Huss & Schlieper Co.

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Huss & Schlieper Company and M. Tom Sawyer and Kenneth D. Pryor and Sheet Metal Workers International Association, Local 113. Cases 38-CA- 1103-1, 38-CA-1103-2, and 38-CA-1103-3 December 15, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 12, 1971, Trial Examiner Ivar H. Peterson issued the attached Decision in this proceeding.' Thereafter, Respondent filed exceptions and a sup- porting brief,2 and the General Counsel filed a brief in support of the Trial Examiner's Decision. Respondent filed a brief in answer to the General Counsel's 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Huss & Schlieper, Decatur, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order, as herein modified .4 i On August 26, 1971 , the Board issued an Order in this matter adopting the Trial Examiner's Decision and Order We hereby vacate that Order. 2 Respondent's counsel failed to file timely exceptions in accordance with Sec. 102 46 of the National Labor Relations Board's Rules and Regulations. The Board, based on extenuating circumstances shown by supporting documents requested by and filed with the Board, has agreed to accept and consider Respondent's exceptions and briefs. 3 The Board finds ment in Respondent's Exception 10 Our review of the record reveals that contrary to the Trial Examiner 's finding that "He lTnpp ] testified that he saw Pryor and Sawyer with clubs in their hands at the picket line," last complete ¶ of left column on 574, the testimony was that "He (Tripp) testified that he saw a club in the vicinity of Pryor and Sawyer on the picket line; but he never saw either one holding it" The Board also in agreement with Respondent's Exception 28 corrects the Trial Examiner's obvious inadvertency by substituting the name "Bracken" wherever the name "Bassett" appears in last ¶ starting on left column of 575 and ending on right column 4 Substitute the attached notice for the Trial Examiner's APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging Kenneth D. Pryor and M. Tom Sawyer because of their union activity: WE WILL offer Kenneth D. Pryor and M. Tom Sawyer full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, and pay them for the earnings they lost as a result of their discharge, plus 6-percent interest. WE WILL NOT discharge or discriminate against any employee for supporting Sheet Metal Workers International Association, Local 133, or any other union. WE WILL NOT unlawfully interfere with our employees' union activities. Huss & SCHLIEPER COMPANY (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Borard's Office, Savings Center Tower, _ 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Tele- phone 309-673-9282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IvAR H. PETERSON, Trial Examiner: This consolidated proceeding was tried in Decatur, Illinois, on May 6 and 7, 1971. The charges were initially filed on February 5 and later amended. The complaint was issued on March 29. The primary issue is whether the Respondent unlawfully refused to reinstate Pryor and Sawyer on December 14, 1970, upon their unconditional application to return to work following 194 NLRB No. 90 HUSS & SCHLIEPER CO. a strike which lasted from April 16 to December 14. The Respondent in its answer denied the commission of any unfair labor practices and asserted that a settlement agreement negotiated with the Union expressly provided that the Union would find other work for Pryor and Sawyer and they would not be called back to work when the Respondent resumed operations. Furthermore, the Respon- dent alleged that Pryor and Sawyer had engaged in unlawful activity during the strike which removed them from the protection of the Act. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Respondent on June 11, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a partnership consisting of Royce Huss and P. Jerome Schlieper, is engaged at Decatur, Illinois, in making fan equipment for elevators and for other commercial applications. The Respondent admits and I find that in the 12 months preceding issuance of the complaint it sold and shipped from its Decatur plant products valued in excess of $50,000 to points outside the State of Illinois and, during the same period, purchased and caused to be transferred and delivered to its plant from points outside the State of Illinois goods and materials valued in excess of $50,000. Accordingly, I find that it is engaged in commerce Within the meaning of Section 2(6) and (7) of the Act. I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Following a Board election in March 1968, the Union was certified as the exclusive representative of the Respondent's production and maintenance employees. Thereafter the parties entered into a collective-bargaining agreement which had an expiration date of March 31, 1970; it was, however, extended for 15 days, until April 15. On April 16 the employees went on a strike, which continued until December 14. At that time the parties reached .agreement on a contract. At the time the strike began the Union had 39 members in the bargaining unit. During the course of the strike the Union and the Respondent met some 8 or 10 times in an effort to negotiate a contract. At the first session, on August 26, the Respondent took the position that Pryor and Sawyer and two other employees would not be rehired because, it claimed, they had engaged in misconduct during the strike. Pryor was a member of the Union's executive board at the time the strike began, and Sawyer was a steward. Both of them engaged in picketing activities during the course of the strike and attended the union meetings. At the November 4 bargaining session the Respondent handed the Union a complete contract proposal and a 573 proposed settlement agreement . In this proposed settlement agreement the Respondent provided that with respect to Pryor, Sawyer, and the other two employees the Union would "use its best efforts to find other employment" for them and that they would submit their resignations to the Respondent and would not seek to return to work for the Respondent or make any claim against the Respondent. In addition, the proposed agreement recited that the Union "agrees to release the company for all grievances , claims and charges arising out of such strike and picketing" including any causes of action against the Respondent which members of the Union, their wives, families, or sympathizers might have against the Respondent or the wife of partner Schlieper arising out of an incident at the Respondent's premises on July 21, and that the individual involved in that incident and her husband would execute and deliver a general release of any such claims . On behalf of the Union, Bracken refused to execute the proposed agreement, maintaining that all employees should, be returned to work. At the December 8 bargaining session the Union made two contract proposals (article II-B and article III-B) which, respectively, read as follows: Article II-B The company understands and agrees that the terms of this agreement shall apply one to their production and maintenance employees and those production items as shown on a list, brochure or other material describing such items and/or equipment manufactured by the company to be attached to this agreement as an addendum thereto. Should the company desire to fabricate or manufac- ture a new line of additional items and/or equipment, they, hereby, agree to notify the local union agent in writing of their intent to do so and, further, agree to meet to determine if such items should be classified as work normally performed by building trades journey- man sheet metal workers. In the event of such a determination, the company agrees to re-open this agreement for the purpose, only of negotiating an addendum to meet the conditions of the agreement in effect with the building trades local union affiliated with the Sheet Metal Workers International Associa- tion. If no agreement is reached within 90 days from re- opening of this agreement, the union shall have the right to terminate this agreement. Article III-B All employees covered by this agreement shall be required, as a condition of employment , to become and remain members of the Union in good standing during the term of this agreement. All employees shall make application for membership in the Union within 30 days following the effective date of this agreement , or within 30 days from the beginning of their employment, whichever is later. The Respondent rejected these proposals. The Respondent I Respondent's motion to receive in evidence its Exh 7, which had been marked for identification, is granted. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also brought up a proposal that the Union would have to agree that the four employees would not return to work, explaining that they were responsible for some broken tree limbs, broken windows, and tacks thrown in the driveway. The following day, December 9, the parties met again with the aid of a Federal Mediator. The parties again negotiated on the Union's two proposed contract clauses, but they did not discuss the proposed resignation of the four men.. On this occasion the parties agreed to the Company's proposal with regard to article II-B and the Company's proposal with respect to article III-B. On December 14, the parties signed copies of the agreement. Thereupon Schlieper asked Bracken what the four men were going to do and Bracken replied that he did not know. Schlieper stated that if Bracken would secure their resignations he would not contest their drawing unemployment compensation insur- ance. Bracken declined to make any such agreement. A few days later, Bracken was called on the telephone by attorney Ingram who stated that the Company had appeals before the General Counsel, that the latter "was going to rule in the Company's favor on the appeals" but if Bracken would agree to secure resignations from the four employees he would withdraw the appeals. Ingram further stated that if Bracken would sign a statement that the men did not wish to return to work he also would withdraw the appeals. Bracken said he would not do so as that matter had nothing to do with the contract. About noon on January 5, Bracken and three of the men (not including Sawyer) went to the Company's, reception area to pick up their vacation checks and again endeavor to be rehired. Office Manager Jack Wayne asked them to sit down and wait while he went elsewhere to obtain a statement which he handed to the men and asked them to sign before they were given their vacation checks. The men refused. Thereupon Wayne dictated a draft letter to Partner Huss with Bracken's name typed at the bottom which recited that Bracken would "secure other employment" for the four men "who do not wish to work for Huss and Schlieper" and that he understood the Respondent would not contest the men receiving unemployment compensation. Bracken refused to sign. On January 7 Sawyer, in Bracken's presence in the latter's office, telephoned Schlieper and asked when he was going to be called back to work . Schlieper refused to rehire Sawyer. Several witnesses for the Respondent testified that Bracken had instructed them initially to park their automobiles in the Respondent's driveway but, when he was advised by the police that this was not permissible, he told the pickets that they should no longer park automo- biles in the driveway. Floyd Tripp, who has been employed by the Respondent approximately 10 years and was president and chief steward and on the bargaining committee at the time of the strike, testified that he participated in the strike. He testified that he saw Pryor and Sawyer with clubs in their hands at the picket line. He further testified that during the strike a petition to decertify the Union was being circulated and that Pryor and another striker, Don Marlow, visited his home and later called him to inquire whether he (Tripp) had started the petition. Another employee, Kenneth Ramsey, testified that Bracken at the beginning of the strike told the strikers that they could park anywhere they wished and to stop all trucks going into the Respondent's plant. Ramsey further stated that early in November he was a passenger in a car driven by Sawyer; Pryor also was a passenger. He related that the car followed an outside truck down the road, that Pryor told the driver of the truck to pull over and Pryor spoke to the truckdriver. However, Ramsey could not recall what was said. Later, however, Ramsey stated that Pryor asked the truckdriver if he knew the Respondent's employees were on strike, that the driver answered he did not, and Pryor then asked the driver not to come back, and that the driver agreed he would not. Paul Moore, an employee who participated in the strike, testified that in the latter part of October he was approached by Pryor and Sawyer and two others, who accused him of starting the decertification petition. Apparently some hard words were exchanged during the course of this encounter. Gerald Thomas, who also participated in the strike, stated that after he had returned to work he received a telephone call from a striking employee, Marlow, in which Marlow stated that he "was going to get me (Thomas) on the skirmish line." Thomas further related that Pryor approached him on the picket line and, with reference to the petition, stated he "was going to get me (Thomas)." John Napierski, an employee who also was active on the picket line, testified that Bracken gave him and another striker instructions to park automobiles in the middle of the drive. Walter Boehm, also a striking employee, testified that he saw Sawyer carrying a stick, approximately 18 inches long, which, according to Boehm, Sawyer termed his "persuader." - Clarence Cushing, another striker, testified that at the contract ratification meeting Bracken stated that if the employees accepted the contract "there would be names gived out who had been sleeping with the Company and there would be bloodshed." Respondent's witness Mitchell Birdwell testified that he regularly stopped outside trucks at the picket line and asked the drivers not to enter the Respondent's premises. In addition, he testified that on one occasion when he was on the picket line with Pryor, the latter stood in front of the car of Respondent's draftsman, Kenny Frank, as it approached the picket line. He related that Frank proceeded very slowly towards Pryor and when he came quite close Pryor stepped aside and Frank proceeded into the parking lot without having come to a full stop. John Wayne, the Respondent's office manager, testified that on June 16 he saw Sawyer, who had a "club" in his hand, and Pryor approached a car stopped in the driveway. He proceeded to take two pictures of this incident. He added that the automobiles belonging to Pryor and Sawyer were parked in the driveway. Wayne also related that on July 14 a customer of the Respondent stopped at the gate and both Pryor and Sawyer were physically blocking the entrance to the plant. Wayne proceeded to take a photograph of this incident. Wayne further related that there was mass picketing on July 22 and that the wives and children of the pickets joined therein. HUSS & SCHLIEPER CO. Partner Schlieper testified that at the December 8 negotiation session the International's director of organiza- tion, Lonnie Bassett, stated that he had been sent by the International in an effort to reach a settlement and that if the Respondent accepted the Union's proposed article II-B, then the Respondent would not have to worry about taking Sawyer, Pryor, and two other strikers back. He added that the Respondent accepted this proposal after some changes were made in the wording of the contract clause. The next day, December 9, the parties met again and resolved all remaining issues except the Union's proposal regarding union security. Schlieper further testified that the afternoon of December 10 Bassett telephoned and stated that the Union would accept the Company's last proposal regarding article III-B, and that Bassett requested Schlieper to have the contract drawn up and to call Bracken as soon as possible so that the latter could present it to the membership for ratification. On this occasion, according to Schlieper, he reminded Bassett that the four employees that had been discussed, including Pryor and Sawyer, would not be returned to work and after Bassett assured him that the four would not cause any trouble. Schlieper testified that Bracken picked up the draft contract on December 11 and on that occasion Schlieper asked Bracken about the four men and Bracken assured him they would not cause any trouble. On December 13 Schlieper was notified that the contract had been ratified and the next day, December 14, the contract was signed. On that occasion Schlieper asked Bracken to sign a release with respect to the four employees. Bracken refused to do so but, according to Schlieper, assured Schlieper that there would be no trouble from the four and no unfair labor practice charges would be filed. Schlieper acknowledged that Sawyer contacted him by telephone on February 4 and that he (Schlieper) related why Sawyer would not be recalled. Glenn Spitzer, the Respondent's plant superintendent and a member of its bargaining team, substantially corroborated the foregoing testimony of Partner Schlieper. Spitzer further related that on July 22, as he was leaving the plant at about 6:30 p.m., he saw Pryor and several others at the plant gate picketing; that there were two cars in the driveway; and that broken bottles were strewn around. Spitzer further testified that Marlow and Pryor got in front of the witness' car and stopped him, that they were cursing and that Marlow threw something against the side of the car. Finally, he stated that Pryor struck the side window of the car and chipped the glass. Bracken was called by the General Counsel on rebuttal and denied that at the ratification meeting on December 13 he made any statement to the effect that there would be bloodshed. He also denied that he stated he had a list of men "who were in bed" with Schlieper and that he was going to give this list out to union people. Bassett recalled that he did have a conversation early in November with Paul Moore concerning the decertification petition. He related that he told Moore "Well, Paul, we have to stick together on this thing. This is certainly not the best method 2 Prior to and during the hearing the Respondent endeavored to litigate two other charges it had filed against the Union (Cases 38-CB-278 and 38-CB-284) which had been dismissed by the Officer-in-Charge whose action had been sustained on appeal. I declined to litigate the matters 575 of obtaining a decent contract." According to Bassett, Moore stated he would tear up the document if Bassett so desired and that he (Bassett) stated, "You'll have to be the judge of that yourself." Pryor related that early in November he did have a conversation with Gerald Thomas in which Pryor stated that he had found out that Thomas had been distributing the decertification form and remarked that he did not see how Thomas "could go that low" after the Union had interceded in his behalf when the Respondent was going to lay Thomas off and retain an employee with less seniority. Pryor testified that he remarked, "I should get you but I am not going to dirty my hands with you," and that he would have nothing more to do with Thomas. Regarding the July 14 incident involving Office Manager Wayne, he saw a truck coming and then stopped his automobile and'got out and walked slowly with Sawyer toward the driver of the truck. He asked the driver to honor the picket line and that Wayne came to the driveway with a camera and asked the truckdriver if he wished to come through. The driver answered that he did and then Sawyer and Pryor stepped aside. Pryor denied that he challenged Wayne. Pryor related that he attended the ratification meeting but left after some 15 or 20 minutes, and that during the period he was in attendance he heard nothing said about bloodshed or a list of employees. Concerning the incident that occurred on July 22 involving Plant Superintendent Spitzer, Pryor related that he and Marlow were walking across the driveway as Spitzer was approaching in his automobile. Marlow and Pryor stopped and then Spitzer "started forward and Marlow moved and I started to move and he bumped my leg and I stepped out of the way and as he came by I slapped his window with the back of my hand." Pryor wore a sizable ring on his right hand which had a raised center. Pryor related that Sawyer did carry a stick while at the picket line which was approximately 18 inches long, which he used to hit gravel back and forth in order "to kill time." He further testified that he did not use the stick in a threatening manner in order to prevent anyone crossing the picket line. Pryor related that he and Sawyer were not the only pickets who stopped trucks but named eight or nine employees who had done the same thing but who were now back at work. Sawyer denied that he stated to Walter Boehm that the stick he was carrying was his "persuader." B. Conclusions As related in the preceding section, both Pryor and Sawyer, individually, as well as the Union on their behalf, requested that they be rehired or reinstated shortly after the conclusion of the strike. Their requests were declined, and when they made inquiry of Office Manager Wayne as to the reason, his reply was that it was "obvious." Briefly stated, the Respondent's defense is that they engaged in miscon- duct during the strike which disqualifies them for reemployment.2 Having carefully considered the record and the post- encompassed by these charges, pointing out that under the law the General Counsel's disposition of charges was final. Nonetheless, I did allow counsel for the Respondent to adduce evidence with respect to the matters encompassed in those charges to the extent that I deemed it relevant as a (Continued) 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing briefs, I come to the conclusion that the Respondent violated the Act as alleged. As stated above, the Respondent takes the position that Pryor and Sawyer engaged in disqualifying misconduct during the strike. Additionally, the Respondent contends that the CB cases were settled by an agreement approved by the Officer-in- Charge, under which Pryor and Sawyer were not to be returned to work. I find these defenses lacking in merit for the following reasons. At the bargaining session held on August 26, the Respondent for the first time informed the Union that it did not intend to take back Pryor and Sawyer and two others (Marlow and Littrell). Partner Schlieper advised Bracken that the Union would have to agree that the Respondent did not have to take these four men back before the Umon could obtain a contract, explaining that his position was based on the picket line misconduct of these employees. Bracken denied that they had engaged in such misconduct and stated that he did not intend to enter into any agreement whereby these men could not return to work. In his testimony, Schlieper did not deny any of these facts recited by Bracken, except to state that the four individuals were not identified by name. During the session held on August 28, Schlieper again stated that before agreement could be'reached the Union would have to agree that the four individuals would not be returned to work. During the discussion of this matter, Schlieper reminded Bracken that Marlow and Littrell had been fined $50 each for violating a court injunction.3 In reply to this position, Bracken stated that Pryor and Sawyer had not been in any way involved in the injunction hearing, and suggested that Schlieper agree to take the four men back to work with an understanding that the Union would endeavor to get them jobs in the Building Trade Industry when possible. Schlieper rejected this proposal. In his testimony, Schlieper agreed that the four men were specifically identified in this bargaining session and also admitted that by this time he had decided not to recall either Pryor or Sawyer. In a telephone conversation on September 10, initiated by Bracken who was then in Washington, D. C., Bracken told Schlieper, so he testified, that the Union would not make any agreement with respect to the four individuals, stating, "Jerry, I have already told you several times before I don't intend to enter 'any kind of agreement whereby these men cannot return to work for the Company." At the October 7 meeting between the parties, they again reverted to the subject of the four men. According to Bracken, Schlieper stated that this subject was "very important" and that he did not want the men back on the Respondent's premises. For the Umon, Bracken stated that the Union was filing unfair labor practice charges against the Company alleging defense to the instant charge In his brief, counsel for the Respondent extensively argues these matters, including copious references to rejected exhibits proffered in support of the dismissed charges . I adhere to the ruling I made at the hearing Respondent's post-hearing motion that I receive Resp. Exh. 7, which was identified but not offered, is granted 3 On July 22, the Circuit Court for the Sixth Judicial District, Macon County, Illinois, issued a decree, by stipulation of the parties, in which the Umon was ordered "not unlawfully [to] obstruct the way of ingress and egress to, the Respondent's plant" in any way or manner so as to prevent persons or vehicles from entering or leaving ; that the Union and its adherents "shall not threaten, intimidate or cause damage to the property refusal to bargain in good faith. In his testimony, Schlieper denied that the matter of the four individuals was mentioned during this meeting. When the parties next met, on November 4, Schlieper handed Bracken a proposed settlement agreement that he had drafted, stating that the Union would have to sign it before a contract could be reached. The proposed agreement required, among other things, that the Union obtain the resignations of the four individuals. Bracken refused to agree to this proposal, in addition stating that these men were his strongest supporters. Additionally, Bracken stated that this was not a contract issue and that he did not wish to discuss it. Schlieper admitted that Bracken declined to sign the proposed settlement agreement. The Union did file charges which resulted in a complaint being issued (Cases Nos. 38-CA-920 and 1029), issued November 27, 1970. At the next session between the parties, held on December 8, the Respondent again brought up the matter of the resignation of the four individuals. Schlieper explained that he desired to obtain their resignations because of the damage done to the Respondent's property during the strike. Bassett, the International's director of operations, who was acting as spokesman for the Union, stated that he did not condone the things Schlieper claimed had happened but stated that the Board had issued a complaint against the Company alleging that the Compa- ny's insistence on the settlement agreement was an unfair labor practice. In addition, Bassett stated that he had not come all the way from Washington, D.C., to sit around and discuss nonmandatory bargaining subjects. According to the witnesses produced by the General Counsel, Schlieper stated that if the parties could reach agreement, the Respondent would withdraw the proposed settlement agreement. The parties then proceeded to discuss the contract issues and, so the government's witnesses assert, the subject of the four men was never again mentioned until after the contract was executed on December 14. On the other hand, the Respondent's version of the December 8 meeting is that the Union made an offer to the effect that the Respondent would not have to take back the four men if the parties could agree on the language of article II-B of the contract proposals. Schlieper, on the behalf of the Respondent, admitted that no such agreement was made and gave the following version of the December 8 meeting : Bassett, according to Schlieper, began the meeting by stating that the Union wanted article II-B and, if the parties could agree on the language of that provision, the Respondent would not have to worry about taking the four men back. Someone-Schlieper could not remember who-made an offer to the effect that the Respondent would take two of the men back and the other two would be left out. Finally, according to Schlieper, the parties agreed of any official, representative, agent, employee, supplier, customer, equipment maintenance personnel or visitor of the plaintiff or agent or employees thereof"; that they could not congregate, picket, or gather in excess of four pickets within 100 feet of the gate or entrance ; that no person was to drive a motor vehicle at a speed in excess of 5 miles per hour on the driveway leading to the gate of the plant and that the Respondent was to erect a large and easily-visible sign at the driveway so indicating; and that the Union and its adherents "will not park any vehicle on the improved portion of such driveway ... and will not force any vehicle to stop or reduce its speed so long as such vehicle is within" the prescribed speed limit HUSS & SCHLIEPER CO. 577 that none of the four would have to be returned to employment. Schlieper was then shown a document, purporting to be an affidavit that he had dictated and signed, and which also had been signed by Plant Superintendent Spitzer and certified as true by Office Manager Wayne. This affidavit covered the events that occurred on December 8. After having read the document, Schlieper was asked if the parties had agreed on December 8 that the four men would not be returned to work. He admitted that no such agreement had been made. I find that the parties did not enter into a settlement agreement providing, among other things, that Pryor and Sawyer would not be returned to work. In any case, it is clear that under settled precedent even if such an adjustment had been made it, would not bar the Board's exercise of its statutory authority. See Laclede Metal Products Co., 144 NLRB 15; IUE, Local 613 v. N.L.R.B., 328 F.2d 723 (C.A. 3, 1964), enfg. 132 NLRB 621. The principal question is whether Pryor and Sawyer were engaged in such picket line misconduct as would justify the Respondent's refusal to take them back to work after the conclusion of the strike. Schlieper admittedly knew that Pryor and Sawyer were among the four strongest supporters of the Union. According to Schlieper, the decision not to return them to work was made by August 28. It follows, therefore, that the alleged misconduct must have occurred on or before August 28. It is, of course, recognized that an employer has the burden of proving that strikers engaged in conduct barring them from a return to employment. An employer's honest belief that stnkers did engage in picket line misconduct of a serious nature is not a defense if it affirmatively appears that such misconduct did not, in fact, occur. See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 and J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414, 1418. The question, then, is whether the picket line conduct of Pryor and. Sawyer, which has been related above, was of a nature requiring that they be disqualified for reemployment under the precedents. As has been held, the applicable test in determining whether strikers accused of misconduct should be returned to work "is whether the misconduct `is so violent or of such serious character as to render the employees unfit for further service,' or whether it merely constitutes `a trival rough incident' occurring in `a moment of animal exuberance.' This distinction has been drawn on the theory that some types of `impulsive behavior,' being `normal outgrowths of the intense feelings developed on picket lines,' `must have been within the contemplation of Congress when it provided' for the right to strike." 4 I am convinced, and find, that neither Pryor nor Sawyer engaged in disqualifying misconduct. It is true that they stopped one or two vehicles momentarily as the vehicle approached the picket line. However they moved aside and allowed the vehicle to enter the Respondent's premises. Sawyer had a stick which he used to hit gravel in order to pass the time of day. There is no evidence whatever that the stick he carried was used by him in a threatening manner against nonstrikers or others. Pryor did converse with other 4 Terry Coach Industries, Inc., and Industrial Carpenters Union, Local 530, United Brotherhood of Carpenters & Joiners of Amertcq AFL-CIO, 166 NLRB 560 at 563 Fns omitted. 5 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 stnkers in an attempt to persuade them not to abandon the strike, but he did not do so in a threatening manner, so far as the record discloses. Pryor and Sawyer, along with other strikers, initially parked their cars in the driveway but, when advised to refrain from doing so by the police, they no longer did so. On one occasion Pryor and Sawyer followed an outside truck and asked the driver not to cross their picket line again, to which the driver agreed. There is evidence that two calls to a nonstriker's home were traced to Pryor's telephone, but he testified without contradiction that he had not made the calls and that it was a frequent occurrence for strikers to gather in his home. I am persuaded that the alleged misconduct of Pryor and Sawyer and the acts in which they engaged as recited above, are not serious enough to warrant denying them their jobs. See, e.g., National Packing Company, Inc., 147 NLRB 446, 447, 456-457; Stewart Hot Ring Company, Inc., 131 NLRB 310, 313; Schott Metal Products Company, 128 NLRB 415, 416; Frontier Guard Patrol, Inc., d/b/a Frontier Guard and DeLue, Inc., 161 NLRB 151; Rangairi Corp., 151 NLRB 682,688 ; Buitoni Food Corp., 126 NLRB 767, 783, enfd. 298 F.2d 169 (C.A. 3, 1962). Accordingly, I shall recommend that they be offered immediate reinstatement to their former positions. The Respondent unlawfully terminated the employment of Pryor and Sawyer on December 14, 1970, thereby violating Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Huss & Schlieper, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers International Association, Local 133, is a labor organization within the meaning of Section 2(5) of the Act. 3. Kenneth Pryor and Thomas Sawyer were discrimina- torily refused reinstatement on or about December 14, 1970, and -by such action the Respondent violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices burdening and affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and to take certain affirmative action, including offering reinstatement to Kenneth Pryor and Thomas Sawyer, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716; and to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following: 5 findings, conclusions, 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. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Respondent, Huss & Schlieper, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate, of otherwise discriminating against any employee for engaging in concerted activity or supporting Sheet Metal Workers International Association, Local 133, or any other union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Kenneth Pryor and Thomas Sawyer immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their loss of earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after 6 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 NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (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 Order. (d) Post at its Decatur, Illinois, plant copies of the attached notice marked "Appendix." 6 Copies of the notice, on forms provided by the Officer-in-Charge of Subregion 38, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Officer-in-Charge, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.? ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 7 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify said Officer-in-Charge, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith."