Officer & Unit President."l The Administrative Law
Judge concluded from this that Respondent objected
to the officials' conduct as officials, not their conduct
as employees, and therefore relied in part on their
union status in deciding to discharge them.
In finding that Respondent's reliance on these offi-
cials' union status violated the Act, the Administra-
tive Law Judge relied on Precision ('astings Companyl,
Division ol Aurora Corporation., etc., 233 NLRB 183
(1977), and its progeny. As noted in the dissents in
Gould Corporation, 237 NL.RB 881 (1978), we would
overrule Precision Castings. Inasmuch as there can be
no doubt that the five discharged officials took part in
the strike,4 they, like other employees, were subject to
discharge for this unprotected activity. It is well es-
tablished that an employer faced with an unprotected
strike in the face of a no-strike clause need not dis-
charge or otherwise discipline all employees who par-
3 As noted previously, during the grievance proceedings Carroll was rein-
stated without backpay. However, the Administrative Law Judge concluded
that Respondent was motivated bh the same reasons in disciplining Carroll
and the iour officials whose discharges remained unchanged.
4 In iew of our findings herein, it is unnecessary fr us to consider
whether the Administrative Law Judge's finding, which e have no reason to
question. that the discharged officials distinguished themselves from other
strikers by their greater stnke activily, would serve as a additional lawful
basis for their discharge.
246 NLRB No. 143
898
ROGATE INDUSTRIES, IN(C
ticipate.5 Further, we would not consider Respon-
dent's postdischarge statements indicative of unlawful
intent, inasmuch as those statements merely pointed
out that, despite the contractual no-strike clause.
these union officials had acted in derogation of the
contract in joining the strike. As the Seventh Circuit
has recently recognized in a similar case:
The more severe punishment was not based
merely on the officials' status but upon their
breach of the higher responsibility that accompa-
nies that status, a breach that makes their mis-
conduct more serious than that of the rank-and-
file.6
In view of the foregoing, we find that Respondent
has not engaged in the violations alleged. We shall,
therefore, dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National abor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBER MURPHY, concurring:
In agreement with my colleagues. I find that Re-
spondent did not violate the Act by discharging Unit
President Eleanor Crall and Stewards Linda Carroll,
Barbara Dill, Patricia Spurlock, and Betty Kelly for
their involvement in an unprotected strike. However,
I reach this result because I find that the decision to
discharge these individuals was based on their strike
activity and not their union status, and thus the hold-
ings in Precision Castings Companv, Division of Au-
rora Corporation, supra, and Gould Corporation, supra,
that unprotected strikers may not be singled out for
discipline because of their status as union officials do
not apply in the circumstances of this case.
It is clear from the record that each of the five
discharged union officials in this case was involved in
the strike. Thus, as the Administrative Law Judge
found, Crall asked the employees at the membership
meeting of February 25, 1978. for authority to con-
tact the International to obtain strike sanction, did
not attempt to go to work during the strike, and on
March I told employee Robinson (who had been
hired only a day or two before the strike began and
who at the time of her conversation with Crall was
leaving the plant during her shift to do an errand)
that if she left the plant she should not return. Carroll
also made no attempt to work during the strike and
visited the picket line some four times, staying at least
5Chorsler Corporation, Dodge Truck Plant, 232 NLRB 466, 474 (1977)
J. P. Wetherbh Consiruction Corp, 182 NLRB 690, 697. fn. 31 (1970).
'Indiana & Michigan Electric Co v. .. L R. B. 599 F.2d 227. 230 (7th Cir
1979). Cf. Owems Corning Fiberglas Co. 236 NLRB 479 (1978).
20 minutes on each occasion. Dill not only refrained
from working during the strike but spent substantial
time "on the line" with other strikers, called other
employees to the March I meeting of the strikers, and
was a member of the group of strikers who met with
Respondent's representatives during the strike to dis-
cuss matters of concern to the strikers. Furthermore,
the Administrative Law Judge found that Dill and
Spurlock identified themselves in response to a police
officer's inquiry as to who was "in charge" of the
picketers. Spurlock, in addition to joining the strike
and identitSing herself along with Dill to the police,
attended the FebruarD 28 meeting at which employ-
ees decided to strike, left the meeting with other em-
ployees to begin the strike, and spent substantial
amounts of time at the picket line, making no attempt
to work during the strike. Furthermore, the Adminis-
trative Law Judge found that Spurlock blocked a
truck on the picket line on March 1. With respect to
Kelly, the Administrative Law Judge found that she
did not work during the strike: attended the February
28, March I, and March 2 striker meetings: spent
substantial amounts of time on the picket line: and at
the beginning of the strike refused to leave the plant
when asked to do so by Charles Blaylock. director of
industrial relations for Respondent's parent company,
and temporarily blocked Plant Manager Robertson's
access to the plant entrance.
It is clear from these facts that all five union offi-
cials engaged in substantial unprotected strike ac-
tivity, and the Administrative Law Judge specifically
found that "[nlo other strikers who were not dis-
charged were shown on the record, and to Respon-
dent's knowledge, to have had a greater involvement
in the strike than Crall and the stewards." In these
circumstances, and in view of the fact that Respon-
dent also discharged three employees, who were not
union officials, because of their strike activity, the
preponderance of the evidence establishes that Crall,
Carroll, Dill Spurlock, and Kelly were in roles of
strike leadership and were not selected for discipline
solely because of their status as union officials.
Respondent's postdischarge reference to the offi-
cials' union status does not warrant a contrary find-
ing. The union status of Crall and the stewards was
raised for the first time in grievance proceedings-
and by the grievants, not Respondent. In response to
claims similar to those made here, Respondent
pointed out that these individuals were not merely
union officials, but were officials engaged in unpro-
tected activity. In context, this statement loses its
force as evidence of an unlawful motive. Accordingly,
although postdischarge statements may be evidence
of an unlawful motivation,7 I find that the statements
See. e.g., Buckhorn Hazard (Coa Corporation. 194 NLRB 557 (1971)
899
)lSIN()S ()t NA I IN() NI AI()R R.A I IS() l()ARI)
in this case reli ed ot( hsb the Ad i t inislt ralti' I. a
.Ju1lde do not establis h that Respondent was mioti-
vated solels h\ these officials' union statuls ill dis-
tcharig thett
Absent such a moti\ e. it s \ ell established that all
elployer has the ulettered ight to discipline cil-
pIo,\cs engaged i an unlprotecled stri ike. ccord-
inigly, as I i(nd that Respondent did not discriminate
ag;itst the live union ollicials hecause o1' their uion
stilus, I concur in the dismissal of' the cormplaint.
('i I1R\I \\ I : xNIN( t Itd I I l l 11 \ KII S. .disetlll-
(e'ont ill t. tlhe pluralit's i/pc diil . Rcspndcn Vl'
eltlio l o' its disciplitllalt action to thie untiin status
tof Ihile' t oIll't o talEll attion is rlot only the cle rest
kild lof 'ldrissiott ot ti itlpetiLs tor that ac1tion. titL
also itself ieolatcs tile \ct's pr ohibition atiIlst inttcr-
ternicC \stith. o restrailit or coercloll o. elploC es iln
thcir rigleh t Sst a io labo r orgManatioln as untion ofli-
ciills. Nor does the tisleatding obser\ atiol tlhat Re-
spondent "il'citl pointed out tIll:t. dlespite te co1-
tractualI no-strike clause. these unli l oflicial' hIad
acted i derogation of' the ontract joinineg the
strike'' ha\e anN substantial btsis in fact r relevtiance
in lasu. At est, under that anal'lsis the rei'Crenc to
union status is gratuitous and unexplained. lhe con1-
tract Ldoes not even purport to lace iat extra burden
on unio n officials in ttis context let alone to give Re-
spondenlit ree rein to engge in self-help o a dis-
crimitna tor\ bRasis. F!ven assuming a labor o'a nliza-
tion has the power to aive suich an important
individual emplo)ee right i we lindi no trace o1' that
clear andt unambiguous language which has consis-
tentls heen required.
The decision is admittedlN squarely contrary to
controlling precedent. We dissent.
See. e.g.. Prel sio (loingrl Cor sRpn lpre l (h r l it( r eor ioltle,. ll
1ruNk Pinil. 232 NI.RB 466. 474 (1977), and cases ciled therein
See 1, R B * Migtnl ('ompaunt ,I Tenn(e .,. 415 U S 322 (1 974).
DECISION
S5AIi MIlNI 01 il1 C\.Si
l It i ox S. BRANDsON, Administrative lass Judge: I'his
case was heard in Mansfield, Ohio, on October 23. 24. and
25, 1978. The charge was filed y International Uinion of
Electrical. Radio and Machine Workers, AF. C('10 CC,
anld its local 708. herei referein reerred to as the 'nion on Ma 5
1978. 'he complaint was issued againist Rogate Industries,
Inc., hereinafter referred to as Respondent Or tlhe ('Company.
on June 5 alleging violations of Section 8ai I ) and (3 of
the National Labor Relations Act, as amended, it the dis-
charge of its employees Eleanor ('rall, Barbara )ill, Patri-
cia Spurlock. Bellt Kelly, ad inda Carroll. Respondel
rt Al d ues are in I 7X unless otheram se peclfied.
by aIIsuer denied the viola tions alleged. I he issue presented
Is xhclhter Rspondenl's selectitn of the alleged discrimni-
hIalcts tlil the sere disciplinar actiol (ot dischiarge was
based oil Ilri leadership in a srike i iiolitioln of i cn-
l;lactlal no-slrise C1;se )r (ml their st.latus s Unlliln tliCers
ol ste. ;lrds.
pot tlle t llir record, ilidciul is. ohser'atiols o' tlle
"'itiuctsses, Lnd aer tile consideratieon of tilhc able riefs
tiled h the ( enril (uuiscl andl Respondent. I make tIhe
tIllvs itg:
:I \'ll(,S it I \ I
I. It RilSll( 1()'-
Resldlltl it. 1 ll \ a ned stubNl\ LMI t I l(oocr i-
eislj. has bee1 l t all imeil aeriallil to this plroeeding ain
O()hli) orpoaltiii , kith a pricipal office and plants Ioeated
Ill M\IfieldL ()httl. herC it Cilglgied iIn tle prilOdLlion oft
clectrllt plal pr tic plirts. Rslpondlect nluluall\ ill tlhe
COist a11d CoitlIuCll eit ils bulsiness, slips gods iL.al u in
cses t $5t).lt() tilreCl to pilnits oCalted oItsidC the Slte
ot ()Ohieo. Rspondit admllils. and I ind, i ha it s an el-
pieroCI Cltgagcd i cOlitlel \silhiln the meaniing of Section
2)() and 7}) t tile A ..
11. 11M I ABO(}t, ()R(,',oI/\II()' IN%)l X I \I)
lie complaint alleges. Rcsrpoindnt's anser adlilts. and
I firnd tha t the llon is. and tas heein at all aterial traics
hiclin ia laubo lrtlliZatioll s tlhin the ltan ling of' Secion
2(5) of' he c t.
111. I111 \1 I I (d 1) t 1 IR I AB(R IRA( (I S
A. BacAgtro7nd
Respondent operates to production plants in Mansfield,
Ohio. ith an employee complement o approximately 200
product and maintenance orkers. Respondent has desig-
nated its plant on Central Avenue in Mansfield as plant I
and its Airport Road plant as plant 2. The plants will here-
after be referred to by Respondent's numerical designa-
tions.
Respondent's production and maintenance employees at
both plants ha\e been represented b the Union for about 7
years preceding the hearing, and Respondent and the
Ulnion were parties to successive collective-bargaining
agreements which were negotiated without encountering
strikes or work stoppages. In December 1977. in anticipa-
tion of the expiration of the then effective collective-bar-
gaining agreement which was due to expire on February 28.
Respondent and the Union began negotiations on a new
contract. An object of the somehat earl> negotiations uas
to ;chiese agieement b January I and, from Respondent's
standpoint to avoid the possibility of'a strike and attendant
preparation expenses ias the contract expiration date ap-
proached. An inducement to an early agreement as pro-
vided b Respondent in the orm o a Christmas bonus and
a wage increase eflective in January. l'he negotiations were
successful. a new agreement efl'ective Januar I was
reached and tiimely ratified b the Union's membership
RO()(AIE INI)ISTRIIS., IN('
and the increases and bonuses eftictuated. The new agree-
ment contained grievance machinery ending in final anid
binding arbitration, and the article providing for such ma-
chinery concluded with the lfollowing pro\ ision:
11.6 In consideration of the above the parties agree
as follows:
(a) The C('ompan agrees that so long as this Agree-
ment is in effect, there shall be n(i lockouts; and
(b) The Union agrees that so long as this Agreement
is in effect. there shall be no strikes, sitdowns. slow-
downs or other work stoppages or impeding of' work.
Respondent agreed to certain improvted hospitalization
insurance benefits during negotiations on the new agree-
ment providing coverage for emergency room treatment. It
is undisputed that all the changes provided for by the new
agreement were reduced to writing and signed by the par-
ties. However, it appears that the completed agreement waits
never reduced to its final printed ftorm and signed by the
union officers prior to the occurrence of the strike described
below. Nevertheless, and notwithstanding some confusion
among the employees and some union officers, neither the
General Counsel or the Charging Party contends that the
contract was not effective or binding on and after January
1.
According to the testimony' of Eleanor ('rail, unit pres-
ident for the Union,: about I or 2 weeks prior to Februars
25, employees began to express some discontent to her over
two subjects. the insurance coverage relative to emergency
treatments, and new attendance rules recently posted by
Respondent. It appears from Crall's testimony . which was
uncontradicted in this regard and which I credit, that some
of the employees had attempted to collect on their insur-
ance coverage for emergency room treatments and found
that the coverage was not there.' The reason for the em-
ployee discontent with the new attendance rules was not
clearly reflected in the record. but the existence of such
discontent was not seriously disputed b Respondent. In
any event. still according to Crall, there were substantial
inquiries from the employees to her on these two subjects.
and there was even some question raised as to the legality
of the new agreement because of the early negotiations.
Moreover, there was even talk of a strike.'
Crall testified that she decided to call a special member-
ship meeting to confront the situation and "explain what
procedures we could take to take care of it." That member-
ship meeting was held on Saturday morning, February 25.
2The Local Union was made up of a number of "units" consisting of
employees olfa particular employer Fach unit selected their ,own officers. the
"Union committee." T'he president of each unit ias on the local's executive
board. Besides Crall. other officers ot' the "unit" composed ofI Respondent's
employees resealed bh the record were Priscilla Sparks. vice-president: Rose-
mar) Ward, recording secretary Irma Johnson chiet steward: inm Swan-
ger. sergeant-ait-arms: and .i Jacobs. execut'le boird meilmber WVhile a
number of union stewards were utlited in Respondent', to plants. stew ard,
were not mebers of the "commillttee."
'Ihe testimony of' Respondent's attorney. J mes A. ('alhol n. who repre-
sented Respondent in the negotiations on he ness agreernlent. nditcates hat
the emergency treatmen cerage exsended oinl ito lite threatening" situ-
ations
I specifica ll credit ('ralI' tesninmon o the existence of "strike talk" at
this time. While s, me emploee wtnesses presented thlie (ieneral (oulscil
testified thes hIad not heard such "talk" prior ii Iebruary 25. Respondent's
witness. Plant I Mnager Alan R Jackson. conceded that he hid heard
rumors ol a strike during the week prior to -chbri;lr 25
Prior t commencement of Ihe meeting, ('rail met with Sam
(Jartaniti., ice president of the Iocal., and explained to him
that Ihe emplosees were mad and upset and talking strike.
She questioned him about the legality ofa the new contract
with Respondent, and he expressed his opinion that it was
illegal. Ater retferring to the union constitution, (rzaniti
advised ('rail that, if the subject of a strike came up during
the meeting, he should ask the emplowees for the authority
to contact the International Uinion and see if she could get
authorit to get a sanctioned strike, and explain to the em-
plo ces that she would like to get "in there" and tr\ to w ork
it out \With Respondent. Crall's testinlons is corroborated
bh that of Garzaniti and is credited With respect to the
foregoing.
It was also ('rall's testimony that she called the meiber-
ship meeting to order and attempted to explain Respon-
dent's attendance program and the fact that the, had no
was to go hut to file a grievance. As ('rail then described it.
"all hell broke loose," with a number of emplo\ees screarnm-
ing and yelling complaints, and one employee stating that
"the'"' wanted a strike. At this point C'rall, following Gar-
zalniti's advice, asked the employees it' they would give her
the authority to contact the International and see ift' they
could get a legally sanctioned strike. adding. hos ever, that
she wanted the employees to agree to give the Union time
to work it out with the Company.' T'he employees granted
voice approval on the point and the meeting ended. (rall,
after the meeting. conveed the results of the meeting to
some of the employees in the plant.
It is undisputed that on Sunda. February 26, '. Doug
Scarbur\, president of the Local nion, telephonically
talked to Richard Hanusz, Respondent's personnel director
and Harius7 complained that he had been getting calls from
people saying there was going to be a strike. lie also com-
plained about a strike vote being taken the day before.
Scarbury agreed to put up some notices at the plants re-
narding the items Respondent and the nion were having
some problems" with. To this end,. Scarburs drafted and
caused to he posted at Respondent's plants on %Mondas.
Februar, 27, a notice to Respondent's unit employees to
the effect employes had the right to grieve any new rules of
the emploNer and pointed out that the emergency treatment
issue as being "looked into." The notice warned that any
other action which violated the Union's constitution or the
agreement with Respondent would not be recognized and
any member involved in such other action could be subject
to discipline.
Additionally, it appears that both Garzaniti and Scar-
bury telephonically talked to ('rail subsequent to the Satur-
dav meeting and prior to Sunday evening. Februar 5 26. and
directed her to post a notice in the plants reflecting the
illegality of' the actilties which took place at the Saturday
' ( rll's telmoiny as 1to what Iocurred ait Ihe meeting Is ubsianIllil,
corroborated hb the handwritten minutes t1 t nit Secretlar Rosenmars \uard
Ward's minutes. Resp Eth 2. do lot purport to he erbatim trancripillon
t statemrnentl a the meeting tloweser. crude as they appear to he. they
cons I an inlprsilont oi' ccnrac, as to the contusion a;In turmoill prestfting
during the meeting ('rail's testimony as t) he question pult , the emplosees
at the mclleetg i .also sipported h the testimon, it (Gailr7.nit who was not
In the meeting room but heard ('rail and the enlploers tinm an djolining
rehem
9 I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting.' Crall subsequently on Sunday phoned Patricia
Spurlock, third-shift steward at plant 2, and Tim Swanger,
unit officer at plant 1, and directed them to post a notice at
each plant which she dictated to them. The notices as
posted read:
IMPORTANT NOTICE
ALL -ACTIVITIES-DISCUSSED-AT THE UNION MEETING
HELD, 2-25-78, ARE ILLEGAL AND ARE NOT SANCTIONED
BY YOUR UNION COMMITTEE OR LOCAL 708
SIGNED,
THE UNION COMMITTEE AND
ELEANOR CRALL
In addition to the foregoing notice, Spurlock also pre-
pared and posted an additional unsigned notice exhorting
the employees to "unity" when she reported to work at 5:30
a.m. on February 27, she ascertained that Spurlock had
posted it and, apparently considering it inflammatory under
the circumstances, directed Spurlock to remove it. The no-
tice was subsequently removed.
In the afternoon of February 27 Crall and other union
officers including Scarbury, Sparks, Johnson, Swanger, and
Jacobs, met with Hanusz, Charles Blaylock, director of in-
dustrial relations of Hoover Universal, Respondent's parent
company, and plant I manager Jackson in a regular step-3
grievance meeting. While it appears that the grievances un-
der discussion did not pertain to the two subjects of em-
ployee concern expressed at the union meeting the preced-
ing Saturday, Blaylock told the grievance group that he
realized that the employees were having some problems
with respect to the emergency medical plan and stated that
he would agree to the filing of a grievance on the matter
and a waiver of all grievance steps so that the issue could be
taken directly to arbitration. Scarbury indicated that was a
good idea but did not commit himself to that course of
action.
On February 28, talk of a strike continued among the
employees and, according to Spurlock's testimony, unre-
butted and credited in this regard, when she clocked off her
third shift on that day she was approached by employee
Dennis Phipps who explained to her "what was going
down." Phipps told Spurlock as well as other employees
present that they were to call in sick for their shift that
evening and then were to congregate at the Airport Restau-
rant next door to plant 2.
In the early afternoon of February 28, Scarbury called
Blaylock and asked for the early release of the Union's
committee for a meeting. That release was granted, and the
meeting was held at the union hall at 3 p.m. In addition to
6 This is based on a composite of the testimony of Crall, Scarbury, and
Garzaniti which is not seriously disputed on this point and is credited. Nei-
ther Scarbury nor Garzaniti was an employee of Respondent.
I Hearsay testimony of Blaylock indicates that Hanusz removed Spur-
lock's notice. Hanusz at the time of the hearing was not employed by Re-
spondent and did not testify at the hearing because. according to the state-
ment of Respondent's counsel, he could not be located.
I Blaylock testified for Respondent that he was aware of the strike talk and
the employee discontent on the emergency medical treatment issue but, as of
February 27, he was not aware of the employee concern over attendance
rules.
the union committee, the meeting was also attended by
Scarbury, Garzaniti, Charles Lamson, an International field
representative, and an estimated 100 off-duty employees.'
At this meeting, according to Crall's testimony, Scarbury
and Lamson explained to the employees that they could not
strike, that if they did strike it would be a "wildcat" and
they would be fired. Further, Crall testified that during the
meeting many employees made derogatory remarks about
the union committee and officers. Garzaniti in his testimony
described the employees at the meeting as "very, very angry
and very radical." In any event, the meeting did not serve
to placate the employees or dissuade them from strike ac-
tion. The strike began that evening at plant 2 shortly before
the beginning of the third-shift reporting time, 10 p.m.
B. The Strike and the Involvement of the Alleged
Discriminatees Therein
Many employees of plant 2 on the second shift had been
released from work around 7 p.m. as a result of an equip-
ment breakdown. Many of those employees congregated at
the Airport Restaurant and were later joined by employees
scheduled for third-shift work. Spurlock credibly testified
without specific contradiction that Dennis Phipps began to
take control of the employee group at the restaurant and
told them what was going to happen. Phipps then began to
direct different people in what they were to do to discour-
age people from entering the plant and what entrances and
exits to cover. Thereafter, the employees left the restaurant
and went to plant 2. and thus began the strike at that loca-
tion.
Operations at Respondent's plant I continued until about
11:45 p.m. when all but four or five of the third-shift em-
ployees clocked out and walked off their jobs in spite of
warnings by Plant Manager Jackson issued to some of the
employees prior to clocking out that they would be subject
to discipline if they left. The strike continued until the be-
ginning of the third shift on March 2 when the employees
returned to work. Following the conclusion of the strike.
and after investigation including the interviewing of some
45 employees, Respondent disciplined 88 employees, 8 with
discharges, 10 with 10-day suspensions, 18 with 3-day sus-
pensions, and the remainder with written warnings. The
five alleged discriminatees in this case were among the eight
employees discharged by Respondent, although one of the
five, Carroll, was subsequently reinstated after a 2-week pe-
riod. Since the General Counsel contends that the selection
of the five by Respondent was based on their status as
union officers or representatives, it is necessary to discuss
their individual involvement in, and activity during, the
strike as it relates to Respondent's opposing contention that
the selection of the five was based on their instigation of, or
leadership in, the strike which admittedly was unprotected
under the Act.
1. Eleanor Crall
Crall's involvement in calling the February 25 meeting
has already been outlined above. Crall testified that she
I Some employees, including Union Steward Betty Kelly, were released
from work by Respondent to attend the meeting based on their claim that
they were supposed to attend.
902
ROGATE INDUSTRIES, INC.
learned of the strike shortly after it began at plant 2 by a
phone call from Scarbury. who told her to go out to the
plant with the union committee and get the employees back
to work. Crall met at plant 2 with the committee, including
Ward, Swanger. Sparks. Johnson, and Linda Carroll, a sec-
ond-shift steward at plant . At that time, according to
Crall, the committee undertook to persuade the strikers that
the strike was illegal and they should return to work. That
attempt met with no success and considerable opposition.
One striker, identified by Crall as Brian Webster, threat-
ened to bash her head in if she attempted to get in the plant
or showed up for work the next day.
I credit Crall's testimony, supported by that of General
Counsel witnesses Linda Carroll. Patricia Spurlock, Bar-
bara Dill, Rosemary Ward, Gail Lemaster, and Cheryl
Stewart to the effect that she made an effort to persuade the
strikers to return to work. I further credit Crall's testimony
supported by Sparks and Gail Lemaster, an admitted
striker, to the effect Crall was threatened by striker Web-
ster.' °
Following her unsuccessul attempt to get the strikers
back to work, Crall, around midnight, retired with the
union committee to the Airport Restaurant where she
phoned Hanusz and reported failure. At that time Hanusz
advised her that plant I had walked out, and Crall agreed
to try to get them back in. Crall proceeded to plant I with
her committee and found about four employees "on the
line," but other employees in parked cars joined the group
when the committee arrived. Again I credit Crall's testi-
mony that she advised the strikers that they could be fired if
they did not return to work. She was told that the plant
door was locked, and Crall tried the door and found it was
in fact locked. Crall stated she observed Plant Manager
Jackson in a plant window and called to him to let her in,
but he did not respond." Crall then told the employees to
go on home and "not to be out there picketing." Crall and
the union committee then went to the home of Irma John-
son and remained for the night.
Around 4:30 a.m. on March 1, Crall phoned two preg-
nant employees, Sandra Carmichael and Shirley Tackett,
advised them of the existence of a strike and told them.
according to Crall, that they should try to go to work but
not to join the strikers if they could not go to work. Carmi-
chael credibly testified in support of Crall that while Crall
had told Carmichael she heard that the strikers were
"pretty wild" she only added that if Carmichael went to
work to "be careful."
After calling Carmichael and Tackett. Crall phoned Re-
spondent's offices and talked to Jeff Rodgers, an industrial
engineer for Respondent. Crall told Rodgers she could not
come to work because the picketers would not let her cross
the line. Rodgers advised her that if she was at the plant
(Crall worked in plant 2) at 5:30 a.m., someone would es-
cort her in. Crall said she would be there but then enter-
tained second thoughts and decided to discuss the matter
with Scarbury and phone him. He told her, according to
Crall, that if she had been threatened there was no reason
'°Committee member Johnson testified she heard Crall threatened but
believed that it was stnker Dennis Phipps who issued the threat.
" While Jackson was called as a witness by Respondent, he did not con-
tradict Crall's testimony that the plant I door was locked.
why she had to put herself in jeopardy and to stay away
from the picket line. She did not thereafter attempt to go to
work during the strike.
Crall remained at Irma Johnson's home on March . At
one point she, Carroll, and W'ard decided that the strikers
might listen to employee Steve Chamberlin. so Chamberlin
was called to Johnson's home around I I a.m. There, still
according to Crall, she and the committee asked Chamber-
lin to see if he could go out to the line and try to get the
strikers back to work. Ward in her testimony added that
Chamberlin was also told that if he could not get them back
to work to try to keep the pickets orderly. Chamberlin
thereafter played a significant role in the strike. However,
Respondent was not aware at any material time that his
activities were in any way initiated by Crall or the union
committee.
Later in the afternoon, the union committee including
Crall met with Scarbury and International Representative
Lamson and proceeded to plant 2 where, with Scarbury and
Lamson doing most of the talking. an unsuccessful attempt
was made to try to get the strikers to return to work. It was
Crall's testimony that Lamson told her, Sparks. Johnson,
and Ward, to go to plant I and see if they could get the
strikers "off the line." Crall did so and showed one striker at
plant I a subpena she had received and told the strikers
that the only thing "you guys are doing is that you're going
to get the committee fired and you're going to get a suit."
Crall's group was nevertheless unsuccessful.
Later in the evening of March I, Crall returned to the
union hall where she found Steve Chamberlin and striker
Betty Dill phoning people to attend a meeting at the union
hall. The meeting took place shortly thereafter, but the
union committee and local officers were excluded from the
meeting. The employees attending the meeting elected four
individuals. Chamberlin. Lon Culp. Barbara Dill, and
Vickie Gottron. to meet with Respondent's representatives
and negotiate concerning their complaints and the end of
the strike.
Crall attended the injunction proceeding on March 2,
and following the granting of the injunction against the
strike Crall, Scarbury, Lamson. Johnson, and Union Attor-
ney Richard Rice met with Blaylock. Hanusz, and Respon-
dent's attorney, Calhoun. They discussed the two issues
which appeared to be the basis for the strike, and the com-
pany representatives indicated they would try to revise the
"attendance program," and as they had previously offered.
to take any grievance on the medical issue directly to arbi-
tration. In the meantime, according to Crall, she learned
that the strikers had decided to go back to work.
Crall herself returned to work on her next regular shift on
Friday morning, March 2. However, she worked only a few
minutes before she was summoned to Plant Manager Rob-
ertson's office where she was advised by Robertson that she
was suspended. A suspension letter was given her by Rob-
ertson explaining that she was suspended "pending investi-
gation to determine what disciplinary action should be
taken as a result of your participation in the wildcat strike
On March 8, Crall attended an interview by Blaylock
i By this time Respondent had initiated an injunction proceeding against
the stnke, and the subpena required Crall's presence a the hearing on the
matter scheduled for March 2.
903
I)4 I(ISIO)NS ()1 NA HONAI IABOR RELATI()NS BO()ARI)
and Calhoun where she was represented b Sca;rhury. At
this interview, Blavlock and Calhoun inquired about her
activities during !he strike, as well its the activities of' strik-
ers ('hamberlin and Phipps. She declined to answer any
questions regarding either Chamberlin or Phipps. More-
over, she declined to identil, who had threatened her about
crossing the picket line. By letter dated March 1,) ('rail was
advised that Respondent had "carefully conducted a thor-
ough investigation" into Crall's participation and involve-
ment in the "illegal wildcat strike." and concluded that the
"investigation indicated that your activities precipitated the
strike and further that you engaged in activities which indi-
cated involvement and therefore, your employment is ter-
minated .... '
('rail filed a grievance over her discharge and had a
grievance meeting with Respondenti Blaylock. and tlanusz
on March 21. at which time the grievances of other union
representatives discharged (the alleged discriminatees
herein) were also discussed. According to ('rail, Blaylock
stated that they had been discharged because they had "en-
gaged in a wildcat strike as union officers." On March 28.
Respondent submitted its final grievance response to ('rail.
denying the grievance and stating that Respondent's inves-
ligation "reveals that your activities as a Union Officer and
Unit President prior to and during the illegal wildcat strike
constitute a direct violation of the l.abor Agreement and
Company Shop Rules.""
At an unemployment compensation hearing subsequent
to her discharge. Crall learned fbr the first time of certain
other conduct during the strike attributed to her by Re-
spondent. Such conduct was related at the hearing herein
by Beverly Robinson. an employee in plant I who initially
continued to work after the strike began. Robinson testified
that about 5 p.m. on March I she asked to take a lunch
break" and to be allowed to leave the plant to take her car
keys to her husband. This permission was granted and
when Robinson left the plant she was approached by five or
six women, including Crall, whom she did not know at the
time. ('rail asked her why she was leaving and ift' she was
planning to return. When Robinson explained and said she
was coming back, Crall replied that if she were Robinson
she would not come back because she probably would not
be able to get back into the shop. The other girls in the
group laughed, and Robinson proceeded to her car "as fast
as she could." Robinson thereafter phoned Plant I Man-
ager Jackson and told him she would not return until after
the strike was over. On March 3, Robinson executed a
sworn statement f)r Respondent regarding this incident in
which she stated that Crall "asked me not to return until
the strike was over, because they wouldn't let me back in
the plant."
The fact that Robinson's encounter with Crall did take
place was substantiated by the testimony of Plant Manager
Jackson who testified he saw Crall in a group of "girls"
including Priscilla Sparks talking to Robinson as Robinson
left the plant. ('rall could not specifically recall talking to
any employee leaving plant I on March I but did not spe-
IJ Respondent's shop rules, the violaion of which would result in immedi-
ate discharge, prohibited, inter alia. "Willful hampering of production. in-
cluding engaging in a wildcat strike, slowdown. or other work stoppage"
14 Robinson. who had only been hired a day or two before the strike.
started working the second shift.
cilicall dens it. nor does the record reflect that she specif-
ically denied making the statements attributed to her hb
Robinson. On the other hand. Priscilla Sparks. who testified
for the iGeneral Counsel that she was with Crall at plant I
on March I. related that she talked to Robinson abhout per-
forming a "racking''" job that day and how it was affecting
her hands." Robinson had stated she was going home early
that day and left. ('rall did not say anything to Robinso on
this occasion, according to Sparks.
In considering the testimony of Robinson, ('rail. Jackson.
and Sparks on this matter. I am persuaded that Rohinson's
testimony, supported by Jackson. that ('rall did speak to
her is the most credible and reliable, particularly in the
absence of' a specific denial by ('ral. Robinson impressed
me as a trustworthy witness, and while she exhibited some
confusion between her testimony and the statement she
gave Respondent about what ('rall had said. I am per-
suaded that her conclusion about the import of' (rall's re-
marks, i.e.. that she should not return to the plant. was a
sincere one. whether or not justified and regardless of
whether ('rall's remarks were intended as it threat or an
effort to dissuade Robinson from continuing to work during
the strike.
Briefly stated, it is Respondent's position as expressed
through the testimony of its witnesses Blaylock and C(al-
houn that ('rail was selected for discharge because Respon-
dent viewed her conduct in the [-ebruary 25 meeting as
precipitating the strike and because, based on Robinson's
encounter with Crall on March I. it appeared that ('rail
was taking affirmative action inconsistent with "the show"
she was putting on in advising people to go back to work. It
was decided that she would he immediately suspended to
avoid her precipitating further strike activity and her in-
volvement would be investigated. That investigation was
conducted, and the notarized statement obtained from
Robinson. On March 8. Respondent's representatives Rog-
er Harris, president, (alhoun. Blaylock, ilanusz. Rogers,
Jackson. and Robertson met and decided on categories for
the discipline of the strikers, since it was impractical to dis-
charge all 88 identified active strikers. It was decided that
('rall fit into the discharge category based on the criteria
determined for that category. i.e., leadership in, or precipi-
tation of: the strike. Thus, (Crall was discharged.
2. Linda Carroll
Prior to the strike Linda Carroll was employed at plant I
on the second shift and served as a union steward. About
10:15 p.m. on February 28 Carroll went from plant I with
committee members Swanger and Sparks to plant 2, after
having received word that plant 2 had gone on strike. Car-
roll, after an estimated 20 minutes at plant 2, returned to
plant I and found the employees had come out and were
"standing around." She testified that she told them to go
back to work or they could be fired, but they declined.
Carroll testified she remained at plant I for 35 to 40 min-
utes.
Around 6 a.m. on March I, Carroll went to the plant I
" The record does not reveal exactly what "racking" entailed. but appar-
ently it is rough on the hands of new employees like Robinson Jackson
testified, however, that Robinson was not "racking" that day
904
R()(OAI: INI)t SI RIIS, IN('
area tor about 20 minutes and then went to Johnson's house
where she met with Crall and discussed her ohligations :as a
steward. After reviewing the union constitution and tinding
nothing that said a steward could not be near the picket
line. Carroll went hack down to plant I and advised the
strikers to return to work. On this trip to the strike area she
stayed about 20 minutes.
On the afternoon of March I, having heard about a meel-
ing at the union hall. Carroll attended the meeting which
was led by Steve Chamberlin. According to Carroll's testi-
mony. which is not disputed on the point and which i cred-
ited. the employees at the meeting selected by voice sorle
four employees. Chamberlin, I.on Culp. Barbara Dill. and
Dennis Phipps, to try to "straighten out some difficulties''"
the enplobees were having.
On the afternoon of March 2 Carroll attended a second
meeting at the union hall. This meeting. like the one on
March I, was not attended by union committeemen or local
officials. Chamberlin led the meeting with employees Bar-
bara Dill. Vickie Gottron, Culp, and Phipps sitting at a
table in front of the employees. C('hamberlin reported on the
meeting with Respondent's representative that dab' and sug-
gested that the employees return to work. The employees in
attendance. by ia voice vote, agreed to go back to work. and
that evening work began with the third shift.
Carroll admitted she made no attempt to return to work
during the strike. She testified she had heard of rumors
about ia strike befi)re it occurred. Asked on cross-exanlila-
tion about conversations with an employee named Dennis
Heydinger Carroll admitted she had talked to lesdinger
prior to the strike but had simply asked him "if' the people
was going on strike, was he going?"
On March 13. Carroll was discharged. Her letter of dis-
charge noted Respondent's investigation of Carroll's par-
ticipation and involvement in the wildcat strike and con-
cluded that her "involvement has been so substantial as to
warrant your discharge." Carroll filed a grievance on her
discharge, and Respondent's response thereto dated March
28 and signed by Hanusz stated that upon "review o the
facts and information presented" the discharge was re-
scinded and the discipline reduced to written warning. Car-
roll was reinstated without backpa).
Respondent's position with respect to Carroll as ex-
pressed through the testimony of Blaylock and Calhoun
was that Carroll was selected for discharge because of an
affidavit submitted to Respondent by employee Dennis
Hleydinger on March 7 stating that Carroll, around 8:30 or
9 p.m. on February 28. asked Heydinger to "come back at
midnight to go on strike," and "inferred" that she would be
back to go on strike then. Heydinger testified for Respon-
dent in the hearing herein that Carroll had simply asked
him if he was going to come back that night at midnight to
"help" the third shift go out on strike. Thus, contrary to the
implication of his sworn statement to Respondent, HeNdin-
ger's testimony did not suggest a direct request bh Carroll
to HIeydinger to participate in the strike. (alhoun testiflied
that following ('arroll's termination he had concluded that
he did not believe that Respondent could prevail in an arbi-
tration case on Carroll and recommended that she be rein-
stated and that recommendation was filIowed.
3. Bibara I)ill
Dill as the filrs-t-shilt union e, ard tilt plant 2 Se had
attended the prestrike utiion i mectings on I ebrua- 25 aild
28 and testitied Ithal she was told iat those meetings that the
collectie-bargain;llrling agreement with Respondent was legal.
and at the last meeting it was niade clear b'h I.ailson thiat
no one had a right t strike.
[)ill testified that she arri'.ed ait the Airport Restaurant
on luesdal' evening as the emplo,ecs .cre leav inig tLat lo-
cation to go oer and begin the strike at plnt 2..A ftter a tfe
ninutes. Dill walked oer to the plaint and, although she
told the strikers they could he tired. she remained "on the
line with them.'' \fiter she had been otn the line a short
while. a police car arri. ed and aI policeman. Sergeant ean
. Blamer. asked the strikers. according to Dill's testimonll!
and that of L nion Steward Patricia Spurlock it there were
ai leader. When he received no response. Blamer asked It
there were any union representatives present. and D)ill and
Spurlock stepped forward. lie asked them to wait until he
talked with Respondent's officials who had called regarding
a disturbance. When he returned he talked to ill and
Spurlock in his car and adlmonished them to tell the strikers
not t build fires. not to be drinking, not to be on compan
property, and to do ever thing "legally."
T-he foregoing was confirmed b' Sergeant Blamer who
was called by Respondent. except that Blamer testified that
he onl, asked the strikers who was in charge. not who was
a unlion representative. His police report received in evi-
dence reflected that Respondent had phoned in the coin-
plaint at 9:47 p.m. and that the complaint had to do with
blocking of access to the plant. ill and Spurlock were
identified in the report as union stewards who in effect
agreed that there would be no blocking. As between Dill
anid Spurlock on the one hand and Blamer on the other, I
credit Blamer that l)ill and Spurlock responded to his in-
quir otf who was in charge. not who wits i union represent-
ative. Blamer appeared to me to be an impartial and trust-
worthy witness.
l.ater in the same evening ill. along with employees
Brian Webster and Dennis Phipps drove over to plant I
where Dill communicated the message of the police to the
plant I strikers. Dill returned to the strikers at plant 2
where she remained until the early morning hours of the
next day. She returned to that area for about 4 more hours
later that morning.
Dill went to the union hall on the eening of March 1.
having been summoned there by an unidentified caller.
There she assumed the task of calling other of Respondent's
employees to the hall for a meeting which took place a
short time later, the meeting led b (hanimberlin from W hich
the union "commlittee" members were exluded. ill at-
tended the meeting and was one of the four people selected
to "tr' to get things settled." The next day Dill and the
other three. (hamberlin, (ulp. and Phipps, met with the
Respondent's president. Roger [ilarris. and Bl;llock for
about 4 hours discussing the attendance rules. the ener-
gent meldical plan. sailett\. and other ma tters of concern to
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees." The group appeared placated by the re-
sponses of Blaylock to their concerns, although Dill con-
ceded in her testimony that Harris had stated that they
"couldn't give no definite answers" to each other. Accord-
ing to Dill, the group was satisfied as to Respondent's good
intentions and took the matter back to a meeting of em-
ployees at the union hall. Following a report by the group
to the strikers, the strikers decided to go back to work. Dill
reported for her next shift the next day.
A few days after her return to work, Dill was interviewed
by Calhoun and Blaylock regarding her participation in,
and activities during. the strike. On March 13, Dill was
given a termination letter stating that as a result of Respon-
dent's investigation "we have determined that your involve-
ment has been so substantial as to warrant your discharge."
Following her discharge. [)ill filed a grievance. It was
Dill's testimony that, at a grievance meeting regarding her
discharge attended by the union committee, Scarbury. and
Lamson for the Union and by Blaylock, Calhoun, and Ha-
nusz for Respondent, Blaylock stated, in response to a ques-
tion by Lamson as to why Dill was fired, that Dill was
discharged because she was a union representative and be-
cause of her involvement and participation in the strike.
Her grievance was denied in a ruling signed by Hanusz
dated March 28 stating that Respondent's investigation had
revealed that her "involvement as a union steward has been
so substantial in the wildcat strike as to warrant" her dis-
charge.
Respondent contends that Dill was selected for discharge
because she participated in the strike, she identified herself
to Blamer as a leader of the strikers, and because she as-
sisted in calling people to the March I meeting of strikers.
While her selection as a spokesman for the strikers at the
March 1 meeting may have indicated recognition of her
leadership in the strike. Blaylock testified this factor was
not relied on in discharging her, even though three of the
four "spokesmen" were ultimately discharged.
4. Patricia Spurlock
Spurlock was a third-shift union steward working at
plant 2. It will be remembered that it was Spurlock who
posted Crall's notice regarding the illegality of the activities
at the union meeting on February 25. It was also Spurlock
who posted the call for "unity" among the employees.
During the day on Feburary 28, Spurlock told employees
who called her at her home and inquired about a strike that
she did not know what to do and that they were on their
own but, she testified, she further told them that if they
went on strike it was illegal, not sanctioned by the Inter-
national, and that they would be fired. Nevertheless, Spur-
lock attended the "congregation" of employees at the Air-
port Restaurant that evening, arriving there before 9 p.m.,
'' Although Dill testified there were no discussions regarding discharge of
the strikers, Blaylock testified Chamberlin asked for immunity from dis-
charge but the request was denied. Further, Blaylckk testified that prior to
the return of the strikers notices were posted to the effect that Respondent
would investigate the strike. conduct interviews, and make decisions on dis-
cipline of the strikers following the completion of the investigations. The
General Counsel does not contend that Respondent at any time "condoned"
the unprotected nature of the strike or was otherwise precluded from disci-
plining the strikers generally.
and found 30 to 40 employees present. Spurlock described
the scene as "pure chaos." Ultimately, Phipps took charge
and told the employees what was going to happen, what
was going to be done, and directed people where to take
positions; i.e., what entrances and exits to the plant to cover
to discourage anyone from coming into the plant. Spurlock
related that she told the employees that what was being
done was not sanctioned by the Union, that it was a wildcat
strike, that it was illegal, and that they could all be fired.
The group response, according to Spurlock, was that no-
body would be fired unless everybody was fired and nobody
would go back into the plant unless everybody went in.
Thereafter, the employees left the restaurant and began the
strike at plant 2. Spurlock admittedly went with them.
The encounter of Spurlock and Dill with Sergeant
Blamer has already been detailed. Spurlock was present
when the union committee including Crall came to the
plant and unsuccessfully directed the strikers to go to work.
In keeping with what she considered to be instructions from
the police to "frequent" the picket lines to make sure they
were orderly. Spurlock stayed in the picket area until about
4 a.m., leaving once to go to plant I for a few minutes
where she talked to some of the employees there, after the
strike had started there.
On March I, in the morning. Spurlock returned to the
picket line at plant 2 and was there at sporadic times off
and on during the day. Most of the time that day while at
plant 2 she stayed in her car but occasionally got out and
talked to the strikers.
In the evening of March I. Spurlock went to the union
hall to attend the meeting led by Chamberlin but left it
before it really got underway and after learning that the
union committee was not allowed to attend. Spurlock re-
turned to the picket line at plant 2 where she remained for
a while, and returned to the line the next morning for about
45 minutes. She then attended the meeting at the union hall
where Chamberlin and his group reported on their discus-
sion with Respondent's representatives and the decision to
return to work was made. According to Spurlock, she told
the employees at the meeting not to be foolish enough to
walk out again if Respondent took disciplinary action
against the strikers.
Following her return to work, Spurlock was interviewed
by Calhoun and Blaylock. Following the interview. Spur-
lock's testimoney has it that Blaylock told her that if she
was terminated "it will be because of your participation as
a union steward in the wildcat strike." Spurlock was termi-
nated on March 13 and received a termination letter identi-
cal to that received by Dill. Following her discharge, Spur-
lock filed a grievance, and Respondent, through a ruling
signed by Hanusz on March 28. denied the grievance utiliz-
ing the same language used in denying Dill's grievance.
According to Blaylock, Spurlock was selected or dis-
charge because she participated in the strike and like Dill
had identified herself to the police as a leader for the strik-
ers. Moreover, Blaylock testified he had observed her block-
ing a truck at the picket line on March I. '"
'' Spurlock denied that she blocked the truck Rather. she testified that she
merely crossed In front of it (from passenger Ito drier's side) along with
another employee, Mars Walters. after the truck had alreasd stopped and in
order to anser the question of the driver about what was going on. I find
906
ROGATE INDUSTRIES. INC
5. Betty Kelly
Kelly had been an employee of Respondent for over 2
years and at the time of the strike was working in plant 2 on
the second shift. She was the only union steward on her
shift in plant 2.
On the evening of February 28, after her shift was re-
leased early due to some equipment failures, Kelly went to
the Airport Restaurant to await developments on a rumor
that the third shift was going out on strike. Kelly testified
that after the third-shift employees began to come in, the
place began to get noisier. She added that after staying at
the restaurant from 7 to 9:25 p.m. she left with employee
Sandy Foreman to return to the plant because she had dis-
covered she had lost her "rent money." She entered the
plant with Foreman through a side entrance and saw Ha-
nusz and Blaylock. She proceeded to the "bathroom" to see
if she had left her money there. Although Kelly did not find
her money, she exited the same entrance she had come in,
passing Hanusz and Blaylock without comment. Kelly testi-
fied that, after she went out the door, Foreman Randy
Ward locked the door. Kelly reached back to see if the door
was locked at about the time Plant Manager Robertson
came up. Kelly asked if he wanted in and Robertson did
not respond, but when she repeated the question, Robert-
son responded affirmatively. At that time, according to Kel-
ly, employee Greg Ewing. who was sitting nearby on a pic-
nic table with some other employees Kelly did not identify,
yelled "Boo" at Robertson. Robertson "jumped" but pro-
ceeded on into the building. Shortly thereafter, a "boy em-
ployee" came to the plant door and told Kelly and the
other employees present to get off the property "because it
was a line-up and the Company could call the police offi-
cers and have us moved or arrested." Kelly then left but
remained in the plant area until she slipped on some ice and
hurt herself. She testified she went to the picket line at plant
2 on March I and also spent some time at the Airport
Restaurant that day.
Kelly also testified that she attended the meeting at the
union hall led by Chamberlin on March I when the four
employees were selected to meet with Respondent. She was
also present for the meeting the next day when those four
reported to the employees what transpired in the discus-
sions with Respondent's representatives.
Following her return to work, Kelly was interviewed by
Blaylock and Hanusz. On March 13 she was given a termi-
nation letter with language identical to the language in the
letters given Spurlock and Dill. Kelly, too, filed a grievance
on her discharge and also received a ruling signed by Ha-
nusz on March 28 which contained language identical to
the language used in denying the grievances of Spurlock
and Dill.
The testimony of Blaylock and Robertson was substan-
tially different from Kelly's. Blaylock testified that, on the
this testimony of Spurlock unconvincing and do not credit it over the testi-
mony of Blaylock to the contrary. Blaylock, by demeanor, impressed me as
being credible, and his testimony on this point is corroborated to a certain
extent by a photograph showing Spurlock gesturing to the driver after the
truck was stopped. The photograph. Resp. Exh 15. also shows striker Mary
Walters with Spurlock. Significantl. Walters was not called as a witness b?
any party herein.
evening the strike began. Kelly came into the plant between
9:30 and 9:45 p.m. with a group of four or five employees
and told Hanusz and Blaylock she wanted to use the rest-
room. She was allowed to do so. and following that. Kelly
and the group left the plant by the side entrance. A few
minutes later Blaylock went out the side entrance and no-
ticed Kelly and a group of employees near a picnic table
which normally is located in the area but on this occasion
was much closer to the door, about 8 to 10 feet. Blaylock
asked Kelly what she was doing, and Kelly told Blaylock
that he did not work there and did not know what was
going on.' Blaylock responded that if she had a problem
she should file a grievance. She responded that it would not
do any good. Blaylock asked her to leave the property and
she refused. Blaylock told her that if she did not leave. she
would be discharged and the police would be called to re-
move the employees. Kelly replied that it would not do any
good to call the police, that she knew someone on the police
force. Blaylock went back inside and called the police.
Robertson testified that when he arrived at the west side
entrance, he observed about eight people around the picnic
table which had been pulled up to within about 8 feet of the
door. He identified Kelly, Ewing, Foreman, Mike Armond.
Ann Gillum. and Joanna Query. Robertson further testified
that, as he approached the plant door, Kelly stood directly
in front of the door. He told Kelly that he was going in, and
she said he was not and grabbed the doorknob. Robertson
again asked her to let him pass, and this time Kelly in a
joking manner said he was not but nevertheless opened the
door and let him in.
I credit the testimony of Robertson and Blaylock where it
contradicts that of Kelly as to Kelly's conduct at the begin-
ning of the strike. I note that Kelly's version of the events
was uncorroborated by any employee witness identified as
being present. Robertson's recollection as to those present
was clearly superior to Kelly's. Furthermore. I find Kelly's
testimony explaining her presence at the west side of the
plant entrance and her search for her "rent money" incredi-
ble in the absence of corroboration. If Kelly had indeed lost
her rent money, it is unlikely that she would have failed to
mention it to either Blaylock or Hanusz when she saw them
as she entered the plant. A real concern for a loss of the
money would have prompted Kelly to inquire of either
Blaylock or Hanusz if any money had been found and
turned in. Finally, the testimony of Spurlock, unrebutted in
this regard, with respect to Kelly's conduct at the Airport
Restaurant, immediately prior to the strike, supports a find-
ing of a predisposition on Kelly's part to aid and support
the strike and further explains Kelly's presence at the side
entrance to the plant. Thus, Spurlock testified that Kelly
had told Phipps at the Airport Restaurant that the employ-
ees would "overthrow the Union president" and "they"
wanted Phipps "in." Moreover, Spurlock added that
Phipps. in telling employees what entrances to "cover"
when the strike started, told Kelly to go to the very en-
trance through which she testified she entered the plant al-
legedly in search of her "rent money." and the entrance
where she subsequently temporarily blocked Robertson.
18 Kelly conceded in her testimony that tf hat night she did not know
who Blaylock was.
907
DEFCISIONS OF1: NATIONAL IABOR RELATIONS BOARD
It is Respondent's position that Kelly was selected for
discharge because she at first refused to leave the premises.
even after Blaylock threatened her with discharge if she did
not leave, and because she blocked Robertson's entrance
into the plant.
C. Di.scusion and Con('olvion
At the outset, it is clear that the strike here was in viola-
tion of an effective contractual provision barring strikes.
For this reason, employee participation in the strike not
shown to be caused by any unfair labor practices on Re-
spondent's part was without doubt unprotected by the Act.
See, e.g., Mastro Plastics Corp. anid ftrench-Amerian Reeds
MJg. Co., Inc. v. N..R. B., 350 U.S. 270. 280 (1956): Super
Valu Xenia, A Division of' Super Valu Stores. Inc., 228
NLRB 1254 (1977): Bechtel Corporation, 200 NLRB 503
(1972); The Kroger Co. (Cle'veland Division), 177 N LRB 769
(1969) enfd. sub noi. Silhaugh v. AN.L.R.B., 429 F.2d 761
(D.C. Cir. 1970). Disciplinary action by an emplover
against employees who engaged in such a strike would not
ordinarily constitute a violation of Section 8(a)(1) or (3) of
the Act. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 246
(1962). Furthermore, it has long been the law that an em-
ployer may pick and choose among employees to be disci-
plined in such situations. However, the right to "pick and
choose" is not without qualification. for the Board has spe-
cifically held that the "choices" may not be based upon
"union considerations." American Beef Packers. Inc., 196
NLRB 875 (1972): J. P. Wetherbh Cionstruction orp., 182
NLRB 690 (1970). Accordingly, where it is shown that em-
ployee union officers or representatives precipitate or lead
an unprotected strike, their representative status does not
provide them with immunity from discipline including dis-
charge. See, e.g., Chrysler Corporation, Dodge Truck Plant,.
232 NLRB 466 (1977); Pyor Mountain ('onstrution ('o..
Inc., db/la Harger Mine , 230 NLRB 461 (1977): Super
Valu Xenia, supra' Stop & Shop, Inc., 161 NLRB 75 (1966).
On the other hand, Board law' is clear that union officers
may not be subjected to discipline for engaging in an un-
protected strike simply because they are officers of the
Union. See Gould Corporation, 237 NLRB 881 (1978): Indi-
ana & Michigan Electric Company, 237 NLRB 226 (1978):
Precision Castings Company, 233 NLRB 183 (1977): Gen-
eral Motors Corporation, 218 NLRB 472 (1975). As the Ad-
ministrative Law Judge stated with Board approval in Gen-
eral Motors Corporation, supra at 477, "The union office of
committeeman is a function of union membership. and em-
ployees would be discouraged from holding or performing
such office if to do so meant they could lose or risk their
employment status merely because Respondent might erro-
neously believe they had wrongfully performed in such
union capacity." Moreover. as the Board majority pointed
out in Gould Corporation, supra, the fundamental axiom of
our national labor policy is that an individual cannot be
discriminated against because of his union status. In the
Gould case, a union steward who acted in concert with ap-
proximately 50 other employees in an unprotected strike
was singled out for discharge solely because he was the
union steward. The Board found a violation of the Act in
the discharge of the steward based on its conclusion that he
was discharged "not because of his actions as an employee.
but because of' his lack of actions as a steward." a legally
impermissible criterion for discipline under the Act. The
Board went on to state that such "legally impermissible
criterion" was not validated b a contractual clause that
placed certain affirmative duties on the union stewards in
connection with unauthorized and illegal work stoppages.
While vigorous separate dissents were registered by Board
Members Truesdale and Penello in the Gould case, it re-
mains as the most recent statement of the law applicable to
the instant case.
Initially. in the case suhb judicc. it is the General Counsel's
position that C('rall and Carroll did not cause the strike or
participate in the strike. Therefore, the General ('ounsel
contends that their situations are analagous to those consid-
ered by the Board in Wagoner Tran.sportation (Companv, 177
NLRB 452 (1969). General Moors ('ororporation, .supra, and
Ponliac Motors Division, General Motors Corporaltion. 132
NLRB 413 (1961). In Wlilgoner ransportation ('ormpatnr
the legitimacy of the discipline administered to a union
steward by the employer turned on the issue of whether the
steward had complied with certain contractually imposed
affirmative duties not present in the instant case. In the last
two cited cases the union officials disciplined had not in fact
caused or participated in the unprotected work stoppage,
and it was found that no legitimate basis for their discipline
existed. In neither of the cases does it appear, however, that
the union officials or stewards actuall withheld their ser-
vices to the employer during the work stoppages. Since I
find below that Crall and Carroll did participate in the un-
protected activity. I find the cited cases inapposite.
I agree with the General Counsel's position that neither
Crall nor Carroll initiated or caused the work stoppage.
There is absolutely no evidence that Carroll had any in-
volvement in causing the strike. And, although Crall's ac-
tions at the February 25 meeting may well have promoted
employee belief as to the imminence of a strike, it is clear,
and I find. that the posting of the notices by Crall and the
committee regarding the illegality of "all activities" dis-
cussed at the February 25 meeting effectively repudiated
any involvement of' Crall in instigating or fomenting the
strike.
Nevertheless. I disagree with the contention that ('rall
and Carroll did not participate in the strike. Both withheld
their services after the strike began. The failure to report for
work during a strike is evidence of support of' the strike
absent some notice to the employer of' disassociation from
the strike. See Southwestern Electric Power Companmv, 216
NLRB 522 (1975): Bechtel Corporation. 200 NLRB 503
(1972). Carroll never communicated to Respondent or at
the hearing any' reason for not working during the strike.
The fact that some employees worked in Carroll's plant
during the strike demonstrates that it would not have been
impossible for her to do so.
Crall attempts to justify her failure to report to work
during the strike on the basis of the threat of Webster which
I have previously found was made to her. Webster's threat
notwithstanding I am persuaded that (Crall remained awax
from work because she did not want to be put in the posi-
tion of opposing what she perceived to be the majority will
of the striking employees. I note that C'rall in demeanor did
not appear to be a likely candidate for intimidation. Fur-
ther. the likelihood of' violence was at best remote, particu-
908
RO(iAIE IN 1)DtLS RI IS. INC
larly in view of the escort offered h\ Respondent. And
Webster's threat stands as the onl significalnl evidence that
the strikers were in any way inclined to violence or other
misconduct toward nonstrikers. Moreover. Crall could
hardly have considered Webster's threat serious, since she
specifically refused to identify him to Respondent after the
strike so that discipline could be imposed. l.astly. I note
that none of the union committee or stewards offered to
work during the strike. Such unanimity is more than coinci-
dental and speaks louder than words to reveal a general
respect for, and deference to, the strikers. It serves to under-
mine ('rall's contentions regarding her failure to report for
work and indicates that Webster's "threat" was seized upon
by Crall as a convenient excuse to allow her to withhold her
services to Respondent, not because she supported the
strike as such. q hut because she was yielding to the appar-
ent majority will of the strikers. This w;as the same reason
she agreed to at the February 25 meeting to contact the
International Union to see if a strike sanction could he ob-
tained, notwithstanding her asserted belief that the collec-
tive-bargaining agreement with Respondent was legal and
binding.
Considering all the foregoing. I find that Crall and Car-
roll participated in the strike to the extent that they with-
held their services during the strike. It follows, and I find.
that by withholding their services they were engaged in an
unprotected activity, and a determination as to the lawful-
ness of their discipline must rest on the same footing as the
other union representatives participating in the strike.
The General Counsel concedes in her brief that Kelly.
Dill, and Spurlock "all joined the picket line at the outset or
participated in the picketing shortly thereafter" but argues
that they neither instigated or led the work stoppage. Rely-
ing primarily on Gould Corporation, supra, the General
Counsel argues that Respondent's selection of the discrimi-
natees herein for extreme penalties was based on their sta-
tus as officials of the Union. and therefore their selections
were unlawful. In this regard, the General Counsel argues
that the "stated reason proffered by Respondent regarding
the discharge of the stewards ... was not the real reason but
was a pretext to conceal their discharge for a discriminatory
reason violative of the Act."
As found above with respect to Crall and Carroll. and as
conceded by the General Counsel with respect to Dill, Kel-
ly, and Spurlock, all the alleged discriminatees herein had
engaged in an unprotected activity. Thus. I find that Re-
spondent had sufficient and legitimate grounds for dis-
charging the five. However, if the five were selected for
discipline because of their status as union representatives.
such selection was unlawful under Board law set forth in
Precision Castings, supra, and reiterated in Indiana & Michi-
gan Electric Compant', supra. and Gould Corporation, supra.
There is considerable evidence herein supporting Re-
19 Indeed, I find, contrary to Respondent's argument, that Crall did make
efforts to persuade the sinkers as a group to give up the strike This conclu-
sion is based not only on her testimony in this regard which I credit hut also
on the unrebutted, and thus credited, testimony to the same effect by Carroll.
Spurlock. and Ward. Such efforts were not inconsistent ith "honoring" the
picket line. Both Spurlock and Dill testified they told the strikers that he
strike was unlawful and that the strikers could be fired Nevertheless. they
admittedly stayed "at the line" with the strikers and participated in the
strike
spondent's position with respect to the selections for dis-
charge. First in this regard is the absence of evidence of
general union animus on the part of Respondent indicatie
of unlawful motivation in the selection o (Cralil and the
stewards for discharge. The Union and Respondent appear
to hla e had n amicable relationship in the past. The ah-
sence of eidence of union animus is a relevant actor n
assessing Respondent's selections. Squarce Binding arnd Rid-
ilri (., 146 NRB 206. 218 (1964): Pthe I.lahrooritori.
In.. 141 NI.RB 1290. 1299 (1963).
While I have found that the alleged iscriminatees did
not in fact instigate the strike, they did engage in conduct
w hich did serve to distinguish them from other strikers.
Thus. both Spurlock and Dill, by responding to Sergeant
Blamer's request for persons in charge shortl, after the
strike began, acknowledged some leadership responsibilities
in connection with the strike even though Spurlock ma, not
personally have been in agreement with the strike. Subse-
quently, Dill and Spurlock, by their substantial presence at
the picketing area. gave the strike visible support notw ith-
standing their admitted recognition that the, risked dis-
charge in such presence. Spurlock further distinguished her-
self by stopping, as I have found. a truck at the picket line.
an act observed by Blaylock. Dill also showed substantial
participation in the strike hb calling employees to the meet-
ing of strikers on March I. and her leadership and her up-
port of the strike were recognized bh the employees through
their elections of her as one of the four to meet with Re-
spondent concerning the strikers complaints.
Attention was called to Carroll's conduct bh virtue of
lieydinger's sworn statement to the effect that she asked
Ileydinger, prior to the commencement of the strike to
"come hack" to the plant to go on strike that evening. If
believed, that conduct would serve to establish Carroll as
the only person aside from Denis Phipps. to activel so-
licit support fir the strike prior to its commencement. Such
conduct would unquestionabl' show C(arroll to be not only
a supporter of the strike hut also an instigator, There swsas
no showing why Respondent should not have believed llec-
dinger's statement regarding Carroll.
The conduct attributed to Kelly bh Blab lock and Robert-
son, which I found she had in fact engaged in, was sufficient
to provoke Respondent's discipline. Thus, Kelly had re-
fused to leave when Blaylock told her to do so. While other
employees also declined to leave at the sanme time, they only
followed Kelly's example. She was apparently speaker for
the group. Further, it was Kelly who blocked, albeit mo-
mentarilvy Robertson's entry into the west side plant door.
This conduct was obviously sufficient to set her apart from
the other strikers.
Crall's conduct of the February 25 meeting and the call
for authority to contact the International Union regarding
a strike sanction. whether referred to as a strike vote or not.
and although subsequently repudiated by her, provided a
basis at least for a suspicion on Respondent's part that she
was instrumental in fomenting the strike. That, coupled
with the statement attributed to Crall by Robinson at plant
1. was an indication that Crall was more than casually in-
volved in the strike and cast doubt on the sincerity of her
efforts to get the strikers to return to work.
The General Counsel contends that Crall did not make
the statement attributed to her bh Robinson and that even
90q(
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robinson's testimony at the hearing does not establish that
Crall threatened Robinson in any way. This ignores the
fact, however, that it was Robinson's sworn statement given
Respondent which provided the basis for Respondent's ac-
tion. Respondent was entitled to rely on it as long as that
reliance was in good faith.20
To Respondent's knowledge, no other strikers who were
not discharged were shown on the record to have had a
greater involvement in the strike than Crall and the stew-
ards. It is true that some of the other strikers engaged in
some of the same type of conduct as the stewards during the
strike, but it is not clear that the totality of conduct of any
individual striker not discharged, and whose conduct was
known to Respondent, matched or exceeded the conduct of
the individual stewards.
The fact that Respondent discharged three other employ-
ees, Phipps, Chamberlin, and Vicki Gottron, also detracts
from a conclusion that Respondent picked Crall and the
stewards because of their union positions. There can be no
doubt that Phipps and Chamberlin were instrumental in the
conduct of the strike. The details of Gottron's leadership,
other than acting as secretary at the striker meetings and
spending substantial time at the picket area as testified to
by Calhoun, are less clear, but she too was discharged. Not
only were three other strikers discharged but 80 additional
ones were disciplined for participation in the strike with
suspensions or written warnings. Finally, in considering Re-
spondent's dispensation of discipline, it must be noted that
several union officers who also did not work during the
strike were not shown to have received disparate discipline.
On the other hand, there is evidence supporting the Gen-
eral Counsel's "pretext" argument. Thus, a disproportion-
ate number of union stewards or officers were selected for
discharge. Moreover, close examination of the conduct of
the alleged discriminatees during the strike reveals that
their conduct was not significantly more reprehensible
when compared with others not discharged. For example,
10 employees who spent considerable time on the picket
lines and who blocked cars or trucks entering the plants
received only 10-day suspensions. And as previously men-
tioned, one employee, Culp, who participated as a repre-
sentative of the strikers in negotiations with Respondent,
was not discharged. Surely such participation would sug-
gest significant leadership. Yet Culp was promoted some-
time subsequent to the conclusion of the strike. Further-
more, precipitous suspension and discharge of the top
union officer, Crall, without even specifically confronting
her with the misconduct attributed to her strongly
"smacks" of pretext.
The foregoing factors would not, in my opinion, be suffi-
cient, however, to constitute the preponderance of evidence
which is required of the General Counsel in establishing a
20 The doctnne that a respondent's good faith in effectuating a discharge is
immaterial has no application where the concerted activity giving rise to the
discharge is unprotected under the Act. See Ohio Stove Company, 180 NLRB
868 (1970): Alton Box Board Company Container Division, 155 NLRB 1025
(1965); Complete Auto Transit, Inc. 134 NLRB 652 (1961). See also Crenlo.
Division of GF Business Equipment, Inc.. 215 NLRB 872 (1974), enfd. 529
F.2d 201 (8th Cir. 1975). While General Motors Corporation, supra, may at
first blush suggest a contrary result, it is distinguishable on the basis that the
discharged employees there were found not to have engaged in any unpro-
tected activity.
violation. But there is additional evidence which Respon-
dent has not explained away and which I find persuasive in
revealing that Respondent's actions with respect to the dis-
criminatees herein were in fact based on "union consider-
ations:" i.e., their union positions. The evidence is found in
the admitted remarks of Blaylock at the third-step griev-
ance meeting and in the language utilized in Respondent's
written denials of the grievances of Crall, Kelly, Spurlock,
and Dill. Blaylock in his testimony conceded that at the
third-step grievance meetings both Spurlock and Dill had
claimed they were fired because they were stewards and
that Blaylock had responded only to Dill's assertion in that
regard by stating, "A steward actively engaged in a
strike."2' This position was essentially reflected in the writ-
ten denials of the grievances which stated with respect to
the stewards that they were terminated because of their "in-
volvement" as "union stewards" in the unlawful strike, and,
with respect to Crall, because of her "activities" as a
"Union Officer & Unit President." Respondent has not ex-
plained why, if "union considerations" were not involved in
this discipline, it was necessary even to refer to the union
positions of the discriminatees in disposing of these griev-
ances. The plain meaning of Blaylock's statement and the
written grievance denials was that it was the conduct of the
discriminatees as union officer and stewards in the unpro-
tected strike which Respondent found objectionable, not
their conduct as employees. There was no logical reason
otherwise to include any reference to their union positions.
Accordingly, I conclude that Respondent, in administering
discipline to Crall. Kelly, Dill, and Spurlock, relied at least
in part on "union considerations." ' While Carroll's griev-
ance was sustained, I find it reasonable to infer in view of
Respondent's reliance on "union considerations" in dis-
charging Crall and the other stewards that Respondent re-
lied to the same extent on Carroll's union stewardship in
disciplining her.
In view of the foregoing, and in light of the legal princi-
ples most recently reaffirmed by the Board majority in
Gould Corporation, supra, by which I am bound. I conclude
that Respondent, by relying even in part on the union posi-
tions of Crall, Spurlock, Dill, Kelly, and Carroll in disci-
plining and discharging them, violated Section 8(a)(3) and
(I) of the Act. Even partial reliance on an unlawful basis
for the discipline and discharges is sufficient to establish the
violation. See N.L.R.B. v. Whitin Machine Works, 204 F.2d
883, 885 (Ist Cir. 1953).
21 Spurlock., Dill, and Crall all attribute similar remarks to Blaylock. Scar-
bury, on the other hand, testified that Blaylock stated at the third-step gnev-
ance meeting that Crall and the stewards were fired because they were union
officials. I do not credit Scarbury's testimony in this regard since it is not
corroborated by the other witnesses. Moreover, Respondent's ritten re-
sponses denying the grievances reflect a position more consistent with Blay-
lock's version and the testimony of Spurlock, Dill, and Crall. Unit Secretary
Rosemary Ward took notes of the third-step grievance meeting on March 21
which were received in evidence, G.C. Exh. 19. Such notes do not purport to
be a verbatim transcript of comments by the parties, and I find them to be so
fragmented and incomplete as to not warrant according them weight in as-
sessing statements of the parties.
22 I find it noteworthy that Calhoun in his testimony did not specifically
deny partial reliance on the union positions of the discriminatees as a basis
for the discipline. In this regard, the record reflects that Calhoun was only
asked if discipline was based solely on union office or stewardship.
910
ROGATE INDUSTRIES. INC.
CON(.LUSIONS OF LAW
I. Respondent, Rogate Industries, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, International Union of Electrical Radio
and Machine Workers, AFL-CIO-CLC, and its Local 708,
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By discharging its employees Eleanor Crall, Patricia
Spurlock, Barbara Dill, Betty Kelly, and Linda Carroll, Re-
spondent violated Section 8(a)(3) and (I) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices violative of Section 8(aX3) and (1) of the Act,
I shall recommend that it cease and desist therefrom and
take certain affirmative action, including reinstating Crall.
Spurlock, Dill, and Kelly and making them whole with
Carroll for an' loss of earnings in order to effectuate the
policies of the Act." Backpay and interest thereon is to be
computed in the manner set forth in F. U' UWoolworth Corn-
panv, 90 NLRB 289 (1950), and Florida Steel Corporation.
231 NLRB 651 (1977).24
[Recommended Order omitted from publication.l
23 Respondent argues at length in its brief that the Board may not order
reinstatement or backpay here because the dischargees had engaged in an
unprotected work stoppage and that this constituted "cause" for discharge
under Sec. 10(c) of the Act. absolving Respondent from any duty to reem-
ploy them. This argument begs the question and I find no merit to it. The
existence of cause for discharge is no defense if. as I have found here, Re-
spondent selected the discrminatees for discharge for unlawful reasons.
24 See, generally, Isis Plumbing & Heauting Co.. 138 NLRB 716 (1962). The
General Counsel in a supplemental bnef seeks an order requiring interest on
backpay be computed on the basis of 9 percent per annum The rate of
interest on backpay is a policy matter to be determined by the Board. Pre-
sent Board policy on interest is set forth in Florda Steel Corporation, supra
911