Brooks Foundry, Inc.

BROOKS FOUNDRY, INC. 581 Brooks Foundry, Inc. and Romes McMiller and John Hunter and International Molders and Al- lied Workers , Union, AFL-CIO. Cases 7-CA-5577(1), 5577(2), and 5616 June 30, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 17, 1967, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom. and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and Respondent filed excep- tions to the Decision and supporting briefs. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications: The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) and (3) by discharging employees Romes McMiller and John Hunter for engaging in the union activity of presenting and processing a grievance. However, contrary to the Trial Examiner, we believe that the evidence requires the conclusion that when em- ployees Cleveland Edmond, Jake Jones, Paul Neeley, and L. C. Harris left work they were mak- ing common cause with, and concertedly protesting the unlawful discharges of, McMiller and Hunter. Thus, the record reveals that when Respondent's President Brooks fired Union Officials McMiller and Hunter while they were processing grievances with Vice President Torrey, an employee called out, "If you're going to fire these men for nothing, you might just as well fire us all." This comment brought about the hasty discharge of the employees which Respondent subsequently reconsidered. Without processing the discharges, Foreman Gam- ble returned their timecards to the rack and told the employees that, except for McMiller and Hunter, Respondent decided not to fire them, and that "he wanted them to go back to work, or either get their timecards and punch out and go home, or else he would fire them." The four employees responded to this instruction by punching out, waiting in the plant until McMiller and Hunter received their paychecks, and then all six taking showers and leav- ing the plant together. The following day the four employees returned to the plant for their paychecks and were told to leave because they were no longer employed by Respondent. The unity of purpose of these employees and the cause therefor was further demonstrated at a union meeting held subsequent to the discharges, when a majority of the employees voted to go on strike in protest of the discharge of all six employees.2 Because the dischargees -failed to give testimony that their purpose in punching out on their timecards was to strike in protest of the unlawful discharges of their union leaders, the Trial Ex- aminer viewed their conduct as "ambiguous" and susceptible to inferring a motive which would not be protected. Therefore, he concluded that the General Counsel did not prove the violation. How- ever, oral pronouncements of the subjective state of mind are not the only means by which the purpose for particular conduct is ascertained. Actions often speak louder than words. Thus, here it is clear that immediately upon the discharge of the union offi- cials the employees voiced their protest of such ac- tion directly to management by the statement "If you're going to fire these men for nothing, you might just as well fire us all," and that Respondent reacted to this protest as coming from the group. The sequence of events which followed leaves no doubt but that the protest of Respondent's unlawful action was the reason for the choice of the four not to return to work. Respondent never relented in its decision or rescinded its terminations of McMiller and Hunter and there is nothing in the subsequent conduct of Edmond, Jones, Neeley, and Harris which would suggest that they had changed their purpose. Based on the circumstances herein, we conclude that a preponderance of the evidence establishes that employees Cleveland Edmond, Jake Jones, Paul Neeley, and L. C. Harris were discharged by Respondent in violation of Section 8(a)(1) and (3) for protesting the unlawful discharge of employees I The Respondent's request for oral argument is hereby denied, as the sued. In view of the indication that the four were reinstated to their former record, exceptions, and briefs adequately present the issues and positions positions, it is necessary to include a remedy requiring that Respondent of the parties. make such an offer to them All other provisions of the Remedy are ap- 2 As noted in the Trial Examiner's Decision, Edmond, Jones, Neeley, plicable to all unlawfully discharged employees, and the Conclusion of and Harris were subsequently returned to work and therefore no strike en- Law numbered 3 is similarly amended. 166 NLRB No. 57 308-926 0-70-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Romes McMiller and John Hunter.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Brooks Foundry, Inc., Albion, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, the present para- graph 2(b) and those subsequent thereto being con- secutively relettered: "(b) Make whole Cleveland Edmond, Jake Jones, Paul Neeley, and L. C. Harris for any loss of pay they may have suffered as a result of the discrimina- tion against them, in the manner set forth by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716." In the original paragraph 2(d) of the Trial Ex- aminer's Recommended Order substitute for the words "Copies of said notice, to be furnished by the Regional Director for Region 7" the words "Copies of said notice, on forms provided by the Regional Director for Region 7." Add the following as the fourth indented para- graph of the notice attached to the Trial Examiner's Decision: WE WILL make whole Cleveland Edmond, Jake Jones, Paul Neeley, and L. C. Harris for any loss of pay they may have suffered as a result of the discrimination against them. 3 Mastro Plastics Corporation v N L R B, 350 U S. 70 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner : Upon charges filed on May 27, 1966, by Romes McMiller and John Hunter, and on July 5, 1966, by International Molders and Allied Workers Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board issued a consolidated complaint on August 19, 1966, al- leging that Brooks Foundry, Inc., herein called the Respondent or the Company , engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging two employees , Romes McMiller and John Hunter , for engaging in the union activities of presenting and processing a grievance , and four others' for making "common cause" with , and protesting the discharge of, McMiller and Hunter. The Respondent filed an answer which denies the substantive allegations of the I Cleveland Edmond, Jake Jones, Paul Neeley, and L. C Harris complaint, and more specifically alleges that McMiller and Hunter were discharged for "gross insubordination" in refusing "to go back to work," and that the other four employees were not discharged, but "walked off the job of their own free will." Pursuant to due notice, a hearing was held in Albion, Michigan, on October 12 and 13, 1966, before Trial Ex- aminer Samuel Ross Upon the entire record in the case and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the fol- lowing: FINDINGS OF FACT 1. COMMERCE The Respondent, a Michigan corporation whose prin- cipal office and place of business is located in Albion, Michigan, is engaged in the operation of a grey casting iron foundry. During 1965, a representative period, the Respondent admittedly sold and shipped products valued in excess of $1,000,000 from its foundry in Michigan to customers located outside the State of Michigan. Ac- cordingly, I find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 11. THE LABOR ORGANIZATIONS INVOLVED The Union and its Local 413 are, and at all times material have been , labor organizations within the mean- ing of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background Local 413 of the Charging Union is, and for many years has been, the collective-bargaining representative of Respondent's employees at its Albion, Michigan, plant. On April 7, 1966, when the events in issue in this case occurred, employees Romes McMiller and John Hunter were vice president and shop committeeman, respectively, of Local 413. There was then in effect a col- lective-bargaining agreement between Respondent and Local 4132 which provided, inter aka, as follows: The Employer ... agrees to meet and deal with the chosen representatives of the Union in handling any matters affecting labor relations at the plant. This contract also contained the following grievance provisions ARTICLE III OPERATIVE CONDITIONS A. In the event of any grievance, complaint or dispute that may arise, the employee will first report it to the foreman to whom he is directly responsible. 2 The agreement was executed on May 22, 1964, effective as of July 1, 1964, for a term of 2 years BROOKS FOUNDRY, INC. 583 He shall be required to reply to the employee within four (4) hours. B. If no agreement is reached by the above stated parties the duly elected shop committee and the management shall meet and attempt to reach an agreement within three (3) days. C. Should the foregoing procedure fail to satisfac- torily adjust the grievance, it shall then be arbitrated by the management of the Company and an officer of the International Union and the Union Committee. A date for such arbitration shall be established within five (5) days after expiration of the time provided for in Section B of this Article. D. Pending settlement of any grievance it is agreed that any work, directly or indirectly involved shall continue in a regular manner. E. It is agreed that any adjustments of a grievance affecting wages shall be retroactive to the date of fil- ing of the grievance with the Company. B. Paul Neeley's Grievance Employee Paul Neeley worked for Respondent as a grinder in the grinding department on the first shift. His rate of pay, according to his foreman, Henry Gamble, was $2.20 per hour. About 2 weeks before April 7,3 Respondent initiated the payment of piecework rates for its grinders. Under the new piece rate system, grinders like Neeley received a specified sum for each casting which they completed, the amount of which varied ac- cording to the size of the casting and the difficulty in- volved in grinding it.4 After this change in the compensa- tion of grinders was initiated by Respondent, Neeley al- ways worked at piece rates. On April 6 about 2 p.m., Neeley commenced grinding a large casting known as a #450 hyster, for which the piecework rate was $3.40. The time normally required for grinding such a casting varied from one-half hour to I hour, depending on the condition of the casting. Earlier that day, Neeley had ground another such #450 casting and completed it in .46 of an hour, or about 28 minutes.5 About 2:15 p.m., Neeley notified Foreman Gamble that he would be unable to finish the casting before quitting time,6 and asked permission to set it aside for completion the next day.7 Neeley also told Gamble that his "ride was getting ready to go home," and that therefore he could not stay over to complete the casting." Gamble replied that Neeley would either "take the time and stay there and finish it or [he] wouldn't get paid for it." Faced with the prospect of being stranded without a ride home, Neeley did not stay over beyond the regular quitting time. When he left, the casting on which he was working admittedly was three-quarters completed. The next day (April 7), Neeley found the casting on which he had worked the day before still unfinished on the tracks outside his grinding booth. He asked Gamble to let him finish the casting so that he could be paid the piece rate for it, but Gamble refused. Neeley then com- plained about Gamble's action to Union Steward DeWayne Loveless, Union Committeeman John Hunter, and Union Vice President Romes McMiller. Accom- panied by Neeley, these union officials sought out Gam- ble and attempted to persuade him to let Neeley finish the casting. However, Gamble persisted in his refusal, and finally suggested that "if you [the union representatives] want to argue any more, write up a grievance." Loveless, Hunter, and McMiller then decided to present a written grievance to Respondent to protest Gamble's action. C. The Work Stoppage and the Events Which Followed About 8:55 a.m., McMiller, Hunter, Union Commit- teeman Willie Hollie, and Neeley went to the shower room to write up the grievance.' While the grievance was being prepared, a regular 10-minute work break ensued at 9 a. m. During the work break, a number of Respondent's other grinders came into the shower room and, within earshot of the union representatives and Neeley, discussed among themselves Gamble's action in respect to Neeley, their dissatisfaction therewith, and the possi- bility that Gamble might take the same action in respect to their work. These other grinders then decided that they would not return to work until Respondent agreed to pay Neeley for the casting. There is no evidence either that Hunter or McMiller participated in this discussion by the other grinders in the shower room, or that they induced or encouraged the griders to engage in a work stoppage. At 9:10 a.m. when the break period ended, the other grinders left the shower room, but Hunter, McMiller, Hollie, and Neeley remained behind and completed the preparation and signing of the grievance. About 9:15 a.m., they went back to the grinding department where they observed that many of the grinders were not work- ing, but instead were standing around outside their booths, and some were "picking at their work" and pre- tending to be working. Vice President Edwin Torrey was summoned from the office, and McMiller handed Torrey the written grievance. A conversation then ensued for about 5 minutes between Vice President Torrey and the union representa- tives before Respondent President Ralph Brooks arrived at the scene. Shortly after Brooks' arrival in the grinding department, he ordered the discharge of Union Vice Pres- ident McMiller, Union Committeeman Hunter, and all the nonworking grinders. A short time later, the decision to discharge these employees was rescinded as to all ex- cept McMiller and Hunter. There is considerable conflict and inconsistency in the testimony regarding what was said and by whom both before Brooks came to the grind- ing department and thereafter. These conflicts and incon- sistencies were not limited to differences between the 3 All dates hereafter refer to 1966 unless otherwise noted 4 Gamble, the only witness who testified regarding the manner in which pay was computed under the new system , testified that grinders some- times were paid by the hour instead of by the piece , but his testimony re- garding when the hourly rate was utilized was most confusing and, in some respects, self-contradictory. As best I understand his testimony , the gnn- ders apparently received pay on an hourly basis when their total produc- tion at piece rates amounted to less than what they would have earned at their hourly rate. 5 See Neeley's timecard for April 6, Trial Examiner 's Exh 1. 6 The first shift, on which Neeley worked , commences at 6 a.m. and ends at 2 :30 p in Work actually stops 5 minutes before quitting time so that employees may wash up 7 Unless such permission was granted and the second shift notified, the casting might have been completed by a second- shift grinder. 8 Neeley lived in Jackson, Michigan, which is about 30 miles from the Respondent's plant in Albion, and he rode to and from work in the au- tomobile of a fellow employee. 9 Loveless did not accompany them. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony presented by the General Counsel and by the Respondent, but included also some differences between the testimony of witnesses for each side. The task of at- tempting to resolve the credibility issues, and of recon- structing from the testimony just what was said and happened, is not an easy one. However,"after comparing the testimony of the witnesses and weighing their relative reliability (from my observance of their demeanor at the hearing as well as from consideration of their testimony as a whole), it is my best judgment and I find that conver- sations and events substantially as follows took place:10 When Vice President Torrey received the grievance from Union Vice President McMiller, he stated that he knew that the grievance referred to Paul Neeley's work on the #450 hyster casting, that Vice President Richard Rabakonll was not in the shop, and that when Rabakon returned later that day, he would take up the grievance with him. Torrey also stated that "he believed that they would pay Paul Neeley for his piecework [on] the hyster he had worked on" (testimony of Hunter, Neeley, and Jones). Union Steward Loveless then asked the grinders whether this disposition of the grievance was "all right" with them, and they replied in the affirmative (testimony of Loveless). Jerry Williams, one of the grinders, then asked Torrey when the Respondent expected to pay the men the quarter annual profit-sharing bonus generally paid at that time, and whether the grinders would be paid their wages that day (Thursday) instead of the next day, the regular payday, which also was Good Friday. In respect to the regular payday, Torrey replied that Respondent was short of help in the office, but that he was sure that "he could get the men paid that afternoon" (testimony of Hunter, McMiller, Loveless, and Neeley). At this juncture, President Brooks arrived at the scene. Prior to Brooks' arrival, Torrey neither asked nor ordered the grinders to return to work (testimony of Hunter, Mc- Miller, Neeley, Jones, Edmond, and Hollie).12 Just as Torrey concluded telling the employees that they probably would get their pay that day, President Brooks, who uncontrovertedly is hot tempered, arrived at the scene and angrily asked Torrey what was going on. Torrey replied that the "committee was presenting him with a grievance on a piecework, they weren't getting paid for it" (testimony of Brooks).13 Brooks then in- structed Torrey to get the grinders back to work or they would be fired, but before Torrey could comply, Brooks himself ordered the men in a loud voice to go back to work or be fired (testimony of Hollie, Jones, and Gam- ble). Union Vice President McMiller thereupon walked over to Brooks "to explain why the men were there" (testimony of McMiller), but before McMiller could say anything, Brooks said to him, "You go back-make the mens [sic] go back to work, or I'll fire you all." McMiller replied, "I can't make the mens [sic] go back to work" (testimony of Hollie and Gamble).14 Thereupon Brooks told McMiller that he was fired. Hunter then started toward Brooks and called out his name, and Brooks, pointing to Hunter, told him that he also was fired (testimony of Hunter, McMiller, Hollie, Neeley, and Ed- mond). One of the grinders (unidentified) then yelled, "If you're going to fire these men for nothing, you might just as well fire us all" (testimony of Hunter). Brooks shouted back that all the grinders were fired (testimony of Hunter, Neeley, and Loveless), and he instructed Gamble to remove their timecards from the card rack, at the same time saying that he would "get McMiller's and Hunter's" (testimony of Hunter, Edmond, and Gamble). Brooks, Gamble, and Torrey then proceeded toward the timeclock and the office, followed closely by Hunter, McMiller, Loveless, Neeley, and 15 to 20 other grinders. Hunter, who was right behind Brooks, again called to Brooks by name, and Brooks turned around and said, "I said you're fired." Hunter replied, "So, I'm fired, I don't give a damn." Brooks then threw a punch at Hunter which grazed his forehead and almost tore off his goggles. Before anything more could happen, one of the grinders "grabbed" and restrained Brooks, and another did likewise to Hunter. Then, at the suggestion of Loveless, Brooks and Torrey went into the office (testimony of Hunter, Hollie, and Loveless). Pursuant to Brooks' instruction, Gamble removed from the time rack the cards of all the grinders (about 15 to 20) whom he "recognized [as] standing there," as well as Hunter's and McMiller's (testimony of Gamble). He then also went into the office where he remained for about 45 minutes. While Gamble and the Respondent's officers were in the office, the grinders waited at the timeclock for their final paychecks. Inside the office, Brooks caused checks to be made out for Hunter and McMiller, and eventually instructed Gamble to "take the cards back out there to the mens [sic], and tell them if they go back to work they're not fired" (testimony of Gamble). Admit- tedly, this offer did not apply to either Hunter or Mc- Miller. When Gamble came out of the office after 45 minutes, he had a batch of timecards in his hands, and he told the waiting grinders that, except for Hunter and McMiller, Respondent "had decided not to fire them; that he was going to put the time cards back in the rack, and [that] he wanted them to go back to work, or either get their time cards and punch out and go home, or else he would fire them" (testimony of Hunter, Neeley, Edmond, McMiller, and Hollie). Gamble then put the grinders' timecards (ex- cept Hunter's and McMiller's) back into the rack and most of them returned to work (testimony of Hunter and Gamble). 10 To the extent that any witness , including those upon whose testimony these findings are based, also testified inconsistently or contra- ry to any finding , his testimony in the latter respect is not credited. As Chief Judge Learned Hand aptly said in N.L.R.B v. Universal Camera Corporation, 179 F.2d 749, 754 (C A. 2), reversed on other grounds 340 U.S. 474. It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds ofjudicial decisions than to believe some and not all 31 Vice Presidents Torrey and Rabakon are sons-in-law of Respondent President Ralph Brooks 12 Loveless, a witness for the General Counsel, first testified that Tor- rey did not tell the men to return to work, but he later contradicted this testimony when he again was asked the same question by Respondent's counsel. Loveless' testimony was that of an employee who quite ap- parently was trying to avoid antagonizing the Respondent while at the same time attempting to assist the Charging Parties. I do not credit his later testimony in this regard. 11 On later cross-examination , Brooks testified, contrary to the above, that he could not recall whether Torrey told him what the grievance was about, and that he "knew nothing" about the nature of the grievance when he later fired McMiller and Hunter. I do not credit this later testimony 14 Contrary to this finding, Vice President Torrey testified that Mc- Miller replied, "I'm sorry. We're not going back," but on cross-examina- tion, Torrey testified that he "didn't hear what he [McMiller] said." I do not credit Torrey's initial testimony in this regard. BROOKS FOUNDRY,INC. 585 Brooks first testified that his reason for not giving Mc- Miller and Hunter the same option (of returning to work) was that they had refused not only to comply with his request that they order the other grinders to go back to work, but also his order that they personally return to work. On cross-examination, however, when Brooks' at- tention was directed to the fact that the other grinders also had refused to comply with Brooks' order to return to work, he admitted that his disparate treatment of Mc- Miller and Hunter was motivated by the fact that they were members of the union committee, "they were offi- cials of the Union," they had presented a grievance, and "it was their duty to uphold our contract and negotiate any grievance through the proper manner." Brooks also finally admitted that Hunter and McMiller remained discharged "because they were the leaders," and because he felt they were "responsible" for the work stoppage. 15 When Gamble put the timecards back in the rack, four of the grinders, Paul Neeley, Cleveland Edmond, Jake Jones, and L. C. Harris, punched out,16 waited in the plant until McMiller and Hunter received their paychecks, and then all took showers, left the plant together, and went home. On the following morning (Good Friday), these four grinders returned to the plant for their paychecks and were told to leave because they were no longer employed by Respondent. About 3 or 4 weeks later, as a result of a private settle- ment between Respondent and the Union, Neeley, Ed- mond, Jones, and Harris (but not McMiller or Hunter) were reinstated by Respondent without backpay. The precise terms of this settlement, and the means by which it was effected, are not disclosed by the record. D. Analysis of the Record and Concluding Findings 1. The issue of whether the language of the collective- bargaining agreement constitutes a no-strike clause As noted above , the collective-bargaining agreement between Respondent and Local 413 of the Union con- tains provisions for the processing of grievances. Under the heading "Article III, Operative Conditions," subpara- graph D of the agreement provides: Pending settlement of any grievance it is agreed that any work, directly or indirectly involved shall continue in a regular manner The General Counsel contends that this provision is "vague and ambiguous ," and that it does not constitute a no-strike clause as that term is generally understood. The Respondent, on the other hand , contends that the contract is "clear and unambiguous ," and that by its terms "the union agreed to limit its statutory rights [to strike] ... until after the grievance procedure provided in the contract had been exhausted." I regard the Respondent 's contention in this regard as meritorious. Granting that a broader and more limiting no-strike provision could have been written by the parties, the meaning of the clause as written is plain, and it clearly proscribed any interruption or stoppage of the work which was "directly or indirectly involved" in the grievance presented by the Union to the Respondent. The grievance in the instant case involved the refusal by Respondent to pay Neeley, a grinder, a piecework rate for his work on a casting. Albeit of short duration and (as hereinafter found) later condoned by Respondent, the April 7 work stoppage by the grinders pending the disposition of this grievance clearly was a refusal to "con- tinue in a regular manner" work which was "directly or indirectly involved," and therefore was in violation of the contract between the Union and Respondent. 2. Conclusions in respect to the discharge of McMiller and Hunter The complaint in this case alleges that McMiller and Hunter were fired by Respondent for engaging in union, or protected concerted, activities. In respect to this al- legation, the uncontroverted record discloses and I have found that, on the morning of April 7, Hunter and Mc- Miller, as officials of Local 413 of the Union, presented to Vice President Torrey a grievance which protested Foreman Gamble's refusal to pay Neeley for the grinding work which he had performed on a casting. Nothing in the collective-bargaining agreement between Respondent and Local 413 prohibited McMiller and Hunter from presenting the grievance during working hours, and in doing so, McMiller and Hunter engaged in a protected union and concerted activity. The Respondent concedes in its brief that McMiller and Hunter had the right "to take up" Neeley's grievance with management, "and in so doing to be protected under the law." However, it contends that the protected activity of McMiller and Hunter "ceased" before they were discharged, and that their dismissal was lawful under the collective-bargaining contract because they refused "to go back to work and put an end to their role, at least, in the illegal work-stoppage . . . and an end to the work stoppage of the rest [of the grinders]." For the reasons hereinafter stated, I reject these contentions of Respon- dent. In respect to the Respondent's contention that the pro- tected activity of McMiller and Hunter ceased before they were summarily discharged, I have found above that: (a) Until the intervention of President Brooks, Mc- Miller and Hunter were engaged in the peaceful and am- icable presentation of Neeley's grievance to Vice Pre- sident Torrey. (b) Although the Respondent's other grinders were then supposed to be, but were not, working, Torrey did not order them to return to work. (c) Instead he explained that the grievance would be processed, probably favorably to Neeley, as soon as Vice President Rabakon returned to the plant. (d) This promised speedy 's President Brooks and Vice President Torrey testified that Gamble was instructed to "bull" only the timecards of McMiller and Hunter, and that Gamble drought only their two timecards into the office However, contrary to Brooks and Torrey, Gamble testified that he was instructed by Brooks to pull the cards of all the grinders who were not working "to dock them for the time they stand around here ," that he complied with those in- structions, and that he brought into the office the timecards of about 15 to 20 grinders In addition, Brooks, Torrey, and Gamble all testified that be- fore they went into the office, Brooks had told only McMiller and Hunter, and not any of the other ganders, that they were fired However, in the light of Gamble's testimony that he was instructed by Brooks in the office to "take the cards back out there to the mens [sic], and tell them if they go hack to work they're not fired," it is quite obvious that all of the grinders had been told that they were fired, as the employees credibly testified [Emphasis supplied ] Because of these and other contradictions , I regard Brooks, Torrey, and Gamble as generally unreliable witnesses 16 Vice President Rabakon credibly testified that Edmond, Jones, and Hams punched out at 9 58 or 9:59 a.m Neeley's timecard shows that he punched out at 10 15 a in. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disposition of Neeley's grievance was acceptable to the grinders. (e) However, before the grinders returned to work, one of them asked Torrey when they would receive their bonus and whether they would get their regular pay that day instead of the following day, a holiday. (f) Tor- rey, in reply, assured the grinders that every effort was being made to pay them that day. Undoubtedly the entire matter would have ended am- icably then and there if President Brooks had not then ar- rived at the scene, angrily threatened to fire all the em- ployees if they did not return to work, and then, without affording McMiller and Hunter an opportunity to explain "why the men were there," ordered their discharge. Under all the circumstances, I find, contrary to Respon- dent's contention, that the protected union and concerted activity in which McMiller and Hunter were engaged until the moment of Brooks' arrival did not abruptly "cease" with his provocative intervention, and that it also included a protected right, denied them by Brooks, to ex- plain what was transpiring. We come then to the Respondent's contention that the discharge of McMiller and Hunter was lawful under the collective-bargaining contract because they refused "to go back to work and put an end to their role, at least, in the illegal work stoppage . . . and end to the work stop- page of the rest [of the grinders]." In regard to this con- tention, I have found above that: (a) When Brooks ar- rived, McMiller and Hunter, unlike the other grinders, were not engaged in a work stoppage, but in a lawful pro- tected union and concerted activity." (b) Brooks was im- mediately advised by Vice President Torrey that a grievance had just been presented to him, but he nevertheless, angrily, and in a loud tone, ordered all the employees, including McMiller and Hunter, to return to work at once or be fired. (c) When the stunned employees did not immediately comply, Brooks ordered McMiller (who futilely was attempting to explain to him what had transpired) to "make the men" go back to work or they all would be discharged. (d) McMiller replied that he could not force the men to return to work. Brooks then in rapid succession first told McMiller, then Hunter, and finally all the grinders that they were fired. (e) The 15 to 20 em- ployees thus fired waited near the timeclock for 45 minutes for their final paychecks. (f) At the conclusion of this waiting period, the Respondent rescinded its discharge of all the employees (except McMiller and Hunter) and gave them the option of returning to work, punching out and going home, or being fired. (g) The discharge of McMiller and Hunter was not rescinded, and they were not given the same option as the other em- ployees, for the admitted reason that Brooks believed them to be the "leaders" and "responsible" for the work stoppage, and because Brooks regarded it as their duty, "as officials of the Union," to "uphold the contract" and order a termination of the work stoppage. Viewed in the light of these findings, the contention of the Respondent in sum appears to be that it had a lawful right to discharge McMiller and Hunter, not only because of their alleged participation in the unprotected work stoppage of April 7, but also because they were the ': Foreman Gamble admitted on cross-examination that McMiller and Hunter were "trying to" resolve "the interruption and disturbance created by the other men in the department." '" N L.R B. v. Sands Manufacturing Co , 306 U.S 332, 343; N L R B. v. Rockaway News Supply Company, Inc., 345 U.S 71, 80; American Gilsonite Company, 121 NLRB 1514, 1515 "' N L R.B v Wallick and Schwalm Company, 198 F.2d 477, 484 "leaders" and "responsible" therefor, and because, under the union contract, they had an obligation as union offi- cials to order its termination. The legal principles applicable to these contentions are well established. Employees who participate in a work stoppage in violation of a no-strike provision of a collec- tive-bargaining agreement, thereby engage in an activity, unprotected by the Act, for which they may lawfully be discharged by their employer.'' Such employees do not, however, automatically lose their status as employees, for an employer, by permitting them to return to work, may condone their unprotected conduct and waive his right to discharge them.19 The Supreme Court has also held:20 . Section 8(a)(1) [of the Act] is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that ac- tivity, and that the employee was not, in fact, guilty of that misconduct. Viewed in the light of the foregoing principles and findings, it is quite evident that at the time of their discharge, McMiller and Hunter were engaged in the presentation of a grievance on behalf of a fellow em- ployee, that this was a union and concerted activity pro- tected by the Act, that the Respondent, through Vice Pre- sident Torrey and President Brooks, knew of their par- ticipation in that activity, and that the basis of their discharge was their alleged misconduct of participating in, and in being the leaders of, the unprotected work stop- page of the other grinders, and their failure to order its termination. The Respondent clearly condoned mere par- ticipation in the unprotected work stoppage, since it rescinded the discharge of all the other grinders who en- gaged therein .L1 There is, moreover, no evidence that Mc- Miller or Hunter either participated in, instigated, were "responsible" for, or were "the leaders" of the work stop- page. Finally, the collective-bargaining agreement between Respondent and the Union contains no provi- sions which, reasonably interpreted, created any obliga- tion on the part of McMiller and Hunter, as union offi- cials, to order the nonworking grinders to terminate their work stoppage. Their failure to do so did not subject them to discipline "arising solely out of their union stewardship as distinguished from their conduct as an employee."22 Accordingly, I conclude that by discharging McMiller and Hunter for engaging in a union and concerted activity protected by the Act, because of alleged misconduct in the course of that activity of which they were not, in fact, guilty, the Respondent engaged in unfair labor practices within the meaning of both Section 8(a)(1) and (3) of the Act .2.1 3. Conclusions in respect to the discharge of Cleveland Edmond, Paul Neeley, Jake Jones, and L. C. Harris As found above, out of the 15 to 20 grinders who par- ticipated in the work stoppage on April 7, only Jones, (C A. 3) 211 N L R B v. Burnup and Sims , Inc , 379 U.S 21,23 21 N L R B v Wallic k& Schwalm Co , supra. ll Pontiac Motors Division, General Motors Coip, 132 NLRB 413, 415, cf. Aetna Bearing Company, etc, 152 NLRB 845, 850 21 N L R .B v Burnup and Sims, Inc, supra. BROOKS FOUNDRY , INC. 587 Neeley, Edmond , and Harris punched out and went home when all the grinders were told by Foreman Gamble that the Respondent had decided not to fire them , and that they could either go back to work , punch out and go home, or be fired. All of the rest went back to work. On the following day, when these four employees returned to the plant for their paychecks , they were told to leave because they were no longer employed by Respondent.24 The complaint alleges and General Counsel contends that when these four employees punched out and went home in response to Foreman Gamble's ultimatum, they in effect engaged in a strike to protest the Respondent's unlawful discharge of McMiller and Hunter , that such a strike was a protected activity which had not been waived by the no-strike clause in the collective -bargaining con- trart, and that, therefore, the termination of their employ- ment by Respondent for engaging in such strike was an unfair labor practice within the meaning of the Act.25 Only three of the four named employees testified in this proceeding, and none of them, nor any other witness, gave testimony that the purpose of these four employees, or any of them , in punching out and going home was either to engage in a strike, to make common cause with McMiller and Hunter, or to protest their unlawful discharge. There is, in fact , no testimony in the record that these four employees intended by punching out and going home to go on strike for any purpose. Obviously, the possibility exists that Neeley, Edmond, Jones, and Harris intended by their conduct in punching out and going home with McMiller and Hunter to go on strike to protest the unlawful discharge of the latter. However, the conduct of these four employees at best was ambiguous and is also capable of other inferences; e.g., they did not fully comprehend the alternatives of- fered to them by Foreman Gamble, their departure was motivated by Neeley's grievance which had not yet been fully resolved, or they intended to quit their jobs because of McMiller' s and Hunter's discharge. None of these latter possible inferences supports the General Counsel's theory of violation in respect to these four employees. In this case , as in every case , the burden was on the General Counsel to prove the violation of the Act by a preponderance of the evidence . 26 In view of the foregoing considerations , I find that the General Counsel has failed to establish by a preponderance of the evidence that either Neeley, Edmond, Jones, or Harris was discharged by Respondent for engaging in a strike to protest the unlawful discharge of McMiller and Hunter , and I will therefore recommend that the complaint in this respect be dismissed. to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having further found that the Respondent dis- criminated against Romes McMiller and John Hunter by terminating their employment on April 7, 1966, and by thereafter refusing to reinstate them , because they en- gaged in union and concerted activities protected by the Act, I will recommend that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination by the pay- ment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of his reinstatement, less his net earnings during said period , with backpay com- puted on a quarterly basis in the manner established by the Board. L7 I will also recommend that the Respondent make available to the Board or its agents , upon request, all payroll and other records necessary to facilitate the deter- mination of the amounts due under this recommended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Brooks Foundry, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Molders and Allied Workers Union, AFL-CIO, and its Local 413, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating against Romes McMiller and John Hunter by terminating their employment and refus- ing to reinstate them because they engaged in union and concerted activities protected by the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead 2' As previously noted, these four employees were reinstated without backpay about 3 or 4 weeks later pursuant to a private settlement between Respondent and the Union 1n support of this contention, the General Counsel cites and relies on Mastro Plastics Corporation v. N L.R B., 350 U S. 70, and Foid Motor Company, 131 NLRB 1462. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent , Brooks Foundry, Inc., its officers , agents, successors, and as- signs, shall: 1. Cease and desist from: 21 Glen Raven Knitting Mills, inc ., 101 NLRB 239 , 240, Falstaff Brewing Corp , 128 N LRB 294, fin 2. 27 F W Woolworth Company , 90 NLRB 289 Backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co , 138 N LRB 716. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discouraging membership in, and activities on be- half of, International Molders and Allied Workers Union, AFL-CIO, its Local 413, or in other concerted activities protected by Section 7 of the Act, by discharging, or refusing to reinstate, any employee, or in any other manner discriminating in regard to hire or tenure of em- ployment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to join or assist International Molders and Allied Workers Union, AFL-CIO, its Local 413, or any other labor organization, and to engage in other concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Romes McMiller and John Hunter im- mediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previously en- joyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of this Deci- sion entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records as set forth in the section of this Decision entitled "The Remedy." (c) Notify Romes McMiller and John Hunter if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its plant in Albion, Michigan, copies of the attached notice marked "Appendix."28 Copies of said notice, to be furnished by the Regional Director for Re- gion 7, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .29 28 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 2' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respon- dent has taken to comply herewith " I ALSO RECOMMEND that the complaint be dismissed in- sofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative in this Deci- sion. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in, or activi- ties on behalf of, International Molders and Allied Workers Union, AFL-CIO, its Local 413, or any other labor organization, or in other concerted activi- ties protected by Section 7 of the Act, by discharg- ing, or refusing to reinstate, any of our employees, or in any other manner discriminating against our em- ployees in regard to their hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to join or assist International Molders and Allied Workers Union, AFL-CIO, its Local 413, or any other labor organization, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL offer to Romes McMiller and John Hunter immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the dis- crimination against them. WE WILL notify Romes McMiller and John Hunter if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. BROOKS FOUNDRY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.