Emarco, Inc.

832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Emarco, Inc. and William F. Grindel and Kevin Stringer. Cases 4-CA-10265-1 and 4-CA- 10265-2 30 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 5 August 1981 Administrative Law Judge Karl H. Buschmann issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, fmdings, 1 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent did not violate the Act by refusing to reinstate the two Charging Parties. For the reasons set forth below, we disagree. The facts in brief are as follows. The Respondent is engaged in the construction, repair, and service of elevators. The Respondent's president is Al Makuta, and his son John is its secretary-treasurer and business manager. At times relevant here, the Respondent employed William Schreuder, William Grindel, Gerry Setta, and Kevin Stringer as me- chanics. The Respondent's employees' collective- bargaining representative is International Union of Elevator Constructors, Local 76. At the time of the events discussed here, the Re- spondent and the Union were parties to a collec- tive-bargaining agreement which contained a no- strike clause set forth in pertinent part in the judge's decision. Under the same agreement, the Respondent was obligated to make payments on behalf of its employees to the Union's welfare and pension plan. From 1976 to 1980, the Respondent was consistently in arrears in its payments to the welfare and pension plan and had often been 1 or 2 months and sometimes 3 months late in its payment into the plan. As of April 1979, 2 the Respondent was 5 months late in its payments to the plan. The employees 1 The General Counsel excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admuustra- trive law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3rd dr. 1951). We have carefully examined the record and find no basis for re- versing the fmdings 2 All dates hereinafter are in 1979 unless otherwise noted. were informed by the First Bank of Pennsylvania (the Bank) that it would no longer honor medical bills or death benefits and employees would be in- eligible for unaccumulated retirement benefits. 2 On 3 April the Respondent's employees wrote a letter to the Respondent concerning its delinquency. In the letter, the employees stated that if the Respond- ent was not current in its payments by 20 April, the employees would not report to work. On 5 April John Makuta held a meeting with the Respondent's mechanics to discuss their concern about the welfare and pension plan. The result of the meeting was inconclusive. On 19 April, howev- er, John Makuta showed employee Schreuder a check made out to the welfare and pension plan and then mailed it to the Bank. On 20 April em- ployee Grindel called John Makuta to see if pay- ment had been made and was assured that the check had been mailed. Later, Grindel and the other employees individually called the Bank and found that it had not received the check. When Schreuder called the Bank on Monday, 23 April, and discovered that the check ha&still not been re- ceived, the four mechanics refused to report for work. The Bank had still not received the check as of 26 April. The Respondent stopped payment on the 19 April check and sent a new check. The me- chanics' strike lasted until 7 or 8 May when the Bank fmally received the Respondent's November 1978—May 1979 payment. Employees Setta and Schreuder were called to work by Al Makuta on 8 May. On the same day, Union Vice President Koch telephoned John Makuta to find out why employees 'Grindel and Stringer had not been called back to Work. Makuta replied that the Respondent was having some prob- lems getting back to work and, according to Koch's testimony, that the two men would be back to work the following morning.4 On 10 May Grindel and Stringer visited a jobsite where the Respondent was a subcontractor to see if anyone was working on the elevator job there. As they were leaving the site Grindel and Stringer ran into Poleri, the general contractor on the project. According to Grindel and Stringer, they asked Poleri if anyone was working on the elevator job. Poleri replied that the elevator employees were on strike. Grindel and Stringer explained that the strike was over but that only two employees had been recalled. On response to Poleri's query about the cause of the strike, the two men ex- 3 One employee had two medical bills which were not honored by the Bank 4 John Makuta testified that he told Koch that the employees would be back to work as soon as possible This testimonial discrepancy is not ma- tenal 284 NLRB No. 91 EMARCO, INC. 833 plained that the Respondent's 5- or 6-month delin- quency in payments to the health and welfare fund had precipitated the strike. When Poleri asked why the Respondent was behind in its payment, the men answered that the Respondent did not have the money. Poleri's version of this conversation is somewhat different. He testified that the employees also said, inter alia, "these people never pay their bills," the Respondent "can't finish the job" and "is no damn good," and "this job is too damn big for them. . . . It will take a couple of years to finish the job." Poleri testified that the men referred to Al Makuta as "no damn good" and as "a son of a bitch." The judge credited Poleri's characterization of the con- versation with the two Charging Parties "keeping in mind that the quoted language was an exaggerat- ed version of the actual statements of Grindel and Stringer." The next day, Al Makuta went to check on Po- leri's jobsite. Poled told him what Grindel and Stringer had said about the Respondent and Makuta. Makuta decided that he would not recall the two employees because of their remarks to Poleri. Stringer and Grindel were offered reinstate- ment on 20 July, at which time they declined the Respondent's offer. The judge assumed that the Respondent's 5- month delinquency in payments into the health and welfare fund constituted an unfair labor practice. He concluded that, even as such, the Respondent's action was not, under Arlan 's Department Store of Michigan, 133 NLRB 802 (1961), and Dow Chemi- cal Co., 244 NLRB 1060 (1979), so "serious" or "flagrant" to "justify a finding that the resulting strike which was not in accord with the provisions of the contract, was protected activity." We find it unnecessary to pass on the judge's conclusions with regard to the nature of the employees' 'strike. In this regard we conclude that whether the Respond- ent's delinquency constituted an unfair labor prac- tice and, if so, a serious or flagrant one, the Re- spondent "condoned" the resulting strike activity. Such condonation rendered the strike, in effect, protected activity, regardless of whether it was ini- tially protected or unprotected. 5 In this regard, as the judge notes, the Respondent had already re- called two of the striking employees and indicated its intent to recall Stringer and Grindel at the time the incident with Poleri occurred. Moreover, the Respondent acknowledges here that its failure to recall the two employees was because of their re- marks to Poleri and not their participation in the strike, in effect conceding that the Respondent con- 5 Richardson Paint Co., 226 NLRB 673 (1976), ea. granted in part and denied in part 574 F.2d 1195 (5th dr. 1978). doned their participation in the strike, whether pro- tected or unprotected. 6 Accordingly, at the time the remarks to Poleri were made, Grindel and Stringer had reinstatement rights identical to those of employees who engage in protected strikes. We disagree, however, with the judge's further conclusion that because the failure to recall the em- ployees "does not reflect any anti-union animus," the Respondent's decision not to recall them was lawful. We conclude that, even though the employ- ees' remarks to Poleri were subsequent to the Re- spondent's condonation of the strike activity and, hence, cannot be considered to have been con- doned,1 these remarks in and of themselves were protected by Section 7 of the Act. Accordingly, by making these remarks, the employees did not for- feit their rights to reinstatement. Our dissenting colleague states that we ignore the teachings of NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). Our decision, however, does not signal a re- treat from the principle of that decision. On the contrary, our decision is entirely consistent with the Supreme Court's holding in Jefferson Standard and the Board's decisions in a number of cases cited herein which apply that holding. Jefferson Standard held that employees may engage in com- munications with third parties in circumstances where the communication is related to an ongoing labor dispute and when the communication is not so disloyal, reckless, or maliciously untrue to lose the Act's protection. As set forth below, we find that Grindel and Stringer's remarks meet each of these criteria. First, in our view, the Charging Parties' remarks were an extension of a legitimate and ongoing labor dispute which predated the strike and of which the strike proper was only one manifesta- tion. In this regard, we believe our dissenting col- league's conclusion that there was no evidence of a labor dispute other than the strike itself, results froth an overly restrictive view of what constitutes a "labor dispute." The definition of labor dispute under Section 2(9) of the Act includes "any contro- versy concerning terms, tenure or conditions of employment" (emphasis added). Surely, the em- ployees' actions, which included complaining indi- vidually and through union intervention, and which were taken in response to the Respondent's chronic failure to make contractually mandated timely payments to the welfare and pension plan, fall within the purview of that section. 6 See also American River Constructors, 163 NLRB 551 (1967), and Ala- bama Marble Go, 83 NLRB 1047 (1949), enfd 185 F.2d 1022 (5th dir. 1951), cert. denied 342 U.S 823 (1951). 7 Poloron Products of Indiana, 177 NLRB 435 (1969) 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Further, with regard to the ongoing nature of the labor dispute, the remarks of the Charging Par- ties to Poleri cannot be considered in a vacuum.8 Since 1976, the employees involved had been indi- vidually and concertedly attempting to compel the Respondent to make timely fund payments required under the collective-bargaining agreement.° In this regard, our dissenting colleague argues, in support of his contention that the Respondent's payment ended the dispute, that in the past the Respondent's delinquencies were consistently remedied when the employees or the Union's business agent com- plained. In so arguing, our colleague only empha- sizes that the Respondent's arrearages were a chronic problem and that the employees were re- quired repeatedly to assert their rights under the contract to have the fund payments made. In this context, and in light of the fact that the delinquen- cy which led up to the strike was merely the latest and apparently most severe in a series of delinquen- cies, the Respondent's payment which ended the strike could not have provided the employees with much assurance that their problems in getting the Respondent to live up to its financial obligations under the contract were at an end. Moreover, the Respondent's failure, as of the time of the conver- sation with Poleri, to call Grindel and Stringer back to work could only have served to reinforce the employees' perception that their problems were not over.10 With respect to the "related to" aspect of the Jefferson Standard test, we note further that the re- marks to Poled were made in the context of and 8 NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965). 9 NLRB v. City Disposal Systems, 465 U.S. 822 (1984). We disagree with the dissent's assertion that City Disposal Systems is not relevant to disposition of the instant case In that case, the Court stated that "[t]he invocation of a right rooted m a collective-bargaining agreement is un- questionably an integral part of the process that gave rise to the agree- ment" (465 U.S. at 823) in holding that "]a] lone employee's invocation of a right grounded in his collective-bargaining agreement is, therefore, a concerted activity in a very real sense" (465 U S. at 832). In this case, the affected employees had engaged in various actions, even apart from the strike, to assert their rights under the agreement Such actions unques- tionably constituted concerted activity under City Disposal Systems. is See, e g., NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) As we noted above, our dissenting colleague views the Respondent's pay- ment Into the fund as ending the labor dispute and thus terminating the employees' right to discuss it or engage in other protected concerted ac- tivity. A similar argument was rejected, however, us the context of a dif- ferent factual situation in Washington Aluminum, where the Court found (id., 370 U.S. at 16): The fact that the Company was already making every effort [to handle the employees' running dispute by rectifying the problem] does not change the nature of the controversy that caused the walk- out At the very most, that fact might tend to indicate that the con- duct of the men in leaving was unnecessary and unwise, and it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not. Similarly, although our dissenting colleague may be correct in asserting that once the payment had been made, the action of the employees here was no longer necessary or prudent, such a judgment is not relevant to a determination of whether a labor dispute is ongoing. were expressly linked to the labor dispute." Thus, the remarks were made while the employees were visiting a jobsite to see if the Respondent had re- sumed working there and in response to questions about the cause of the strike and the reasons for the Respondent's delinquency. In this context, we cannot agree with our dissenting colleague that the employeees failed to relate their remarks to a labor dispute because they were in fact discussing the strike and the reasons for it. We note in this regard that employee speech is often an essential means of achieving group goals and to deny protection to this type of activity would nullify the rights guar- anteed by Section 7 of the Act." Finally, the Charging Parties' remarks were not such as to forfeit any protection under Section 7 to which Grindel and Stringer might otherwise have been entitled. As the judge found in his decision, the remarks made by Grindel and Stringer here, name-calling aside, were not malicious falsehoods, but reflected to some extent the Respondent's actual inability to meet its financial obligations, which concern was at the heart of the employees' labor dispute with the Respondent. The Respond- ent does not except to this finding of the judge. As noted above, these remarks were not in the nature of a personal attack unrelated to the employee's protest of the Respondent's labor practices." Moreover, to the extent that the Charging Parties' credited remarks reflect bias or hyperbole," in the context of an emotional labor dispute clearly identi- fied as such to Poleri, they cannot be said to be so disloyal, reckless, or maliciously untrue as to lose the Act's protection." Indeed, the judge found that the credited remarks did not constitute serious misconduct sufficient, under the circumstances, to nullify the Charging Parties' reinstatement rights following protected activity." In short, it is only 11 See, e.g., Community Hospital of Roanoke Valley, 220 NLRB 217, 222 (1975), enfd. 538 F.2d 607 (4th Qr. 1976). 12 Atlanta Newspapers, 264 NLRB 878 (1982). Contrary to the dissent, m our view this case supports our analysis because here, as there, "there can be little doubt that the subject of [the employees' remarks] related to protected activity." Atlanta Newspapers, supra, 264 NLRB at 879. 18 See, e g., Richboro Community Mental Health Council, 242 NLRB 1267, 1268 (1979) " Like our dissenting colleague, we rely on the credited version of the Charging Parties' remarks to Poleri, although we note that the judge himself found Poleri's to be an "exaggerated version of the actual state- ments." 18 See, e.g., Richboro, supra, and NLRB v. Owners Maintenance Corp., 581 F.2d 44, 49-50 (2d Qr. 1978). Because, as stated previously, we find that the Respondent's payment mto the, fund did not terminate the em- ployees' right to engage in protected concerted activity relating to the labor dispute, we believe, contrary to the dissent, that these cases are ap- posite 18 We note that, apart from any reinstatement rights the Charging Par- ties here had, an employer may not deny employment for discriminatory reasons. See, e.g., Spencer Foods, 268 NLRB 1483 (1984), affirmed and re- versed on other grounds 768 F.2d 1463 (D.C. Cir. 1985) (employer's not Continued EMARCO, INC. 835 by a selective reading of the undisputed facts of this case that the dissent can find the Charging Par- ties' remarks unprotected under the principles in Jefferson Standard." Accordingly, we conclude that the Respondent violated Section 8(a)(1) 18 of the Act by its refusal to reinstate the Charging Parties. CONCLUSIONS OF LAW 1.The Respondent, Emarco, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union, International Union of Elevator Constructors, Local 76, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate certain employees be- cause of their protected activity, the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as found herein, the Respondent has not otherwise violated the Act. THE REMEDY Having found that the Respondent has violated Section 8(a)(1) of the Act by refusing to reinstate William Grindel and Kevin Stringer because of their protected activity, we shall order the Re- spondent to cease and desist and take certain af- firmative action designed to effectuate the policies of the Act. Additionally, these employees shall be made whole for any loss of pay and other benefits they may have suffered as a result of the discrimi- nation against them from the date of the unlawful failure to reinstate on 8 May 1979 until 20 July 1979, the effective date of the Respondent's offer of reinstatement. Backpay is to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB considering job applicant for future employment based on honoring lawful picket line held violative of Sec. 8(a)(1)), and Mount Desert Island Hospital, 259 NLRB 589 (1981), remanded on other grounds 695 F.2d 634 (1st Cir. 1982) (employer's refusal to rehire former employee based on her engaging in protected concerted activities of writing letter to news- paper, organizing employee meeting, and circulating petition complaining of working conditions constituted violation of Sec 8(a)(1)). i7 disagreement with our dissenting colleague, in our view although Jefferson Standard and the instant case both arguably mvolve employee disloyalty, Jefferson Standard dictates that we reach a result here different from the one reached there. Thus, the quotation from that case excerpted by the dissent itself stresses that the employee speech there "related itself to no labor practice of the Company" and "made no reference to wages, hours, or working conditions." Jefferson Standard, supra 346 U S. at 476 As noted above, the facts in the instant case in this critical aspect are en- tirely different. 18 The General Counsel alleged that the refusal to reinstate Grindel and Stringer Violated Sec. 8(aX3) and (1). We find it unnecessary to pass on whether the Respondent's conduct violates Sec. 8(a)(3) because we find that it violates Sec 8(a)(1). See NLRB V. Burnup & Sinn Inc., 379 U.S. 21 (1964) 289 (1950), with interest as prescribed in New Hori- zons for the Retarded.19 ORDER The National Labor Relations Board orders that the Respondent, Emarco, Inc., Hazelton, Pennsyl- vania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to reinstate employees who have participated in a strike because of their participa- tion in protected concerted activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make William Grindel and Kevin Stringer whole for any loss of pay and other benefits they may have suffered as a result of the discrimination against them in the manner set forth in the remedy section of this Decision and Order. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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. (c) Remove from its files any reference to the unlawful failure to reinstate Grindel and Stringer and notify them in writing that this has been done and that this unlawful action will not be used against them in any way. (d) Post at its place of business in Hazelton, Pennsylvania, copies of the attached notice marked "Appendix." 2° Copies of the notice, on forms pro- vided by the Regional Director for Region 4, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. 19 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.C. § 6621. " 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 Nation- al 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." 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I find that the Re- spondent did not unlawfully refuse to reinstate Charging Parties Grindel and Stringer. More spe- cifically, I find that the Charging Parties engaged in sufficiently serious acts of poststrike misconduct so as to forfeit any protection under Section 7 of the Act to which they may otherwise arguably have been entitled.' As seen from the judge's and my colleagues' recitation of the facts, the Respondent's four em- ployees (including Charging Parties Grindel and Stringer) went on strike on 23 April 1979, in pro- test against the Respondent's failure to make timely payments to the welfare and pension fund. On 7 or 8 May the Bank received the Respondent's over- due payment to the fund. On 8 May the Respond- ent recalled employees Schreuder and Setta to work. The Union asked the Respondent why Grin- del and Stringer had not also been recalled. The Respondent replied that it was experiencing prob- lems getting back to work, but that Grindel and Stringer would be returned to work the following morning, 9 May, or as soon as possible. On 10 May Grindel and Stringer, neither of whom had as yet been returned to work, went to one of the Respondent's jobsites. They asked Vito Poleri, the general contractor, whether any of the Respondent's employees were working on the job. Poleri replied that the Respondent's employees were on strike. Grindel and Stringer advised Poleri that the strike had ended, but that only two em- ployees had been recalled to work. Poleri asked what had caused the strike. According to Poleri's credited testimony, Grindel and Stringer replied that it was because the Respondent "don't pay the backpay." Poleri further testified that Grindel and Stringer then said:2 1 In light of my finding on this ultimate issue, I, like my colleagues, find it unnecessary to pass on the Judge's characterization of the Re- spondent's failure to make timely payments into the welfare and pension fund as an unfair labor practice under the circumstances. See my dissent- ing opinion m Rapid Fur Dressing, 278 NLRB (1986), and note also that the Respondent's conduct in this regard was neither alleged, litigated, nor conclusively found by the Judge to be an unfair labor practice. In any event, I agree with my colleagues that regardless of whether the Re- spondent's conduct in this regard constituted an unfair labor practice and, if so, a sufficiently serious one so as to render the strike m protest against that conduct protected, the Respondent effectively condoned the strike As discussed infra, it is the poststrike conduct of the Charging Parties, and specifically whether that conduct was protected under the Act, that is at issue between my colleagues and me. 2 It is not clear from the record whether Grindel or Stringer, or each in turn, was speaking. Why you give the job to Emarco? These people don't work. They never pay their bills. They don't have capital enough to do the work. They ain't got no credit nowhere. They can't finish the job. [Al Makuta, the Respondent's president] was no god damn good plus. . . he was a son of a bitch. They should give the job to somebody else good, because this company is no god damn good. This job is too damn big for them. They ain't big enough to finish the job. It will take a couple of years to finish the job.3 The next morning, 11 May, Poleri met Makuta at the jobsite. Poleri asked Makuta, "[W]hat kind of man are you? Are you going to finish the job?" When Makuta replied that he would and asked Poleri why he was asking such a question, Poleri recounted to Makuta the former's conversation with Grindel and Stringer the day before. Accord- ing to Poleri: I wanted speed. I wanted to, know why the strike was on for. [I wanted to make sure he would finish the job]. . . . I told [Makuta] be- cause I want no trouble in the job, because when they tell you "He ain't got no credit, they can't finish the job, and he can't pay" . . . that's why I asked him. Makuta decided not to reinstate Grindel and Stringer because of their disparaging remarks to General Contractor Poleri about the Respondent's financial stability and performance capability.4 My colleagues find that the Respondent's refusal to reinstate Grindel and Stringer because of their disparaging remarks about the Respondent to Gen- eral Contractor Poleri was unlawful, because those 3 In creditmg Poleri's testimony about his conversation with Grindel and Stringer, the judge characterized Polen as an "excitable witness" who had considerable difficulty in understanding and expressing himself in English. The Judge also found that Poleri seemed "confused at times" and had a "natural inclination to exaggerate" Nevertheless, the Judge found that Polen had no reason to misstate the contents of this conversa- tion He therefore credited Poleri's testimony, although admonishmg that it was an "exaggerated version" of what Grmdel and Stringer actually said. However, inasmuch as the latter two individuals simply denied making the statements attributed to them by Poleri, it would be pure speculation to imagine a "less exaggerated" version of what Grindel and Strmger said. I decline to engage in such speculation, and I note that the Judge similarly refrained from doing so Polen's testimony is on the record and is credited I rely on it, and not on some unspoken, unsur- mised "less exaggerated" version. 4 Subsequently, on 20 July, the Respondent did offer reinstatement to both Grindel and Stringer, but these offers were refused EMARCO, INC. 837 remarks were protected by Section 7 of the Act. I disagree. At the outset, I note that the labor dispute be- tween the Respondent and the employees had been resolved, and the strike had ended, 2 days before Grindel and Stringer made their disparaging re- marks about the Respondent to Poleri. I also note that Grindel and Stringer were well aware that the dispute had been resolved and the strike ended at the time they disparaged the Respondent. Indeed, Grindel and Stringer themselves told Poleri at the start of their 10 May encounter that the Respond- ent was no longer on strike, and that two other employees had already been reinstated. Thus, my colleagues overstate the situation when they imply that Grindel and Stringer, in attacking the Re- spondent's fmancial and operational reputation, were engaged in concerted activity to compel the Respondent to make fund payments in compliance with the terms of the collective-bargaining agree- ment. As seen, at the time of the incident in ques- tion, the Respondent was already in compliance with the collective-bargaining agreement—and Grindel and Stringer knew it.5 My colleagues are also inaccurate in their char- acterization of Grindel's and Stringer's statements as "an extension of a legitimate and ongoing labor dispute which predated the strike and of which the strike proper was only one manifestation." First, there was no "ongoing labor dispute which predat- ed the strike." Second, there was no manifestation of the instant labor dispute other than the strike itself. As to the first while it seems clear that the Re- spondent had indeed been repeatedly late in making its payments to the welfare and pension fund, my colleagues cite no evidence in support of their assertion that this matter had become the sub- ject of an ongoing labor dispute at any time prior to the April-May events in question here. Indeed, Charging Party Grindel himself testified that in the past, prior to the instant events, when the Respond- ent got behind in payments to the welfare and pen- sion fund, "we would try normally to handle it within the company itself, and not involve the Union or anybody else in it, we would have a talk 5 NLRB v City Disposal Systems, 465 U.S 822 (1984), cited by my col- leagues in this regard, is factually inapposite to the instant case Unlike the case at hand, in which the contractual dispute—late payments into the welfare and pension fund—had unquestionably been resolved at the time the Charging Parties launched their attack on the Respondent's rep- utation, the precise contractual question in City Disposal—whether a par- ticular garbage truck was in fact in "safe operating condition"—remained unresolved throughout the course of that proceeding. Indeed, resolution of that contractual question was determined to be immaterial to resolu- tion of the case itself, winch involved only the issue of whether the asser- tion by as individual employee of a right grounded in a collective-bar- gaining agreement constitutes concerted activity within the meaning of Sec. 7 of the Act—an issue obviously not present in the instant case. with them and normally it was paid." Charging Party Stringer also recalled "discussing" pensions with the Respondent's business manager on one oc- casion, but he had "no idea when that was." The Respondent's clerk, Patricia Grier, testified that in the past, when the employees or the Union's busi- ness agent contacted her about delinquent pay- ments to the welfare and pension fund, she would "take care of it and get it paid." Contrary to the assessment of my colleagues, the situation de- scribed by Grindel, Stringer, and Grier is hardly the stuff of an "ongoing labor dispute." As to my colleagues' assertion that the strike was not the only manifestation of the instant labor dis- pute, they offer no evidence of any other such man- ifestation. I find none. The starting point and standard for analysis of questions about whether employee activity which generally might be protected under Section 7 of the Act has under the circumstances been carried beyond the scope of that protection was set out more than 30 years ago by the Supreme Court, in the landmark case of NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). In Jefferson Standard, technicians employed by a radio and television station picketed the station during contract negotiations to protest the compa- ny's refusal to agree to arbitration for discharges. After 6 weeks of picketing, several technicians dis- tributed it handbill bearing the signature "WBT Technicians" which attacked the quality of the company's product and its business policies. The company discharged 10 technicians for sponsoring or distributing the handbill. The Board found that nine of the discharged employees had sponsored or distributed the handbill, and that in doing so they had failed to disclose their ultimate purpose—"to extract a concession from the employer with re- spect to the terms of their employment"—and in- stead "purported to speak as experts, in the interest of consumers and the public at large." Jefferson Standard Broadcasting Co., 94 NLRB 1507, 1511 (1951). The Board found the handbill's subject matter unrelated to the technicians' employment re- lationship and therefore unprotected under Section 7 of the Act. The Supreme Court agreed. More specifically, the Court agreed with the company's interpretation of the handbill as a "demonstration of such detrimental disloyalty" as to provide the company with just cause for its discharge of the 6 I make this determination with both a knowledge of the literal defini- tion of the term "labor dispute" in Sec. 2(9) of the Act as well as an as- sessment and appreciation of the record evidence, summarized above, of such a "labor dispute" in the instant case. 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees responsible. 7 The Court stated, "There is no more elemental cause for discharge of an em- ployee than disloyalty to his employer." In lan- guage remarkably apt to the instant case, the Court found that: Their attack related itself to no labor practice of the company. It made no reference to wages, hours or working conditions. The poli- cies attacked were those of finance and public relations for which management, not techni- cians, must be responsible. The attack asked for no public sympathy or support. [The handbill] attacked public policies of the company which had no discernible relation to [the labor] controversy.9 Thus, Jefferson Standard teaches that even if em- ployees are arguably engaged in concerted activity, if the nature of their action involves a malicious attack on the products, services, or reputation of their employer, unrelated to any dispute over terms or conditions of employment, their activity will lose the protection of Section 7 of the Act and pro- vide their employer with just cause for their dis- charge. It is clear, and my colleagues agree, that the Re- spondent denied reinstatement to Grindel and Stringer solely because of their disparaging state- ments about the Repondent's financial and oper- ational capabilities to General Contractor Poleri. Applying the well-settled principle of Jefferson Standard to the instant facts, I fmd, contrary to my colleagues, that Grindel's and Stringer's attack on the Respondent was not protected by Section 7 of the Act. Given the totality of the circumstances here— that the labor dispute in question had already been resolved and the strike ended at the time Grindel and Stringer made their attack on the Respondent; that Grindel and Stringer were fully aware of that circumstance at the time; that the disparaging re- marks of Grindel and Stringer did not even men- tion the Respondent's past failure to make timely payments to the welfare and pension fund—the re- marks of Grindel and Stringer constituted a broad- side, reckless, and malicious attack on the general financial and operational integrity of the Respond- ent, resulting in a public disparagement of the Re- spondent's business reputation in the community, not related to any existing labor dispute, 1 ° not 7 346 U.S. at 472. 8 Id. 9 Id. 346 U.S. at 476. " Community Hospital of Roanoke Valley, 220 NLRB 217 (1975), relied on by my colleagues as support for their contrary assessment, i e., that the remarks of Grindel and Stringer were related to the Respondent's practice of untimely payments to the pension and welfare fund is rills- based on any factual information, and far beyond the scope of the protection of Section 7 of the Act. Under these circumstances, there was ample just cause for the Respondent to deny reinstatement to Grindel and Stringer." Nevertheless, my colleagues would excuse all this and cloak it with the mantle of Section 7 pro- tection on the asserted grounds that the statements of Grindel and Stringer to General Contractor Poleri were made "in the context of an emotional labor dispute clearly identified as such to Poleri." However, as seen above, these statements were clearly not made in the context of a labor dispute, emotional or otherwise. The delinquent payments had been made, the strike had ended, two employ- ees had already been recalled, and Grindel and Stringer were well aware of all this at the time.12 placed. In my view, Community Hospital is inapposite to the instant case and provides no support for the result reached by my colleagues here. In Community Hospital, the employer violated' the Act by taking ad- verse personnel actions against two employees (nurses) m order to (as found by the Board) control, contain, or at least channel the organiza- tional efforts of the nursing staff. The Board found pretextual the em- ployer's asserted defense that it took these adverse personnel actions be- cause the two employees m question had publicly (letters to editors; tele- vision interviews) complained about low pay and nursing shortages in general, and at the employer's hospital in particular. The Board rejected the employer's contention that one of the nurses in question, Weinman, had gone beyond the scope of protection of Sec. 7 of the Act when she stated publicly that there were nursing shortages on some shifts at the employer's hospital, caused by low pay and poor benefits. The Board af- firmed the administrative law judge's finding that: [T]he Respondent concedes that what Weinman said was true and I have found above there were no reasonable grounds for the Re- spondent to conclude that the viewing audience was misled to the detriment of the hospital's public image I have also found that Wemman's statement was made in a context of, and was specifically related by her to, the employees' efforts to improve wages and working conditions, Nor it there any evidence at all that Weinman deliberately intended to alienate the public by impugning the quality of the hospital's patient care. In this regard, the judge, affirmed by the Board, also noted that there was no evidence that Weinman's remarks were calculated to expose the employer to public contempt. Thus, I find Community Hospital to be fundamentally inapposite to the instant case, in which the remarks of Grindel and Stringer were not shown to be true, Poleri clearly was misled by the remarks of Grindel and Stringer, to the detriment of the Respondent's image in the business community; and it is equally clear that Grindel and Stringer fully intend- ed to expose the Respondent to public contempt, and to alienate Poleri, by impugning the Respondent's financial and operational integrity. ii See Jefferson Standard Broadcasting, supra; Sahara Datsun, 278 NLRB 1044 (1986); Studio S.J.T , 277 NLRB 1189 (1985) (employee Fast), Stanley Furniture Co. 271 NLRB 702 (1984), American Arbitration Assn., 233 NLRB 71(1977); Firehouse Restaurant, 220 NLRB 818 (1975). See generally my dissenting opinion in Mitchell Manuals, 280 NLRB (1986); Philander Smith College, 246 NLRB 499, 505-507 (1979) (general discussion of instant issue, specific finding of protected activity). Cf. American Hospital Assn., 230 NLRB 54, 57 (1977) (leaflets critical of em- ployer found protected when, inter alia, not distributed to general public but kept within confines of employer's business). 72 Thus, my colleagues' reliance on Richboro Community Mental Health Council, 242 NLRB 1267 (1979), and NLRB v. Owners Mainte- nance Corp, 581 F 2d 44 (2d Cir 1978), in this context is misplaced. In Rrchbom, the subject of the labor controversy—an allegedly discriminato- ry discharge of an employee—had not been remedied or otherwise re- solved at the time the assertedly unprotected letter, in that case was writ- ten Likewise, in Owners Maintenance, the allegedly discriminatory dis- charges of two employees had not been resolved at the time of the asser- tedly unprotected leafletting in that case EMARCO, INC. 839 However, my colleagues assert—without factual support—that the arrearage in payment which led directly to the instant strike "was merely the latest" (thus, impliedly, not the last) in a series of delinquent fund payments. On the basis of this con- jecture (and notwithstanding the contemporaneous payment in full of arrearages by the Respondent and cessation of strike activity by the employees), my colleagues imply that the employees could rea- sonably anticipate that the Respondent would resume its practice of tardy fund payment. From this, my colleagues reason that the problem of de- linquent fund payments had not really been re- solved after all, the labor dispute over such late payments was therefore still ongoing, and Grindel and Stringer were therefore still embroiled in this so-called ongoing emotional labor dispute when they made their disparaging remarks about the Re- spondent to Poleri, 2 days after the payment of all delinquent obligations and the end of the strike. I simply cannot agree with such a speculative analy- sis, and I choose not to follow the attenuated course laid out by my colleagues in their finding that Grindel and Stringer were engaged in protect- ed activity." Finally, my colleagues also assert that to deny the protection of Section 7 of the Act to the type of statements in question here "would nullify the rights" guaranteed by that section. I fail to see— and my colleagues fail to enlighten me—how deny- ing the protection of the Act to the instant reckless and malicious attack on the financial and operation- al integrity of the Respondent, where the state- ments in question are unrelated on their face to any particular term or condition of employment, would nullify the organizational, collective-bargaining, or mutual aid and protection rights set forth in Sec- tion 7 of the Act.14 13 In this regard, I do not, contrary to the assertion of my colleagues, view the Respondent's payment of arrearages as "terminating the em- ployees' right to discuss it or engage in other protected concerted activi- ty." Had Grindel and Stringer simply "discussed" with Poleri the Re- spondent's practice of making untimely payments into the welfare and pension fund—the undisputed and openly acknowledged cause of the strike—they might not have been denied reinstatement by the Respond- ent. But instead of "discussing" the Respondent's practice of late fund payments with Polen, Gnridel and Stringer simply launched into a sweeping attack on the Respondent's fiscal and operational integrity—an attack that I likely would have found to be unprotected in this case even if it had been made during the strike, prior to the Respondent's payment of overdue fund contributions. 14 Nor does Atlanta Newspapers, 264 NLRB 878 (1982), relied on by my colleagues in this regard, persuade me to the contrary. In that case, a nonunit employee was discharged for spreading a strike rumor She had asked a supervisor whether he had heard that employees in the unit were going to go on strike, and had later, under questioning, advised a man- agement official that she had earher been told by another employee that such a strike would occur. The Board found the discharge to be unlaw- ful, on the grounds that the nonumt employee's remarks to the employ- er's officials were related to the protected strike activity of the unit em- ployees; the fact that the nonumt employee did not demonstrate that she supported the rumored strike was not found to have disqualified her re- Thus, for all the reasons discussed above, I find that the statements of Grindel and Stringer dispar- aging the Respondent's general financial and oper- ational capability and integrity are beyond the scope of the protection of Section 7 of the Act and constitute just cause for the Respondent's denial of reinstatement to these two employees. According- ly, I would dismiss the complaint in its entirety, marks as protected activity. Although I may not have reached the same result in Atlanta Newspapers as the Board did, I find it unnecessary to re- solve that question, because the case itself is so clearly inapposite to the instant facts. Here, there are no indirect references to a rumored strike in a different work unit; here, there are instead direct and dehberate dispar- agements of an employer's financial and operational integrity, in a con- text unrelated to any existing labor dispute. Thus, Atlanta Newspapers provides no support for my colleagues' position in this case. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to reinstate employees who have participated in a strike because of their par- ticipation in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make the employees unlawfully denied reinstatement because of their protected concerted activities whole for any loss of pay and other bene- fits they may have suffered, with interest. WE WILL remove from our files any references to the unlawful failure to reinstate and notify the employees unlawfully denied reinstatement in writ- ing that we have done so and that we will not use our unlawful Action against them in any way. EmAaco, Robert Kofman, Esq. and Larry Rappoport, Esq., for the General Counsel. Robert Ufberg, Esq. (Rosenberg and Ufberg), of Scranton, Pennsylvania, for the Respondent. DECISION KARL H. BUSCHMANN, Administrative Law Judge. This case arose on the filing of two charges on June 11, 1979, 1 one filed in Case 4-CA-10265-1 by William F. 1 All dates are 1979, unless otherwise stated. 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Grindel and the other filed in Case 4-CA-10265-2 by Kevin Stringer. The consolidated complaint issued on July 30 and alleged that the Respondent, Emarco, Inc., had violated Section 8(a)(1) and (3) of the National Labor Relations Act by its failure and refusal to reinstate the two Charging Parties pursuant to their unconditional offers to return to work following a strike by Respond- ent's employees. Respondent's answer, filed on August 10, denied that it had violated the Act and asserted that unconditional offers to return to work had not been made. A hearing was held on June 30 and July 1, 1980, in Wilkes-Barre, Pennsylvania. The General Counsel's brief, filed on August 26, 1980, submits the following three issues: (1) Whether the strike by Respondent's employees was protected by Section 7 of the Act. (2) Whether an unconditional offer to return to work was made by or on behalf of William Grindel and Kevin Stringer. (3) Whether Grindel and Stringer engaged in such se- rious acts of strike misconduct so as to lose the protec- tion afforded employees by Section 7 of the Act. Respondent's brief was filed on September 21, 1980. On consideration of the entire record and my observa- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FAC"T The Respondent, Emarco, Inc., is a Pennsylvania cor- poration with its principal place of business in Hazelton, Pennsylvania. Respondent is engaged in the construction, repair, and service of elevators in northeastern Pennsyl- vania and has purchased and received, during the past year, goods valued in excess of $50,000 from firms locat- ed outside the Commonwealth of Pennsylvania (Tr. 8-9). During the material time, Respondent's president was Al Makuta (Tr. 95), and its secretary treasurer and business manager was John Makuta, Al Makuta's son (Tr. 15-16). Respondent employed William Schreuder, William Grin- del, Gerry Setta, and Kevin Stringer as mechanics (Tr. 25-26, 241), and Carl Makuta, classified as a helper. On occasion, he performed office and sales work (Tr. 26, 28). The International Union of Elevator Constructors, Local 76 (the Union) operates within the Scranton!- Wilkes-Barre area and is the collective-bargaining repre- sentative of Respondent's employees. The Union's business agent during all material times was Michael Barrett (Tr. 78). The Union and Respond- ent, as a member of the National Elevator Industry, Inc. (NEII), had entered into a standard agreement, effective from July 9, 1977, to July 8, 1982 (Tr. 281-282, G.C. Exh. 11). This agreement provided for a full grievance and arbitration procedure (G.C. Exh. 11, art. XV) and contained a no-strike clause that read, in pertinent part, as follows: Par. 1 It is agreed by both parties to this agree- ment that so long as the provisions herein contained are conformed to, no strikes or lockouts shall be or- dered against either party.. . . Par. 2 No strike will be called against the Em- ployer by the Union unless the strike is approved by the International Office of the International Union of Elevator Constructors. Sufficient notice shall be given to the Employer before a strike shall become effective. Under this same agreement, Respondent was also obli- gated to make payments on behalf of its employees to the Union's welfare and pension plan (G.C. Exh 11, arts. XVII and XVIII). However, Respondent had developed a practice, between 1976 and 1980, of making late pay- ments to the pension plan (Tr. 54-55, 202, 305-306, 321; R. Exhs 3 and 4). In the past, Respondent was often 1 or 2 months, and sometimes 3 months late with its sched- uled payments (Tr. 54-55, 321-312). As of April, Respondent was delinquent in its payment of the November 1978 through March 1979 contributions to the plan, a period of 5 months. On April 3, Respond- ent's employees sent Respondent a letter expressing their concern over the nonpayment under the plan a because the First Bank of Pennsylvania (the Bank) informed them that it would no longer honor medical bill 3 or death ben- efits and that the employees would not be eligible for un- accumulated retirement benefits. The employees' letter set forth the following ultimatum to Respondent (G.C. Exh. 2): Therefore, Emarco employees have decided that if all monies due to the fund are not paid by April 20, 1979, said employees will not report to work. On April 5, Respondent called a meeting of its me- chanics at Misaro's Sun Valley Inn in Drums, Pennsylva- nia (Tr. 18, 174, 253). John Makuta was Respondent's spokesman; Gloria Makuta and Pat Grier, both secretar- ies, were also present for Respondent. The mechanics who were present were Grindel, Stringer, Setta, and Schreuder, the latter as the main spokesman for the em- ployees (Tr. 54, 128, 174). The participants discussed the April 3 letter and the pension welfare problem (Tr. 19, 194, 265, 347), and the employees expressed their con- cern about unpaid medical bills (Tr. 128, 195, 243). John Makuta, Gloria Makuta, and Jerry Setta, an employee, all testified that John's response to the April 3 letter was that he "would take care of it" (Tr. 18-19, 244, 348). Stringer recalled that John was going to discuss it with his father, and that he stated "they were kind of tight on money and they would either have to buy, parts or pay the Pension Welfare or not have the parts." Stringer was not clear as to what was going to be done about the funds payment (Tr. 129, 146).. Grindel recalled that "it was hashed around for a good half hour, 35 minutes, anyway, Bank [sic] and forth, that this should be paid or it shouldn't be paid" (Tr. 174-175). Grindel also was up in the air about what was going to be done because "John said he would try to have the money, he would 2 Union Business Agent Barrett as well as employees Grindel, Schreuder, Setta, Thornteth, and Stnnger were all signatones to this letter (G.C. Exh. 2). 3 One employee had two outstanding medical bills that were not hon- ored by the Bank, at this time (G.C. Exh. 2) EMARCO, INC. 841 let us know about a week ahead of time" (Tr. 195). Al- though no direct reference to a possible strike was made at the meeting, Grindel did tell Makuta that "it had to be paid, we made an agreement among the men and that's the way it has got to stand," an obvious reference to the ultimatum of the April letter (Tr. 175, 195). Stringer tes- tified that on April 6 he called John Makuta to ask if he had discussed the pension and welfare problems with his father, Al Makuta. John replied that they were still dis- cussing it (Fr. 129-130, 154). Respondent mailed the funds payment check on the afternoon of Thursday, April 19 (Tr. 57, 61, 244-245, 271). At this time, John Makuta showed Bill Schreuder the check and accompanying form to indicate that Re- spondent had made the payment (Tr. 21, 57, 331-332). Schreuder passed on this information to Stringer some- time between April 20 and 23 (Tr. 147-148). Makuta tes- tified that he thought the matter was settled as of April 19 and that there would not be a strike (Tr. 332). On the afternoon of Friday, April 20, Grindel called John Makuta to find out if payment had been made. Makuta told him the check had been mailed (Tr. 191, 200-201). Grindel then explained that he was calling during his shift because he wanted to determine whether he should leave his tools at his current jobsite. He told Makuta, "I would have to pack my tools if it wasn't [paid]," as an obvious reference to the threatened strike. Grindel later called Leigh of the First Pennslyvania Bank and discovered that the Bank had not yet received the check (Tr. 192). 4 In fact, subsequently, all the strik- ers called Leigh at various intervals to inquire about the payment (Tr. 148). Over the weekend, the employees decided that if Re- spondent's check was not at the Bank by Monday, April 23, they would not report to work (Tr. 166-167, 193). Schreuder called the Bank early Monday morning, and when he was informed that it had not received the check, all four mechanics refused to report to work as stated in the April 3 letter (Fr. 20, 193). Stringer contact- ed Union Business Agent Michael Barrett sometime be- tween April 20 and 23, after the employees decided to strike (Tr. 167-168), but Respondent first learned of the strike that morning, April 23, when Schreuder refused to work (Fr. 21-22, 96, 247). Schreuder explained that Union Business Agent Barrett told the men not to report to work because the check had not been received at the Bank (Tr. 22, 60, 62). The strike lasted until May 7 or 8 when the Bank finally received Responddent's Novem- ber 1978-March 1979 payment check (Tr. 34-35, 102, 181-182, 277; G.C. Exh. 4). On May 8, Setta and Schreuder returned to work after Al Makuta had recalled them (Tr. 22-23, 35). However, Respondent did not recall Grindel or Stringer. 6 When the Bank had not received Respondent's check by April 26, Respondent stopped payment on the April 19 check and sent a new check, special delivery, to cover the November-March payment (Tr. 63- 64, 275-276; R. Exhs. 1 and 2). Because the check was not certified, Re- spondent had to wait until the check cleared before the Bank would say that payment was made and authorized the employees to go back to work (Tr. 64-65). The Bank notified Respondent that it had received both checks on May 6 or 7 (Tr. 277) On May 8, Union Business Agent Barrett called Union Vice President George Koch 6 to inform him that Re- spondent's employees engaged in a strike and that only two of the four strikers had been reinstated (Tr. 84, 87, 89). Koch called John Makuta to find out why Grindel and Stringer had not been put back to work. Makuta told him that they had problems just getting back to work, and assured Koch that the two men would be back to work the following morning, May 9.6 On the morning of May 10, Grindel and Stringer went to Respondent's jobsite at St. Joseph's Hospital in Hazel- ton, Pennsylvania, to check whether anyone was work- ing there (Tr. 132, 160, 183). Respondent was the sub- contractor responsible for the construction of a hydraulic elevator system (Tr. 106-107). As Grindel and Stringer were leaving the site, Vito Poled, the general contractor, came over to them and asked them to move their car (Tr. 183, 205-206). One of the two men asked if anyone was working on the elevator job. Poleri replied that they were on strike. Grindel or Stringer then explained to Poled that the stike was over, but that only two men had been recalled (Tr. 132-133, 161-162, 183-164). When Poled asked what had caused the strike, the men ex- plained that the strike occurred because Respondent was 5 or 6 months behind in its pension and welfare pay- ments. Poleri asked why Repondent had failed to make these payments; they answered that Respondent did not have the money (Fr. 133, 162, 184). Poleri's testimony about this incident went further. He testified that Grindel and Stringer told him they were on strike "because they don't pay back pay" (Fr. 220, 228- 229). Poleri testified further that these two men made the following remarks7 about Respondent and about Al Makuta personally (Tr. 221, 222, 228): They told me, "why you give the job to Emarco? These people don't work. They never pay their bills. They don't have capital enough to do the work. They ain't got no credit nowhere. They can't finish the job." That Al was no god damn good plus they said he was a son-of-a-bitch. . . . . They should give the job to somebody else good, because this company is no god damn good. . . . "This job is too damn big for them. They ain't big enough to finish the job. It will take a couple of years to finish the job." 5 Koch had been Regional Director of the New York State New Eng- land region since 1971 and union vice president since 1966 (Ti. 76-78). Koch "pinch hits" for Pennsylvania Regional Director John McCarton whenever he is unavailable (Tr 78, 86-87). 6 Makuta acknowledged that this conversation took place, but denied that he promised the men would return to work the next day. Makuta claims he told Koch that he would discuss tt with his father, but that he saw no problem, and that the men would be back as soon as possible (Fr. 36, 71). 7 Grindel and Stringer denied making any of these comments (Fr. 133, 160, 184, 206-207) 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD They said they never go back to work again unless they got back pay. Poleri was an excitable witness, he had considerable dif- ficulty in the English language, for example in under- standing the questions of counsel and in expressing him- self. He seemed confused at times and could not remem- ber the date of this conversation, nor the day of the week on which it occurred (Tr. 220, 224-225). However, beyond his natural inclination to exaggerate, he had no reason to misstate the incident. I therefore credit Poleri's testimony, keeping in mind that the quoted language was an exaggerated version of the actual statements of Grin- del and Stringer. - Later that day, sometime before noon, Grindel and Stringer were driving past the Scranton Life Building in Scranton, Pennsylvania, when they saw one of Respond- ent's trucks. They stopped and saw Schreuder. Grindel first spoke with Schreuder and then asked Al Makuta about the work situation, stating, "You knew we wanted to go back to work." Makuta replied that it was up to them to call him. When Grindel mentioned that he had called the other two back to work, Makuta said he would be in touch (Tr. 85-86, 208, 290). That day Al Makuta left word with his answering service to call Grindel in the event of an emergency (Tr. 290). That night Grindel was actually called to work on an emer- gency basis, but refused because he was at a fellow em- ployee's house and did not have the tools or his car with him (Tr. 180-181, 290-291). On the morning of May 11, Grindel called in and talked with the secretary, Pat Grier, explaining why he had not responded to the emer- gency call (Tr. 187, 208-209, 210). On the morning of May 11, Al Makuta went to check on the jobsite at St. Joseph's Hospital and spoke with Poleri. Poleri recounted his version of the previous con- versation with Grindel and Stringer. On hearing this, Makuta testified that: "I blew my cork. When I heard this, because I couldn't believe it from these two people, who I trusted" (Tr. 98, 108). Makuta further testified that, at this point, he made the decision not to rehire Grindel and Stringer. He stated that: "[T]hey would have went [sic] back to work. . . . When I went up on the St. Joseph's job on Friday morning, and Vito Poleri hit me with that, I just went through the overhead, I couldn't believe that my men would speak so ill of me . . . . That was the crowning glory as far as I was con- cerned" (Tr. 307-308). That afternoon, Koch called Al Makuta to see why Grindel and Stringer had not yet been put back to work. Makuta testified that he told Koch: "I will in no way hire them back because they bad-mouthed me, called me a son-of-a bitch, and I just flatly told him that I was never going to take these people back again" (Tr. 286). Stringer and Grindel were not recalled by Respondent until July 20. By the time, they declined Respondent's offer of reinstatement (Tr. 313-314). Analysis It is clear that the strike by Respondent's employees was prompted by Respondent's failure to make its con- tractually required payments to the Union's pension and welfare plan, Although Respondent had made late pay- ments in the past, they were approximately 5 months in arrears at the time of the strike. Employees were under- standably concerned because the Bank had ceased to honor medical bills and had warned them of lost retire- ment and death benefits. This concern was clearly ex- pressed to Respondent in the employees' April 3 letter and during the April 5 meeting. Two of the employees promptly returned to work as soon as they were able to confirm that payment had been effectuated, and Grindel and Stringer, the other two employees were willing to return to work on the same day. The strike, from April 23 to May 8, was no more than a protest against Re- spondent's failure to comply with its contractual obliga- tion.8 Respondent asserts, however, that the employees lost the protection of the Act and, therefore their reinstate- ment rights, by engaging in an illegal strike in breach of the no-strike clause contained in article XIV of the standard agreement. Because the strike was illegal and employee conduct was unprotected, Respondent claims that it was free to reinstate or not to reinstate the em- ployees. It is well established that an employee's right to par- ticipate in an unfair labor practice strike is not waived by a general no-strike clause contained in the collective-bar- gaining agreement. Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956). However, the Board has held that, in the face of a no-strike clause, employees are free to par- ticipate in only those unfair labor practice strikes that "serious" or "flagrant" unfair labor practices. Arlan's De- partment Store, 133 NLRB 802 (1961); Dow Chemical Co., 244 NLRB 1060 (1979), enf. denied 636 F.2d 1352 (3d Cir. 1980). In Arlan 's, the Board held an employee strike in violation of a no-strike clause to be unprotected activi- ty. The dispute, centered on the discriminatory discharge of a fellow employee, was not deemed to be "serious" in that it was not "destructive of the foundation of which collective bargaining must rest" 133 NLRB at 808. In Dow, the Board retained this general rule and held that an employee strike, in protest of the employer's unilater- al change in the work schedule, but also in violation of the contractual grievance procedures, constituted pro- tected activity. Whether an employer's unfair labor practices are "seri- ous" depends on their tendency to be "destructive of the foundation on which collective bargaining must rest." Mastro Plastics Cc'rp. v. NLRB„ supra, 350 U.S. at 280; NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974). Exam- ples are practices "such as massive discharges; complete repudiation of the bargaining obligation; unlawful assist- ance and support to a rival union; or a company cam- paign, intended to fire unionists."9 Were Emarco's unfair labor practices, i.e., its failure to make timely payments to the welfare and pension plans, so flagrant that it ad- versely affected the established bargaining relationship and undermined the contractual obligation so as to be destructive of the very foundation on which collective 8 The complaint did not contam a separate violation of Sec. 8(a)(5) of the Act. 9 Dow, supra, concurring opinion, and cases cited. EMARCO, INC. 843 bargaining is based? On the record before me, I cannot draw such a conclusion. First, the employees could have challenged Respond- ent's longstanding habit of making untimely payments to the pension and welfare plans at any time under the grievance procedure, and Respondent's unusually long delinquency in April 1979 could equally have been re- solved successfully under this procedure; for the record shows that Respondent attempted to take corrective action in response to the Union's letter of April 3 and the subsequent meeting with the affected employees. Second, the Respondent exhibited a cooperative atti- tude towards the employees' legitimate concerns and ac- tually attempted to make required payment prior to the commencement of any strike. Emarco did not express an intent to abrogate its contractual obligation, but encoun- tered difficulties in its cash flow. They were the underly- ing reasons for the delinquent payments. Finally, the strike, seemed to be an overreaction by the employees as a result of their distrust of Respond- ent's ability to pay. Even after management showed to one of the employees the letter and check addressed to the Bank in an effort to allay their concerns, the employ- ees struck until the Bank was able to confirm the pay- ment. For the foregoing reasons, I cannot agree that Re- spondent's unfair labor practices were of such a serious nature so as to justify a fmding that the resulting strike, which was not in accord with the provisions of the con- tract, was protected activity. Respondent was according- ly not obligated to reinstate the striking employees be- cause employees who engage in an illegal strike are not protected by Section 7 or 13 of the Act. The record is, however, clear that Respondent's actual reasons for this failure to reinstate Stringer and Grindel were not the employees' strike activity but a combination of lack of work and, especially, the "bad mouthing" inci- dent on May 10. For two of the striking employees were recalled on May 8, and Respondent expressed its inten- tion to reinstate Stringer and Grindel as soon as possible. Parenthetically, I do not agree with Respondent that these employees failed to make an unconditional offer to return to work. An application for reinstatement of those two employees was made by Koch in his May 8 conver- sation with John Makuta. Respondent's claim that this call was merely a "check-up" to see why the men had not been recalled is an obvious misinterpretation of the signficance of the telephone call. Makuta understood Koch's phone call for what it was, namely, a request for reinstatement on behalf of Grindel and Stringer. John Makuta admitted that the "gist" of Koch's call was that "he [Koch] wanted to get the men right back to work." Assuming that the men would be back to work the next day, Koch did nothing more until Barrett informed him, on May 11, that the men had not yet been recalled. Koch again called Respondent and, this time, spoke with Al Makuta. At that point, Makuta told Koch, that he would not hire them back "because they bad-mouthed" him. This response indicated that Makuta understood Koch's call to be seeking, reinstatement for Grindel and Stringer and that Makuta had rejected the offer. This re- jection was reiterated in his May 25 letter to Barrett (G.C. Exh. 9). Was the Respondent, therefore, obligated to reinstate the two men based on the theory of "condo- nation"? Because Respondent initially reinstated two of the strikers and then expressed its intention to reemploy Stringer and Grindel, it might be argued that their strike activity was "condoned" by their Employer and that the two Charging Parties were entitled to reinstatement absent any strike misconduct. 1° See St Luke's Memorial Hospital, 240 NLRB 1180, 1187 (1979). Indeed, Respond- ent concedes "that the sole reason the two alleged discri- minatees were not reinstated was their remarks of May 9 or 10 to Vito Poleri about their company and its presi- dent" and not their strike in violation of the "no-strike" clause of the contract (R. Br. 24). But it is equally true, as Respondent argues, that this reason does not reflect any union animus. The condonation theory and the above line of reasoning would lead to the anomalous result that a respondent could be found to have unlaw- fully discriminated against two employees in the absence of any antiunion motivation. Instead, I find, that when the four employees engaged in the strike in violation of the contract, their conduct was unprotected by the Act, and the law will not assist them, even if the Employer condoned this conduct, unless it engaged in subsequent discriminatory conduct prompted by union animus. CONCLUSIONS OF LAW 1. Respondent Emarco, Inc. is and was at all material times an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Union of Elevator Con- structors, is and was at all material times a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) or (3) of the Act as alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] 10 The employees' characterization of Makuta as a "son-of-a-bitch" and their reference to Respondent's inability to pay its bills, lack of a solid credit rating, and incapacity to finish a job did not constitute such serious misconduct under the circumstances here so as to nulhfy their rein- statement rights following protected activity The employees' statements, apart from the name-callmg, were obviously not malicious falsehoods. These remarks reflected, to an extent, the employer's actual inability to meet its financial obligations