Gulf-Wandes Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulf-Wandes Corporation and Oil, Chemical and Atomic Workers International Union, Local 4-620, AFL-CIO and Oil, Chemical and Atomic Workers International Union. Cases 15-CA-6289 and 15- CA-6289-2 November 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 25, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed an exception and brief in opposition to Respondent's exceptions. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge to the extent they are consistent with our findings herein, to modify the remedy so that interest is to be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order, as modified herein. I. We adopt the Administrative Law Judge's finding that on or about October 22, 1976, Respon- dent coercively interrogated and threatened an employee in violation of Section 8(a)(1) of the Act; that on October 25, 1976, Respondent discharged six employees for engaging in union concerted activity, thus violating Section 8(a)(3) and (1); and that, by refusing to immediately reinstate unfair labor prac- tice strikers after their unconditional offer to return on November 15, 1976, Respondent violated Section 8(a)(3) and (1) of the Act. 2. The Administrative Law Judge found that Woodrow L. Boatner had been legitimately dis- charged for cause arising from conduct unrelated to his participation in the unfair labor practice strike. The General Counsel excepts, contending that the 6- week delay in informing Boatner of his discharge, when viewed in connection with Respondent's other conduct where union animus was found, supports the conclusion that this discharge was pretextual. We agree with the General Counsel and find that the t Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence 233 NLRB No. 116 discharge of Boatner was a violation of Section 8(a)(3) of the Act. On Friday, October 22, Boatner was circulating a football pool when he was expected to be assisting in a loading job. The warehouse foreman, James Jackson, testified that he reprimanded Boatner, and, in an ensuing argument, Boatner called Jackson a "god-damned liar." Jackson, a minister, was in- censed by this profanity and told Boatner, "We ain't going to have this." He did not tell Boatner that he was discharged. Boatner testified that he was excited during his confrontation with Jackson and conceded that he may have said "goddamn," but he denied any recollection that he called Jackson a liar. Although Jackson had the power to discharge Boatner on the spot, Jackson testified that he had only recently become a supervisor and decided to consult with his immediate superior before taking any action. On Monday, October 25, the day of the unfair labor practice strike, Jackson conferred with Controller Barry Piatt who told him to fire Boatner. The Administrative Law Judge credited the testimo- ny of these two supervisors and found that Piatt had decided on October 25 to fire Boatner for his profane and insubordinate conduct on October 22. Piatt felt it was inappropriate to personally contact Boatner while he was on the picket line. The Administrative Law Judge discredited that portion of Piatt's testimony which was to the effect that a letter of termination had been sent to Boatner on or about October 25, which was later returned undelivered. The Administrative Law Judge found that the discharge was effective only as of December 1, 1976, when Boatner received a letter informing him of his discharge. The Administrative Law Judge found that Respon- dent's 38-day delay in telling Boatner of his dis- charge was due to Piatt's "probably having forgotten the matter in the turmoil of the strike." Similarly, the Administrative Law Judge apparently felt that Boatner's unconditional offer to return to work made on November 15, which was accepted along with the other offers by the strikers, was a consequence of Respondent's preoccupation with the strike at this time. Although an employer has a right to discharge an employee for profane and insubordinate conduct, the mere existence of a justifiable ground for discharge is no defense if it is a pretext and not the moving cause. In deciding whether a discharge is for cause or is pretextual, it is necessary to examine the totality of circumstances. Thus, where an employer enforces a convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 772 GULF-WANDES CORPORATION rule arbitrarily or imposes an excessive penalty, this supports an inference that the discharge was discrim- inatory. The timing of a discharge is also relevant as when it follows the employer's discovery of union activity or where the employer unduly delays in effectuating the discharge until after union activity occurs. Three days after Boatner's insubordinate conduct, six union members were illegally discharged for engaging in protected concerted activity and an unfair labor practice strike began which Boatner participated in. After deciding to fire Boatner on October 25 for his insubordinate conduct on October 22, Respondent inexplicably failed to send an immediate termination letter or place a phone call to Boatner. Supervisor Piatt's testimony that an imme- diate termination notice was sent was completely discredited by the Administrative Law Judge. Re- spondent neglected another opportunity to discharge Boatner when he, along with the other strikers, made an unconditional offer to return to work on Novem- ber 15. Instead, Respondent waited until December 1, almost 6 weeks after Boatner's altercation with the supervisor to inform Boatner that he had been discharged. It is in the context of this Employer's determination to punish the Union for engaging in concerted activity that we must analyze the sudden memory of an incident which occurred prior to an unfair labor practice strike to discharge a selected striker after his unconditional application for rein- statement had been accepted. Respondent's lapse of almost 6 weeks in effecting the discharge, in the context of Respondent's other conduct where union animus was found,3 supports the inference that this discharge was pretextual. It strains credulity to believe that this unfair labor practice striker's prior conduct of October 22 was the moving cause for his dismissal on December 1. It is clear that this discharge was only the last in a series of unfair labor practices on the part of an employer who was found to have "a fixed resolve to crack down on the union show of strength."4 We conclude that Piatt's sudden memory of the October 22 incident was an attempt to clothe an unlawful discharge for concerted activity as a discharge for insubordination. Accordingly, we find Respondent's discharge of Boatner violated Section 8(a)(3) of the Act, and that Boatner qualified for reinstatement as of November 15, 1976, with backpay computed in the same manner as the other unfair labor practice strikers. s As noted, Respondent interrogated and threatened an employee in violation of Sec. 8(a)( 1) of the Act on October 22, the same day of Boatner's insubordination. On October 25, Respondent in violation of Sec. 8(a)(3) and (I) of the Act discharged six employees who concertedly refused overtime. In addition, when Boatner and the other unfair labor practice stnkers made an unconditional offer to return to work on November 15, they were denied immediate reinstatement in violation of Sec. 8(a)(3) and ( I) 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 recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Gulf-Wandes Corporation, Baton Rouge, Louisiana, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following as paragraph 2(a): "(a) Offer Warren Washington, Ralph Bowie, Alfred Johnson, Robert Lee, Donnie Hallmark, Donald Winfield, and the employees named in Appendix A attached hereto (including Woodrow L. Boatner), if it has not already done so, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired as replacements, and make them whole for any loss of pay they may have suffered by reason of Respondent's unlawful conduct, in the manner set forth in the section of the Administrative Law Judge's Decision entitled 'The Remedy,' as modified by the Board's Decision." 2. Substitute Appendixes A and B attached hereto for those attached to the Administrative Law Judge's Decision. MEMBER MURPHY, concurring in part: I agree with my colleagues' disposition of this case except for their finding, contrary to the Administra- tive Law Judge's, that the discharge of Boatner on December 1, 1976-assertedly for insubordination on October 22-was unlawful. The credited testimony is that the decision to discharge Boatner for insubordination was in fact made on October 25 by Respondent's controller, Piatt, after a discussion with Boatner's supervisor, Jackson. However, at that time Boatner was on strike and, for reasons not wholly clear on the record, Respondent failed to notify Boatner of his discharge then and in fact accepted his unconditional offer to return to work on November 15 only to discharge him for the October insubordination some 2 weeks later. The Administrative Law Judge concludes that the delay in Boatner's discharge was caused by Piatt's having overlooked the matter in the turmoil of the T4 he dissent makes much of the fact that Boatner was the only unfair labor practice striker discharged. It may well be that Boatner was the only unfair labor practice stnker whose conduct offered even a pretextual basis for discharge. In any case, the Employer's failure to commit every violation possible is no grounds for excusing the violations which did occur. 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike; my colleagues see more sinister motives in operation. But, be this as it may, 1 nevertheless can perceive no sound basis for reversing the Administra- tive Law Judge's conclusion that the December I discharge was not unlawful. Indeed, the underlying facts fully support that result. Thus, Boatner was not, insofar as the record shows, especially active in the Union or in bringing on the strike. Also, though the six employees who concert- edly refused overtime were discharged, none of the employees who, like Boatner, struck in protest of those discharges were themselves discharged and all were reinstated when they sought to return to work after the strike. Therefore, there is nothing in Respondent's conduct which supports a conclusion that it would single out Boatner for discharge "for union or strike activity." Consequently, the only plausible-and, I might add, credited-explanation of the discharge is the October 25 decision to fire him for insubordination. 5 My colleagues' holding that the discharge was unlawful ultimately rests solely on the delay between the decision to discharge and the date it was effectuated. Obviously, an employer can quite lawfully discharge an employee for any unprotected conduct no matter how remote-even if there is intervening union activity. This Board has no right to stop it from doing so if the old "economic" conduct is the real reason for the discharge and not a pretext. The problem is one of proof, not simply one of the remoteness of the incident involved, though that may be a factor for consideration. It is no doubt an unusual circumstance but hardly one which alone warrants reversing the Administrative Law Judge's finding, which I would adopt, that Boatner's dis- charge was, indeed, for insubordination and thus was not unlawful. I The majority in its decision adverts to various unlawful conduct by Respondent and its "fixed resolve to crack down on the union show of strength" as supporting the conclusion that Boatner was unlawfully discharged. But those factors were equally applicable to Boatner's fellow October 2. stnkers, none of whom was discharged, and thus, as they did not cause the discharge of other strikers, they clearly fail to explain by themselves why Boatner was selected for discharge. Actually, all that distinguished Boatner from the other employees who struck on October 25 was his prestrike insubordination and Piatt's decision to fire him at that time. However, my colleagues suggest that Boatner was selected for discharge just because those prestrike factors provided a convenient coverup for an unlawful discharge and that Respondent did not fire the other strikers because nothing was at hand to disguise its alleged improper motivation. But a rationale of that kind really seems unacceptable to me, as it ultimately turns on the premise that the existence of just cause for discharge and claimed reliance on that cause are evidence of illegal conduct, a rather perverse conclusion at best. In short, my point here is that the only factor distinguishing Boatner from the other October 25 strikers is one that properly supplies no support for a conclusion that he was discharged for engaging in union activities or for the purpose of undermining the Union's show of strength. APPENDIX A The following unfair labor practice strikers are entitled to an offer of reinstatement and appropriate backpay, in accordance with the foregoing Decision: Jerry Stallion Eugene Wilson Edward Bickham Al Glover Alfred Williams Russell Goins Andrew Crawford Willie Dunn Lonnie Johnson Charles Tullier Roy Patterson Percy Williams Frankie Brown L. C. Modica Kenneth Johnson Sally Sanders Sanford Wiggins Anthony Ray Anderson Bernell Sims James Atkins Ronald Whitfield Charles O'Conner Woodrow L. Boatner Burtell Noble Wendell Jack Vonciel Adams William Keith Bell Ulysses Walker Anthony Nelson Donald Jackson APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activity on behalf of Oil, Chemical and Atomic Workers International Union, or any other labor organization, or interfere with the protected concerted activities of employees, by discriminat- ing against employees who engage in such activity, by refusing to reinstate upon uncondi- tional application employees who have engaged in an unfair labor practice strike, or by, in any other manner, discriminating against employees in regard to their hire and tenure of employment. WE WILL NOT coercively interrogate employees about their union sentiments. WE WILL NOT threaten employees that they will lose their jobs if they refuse to cross picket lines. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL offer to the following named employ- ees, if we have not already done so, immediate reinstatement to their former jobs, or if such jobs no longer exist, to substantially equivalent ones, without prejudice to their seniority and other rights and privileges, and WE WILL make them whole for any loss of earnings they may have 774 GULF-WANDES CORPORATION suffered by reason of our unlawful discrimination against them: Warren Washington Ralph Bowie Alfred Johnson Jerry Stallion Eugene Wilson Edward Bickham Al Glover Alfred Williams Russell Goins Andrew Crawford Willie Dunn Lonnie Johnson Charles Tullier Roy Patterson Percy Williams Frankie Brown L. C. Modica Kenneth Johnson Robert Lee Donnie Hallmark Donald Winfield Anthony Ray Anderson Bernell Sims James Atkins Ronald Whitfield Charles O'Conner Woodrow L. Boatner Burtell Noble Wendell Jack Vonciel Adams William Keith Bell Ulysses Walker Anthony Nelson Donald Jackson Sanford Wiggins Sally Sanders GULF-WANDES CORPORATION DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This case was heard in Baton Rouge, Louisiana, on March 15-17, 1977. The complaint, denied in all material respects by Respon- dent, alleges that one of Respondent's agents unlawfully interrogated and threatened an employee on or about October 22, 1976, in violation of Section 8(a)(1); that, on October 25, Respondent discharged six employees for engaging in union and protected concerted activities, thus violating Section 8(a)( 3) and (I); and that, beginning November 15 and until December 27, Respondent failed to reinstate 30 unfair labor practice strikers who went on strike on October 25 in protest of the discharges effected that day, thereby violating Section 8(a)(3) and (I). Briefs were received from the General Counsel and Respondent on or about April 29, 1977; they have been carefully considered. Upon the entire record' and my observation of the demeanor of the witnesses, I make the following findings: I. JURISDICTION OF RESPONDENT Respondent, a Louisiana corporation, is engaged in the business of fabricating and distributing plastic materials at its principal place of business in Baton Rouge, Louisiana. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' Certain errors in the transcript have been noted and are hereby corrected. 2 Although Riley testified that he suggested Saturday, October 23, as the day for taking such action, his pretrial affidavit states that he made reference, in the October 14 conversation, to "that Saturday," which can be 1I. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union (the International or the Union) is, as Respondent agrees, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. A Summary of the Pertinent Events In April 1976, the International was certified as the bargaining representative of Respondent's production and maintenance employees, apparently some 60 or so in number. Bargaining began in July. The principal employee union representative at the plant was Andrew Crawford; he was the elected chairman of the "group," as the union members at the plant are known in the Union's terminology, and he was also chairman of the employee negotiating committee, which included two other employees, Jerry Stallion and Edward Bickham. Also bargaining for the Union, at material times, was James Riley, an international represen- tative working out of Sulfur, Louisiana. The negotiators made progress, but not enough to impress the employees. Two or three times, tentative agreement was reached by the negotiators, only to be rejected by the membership in ratification balloting. After the members had so expressed their dissatisfaction in a vote taken around October 13 or 14, Riley talked to Crawford ?nd Bickham about the advantages to be gained from taking the job action of refusing to work overtime on a Saturday. He pointed out that "it'd been one of the major complaints all along that they had to work too much overtime, and I felt it'd be a way to show the company that they would stick together and ... do something unified." 2 The employee committee embraced the idea, and the following week, Crawford, Stallion, and Bickham went individually to the employees and urged them to refuse to work overtime on October 23, if asked. Crawford also held three meetings at the plant with the union members, the first in the parking lot immediately after work ended at 4 p.m. on Thursday, October 21, and two more, at noon and 2:30 p.m., in the plant lunchroom on Friday. Some 20-25 employees were present on Thursday when Crawford noted that Respondent had "made its final offer" and urged them to refuse overtime on the coming Saturday as "a means of applying pressure to the company because we had been usually working every Saturday." The employees present unanimously voted to resist overtime, by a show of hands. Crawford also promised that if any employees were discharged for refusing overtime, the others would strike in retaliation. 3 The customary method of assignment of overtime on Saturdays is to inform the employees on Friday morning that their presence will be required. At the noon meeting on Friday, with 15 or 20 employees present, Crawford construed to mean October 16. I doubt that Riley, whose sincerity very much impressed me, would have promoted the organization of a job action only 2 days prior to its effective date. At any rate, the point is immatenal. 3 In July, the membership had authorized the employee committee to call a strike whenever it thought such action would be appropriate. 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquired as to which employees had been asked to work on Saturday, and then reminded them that if they did not, and were fired, the other employees would support them by striking. Crawford made the same inquiry and remarks at the midafternoon meeting. George Bickham, foreman of Shop 2, needed nine employees for Saturday overtime work on a particular job. Following the normal practice, he asked the employees working on that job if they would come in on Saturday. All nine said they did not want to. After attempting to find other volunteers, Bickham returned to the nine and told them to report on Saturday morning.4 Six of the nine were union members; although, as set out below, they did not intend to report, they said nothing to Bickham about their plans. The six referred to-Warren Washington, Ralph Bowie, Alfred Johnson, Robert Lee, Donnie Hallmark, and Donald Winfield-did not appear for work on Saturday, nor did they call in to explain their absence.5 Foreman Bickham conferred with Plant Superintendent Terry Grenat during the day about the problem, and, according to their testimony, they concluded that the six should be terminated. On Monday morning, as the six employees reported for work, they were told by Bickham, according to his testimony, that they had been "replaced." When Andrew Crawford, shortly after arriving at 7:25 a.m., learned from Hallmark that he had been let go, and apparently ascertained that others of the six had also been terminated, he attempted to speak to Foreman Bickham and then Superintendent Grenat about the matter, but was rebuffed. Crawford accused Grenat of discharging the employees because of their "union participation," and said he would have to call a strike. Grenat testified that he told Crawford he had done what he had to do, and Crawford should do the same. Immediately, Crawford went to the work stations of the other employees and told them that they were on strike. Some 30 employees went out on the street and began picketing. During the strike, they carried picket signs bearing such legends as "unfair," "unfair treatment," "unfair labor practices," "higher pay," and "better working conditions." On November 15, the strikers voted to end the strike. Riley and Crawford presented separate letters addressed to the president of Respondent offering the unconditional return of the strikers; in addition, 26 strikers submitted separate unconditional requests for reinstatement. Two strikers were immediately reinstated, and others were eventually offered reinstatement in groups, on various dates in November and December. The six dischargees were apparently never reinstated. The parties thereafter resumed negotiations, and execut- ed a bargaining agreement in January 1977. ' One exception is discussed below. 5 The three nonunion members of the crew reported, as did nine other employees scheduled to work on Saturday. 6 In distinguishing, in Polytech, supra, the earlier case of John S. Swift Company, Inc.. 124 NLRB 394, 396 (1959), enfd. 277 F.2d 641 (C.A. 7, 1960), B. Analysis and Conclusions I. The discharges of October 25, 1976 Section 7 of the Act guarantees employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The collective refusal to work overtime on October 23 was such a concerted activity. Section 7 does not immunize all employment-related group activities without regard to the means employed, however, and it has been recognized that work stoppages which are "partial," "intermittent," or "recurrent" may be unprotected because they produce "a condition that [is] neither strike nor work." Valley City Furniture Company, 110 NLRB 1589, 1594-95 (1954), enfd. 230 F.2d 947 (C.A. 6, 1956). But it has further been held that a single concerted work stoppage of limited duration does not necessarily cause participating employees to forfeit the protection of the Act. N.LR.B. v. Washington Aluminum Co., 370 U.S. 9, 17 (1962); N.LR.B. v. Plastilite Corporation, 375 F.2d 343, 349-350 (C.A. 8, 1967). With particular reference to the conduct at hand, the Board has declared "the existence of a presumption that a single concerted refusal to work overtime is a protected strike activity; and . . . such presumption should be deemed rebutted when and only when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action which is inconsistent with a genuine strike or genuine performance by employees of the work normally expected of them by the employer." Polytech, Incorporated, 195 NLRB 695, 696 (1972); McGaw Laborato- ries, a Division of American Hospital Supply Corporation, 206 NLRB 602 (1973); Union Boiler Company, 213 NLRB 818 (1974); Florida Steel Corporation, 221 NLRB 554 (1975). Such a restricted concerted withholding of services is protected where, as here, it is part of an employee program of "protesting their terms and conditions of employment and of seeking concessions from the Respondent," Robert- son Industries, 216 NLRB 361, 362 (1975).6 The evidence regarding Crawford's activities during the week of October 23 leaves no doubt that the refusal to work overtime on that Saturday was the product of concerted activity classical in its nature.? The record, furthermore, gives no indication that the employees entertained any notion of embarking upon "a plan or pattern of intermittent action" of that character. Respondent contends, however, that it did not unlawful- ly discharge the six employees for the simple reason that it did not know they were acting in concert in failing to report on Saturday. Although the question is arguable whether such ignorance should be a viable defense in these cases, the Board held in Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215, 1216 (1977), that "[i]n order to sustain an 8(aXl) discharge finding, it is necessary to establish that at the time of the discharge the employer had knowledge of the concerted nature of the activity for which the employee was discharged." the Board made clear that the presumption applied where the refusal to work overtime was "a means of forcing the employer's concessions in bargaining," 195 NLRB at 696. ? With two exceptions to be discussed, the employees testified that their refusal to work on Saturday was intended to honor the union request. 776 GULF-WANDES CORPORATION I conclude that Respondent had such knowledge. The most inculpatory evidence was provided by former em- ployee Wilbur Jackson, who testified that on the second day of the strike, he crossed the picket line and, in the course of work, fell into conversation with Superintendent Grenat. In discussing the strike, the following colloquy occurred: [Grenat] said, well, they brought this on themselves, and I said, how could this particular thing happen, and he said, well, you see, Coty overheard the conversation in the lunchroom that a group of guys had decided that they wasn't going to work . . . and we can't afford to have people going around and saying that they can't work, and I said, well, if they wanted Saturday off, why not give them Saturday off. "Coty" is the nickname of Alvin Delcort, a shop foreman. Employee Vonciel Adams, who made a good impression during her brief testimony, said that as she was entering the lunchroom for the 2:30 meeting on Friday, she saw Delcort entering the mat room, which adjoins the lunchroom, and Crawford also placed Delcort in the vicinity at the time. Grenat, an unconvincing witness, denied having had any such conversation with Delcort.8 Delcort was, without explanation, not called to testify, although he was obvious- ly available (see fn. 8, supra); he had been a focal point of General Counsel's testimony regarding knowledge; and the denial of Respondent's motion to dismiss the complaint at the end of General Counsel's case had been predicated on Jackson's testimony. Plainly, Delcort's denial of the portion of Jackson's testimony which related to him, as well as the testimony of Crawford and Adams placing him in a strategic location for gaining knowledge, was virtually mandated by the basic principles of trial practice. The failure to produce Delcort in such circumstances irresistibly calls for application of the rule that "when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him," International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UA W) [Gyro- dyne Co. of America] v. N.LR.B., 459 F.2d 1329, 1336 (C.A.D.C., 1972); Golden State Bottling Co., Inc., Formerly Pepsi Cola Bottling Co. of Sacramento, et al. v. N.L.R.B., 414 U.S. 168, 175 (1973). Jackson is no longer employed by Respondent. On the other hand, he was not a member of the Union while there, and he crossed the picket line. I was favorably impressed with his demeanor, and I credit his testimony. 8 It was curious, to say the least, for Grenat to testify that, after becoming aware of Jackson's testimony, he consulted with Delcort. during the course of the hearing, to "see if he had reported that" to Grenat. Why he would have to refresh his memory on a point which would be contrary to the whole thrust of his testimony is inexplicable. Even after such refreshment, Grenat could only say, when asked if he was positive that Delcort had said no such thing to him, "I'm pretty well sure. yes, sir." 9 Aucoin denied any such conversation; I thought Bell a much more convincing witness, and I credit his testimony. 'o The complaint alleges that, in this conversation. Aucoin unlawfully interrogated and threatened Bell. I agree. and conclude that the question and the comment violated Sec. 8(aX 1). "n Jackson's account of Grenat's remarks to him indicates that Grenat Other evidence argues for an inference of employer knowledge. The fact that large numbers of employees gathered, on three occasions on Thursday and Friday, for unprecedented union meetings on the plant premises, could hardly have escaped the notice and curiosity of manage- ment. The fact that six employees, also a precedent, failed to report surely carried its own message. Employee William Bell testified that on Friday, Assistant Shop Foreman John Aucoin asked him "what I thought about the strike." Bell replied that he did not care for strikes, and Aucoin said that was good, "because just between you and me, anyone that doesn't cross the picket line doesn't have a job." 9 While it can be argued that Aucoin was speaking only generally (and Bell conceded that employees had been talking for a few weeks about striking over the contract), there seems every reason to believe that Aucoin suddenly broached the matter on October 22 because of the anticipated imminent confrontation over the refusal to work on Saturday.10 I find, therefore, that Respondent was aware, by October 25, that the refusal to work overtime was a collective action encouraged by the Union and one in which the employees were acting in concert. " Applying the principles previously discussed, I further find that the discharge of the employees on October 25, 1976, was violative of Section 8(a)(X ). Respondent persistently contends that the six employees automatically terminated themselves by virtue of an alleged "no show-no report" rule under which, if an employee fails to report for work and does not call in to explain his absence, he is considered to have "quit." It is highly unlikely that the asserted rule ever existed, at least with the Gibraltar-like aspect attributed to it by Respondent. While Respondent's President Atkinson testified that he inaugurated the rule around 1965 to combat a "tremendous" problem of employees failing to call in when absent, the written rules and regulations drafted, according to Atkinson, "sometime after February 1974," and concededly in effect in October 1976, make no reference to such an automatic termination, while at the same time containing a provision calling for only a warning for "Unexcused absence or tardiness.... Absence is automatically considered unexcused if the employee does not call in," and another calling for discharge for "Three days or more absence without calling in." 12 The testimony of President Atkinson that a "no show-no report" results in "automatic termination" was contradicted both by Plant Superintendent Grenat and Foreman Bickham, who testified that the termination does not take place until the next day and after the absent employee has been given a chance to explain himself. had knowledge of the concerted character of the conduct before he determined upon the discharges: "we can't afford to have people going around and saying that they can't work." Even if, however, Grenat did not acquire this knowledge until shortly after the discharges, there is, as Administrative Law Judge Sherman points out in Air Surrey Corporation, 229 NLRB 1064, 1070-72 (1977), foursquare authority for holding that an employer's liability for discharging employees who, unknown to the employer, have absented themselves in the course of concerted activity, arises when the employer finds out about the "real reason" for the absence. 12 As General Counsel notes in his helpful brief, how an employee can be discharged 2 days after he allegedly "quit" poses an interesting problem in personnel management. 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There seems little point in examining all the evidence on this issue. What is clear is that there was no uniform understanding among the employees, and no basis for believing, 13 that absenting themselves for a day without contacting Respondent was tantamount to a resignation.' 4 The evidence clearly shows, rather, that the consequence of such conduct rested in the discretion of Respondent, as shown by, among other things, the personnel notations made out for these six employees stating that they were "let go" because of their failure to call in. 15 Application of such a discretionary rule to this particular form of protected activity is as ineffective as applying to a lawful strike a rule against leaving the work station. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 16-17 (1962). I find, in addition, that the discharge of these employees also violated Section 8(a)(3). Wilbur Jackson's testimony that Grenat told him on Tuesday that he fired the employees because "he can't afford to have people going around saying they can't work," repeated on the following day ("we can't have people going around telling us when they can work and when they can't"), referring to a decision taken by employees at the known urging of the Union, strongly suggests that a factor in the decision was a desire to show the employees that Respondent would not countenance such a demonstration of union solidarity. The inference is bolstered by the fact that, as I find, Foreman Bickham did not make any effort on October 25 to ascertain the reasons why the employees had failed to report on October 23. Bickham testified that such an inquiry was customary, and that he did in fact ask the employees. Not one of the six corroborated Bickham, most testifying instead that he simply told them to turn in their tools or that they were no longer needed. I credit the employees, and I infer from Bickham's lack of interest in their explanations a fixed determination to indicate to the Union that it would not be permitted to engage in such tactics. While International Representative Riley testified that his bargaining relationship with Respondent had been amicable, it appears to me that Respondent was deter- mined to keep the Union in its place. Thus, when Crawford, the acknowledged union leader at the plant, sought to discuss the discharges with Bickham and Grenat on Monday morning, he was told by both that it was "none of his business." The matter was, of course, very much his business. This attitude not only implies knowledge that the problem was a "group" problem, which had to be dealt with summarily, but also connotes a fixed resolve to crack down on the union show of strength. 31 Insofar as Bickham's generalized testimony may be read to say that he told employees during entrance interviews that they were automatically through if they were absent without reporting. I do not believe it. 14 The record does not show, contrary to Respondent's contention, that the employees understood that such conduct automatically resulted in termination. For the most part, they simply testified that it could provoke some discipline, perhaps discharge, perhaps only a warning "pink slip." 15 Respondent's statement of position after the charges were filed said that the employees "were terminated ... for cause." i' Had Hallmark not been so pigeonholed, he might have received more generous, or at least more considered, treatment. Although President Atkinson testified that the "automatic termination" effect of the "no show- no report" rule was of long standing, Respondent, without putting the In sum, the evidence does warrant, I believe, a separate finding that the discharges constituted "discrimination ... to . . . discourage membership" in the Union, thereby violating Section 8(a)(3) of the Act. Two special cases require further discussion. Donnie Hallmark, who was discharged on Monday, testified, oddly enough, that Bickham had never in fact ordered him to work on Saturday. Bickham, even more peculiarly, testified that he did give Hallmark such an order. John Aucoin, Bickham's assistant, corroborated him. Hallmark was a more convincing witness than Bickham and Aucoin, and I am inclined to believe that he was not, probably through inadvertence, told to report. Given that belief, I cannot, in theory, conclude that Hallmark was deliberately absenting himself on October 23 in concert with the other employees. It is a firmly established rule, however, that when an employee is disciplined for concerted or union activities which his employer mistakenly believes he had participated in, the statute affords him relief. Henning and Cheadle, Inc., 212 NLRB 776, 777 (1974) ("Here, although it is uncontro- verted that these discriminatees did not, in fact, engage in concerted activity, in agreement with the Administrative Law Judge, Respondent's belief that such concerted activity had occurred is controlling."). See also N.LR.B. v. Link-Belt Company, 311 U.S. 584, 589-590 (1941); N.LR.B. v. Ritchie Manufacturing Company, 354 F.2d 90, 98 (C.A. 8, 1966); N.LR.B. v. Clinton Packing Co., Inc., 468 F.2d 953, 955 (C.A. 8, 1972). Since Hallmark was swept into a personnel action designed to retaliate against the Union's display of strength, his discharge must be consid- ered unlawful. As in San Juan Lumber Company, 144 NLRB 108 (1963), I conclude that the discharge of Hallmark was not motivated by his failure to report so much as by his assumed participation in unacceptable group activity.16 I reach the same conclusion as to Donald Winfield. While Winfield testified that he did not work as ordered on Saturday because, as a union member, he had agreed with Crawford not to do so, he also stated, "I don't believe I would have worked that Saturday, because I had worked the Saturday before that, and-uh-uh-this Saturday I had something to attend to . . . no, I wouldn't have worked anyway." Winfield further testified that when he arrived on Monday, Bickham simply told him that he was through, without inquiring into the reasons for his absence. In stating that he would not have worked on Saturday in any event, Winfield was, of course, simply speculating; he was in no position to say definitively what he would have done had he not been encouraged by the Union, and its promise of group support, to refuse the Saturday work. records into evidence, offered testimony through Assistant Plant Superin- tendent Malone of only two employees who, prior to October 1976, had been deemed "quits" because of the rule, while naming three such instances occurring after the events at hand. Malone testified, without explanation, that he had not examined all the personnel records in the main office, which seems quite inexplicable considering the importance Respondent attached to the rule at hearing. It was later developed, through cross-examination of Bickham, that Tate, one of the two employees named as a victim of the rule prior to October, "had a record of coming in late and stuff," and Wilson, the other one, was fired "for insubordination" after calling in, having his excuse rejected, and disobeying a direct instruction to report for work. Hallmark had only begun work in September and apparently had not violated discipline before. 778 GULF-WANDES CORPORATION However, even if I were to assume that the union tactic was in no measure a causative factor in Winfield's absence, I nonetheless would conclude that the summary discharge of Winfield, who was lumped together in Respondent's view as one of a group of "people going around and telling us when they can work and when they can't," was violative under the authorities previously cited. 2. The alleged unfair labor practice strike The strike of October 25 was manifestly triggered by the discharge of the six employees, found above to constitute an unfair labor practice. Had the six not been terminated, there is no question on this record that the employees would not have walked out. The picket signs condemned "unfair labor practices" and "unfair treatment." While the picketers also displayed calls for "higher pay" and "better working conditions," no principle is more soundly estab- lished than that a strike may encompass more than one grievance, and that "[a] strike may be an unfair [labor] practice strike even though it also has economic objec- tives." N.L.R.B. v. Fitzgerald Mills Corporation, 313 F.2d 260, 269 (C.A. 2, 1963). Here, the unlawful discharges plainly provoked, and played a substantial part in prolonging, the strike. 3. The refusal to reinstate the unfair labor practice strikers The written requests for reinstatement of all strikers proffered to Respondent on November 15 by Riley and Crawford effectively constituted group offers on behalf of them all. Colonial Haven Nursing Home, Inc., 218 NLRB 1007, 1011 (1975).'1 Unfair labor practice strikers are entitled to reinstatement upon their unconditional request, even if replacements for them have been obtained. Mastro Plastics Corp. et al. v. N.L.R.B., 350 U.S. 270, 278 (1956). The strikers here were not afforded the reinstatement to which they were entitled until sometime after November 15. I find, with one exception, that by refusing to reinstate the strikers on November 15 and thereafter, Respondent violated Section 8(a)(3) and (1). The exception referred to above is Woodrow L. Boat- ner. 18 Warehouse Foreman James Jackson testified that on Friday, October 22, he was disturbed by the fact that Boatner had been circulating a football pool when he could have been assisting Warehouse Supervisor O. C. Brumfield on a loading job. Jackson reprimanded Boatner, and in the course of an argument, Boatner called Jackson a "god- damned liar." Jackson told Boatner that "we ain't going to have this"; he did not tell Boatner that he was discharged. Although Jackson was empowered to discharge Boatner, he had only recently become a supervisor, so he took no action at the time. His immediate superior, Controller Barry Piatt, was out of town on Friday, but on Monday morning, around 8 or 9 a.m., Jackson went to see Piatt and told him of the incident. Piatt told Jackson to fire Boatner. 17 The complaint names 30 employees as strikers, all of whom were, without contradiction. identified by Crawford as having walked out on October 25 and thereafter having performed picket duty. Of these, 26 also made individual written requests for reinstatement on November 15. Brumfield corroborated Jackson as to those events to which he was privy. So did Boatner, in some respects, stating that Jackson had become "excited" and that he, Boatner, may have said "god damn," but that he did not remember calling Jackson a liar. Piatt testified that he told Jackson on October 25 to terminate Boatner on the ground of insubordination. Boatner was, at that time, on the picket line. Piatt gave some very suspect testimony about having sent a letter of termination to Boatner around October 25 which was returned undelivered. He seemed to testify that he had a copy of the letter at his office, but did not explain why it was not brought to the hearing. Boatner did, however, receive a letter from Respondent, dated December I, notifying him "officially of your termination effective 10/23/76 for insubordination." Although I found Piatt's testimony about the correspon- dence unlikely, Jackson appeared quite forthright and spontaneous (other than for his reluctance to admit that the football pool was a game of chance). I had a similar impression of Brumfield. It seems to me very probable that Jackson, a minister, was incensed at Boatner's profane and insubordinate attitude, and did seek out Piatt for the purpose of obtaining agreement to discharge Boatner. I find, however, that Piatt, probably having forgotten the matter in the turmoil of the strike, did not terminate Boatner until he did so by sending the letter of December 1. Prior to receipt of that letter, Boatner remained an employee and an unfair labor practice striker, fully possessed of the rights enjoyed by employees in that status. Thus, I conclude that Boatner was entitled to reinstatement in accordance with the request of November 15 and thereafter, until he received the December 1 letter, at which time, I find, he was lawfully discharged for reasons unrelated to his union activity. 4. Respondent's last-ditch defenses At the hearing, Respondent struggled valiantly to demonstrate that the concerted refusal to work and the strike were, in reality, an effort, in contravention of the wishes of the International, by a "splinter group" to force Respondent to bargain with a local of the International at a time when the International was the certified representa- tive. While there is no merit in the contention, I shall deal with it briefly below. The International, which received the certification here, maintains locals throughout the country. In instances such as this, where the International is named in the certifica- tion, it conducts the initial bargaining together with employee representatives of the "group," as the union members in each separate bargaining unit are called. The groups become associated with a nearby local or some- times form their own; the former happened here, when the Gulf-Wandes group affiliated with Local 4-620. The OCAW locals play no active role in initial negotiations. At the first bargaining meeting in June, the Union presented a written proposal which would have accorded Respondent does not argue that the failure of the remaining four to individually request reinstatement precludes a remedy as to them; the requests made by their representatives sufficiently encompassed these four. is Named in the complaint as "Louis Boatner." 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joint recognition to both the International and Local 4- 620. Respondent objected to recognizing the Local; the proposal was discarded; and, Respondent's witnesses concede, the Union made no further attempt to raise the issue thereafter.' 9 During the strike, some of the picket signs referred to the Local; others, as President Atkinson confirmed, simply referred to "OCAW." The charge filed on November 10 stated that the six employees had been terminated because of their activities "in behalf of Oil, Chemical and Atomic Workers Interna- tional Union Local 4-620, AFL-CIO," and it was filed by International Representative Rousselle on behalf of that same entity. On November 15, the requests for reinstatement of the strikers, identical in format, which were proffered by Riley and Crawford, stated that "the Oil, Chemical and Atomic Workers International Union and its Local 4-620" were making the requests. At that time, Riley also handed Respondent a written request for resumption of negotia- tions in the name of "O.C.A.W. Local 4-620 of the Oil, Chemical and Atomic Workers International Union."20 Respondent further attempted to prove that the employ- ees were acting in defiance of the International, by eliciting some evidence that International Representative Riley was unaware of the strike until it occurred; that, according to Piatt, Riley told Atkinson around October 14 that his superiors had instructed him that "under no circumstances is there going to be a strike at this facility"; and that, on October 25, Riley told Piatt that the strike was unautho- rized. The reference to the October 14 conversation was substantially contradicted by President Atkinson's testimo- ny that what Riley said on October 14, when asked whether there would be a strike, was, "I don't know. I'm doing everything I can for there not to be one," and by Riley's testimony on the matter. Distilled, the credited evidence shows that Riley himself recommended the refusal to work overtime, hoped that there would be no strike but expected that there would be one in a few weeks,2 ' and, within a few days after the strike began, obtained International sanction for the strike so as to enable the strikers to receive strike benefits. The foregoing evidence falls woefully short of establish- ing that the employees were attempting to secure recogni- tion for Local 4-620. The record gives not the slightest hint that the employees had any interest in being represented by the Local as opposed to the International, and I find that their concerted activities were not remotely aimed at accomplishing such an objective. Nor does the evidence support the contention that the employees had gone off on a frolic and detour in engaging in the refusal to work or the strike. Riley himself had suggested the refusal; it can hardly be assumed that the International would have opposed the strike which fol- lowed when it was in protest of unfair labor practices arising out of a course of conduct suggested by its own representative, and Riley testimonially supported this view. 19 Respondent's brief, asserting that "in September, 1976, during negotiations, the International sought Local recognition," mischaracterizes the record. Controller Piatt conceded that, on this occasion, International Representative Riley simply made "just a reference" to the Local. 20 These letters were drafted by International Representative Ernest J. Rousselle, who had been only peripherally involved in the negotiations. There is, patently, no merit in this contention. R. C. Can Company, 140 NLRB 588 (1963), enfd. 328 F.2d 974 (C.A. 5, 1964); Lee A. Consaul Co., Inc., et al. 175 NLRB 547, 549 (1969), enforcement denied 469 F.2d 84 (C.A. 9, 1972); Herbert E. Orr, Inc., 185 NLRB 1002, fn. 2 (1970). CONCLUSIONS OF LAW 1. Gulf-Wandes Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Warren Washington, Ralph Bowie, Alfred Johnson, Robert Lee, Donnie Hallmark, and Donald Winfield on October 25, 1976, and by refusing to reinstate unfair labor practice strikers after November 15, 1976, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The strike which began on October 25, 1976, in the bargaining unit was in its inception, and continued thereafter to be, an unfair labor practice strike. 5. By coercively interrogating and threatening an employee on or about October 22, 1976, Respondent violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent unlawfully discharged Warren Washington, Ralph Bowie, Alfred Johnson, Rob- ert Lee, Donnie Hallmark, and Donald Winfield. I shall recommend that Respondent be required to offer them reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by the reason of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned from the date of their discharge to the date of Respondent's offer of reinstatement, less their net earnings for such period. The backpay provided here shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent unlawfully failed and refused to restore the unfair labor practice strikers listed in 21 Riley testified that shortly after October 14, his director asked him to try to postpone a strike at Gulf-Wandes until at least two weeks after October 25 because of other pending union business. 780 GULF-WANDES CORPORATION Appendix A hereto, upon the Union's unconditional application effective November 15, 1976,22 I shall recom- mend that Respondent be required to offer them, if it has not already done so, immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to them of a sum of money equal to that which they normally would have earned from November 15, 1976, to the date of Respondent's offer of reinstatement, less their net earnings for such period.23 With respect to Woodrow L. Boatner, he shall receive backpay for the period November 15-December 1, 1976. Backpay shall be com- puted as set out above. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 The Respondent, Gulf-Wandes Corporation, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in or activity on behalf of Oil, Chemical and Atomic Workers International Union, or any other labor organization, and interfering with the protected concerted activities of employees, by discriminat- ing against employees who engage in such activity, or by refusing to reinstate upon their unconditional application for reinstatement employees engaged in an unfair labor practice strike, or by in any other manner discriminating against employees in regard to their hire and tenure of employment. (b) Coercively interrogating employees about their union sentiments. 22 The parties entered into some stipulations about the reinstatement of. or reinstatement offers to, some strikers, but I do not regard the evidence to be sufficiently clear as to warrant definitive findings as to the validity of such offers. 23 The usual 5-day grace period is not applicable in this situation. Drug Package Company. Inc. 228 NLRB 108. 114 (1977). 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. (c) Threatening employees that they will lose their jobs if they refuse to cross picket lines. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Warren Washington, Ralph Bowie, Alfred Johnson, Robert Lee, Donnie Hallmark, Donald Winfield, and the employees named in "Appendix A" hereto (with the exception of Woodrow L. Boatner, who shall not be reinstated but who shall receive backpay), if it has not already done so, immediate and full reinstatement to their former positions or, if they no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired as replacements, and make them whole for any loss of pay they may have suffered by reason of Respondent's unlawful conduct, in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 amounts of backpay due under the terms of this recommended Order. (c) Post at its Baton Rouge, Louisiana, plant, copies of the attached notice marked "Appendix B." 25 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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. 25 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 781