Calmos Combining Co.

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calmos of America, AFL-CIO. Case August 18, 1970 14-CA-5381 letin board. Because they were still there a few Combining Co. and United Textile Workers Oshins noted the men standing around the bul- DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On April 16, 1970, Trial Examiner Benjamin K. Blackburn 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 de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent'filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. The Trial Examiner found that Respondent vio- lated Section 8(a)(3) and (1) of the Act by discharging Shop Steward Harts for his use of in- subordinate and abusive language while processing a grievance and rejected Respondent's contention that this conduct was unprotected. We find merit in the Respondent's exceptions. The facts are not in substantial dispute. Harts was discharged in the course of an altercation between himself on the one hand and Plant Manager Oshins and Plant Superintendent Zambrzuski on the other concerning the appropriate classification and wage rate due employee Gordon under the existing col- lective-bargaining contract . After Harts raised this matter with Zambrzuski, Oshins and Zambrzuski decided that Gordon was properly rated Class B and was not entitled to the higher pay rate . Zambr- zuski so informed Gordon and Harts , but Harts dis- agreed, and the three men walked to the bulletin board to discuss the contract posted there. ' This conclusion is supported by Oshins' comment to the police when they arrived that, "This is the man who refused to leave the premises after being discharged." minutes later , he asked Zambrzuski what was going on and was told that they were still discussing Cor- don's pay and the related contract problem . Oshins told them to end the discussion and that if the deci- sion he had given them was unsatisfactory to use the grievance procedure and return to work, and the conversation ended. Moments after the men returned to their machines, the bell rang for the afternoon break, and Harts went to the shipping room and sat down. Zambrzuski and Harts there resumed their discus- sion, at Zambrzuski 's invitation , but continued it at Hart's machine because Harts thought he had left the machine running . Voices were raised and from his office Oshins heard shouting which he identified as Harts' alone . Oshins went to Harts' machine and told Zambrzuski to break off the discussion as it was causing a disturbance . Harts explained they were discussing Gordon's raise, but Oshins told Zambrzuski again to break off immediately. Harts stated then, "You can't shut me up, I'll shout all I want to." Oshins insisted he be quiet, and Harts responded, "I don't give a damn what you say, I'll shout all I want to, and if you don't like it, tell me to leave." Whereupon, Oshins replied, "All right, you leave." Harts answered that if Oshins wanted him to leave, Oshins would have to put him out. Oshins stated he did not do that sort of thing, but if he had to , he would call the police . Harts said he did not "give a damn" what Oshins did, and Oshins called the police. Harts went into the shipping area after Oshins had told Zambrzuski to punch Harts out. Zam- bruski wrote on Harts' timecard ' that Harts was discharged as of 2:30 p.m., and he returned and told Harts he might as well leave as he was punched out as of 2:30. The Trial Examiner found that the discharge occurred at that time , and we agree.' We agree with the Respondent that Harts ' refusal to follow the direct order to stop shouting and his abusive language constituted unprotected activity .2 Neither the direction to stop shouting nor Harts' response thereto was related, other than tangen- tially, to employee Gordon 's grievance. Oshins had decided with Zambrzuski that Gordon was properly rated , and Oshins specifically proposed, during the discussion at the bulletin board and prior to the al- tercation,_ that Harts take the next step in the grievance procedure if the decision given with respect to the particular grievance was unsatisfacto- ry. Harts not only refused to cease shouting, but ' In view of our decision herein , we find it unnecessary to consider the other contentions of the parties including that relating to Harts' further conduct after the discharge 184 NLRB No. 107 CALMOS COMBINING CO. dared Oshins to discharge him. Thus, Harts' con- tinued intransigence was not a part of the res gestae of the grievance discussion .3 Rather , the order to stop shouting was a reasonable and lawful order that should have been obeyed , and his refusal to do so was not related to Harts' protected processing of the grievance.4 We are persuaded , on the basis of the foregoing facts, that the activity for which Harts was discharged was unprotected . Accordingly , we find that the Respondent did not violate Section 8(a)(3) or (1) of the Act in discharging him therefor on November 18, 1969 , and we shall dismiss the com- plaint herein. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER BROWN , dissenting: I disagree with the majority's dismissal of the complaint . I would find , for the reasons stated by the Trial Examiner , that the Respondent violated Section 8 (a)(3) and ( 1) by discharging Shop Steward Harts for protected activity in the aggres- sive processing of an employee's grievance.5 As I view the facts, Harts' activity occurred in the course of a discussion of a grievance as to which first step discussion was continued on the instiga- tion of Plant Supervisor Zambrzuski . Under these circumstances , I cannot agree that the events in is- sue, i.e., the loud voices resulting from high feelings, may be viewed as a separate incident from the grievance discussion itself . Accordingly , I agree with the Trial Examiner that Harts was engaged in protected activity and I would adopt the Trial Ex- aminer's Decision in its entirety. 3 Cf Thor Power Tool Company, 148 NLRB 1379, 1380, enfd 351 F 2d 584(C.A 7) 4 See Chevrolet, Division of General Motors Corporation, 161 NLRB 438, 441 (Member Brown concurring in the result ), Klate Holt Company, 161 NLRB 1606, 1609-10 In addition to those cases cited by the Trial Examiner, see Crown Cen- tral Petroleum Corporation, 177 NLRB 322. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Trial Examiner: On November 19, 1969 , United Textile Workers of America, AFL-CIO, referred to herein as the Charging Party or the Union , filed the charge in this case against Calmos Combining Co., referred to herein as Respondent . On January 2, 1970, the General Counsel of the National Labor Relations 915 Board , by the Regional Director for Region 14 (St. Louis, Missouri), issued a complaint . Respondent's answer, duly filed, admitted certain allegations of the complaint and denied others, including the al- legation that it had committed unfair labor prac- tices. Pursuant to due notice, hearing was held before me in St . Louis on February 26 and 27, 1970. The issue litigated was whether Respondent discharged Elmore Harts on November 18 for carrying out his duties as the Union 's steward in Respondent 's plant in a proper manner, thus violating Section 8(a)(3) and (1) of the Act, or for cause . All parties ap- peared and were given full opportunity to par- ticipate , to adduce relevant evidence , to examine and cross-examine witnesses , to argue orally, and to file briefs . Upon the entire record , including briefs filed by Respondent and the General Counsel, and from my observation of the demeanor of the wit- nesses while testifying under oath , I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent , a Missouri corporation , is engaged in the business of gluing backing such as rubber to fabrics, leather, and similar materials . During 1969 Respondent purchased and received at its plant in St. Louis goods and materials valued at more than $50,000 which were shipped directly to the plant from suppliers outside Missouri. On the basis of these admitted facts, I find that Respondent is en- gaged in commerce within the meaning of Section 2(6) and ( 7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICE A. Facts Respondent is the successor to a firm called Columbia of St. Louis . Columbia closed in early 1967. Lawrence Oshins formed Respondent, acquired Columbia's assets, and reopened under the Calmos name with Columbia 's employees in March 1967. The Charging Party represented Columbia's employees before Columbia's demise. It continued to represent them when they became Respondent 's employees . Elmore Harts went to work for Columbia in 1962. He was the Union's steward when Columbia closed. He continued in that capacity when Respondent reopened the busi- ness . At the time of his discharge by Respondent on 427-835 0 - 74 - 59 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 18, 1969, he had been steward for some 3 or 4 years. Because absentee ownership was proving ineffi- cient, Oshins took over personal supervision of Respondent in October 1968. In April 1969 he hired Edward Zambrzuski as plant superintendent. The contract in effect between Respondent and the Charging Party in 1968 and 1969 contains a unit work preservation section which reads: Employees not included in the collective bargaining unit shall perform no production work. Supervisory employees shall serve in that capacity only and they shall not perform any work or operation at any time whatsoever which is considered bargaining unit work, ex- cept in demonstrating operations , testing or in- specting equipment or instructing workmen, or repairing or making adjustments on machines with the operator of the machine present. It also contains a four-step grievance and arbitra- tion article which reads, in part: A. The employee involved [in any grievance or complaint ] and the steward shall attempt settlement of the grievance with the plant foreman.' B. If not disposed of within four (4) working days, the grievance shall be reduced to writing by the union , signed by the employee involved or employees involved, and then negotiated between the shop committee and the plant su- perintendent.' It also contains a no-strikes or -lockouts article which reads: During the term of this contract, the union agrees that it will not cause or permit a strike of any kind and the company agrees that there shall be no lockout. The classification and wage schedules which are a part of the contract read , in part: Class A. Operators: Operators capable of and who set up, run and make all adjustments for production operation of all machines and equipment used in production by the company ... Class B. Operators: Can Operators: Operators capable of and who set up, run and make adjustments for production running of the can machines ... General Machine Operators: Operators capa- ble of and who set up, run and make adjust- ments on either a spreader, make-up machines, doubler or skin machine. As of November 18, 1969 , the contract rate of pay for a Class A operator with 12 months ' seniority was $2 . 60 an hour. For a Class B operator with 12 months' seniority the rate was $2.55. There is no provision in the contract for automatic progression from Class B to Class A status at the end of a period of service as a Class B operator. Harts, a Class A operator , was a diligent steward, particularly with respect to attempts to enforce the work preservation section of the contract. He frequently and insistently protested to Zambrzuski that Zambrzuski was performing unit work,2 so much so that Zambrzuski and Oshins concluded that he was a nit-picker who interfered with production and Zambrzuski formed the opinion that Harts was deliberately trying to harass him. On one occasion during the summer of 1969 Oshins, provoked at Harts' continuing to press a grievance orally even though Respondent had rendered its first-step decision, ordered Harts to stop arguing and get back to work . He pointed out to Harts that the proper procedure under the contract, if he was not satisfied with Respondent's decision , was to file a written grievance . On another occasion , Zambr- zuski moved the employees' lockers from a secluded spot in the rear of the plant to an area near a large window in the front of the building so that he could keep an eye on the men while they were at their lockers . Harts demanded a curtain for the window and a partition around the lockers. Zambrzuski granted the curtain but denied the par- tition . Harts said that he would take the men out on strike if they did not get a partition.' The partition was not erected . Harts did not take the men out on strike. The grievance over the partition was not car- ried to the second step of the grievance procedure. Harts was not disciplined in any way for threatening a wildcat strike. On November 18, 1969, Respondent 's full com- plement of eight in-plant bargaining unit employees was at work. Shortly after work began at 8 a.m., Fred Gordon , a Class B can operator earning $2.55 an hour, told Harts he thought he was entitled to a nickel raise under the contract . Harts told Zambr- zuski . Zambrzuski said he would check it out and let Harts and Gordon know . Zambrzuski consulted Oshins . Between them they decided that , because Gordon was not capable of operating all the machinery in the plant, he was not entitled to Class A status and the $2.60 rate provided in the con- tract. A few minutes before the regular 10-minute af- ternoon break was scheduled to begin at 2:20 p.m., Zambrzuski told Gordon and Harts that Gordon was not due a raise. Harts insisted he was and of- ' Respondent has no plant foreman as such Zambrzuski acts for Respon- dent in both the first and second steps of the grievance procedure 2 What happened, who was right, and who was wrong in each of these episodes are immaterial In each instance, Zambrzuski took the position that what he was doing came within the exceptions listed in the contract ' I do not credit Harts ' denial that he made this statement CALMOS COMBINING CO. 917 fered to show Zambrzuski the provision in the con- tract which controlled . 4 Consequently , all three men moved from Harts ' spreader machine to a bul- letin board where a copy of the contract was posted . As Harts and Zambrzuski were discussing the issue , Oshins walked by on his way to the men's room . When he came out shortly thereafter he discovered they were still there . He asked Zambr- zuski what was going on. Zambrzuski said that he was trying to explain their decision on Gordon's complaint . Oshins ordered Harts and Gordon back to work . He told Harts that he should not carry on a discussion on working time once Respondent gave him its answer on a grievance , that the proper way to proceed was to file a written grievance as provided in the contract .5 Harts and Gordon returned to their machines . A moment or two later the break bell rang. Harts went into the shipping area and sat on a ta- ble. Zambrzuski came by. He asked Harts if Harts wanted to continue their discussion on breaktime. Harts said he did. However, he thought that he might have left his machine running , so he went back to his machine to turn it off. Zambrzuski went with him . They resumed their discussion at Harts' machine . It soon degenerated into an argument with raised voices . Harts spoke loudly enough that Oshins, in the office some distance away, heard him. Oshins went from his office to where Zambr- zuski and Harts were arguing. He asked what they were arguing about . Harts told him they were still arguing about Gordon's raise . Oshins said he did not want to hear any more about it and instructed Zambrzuski to break off immediately , gesticulating with his hands as he did so. Harts took umbrage at Oshins' tone and manner. He told Oshins that Oshins could not shut him up, he would shout all he wanted to . Oshins insisted that he shut up. Harts told Oshins that Oshins did not scare him, that he would shout all he pleased , and that , if Oshins did not like it, Oshins should tell him to leave. Oshins told Harts to get out. Harts refused . He told Oshins that, if Oshins wanted him out, Oshins would have to put him out. Oshins said he would call the police and put him out. Harts said he did not care what Oshins did. The three men separated. Oshins instructed Zambrzuski to punch Harts out. Oshins went to the office and phoned for the police . Zambrzuski got Harts' timecard and wrote on it that Harts was discharged as of 2 : 30 p.m . Harts went back to the shipping area and lay down on the table . Zambr- zuski came to Harts and told him that he might as well leave since Zambrzuski had punched him out as of 2 :30. At that point the 2:30 p .m. end-of-break bell rang . Harts went back to his machine and started to work . About 5 minutes later two po- licemen came into the plant . Oshins pointed out Harts to them . They approached Harts and told him to leave the plant . When he started to protest, they told him that if he did not leave quietly they would have to carry him out and charge him with disturb- ing the peace . Harts started with them toward the lockers, which are near the front door of the plant. When the policemen came into the plant, most of the other employees stopped work to watch what was going on. Fred Gordon was working at a can machine between Harts' spreader and the front door. As Harts walked toward the lockers with the policemen he waved his arm above his head in a gesture susceptible of the interpretation that he was summoning the other men to follow him . Gordon said , "Cut off your machines , we are all going out. "e Harts went to his locker , got his things, and left the plant. The other employees began putting on their coats to follow him . Oshins protested . He told them that they were bound by the no -strike clause in the contract . He reminded some of favors he had done for them . He pointed out that it would be il- legal as well as immoral for them to walk out. An employee asked Oshins whether they could hold a meeting. Oshins gave his permission to hold it in the building . An employee said they would rather go outside and do it . Oshins agreed . Six of the seven employees followed Harts and caught up with him outside.' Harts and another employee went to a nearby street telephone booth. They called the Charging Party's office and talked to Theresa Wieland, an of- ficial of the Union . Miss Wieland told them to tell the employees to go back to work. She told Harts to come to the hall. Harts went to the hall. The six employees who had left the plant after him returned and went to work. B. Analysis and Conclusions Respondent relies on the fact that Harts created a disturbance sufficiently serious to require it to call the police to justify his discharge. It does not rely on the fact that Harts attempted to lead the other men out on a wildcat strike by signaling to them as he left the plant since, obviously, as ' Although the record is not completely clear , I gather that Harts had confused the provision for top pay in any particular job classification 12 months after hire with a provision that 12 months as a Class B operator au- tomatically moved an operator into Class A. He pressed this interpretation of the contract against Zambrzuski 's position that Gordon was not entitled to Class A operator 's wages because he could not operate all the machinery in the plant "I do not credit Harts' denial that Oshins mentioned filing a written grievance about Gordon 's rate of pay at this time. 6 1 do not credit Harts' denial that he waved his arm above his head. I do not credit Gordon 's testimony that Harts said, "Cut off the machines and let's go outside ." This finding is based on Oshms'testimony that Harts gave a signal to the men to walk out and Gordon said , "Cut off your machines, we are all going out " ' I credit Oshins ' testimony that Benny Lee Whalen never left the plant over Whalen 's testimony that he got a step or two out the door and met the other six men coming back . Both agree that Whalen went to lock the back door of the plant, one of his regular duties, as the other six were leaving. Whether he was in favor of joining the others , as Whalen 's testimony would indicate , or opposed, as Oshins would have it, is immaterial 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidenced by Zambrzuski's marking his timecard before the police arrived, he had already been discharged by that time. The General Counsel, on the other hand, sees this as primarily a pretext case. He argues that Respondent was really motivated by annoyance at Harts' insisting on discussing a grievance and not by the manner in which he responded when Oshins told him to stop. Respon- dent made no bones about its attitude toward Harts. For example, Oshins testified: I think Mr. Harts was diligent in the manner in which he was attempting to do his job as a shop steward. Mr. Harts wasn't competent at that job and I hadn't" complained to Mr. Eckerle [another official of the Union] that he was not competent. He was constantly creating problems that would not be problems if they were handled properly, and this is what we referred to as the "nit-picking," so that while we recognized the right and we observed the fact that he was entitled to say things that he was doing, the fact that he was doing things im- properly creates havoc among the men's at- titudes towards management . They seemed to get the impression through his efforts that we were taking something from them instead of giving something to them. This hampering of management, and not allowing it to manage is what has been wrong with our plant. Respondent 's evidence that it had put up with Harts for a long time without discriminating against him even though he was a source of trouble is uncon- troverted. I credit it and rely on it to find that Respondent's stated reason for discharging Harts was its real reason and not a pretext . Therefore, whether Harts' discharge violated the Act must hinge on whether what he did on November 18 transgressed the limits of conduct within which a union steward may carry out his duties and still remain under the Act's protection. In Riviera Manufacturing Co., 167 NLRB 772, a steward belligerently refused to follow instructions to sweep around his work station and influenced others to follow his example. His discharge was held lawful. In Stop & Shop, Inc., 161 NLRB 75, affd. 377 F.2d 59 (C.A. 1), a steward instructed employees not to use a piece of equipment on the ground that it was not safe even though a safety engineer had declared it safe and adequate . One employee fol- lowed his instructions to the point of being discharged. Another followed the steward's instruc- tions initially and only gave in when threatened with discharge. The steward's discharge was held lawful. In Top Notch Manufacturing Company, Inc., 145 NLRB 429, a steward threatened that employees ' In its brief Respondent changes this word to "had," asserting, in a foot- note, " Mr. Oshins stated 'had' as he was showing that the union representa- tive had knowledge of this incompetence ." However, Respondent has not moved to correct the transcript and I have no independent recollection of might walk off the job if he was not granted an ap- pointment with management in order to discuss grievances. This and other conduct was cited by the respondent as insubordination justifying the steward 's discharge . The steward was a member of a dissident faction in a local union which was trying to obtain real representation for the employees in the face of a long sweetheart relationship between respondent and the union . His discharge was held unlawful. In I. Oscherwitz and Sons, 130 NLRB 1078, a steward called the respondent's president a "liar" in the course of a heated exchange during a meet- ing to discuss a grievance. The Trial Examiner ruled that the respondent's reliance on this conduct was a pretext masking its real motive of getting rid of a too zealous steward and that her discharge was unlawful. The Board reversed him, but only on the ground of deferring to arbitration. It did not reach the question of the respondent's motive for discharging the steward and, thus, did not pass on whether the steward's conduct was cause for discharge. Here, Harts was discharged for arguing loudly about a grievance at the first step of the grievance procedure after management had rendered its deci- sion and told him to file a written grievance if he wanted to carry the matter to the second step. However, the only thing damaged by his conduct was Oshins ' dignity . Part of the Zambrzuski-Harts discussion about Gordon 's wages took place on working time in front of the bulletin board. But Harts and Gordon went back to work immediately when Oshins ordered them to, and Oshins himself admits that the discussion at this point was not overly loud or offensive to him. It was only when the discussion was resumed a few minutes later at Harts' machine that Oshins became provoked. But this phase occurred only because Zambrzuski in- vited Harts to resume the discussion and took place all on breaktime so that there was no interruption to production. The crucial question is just when Oshins discharged Harts . Respondent contends that Oshins intended only a disciplinary layoff when he first told Harts to get out and changed to discharge when Harts forced him to call the police to get Harts out of the plant. The only testimony in sup- port of that position is Oshins' statement as to his subjective state of mind . I do not credit it. It is clearly an afterthought to bolster Respondent's case. I rely solely on the undisputed objective facts as to what Oshins said to Harts and Harts said to Oshins in their quarrel and the undisputed fact that Oshins told Zambrzuski to punch Harts out before Harts wandered back to the table in the shipping department in finding that Harts was discharged whether Oshins said "had" or "hadn't." Moreover, Oshins'use of -hadn't" would imply forbearance on Respondent's part in its dealings with Harts, a point even more favorable to its position in this case. CALMOS COMBINING CO. when Oshins first told him to get out. Therefore, Harts was discharged, not for refusing to leave the plant, but for insisting on continuing a discussion about a grievance in a loud voice after Oshins had told him to shut up. He did not interfere with production , either his own or that of other em- ployees, for the discussion took place on a break. He did not adamantly refuse to carry out an order relating to his work. Thus he was not as blameworthy as the stewards in Riviera and Stop & Shop. The act for which he was discharged strikes me as less reprehensible, considering the emotion engendered by the debate Zambrzuski and he were having when Oshins walked up, than calling a com- pany president a liar to his face, an act which Oscherwitz at least suggests may not place a steward zealously guarding the supposed rights of his fellow employees beyond the protection of the Act. What Harts was discharged for is more closely akin to the acts of the blameless steward in Top Notch, although once again , of course, that case cannot be said to be dispositive of this one. There- fore, I find that Harts was discharged by Respon- dent for insisting on carrying out his duties as a steward in a manner he thought proper and Respondent deemed improper, that he did not thereby give Respondent cause to discharge him for insubordination, and that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging him. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Calmos Combining Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Textile Workers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging Elmore Harts on November 18, 1969 , because of the manner in which he car- ried out his duties as a steward for the Charging Party, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 919 4. The aforesaid unfair labor practice is an un- fair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Sec- tion 8(a)(3) and ( 1) of the Act by discharging El- more Harts, I will recommend first that it cease and desist from engaging in that or like or related activi- ties. I have found that Harts gestured as he was walking out of the plant in a manner susceptible of the interpretation that he was summoning the other employees to follow him. However, I have also found that Fred Gordon spoke in the same vein, thus making himself equally if not more guilty than Harts of inciting a strike in violation of the con- tract. Gordon is still employed by Respondent and has succeeded Harts as the Union 's steward in the plant . He was even called as a witness by Respon- dent. Moreover , the interruption of production which took place as Harts was being escorted out of the plant by the police and thereafter was extreme- ly brief, and the major part of it occurred with Respondent 's permission . For these reasons I find that Harts' conduct in failing to leave the plant until the police came and his conduct as he walked out is, insofar as the protection of the Act is concerned, like his conduct already considered in insisting on a right to argue loudly about a grievance when Oshins told him to shut up. It was not so flagrant as to make him unfit for further employment by Respondent, thus precluding him from the remedy of reinstatement and backpay customary in cases of this sort. Therefore , I will also recommend that Respondent offer him immediate and full reinstate- ment to his former or substantially equivalent posi- tion without prejudice to any seniority or other rights and privileges previously enjoyed and make him whole for any loss of earnings he may have suf- fered as a result of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned as wages from November 18, 1969, until the date of Respon- dent's offer of reinstatement, less net earnings dur- ing such period, with backpay and interest thereon to be computed in the manner prescribed in &F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.]