Metal Products, Inc.

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Products, Inc. and United Steelworkers of America, AFL-CIO. Case 6-CA-4183 February 27, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On November 4, 1968, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 8(a)(5) allegations on the ground that, subsequently to issuance of the complaint, Respondent and the Charging Party had entered into a collective-bargaining agreement. I granted the motion. Consequently, the only issue litigated was whether Respondent violated Section 8(a)(1) and (3) of the Act by terminating the employment of Paul Russell and Tony Marino, Jr., on or about March 4 at the end of a strike for alleged picket line violence. All parties appeared at the hearing and were given full opportunity to participate, 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 the General Counsel and Respondent, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT L THE BUSINESS OF RESPONDENT Respondent, a West Virginia corporation, is engaged at Clarksburg in the manufacture of fabricated steel, weldment and special machinery. In the year prior to issuance of the complaint it purchased and received materials valued in excess of $50,000 which were shipped directly to it in Clarksburg from points outside the State of West Virginia. On the basis of these admitted facts, the complaint alleges, the answer admits, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner. The charge in this case was filed on March 11, 1968,' and amended on June 5, by United Steelworkers of America, AFL-CIO, referred to herein as the Charging Party or the Union, against Metal Products, Inc., referred to herein as Respondent. On June 25, the General Counsel of the National Labor Relations Board, acting through the Acting Regional Director of Region 6 (Pittsburgh, Pa.), issued a complaint and notice of hearing in which it was alleged that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act by various acts and conduct. Respondent's answer denied any violations of the Act. Pursuant to due notice, hearing was held before me in Clarksburg, West Virginia, on August 27, 28 and 29. At the outset counsel for the General Counsel moved to amend the complaint to delete all Section III. THE UNFAIR LABOR PRACTICES A. The Facts Other Than the Wilfong Incident The Charging Party was certified as representative of Respondent's production and maintenance employees in September 1967. Bargaining commenced in October and, by February 28, some 11 meetings had been held. Paul Russell participated in the negotiations as a member of the Union's employee committee. On Wednesday, February 28, the Union struck Respondent. None of the 116 employees in the unit at that time reported for work that morning. Pickets appeared at the entrance to Respondent's plant around 5 A.M. in preparation for the arrival of the day shift, scheduled to report at 7 A.M. Russell and Tony Marino, Jr., were among them. At approximately 6.45 A.M. an incident took place at the picket line which involved one Wilbur Wilfong and his teenage son, David Wilfong. The facts with respect to this incident and events flowing therefrom are set forth in detail below under The Wilfong Incident. One employee worked the night shift on February 28, none worked any shift on Thursday, February 29. Sometime during the night of Thursday-Friday, February 29-March 1, three pickets, including Roy Cayton, another employee member of the negotiating committee, were 'Dates are 1968 unless otherwise indicated 'General Counsel's motion to correct the record is granted 174 NLRB No. 124 METAL PRODUCTS, INC. assaulted.' Among a number of employees who reported for work on Friday morning was Charles Washington.' Washington told Robert W. Simms, one of Respondent's vice presidents, that he had beaten up Cayton and the other pickets the night before. Simms did not allow Washington to go to work. The Charging Party's and Respondent's negotiators met on the morning of Saturday, March 2. Respondent warned the Union that a major part of the work being done in the plant would be lost if the strike continued since a principal customer had started to pull out its jigs, machinery and materials. Respondent said that the customer would terminate its contracts if the strike did not end by 10 A.M. The Union agreed to end the strike at once in exchange for Respondent's promise to engage in intensive bargaining.' A notice was drafted by the Union to be read over local radio and television. It announced the end of the strike as of noon Saturday and told striking employees to return to work immediately. Russell and another member of the committee went to the plant to help Respondent locate employees by telephone in order to call them in to work. Marino received such a call and went to the plant. He requested and received his foreman's permission to return to work on Monday, March 4. Nothing was said at the March 2 meeting that any strikers would not be taken back to work. Nothing was said to either Russell or Marino that he would not be taken back to work. Respondent and Union negotiators met all day Sunday, March 3. Respondent said nothing to the Union negotiators to indicate that it would not take back some of the strikers although it decided, at a private caucus during the afternoon, to suspend Russell, Marino and Washington pending discharge for picket line violence. An elaborate Union proposal on the bargaining table at that stage of the negotiations provided for suspension and hearing as a preliminary step before a discharge for cause. The clause which Respondent and the Union finally agreed on in June provides for a 5-day suspension period before a discharge to provide time for processing of any grievance which may be filed. When Marino reported for work on March 4 he was given a suspension letter. Washington also received a suspension letter. A third letter was handed to Russell by Respondent's negotiators at a meeting held on Monday morning, March 4. All three letters are identical. They are dated March 4 and read: Substantial evidence has been brought to the Company' s attention that you personally were guilty of various serious strike misconduct at the picket line during the recent strike which would warrant discharge. 'Washington is named as a discriminatee, along with Russell and Marino, in the original charge filed by the Union in this case on March 11 His name does not appear in the amended charge filed on June 5 The record does not reveal why he was dropped. 'I do not credit the testimony of Union Staff Representative Gerald Kendrick that Respondent also specifically agreed to take back all strikers as part of the deal to call off the strike I credit the testimony of Respondent's witnesses that no such express commitment was made on March 2 I rely on the total picture of what went on at the March 2 meeting from the record as a whole It is clear that the thrust of this discussion, once the Union had decided to call off its strike, was to get some men back in the plant as quickly as possible in order to meet a deadline imposed by Respondent 's customer and that neither side raised any question about events which had taken place on the picket line Under the hurried circumstances that prevailed, I conclude that fine questions about whether all or only some of the strikers would return to work immediately dust did not come up. 8 39 Pending further investigation and clarification of the facts respecting such incidents of strike misconduct, including physical violence , in which you are alledged [sic] to have participated you are hereby suspended from your employment with METAL PRODUCTS, INC When Russell was handed his letter, he said to F. J McFerran, another of Respondent's vice presidents, "I am going to stick this [profanity] thing down your [obscenity] throat."5 The suspensions triggered a second short strike. It began with the day shift on Tuesday, March 5, and ended at 6 P.M. on March 6. The status of Russell and Marino was discussed from time to time at subsequent negotiating sessions, the last time in July when agreement was finally reached on a contract. At that time Respondent asked the Union whether they still wanted to return to work. After checking, the Union informed Respondent that they did. Other than an abortive attempt to obtain transcripts of proceedings described below which were held before justices of the peace, Respondent has made no effort on its own initiative to obtain information to augment or offset the evidence it possessed on March 3, on the basis of which it decided to suspend them, that Russell and Marino had struck Wilbur and David Wilfong on the morning of February 28. In its discussions with the Union it consistently took the position that it stood ready to receive any evidence the Union had of Russell's and Marino's innocence. Other than simple assertions that they did not commit the wrong alleged, the Charging Party tendered no evidence to Respondent. Respondent has never taken any formal action to convert the suspensions of Russell and Marino into discharges. Based on the incident which took place at the picket line on the morning of February 28, Wilbur Wilfong filed assault and battery charges against Russell and Marino, while Russell filed similar charges against Wilfong. Russell and Marino were tried on March i 1. Russell was acquitted. Marino was convicted and fined $30 and costs. At the time of the hearing herem Marino's appeal was pending. Wilfong was tried on March 13. He was acquitted. B. Credibility The crux of this case is whether Russell and/or Marino struck Wilbur Wilfong and/or David Wilfong on the morning of February 28. Russell and Marino, supported by their fellow pickets David O'Dell and Edgar Heldreth,' swear that they did not. Wilbur Wilfong, supported by Foreman Paul Watson,' another eyewitness, swears that 'I do not credit Russell's denial that he spoke these words for the reasons set forth under Credibility below 'The testimony of Jerry Wilfong, called as a rebuttal witness by the General Counsel , sheds no light on the matter. He testified that he had his back turned to the action at the critical moments I do not credit the testimony of Edgar Heldreth in any respect . His answers to questions seeking specific details such as names of other persons p-esent were evasive to the point of inanity . Moreover, he testified that the driver's window on the Wilfong car was closed although all other witnesses testified it was at least partially open; he testified that he was standing next to Russell and that Russell did not help to rock the Wilfong car even though Russell candidly admitted that he did. 'David Wilfong is in the United States Navy He did not appear at the hearing 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they did. The conflict is irreconcilable. The issue can only be resolved by crediting the witnesses who testified one way and discrediting those who testified the other. I resolve the conflict in Wilfong's and, especially, Watson's favor for the following reasons: General Counsel's version of what happened during the few brief moments when the blows were either struck or not struck is that Wilbur Wilfong stopped his car as he approached the picket line to ask his son Jerry what was going on, took offense at Jerry's suggestion he turn back, backed up his automobile a few feet, raced the motor, blinked his headlights, and charged the picket line; that he skidded to a stop at the last instant, hitting Russell lightly with the bumper; that the pickets surrounded Wilfong's car and rocked it from side to side; that Russell and Marino were standing in positions where they could not strike at Wilbur and David Wilfong through the driver's window; that the driver's window did not get broken, nor did the automobile sustain any other damage, and that Watson drove up behind Wilfong only as the rocking of the car was coming to an end. Respondent's version is that Wilbur Wilfong stopped his car to speak to his son Jerry, proceeded toward the picket line without first backing up, racing his motor, or blinking his headlights, then stopped again at the picket line without skidding or striking Russell; that the pickets thereupon surrounded the Wilfong car and rocked it; that Russell and Marino each reached through the partially open driver's window to strike both Wilbur and David Wilfong; that the window got broken in the course of the melee, in addition to other damage to the car, and that Watson drove up behind Wilfong as Wilfong was moving from the point where he spoke to his son Jerry to the point where the picket line melee took place, thus observing all that took place on the picket line from a point of vantage behind the Wilfong car. In crediting Respondent's version over the General Counsel's, I rely primarily on the testimony of Watson, the only eyewitness whom I find to be completely reliable. In doing so I have not overlooked the fact that Watson testified he saw Marino strike the driver of the car while he only saw Russell swinging his arm into the car without actually seeing any blows landed by Russell while an affidavit taken from Watson during the investigation of this case contains the statement, "I also saw Russel [sic] & Tony Marino attempt to hit &, in fact, hit Mr. Wilfond [sic] through the car window. Mr. Wilfond was hit several times. Both Russel & Marino landed blows." I do not consider this discrepancy as, in any way, impeaching the testimony of Watson which was presented under oath on the witness stand and subjected to a searching cross-examination by counsel for the General Counsel any more than I consider similar discrepancies between their testimony and their affidavits as impeaching Russell and Marino. Such minor discrepancies reflect only the natural efforts of witnesses awed by the atmosphere of a formal judicial proceeding to tell the literal, precise truth as they recollect it as opposed to the informal manner in which affidavits are given and taken during precomplaint investigations. In finding that blows were also landed by Russell I rely on the testimony of Wilbur Wilfong, even though I credit him only insofar as his testimony is corroborated by other witnesses. I consider Watson's testimony that he saw Russell swinging his arm into the car as corroborative of Wilfong's testimony that Russell struck both himself and his son David. I especially do not credit Wilfong's testimony that Russell was known to him by name at the time of the assault, finding, rather, that Wilfong first learned the names of both Russell and Marino from Watson when they met at the lawyer's office on the evening of February 28. I base this conclusion on the fact that an affidavit taken from Wilfong by a lawyer on the evening of February 28 does not name Russell and Marino as the two men who "reached through [the partially opened door window] and started striking me with their fists, one of them reached clear through the car, grabbed my son and struck him in the face" and states affirmatively, "The only one I recognized was Roy Sandy of Shinnston who I think was the one that opened my hood." The particular points which have persuaded me that Respondent's version of the Wilfong incident must be preferred over the General Counsel's are: 1. The fact that the car window was broken. Jerry Wilfong testified that the window contained, at worst, a crack in the lower left hand corner prior to the melee. A photograph taken on the afternoon of February 28 shows a portion of the top of the window broken out. Estimates for repairs to his car obtained by Wilfong on February 29 include replacement of left front door glass. Yet General Counsel's witnesses denied any knowledge that the glass was broken, testimony which I find completely incredible. Even if they were in the positions where they said they were during the rocking of the car, they could not have failed to note the breaking of the window. 2. The fact that Russell, in effect, subsequently acknowledged that he knew the window had been broken, Russell testified that, when he visited the Wilfong home to discuss a settlement, Wilfong asked whether the Union would pay for the broken window. Russell testified only that he said, "I told him I didn't know whether the Union would do something like that or not and I would not agree to something to that effect." Russell did not indicate in any way that he had protested that "the Union" had not broken the window. 3. The fact that General Counsel' s witnesses attempted to make the whole ugly episode, including the admitted rocking of an automobile with two persons in it, sound like friendly fun and games among schoolboys Such a picture does not jibe with the realities of labor strife when workers invoke their right to strike. 4. The fact that General Counsel's witnesses were reluctant to admit that they were picketing across the road when Wilfong drove up. Such testimony is totally inconsistent with their statements that they were stopping traffic in order to appeal for the support of arriving employees and with their testimony that Wilfong deliberately drove at the pickets. To credit their version would require a finding that Jerry Wilfong's statement to his father that he should not take David on to the plant was alone sufficient to enrage Wilbur enough to cause him to attack the pickets with his automobile even though the pickets were not barring his path. Even though I have, as indicated, some doubts about Wilfong's testimony as a whole, I observed nothing about the man which would. cause me to believe him capable of such a sadistic act. 5. The uncontradicted fact, testified to by Watson and confirmed by Simms, that Watson told Simms just a few minutes later that he had seen Russell and Marino roughing up the occupants of a car on his way to the plant. On the basis, therefore, of the testimony of the witnesses whom I have credited for the reasons just set forth, I find the details of the' Wilfong incident and its aftermath are as follows: METAL PRODUCTS, INC. 841 C. The Wilfong Incident David Wilfong began working for Respondent the week of February 25. On Wednesday morning, February 28, his father, Wilbur Wilfong, drove him to work in Wilbur's 1957 Chevrolet. Wilbur Wilfong was not an employee of Respondent. The Wilfongs reached the vicinity of Respondent's plant sometime between 6:30 and 6:45 A.M., just as day was beginning to break. The weather was overcast with intermittent snow flurries. When Wilbur Wilfong saw his older son, Jerry, also an employee of Respondent and one of the pickets who had set up the Union's picket line earlier that morning, he stopped his car and rolled his window down part way in order to talk to Jerry. Wilbur asked Jerry what was going on. Jerry replied that, because of the strike, no one was reporting for work, there was no point in Wilbur proceeding any farther, and he might as well turn around and take David home. As Jerry walked away from the car, Wilbur started moving forward toward the picket line, still some distance in front of him. At this moment Paul Watson, a foreman for Respondent, drove his car around a curve in the road and came in view of Wilfong's car. In Watson's car was an employee of Respondent named Russell Grodie.8 Watson first saw the Wilfong car as it was moving from the point where Wilbur Wilfong had stopped to talk to his son Jerry to the picket line. As Wilbur Wilfong came to a stop at the picket line, Watson brought his car to a stop several car lengths behind it. Angered by Wilbur Wilfong's apparent refusal to take Jerry Wilfong's advice to turn around and go home, some 8 or 10 of the pickets swarmed around the Wilfong car and began rocking it. There was much confusion and shouting, including such commands as "kill the [profanity]." Russell and Marino punched Wilbur Wilfong through the partially opened window in the left front door. David Wilfong was seated next to his father in the right front seat. As he tried to move across the seat to his father's aid, he was punched also. During the melee the window was broken and the car sustained other damage. Finally, as the hood sprang open, Wilbur Wilfong put his car in reverse and backed up. He narrowly missed striking Watson's car. He pulled to Watson's left, leaving room for Watson to drive around him. As they did when other supervisory and managerial personnel approached the plant that morning, the pickets, recognizing his car, made way for Watson. He drove through the picket line and on to the plant. Wilfong continued to back away from the picket line for some distance until he could stop, get out of his car to close the hood, turn around, and drive away. When Watson arrived at the plant he immediately told Simms what he had observed. He named Russell and Marino as two pickets he could identify and said that he had seen them roughing up the occupants of the car. He could not identify the persons in the car. Simms called the police and reported the incident. McFerran arrived at the plant shortly thereafter. Watson repeated his statements to McFerran, again specifically naming Russell and Marino as the two pickets who had struck the occupants of the car. In an effort to try to find out who had been in the Wilfong car, McFerran called both the city police in Clarksburg and the sheriff's office without success. Later in the morning, another foreman suggested that a new employee, David Wilfong, might have been in the car. McFerran called the Wilfong home and spoke to David. David informed McFerran that he and his father were, 'Grodie did not appear at the hearing. His whereabouts were unknown indeed, the two persons who had been roughed up by the pickets. McFerran asked David to have his father call McFerran. When Wilbur Wilfong returned McFerran's call around noon on February 28, they arranged to meet that afternoon at a service station where Wilfong had left his car. When they met, photographs were taken showing the broken window. McFerran then took Wilbur and David Wilfong to the office of W. Paul McWhorter, a Clarksburg attorney. There the Wilfongs gave McWhorter an affidavit which describes how they were beaten up at the picket line that morning but which does not name Russell and Marino as the pickets who had struck them. Watson was also present in McWhorter's office that evening. On Thursday, February 29, McWhorter, on behalf of Respondent, filed a complaint seeking a temporary injunction against the picketing in the circuit court of Harrison County, West Virginia. The motion was supported by 27 affidavits, the Wilfongs' affidavit among them. The other 26 affidavits refer only to mass picketing and contain no reference to the Wilfong incident. The complaint which McWhorter filed reads, in part, "said pickets did swarm across the road leading to Plaintiff's plant at any time when there was an oncoming vehicle attempting to gain entrance into said plant. . . . Said pickets finally attacked at least one vehicle and the occupants thereof attempting to gain entrance to said plant, striking and beating both of the occupants of said vehicle, breaking a window and otherwise damaging said vehicle and only one of the occupants of said vehicle was an employee of the Plaintiff...." Hearing was held on Respondent's motion on the afternoon of February 29. Defendant' was represented by David A. Jones, another Clarksburg lawyer. Watson and Grodie testified for Respondent. Each named Russell and Marino as the pickets who had assaulted the Wilfongs.'° A temporary injunction enjoining violence and limiting pickets at any one time to six, three at each of two locations, was granted by the Court at the conclusion of the hearing. Sometime late in the week of March 3 Russell visited the Wilfong home at Jerry Wilfong's invitation to discuss with Wilbur Wilfong the dropping of their respective criminal charges against each other. During the course of their talk Wilfong brought up the damages to his car. There was some discussion of whether the Union would pay for them or whether a collection could be taken up among the pickets. Russell said that he did not know whether the Union would pay for the damages and that he would not. No agreement was reached, and the two criminal cases eventually went to trial as indicated above. D. Conclusions The General Counsel sought to try this case within the format laid down in Rubin Brothers Footwear, 99 NLRB 610, namely, proof by the General Counsel that alleged discriminatees have been refused reinstatement, followed 'Named as Defendants in the injunction case are 13 individuals , Russell among them, and Local 7299 of the United Steelworkers of America, AFL-CIO, the local which represents Respondent's employees. "I credit McWhorter's testimony in this regard over Jones 's denial. In addition to the demeanor of the two men, I rely on the fact that Jones's trial notes contain the word "Russell" under a note referring to "Watson-foreman" and Jones's testimony that he made the notation because he planned to use Russell as a witness in response to something Watson had testified to 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by proof by Respondent of its good faith belief that they engaged in strike misconduct, followed by proof by the General Counsel of their innocence, but Respondent early assumed the burden of proving `not only its good faith belief but the fact of Russell's and Marino's guilt. As my recital of the facts indicates, I find that Respondent had a good faith belief" that Paul Russell and Tony Marino, Jr., had assaulted Wilbur Wilfong and David Wilfong on the morning of February 28 when it refused them reinstatement on the morning of March 4. Its belief was based on Paul Watson's accurate identification of Russell and Marino a few minutes after the assault and his continuing in that identification, e.g., at McWhorter's office the evening of February 28 and before the circuit court of Harrison County on February 29, at all times up to the decision reached on March 3 to suspend them. Since no substantive evidence was ever offered to Respondent to refute Watson's eyewitness account nor any reason advanced to throw a reasonable doubt on his veracity or powers of observation, nothing happened at any time to cast any doubt on Respondent's good faith. I have also found that Russell and Marino did, in fact, strike the Wilfongs. It follows that General Counsel has not sustained his burden of proving that they did not. Finally, it cannot be said that Respondent has condoned Russell's and Marino's act in any way. On March 2, when the Union agreed to call off its strike and send the men back to work, Respondent had not yet made its decision not to take back Russell, Marino, and Washington. All of the discussion was about getting men back to work as quickly as possible in order to establish that the strike was over and that Respondent would be able to meet its contracts. The Union might not, as General Counsel argues, have agreed to end the strike if it had been aware that Respondent had any reservations about taking back some of the strikers. However, the fact that the Union assumed something not so does not establish that Respondent expressly committed itself to take back all strikers regardless of their activities during the strike. On the contrary, Respondent made no such express commitment and the subject of strike misconduct, whether in a general context or specifically with respect to Russell, Marino, and/or Washington, never came up, either then or the next day, March 3, when another negotiating session was held. Marino begged off working on March 2, before the decision not to take him back was made. Both he and Russell were suspended on March 4 before either actually returned to work or was scheduled to return to work by Respondent. Both were told that the reason they were not taken back was "serious strike misconduct at the picket line during the recent strike ...." Therefore, there is no condonation of their conduct by Respondent in that it actually agreed to take them back with full knowledge of their misconduct and then reneged or actually permitted them to return to work without mentioning their misconduct and only sought to raise it later.' 2 On the contrary, Respondent relied on Russell's and Marino's picket-line misconduct before they ever sought to return to work and without ever indicating that it had made any other decision with respect to them, thus precluding any finding from the sequence of events that it forgave them. Similarly, there is no condonation in Respondent's reinstatement of the rest of the pickets who helped to rock the Wilfong car but did not actually strike the Wilfongs for the two acts differ sufficiently in kind and degree to justify Respondent's different treatment of Russell and Marino. And there is no condonation in Respondent's reinstating other employees who engaged in fisticuffs during the strike, for the suspension of Charles Washington establishes Respondent's consistency in its dealings with its employees. Regardless of whether Washington did, in fact, beat up Roy Cayton and other pickets, Respondent treated him the same as Russell and Marino on the basis of its good faith belief that he had, even though his action could be said to be anti-Union and pro-Respondent while Russell's and Marino's was anti-Respondent and pro-Union. Since, therefore, Respondent terminated their employment on the basis of its good faith belief that they had beaten up the Wilfongs, the General Counsel has failed to establish that they did not, and Respondent has not condoned their acts, I am constrained to find that Respondent was warranted in refusing reinstatement to Paul Russell and Tony Marino, Jr., following the February 28-March 2 strike because of their misconduct on February 28. Tidewater Oil Company, 145 NLRB 1547; I. Posner, Inc., 140 NLRB 1313. CONCLUSIONS OF LAW On the basis of the foregoing findings of fact, and upon the entire record of this case, I make the following conclusions of law: 1. Metal Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Metal Products, Inc., has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act have not been sustained. - RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. "A point conceded by General Counsel in his brief "Cf E.A. Laboratories, Inc., 80 NLRB 625; The Hoover Company, 90 NLRB 1114; Union Twist Drill Co., 124 NLRB 1143; Atlas Linen & Industrial Supply, 130 NLRB 761; Packers Hide Association, Ina, 152 NLRB 655.