Jones & McKnight, Inc.

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jones & McKnight, Inc. and Alice J. Steele and Lu- venia Johnson. Case 38-CA-718 June 8, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On February 13, 1970, Trial Examiner Harry H. Kuskin issued his Decision in this case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's and General Counsel's exceptions, their briefs, and the entire record in this case,' and hereby adopts the findings,2 conclusions,3 and recommendations of the Trial Examiner. 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 orders that the Respondent, Jones & McKnight, Inc., Kankakee, Illinois, its officers, agents, succes- ' The Respondent 's request for oral argument is hereby denied, as, in our opinion , the record in this case , including the exceptions and briefs, adequately sets forth the issues and positions of the parties ' We find merit in the General Counsel's limited exceptions , and shall delete the name of Ann Johnson , apparently inadvertently included by the Trial Examiner in the list of unfair labor practice strikers entitled to rein- statement, and shall include the name of Annabelle Parks, omitted by the Trial Examiner. 3 In agreeing with the Trial Examiner that the Respondent condoned the July 17 strikers ' conduct, we rely on his finding, which the record supports, that the condition attached by the Respondent to the offer of condonation, that picketing cease before the third shift on that day , was met before the Respondent withdrew its offer We find it unnecessary to decide whether, as also apparently concluded by the Trial Examiner , the Respondent con- doned the strikers' conduct regardless of whether such condition was, in fact, met. sors, and assigns, shall take the action set forth in the Trial Examiner 's Recommended Order, as modified below: Substitute the name of Annabelle Parks for that of Ann Johnson in the Recommended Order and notice. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This proceed- ing was heard at Kankakee, Illinois, on November 19 and 20, 1969. The complaint, as amended both before and at the hearing, issued herein on August 21, 1969, based on a charge, a first amended charge, and a second amended charge filed on July 23, August 21, and November 4, 1969, respective- ly. The complaint, as amended, alleges, in sub- stance, that Jones & McKnight, Inc., herein called Respondent, has violated Section 8(a)(1) and (3) of the Act by discriminatorily refusing on July 18, 1969, to reinstate 3 employees' whom it had discharged on the day before, and by discrimina- torily discharging, at the same time, 7 additional employees, all because of their union and con- certed activity;2 and by also discriminatorily discharging on July 23, 1969, 24 employees3 who had assisted and supported a strike, called on July 18, 1969, which was an unfair labor practice strike, in protest of the discrimination against the afore- mentioned 10 employees. Respondent's answer, as amended, denies that it has violated the Act in any respect alleged herein. Upon the entire record, including my observation of the witnesses, including their demeanor while on ' Leslie Harshberger , James Goldsberry, and Fred Harrawood. ' Joan Gray, Alice Steele, Luvenia Johnson, Mary Jones, Mary Stahl, Roger Kilman, and Roger Wesselman. a The employees discharged were. Charles Johnson Jean Harrison Philip McCormac Annabelle Parks Edna Marsh Tom Brooks Larry Smith Sandra Jensen Jonnie Louis Linda Archer Eva Hale Leslie Longtin Darlene Courtney Robert Potter Vera Washington Robert Jackson Edith Robinson Kenneth Gremar Jean Ann Johnson Jerry Kuntz Mary Kurtz Delona Gale Domingo Gomez Mildred Daily At the hearing , the General Counsel , who had amended the complaint before the hearing to increase the number of employees in this group from 17 to 24, further amended this list by adding one name, Eva Emery, and deleting another, Delona Gale. This left the number 24, intact. Ac- cordingly, while the General Counsel requested and was granted, without objection, permission to amend the figure 24 to 25, it is clear that there was no warrant for such an amendment During the hearing , I granted the motion of counsel for Respondent to dismiss the complaint , as amended, with respect to Domingo Gomez on the ground that the record shows that Gomez was on sick leave at all material times during July 1969, that he returned to work for at least 2 weeks in Au- gust, and that the discharge of Gomez was unrelated to the matters herein 183 NLRB No. 10 JONES & McKNIGHT, INC. 83 the witness stand, and after due consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint, as amended, alleges , and Respon- dent admits, that it is an Illinois corporation en- gaged in the business of manufacturing steel mats and related products; that during the 12 months preceding the issuance of the complaint it sold and shipped, to points outside Illinois from its Kan- kakee, Illinois, plants, products valued in excess of $50,000; and that during the same period it purchased and caused to be transferred and delivered to its Kankakee, Illinois, facilities, from points outside Illinois, goods and materials valued in excess of $50,000. I find upon the foregoing, as Respondent also admits, that Respondent is en- gaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED the tieing was being done inside the building, with restroom facilities and drinking water nearby. The first shift was from 7 a.m. to 3:30 p.m.; the second shift was from 3:30 p.m. to 12 midnight, and the third shift was from 11:30 p.m. until 7:30 a.m. the next day. Employees were paid on an incentive plan for tieing these mats. The start of the regular work- week in July for the third shift was Sunday evening at 11:30 and the end of the workweek occurred on Friday morning at 7:30; the regular workweek for the other two shifts was Monday through Friday. These mats were either 31 feet, 4 inches, or 36 feet, 4 inches, long, either 6 or 12 feet wide, and 1-1 /4 inches thick; they consisted of woven metal and wires, with the smallest mat weighing 442.95 pounds; and they were to be used for continuous road construction; i.e., the mats were to be put into the roadbed and were then to be covered by concrete. Noteworthy, too, in connection with the issues herein, are the following details of the plant itself and the surrounding area: South of the plant is a blacktop county road called the Robert Hall Road. Access to, and egress from, the plant are by the east and west gates and inside these gates are parking lots.7 The complaint, as amended, further alleges, and Respondent also admits, that International Union of District 50, United Mine Workers of America, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Some Background Facts4 Respondent operates three plants in the Kan- kakee, Illinois, area ; namely, one called the North plant, one at 210 West Lawn, and one on Highway 54. Only the North plant is involved herein. At all times material , the Union has been the exclusive bargaining agent of the affected employees and has had a collective-bargaining agreement with Respon- dent which includes, inter alia, a grievance and ar- bitration procedure, which culminates in final and binding arbitration , and an express no-strike clause. These clauses have relevance here.' The North plant was engaged in mid-July 1969,6 which marks the commencement of the critical period, in the tieing of both 12-foot and 6-foot mats, primarily the latter, on a three-shift basis. All Unless otherwise indicated, the findings hereinafter are based on unde- nied or uncontroverted testimony , which I credit 'Of these clauses, section 181 , under article XVIII-grievance procedure, provides that Should differences arise between the Company and its employees or the Union as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise in the Plant, there shall be no suspension of work until an earnest effort has been made to settle the difference in accordance with Steps I, II, 111, and IV below An employee or employees who violate the provisions of this Article may be discharged from the employ of the Company in ac- cordance with the procedure of this Agreement in discharge cases And section 18 2 of the same article provides that B. The Critical Events and the Discharges Which Ensued On Tuesday, July 15, near the end of the first shift, Jim Rollins, the foreman on this shift, assem- bled the mat tiers and told them that all of them would be tieing 12-foot mats in the future. The fol- lowing morning, Rollins assembled the mat tiers again and advised them further that they would all be tieing 12-foot mats that day and some of the 12- foot mats would have to be tied outside in the sun. Rollins added that he knew that it would be hot out in the sun, but to alleviate the situation lie would rotate the various crews of mat tiers so that a crew would be tieing outside for 2 hours at a time. In this way, according to Rollins, the employees would spend most of the day on the inside at the tieing operation. Although the mat tiers were willing to tie mats on the outside that day, no such tieing oc- curred because a welding operation had to be per- formed on the 12-foot mats before the mats could be tied. The next morning, July 17, Rollins assem- bled the mat tiers on the first shift again and ap- prised them of a further change in plans, saying that During the term of this Agreement neither the Union, its officers, its agents or members, nor any employee will authorize, instigate, and condone or engage in any strike, slowdown, or other interruption of work, but that any disputes or differences shall be taken up under the Grievance and Arbitration Procedure of this Agreement The Company agrees that during the term of this Agreement there shall be no lockouts o All dates hereinafter are in 1969 ' Respondent had tried to get its employees to use the east gate because of truck traffic through the west gate However, because of the fact that the parking lot off the east gate was not yet finished and could not accom- modate all its employees, some employees parked on the west side of the plant 427-258 O-LT - 74 - 7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the tables on which the 12-foot mats are tied had been moved outside and that thenceforth all 12-foot mats would be tied outside the plant. Rol- lins again adverted to the difficulties attendant upon working in the hot sun, and offered, by way of amelioration, in the event the tiers worked hard, to give them 1 hour down time on those days when it rained and they could not work on the outside. Em- ployee Jean Johnson was rebuffed by Rollins some- time during the meeting when she interjected to ask if she could transfer to another department as she had high seniority in the plant; Rollins told her that seniority did not count in this matter and that if she wanted her job she would be tieing mats on the out- side with the others.8 During the rest of the morn- ing the mat tiers worked outside the plant tieing 12- foot mats. During the lunch break on July 17, i.e., between 11:30 a.m. and 12 noon, Gray, Steele, Luvenia Johnson,9 and other employees went to the Hawaiian Inn, in the vicinity, for lunch and there discussed the matter of tieing 12-foot mats in the sun.10 It was the sense of the group that they should get a copy of the contract in order to see what it had to say about having to tie mats outside in the sun. Shortly before noon, these individuals returned to the plant and gathered in the lunchroom. They were determined to wait until they saw the contract and resisted Isaacs' importuning that they go to work. At the suggestion of Gray, the matter was seemingly resolved on the basis that the mat tiers would go to work and that Issacs would, in turn, make the contract available to them at the 1:30 break that afternoon, thereby meeting Isaacs' ob- jection that the employees may not read the con- tract on company time . However, the employees had a change of heart. They started moving in the direction of their work stations outside the plant, but when they reached the west door they stopped and refused to spend another 1-1/2 hours in the sun before seeing the contract. Shortly thereafter, Keeler, the daytime union steward, approached the group and took Steele and Johnson with him to Isaacs' office. There, Isaacs supplied them with the contract. As Isaacs would not allow them to read the contract in his office, they took the contract to the lunchroom. After handing the contract to Steele and John- son, Isaacs went to the west door of the plant. He separately asked "quite a few" of the women as- sembled there if they were going back to work, in- dicating that he wanted "a yes or a no" answer.'[ Each replied, in substance, that she was with the rest of the women, that is, if they would go back, she would too. Isaacs then turned to James Gold- sberry, Leslie Harshberger, Roger Kilman, and Fred Harrawood12 and asked each one, separately, if he was going back to work. Each one responded that he was "thinking about it," and repeated his answer when Isaacs insisted on a "yes or no" answer. Upon such refusal to give a "yes or no" answer, Isaacs discharged each one. Isaacs then ordered all four of them to "get off the property," and also said to the assembled women, "If you're not going back to work, get off the property." With this, Isaacs left the group. Isaacs stayed in the building while most of those in the group left the building and assem- bled on the county road outside the plant. Isaacs appeared in the lunchroom shortly thereafter. There he found Steele, Johnson, Keeler, and Gray13 looking over the contract. Isaacs asked them what they were looking for in the contract and, upon being told, he replied that there was nothing in the contract about having to work out in the sun for 8 hours tieing mats. Isaacs said further that only work on the 12-foot mats was available and the tieing of the mats was going to be done out- side, that they should go out and so inform the rest of the employees, and that he wanted them to make up their minds as to whether they were going to tie the mats. Isaacs thereupon took the contract from Johnson's hand and left. Steele, Johnson, and Gray then joined the assem- bled employees at the west gate and Steele reported to them what Isaacs had said about the contract and informed them that Isaacs' position was unchanged on tieing the 12-foot mats on the out- side. About this time, Isaacs appeared. He queried the four men again as to whether they were going back to work and, receiving the same answers as before, discharged each one a second time. 14 Isaacs then told the women in the group that if they wanted to go back to work they could, but none of them did. With particular reference to those ' Employees Joan Gray and Alice Steele , both of whom were present, testified to these developments on July 17 According to Gray, Rollins also said that "if [the mat tiers] didn 't like it [they] could quit [They] had [their ] choice " Steele, however, made no such attribution to Rollins Ac- cording to her, the mat tiers on this shift, all of whom were women, went into a huddle to decide whether they wanted to work out in the hot sun, and at that point Wayne E Isaacs, the plant superintendent, who had observed the proceedings, said, "All right , girls There is 12-foot mats to tie and 12- foot mats only from now on, until October 1st They will all be tied outside And if you don't want to get over there and start tieing 12-foot mats, then you can get the hell out of here " Rollins did not testify and Isaacs was not questioned concerning this attribution to him I find it unnecessary to de- cide whether Rollins or Isaacs or both threatened all the mat tiers directly with discharge, for apart from this it is clear, and I find, from the mutually corroborative testimony of Gray and Steele as to Rollins' colloquy with Jean Johnson, which I credit , that the mat tiers were therey told, in effect, that, like Jean Johnson, they would be discharged if they refused to tie 12- foot mats on the outside e The name Johnson, whenever used hereinafter, refers to Luvenia John- son and not Jean Johnson 10 There is undenied testimony by Gray, which I credit , that at noon that day, the temperature " was in the mid to upper 90's" and "terribly humid " 11 Gray identified Mary Stahl , Edith Robinson, Darlene Courtney, and Linda Archer as being among those so interrogated " These four individuals were part of the yard crew and had nothing to do with the tieing of mats i0 Gray had not left the building after Isaacs had spoken to those assem- bled at the west door, including her Instead, she proceeded to the lunchroom in search of Steele and Johnson t° Isaacs explained that he discharged them a second time because "[he] wanted to make sure they understood , that they got the message they were fired " Although Isaacs testified that the four yardmen were discharged for refusing to go to work and for rowdiness accompanying such refusal, his testimony in the latter connection was that he meant thereby that they "were talking pretty loud " In these circumstances , I am unable to find either that the four yardmen were rowdy or that this claimed rowdiness was an operative factor in their discharges JONES & McKNIGHT, INC. women who were specifically asked by Isaacs whether they were going back to work, each replied that she would return if Isaacs would allow the four men to return also. Thereupon, Isaacs left and walked into the plant.15 While some of the employees were milling around the county road, Gray and others proceeded to the Hawaiian Inn. There, Gray telephoned Vernon Morris, the International representative of District 50, United Mine Workers of America, to enlist his aid. About 3 p.m., Steele, Gray, and Morris arrived at the North plant where they met with Isaacs and Donald J. Rasor, who is in charge of personnel, purchasing, maintenance, and the general direction of the work forces of Respon- dent's three plants in the Kankakee area. Forelady Hermaine Hart, who is Rollins' counterpart on the second shift, and an office girl were also present.'s Morris wanted to know why Respondent was requiring that these women tie mats in the hot sun for 8 hours, and Rasor replied that there was no other work available. The matter of incentive pay and other issues were raised by Morris and he asked to see Respondent's records. As these records were not available at this plant, the parties had to withhold further meaningful discussions until later that day, when they met at the West Lawn Street plant. The meeting at the West Lawn Street plant began about 4:45 that afternoon and ended about 6:45. Present were Rasor, Isaacs, Morris, Johnson, Mr. and Mrs. Gray," and employees Blanchie Glenn and Margaret Milton.18 Only Gray, Johnson, Mor- ris, Isaacs , and Rasor testified concerning this meet- ing. A composite of their credible testimony establishes that Rasor there agreed with the ad hoc grievance committee to lower the quota for the 12- foot mats, to give the mat tiers a 10-minute break in the shade each hour, to increase the incentive rate on 12-foot mats from 58 cents per mat to $1.16, and to make the raise retroactive to July 14, with the further qualification that the matter of the raise in incentive pay was conditioned on the ap- proval of President McKnight. Whereupon, accord- ing to the rather detailed testimony of Morris, which I credit, the following occurred: 19 Rasor in- dicated that, notwithstanding the fact that there 11 In those instances discussed above in which Issacs was engaged in discussion with the employees on the first shift , there is record testimony only by Steele, Gray, and Issacs I have credited the testimony thereon of either Steele or Gray or both, rather than that of Issacs I do so because Steele and Gray impressed me as more reliable witnesses than Issacs and wherever they testified concerning the same discussion their testimony was largely mutually corroborative Isaacs, on the other hand, testified in sum- mary fashion as to these discussions and did not deny any of the remarks at- tributed to him by either Steele or Gray, or both of them 16 According to Hart, only 2 employees out of "anywhere from 45 to 55 people " showed up for work on the second shift that day 17 Mrs Gray had to pick up her husband by automobile at his place of work at the end of his workday Accordingly, Mr Gray was picked up and taken along to the meeting Rasor agreed that Mr Gray could attend the session As heretofore , I shall continue to refer to Mrs Gray as Gray 18 The second -shift employees had that afternoon , while outside the gate and in the presence of Morris , chosen Glenn and Milton to represent them 85 would be some delay in getting McKnight's ap- proval of the raise, he wanted not only to have nor- mal production resumed the next day by his em- ployees but also to get the pickets away from the gate so that the third shift could go to work that very evening. Some of the women present then queried Rasor as to what he was going to do about yardmen who had been discharged by Isaacs that afternoon. Rasor showed a reluctance to do anything about these discharges. At this, Morris told Rasor that he "thought it advisable to take the employees back because we had got up to that point of settling the trouble"; and Rasor "finally came to an understanding that he would agree that the three male employees (Goldsberry, Harsh- berger, and Harrawood)20 would be put back on the job and that he would appreciate if we could go out and get the pickets off the gate." Johnson and Gray then undertook to talk to the first-shift employees, and Glenn and Milton agreed to talk to the second- shift employees, outside the plant. The meeting ended at this juncture. The record shows that Gray, Johnson, Glenn, and Milton returned to the area adjacent to the North plant21 and spoke to the employees on their respec- tive shifts as they had promised Rasor. According to the mutually corroborative testimony of Johnson and Gray, they and the others told the employees that Rasor had said that if they could talk the em- ployees into going home and letting the third shift go to work, he would take all the employees, as well as the men who had been discharged, back to work effective the following day, that no punish- ment would be administered to the employees, and that there would be certain changes as to break- times, quotas, and incentive pay, all of which they detailed to the employees. They testified further that, except for the yardmen, the other employees believed that Rasor would keep his word and were ready to go home. However, the yardmen said that they preferred to have what Rasor had said, in writ- ing, from him. In consequence, also according to Johnson and Gray, they consulted with each other and decided to go into the plant and call Rasor on the telephone. Gray testified that her husband and Johnson ac- companied her into the plant and there, in the at this meeting The first-shift employees had, at the same time , selected Johnson and Gray to represent them Morris gave all four of them steward's badges at the start of the meeting It is clear therefore , and I find, that this group functioned as an ad hoc grievance committee 1B Morris was called by Respondent as its witness Since his testimony as to this portion of the meeting was detailed and straightforward and had the ring of truth , whereas the testimony of Gray, Isaacs, and Rasor on this cnti- cal part of the meeting appeared to be influenced by their strong partisan feelings, I find that Morris' testimony correctly reflects what then occurred, and I credit him Johnson 's testimony in this connection was exceedingly brief 20 I find , consistently with Issacs ' testimony in this regard , that Kilman, who had also been discharged when the above three were discharged, had planned, in advance of the events detailed above, to leave Respondent's employ on the next day 21 Mr Gray accompanied his wife to the North plant 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presence of Forelady Hart and the others with her, she spoke to Rasor on the telephone, as follows: She told him that "for the most part the women were satisfied and were ready to go home and let their shift go to work but the men thought that we should have an agreement written down on paper as far as what we agreed on, because this way they felt there would be no mistake because of it," and "otherwise they were satisfied."22 Rasor's answer was that he would not talk to her; that she should call her union representative. This ended the con- versation. She testified further that she then called Morris and told him of these developments, and that Morris replied that he would see what he could do, adding, at the same time , "But be sure you get that picket line down because Mr. Rasor gave you his word and you gave him your word and just get the picket line down." Upon terminating the con- versation, also according to Gray, Johnson wanted to know what Morris had said. Her reply, made in the presence of her husband, Johnson, and Hart, was that Morris had said "he would try to get it written down on paper and to tell the people out at the gate that the picket line had to come down."23 After these telephone calls were concluded, the Grays and Johnson left the plant and approached the employees who were still outside, consisting of Goldsberry, Harshberger, Harrawood, and "a few women." According to Gray, she reported to these employees what Rasor and Morris had said during her telephone conversations with each of them; and her husband told the men present that they were hurting themselves by staying there as Rasor had given his word at the meeting, and as Gray and Johnson had, at the same time, given their word to get them off the picket line. Also according to Gray, the men then agreed to go home and she and her husband left for home between 7:30 and 7:45 that evening. When the Grays left, only Johnson and the three individuals named above were left from among the pickets.24 According to the credi- ble testimony of Johnson, the following then oc- curred: She tried to get these individuals to go home, but they refused to leave her there alone. Thereafter, Harrawood removed the picket sign which was posted on a telegraph pole "across the road on the southside [of the plant]," and she took down the picket sign that was "on the eastside of the road that goes to the steel plant." Both signs were then thrown into the ditch in the vicinity of the telegraph pole. She then left the plant site with her daughter, who called for her in an automobile at 7:30 that evening, but only after she saw Gold- 22 Although Gray denied , during cross-examination , that she told Rasor that unless she got a written statement , some of the people were not going to take down the picket line, I am satisfied , and find , in the light of her own testimony as set forth in the text above, the testimony of Johnson and Rasor discussed hereinafter, and the probabilities of the situation , that she so im- plied, and that Rasor so understood her remarks Thus, Johnson testified, under cross-examination , that Gray indicated to Rasor, in substance, that the boys would not leave until they got a written statement , and Rasor testified that , when he told Gray on the telephone that he could not put the agreement in writing because he did not have the final decision of manage- sberry, Harshberger, and Harrawood get into their cars and drive away.25 The testimony is in conflict as to whether there was any picketing that evening after the time of Johnson's and Harshberger's claimed departure. According to the testimony of Harshberger, he and the other two men went from the plant to the home of employee Mary Kurtz, about 20 miles away from the plant, arrived there "after 8 sometime," stayed until sometime after midnight, and returned to their respective homes about 1 a.m. Mary Kurtz testified that these three men arrived at her home around 8:30 on the evening of July 17 and stayed "until sometime after midnight." In addition, employees Leslie Longtin and Larry Smith, who reported for work on the third shift that evening at 10:45 and 11:25, respectively (Longtin entered by the west gate of the plant and Smith entered by the east gate), each testified that he saw nothing unusual outside the plant in the way of cars parked along the county road or employees outside the gate or the presence of a sheriff's deputy in the vicinity, when he entered the plant. In contrast to the above testimony was the testimony of Isaacs, Rasor, and Forelady Hart.26 Isaacs testified that at 9 o'clock that evening, upon his return to the plant from dinner, he saw both Harrawood and Goldsberry outside the plant at a point on the county road near where their car was parked; that about 11 p.m. when the third shift reported, and at 1 a.m. when he left for home, pickets were still outside the plant. Rasor, in turn, testified that he personally saw picketing in progress outside the plant when the third shift reported for work; that there were people out on Robert Hall Road and, at times, cars would pull into the drive of the plant, stay there for some periods of time and then pull back into the road; and that a sheriff's deputy came in answer to his call, pulled up to these cars, and asked the peo- ple in the cars and those in front of the drive to move out of the drive. Finally, Hart testified that she saw Goldsberry, Harshberger, and Harrawood outside the plant that evening, that she saw them leave between 8:45 and 9:15, and return in about one-half hour; and that, as far as she knows, these three were still there, on the northside of the road, when she left the plant a little after 12:30 a.m. However, I note that Isaacs testified at one point that those present outside the plant at 11 p.m. were employees and, at another point, that he had no idea who these people were; and, on another occa- sion, he testified that he saw three or four cars and four or five people out there, but altered his ment , she said that "the people would not leave until they had the written information " 23 Johnson corroborated Gray in this detail 24 So far as appears there was no picket line as such The employees who were striking stood around outside the east gate and picket signs were posted in several places nearby 25 Harshberger testified that Goldsberry , Harrawood , and he left the plant area that evening between 7 and 8 p in 26 As heretofore found, Hart was a forelady on the second shift JONES & McKNIGHT, INC. testimony thereafter to say that he saw a couple or three cars out there and does not know how many people were outside the plant.27 In these circum- stances, I find Isaacs' testimony untrustworthy and unconvincing. As to Rasor, I note that nowhere in his testimony does it appear that he recognized any employees among those he claimed were outside the plant that evening. And I note further that his testimony that a sheriff's deputy was present out- side the plant about 11 o'clock in response to his telephone call to the sheriff's office is at odds with the credible testimony of Deputy Sheriff Brais that the sheriff's records fail to indicate that such a call was received that evening from Respondent. Ac- cordingly, I find here too that Rasor's testimony in this respect is not convincing. Further, as to Hart, she impressed me as one who was more concerned with being helpful to Respondent's defense than with testifying truthfully. I, therefore, find her testimony unreliable. On the other hand, Longtin, Smith, and Johnson impressed me as reliable wit- nesses ; and Harshberger and Kurtz gave mutually corroborative testimony as to the whereabouts of Harshberger, Goldsberry, and Harrawood during the periods covered by the testimony of Isaacs, Rasor, and Hart. In addition, entries on company records for the month of July, in evidence as part of General Counsel's Exhibit 2, show that 20 em- ployees worked on the third shift starting on the night of July 17,28 and that this number exceeded the employee complement on that shift at any time that month. In all these circumstances and on the basis of the above-mentioned testimony of Johnson, Longtin, Smith, Harshberger, and Kurtz, which I credit, I find that there was no picketing in progress on July 17 after about 8 o'clock in the evening; and I infer, and find further, that Rasor and Isaacs were aware thereof by the time of the commencement of the third shift that evening. Gray's telephone call to Morris about the men wanting Rasor to put the agreement in writing and about her inability to get Rasor to deal with her thereon resulted in a telephone call from Morris to 27 Isaacs acknowledged that , in his prehearing affidavit to a Board agent, he swore that there were 12 to 15 employees outside the plant Y8 Although these entries appear under date of July 18, it is clear, and I find, that the reference is to the shift which started at 11 30 p m on July 17 and ended on the morning of July 18, and that this was consistent with all third-shift entries therein for July zB Morris could not fix the time more definitely A letter and telegram dated July 18, 1969, from Rasor to Morris were thereafter received by Morris Its text read as follows This is to confirm our telephone conversation of July 17, at approxi- mately 6 30 p in , with reference to the termination of specific em- ployees at the North plant , ( known as Robert Hall Road or Swanson Building ) We wish to confirm that the following employees have been terminated for refusal to go back to their productive assignments as as- signed by our supervisory personnel They are as follows Name Clock Joan Gray 892 Alice Steele 624 Mary Stahl 738 Leslie Harshberger 879 James Goldsberry 695 Fred Harrawood 31 87 Rasor. According to the credible testimony of Mor- ris, he called Rasor and told Rasor that he "didn't see any reason why what we agreed on, even though it might have been tentatively for approval, why it could not be put in writing for the time be- ing." Rasor did not give his answer then but ar- ranged with Morris to telephone him later that evening after he had consulted with his superiors. Morris testified further that "somewhere after 9 o'- clock" and before midnight29 Rasor did call him again and informed him that the position of the Company was that, in addition to discharging Gold- sberry, Harshberger, and Harrawood, certain other employees, whom he named, were to be discharged; Rasor also said that Morris "would have a follow-up on the thing."" Morris, in turn, relayed Rasor's response to Gray, reaching her about 12:30 a.m. Gray testified credibly that Morris then told her that Respondent had agreed to lower the quota, to raise the incentive pay, and to give the employees a 10-minute break in the shade every hour, and that Morris also read to her the name of the 11 employees who were being discharged. In addition, according to Gray, Morris told her to go to work that morning, as usual, and punch in on her timecard and act as if she had not received his telephone call. It is apparent from the record, and I find, that the letter and telegram erred in referring to the time when Rasor apprised Morris on the telephone of these discharges as 6:30 p.m. on July 17. Thus, Rasor testified that: (1) at 7 o'clock that evening he received the telephone call from Gray with respect to reducing the agreement to writing; (2) shortly after 8 p.m. he held a telephone conversation with Morris;31 and (3) sometime after I1 p.m. he con- ferred with Isaacs at the North plant as to whether to take disciplinary action and decided to discharge these 11 employees. Further, Isaacs testified that the above conference with Rasor occurred "real late at night" on July 17, in the time period when the third shift was working.32 It follows, therefore, and I find, from the foregoing time sequence in the Mary Jones 618 Luvema Johnson 656 Roger Wesselman 960 Roger Kilman 890 Sidney Brister 870 " Rasor testified that he telephoned Moms and told Moma that [he] understood that the people were not going back to work unless [he ] signed the paper", however, he could not remember Morris' answer As already found, Moms testified that he initiated the telephone call and asked Rasor about reducing the agreement to writing and that Rasor did not give him an answer but promised to telephone him after he had consulted his superiors In these circumstances, and as Rasor did not deny Gray's testimony that he told her on the telephone to have the representative of the Union contact him on the matter of reducing the agreement to writing , and, further, as the logic of the situation suggests that Rasor would then have waited to hear from Morris, I do not credit Rasor's testimony that he initiated the telephone call And since Morris impressed me as a more credible witness than Rasor, I credit Morris ' version of the content of that conversation " In this connection, Issacs characterized as "a mistake " the statement in his preheanng affidavit to a Board agent, in evidence as G C Exh 2, that the decision to discourage employees Gray, Steele, Johnson, Jones, Stahl, and Wesselman was made at a conference between Rasor and him "about 7 45 ain July 18" 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-mentioned testimony of Rasor and from the above testimony of Isaacs, that the telegram did not correctly reflect the time when Rasor commu- nicated to Morris the decision concerning these 11 discharges. In addition, I conclude and find further, from the foregoing, that Rasor decided to discharge these 11 employees on July 17, after the third shift had gone to work at 11:30 p.m., and that Morris learned thereof through a telephone call from Rasor shortly before midnight.33 Gray arrived at the plant between 6:30 and 6:45 on the morning of July 18. There were no em- ployees standing outside the gates to the plant and there were no cars parked along the county road. It was raining at the time. She entered and looked for her timecard in the customary place in the plant and it was not there among the other timecards. Nor could she find the timecards of those who were on the list of dischargees that Morris had relayed to her on the telephone. Gray then proceeded to the area of the gates and, as employees arrived, Gray communicated to the dischargees the fact of their discharge and what she had learned from Morris in that connection. Only 7 employees worked on the first shift that day out of a normal complement, in- cluding the dischargees, of about 20 employees. Those who appeared at the plant and learned of their discharge adjourned- to the Hawaiian Inn along with some of their coworkers34 to decide on their next step. There they contacted Morris, told him of developments that morning, and arranged for him to come to the inn. During the meeting with Morris that followed, according to a composite of the credible testimony of Morris and Gray, Morris advised that they file a grievance with respect to those 11 employees who reported for work that morning and did not find their timecards inn the racks. The assembled employees told Morris that they were not going back to work until all 11 had been rehired. A grievance was, in fact, prepared at this time and the grievance was then presented to Rasor at the North plant by Morris and employees Gray and Johnson. Morris indicated to Rasor that he had 72 hours within which to answer and Rasor replied that Morris could expect an answer within that period. At this, Morris, Johnson, and Gray left. Outside the plant, at the gate, they found Goldsber- ry, Harshberger, Harrawood, and " a couple of guys on the second shift." Morris told these men not to picket or cause any trouble out there, that they had to give Respondent 72 hours to answer the ° As Morris placed Rasor's telephone call to him as "somewhere after 9 o'clock and before midnight ," it is apparent that the above finding is not in- consistent with his testimony " Some of their coworkers from the first shift remained outside the gate and did not work that day I find hereinafter that they were striking in protest against the above discharges u The letter listed them as Joan Gray, Luvenia Johnson, Mary Jones, Alice Steele, Leslie Harshberger, James Goldsberry, Roger Kilman, Fred Harrawood, and Roger Wesselman "1e The notation on the timecards of these individuals said, "Terminated for creating a work stoppage " grievance, and, further, that if Respondent did not answer within that period they could strike. The above grievance, which was signed by 20 employees, sought both an explanation from Respondent as to "why our timecards were not in the racks" on July 18, and backpay for time lost from work that day. The grievance was denied by Rasor, as plant superintendent, with an explanatory letter, dated January 21, which Morris received on July 22, a Tuesday. In it, Rasor explained that 935 of the 20 employees did not find timecards in the racks because they had been discharged on July 17 for refusing to work when their supervisor assigned them to production tasks;36 that an additional 937 never showed up for their scheduled workday on July 18; that another employee38 arrived for work before the timekeeper's schedule for placing the timecards for the first shift in the racks and would not wait for the scheduled punch-in time of 6:45 to 7 a.m.; and that the remaining employee39 did punch in at the scheduled time but left the premises shortly thereafter. It is obvious that, although the second step of the contractual grievance procedure requires that a meeting between a representative of Respondent and the grievance committee be held within 72 hours of the date appearing on the grievance in order to effect a settlement of the grievance, such a meeting was not held. Instead, as seen above, Rasor proceeded unilaterally by letter. Upon receiving Rasor's answer, Morris initiated the third step of the grievance procedure by calling the president of the local of the Union herein, advising her of the denial of the grievance, and urging that a meeting as required by that step be arranged .40 A meeting was then arranged for 3:30 p.m. on Wednesday, July 23. According to Morris, he informed Gray on Wednesday morning that a meeting between management and the regular grievance committee, which consisted of both the president and the vice president of the local and the chief job steward, was to be held that afternoon at 3:30 p.m. concerning the pending grievance and asked her to contact the employees who had grieved and have them appear at the appointed place and time for the meeting. However, Gray testified that on Tuesday, July 22, her message from Morris was that all the grievants were to wait at home for a telephone call from him as to the meeting the following day, and that at 10:10 a.m. the following day she received a telephone call from Morris saying that the meeting 'r The letter listed them as Jean Johnson, Edith Robinson , Jean Harrison, Darlene Courtney, Vera Washington, Eva Hale, Judy Mussa, Donna A bras- sart, and Annabelle Parks Mary Kurtz Mary Lambert au Thus, the contract requires that notice thereof must be given within 2 days of the impasse reached in step 2 and calls for a representative of the Union, the grievance committee, and an authorized company representa- tive to meet in an effort to arrive at a satisfactory settlement of the grievance JONES & McKNIGHT, INC. 89 was canceled by Respondent without giving any reason and asking that she inform the rest of the grievants. She testified further that, after Wed- nesday, she learned that the meeting had been held. Steele , on the other hand, testified, in substance, that she received a telephone call from Gray on Monday that the meeting in connection with the second step of the grievance procedure had been called off; that the following day, a Tuesday, Gray and she visited Morris at his home and were told by Morris of the meeting to be held the following day; and that Morris did not then know the time of the meeting but said that he would let Gray know and that she was to notify the others. In all these cir- cumstances, I find that Morris' testimony, as in- directly reinforced in part by the testimony of Steele, is more reliable than that of Gray on this point, and that Gray was, in fact, notified by Morris of the meeting to be held on July 23 in connection with the third step of the grievance procedure and that he had asked her to be present and to notify the other grievants to be present. None of the grievants appeared at the appointed time and place for the July 23 meeting. After wait- ing an hour, the grievance committee of the local of the Union and Rasor decided not to wait any longer and left. According to Rasor, he regarded the grievance as "dropped." There has been no request by the grievants for reinstatement of their grievance, nor has any written request been made for submission of the grievance to arbitration, which is the fourth step of the grievance procedure. According to the allegations of the amended complaint, on or about July 23 Respondent ter- minated 24 employees for engaging in strike activi- ty. This number was thereafter reduced to 23 when I granted Respondent's motion, during the hearing, to dismiss the complaint, as amended, with respect to employee Vernon Gomez. With respect to 6 of these 23 employees, namely, Charles Johnson, Edna Marsh, Larry Smith, Jonnie Louis, Vera Washington, and Edith Robinson, Respondent as- serts that it discharged them about July 23 because they refused to remove the picket lines and return to work. With respect to eight employees in this group, namely, Eva Hale, Mildred Daily, Darlene Courtney, Jean Ann Johnson, Mary Kurtz, Jean Harrison, Annabelle Parks, and Tom Brooks, Respondent stipulated that they did not report for work for 5 days, that Respondent presumed that they had quit, and that on or about July 23 Respon- dent sent each of them a telegram saying that he or she was no longer working for Respondent. The remaining nine employees in this group, namely, Philip McCormac, Eva Emery, Sandra Jensen, Linda Archer, Leslie Longtin, Robert Potter, Robert Jackson, Kenneth Gremar, and Jerry Kuntz, were terminated, according to counsel for Respond- ent, when they failed to respond to telegrams which said, "Report to work or you will be ter- minated." As to all these last-mentioned 17 em- ployees, except Brooks, it was also stipulated that they were on the picket line either on July 17 or during the ensuing week and that Respondent was aware thereof. And as to Brooks, since it is ap- parent that he suffered the same adverse personnel action as seven other employees who were admit- tedly seen on the picket line by Isaacs, I infer, and find, notwithstanding Isaacs' noncommittal answer as to whether he saw Brooks on the picket line, that Respondent, at the least, believed that he was one of the picketers. I am therefore persuaded, and find, that, as Respondent either knew, or believed, that all employees in the group of eight mentioned above were picketing, there was no warrant for its presumption that they had quit. And I conclude and find further, in view of this and all the circum- stances of the case, that these eight individuals were terminated on or about July 23, during the strike, because of their concerted activity in strik- ing, as alleged . And since the remaining nine em- ployees were also known to have engaged in picket- ing and since they were offered the alternative of returning to work or being terminated, and did not return, it follows, and I find, that they were, like the group of eight employees discussed above and the six employees admittedly discharged because of their strike activity, terminated on or about July 23, during the strike, because of their concerted activi- ty in striking.41 C. The Alleged Discriminatory Conduct 1. The first group of alleged discriminatees The General Counsel concedes, in his brief, that the strike activity at the North plant on July 17, which began about noon, constituted unprotected activity because it violated the no-strike clause of the collective-bargaining agreement covering these employees, and, further, that it follows therefrom that the discharges of employees Harrawood, Gold- sberry, Kilman, and Harshberger during the early afternoon of July 17 for supporting the strike were not violative of the Act. However, he argues, in ef- fect, that at the meeting thereafter between Rasor and the ad hoc grievance committee of the striking employees, which meeting ended at 6:45 that even- ing, Respondent condoned this unprotected strike activity and reinstated these four dischargees on condition that the employees take down their picket line42 and allow the third-shift employees to go to work that evening; and that the employees complied with this condition in that they removed the picket line by 7:50 p.m. and in that 20 em- ployees did, in fact, work on the third shift that " It is clear from the record that the strike was not sanctioned by the Union 42 As already found herein, the employees on the ad hoc grievance com- mittee undertook to talk the remaining employees on the picket line into going home 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evening-a number not equalled or exceeded on any third shift during July. Nevertheless, his argu- ment continues, Respondent reneged on the con- donation agreement by discharging the four above- named employees, and by also discharging six other employees 3 because they were the instigators of the strike activity," and that such discharges vio- lated Section 8(a)(3) of the Act. Respondent takes the position in its brief, in sub- stance, that no condonation agreement was reached at the meeting between Rasor and the ad hoc grievance committee; that, instead, an offer of con- donation was made by Respondent which could only be accepted by the removal of the picket line itself and "could not be accepted by the mere promise of a few of the employees to attempt to remove the picket line," and, until the picket line was, in fact, removed, there was no acceptance of Respondent's offer to take the striking employees back to work; that Gray's communication to Rasor, about 7:45 p.m., that a number of striking em- ployees would not leave the picket line until Rasor's offer was put in writing, in effect advised Rasor that his offer had not yet been accepted; that, having verified, through Rasor, about 8 p.m., that the pickets were still outside the plant gate, Respondent was free "under any interpretation of standard contract law" to withdraw its offer, if it so desired, prior to the acceptance thereof and the communication of such acceptance to it by the em- ployees; and finally that Respondent did withdraw its offer45 in accordance therewith when it advised Morris of the termination of these employees, thereby becoming "free at that point to discipline any or all of its employees who engaged in the work stoppage and wildcat strike in clear violation of its collective bargaining agreement with the Union." I find Respondent's position to be lacking in merit. "Condonation is a question of fact, and a determination of whether an employer has forgiven unprotected activity of its employees requires an evaluation of all the relevant conduct."46 Also. "condonation requires a demonstrated willingness to forgive the improper aspect of concerted action, to `wipe the slate clean.' After a condonation the employer may not rely upon prior unprotected ac- tivities of employees to deny reinstatement to, or otherwise discriminate against, them."47 In addi- tion, technicalities of contract law are not the key to determining whether all the relevant conduct constitutes condonation. Thus, the court in the above-cited Confectionery & Tobacco Drivers Union case, at page 111, in passing on the employer's ar- Gray, Johnson, Jones, Steele, Stahl, and Wesselman As already found, the telegram and letter dated July 18, which were sent in this connection to Morris , the International representative of the Union, listed I I employees However, it appears that it included one Sid- ney Brister , who was discharged at that time for reasons unrelated to the strike herein and whose discharge is not in issue in this proceeding " Respondent places the time of the withdrawal of its claimed offer at about 9 p in , on July 17 However, it argues that whether Respondent's decision occurred at 6 30 p in , as set forth in the heretofore mentioned guments that no condonation finding was warranted because (1) the strikers never carried out their part of the bargain wherein they were to withdraw a pending unfair labor practice complaint, and (2) the purported condonation agreement in open court was never reduced to a confirmed order, commented, as follows: "But the Company withdrew from the reinstatement agreement before either of these steps could be taken; and moreover, its arguments are unpersuasive for they miscon- ceive the nature of the condonation principle, which, reflecting a clear public interest in the prompt settlement of labor disputes, is more akin to the doctrine of waiver than to the technicalities of contract law (citing N.L.R.B. v. E.. Laboratories, 188 F.2d 885 (C.A. 2), cert. denied 342 U.S. 871)." It follows from all the foregoing, therefore, that Respondent espouses a view of the condona- tion principle which is at odds with existing legal precedent when it urges that (1) there was no con- donation agreement in effect at the time it discharged the group of 10 employees because the striking employees had not yet carried out their part of the contemplated bargain of withdrawing the existing picket line and advising it thereof, and (2) all that occurred here was an offer of Respon- dent to condone, which it withdrew in timely fashion before the offer was accepted and it was ad- vised thereof. Accordingly, as Respondent con- cedes in its brief that it offered, at the meeting with the ad hoc grievance committee, to forgive the im- proper aspect of the concerted action, provided the striking employees took the step of removing the picket line so that the third-shift employees could go to work that evening;48 as such an offer is tan- tamount to an expressed willingness to forgive such improper concerted action, "to wipe the slate clean"; and as the fact that steps are still to be taken by those who are the object of this forgive- ness does not militate against a finding of condona- tion, I conclude, and find, that Respondent did then condone the unprotected strike action of all the strikers. Moreover, even assuming arguendo, the correct- ness of Respondent's own view of the condonation principle, the record, as found herein, would still require a finding of condonation. Thus, I have heretofore found that (1) the picket line had, in fact, been withdrawn by about 8 p.m. that evening; (2) the above discharges occurred more than 3-1%2 hours thereafter (i.e., between 11:30 p.m., when the third shift began, and midnight), at a time when Rasor was already aware of the cessation of the telegram and letter from Rasor to Morris , or at 9 p m , "is immaterial, because in either event the withdrawal of the offer was made before the respondent had been advised of its acceptance " ' M Eskin & Son, 135 NLRB 666, 667, affd sub nom Confectionery & Tobacco Drivers and Warehousemen's Union, Local 805, /BTCWHA v NLRB,312F2dl08(CA 2) " Confectionery & Tobacco Drivers and Warehousemen's Union, Local 805, (BTCWHA v NLRB , 312 F 2d 108,113 (C A 2) '" All the relevant conduct establishes, I find, that this was so JONES & McKNIGHT, INC. picketing; and (3) the complement on the third shift that night exceeded numerically any other third-shift complement that month. Hence, before Rasor proceeded to discharge the above-mentioned 10 employees, the striking employees had, to Rasor's knowledge, complied with their obligations in the premises, and the concern which Rasor had over whether he would have the third shift at work that evening had been effectively removed. In conclusion, therefore, having once condoned the otherwise unprotected aspect of the strike and having thereby waived its right to discharge the strikers or to refuse to reinstate them for breaching the no-strike clause of the governing collective-bar- gaining contract, Respondent's change of heart and actual discharge or refusal to reinstate them because of their strike activity constituted a reprisal for their, by then, protected engagement in such ac- tivity. And this is especially so where, as here, the strikers had already removed the picket line in reliance on Respondent's word that all strikers, in- cluding those already discharged, could, if they did so, return to work. Accordingly, I conclude and find that by discharging Joan Gray, Alice Steele, Mary Stahl, Mary Jones, Luvenia Johnson, and Roger Wesselman, and by refusing to reinstate James Goldsberry, Leslie Harshberger, Fred Har- rawood, and Roger Kilman, Respondent violated Section 8(a)(1) of the Act.49 2. The second group of alleged discriminatees As heretofore found, in the wake of Respon- dent's action of terminating the aforesaid 10 em- ployees, there occurred on July 18 further strike action. The record also shows that there was picketing in support thereof and that this picketing was enjoined by court action on July 25, at the in- stance of Respondent. In the interim, on or about July 23, as also found above, Respondent ter- minated 23 additional employees-all of whom Respondent either knew, or believed, had engaged in picketing-for joining in the strike. It is clear, and I find, that the strike action on July 18 and thereafter was not caused by economic considerations. So far as appears, the employees were satisfied with the terms of the strike settle- ment . Indeed, the only reason for the desire of these striking employees to get the strike settlement agreement in writing was the fact that the yardmen, who were unaffected by the economic gains achieved through the settlement, did not believe that Respondent would keep its word to reinstate them. And nowhere does it appear that Respondent was reneging on its promise to grant the economic gains embodied in the settlement. Accordingly, since it is also clear that Respondent had, however, '' Although Morris, the International representative of the Union , served on the ad hoc grievance committee at the instance of the strikers, he repu- diated their strike action throughout Accordingly , I find that the strike constituted concerted and not union activity 30 See Mastro-Plastics Corp, et a! v N L R B, 350 U S 270, 281, and 91 reneged on its promise that no one would be punished for striking in breach of the no-strike clause, and since the further strike action occurred soon after the fact that Respondent had reneged by terminating 10 employees was broadcast to the em- ployees by Gray, I infer and find that this further strike action was triggered by these terminations and was in protest thereof. And I find, here too, al- beit for different reasons from those relied on in connection with the strike action preceding the condonation by Respondent, that the no-strike clause of the contract does not adversely affect the rights of the strikers. In this connection, it cannot be gainsaid that by its unlawful discrimination against 10 employees on July 17 Respondent com- mitted serious unfair labor practices. And the law is clear that even an express no-strike clause does not waive the rights of employees to strike against an employer's serious unfair labor practices. In addi- tion, the law is also clear that unfair labor practice strikers, as here, are not required to obtain prior union authorization." In view of all the foregoing, I conclude and find that Respondent violated Section 8(a)(1) of the Act by discharging the 23 employees on or about July 23, 1969, because of their strike activity during the period commencing July 18. I am cognizant of the facts that (1) no one in the group of 10 found above to have been dis- criminated against on July 17 pursued the grievance as to their separation, filed under the ex- isting contractual grievance procedure which cul- minates in arbitration, beyond the second step; and (2) no one in the group of 23 found to have been discriminated against ever filed a grievance con- cerning his termination. However, the issues relat- ing to all these individuals, namely, whether they were discharged or refused reinstatement because of their protected concerted activity, is not one which falls within the special competence of an ar- bitrator but is rather primarily one which calls for resolution under the provisions of the Act, which the Board is charged with enforcing. Accordingly, contrary to Respondent, the failure on the part of the individuals herein either to follow through with the grievance procedure or to file a grievance, at all, does not preclude a challenge of any of such terminations before the Board.52 Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. Arlan's Department Store of Michigan, Inc, 133 NLRB 802 " See Mastro-Plastics, supra, 350 U S 270, 273, fn 4 "See McLean Trucking Company, 175 NLRB 440, Hoerner- Waldorf Paper Products Co, 163 NLRB 772, and Pontiac Motors Division, General Motors Corporation, 132 NLRB 413 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent violated Section 8(a)(1) of the Act by: (a) discharging Joan Gray, Luvenia John- son, Mary Jones, Mary Stahl, Alice Steele, and Roger Wesselman on July 17, 1969, because of their protected concerted activity in striking; (b) refusing to reinstate James Goldsberry, Fred Har- rawood, Leslie Harshberger, and Roger Kilman on July 17, 1969, because of their protected concerted activity in striking; and (c) discharging Linda Archer, Tom Brooks, Darlene Courtney, Mildred Daily, Eva Emery, Kenneth Gremar, Eva Hale, Jean Harrison, Robert Jackson, Sandra Jensen, Ann Johnson, Charles Johnson, Jean Ann Johnson, Jerry Kuntz, Mary Kurtz, Leslie Longtin, Jonnie Louis, Edna Marsh, Philip McCormac, Robert Potter, Edith Robinson, Larry Smith, and Vera Washing- ton, on or about July 23, 1969, for their concerted activity in striking. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. In order to remedy both the unlawful discharges and the refusals to reinstate found herein , I shall recommend the following: As to employees James Goldsberry, Joan Gray, Fred Harrawood, Leslie Harshberger, Luvenia Johnson, Mary Jones, Mary Stahl, Alice Steele, and Roger Wesselman, all of whom were no longer on strike on July 17, 1969, at the time Respondent either discharged or refused to reinstate them, as the case may be, and were thereby precluded from resuming their employment on July 18, 1969, in accordance with the settlement agreement, I shall recommend that Respondent offer each of them reinstatement and make each whole for any loss of earnings suffered by him from July 18, 1969, until the date of Respondent's offer of reinstatement to him. However, as to Roger Kil- man there is undenied testimony by Isaacs, which I credit, that Kilman had, prior to the critical events of July 17, told him that he was going to quit on July 18. Accordingly, I shall recommend that Respondent not be required to offer him reinstate- ment or any backpay. Further, with respect to the remaining 23 employees listed in the Conclusions of Law above, who were unfair labor practice strikers at the time they were discharged, and who, so far as appears, had not abandoned the strike and applied for reinstatement, I shall recommend that Respondent reinstate them upon application, dismissing, if necessary, persons hired by Respon- dent on and after July 18, 1969; however, should Respondent refuse to reinstate them, Respondent shall then make whole each such employee for any loss of earnings suffered by him for so long as such refusal continues, beginning 5 days after he applies for reinstatement.53 Reinstatement, where required herein , shall be to their former or substantially equivalent positions of employment, without preju- dice to their seniority and other rights and privileges; and backpay, where due, shall be com- puted in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereon in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent, its of- ficers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discharging employees and/or refusing to reinstate them for engaging in conduct which con- stitutes concerted activity protected by Section 7 of the Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization , to form , join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities, except to the extent that such right may be affected by any agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Offer James Goldsberry, Joan Gray, Fred Harrawood, Leslie Harshberger, Mary Jones, Lu- venia Johnson, Mary Stahl, Alice Steele, and Roger Wesselman immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority and other rights and privileges, and make each of them whole for any loss of earnings each has suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Upon application, offer immediate and full reinstatement to all employees listed hereinafter to their former or substantially equivalent position, without prejudice to their seniority and other rights and privileges , dismissing, if necessary , persons hired by it on or after July 18, 1969. Make whole any of such employees for any loss of earnings suf- fered, if it should refuse to reinstate him, for so long as the refusal continues, beginning 5 days after said employee applied for reinstatement, and com- puting the loss of earnings in the manner set forth M See Sea-Way Distributing, Inc, 143 NLRB 460 JONES & McKNIGHT, INC. in the section hereof entitled "The Remedy." The employees in this group are: Linda Archer, Tom Brooks, Darlene Courtney, Mildred Daily, Eva Emery, Kenneth Gremar, Eva Hale, Jean Harrison, Robert Jackson, Sandra Jensen, Ann Johnson, Charles Johnson, Jean Ann Johnson, Jerry Kuntz, Mary Kurtz, Leslie Longtin, Jonnie Louis, Edna Marsh, Philip McCormac, Robert Potter, Edith Robinson, Larry Smith, and Vera Washington. (c) 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 necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Notify those named in paragraphs (a) and (b) above, if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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. (e) Post at its North plant in Kankakee, Illinois, copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Officer-In-Charge for Subregion 38, shall, after being signed by a representative of Respondent, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Officer-In-Charge, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply herewith.55 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the aforesaid Officer-In- Charge, in wnting , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, 93 and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or refuse to reinstate employees for engaging in conduct which con- stitutes concerted activity protected by Section 7 of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be af- fected by any agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a)(3) of the Act, as amended. WE WILL offer the following persons im- mediate 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 pay suffered as a result of the discrimination against them: James Goldsberry Luvenia Johnson Joan Gray Mary Stahl Fred Harrawood Alice Steele Leslie Harshberger Roger Wesselman Mary Jones WE WILL, upon application, offer immediate and full reinstatement to the following em- ployees to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, persons hired by us on or after July 18, 1969. Further, if we should refuse to reinstate any of these employees listed hereinafter, immediately upon applica- tion, we shall make such employee or em- ployees whole for any loss of pay suffered as the result of such refusal from a date beginning 5 days after application was made for employ- ment, and for so long as such refusal continues: Linda Archer Tom Brooks Darlene Courtney Mildred Daily Eva Emery Kenneth Gremar Eva Hale Charles Johnson Jean Ann Johnson Jerry Kuntz Mary Kurtz Leslie Longtin Jonnie Louis Edna Marsh 94 DECISIONS OF NATIONAL Jean Harrison Philip McCormac Robert Jackson Robert Potter Sandra Jensen Edith Robinson Ann Johnson Larry Smith Vera Washington JONES & MCKNIGHT, INC. (Employer) Dated By (Reprk sentative ) (Title) Note : We will notify the above -named employees, if presently serving in the Armed Forces of the LABOR RELATIONS BOARD 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 of 1948 , as amended , after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Savings Center Tower , 10th Floor, 411 Hamilton Boulevard, Peoria , Illinois 61602, Telephone 282-673-9282.