Jesco, Inc.

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Energy Service Company, d/b/a Jesco, Inc. and Theodore R. McKenny. Case 31-CA-3732 November 7, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 25, 1974, Administrative Law Judge Her- man Corenman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent with this Decision. The Administrative Law Judge found, and we agree, that approximately 20 millwrights engaged in an unprotected walkout on the night of March 10, 1973.2 We do not agree, however, with the Adminis- trative Law Judge's finding that Respondent violated Section 8(a)(3) and (1) of the Act by selecting three of the above employees and declaring them "not eli- gible for rehire" because of their membership in Mill- wright and Machine Erectors Union Local 1827, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein referred to as Mill- wrights Local 1827. This group of approximately 20 millwrights was composed of members of Millwrights Local 1827 and of "travelers," that is, members of other millwright local unions elsewhere. Following the walkout, Ruth- erford, Respondent's manager of labor relations, di- rected that termination slips be prepared for all 20 millwrights who had engaged in the walkout, show- ing that the men were "voluntary quits." On or about April 10, 1973, new termination slips were prepared for Ledford, McKenny, and Sutherland, which indi- cated that these three men were "not eligible for re- hire" at any of the Respondent's Jobs. Rutherford 1 Respondent's request for oral argument is hereby denied, as the record, including the briefs, adequately presents the issues and positions of the parties 2 No exceptions were filed with respect to this finding Inasmuch as we agree with the Administrative Law Judge that the walkout violated the no- strike clause contained in the United Brotherhood's written agreement as well as the implied no-strike provisions in the red book's grievance and arbitration procedures, we find it unnecessary to pass on his additional finding that the walkout was also unprotected because it was an unauthor- ized strike by a minority of millwrights testified that the termination slips for the above three employees were changed because, "[t]hey never did return to the job. We assumed they had quit, left us high and dry." Rutherford also testified that he changed the status of the three above-named men because he knew only those three to be members of Millwrights Local 1827.' Rutherford justified Respondent's failure to treat "travelers" as "ineligi- ble for rehire" by testifying that "it is an unwritten law in unions concerning travelers, that if one is a traveler in an area, if there is any problem, any trou- ble, they leave." Because of Respondent's admission that it selected Ledford, McKenny, and Sutherland for discipline because of their membership in Millwrights Local 1827, the Administrative Law Judge concluded that the Respondent's conduct in declaring them ineligi- ble for rehire violated Section 8(a)(1) and (3) of the Act.4 As noted above, we disagree. We agree with the Administrative Law Judge that when a strike is unprotected, an employer may disci- pline some but not all of the employees involved, provided, however, that the selection for discipline is not based on the employee's union membership or other union activity. In the instant case, Respondent changed the termination slips for Ledford, McKen- ny, and Sutherland to "not eligible for rehire" be- cause it knew them to be members of Millwrights Local 1827 rather than "travelers" from other locals who would likely not seek rehire with this Employer. In reviewing Respondent's action with regard to the above three employees, we take note of the fact that Respondent is a labor broker which hires virtually all of its employees through the union hiring hall. Be- cause of this relationship which Respondent has with the Union, we are unable to discern, nor does the record indicate, the slightest motivation on the part of the Respondent to discriminate against employees because of their membership in Millwrights Local 1827. The record also shows that Respondent has never interfered with the union activities of any of its employees. It is abundantly clear that in deciding not to change the original termination slips for the "trav- elers," who are also union members, Respondent was not motivated by a desire to discriminate against members of Millwrights Local 1827 or any particular faction thereof. For these reasons, we shall dismiss the complaint in its entirety. 3 Respondent claims that it was unaware of the fact that three other mem- bers of Millwrights Local 1827 also walked off the job on the evening of March 10 The Administrative Law Judge's finding of a violation herein was not based upon the General Counsel's theory , which was that the Respondent discriminated against Ledford , McKenny, and Sutherland because they be- longed to the union faction which was not favored by the Respondent 214 NLRB No. 124 JAMES ENERGY SERVICE CO. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: Upon a charge of unfair labor practices filed by Theodore R. Mc- Kenny, an individual, on May 3, 1973, against James Ener- gy Service Company, d/b/a Jesco, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, herein called the Board, issued a com- plaint against Respondent on March 28, 1974,' alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, by the discharge of three millwright employees named Theodore R. McKenny, J. Hugh Ledford, and William B. Suther- land. The Respondent filed its answer on May 1, 1974, denying that it had engaged in any unfair labor practice. A hearing in this case was held before this Administra- tive Law Judge at Las Vegas, Nevada, on May 22, 1974. All parties were afforded an opportunity to adduce evi- dence and examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Briefs submitted by counsel for the General Counsel of the Board and by coun- sel for the Respondent have been carefully considered. Upon the entire record in the case, my observation of the witnesses and their demeanor, and on consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The pleadings establish and I find that the Respondent is a New Mexico corporation engaged in the business of pro- viding power plant maintenance services to its commercial customers. Respondent's gross annual volume of business is in excess of $500,000, and annually it purchases and receives goods and services valued in excess of $50,000 di- rectly from outside the State of New Mexico for use within the State of New Mexico. Respondent is an employer en- gaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Millwright and Machine Erectors Union Local 1827, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Millwrights Local 1827, is a labor 1 This case was originally consolidated for hearing with Case 31-CB-1254 wherein complaint had also issued against Millwrights Local 1827 Case 31- CB-1254 was however disposed of by informal settlement agreement before the hearing opened 791 organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Background The Respondent is a labor broker which hires men to perform services for its customers. It assumes responsibility for payment of wages to the employees who are performing services at the establishments of Respondent's customers. In the course of its operations it keeps payroll records, makes wage payments, and deducts payroll taxes. The cus- tomer reimburses the Respondent for its labor costs and pays Respondent a fee for its services which is customarily based on a percentage of the labor cost. This case concerns the Respondent's operations at the Mohave Generator Station at South Point, Nevada, where Respondent was performing millwright work with approxi- mately 80 journeyman millwnghts and apprentices, all of whom were members of Millwrights Local 1827 or who were "travelers," that is, members of other millwright local unions elsewhere. The Respondent has a contract with the parent, United Brotherhood of Carpenters & Joiners of America, AFL- CIO, herein called Carpenters, with which the millwright locals were affiliated. This contract provides in pertinent part that the Respondent agrees to recognize the jurisdic- tional claims of the Carpenters Union, and to work the hours, pay the wages, and observe the working conditions established or agreed upon by the Carpenters Union and the recognized bargaining agency of the locality in which any work of the Respondent is being done. The Carpenters Union agrees that the local unions having jurisdiction in the respective area where the work is being performed will furnish competent journeymen for reference on a nondis- criminatory basis, and the Respondent agrees to use the registration facilities of the local union in fillingjob vacan- cies on all projects. This agreement with the Carpenters Union contained the following no-strike clause: The parties agree that no strike or lockout shall be entered into pending any dispute being investigated and all peaceable means taken to bring about a settle- ment. In keeping with its agreement with the Carpenters Union, the Respondent has orally agreed to be bound by the wages, hours, and working conditions of the "Red Book" which contains the collective-bargaining agreement between Millwrights Local 1827 and other locals with the Nevada Chapter, Associate General Contractors of Amen- ca, Inc. The "Red Book" contains a grievance and arbitra- tion procedure as follows: SETTLEMENT DISPUTES A. Any grievance or dispute concerning the interpre- tation or application of this Agreement may be sub- mitted as a grievance, provided such grievance is 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served upon the other party in writing, setting forth the nature of the grievance. B. When a grievance is served upon the other party, the following procedure shall be followed: (1) The Employer or his representative shall meet with a representative of the Local Union involved and attempt to resolve the dispute; if such representatives are unable to settle the dispute, then upon request of either party, (2) The grievance shall be referred to a representa- tive of the United Brotherhood of Carpenters and Joiners of America and to a representative of the Ne- vada Chapter of the Associated General Contractors of America for a final and binding decision; if such representatives are unable to resolve the dispute, then upon the request of either party, in writing, and within two days, (3) The grievance shall be referred to an impartial arbitrator for a final and binding decision. In the event the parties cannot agree upon the selection of an arbitrator within two days, the arbitrator shall be se- lected from a list of five names provided by the Feder- al Mediation and Conciliation Service. C. The arbitrator's fee and all incidental expenses shall be paid equally by the parties. D. This grievance and arbitration procedure shall not apply to any issue or dispute concerning the payment of wages, travel or subsistence, or fringe benefits or contributions to any Trust Fund. Nothing contained in this Section shall prevent an employee or the Union from taking any legal or economic action regarding any dispute concerning the payment of wages, travel or subsistence or fringe benefits or contributions to any Trust Fund. B. The Walkout Mssrs. Al Benedetti,2 Gordon Powers, and Richard Heit- brink were millwright foremen. They and other mill- wrights, including the alleged discriminatees herein, name- ly, William Sutherland, J. Hugh Ledford, and Theodore R. McKenny, the Charging Party herein, were given permis- sion by the Respondent to attend a union meeting during working hours in February 1973. Benedetti, Powers, and Heitbrink claimed that they had been shorted in their pay- check for this pay period in which the union meeting had been held. They first took the matter up with the timekeep- er who told them that he had no authority to make the adjustment. At the request of the job superintendent, the labor relations manager, Arthur W. Rutherford came to the jobsite on the evening of March 10, 1973, to adjust the matter. He went to the turbine deck and then met with the three millwright foremen, namely, Powers, Benedetti, and Heitbrink 3 to discuss the matter. Also present were Union Z Benedetti is also the president of Millwrights Local 1827, a fact well known by M Rutherford, the Respondent's manager of labor relations 3 Benedetti was the president of Local 1827 Mr J Hugh Bedford was Steward Charles Lawrence and the job superintendent. Af- ter reviewing the payroll records, Rutherford agreed to pay the three foremen 1 hour's pay, but refused to pay addi- tional subsistence pay for the time spent in the union meet- ing. The issue as to subsistence pay for the I hour involved an interpretation of the agreement. Rutherford told the three men to refer the matter of the subsistence pay to Mr. Brown, Local 1827's business representative. The three protested that they couldn't accomplish anything through their business representative. When Rutherford then sug- gested that they go to the Carpenters Union with their grievance, they replied, "We can't get anything done with those bastards either." ' Rutherford describes the meeting with the three men as follows: "The argument over the subsistence had caused some heated remarks to be made on the part of the employees. There was some fingerpointing and shouting and waving and cursing." Then Mr. Powers said that he wanted pay for a pair of overalls that had disappeared on the job about 6 months earlier. Rutherford was not prepared to talk about overalls as this was his first knowledge that Powers was making such a claim. When Rutherford refused for the moment to make an adjustment for the Powers' missing overalls, Powers cursed him with the vulgar expression "F- You!" At this point, Rutherford felt he was being degraded and made a spectacle of in front of other people. He also testified that it seemed to him that Powers and Benedetti were trying to create an image for themselves before the other mill- wrights. At this point, Rutherford fired Powers and Bene- detti.5 He told Heitbnnk, who had not actively participated in the argument, that he was not being fired, but Heitbrink nevertheless also asked for his time. When Rutherford fired Benedetti and Powers, Benedetti turned to job stew- ard, Charles Lawrence, and asked what he was going to do about their being fired for their union activity in trying to collect their wages. Lawrence said he would call the busi- ness agent. Benedetti said he was shutting down the job and he walked around the turbine deck and talked to em- ployees. As a consequence, all the millwrights on the tur- bine deck picked up their tools and left the turbine deck except General Foreman Paquette.' The millwrights who worked below did not walk off. C. The Three Millwrights-Ineligible for Rehire Rutherford directed that termination slips be made out for all 20 millwrights who had walked off the job, showing that the men were "voluntary quits." On about April 10, 1973, new termination slips were directed to Ledford, Mc- recording secretary and Powers was also an officer Powers, Benedetti, and Heitbrink were members of Local 1827 Rutherford conceded that he was aware that there was some ill-feeling between Local 1827 Business Representative Brown and various members of the Union Rutherford also conceded that he was aware that there was an upcoming election in Local 1827 and he assumed that Brown was up for reelection 5 No claim is made that the discharges of Powers and Benedetti were unfair labor practices 6 Rutherford testified he was never given any reason why the millwrights on the upper deck walked off, "they never did return to the job, the job was still open " JAMES ENERGY SERVICE CO Kenny, and Sutherland which stated that these three men were not eligible for rehire at any of the Respondent's jobs.7 Concerning his reason for changing the termination no- tices of McKenny, Sutherland , and Ledford to read "not eligible for rehire," Rutherford testified, "They walked off their job ; it was an irresponsible thing to do, and in the particular situation we are in down there , we didn't want those people back, referred back to us." Rutherford testi- fied that he changed the status of these three men "not eligible for rehire" because he knew only those three to be members of Millwrights Local 1827.8 Rutherford did not issue new termination slips declaring the "travelers" [mem- bers of other locals temporarily working in Local 1827's geographical jurisdiction] "not eligible for rehire ." Testify- ing at another point why he made the April decision to treat these three men "not eligible for rehire ," Rutherford testified, "They never did return to the job. We assumed they had quit, left us high and dry." 9 Rutherford justified his failure to treat the travelers as "ineligible for rehire" because, he testified, "it is an unwritten law in unions con- cerning travelers, that if one is a traveler in an area, if there is any problem, any trouble, they leave." 10 Rutherford testified without dispute that none of the three men in question made any demands after they walked out and none of them returned to work or asked for their jobs back. Returning again to the conversation between Rutherford and the three foremen, namely, Benedetti, Powers, and Heitbnnk, at which Union Steward Lawrence was present, it is clear and undisputed that when Benedetti forcefully requested that Lawrence take action, Lawrence said he would call the business agent. Lawrence called Business Representative Brown who instructed Lawrence "to man the job." There was a time lapse of about 45 minutes be- fore Lawrence could reach Brown . After receiving his in- structions from Brown, Lawrence met with the foremen and relayed to them Brown's instructions . According to Lawrence's undisputed testimony, the foremen told their men to remain on the job, and the majority of the night crew did remain on the job . Lawrence testified credibly that only two millwrights remained on the upper deck. The others walked off without waiting for him to return to the job with Brown's instructions to man the job 11 Rutherford testified that he was unaware that about 2 or 3 weeks after the March 10 walkout, Ledford returned to the job to work for 3 days 8 The record discloses that three other members of Local 1827 also walked off on the evening of March 10 9 But Rutherford admitted that the "travelers" also did not return to their jobs 10 When the General Counsel pointed out to Rutherford that the "travel- ers," who were working below, did not walk out, Rutherford sought to explain that only those who were working in the area when the dispute occurred walked out li Lawrence, called as a witness for the Respondent, testified without dispute that Benedetti and Heitbrink had talked to him about the wage dispute a week or two prior to March 10 and he reported this to Business Agent Brown 793 D. The Viewpoints of Sutherland, Ledford, and McKenny Concerning the March 10 Walkout Sutherland is a millwright apprentice. He testified that he attended the union meeting in February 1973, but his pay- check was not shorted. Sutherland testified that while he was at work on the upper deck on the night of March 10, John Morgan walked over to where he was working and said, "They fired our foreman. We are leaving." Accord- ingly, Sutherland testified, "I looked at Jim and I says, I'm going too." Sutherland testified that he didn't ask Morgan why they fired the foremen, but he had an idea that there had been a hassle over wages, as he knew Benedetti had come in early that evening to talk about his wage griev- ance. Sutherland testified credibly and without dispute that he had testified as a witness against Brown in intraunion proceedings." His immediate foreman was Gordon Pow- ers, who together with Benedetti had been fired that eve- ning. Sutherland testified he quit that night of March 10 because he "thought these three foremen had been fired for trying to get some back pay that was coming to them." At another point, Sutherland testified that he quit because the Respondent fired the foreman and that he did not expect to return to work for the Respondent in the future on that particular job. Sutherland also testified that he would have taken otherjobs of the Respondent and "if there was a call in the union hall, he would have taken it." J. Hugh Ledford was the recording secretary of Local 1827. He had attended the union meeting in February 1973 along with the others, after receiving prior permission from the Respondent. He returned to work after the meeting ended. He was aware of discussions concerning a pay shortage for the night of the union meeting between Heit- brink, Powers, and McKenny. Ledford himself never checked to see if his own paycheck was short. Describing his walkoff on March 10, Ledford testified that "when he walked off, someone had come along prior thereto and said all the foremen had been fired; he and his working partner just picked up their tools and walked off." Although Led- ford testified he had no knowledge as to why the three foremen were fired, he thought from what he had heard in previous discussions that subsistence and 1 hour's pay were involved. Ledford testified he went looking for the steward but couldn't find him. Ledford was referred to the job on March 30, 1973, and worked for 3 days and was then laid off because work had been completed. Subsequent to his working there 3 days, he received a new termination notice that told him he was not eligible for rehire in the future. Ledford testified credibly and without dispute that there were other members of the local union who had walked off the job on March 10 who were nevertheless afterwards hired back, namely, Gordon Jeffries, Robert Stamnard, John Morgan, and Frank Smith. Ledford also testified that when he walked out on March 10, he did not believe he was engaging in any strike. As far as he was concerned, he just quit his job. He did not try to get his job back. He just went down to the union hall and signed the out-of-work 12 The Respondent stipulated that there had been a squabble between elements in Millwrights Local 1827, between the business agent and these men The Respondent took the position, however, that this dispute did not concern the Respondent 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list. He testifies he returned to work at the Respondent because he was referred by the union hall. Ledford also testified he quit his job because, "you cannot work without a foreman; that he himself had no grievance with the Re- spondent." Ledford testified it is union tradition "that one cannot work without a foreman." Theodore R. McKenny held the office of "Conductor" in Local 1827. He was one of those who attended the Febru- ary union meeting after receiving permission from the Re- spondent. McKenny testified credibly that he had been in discussions concerning a shortage in pay for the union meeting. McKenny had taken his shortage up with Mr. Armenta, the Respondent's timekeeper. Armenta told him it was going to be handled, that the union steward was looking it over and it was in the process of correction. The union steward told him the same thing. He was aware that on March 10, Benedetti and Powers were coming in early to discuss the pay shortage with Rutherford. McKenny was not present and did not participate in the conversation with Rutherford, but as he walked around the turbine deck, he could hear loud voices and a heated argument. Asked what caused him to walk off, McKenny an- swered: "I figured Mr. Benedetti, Mr. Powers and Mr. Heitbnnk were talking about wages, and it must have come to a heated argument and got fired for that." McKenny testified credibly and without dispute he saw other mill- wrights walking with their toolboxes. He asked them, "What is going on," and they said: "Grab your tools: They fired all the foremen." Testifying to his state of mind, Mc- Kenny said, "Instead of standing around and arguing on what it was all about-the job was there and them coming to a completion; they were going to lay the men off, so I decided to take off-to quit." McKenny testified he left because he thought the foremen were unjustly fired. Mc- Kenny admitted he had heard the union steward went to call the business agent, but he did not wait for the steward to return, he just quit. Concerning the union steward, Mc- Kenny testified, "I just knew he wasn't going to help me on the job because he didn't help me before." "That is why we were discussing the pay situation on the job." 13 McKenny testified that if the others hadn't walked out, he wouldn't have either. McKenny testified further, "I don't know if there was any no-strike clause or not in this contract, but I was not striking; I was quitting." 14 Analysis and Conclusionary Findings I have concluded that the walkout of the approximate 20 millwrights on the night of March 10, 1973, amounted to a concerted quitting of work to protest the discharge of the three foremen, Benedetti, Powers, and Heitbrink, who were members of Millwrights Local 1827.15 I further find that in view of the argument between Rutherford and the three u McKenny had a fist fight with Business Representative Brown at a union meeting on January 25, 1973, and McKenny had Brown arrested on a citizen's arrest 14 In addition to the three alleged discriminatees involved in this case, Benedetti, Powers, and Heitbrink were given termination notices, "not eligi- ble for rehire " 15 No claim is made that the walkout was caused by unfair labor practic- es foremen which immediately preceded their discharge and which triggered the walkout, it becomes perfectly clear that the discharge of the three foremen was the cause of the walkoff.16 I agree with the Respondent that the walkout was unpro- tected for two reasons: (1) that it was a wildcat strike by a minority of the millwrights without union authorization and contrary to and in conflict with Union Business Agent Brown's instructions to man the job, and (2) it violated the no-strike clause contained in the United Brotherhood's written agreement as well as the implied no-strike provi- sions in the Red Book's grievance and arbitration proce- dures earlier set forth in this Decision. Unauthorized strikes by a minority in derogation of the collective-bargaining representative's status as exclusive representative of the employees and in direct defiance of the exclusive representative's orders and instructions to re- main at work and man the job have been almost univer- sally condemned and held to be unprotected by the various circuits, but not by the Board. See, e.g., Food Fair Stores, Inc. v. N.L.R.B., 491 F.2d 388, 393 (C.A. 3, 1974); N.L.R.B. v. Draper Corporation, 145 F.2d, 199 (C.A. 4, 1944); N.L.R.B. v. Tanner Motor Livery, Ltd., 419 F.2d 216 (C.A. 9, 1969); Lee Consaul Co., Inc., v. N.L.R.B., 469 F.2d, 84 (C.A. 9, 1972); N L.R.B. v. Sunset Minerals Inc., 211 F.2d, 84 (C.A. 9, 1954). The instant case is to be distinguished from the situation in N.L.R.B. v. R.C Can Co., 328 F.2d 974, 979 (C.A. 5, 1964) where the Fifth Circuit in enforcing the Board's or- der held that a minority strike during initial contract nego- tiations is protected by Section 7 if "it seeks to generate support for and an acceptance of the demands put forth by the Union. . . so long, of course, as the means used do not involve a disagreement with, repudiation or criticism of a policy or decision previously taken by the Union such as, for example, a no-strike pledge, a cooling-off period, or the like during negotiation." However, that court has subse- quently stated that R. C Can is of "doubtful viability" in N. L. R. B. v. Shop Rite Foods, Inc., 430 F.2d 786, 791 (C.A. 5, 1970), denying enforcement of the Board's order. Rely- ing on N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967), the court in Shop Rite held that a nonsanc- tioned walkout during initial contract negotiations was un- protected by Section 7 because "the national labor policy extinguishes the individual employee's power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees." The Board's recent decision in The Emporium, 192 NLRB 173 (1971), reversed by the Court of Appeals for the District of Columbia, 485 F.2d 917, indicates that the Board, in adopting the Administrative Law Judge's De- cision, is departing from its rationale that unauthorized concerted action which arguably strengthens the Union's bargaining position, is thereby protected. In that case it was held that the concerted activity of four employees in picketing a department store and by dispensing handbills appealing to the public to boycott the store was unprotect- I6 See Brooks Foundry Inc, 166 NLRB 581 (1967), where the Board held that "oral pronouncements of the subjective state of mind are not the only means by which the purpose for particular conduct is ascertained Actions often speak louder than words" JAMES ENERGY SERVICE CO. 795 ed, and the subsequent discharge of two employees be- cause of such activity was held not violative of the Act. The Administrative Law Judge, in support of his finding that the picketing and handbilling was unprotected , said as fol- lows: It would be absurd to say that because they [the two pickets who were discharged] and the Union had a common ultimate objective , these four employees were somehow implementing or strengthening the Union in its position. They were acting outside the agreement and contrary to the Union's advice and urging. Where a strike is unprotected the Respondent may disci- pline some but not all of the employees, provided, however, that the selection for discipline is not based on the employee's union membership or other union activity. In the instant case, Rutherford admits that he selected Mc- Kenny, Sutherland, and Ledford as "not eligible for re- hire" because he knew them to be members of Millwrights Local 1827 rather than travelers from other locals. No claim is made, nor is there any evidence to show that any of these three men instigated the walkout or had any great- er responsibility for it than any other of the men who walked out on March 10. In view of Rutherford's frank admission on the record that he selected McKenny, Suth- erland, and Ledford for discipline because of their mem- bership in Local 1827, 1 find that the Respondent's con- duct in declaring them ineligible for rehire violated Section 8(a)(1) and (3) of the Act. See American International Alu- minum Corp., 149 NLRB, 1205 (1964), where the Trial Ex- aminer whose Decision was adopted by the Board states at p. 1217: sive grievance and arbitration procedure to settle disputes. The last paragraph of the procedure for settlement of dis- putes provided that the grievance and arbitration proce- dure should not apply to any issue or dispute concerning the payment of wages, travel or subsistence, or fringe bene- fits or contributions to any trust fund and also provided that nothing contained in that section "shall prevent an employee or the Union from taking any legal or economic action regarding any dispute concerning the payment of wages, travel or subsistence or fringe benefits or contribu- tions to any trust fund." In the instant case , the walkout was undertaken to pro- test the discharge of Benedetti , Powers, and Heitbrink. The discharge was not for any of the reasons set forth in the last paragraph which I have set forth above which exempts cer- tain grievances or disputes from the grievance and arbitra- tion procedure and allows legal and economic action rath- er than resort to the grievance and arbitration procedure. As the dispute arising from the discharges of Benedetti, Powers, and Heitbrink was a matter to be disposed of un- der the grievance and arbitration procedure contained in the "Red Book," it follows, and I find, that the walkout of March 10 violated the implied no-strike agreement con- tained in the red book, and the employees who walked off the job on March 10 were engaged in an unprotected con- certed activity. Local 174 Teamsters, Chauffeurs, Ware- housemen & Helpers of America v. Lucas Flour Co., 396 U.S. 95 (1962); N.L.R.B. v. Dorsey Trailers Inc, 179 F.2d 589, 592 (C.A. 5, 1950); NL.R.B v. Sunset Minerals, 211 F.2d 224, 226 (C.A. 9, 1954) (also wildcat). However, as I have held above, I have found that the Respondent's selection of McKenny, Ledford, and Suther- land as not eligible for rehire was admittedly because of their membership in Local 1827. The Respondent thereby violated Section 8(a)(1) and (3) of the Act. It is of course well established that employees who participate in a slowdown engage in concerted activity not protected under the Act and may be discharged for that reason . However, this principle is not applica- ble to the circumstances herein, since it is concluded that Respondent's action in locking them out and then terminating the employment of the entire force was not motivated by that reason, but was discriminately motivated in violation of Section 8(a)(3) and (1) of the Act. Also cf. N.L.R.B v. Rubber Rolls Inc, 388 F 2d 71 (C.A. 3, 1967), where the third circuit , in enforcing the Board's order, held in agreement with the Board that the discnminatee's activity in pressing for a strike was protect- ed not only because he was advocating the use of the strike weapon to assist the negotiations for which approval had already been given by the Union, but also because the dis- criminatee was discharged for his union activity prior to the strike. I also agree with the Respondent's contention that the March 10 walkout violated the explicit no-strike clause contained in the signed agreement with the United Broth- erhood of Carpenters as well as the implied no-strike agree- ment in the "Red Book" by which the parties considered themselves bound . The red book contained a comprehen- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in Section III, above, occurring in connection with the operations of Re- spondent, described in Section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. V. REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It having been found that the Respondent discriminato- rily declared Theodore McKenny, William Sutherland, and J . Hugh Ledford ineligible for rehire because of their union membership in Millwrights Local 1827, it will be recommended that the Respondent expunge such ineligi- bility for rehire with respect to these three employees, and make them whole for any loss of earnings they suffered by 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason of the Respondent's refusal to hire them to jobs to which they had been referred by Local 1827 or to which they would have been referred by Local 1827 had they not been declared ineligible for hire. Such loss of earnings shall be computed in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the above findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Millwrights Local 1827 is a labor organization within the meaning of Section 2(5) of the Act. 3. By the Respondent's conduct in declaring William B. Sutherland, Theodore R. McKenny, and J. Hugh Ledford not eligible for future rehire by the Respondent on any and all of its jobs, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]