Big Horn Coal Co.

255 309 NLRB No. 27 BIG HORN COAL CO. 1 While we agree with the judge’s conclusion on the issue of dis- parate treatment, we also note that the facts of this case are distin- guishable from those in Community Motor Bus Co., 180 NLRB 677 (1970), enf. denied 439 F.2d 965 (4th Cir. 1971). In Community Motor Bus, the employer made statements effectively condoning the unprotected activity engaged in by the strikers. In contrast, the Re- spondent in this case never indicated that it would condone any mis- conduct or unprotected activity by the strikers. An employer, of course, may not discriminate among those engaged in like unpro- tected conduct for unlawful reasons. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). Member Raudabaugh notes that the Respondent declined to rein- state strikers who could be positively identified as having engaged in the misconduct. The Respondent reinstated all others. Thus, this case does not involve unexplained disparity in the treatment of var- ious strikers. For this reason, Member Raudabaugh finds Community Motor Bus distinguishable and he does not pass on whether there would be a violation if such disparity were shown. Big Horn Coal Company and Anton J. Bocek and David L. Jelly and George E. Buszkiewic and Craig R. Hanson and Charles E. Smith and Wayne L. McKenzie and Kenneth M. Barker and John R. Johnson and Edwin O. Wartensleben and Edward L. Feaster and M. O. Worthington and Kenneth D. Copp and Bennie M. Campbell and Robert S. Nielsen and Michael S. Doyle and Ross E. Sadler, Jr. and Dale Condos and John R. Harris. Cases 27– CA–10702, 27–CA–10702–2, 27–CA–10702–3, 27–CA–10702–4, 27–CA–10702–5, 27–CA– 10702–6, 27–CA–10702–7, 27–CA–10702–8, 27– CA–10702–9, 27–CA–10702–10, 27–CA–10702– 11, 27–CA–10702–12, 27–CA–10702–13, 27– CA–10702–14, 27–CA–10702–15, 27–CA– 10702–16, 27–CA–10702–20, and 27–CA–10702– 21 October l6, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH On May 7, 1992, Administrative Law Judge James S. Jenson issued the attached decision. The General Counsel and the Charging Parties filed exceptions and supporting briefs. The Respondent filed a brief in reply to the exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings,1 findings, and con- clusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Big Horn Coal Company, Sheridan, Wyoming, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Sheridan, Wyoming, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Albert A. Metz and Michael T. Pennington, for the General Counsel. Jeffrey T. Johnson (Holland & Hart), of Denver, Colorado, and Hayden F. Heaphy (Burgess, Davis, Carmichael & Cannon), of Sheridan, Wyoming, for the Respondent. William O. Shults, of Washington, D.C., for the United Mine Workers of America. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge. This case was heard in Sheridan, Wyoming, on March 12 and 13, 1991, pursuant to a consolidated complaint, as amended, which issued on December 7, 1989. The consolidated com- plaint alleges, in substance, that the Respondent violated Sec- tion 8(a)(1) and (3) by refusing to reinstate certain economic strikers following an unconditional offer to return to work. The Respondent denies engaging in any unlawful conduct and claims it terminated the strikers because they engaged in serious strike-related misconduct, thereby relieving it of the obligation of rehiring them. All parties were afforded full op- portunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs were filed by the General Counsel, the Union, and the Respondent, all of which have been carefully considered. On the entire record in the case, including the demeanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION Big Horn Coal Company, a subsidiary of Kiewit Mining Group, Inc., which is a subsidiary of Peter Kiewit & Sons, Inc., is engaged in surface coal mining approximately 8 miles north of Sheridan, Wyoming. It is admitted and found that it annually sells and ships goods, materials, and services valued in excess of $50,000 directly to points and places out- side the State of Wyoming, and that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED It is admitted and found that United Mine Workers of America, Local 2055 is a labor organization within the meaning of Section 2(5) of the Act. 257 BIG HORN COAL CO. 1 All dates hereafter are in 1987 unless stated otherwise. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent is engaged in operating a surface coal mine near Sheridan, Wyoming. It and the Union have had a collec- tive-bargaining relationship for many years, the most recent collective-bargaining agreement being for a term of 3 years which expired March 23, 1987. Prior to its expiration, how- ever, the parties agreed to an extension to June 1, 1987. Al- though no agreement was reached by the latter date, the par- ties continued to bargain. Failing to reach agreement, on July 1, 1987, the Respondent implemented its final offer. The em- ployees continued working until October 5, 1987, when 41 of the 44 bargaining unit employees went out on strike. The mine continued to operate with the three nonstrikers, super- visors, and a few temporary employees. No permanent re- placements were hired. Picketing was conducted 7 days a week on a 24-hour basis at the Acme and the Country Night- club entrances to the mine. Normally two to four pickets were present at each gate. A trailer was located near the Acme gate for the strikers’ convenience. Picketing continued until June 23, 1988, when the Union made an unconditional effort to return effective June 27. On June 24, the Respond- ent sent a telegram to the Union seeking a clarification of the unconditional offer and stating it did not intend to rein- state those employees who had engaged in strike-related mis- conduct. The decision as to which strikers were not rein- stated due to strike-related misconduct was not made until after receipt of the Union’s unconditional offer to return. By letter dated June 28 the Respondent advised the Union of the names of the 18 strikers, the charging parties herein, whom it contends had engaged in strike misconduct and would not be reinstated. Due to a reduction in demands for coal, the Respondent rehired only 18 bargaining unit employees. At the time of the instant hearing, Respondent employed only seven bargaining unit employees. The reinstatement rights of only those individuals the Respondent claims engaged in strike-related misconduct are at issue here. B. November 11, 19871 1. The Acme gate November 11 was Veterans Day, normally a holiday under United Mine Workers contracts. John Rueb, Respondent’s manager, testified it was a day when most of the mine crews didn’t work but some did. Since at least 1973, it had never been a full workday. The morning of November 11 was ex- tremely cold with temperatures ranging between 0 and 10 de- grees above zero. The record shows that a group of about 50 people consisting of striking Big Horn employees, their wives and children, employees on layoff, retirees, and strik- ing employees of Decker Coal Company located in Montana a few miles to the north of the Big Horn mine, had gathered and were milling around at the Acme entrance. The record shows that the gate to the entrance was locked with a pad- lock not belonging to Respondent, and that a pickup truck belonging to striker John Johnson was parked crosswise blocking the right-hand lane that enters the gate. Displayed part of the time across the driver side door of the pickup was a large white sign reading ‘‘UMWA Remembers Our Veter- ans.’’ In addition to a number of American flags, pickets also carried signs reading: SCAB GO HOME and ON STRIKE U.M.W.A. LOCAL 2055 NO CONTRACT NO WORK As was their practice throughout the period of the strike, about 6:30 a.m. on November 11, a convoy of 11 vehicles containing supervisory personnel and mineworkers, left Sheridan en route to the mine. Mine Manager Rueb was in the lead vehicle. Upon passing the Jensik Hill interchange, Rueb call Ken Tobach, the mine graveyard shift supervisor, on the radio. Tobach told him there was a large gathering of strikers at the Acme gate which was locked with a non- company lock and couldn’t be opened. Nevertheless, the con- voy proceeded on to the Acme gate, arriving about 6:45 a.m. Rueb stopped his vehicle about 150 feet short of the gate and again called Tobach on the radio and instructed him to call the sheriff and tell him the road was blocked, and also call Baker and Associates, a firm Respondent had hired to film any incident that took place. Sheriff Johnson and Under- sheriff Moore were apparently at the lead and rear respec- tively of a convoy on its way to the Decker Mine located several miles north across the state line in Montana when they received word of the Acme gate activity. Both left the convoy for the Acme gate, with the undersheriff arriving first. Undersheriff Moore asked Rueb ‘‘if he had made an at- tempt to go through,’’ with Rueb responding that it would be better that he didn’t because he didn’t feel the group would open up and let him through. The undersheriff then talked to a group of demonstrators and asked if they would allow the convoy to go through and received a negative re- sponse. While he was acquainted with most of the people there, he was unable to recall anyone he talked to. He then went back and told Rueb ‘‘that I felt that we should make an attempt to go through. That we wouldn’t know for sure unless we did make the attempt to go through.’’ Sheriff Johnson arrived shortly and also asked a group of demonstra- tors if they would let the convoy enter to go to work. He testified that 8 to 15 people hollered back that they wouldn’t move. He was unable to single out anyone that responded in that manner. He told Rueb he didn’t feel it was safe to try to enter. About 8:02 a.m., the company cut the locks on the gate. At 8:24 and 8:30, respectively, the demonstrators parted and permitted two large coal trucks operated by mine cus- tomers to enter. No attempt was made to enter by the com- pany convoy. At some point the sheriff placed a call over the radio for assistance. Several deputies, three city police, and two state highway patrolmen responded. Rueb asked the sheriff to clear the gate so the convoy could go through. However, because of doubt as to whose property the dem- 258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 G.C. Exh. 2. 3 The 3-by-5-inch photographs were enlarged for purposes of the hearing and are in the record as R. Exhs. 1–1 through 1–36. The following videotapes used in identifying demonstrators are also in the record. R. Exhs. 5 and 7 are the complete and excerpted tapes respectively taken by Baker & Associates; R. Exh. 4 is identified as the Keller tape. Not available until after the decision was made as to which of the demonstrators would be terminated, and also in the record, are the Daniels tapes, R. Exhs. 3 and 6, the latter consisting of excerpts from the former. onstration was taking place on, the sheriff didn’t think he could arrest anyone. Although Rueb tried to find out through the company landman who owned the land, he wasn’t able to do so. Consequently, the sheriff told Rueb he didn’t want him to try going through the gate. A few minutes before 9 a.m., Rueb decided to try entering through another gate. The vehicles in the convoy turned around in place with Plant Superintendent McKenzie, who had been at the back of the convoy as it approached the Acme gate, now in the lead vehicle and with Rueb bringing up the rear. Instructions were given by the sheriff to the sup- porting officers to block any attempt by the demonstrators to follow. Rueb told McKenzie to try and enter through the Tongue River Stone gate, one of several other entrances through which mine access could be gained by crossing over neighboring pasture land. 2. The Tongue River gate Rueb testified that the Tongue River Stone Gate had never before been used to gain access to the mine. Nevertheless, he told McKenzie, who was to be in the lead vehicle, to try and enter that gate. As McKenzie approached a railroad crossing located about a quarter of a mile from the Tongue River Stone gate, he observed a pickup truck belonging to, and driven by, M.O. (Pinky) Worthington, parked 50 or 60 feet in front of the gate on the left shoulder of the road fac- ing downhill toward the convoy. There is a cattleguard across the single lane roadway at the entrance to the gate. A padlocked cable is sometimes suspended across the cattleguard to deny access to the private property on the other side. Worthington testified that it wasn’t possible to enter the gate that morning because of the cable. McKenzie testified that as he proceeded toward the railroad crossing, he observed the pickup pull forward another 30 feet and stop di- agonally across the road. Worthington testified he had backed up and parked a few feet in front of the cattleguard and off to the right side of the road and that when the con- voy turned left he pulled onto the road to leave since, ‘‘There’s no use sitting here anymore, they’ve already . . . got by.’’ He denied he stopped diagonally across the road or that it was blocked at any times. Thus, it is seen that there is a direct conflict between the testimony of McKenzie and Worthington as to which side of the road Worthington’s pickup was parked on, its proximity to the gate, and whether it blocked the road after it moved forward. In deciding whose version to credit, I have considered the fact that there were a number of potential witnesses in convoy vehicles and also that striker Pete Oliver, was with Worthington, none of whom were called to testify with the exception of Rueb in the last vehicle. Contradicting both McKenzie and Worthing- ton as to the location of the pickup, Rueb testified the pickup was parked on the cattleguard. His testimony is not credited in this respect. The evidence shows Worthington’s pickup was someplace between the gate and 80 or or 90 feet in front of the gate when McKenzie crossed the railroad track and took a sharp left turn that led the convoy down a road lo- cated on the railroad right-of-way, which appears to have been a more direct route to the mine, the convoy arriving about 9:15 a.m. Again, no actual attempt was made by the Respondent to enter the Tongue River Stone gate. After arriving at the mine, Rueb directed Personnel Direc- tor Hutchinson and Terry Hoyt, a supervisor, to prepare lists of those persons they had seen that morning at the Acme gate.2 C. The Decision Not to Rehire As noted at the outset, on June 24, 1988, the Union made an unconditional offer for all strikers to return to work, and on June 28, the Respondent gave the Union the names of the 18 employees whom it would not reinstate due to strike mis- conduct which had taken place on November 11, 1987. The decision as to which strikers would not be reinstated was not made until after the unconditional offer to return, and was based upon the personal observation of Respondent’s super- visors, the lists prepared by the supervisors after arriving at the mine on November 11, 3-by-5-inch photographs and video tapes then available.3 Only those persons who could be positively identified as having actively participated in block- ing the road for a ‘‘substantial period’’ of time were replaced on the misconduct list. Rueb testified he was conservative in putting people on the list, i.e., no one who was off to the side of the road or who went on to the road and left was considered to have been engaged in blocking for a ‘‘substan- tial period’’ and was left off the list. People later identified from the Daniel’s tape or from enlarged still photographs were not added to the list. It consisted of 17 names whom Respondent concluded had engaged in misconduct at the Acme gate, and Worthington for his conduct at the Tongue River Stone gate. Positions of the Parties The General Counsel argues there must be some element of confrontation at the point of entry before there is a block- age serious enough to justify a discharge. In this case the Re- spondent didn’t approach the Acme gate closer than 150 feet and consequently no attempt was made to enter the mine premises through that gate. It is claimed that ‘‘Indicative of an intent not to block is the fact of allowing other vehicles to enter the mine, no need to move because the company did not approach them, no arrests, no violence, no sit downs, no damage to persons or property, and no criminal charges being filed.’’ Further ‘‘The men testified they would have let the Respondent enter.’’ It is argued that the ‘‘Respondent’s supposition cannot substitute for the requirement of actual misconduct,’’ and since Respondent never tried to drive through the gate, it doesn’t know what would have happened. Making note of the fact that entry to the mine was gained through another route that morning, the General Counsel also contends that this single incident was of minimal disruption in a 9-month strike and should not outweigh the long-term interest of employment that the 18 discharged strikers had committed to Respondent. He further claims that all strikers should receive equal treatment for equal behavior and here 259 BIG HORN COAL CO. the Respondent engaged in disparate treatment when it se- lected the charging parties for discharge to the exclusion of others who had engaged in similar conduct. The General Counsel also argues that Worthington’s truck was not block- ing the Tongue River Stone gate, and in any event, the Re- spondent’s convoy never tried to enter the gate and in fact didn’t come within a quarter of a mile of it. Respondent claims the record clearly shows that the strik- ers blocked the Acme gate on November 11, and the reason no attempt to enter was made was because Rueb, not want- ing to provoke an incident, complied with the sheriff’s in- structions. Regarding the two coal trucks that entered the mine premises, Respondent points out they were admitted only after negotiations with law enforcement officials, and as soon as they passed through, the strikers again filled the roadway, pointing up the fact that the strikers decided who would be allowed access to the mine. In this regard, they had told Sheriff Johnson they wouldn’t let the convoy enter. Re- spondent argues that Rueb was cautious and conservative in putting together the misconduct list and that the record clear- ly shows each of the 18 charging parties was positively iden- tified as having actively participated in the November 11 block for a substantial period of time. Denying access to management and working employees, it is argued, has long been held to be unlawful by the courts and the Board. Re- spondent also contends it neither engaged in disparate treat- ment of the charging parties nor condoned the conduct of other strikers that engaged in similar conduct since it was un- able to identify them at the time the decision to discharge was made. Discussion Paragraphs 7 and 8 of the consolidated complaint allege that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to reinstate 18 strikers following an uncondi- tional offer to return to work. The Respondent claims it re- fused them reinstatement because they engaged in mass pick- eting blocking access to its mine premises, thereby relieving it of the obligation to reinstate them. Thus, the first issue is whether the 18 charging parties engaged in blocking ingress, and if so, the second question is whether the Respondent treated them disparately because it didn’t discharge others who engaged in similar conduct. 1. Whether ingress was blocked The first question, whether the strikers engaged in mass picketing and blocking ingress, is clearly proven by the video tapes and photographs taken on November 11, and the fact the strikers told the sheriff that they would not let the convoy containing nonstriking employees and supervisory personnel enter. There are other persuasive factors. The pickets carried signs stating, and yelled on numerous occasions, ‘‘Scabs go home.’’ They also yelled repeatedly ‘‘No contract, no work.’’ After the locks to the gate had been cut, a picket is heard to say at 8:36 a.m. on Respondent’s Exhibits 7 and 5, ‘‘Next time we’ll weld the gate shut.’’ At 9:01 a.m. on Re- spondent’s Exhibits 3 and 6, after the convoy had turned around and started to leave, a picket is heard to say, ‘‘We won, victory, even if they go in the back way, we still won one.’’ At this time the pickup truck was moved and the peo- ple that had been massed in front of the gate dispersed. The fact that the pickets were milling around does not detract from the fact that the entrance was blocked by a mass of people with the common goal, clearly, of preventing access to the mine. Moreover, the evidence belies the testimony of the witnesses who claimed they would have permitted the convoy to enter if an actual attempt had been made. In Tube Craft., 287 NLRB 491, 492 (1987), cited in briefs by each of the parties, the Board stated: The plurality Board opinion in Clear Pine Mould- ings, . . . states that peaceful picketing does not in- clude the right to block access to the employer’s prem- ises. 268 NLRB at 1047. Both the plurality and the concurring opinion adopt as the general standard for striker misconduct serious enough to permit the em- ployer to refuse reinstatement, that which, ‘‘under the circumstances existing . . . may reasonably tend to co- erce or intimidate employees in the exercise of rights protected under the Act.’’ Id. at 1046, 1048, quoting NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977). In unanimously adopting this standard the Board also extended it to include coercion or intimida- tion of persons who do not enjoy the protection of the Act, such as supervisors. 268 NLRB at 1046 fn. 14 (plurality), id. at 1048 (concurrence). In Metal Polishers Local 67, 200 NLRB 335 (1972), the driver of a vehicle drove away after being blocked by a pick- et for 2 or 3 minutes. The trial examiner concluded that ‘‘a delay of one to five minutes under peaceful circumstances hardly constitutes blocking or barring ingress so as to con- stitute a violation of the Act.’’ In reversing the trial exam- iner, the Board stated: Such a construction is at variance with established Board law.9 Section 7 of the Act guarantees to all employees the right to refrain from participation in union activities, in- cluding strikes. Clearly, by physically blocking access to the plant of cars in which nonstriking employees and other persons were seeking to enter the gates, Respond- ent has interfered with the nonstriking employees in their exercise of these rights.10 9 Lithographers and Photographers International Union, AFL–CIO, CLC and Memphis Local 223, Lithographers and Photoengravers Inter- national Union, AFL–CIO, CLC (Holiday Press, a Division of Holiday Inns, Inc.), 193 NLRB No. 9. 10 The absence of physical violence does not lessen the restraining effect of Respondent’s conduct. Here, as in Sunset Line and Twine Company, supra at 1506: [79 NLRB 1487 (1948)] [t]he car drivers were faced with the choice of running down the pickets, at the risk of inflicting serious injury, or driving away. This interposition of passive force to prevent employees from going to work is, we believe, a form of restraint proscribed by Section 8(b)(1)(A). In Carpenters (Reeves, Inc.), 281 NLRB 493 (1986), Judge Robert T. Snyder, whose findings and conclusions were adopted by the Board, stated at 498: Blocking of ingress to and egress from an employ- er’s facility, mass picketing, and threats of unspecified reprisals issued to employees seeking to work at pick- 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD eted worksites for crossing a picket line, each constitute forms of coercive conduct violative of Section 8(b)(1)(A) of the Act. Longshoremen ILA Local 1291 (Trailer Marine), 266 NLRB 1204 (1983). Blocking of ingress and egress of employees even for a short period of time until broken up by police to allow entrance or exit has likewise been held to be violative of the Act. Iron Workers Local 455 (Stokvis Multi-ton), 243 NLRB 340 (1979). Mass picketing—the congregating of a large group of individuals at a particular site out of proportion to the number that would be reasonable in making known to the public and employees involved the nature of the Union’s dispute at the site—tends to place employees in fear of penetrating through the group to enter or leave their workplace. He went on to find that where 20 to 25 individuals con- gregated at and near the single entrance to the worksite when employees appeared for work, individuals were massed in such numbers as to intimidate the small group of employees from exercising their Section 7 rights to work and refrain from assisting the union in its labor dispute and was clearly coercive and restrained employees. In Iron Workers Local 455 (Stokvis Multi-ton), cited by Judge Snyder, the Board stated: ‘‘blocking an entrance or an exit even for a short pe- riod of time constitutes restraint and coercion within the meaning of the Act.’’ There can be no question then that the mass picketing and blocking of the Acme gate the morning of November 11, constitutes restraint and coercion within the meaning of the Act, and I so find. The Respondent has met, therefore, its burden under Rubin Bros., 99 NLRB 610 (1952), of demonstrating an honest belief that 17 of the 18 charging parties had engaged in strike misconduct at the Acme gate the morning of November 11. Moreover, the Gen- eral Counsel doesn’t contend that any of the 17 didn’t en- gage in the alleged misconduct. Worthington, however, wasn’t at the Acme gate, and the Respondent has failed to convince me that he engaged in any strike misconduct. Thus McKenzie, who was a quarter of a mile away, claimed Wor- thington was parked on the shoulder of the road 50 or 60 feet in front of the gate. Rueb claimed Worthington’s truck was parked on the cattle guard. Worthington claimed there was a locked chain across the gate, that he was parked on the shoulder of the road and moved forward onto the road when the convoy turned left and drove down the railroad right of way. Had he indeed stopped crossway in the road when he moved forward, surely Rueb would have seen it and so testified. Instead as noted above, he placed Worthington some 80 to 90 feet from the location McKenzie placed him. While it may have been Worthington’s intention to block ac- cess to the gate, or otherwise inconvenience or harass the convoy, that was not established. It may well be, as Wor- thington testified, and I have no reason to doubt his testi- mony in this respect, that the landowner had placed the locked chain across the roadway and that entry to the mine through that gate was not possible. In that event, I doubt it could be claimed that he had blocked access even if his truck had been parked on the cattle guard, which I find it was not. Accordingly, I find that the General Counsel has met the Rubin Bros. burden in proving that Worthington did not en- gage in the alleged misconduct. 2. Whether Respondent engaged in disparate treatment The General Counsel and Union argue that since strikers Denton Alley, Bruce Hochhaus, Russ Laird, Mike McClure, Bill Reinke, Al Shreve, John Sturtz, and Gene White appear in some of the still photos and on some of the video tapes taken of the picketing, and engaged in activities similar to those of the charging parties, the Respondent engaged in dis- parate treatment by terminating only the latter. Cited as prin- cipal authority to support this theory of disparate treatment is Community Motor Bus Co., 180 NLRB 677 fn. 1 (1970). There the Board held that 12 employees whom the Respond- ent refused to reinstate did not in fact engage in conduct more offensive than 6 employees whom the Respondent was willing to reinstate. It therefore concluded that the Respond- ent could not raise the conduct of the 12 as a defense to a finding of a violation on the refusal to reinstate. In denying enforcement on this point in NLRB v. Community Bus Co., 439 F.2d 965, 968 (4th Cir. 1971), the court stated: We decline to enforce these provisions of the Board’s order because the mass picketing that blocked access to the work site exceeded the permissible scope of eco- nomic strike activity and relieved the company of the obligation to rehire the strikers. The pickets were not engaged in trivial acts of mis- conduct, but were interfering with a basic right guaran- teed by statute—the right of non-striking employees to continue working. The right to strike, guaranteed by Section 7 of the Act, is the most powerful weapon of organized labor, but Section 7 also imposes a duty on strikers not to interfere with the right of other employ- ees to refrain from concerted activities. Oneita Knitting Mills v. NLRB, 375 F.2d 385 (4th Cir. 1967), holds that blocking free access to the plant violates this right and is grounds for denying reinstatement. The facts of this case present a stronger argument for denial of reinstate- ment than in Oneita. There the strike had been precip- itated by the unfair labor practices of the employer. The court held the strikers to a less stringent standard of conduct than that of economic strikers, applying the balancing test of NLRB v. Thayer Co., 213 F.2d 748, (1st Cir.) cert. denied, 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694 (1954). The distinction between economic strikers and unfair labor practice strikers disposes of most of the cases cited by the Board where picket line misconduct was held not to forfeit reinstatement rights. [citations omitted] Since the picket line misconduct in Oneita forfeited the reinstatement rights of unfair labor practice strikers, similar conduct by economic strikers in this case is to be at least as strongly condemned. . . . . Although we accept as supported by substantial evi- dence the Board’s findings concerning the conduct of the 18 employees, we believe its conclusion overlooks the distinction drawn by NLRB v. Fansteel Metallur- gical Corp., 306 U.S. 240, 259, 59 S.Ct. 490, 83 L.Ed. 627 (1939), between what an employer may do and what it must do. In Fansteel, the Court held illegal strike activity absolved the employer of any duty to re- employ, but the company ‘‘was nevertheless free to 261 BIG HORN COAL CO. 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. consider the exigencies of its business and to offer re- employment if it chose. In so doing it was simply exer- cising its normal right to select its employees.’’ 306 U.S. at 259, 59 S.Ct. at 498. The same is true here. The company was free to dis- charge or rehire any or all of the strikers whose mis- conduct forfeited reinstatement rights. Any other rule, especially in the absence of anti-union animus, would confront the employer with an all-or-none rehiring choice, which is not required by the Act or by the doc- trine of condonation. Kohler Co., 128 NLRB 1062, 1105 (1960), enf’d in part and remanded sub nom. Local 833, UAW–AFL–CIO, International Union, United Automobile, Aircraft, and Agricultural Imple- ment Workers of America v. NLRB, 112 U.S. App.D.C. 107, 300 F.2d 699, cert. denied, 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962). I find the other cases relied on by the General Counsel and Union to be inapposite. The doctrine of ‘‘disparate treat- ment’’ is applicable, not as between strikers found to have engaged in unlawful conduct, but between them and non- strikers or replacements that have also engaged in question- able conduct. As stated by the Board in Aztec Bus Lines, 289 NLRB 1021, 1027 (1988), cited by both the General Counsel and Respondent, ‘‘Although an employer does not violate the Act by refusing to reinstate strikers who have engaged in se- rious misconduct, it is not free to apply a double standard. It may not tolerate behavior by nonstrikers or replacements [emphasis added] that is at least as serious as, or more seri- ous than, conduct of strikers that the employer is relying on to deny reinstatement to jobs. Garrett Railroad Car & Equipment v. NLRB, 683 F.2d 731, 740 (3d Cir. 1982).’’ Neither nonstrikers nor replacements were involved in the in- stant case. See also Chesapeake Plywood, 294 NLRB 201 (1989), where it held at 203 fn. 9: The General Counsel also argues that the Respondent’s discharge of certain strikers was disparate in light of its reinstatement of striker Cornell Roberts, who also alleg- edly engaged in strike misconduct. We find no merit in this contention, noting that the General Counsel has failed to cite any authority to support this position. Be- cause Roberts and the strikers who were discharged by the Respondent were all similarly engaged in strike ac- tivity, any variance in discipline within this group of employees would be insufficient as evidence to show that the disciplined employees were treated disparately because of their protected activity. In sum, the ‘‘disparate treatment’’ argument is without merit. Having found that the charging parties, with the ex- ception of Worthington, engaged in strike-related misconduct relieving the Respondent of the obligation to reinstate them, I recommend dismissal of all of the consolidated complaint with respect to each of them. Having found that Worthington did not engage in the alleged misconduct, I shall recommend an appropriate remedy consistent with Board policy in Case 27–CA–10701–11. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following strikers are not entitled to offers of rein- statement because of their strike misconduct: Anton J. Bocek Edward L. Feaster David L. Jelly Kenneth D.Copp George E. Buszkiewic Bennie M. Campbell Craig R. Hanson Robert S. Neilsen Charles E. Smith Michael S. Doyle Wayne L. McKenzie Ross E. Sadler, Jr. Kenneth M. Barker Dale Condos John R. Johnson John R. Harris Edwin O. Wartensleben 4. By failing and refusing to reinstate M. O. (Pinky) Wor- thington, the Respondent has violated Section 8(a)(1) and (3) of the Act. 5. The Respondent has not otherwise violated Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that the Respondent has engaged in an un- fair labor practice in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully refused to reinstate M. O. (Pinky) Worthington following an unconditional offer to return to work following the strike, I shall recommend that Respondent offer him immediate and full reinstatement to his former job, dismissing if necessary any replacement or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrimi- nation from June 27, 1988, the effective date of the offer to return, to the date of Respondent’s offer of reinstatement less net earnings, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), to which shall be added interest to be computed, in the manner described in New Horizons for the Retarded, 283 NLRB 1173 (1987). It shall be further rec- ommended that Respondent remove from its files any ref- erence to its unlawful refusal to reinstate Worthington. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent, Big Horn Coal Company, Sheridan, Wy- oming, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to offer reinstatement to striker M. O. (Pinky) Worthington on the ground of misconduct during the strike. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 If this 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 read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ (a) Offer M. O. (Pinky) Worthington immediate and full reinstatement of his former job or, if it no longer exists, to a substantially equivalent job, without prejudice to his senior- ity or other rights and privileges, dismissing, if necessary, any employee hired as a replacement and make him whole for any loss of earnings in the manner set forth in the rem- edy section of the decision. (b) Remove from its files any reference to the refusal to reinstate him and notify M. O. (Pinky) Worthington in writ- ing that this has been done and that the refusal to reinstate will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Sheridan, Wyoming facilities copies of the attached notice marked ‘‘Appendix.’’5 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the consolidated complaint be dismissed insofar as it alleges violations of the Act not found herein, specifically Cases 27–CA–10702 through 27–CA– 10702–10 and 27–CA–10702–12 through 27–CA–10702–21. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to offer reinstatement to M.O. (Pinky) Worthington on the ground he engaged in strike mis- conduct. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer M. O. (Pinky) Worthington immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other right or privilege previously enjoyed, and WE WILL make him whole for any loss of earnings or other benefits resulting from our failure to reinstate him, and WE WILL notify him in writing that we have removed from our files any reference to our refusal to reinstate him, and that that refusal will not be used against him in any way. BIG HORN COAL COMPANY