Trumbull Asphalt Co., Inc.

TRUMBULL ASPHALT COMPANY 131 Trumbull Asphalt Company, Inc. and Jerold L. Miller. Case 14-CA-8202 July 14, 1975 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On April 23, 1975, Administrative Law Judge Al- vin Lieberman 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Trumbull Asphalt Company, Inc., Hazel- wood, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The trial in this proceeding, with all parties except the Charging Par- ty represented, was held before me in St. Louis, Missouri, on January 6, 7, and 8, 1975, upon the General Counsel's complaint dated November 25, 1974,1 and Respondent's amended answer.2 In general the issue litigated was wheth- er Respondent violated Section 8(a)(1) of the National La- bor Relations Act, as amended (Act).3 Particularly, the i The complaint was issued pursuant to a charge and an amended charge filed, respectively, on October 17 and 18, 1974, by Jerold Miller. 2 During the trial the amended answer was amended by substituting the following paragraph for paragraph 2c: "Respondent admits that on or about October 16, 1974, superintendent Kleine discharged Kenneth G Meyers, Eric Brethauer, and Donald J. Spiller, but denies that they or any of them were discharged for engaging in protected concerted activities and denies that they were engaged in protected concerted activities and further states that whether or not they were engaged in protected concerted activi- ties, they and each of them were discharged for good cause unrelated to any such activities. Respondent further denies that they or any of them ever requested reinstatement subsequent to their respective discharges." principal questions for decision are as follows: 1. Was Jerold Miller, while in Respondent's employ, a supervisor within the meaning of Section 2(11) of the Act? 4 2. Assuming an affirmative answer to the foregoing question, was Miller's discharge violative of Section 8(a)(1) of the Act? 3. Was the strike engaged in by three employees, Eric Brethauer, Kenneth Meyers, and Don Spiller protected by Section 7 of the Act? 4. Assuming an affirmative answer to the foregoing question, were Brethauer, Meyers, and Spiller discharged in violation of Section 8(a)(l) of the Act because they en- gaged in the strike? Upon the entire record,5 upon my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the briefs sub- mitted,6 I make the following: FINDINGS OF FACT 7 1. JURISDICTION Respondent, a corporation duly authorized to do busi- ness in Missouri, is engaged at Hazelwood, Missouri, in the manufacture and sale of asphalt. During 1973, a represen- tative period, Respondent purchased materials valued in excess of $50,000 from vendors located outside the State of Missouri. Accordingly, I find-that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. 7 In pertinent part this sec . provides Sec 8(a) It shall be an unfair labor practice for an employer- (I) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7; Section 7, insofar as relevant, states: Sec. 7. Employees shall have the right to engage in . concert- ed activities for the purpose of collective bargaining or other mutual aid or protection . . 4 Sec 2( 11) of the Act is as follows- Sec. 2 When used in this Act- (11)I) The term "supervisor" means any individual having authority, in the interest of employer , to hire, transfer, suspend , layoff, recall, pro- mote, discharge, assign, reward , or discipline other employees, or res- ponsibly to direct them, or to adjust their grievances, or effectively to recommend such action , if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 5 Issued simultaneously is a separate order correcting obvious inadvertent errors in the stenographic transcript of this proceeding. 6 Although all the arguments of the General Counsel and Respondent and the authorities cited by them , whether appearing in their briefs or made orally at the trial, may not be discussed in this Decision , each has been carefully weighed and considered. r Respondent's motions made at the conclusion of the trial , upon which I reserved decision, are disposed of in accordance with the findings and con- clusions set forth in this Decision 219 NLRB No. 33 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. INTRODUCTION Briefly, this case is concerned with Respondent's dis- charge of four individuals during a strike at Respondent's plant in which they participated. The General Counsel contends that all were employees within the meaning of the Act; their strike, in protest over working conditions they considered to be unsafe, was protected; they were dis- charged because they struck; and the termination of their employment was, therefore, violative of Section 8(a)(1) of the Act. Respondent has taken issue with the General Counsel on all points. It first contends that one dischargee, Jerold Mill- er, was a supervisor and that he was dismissed for improp- er performance of his supervisory duties. Concerning the nature of the strike, it is Respondent's position that it was unprotected because its ostensible pur- pose of protesting claimed unsafe working conditions was a pretext to mask its real object. This, Respondent states, was to exert pressure on it to retain Miller in its employ when it became apparent that he was about to be dis- charged. Respecting the discharge of the three rank-and-file em- ployees during the strike, Respondent, on the assumption that the strike was over unsafe working conditions, claims that it had no clear knowledge that this was the reason for the work stoppage. Absent such knowledge, Respondent argues, it cannot be held to have violated the Act by dis- charging the strikers. Finally, Respondent asserts that it terminated the employment of the striking employees be- cause they did not comply with established attendance rules and because they created an aura of fear in the plant during the strike. 111. PRELIMINARY FINDINGS AND CONCLUSIONS 8 A. Respondent's Operations Respondent's main office is located in Chicago, Illinois. From there Respondent administers its several plants, in- cluding one in Atlanta, Georgia, and one in Hazelwood, Missouri, with which this proceeding is concerned. The principal product manufactured at Respondent's Hazelwood plant is asphalt. This material is produced in a vessel called a converter. In this apparatus oil and other ingredients are converted into asphalt by being subjected to a high degree of heat. The employees who monitor the processing of the raw material in the converters are known as operators. Respondent's plant is in operation around the clock and on Saturdays and Sundays. Respondent's regular day-shift personnel, exclusive of clerks and supervisors , consists of one operator; one maintenance man, whose function is to keep the plant and equipment in repair; two truckdrivers, B The purpose of these findings is to furnish a frame of reference within which to consider the facts relating to Respondent 's alleged unfair labor practices and to the conclusions to which they may give rise . To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they, as well as the findings, may again be considered in other contexts. who bring raw material to Respondent's plant and deliver asphalt to customers ; and five general laborers, one of whom is designated as a leadman. Their duties include making containers in which asphalt is shipped, pouring as- phalt into these containers, and loading trucks. Respondent's regular complement of laborers is augment- ed on an almost daily basis by from two to four temporary employees procured from agencies referred to during the trial as Manpower and Labor Force. Respondent's plant is managed by a salaried superinten- dent with the assistance of an hourly rated general fore- man. At all material times the general foreman received $4.05 an hour. Operators were paid $3.86 an hour, laborers $3.25 an hour, and truckdrivers on a per-load basis. Finally, respecting Respondent's employees, none was represented by a union at any relevant time. B. Miller's Status From about April 1973 until his discharge on October 16, 1974,9 Jerold Miller was the general foreman in Respondent's plant. The General Counsel's position is that Miller, despite his title, was a rank-and-file employee. Re- spondent, on the other hand, asserts that Miller was a su- pervisor. On the evidence taken as a whole it is my opinion that Respondent has the better of the argument. For about a year before his appointment as general fore- man Miller worked for Respondent as an operator. During this period the position of general foreman was vacant. This vacancy put a heavy burden on Bobby Neeley, the plant superintendent, which he met, as he testified, by "work[ing] extra hours and stay[ing] within touch 24 hours a day." While doing this, Neeley watched the manner in which Miller performed his duties as an operator. Being satisfied from this lengthy observation that Miller was qualified to be general foreman. Neeley promoted Miller to that posi- tion and told him, as Neeley stated, that "he would be in charge of production." Upon announcing Miller's promo- tion to the plant employees, they were informed, as Neeley further testified, that Miller "would be in charge of the operation of the plant." As general foreman Miller did a substantial amount of what he described as "physical" labor. This included spot- ting and loading trucks, operating converters, pouring as- phalt into containers, and doing janitorial and mainte- nance work. This occupied about 80 percent of Miller's time. Miller also assisted Neeley, the plant superintendent, in managing the plant. In this regard, Miller testified that he was merely a "messenger boy" carrying messages and or- ders from Neeley to the employees. His own testimony, let alone that given by other witnesses, establishes the hyper- bole of Miller's characterization of his position. Thus, daily, at the end of the day shift, Miller scheduled the work to be done by the operators on the next three shifts. Each day Miller conferred with Neeley concerning the work to be done that day and the next and concerning 9 The complaint alleges that Miller's discharge was violative of Section 8(a)(l) of the Act TRUMBULL ASPHALT COMPANY 133 the scheduling of overtime work. From time to time Miller also conferred with Neeley concerning the plant's produc- tion quota and how it was to be met . Miller was empow- ered to, and did, grant time off when employees requested it, if their reason warranted their being excused. In addi- tion, Miller effectively recommended a laborer's promo- tion to leadman. All of these negate Miller's concept of himself as being a "messenger boy" and are indicative of his supervisory status.10 The findings in the preceding paragraph are based on testimony given by Miller, himself. Other witnesses gave testimony also indicating that Miller occupied a much more exalted position than "Messenger boy." In this regard, Kenneth Meyers, 11 an operator, credibly testified that if an emergency arose during the course of a day which required him to leave the plant he asked Miller or Neeley, the plant superintendent, for permission to do so. Further, in this vein, Meyers related that on one occa- sion he asked Miller whether he could stop work before the end of his shift. Because, as Meyers testified, he "didn't have a good enough reason to leave" Miller did not excuse him. Neeley also testified credibly respecting Miller's status. His testimony likewise establishes that Miller was not the lowly "messenger boy" he described himself as being. The most telling evidence in this regard given by Neeley, upon which the findings set forth below have been made, con- cerned the part Miller played in the hire, promotion, disci- pline, and discharge of employees." I have already found that almost daily Respondent em- ploys from two to four temporary laborers and that these employees are furnished by agencies known as Manpower and Labor Force. The decision as to how many temporary employees to hire on a particular day was made either by Miller or Neeley in accordance with certain variables with- in their knowledge, including the amount of material to be processed, how much work had to be done to fill the orders on hand, and the time it would take a given number of laborers to do this, taking into account their other work. When, based on these criteria, Miller made the determi- nation to hire a certain number of temporary laborers to work the next day he informed Neeley, the plant superin- tendent, of what he had decided and Neeley never dis- agreed with Miller's decision in this regard. Further, when the decision to hire temporary laborers was made by Miller he telephoned Manpower and Labor Force and contracted for the number of employees needed. Miller did this, as Neeley testified, "over 100 times probably." 13 10 See, for example, Bedford Discounters, Inc., 204 NLRB 509 (1973) (pre- paring work schedules); Birmingham Fabricating Company, 140 NLRB 640, 642 (1963) (granting time off); Agawam Food Mart, Inc., 162 NLRB 1420, 1424 (1967) (recommending promotions). 11 Meyers was discharged on October 16, 1974. His discharge is alleged in the complaint as having been violative of Sec. 8(a)(1) of the Act. 12 It needs no citation of authority to establish that participation in mat- ters of this nature to the extent that Miller did, as will appear, strongly indicates that he was a supervisor. 13 Miller did not deny that he determined on particular days how many temporary laborers to hire. His testimony, in this regard, touched only on who made the telephone call to the employment agency. This, Miller stated, was done either by him or Neeley, and that he did so "if [Neeley] asked [him] to call for so many men of a morning." Reconciling Miller's testimony In about September 1973 an operator's position became vacant. Upon Miller's recommendation to Neeley, Mer- yers, who was then employed as a laborer, was promoted to fill the vacancy. While Meyers was working as an operator Miller warned him several times about his not showing up for work. Ultimately, Miller suspended Meyers for this rea- son. Not only did Miller warn and suspend Meyers because of his erratic attendance, but he also recommended that a laborer, Lloyd Roberson, be discharged for the same rea- son.14, This recommendation was taken into account by Neeley in terminating Roberson's employment.15 That Miller was not a mere "messenger boy" for Neeley, the plant superintendent, is further shown by the wages he received and by the differential between his wages and those received by the operators and laborers.16 It seems to me that a "messenger boy" would not be paid $4.05 an hour, nor would a "messenger boy" be paid 19 cents an hour more than the operators and 80 cents an hour more than the laborers.17 On the basis of the foregoing, it is my opinion that Miller was possessed of sufficient attributes to be classified as a supervisor. Accordingly, I conclude that while holding the position of general foreman in Respondent's employ Miller was a supervisor within the meaning of the Act. In arriving at my conclusion that Miller was a supervisor I gave consideration to the fact that for 80 percent of his time he performed "physical" labor. Concerning this, how- ever, the Board has held that "the mere fact . . . that a supervisor spends a large part of his time in the perfor- mance of manual labor does not necessarily affect his sta- tus as a supervisor." Wilson Transit Company, 80 NLRB 1476, 1478. See also Bedford Discounters, Inc., 204 NLRB 509 (1973), and Steelweld Equipment Company, Inc., 76 NLRB 831, 833. In the last cited case individuals were found to be supervisors notwithstanding that they spent "the major . . . portion of their time [in one case 90 per- cent] in manual work." Although I have found that Miller was a supervisor, it does not appear that he ever adjusted grievances or, as Respondent's employees have never at any relevant time been represented by a union, engaged in collective bargain- on this point with that given by Neeley, Miller's statement may be con- strued as being a reference to times when Neeley made the decision to hire temporary laborers, but for some reason could not call the employment agency himself. 14 Respecting this, Neeley testified that Roberson habitually "would stay out two or three days at a time" In view of these absences Miller told him that because Roberson was "never going to straighten up, we might as well fire him." 15 Miller denied, generally, having "anything to do with Meyers being disciplined or suspended" or "with [Roberson] losing his job." However, his general denials are unconvincing in the face of Neeley's specific testimony to the contrary. See, in this connection , C. V Uranga, d/b/a Paso Del Norte Oil Company of Eagle Paso, 173 NLRB 635, 638 (1968), enfd. 468 F.2d 1397 (C.A. 5, 1972). 16 As I have found, at all material times operators and laborers were paid, respectively, $3.86 and $3 25 an hour, whereas Miller received $4.05 an hour 17 Wage diffentials such as these, taken in connection with the other indi- cia of Miller's supervisory status appearing above, also point to Miller's standing as a supervisor Bedford Discounters, Inc, 204 NLRB 509: Birming- ham Fabricating Company, 140 N LRB 640, 641 (1963): United States Gyp- sum Company, 120 NLRB 906, 908 (1958) 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. Nor does it appear that Miller had authority to adjust grievances or to bargain on behalf of Respondent. C. The Strike and Its Nature For several months before October 1974 18 the employ- ees in Respondent's plant were restive over what they con- sidered to be unsafe working conditions. They talked about this among themselves and complained to Bobby Neeley and Jerold Miller, respectively, plant superintendent and general foreman. Notwithstanding that the conditions about which they complained were not remedied, the em- ployees took no other action until mid-October. At that time, as will appear, they engaged in a strike. The strike was triggered by an explosion in the plant on the night of Thursday or Friday, October 10 or 11. Ken- neth Meyers was monitoring the converters that night and had he not, fortuitously, left his work station he could have been seriously affected by the blast. Meyers, by telephone, immediately reported the explo- sion to Neeley and Miller. During his conversation with Miller, Meyers stated, as he testified, that he "was going to do something about [the explosion and] about the . . . con- ditions of the plant." On Saturday, October 12, Miller informed Neeley of a clogged converter line which he could not fix because he had injured his back earlier in the week. Accordingly, Nee- ley came to the plant the next afternoon, during Meyers' shift, to fix the clogged line. As he was doing so, he grum- bled about having to make the repair which Miller should have made the previous day. About 8 p.m. on Sunday, October 13, after Neeley had already left the plant and while Meyers was still working, Miller arrived. Taking advantage of what was, apparently, his first opportunity to do so face-to-face, Meyers again spoke to Miller about the explosion. As Meyers put it, he once more told Miller that he "was going to do something about it . . . and . . . everybody else [working in the plant] felt the same way as [he] did." While they were talking about the explosion Meyers in- formed Miller that Neeley had earlier repaired the clogged converter line and was upset about Miller's not having done the job. Not liking what Meyers reported, Miller tele- phoned Neeley to express his displeasure and to tell Neeley that he had an appointment with his physician the next day to have his back treated. Meyers then resumed his discussion with Miller about doing something to remedy what Meyers thought were un- safe conditions in the plant. As a first step it was decided to call as many employees as could be reached and ask them to come to the plant for a meeting. Two employees, Eric Brethauer 19 and J. W. Walker, re- sponded. The four people present talked about safety con- ditions at the plant, concerning which, Miller testified, "ev- erybody had a beef." All agreed to strike the next day and go to the St. Louis, Missouri, office of the Occupational is All dates hereinafter mentioned fall within 1974. 19 The later discharges of Brethauer and a third employee . Don Spiller, like those of Miller and Meyers, are also alleged in the complaint as having been violative of Sec . 8(a)(1) of the Act. Safety and Health Administration (OSHA) to file a com- plaint against respondent. Word of what those who attended the meeting at the plant Sunday evening intended to do spread and the next morning, October 14, about six employees, including Bre- thauer, Meyers, and Don Spiller, and Miller, the general foreman, met at Brethauer's home. Those present decided, as Meyers stated, to "stay out of work until [they were] positive that something was going to be done in [the] plant to fix it" and to go to OSHA "to file out a grievance." En route, however, they learned that the OSHA office was closed because that day was a holiday, Columbus Day. Notwithstanding their inability to make their complaint to OSHA on Monday, October 14, none of the employees who met at Brethauer's home worked that day. During the evening of October 14 Neeley, the plant su- perintendent, reported to Bud Morgan, Respondent's oper- ations manager in Chicago, that, as Neely testified, "no- body had showed up for work." As will appear, the next morning there was also an absence of employees from the plant and Neeley again telephoned Morgan to advise him of this. Morgan informed Neeley, as he further testified, that Marvin Kleine, the manager of respondent's Atlanta, Georgia, facility would be sent to the plant "to . . . help [him] out." On Tuesday, October 15, Miller, the general foreman, and the employes who had gathered at Brethauer's home the day before, except Spiller, again met at Brethauer's house from which place they went to the OSHA office. There they were furnished with complaint forms, instruct- ed to fill them out, mail one to OSHA, and serve one on Respondent. With the forms in hand, the employees went to the home of Lloyd Roberson, who had formerly been employed by Respondent,20 where Spiller joined them. At Roberson's house the OSHA complaint forms were prepared and one was mailed to OSHA. The other, signed by Brethauer, Meyers, Spiller, and two other employees, Robert Shepard and Walker, was retained for later service on Respondent. As was the case the previous day, no employee who signed the OSHA complaint which was to be delivered to Respondent worked on October 15. That afternoon Brethauer and Meyers went to the plant and gave the signed OSHA complaint to Neeley, the plant manager . They told Neeley that a complaint had been filed with OSHA; that the employees "are on strike"; and that they would not return to work until they were "positive that the plant was going to be fixed." Neeley replied that the matter was "out of his hands"; that "somebody was coming down from Chicago"; and that "he'd try to arrange a meeting for [them] to talk to him." 21 On Wednesday, October 16, some of the strikers, but not Brethauer, Meyers, and Spiller (hereinafter sometimes col- 20 Miller did not accompany them to Roberson's home. i1 The findings in this paragraph are based upon the testimony of Bre- thauer, Meyers, and Neeley. The quotations appearing in the text are taken from the account of what transpired at their meeting with Neeley given by Brethauer and Meyers. Concerning the announcement that the employees "are on strike" Neeley testified that he didn't "recollect anybody ever telling [him] they were on strike." I do not construe Neeley's failure to remember being told by the employees that they were on strike as a denial that he was so informed. TRUMBULL ASPHALT COMPANY lectively referred to as the Three) returned to work. Also on this day Marvin Kleine, the manager of Respondent's Atlanta facility, arrived at the plant to assist Neeley in dealing with the strike and the filing of the OSHA com- plaint. During the afternoon of October 16 Brethauer and Mey- ers spoke to Kleine at the plant. They told Kleine almost exactly what they had said to Neeley the previous day; i.e., that a complaint had been filed with OSHA; that they were on strike; and that those employees still on strike would return to work when the matters about which they had complained to OSHA; namely, the plant conditions they thought were unsafe, had been remedied. They also told Kleine that they had not quit their employment 22 Although disputed by Respondent, it seems clear from the evidence just recounted that the strike was to protest conditions in the plant the strikers thought were unsafe and to force Respondent to remedy them. It is well settled that a strike over working conditions considered by employees to be hazardous, or even merely uncomfortable, is a form of concerted activity protected by Section 7 of the Act. See, for example, N.L.R.B. v. Washington Aluminum Company Inc., 370 U.S. 9 (1962); Union Boiler Company, 213 NLRB 818 (1974); Essex International, Inc., 213 NLRB 260 (1974); G. W. Murphy Industries, Inc., Portable Electric Tools Division, 183 NLRB 996, 999 (1970). Respondent contends that the strike was unprotected by Section 7 of the Act because although its ostensible pur- pose was to protest unsafe working conditions this was a pretext to mask its actual object. The real reason for the strike, Respondent asserts, was to exert pressure on it to retain Miller, a supervisor, in its employ when it became apparent to the employees that he was about to be dis- charged. I reject this contention as being unsupported by the evi- dence. But even were I to find, which I do not, that the strike's true object was in accordance with Respondent's assertion, in the circumstances of this case such a strike, like a strike over unsafe working conditions, also would have fallen within the protection of Section 7 of the Act. This would be so because Miller, notwithstanding his supervisory status, did not, as I have found, adjust griev- ances or engage in collective bargaining . See, in this regard, N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941, 947 (C.A. 1, 1961). There it was stated that where dis- charged supervisors were "[not representatives for the ad- justment of grievances or collective bargaining ] strike ac- tion seeking [their] reinstatement . . . is not unprotected concerted activity." In sum, I conclude, respecting the strike's reason and nature, that it was for the purpose of protesting, and ob- taining a remedy for, working conditions considered by the strikers to be unsafe and that the strike was, therefore, pro- tected by Section 7 of the Act. I further conclude that it was not a purpose of the strike to compel Respondent to refrain from discharging Miller. 22 This was said in response to Kleine 's observation that "as far as [he] was concerned they had quit." IV. THE ALLEGED UNFAIR LABOR PRACTICES 135 A. Facts Concerning Respondent's Alleged Violations of Section 8(a)(1) of the Act 23 On October 16 Marvin Kleine, the official sent by re- spondent to assist the plant superintendent in dealing with the work stoppage described above, discharged Eric Bre- thauer, Kenneth Meyers, and Don Spiller, who at the time, were still on strike.24 As Kleine testified, he "fired [the three] for failure to report for work or call in notifying that they would be out." B. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(1) of the Act The three "fail[ed] to report for work" because they were engaged in what I found to be a protected strike. Accordingly, to fire the three for their "failure to report for work," as Kleine testified, was to discharge them for parti- cipating in the protected work stoppage. Discharging em- ployees for this reason is clearly violative of Section 8(a)(1) of the Act. If authority is required for this proposition it is readily found in N.L.R.B. v. Washington Aluminum Compa- ny, 370 U.S. 9 (1962); Union Boiler Company, 213 NLRB 818 (1974); Essex International, Inc., 213 NLRB 260 (1974); and G. W. Murphy Industries, Inc., 183 NLRB 996, 999 (1970). Notwithstanding the foregoing, Respondent seeks to justify its discharge of the three on several grounds. Thus, Respondent asserts on brief that their employment was ter- minated for "infractions of established attendance rules"; namely, their failure to call in to report their absences; that it "had no clear knowledge that any sort of concerted walk- out on the part of any of the employees named in the OSHA complaint had occurred until after [the three] were discharged"; and that during the strike "an aura of fear" created by the strikers permeated the plant. Concerning the first ground set forth above, the three's "infractions of established attendance rules." I have been unable to find in the record any evidence that Respondent had promulgated a rule requiring employees to notify it of their absences from work. But even if I am mistaken in this and such a rule was, in fact, in existence at the time of the strike, noncompliance with it by the three does not, in the circumstances of this case, relieve Respondent from liabili- ty for discharging them. In rejecting a somewhat similar defence, the Supreme Court in N. L. N.L.R.B. v. Washington Alu- minum Co., 370 U.S. 9, 16-17, had this to say: Nor can we accept the company's contention that 23 The complaint states that among Respondent's violations of Sec. 8(axl) of the Act is its discharge of Jerold Miller because he "engaged in protected concerted activities." It being well settled that a supervisor, as I have found Miller to have been , is not protected by the Act, his discharge did not constitute an unfair labor practice even if it was for the reason set forth in the complaint and not, as Respondent contends , for improper per- formance of his supervisory duties Accordingly, my order will provide for the dismissal of so much of paragraphs 4 and 5 of the complaint as relate to Miller's discharge 24 As already earlier noted, these discharges are alleged in the complaint as having been violative of Sec 8(a)(l) of the Act. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because it admittedly had an established plant rule which forbade employees to leave their work without permission of the foreman, there was justifiable "cause" for discharging these employees, wholly sepa- rate and apart from any concerted activities in which they engaged in protest against the poorly heated plant. Section 10(c) of the Act does authorize an em- ployer to discharge employees for "cause" and our cases have long recognized this right on the part of an employer. But this, of course, cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which § 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that for it would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the per- mission of the company's foreman was obtained. The second ground on which Respondent seeks exculpa- tion for the discharges, its claimed lack of knowledge of the strike, is likewise without merit. If knowledge of the strike and its nature by Respondent is a factor which must be shown in order to establish that the discharges were viola- tive of Section 8(a)(1) of the Act,25 I find that Respondent had such knowledge. Thus, Jerold Miller, then Respondent's general foreman and, as I have found, a supervisor, attended the conference in the plant on Sunday, October 12, at which the employ- ees present, Kenneth Meyers, Eric Brethauer, and J. W. Walker, decided to strike the next day and file a complaint with OSHA regarding working conditions they thought were unsafe. On Tuesday, October 15, Brethauer and Mey- ers served the OSHA complaint on Bobby Neeley, the plant superintendent, and at the same time told him that the employees "are on strike" and that they would not re- turn to work until they were "positive that the plant was going to be fixed." On the next day Brethauer and Meyers gave the same information to Marvin Kleine, the official Respondent sent to the plant to assist Neeley in dealing with the work stoppage. The final ground on which Respondent rests its conten- tion that the discharge of the three was not violative of Section 8(a)(1) of the Act is that during the strike an "aura of fear" generated by the strikers pervaded the plant. The short answer to this argument is that it is not supported by probative evidence. Furthermore, the "aura of fear," if there were such a thing, was not referred to by Kleine as being a reason for his having discharged the three. Reiter- ating Kleine's testimony in this regard, he said that he "fired [the three] for failure to report for work or call in notifying that they would be out." Accordingly, I conclude that by discharging the three for engaging in a protected strike Respondent violated Section 8(a)(1) of the Act. 25 But see G. W Murphy Industries, Inc, 183 NLRB 996, 1000 (1970). V. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices engaged in by Respondent occurring in connection with its operations described in section I, above, have a close , intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act by discharging Eric Brethauer, Kenneth Meyers, and Don Spiller because they engaged in a protected strike my recommended Order will require Respondent to cease and desist from further violations of Section 8(a)(1) of the Act and to take such affirmative action as will effectuate the policies of the Act. In this connection, my recommend- ed Order will require that Respondent offer immediate and full reinstatement to Brethauer, Meyers, and Spiller and make them whole for any loss of earnings they may have suffered as a result of their unlawful discharge . Any back- pay found to be due to Brethauer, Meyers, and Spiller shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest in the amount and manner provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. At all material times Jerold Miller was a supervisor within the meaning of the Act. 3. By discharging Jerold Miller respondent did not en- gage in an unfair labor practice within the meaning of Sec- tion 8(a)(1) of the Act. 4. The strike against Respondent engaged in by Eric Brethauer, Kenneth Meyers , and Don Spiller fell within the protection of Section 7 of the Act. 5. By discharging Eric Brethauer, Kenneth Meyers, and Don Spiller for participating in the strike referred to in Conclusion of Law 4, above, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 6. The unfair labor practices engaged in by Respondent, as set forth in Conclusion of Law 5, above, affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: TRUMBULL ASPHALT COMPANY 137 ORDER 26 Respondent, Trumbull Asphalt Company, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, taking any other disciplinary action against, or in any manner affecting adversely the hire or tenure of employment or any term or condition of employ- ment, of employees for engaging in any activity protected by, or guaranteed in, Section 7 of the National Labor Rela- tions Act, as amended. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National La- bor Relations Act, as amended, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in con- formity with Section 8(a)(3) of said Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Offer to Eric Brethauer , Kenneth Meyers, and Don Spiller immediate and full reinstatement as employees without prejudice to their seniority or other rights or privi- leges and make them whole, in the manner set forth in the section of this Decision entitled "The Remedy ," for any loss of earnings they may have suffered by reason of their unlawful discharge. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its premises in Hazelwood , Missouri, copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter , in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region -14, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that so much of paragraphs 4 and 5 of the complaint as relate to the discharge of Jerold Mill- er be, and they hereby are, dismissed. 26 In the event no exceptions are filed as provided by Seca-102.46 of the Rules and Regulations of the National Labor Relations Board the findings. conclusions, and Order her@in shall, as provided in Sec, 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclu- sions, and Order, and all objections thereto shall be deemed waived for all pur2oses. 2 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an Administrative Law Judge, at which all parties had the opportunity to present evidence and arguments, it has been decided that we, Trumbull As- phalt Company, Inc. have violated the National Labor Re- lations Act. We have, therefore, been ordered to post this notice and carry out its terms. WE WILL NOT in any way interfere with any right given employees by the National Labor Relations Act. WE WILL NOT fire any employee or otherwise disci- pline any employee because he takes part in a strike to protest working conditions believed by the striking employees to be unsafe, or because he takes part in a strike or other lawful action to protest any working condition, or because he takes part in a strike to get better working conditions. As it has been decided that we fired Eric Brethauer, Ken- neth Meyers, and Don Spiller because they took part in a strike to protest working conditions they thought were un- safe. WE WILL immediately offer to take Eric Brethauer, Ken- neth Meyers, and Don Spiller back to work for us. WE WILL pay Eric Brethauer, Kenneth Meyers, and Don Spiller any wages lost by them because we fired them. TRUMBULL ASPHALT COMPANY, INC.