Columbia Portland Cement Co.

410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Columbia Portland Cement Company and Donald E. Fisher and United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL-CIO affiliated with Cement, Lime, Gypsum and Allied Workers Division , Interna- tional Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, AFL-CIO and Paul H. Slack and Marvin L. Baker Jr. and Robert L. Barrett and Robert Wartenbe. Cases 8-CA-18063-3, 8-CA-18117, 8-CA-18343-1, 8-CA-18207-1, 8-CA-18220- 1, 8-CA-18221, and 8-CA-18283 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 24, 1988, Administrative Law Judge Peter E. Donnelly issued the attached deci- sion. The General Counsel and Respondent filed exceptions and supporting briefs. 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified. In agreeing with the judge that the Respondent violated Section 8(a)(5) of the Act by insisting that grievances filed during the hiatus between contract expiration and the Respondent's implementation of its proposal be processed in accordance with the ' The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative 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 (3d Cir. 1951 ) We have carefully examined the record and find no basis for reversing the findings The General Counsel has excepted to the judge's finding that the stoke misconduct of Bradford Jordan was sufficiently serious to warrant his discharge, contending, inter alma, that the Respondent extended an offer of reinstatement to Jordan after two of the incidents of misconduct had occurred We note that subsequent to the offer of reinstatement a third coercive incident took place, which furnished a sufficient basis for Jor- dan's discharge even if the earlier misconduct had been condoned by the Respondent. Member Cracraft relies on all three incidents of strike misconduct in affirming the judge's finding that the Respondent terminated Jordan Thus, even if the Respondent was willing to reinstate Jordan after he had engaged in two incidents of misconduct during the strike, there is no evi- dence that suggests the Respondent condoned these acts of misconduct Furthermore, when Jordan once more became involved in a strike-related altercation, the Respondent was justified in considering the previous inci- dents in making its decision to terminate Jordan. We correct the following errors in the judge's decision in sec III,A,7,a,2, he referred to Michael Cnst as "Michael Christ", and in sec III,A,9, he stated that the strike had been called for 4 p .m rather than 4 a in and cited the date Larry Ousky arrived at the plant and production was resumed as March 8 rather than May 8 grievance procedure contained in the implemented proposal, we note that our decision in Indiana & Michigan Electric Co., 284 NLRB 53 (1987), does not prohibit all unilateral changes to the grievance procedure of an expired collective-bargaining agreement. Thus, the Board stated in Indiana & Michigan Electric: [I]n holding, as we do, that neither party can unilaterally abandon their grievance proce- dures . . . [w]e merely insist that changes in that dispute resolution system be made only after the parties concerned have agreed to them or otherwise adequately bargained over the matter. [Emphasis in original, id. at 55.] It is clear that when a valid impasse has been reached, the parties have "adequately bargained over the matter." Taft Broadcasting Co., 163 NLRB 475 (1967). Therefore , consistent with the Board's holding in Indiana & Michigan Electric, an employ- er may unilaterally change the grievance procedure of an expired contract through the lawful imple- mentation of a proposal after reaching a valid im- passe.2 The grievance procedure of the expired contract, however, remains in effect until a new employer proposal is lawfully implemented. Ac- cordingly, grievances filed before the date of im- plementation, such as those involved here, in effect invoke the procedure in the expired agreement and are filed with the expectation that they will be processed under that procedure . Although this ex- pectation may be annulled by mutual agreement, when a grievance is filed prior to the unilateral im- plementation of a new grievance procedure the reasonable expectations of the parties and the goal of orderly and clear resolution of industrial dis- putes are best met by requiring the application of the procedure in effect when the grievance is filed. Therefore, we agree with the judge's conclusion that the Respondent's insistence on the application of the new grievance procedure to previously filed grievances violated the Act.3 2 The Respondent's bargaining to impasse over a new grievance proce- dure would not, however , privilege its interference in the Union 's selec- tion of its grievance representatives . Mrssoun Portland Cement Co., 284 NLRB 432 fn 13 (1987) With respect to the Respondent 's refusal to meet with a retiree acting as an employee grievance representative, there is no showing through the contract language in light of the collective- bargaining history that the Union clearly and unmistakably waived the employees' right to select their grievance representatives 8 We note that, as found by the judge, under Indiana & Michigan Elec- tric the parties would not be required to process these grievances to arbi- tration In accordance with his concurring and dissenting opinion in Indi- ana & Michigan Electric, Member Johansen would find that the Respond- ent is further obligated to arbitrate these grievances because they in- volved specific provisions of the expired contract and therefore "arse under" the expired contract within the meaning of Nolde Bras v Bakery Workers Local 358, 430 U S 243 (1977). Continued 294 NLRB No. 29 COLUMBIA PORTLAND CEMENT CO 411 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Columbia Portland Cement Company, Zanesville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(d). "(d) Refusing to bargain collectively within the meaning of the Act with United Cement, Lime, Gypsum, and Allied Workers' International Union, Local No. 24, AFL-CIO affiliated with Cement, Lime, Gypsum and Allied Workers Division, Inter- national Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, AFL- CIO, as the exclusive bargaining representative of its employees in the appropriate unit by: refusing to process and arbritrate grievances filed prior to Sep- tember 5, 1984, under the terms of the expired con- tract; refusing to process grievances filed between September 5, and October 28, 1984, under the terms of the expired contract; insisting that griev- ances filed between September 5, and October 28, 1984, be processed under the grievance procedures of the implemented contract proposal of October 28, 1984." 2. Substitute the following for paragraph 2(e). "(e) Process, on request, through the grievance and arbitration procedures of the expired 1981- 1984 contract those grievances arising prior to the expiration of the 1981-1984 contract and filed in accordance with the grievance procedure con- tained in that contract." 3. Substitute the attached notice for that of the administrative law judge. As there are no exceptions to the judge's finding that the layoff griev- ances did not apse under the expired collective-bargaining agreement and were therefore not subject to a duty to arbitrate, Member Cracraft finds it unnecessary to pass on whether she would find the layoff grievances to be arbitrable 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 conduct investigatory interviews of employees after having denied their requests for union representation. WE WILL NOT threaten employees with suspen- sion for refusing to participate in investigatory interviews after having denied their requests for union representation. WE WILL NOT suspend, discharge, or otherwise discriminate against any employee for refusing to participate in investigatory interviews after having denied their request for union representation. WE WILL NOT refuse to bargain in good faith with United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL- CIO affiliated with Cement, Lime, Gypsum and Allied Workers Division, International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers & Helpers, AFL-CIO, as the ex- clusive bargaining representative of our employees in the appropriate unit by: refusing to process and arbitrate grievances filed prior to September 5, 1984, under the terms of the expired contract; re- fusing to process grievances filed between Septem- ber 5, and October 28, 1984, under the terms of the expired contract; insisting that grievances filed be- tween September 5, and October 28, 1984, be proc- essed under the grievance procedures of the imple- mented contract proposal of October 28, 1984. WE WILL NOT refuse to bargain in good faith with United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL- CIO affiliated with Cement, Lime, Gypsum and Allied Workers Division, International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers & Helpers, AFL-CIO, as the ex- clusive bargaining representative of our employees in the appropriate unit by: establishing a policy that only active employees can participate in the filing and processing of grievances; refusing to allow re- tired Union Grievance Committeeman Boyd Folden to participate in the filing and processing of grievance. WE WILL NOT discharge, suspend, or fail to rein- state any employee for participating in a strike or engaging in any other union or concerted activity protected by Section 7 of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights under Section 7 of the Act. WE WILL make whole employees Robert Barrett, Robert Wartenbe, Russell Barrett, James Dalrym- ple, Terry Frame, Jimmy Hughes, Mark Jellison, Keith Luzadder, Homer Searls, Gene Swingle, George Williams, Michael Corbett, Paul Fisher, Larry Jarvis, Larry Tyo, Joseph Stoneburner, and Michael Fisher to the extent that this has not been accomplished, for any loss of pay they may have suffered by reason of the discrimination against them found here, plus interest. 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer to Russell Barrett, James Dal- rymple, Jimmy Hughes, Mark Jellison, Homer Searls, Gene Swingle, George Williams, Michael Corbett, Paul Fisher, Larry Jarvis, Larry Tyo, Joe Stoneburner, and Michael Fisher immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges. WE WILL, on application for reinstatement on behalf of employees who participated in the unfair labor practice strike that began on June 18, 1985, who have not already been reinstated, offer full and immediate reinstatement to all such employees or, if those positions no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired as replacements after June 18, 1985. WE WILL remove from our files any references to suspensions or discharges of the above-named employees, and notify them in writing that this has been done and that evidence of these unlawful sus- pensions and discharges will not be used as a basis for future personnel action against them. WE WILL process, on request, through the griev- ance and arbitration procedures of the expired 1981-1984 contract, those grievances arising prior to the expiration of the 1981-1984 contract and filed in accordance with the grievance procedure contained in that contract. WE WILL process, on request, through the griev- ance procedure of the expired 1981-1984 contract, those grievances arising during the hiatus between the expiration of the 1981-1984 contract (Septem- ber 5, 1984) and the implementation of our contract proposal (October 28, 1984). WE WILL recognize and bargain with Boyd Folden as a representative of the Union in filing and processing grievances. WE WILL rescind any rule or policy stating that only active employees will be recognized as union represenatives in the processing of grievances. COLUMBIA PORTLAND CEMENT COMPANY Steven Wilson, Esq., for the General Counsel. John C. Ross, Esq., of Canton, Ohio, for the Respondent. DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge. The charge in Case 8-CA-18207- 1 was filed by Paul H. Slack, an individual, on 18 April 1985 . The charge in Case 8-CA- 18220-1 was filed by Marvin L . Baker Jr., an individual, on 26 April 1985. The charge in Case 8- CA-18221 was filed by Robert L. Barrett , an individual, on 26 April 1985 . The charge in Case 8-CA-18283 was filed by Robert Wartenbe, an individual , on 17 May 1985. A consolidated complaint and notice of hearing issued on 31 May 1985 on the above -captioned charges against Columbia Portland Cement Company (Respond- ent or Employer). The charge in Case 8-CA- 18063-3 was filed by Donald E. Fisher, an individual, on 7 March 1985 . The charge in Case 8-CA- 18117 was filed by United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL-CIO affiliated with Cement, Lime, Gypsum and Allied Workers Divi- sion, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO (the Union or the Charging Party) on 8 March 1985. An amended order consolidating cases, amended consolidat- ed complaint, and notice of consolidated heanng on the above cases issued against Respondent on 21 June 1985. The charge in Case 8-CA- 18343-1 was filed by the Union on 19 June 1985 . An amended order consolidating cases, second amended consolidated complaint and notice of consolidated hearing issued on 20 November 1986 on all of the above-captioned cases consolidating them for hearing . A hearing was held before the adminis- trative law judge in Cambridge, Ohio, and Zanesville, Ohio, on 23, 24, 25, and 26 February; and 23 and 24 March 1987, respectively . Briefs have been timely filed by the General Counsel and Respondent which have been duly considered.' FINDINGS OF FACT2 I. EMPLOYER'S BUSINESS Employer is a Delaware corporation with an office and place of business in Zanesville, Ohio, where it is en- gaged in the operation of a cementmaking plant. Annual- ly, Employer in the course and conduct of its business operations purchases and receives at its Zanesville, Ohio facility products, goods, and materials valued in excess of $50,000 directly from outside the State of Ohio. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. i On request of the General Counsel, since no evidence was adduced thereon at the heanng, the allegation that Respondent unlawfully denied plant access to Union Representative Kenny Pack is hereby dismissed In addition, while par 12 of the complaint alleges unlawful interrogation of Russell Barrett on 18 June, the record is wholly insufficient to support this allegation and it is dismissed 2 There is conflicting testimony regarding some allegations of the com- plaint In resolving these conflicts, I have taken into consideration the ap- parent interests of the witnesses In addition, I have considered the inher- ent probabilities, the probabilities in light of other events, corroboration or lack of it, and consistencies or inconsistencies within the testimony of each witness and between the testimony of each and that of other wit- nesses with similar apparent interests In evaluating the testimony of wit- nesses, I rely specifically on their demeanor and have made my findings accordingly While apart from considerations of demeanor, I have taken into account the above-noted credibility considerations, my failure to detail each of these is not to be deemed a failure on my part to have fully considered it Walker's, 159 NLRB 1159, 1161 (1966) COLUMBIA PORTLAND CEMENT CO 413 H. LABOR ORGANIZATION The complaint alleges, the Respondent at the hearing stipulated, and accordingly I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Background Respondent operates a quarry and concrete production facility in the Zanesville, Ohio area. For many years and pursuant to several contracts, employees of both the mining and production operations have been represented by the Union. The most recent contract was a 3-year contract with an expiration date of 1 May 1984. By writ- ten agreement of the parties, the expiration date was ex- tended to 20 August 1984 with provision that either party could thereafter terminate the agreement on 168 hours (7 days) notice given by either party On 28 August, Respondent was sold by its owner, Ashland Technology, Inc., to Frank V. Carlow and Michael P. Carlow, and by letter dated 29 August 1984, Michael P. Carlow gave the requisite notice of termination to be ef- fective midnight, 5 September 1984. The letter read: This letter is to provide notice that effective mid- night September 5, 1984 the 1981-1984 Collective Bargaining Agreement, as extended between the Columbia Portland Cement Company and the United Cement, Lime, Gypsum, AFL-CIO, Local 24, will expire. As the new owners of the Columbia Portland Cement Company, we are not bound by the collec- tive bargaining proposal setforth [sic] by the previ- ous owners. We therefore request to meet with you on September 4, 1984 at 10.00 A.M., at a site to be determined, to discuss our proposals as to terms and conditions of employment for employees at the cement plant located in East Fultonham, Ohio. Subsequently, the 'parties met and negotiated but did not reach any agreements. On 28 October 1984, a valid impasse was reached in negotiations and the Respondent put into effect its last contract proposal. On 8 May 1985,3 the employees went on strike. Pursuant to an un- conditional offer to return to work, most of the employ- ees were offered reinstatement and returned to work on 12 June. However, Respondent refused to reinstate and terminated some 19 employees for various acts of mis- conduct which are treated herein. On 18 June, the em- ployees again struck the Respondent and that strike con- tinues to date. S All dates refer to 1985 unless otherwise indicated 2. Allegations involving employees' right to union representation during investigatory interviews4 a. Donald Fisher On the morning of 26 February, Donald Fisher and Michael Fisher5 worked together on a job. Later on the same day, both were summoned to a meeting in the office of Jerry Henkel, maintenance supervisor. Respond- ent was represented by Henkel; Bill Thomas, mainte- nance supervisor; and Carl Hardin, shift foreman. Ac- cording to Donald Fisher, Henkel told them that both had been observed loafing on the job that morning. Both responded that if this was going to be about discipline they wanted to have a union representative during the interview. Henkel told them that they did not need union representation, that they were there to discuss it. There- after, Donald Fisher gave his account of the events con- cerning the job he and Michael had worked on that morning. Apparently not persuaded, Henkel advised him that a letter was going to be placed in his file for deliber- ate loafing, whereupon both he and Michael Fisher left the meeting. On the following day, Hardin delivered to Donald Fisher a letter of reprimand. Donald Fisher's version is substantially corroborated by Michael Fisher. None of the company representatives in attendance testi- fied concerning this incident, and I conclude that the un- rebutted testimony of Donald Fisher and Michael Fisher is credible. It is clear as a matter of Board and court precedent that employees are entitled to union representation at interviews where the employee entertains a reasonable belief that the interview may result in disciplinary action against him. NLRB v. J. Weingarten, 420 U.S. 251 (1975). Respondent correctly observes that Weingarten does not apply to circumstances where the decision to impose dis- cipline has previously been reached and the meeting with the employees is simply to announce or to advise the em- ployee of that decision. Baton Rouge Water Works Co., 246 NLRB 995 (1979). However, Respondent errs in at- tempting to apply Baton Rouge to the facts of this case. In the instant case, as soon as Fisher became aware that the interview would deal with his "loafing" on the job, he requested union representation. He was denied union representation and the interview continued with Fisher giving his account of the incident He was issued a letter of reprimand the following day. It does not appear that any final or binding decision to discipline had been made prior to the interview and after Fisher requested union representation, it was unlawful for Respondent to contin- ue the interview. Nor am I persuaded that the presence of Michael Fisher satisfied the Weingarten requirement for union representation. Michael Fisher was union vice president and Donald Fisher was union president. How- ever, Michael Fisher was not at the interview in his ca- pacity as a union representative. He was there, along 4 I note that Respondent offered no witnesses to refute the accounts offered by the General Counsel's witnesses as to any of these allegations and I accept as credible the versions of these accounts offered by the General Counsel' s witnesses 5 At this time Donald Fisher and Michael Fisher were president and vice president, respectively, of the Union, as well as employees 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with Donald Fisher, as an employee charged with mis- conduct. Because he also happened to be the union vice president does not satisfy the Weingarten requirement for representation. Only a union representative appearing in that capacity and with that status will suffice. In summa- ry, I conclude that by denying Donald Fisher union rep- resentation and continuing the interview, Respondent has violated Section 8(a)(1) of the Act. b. Marvin Baker Jr. On 18 March 1985, Hardin approached Marvin Baker, a maintenance mechanic, and Donald Fisher, telling them that Henkel wanted to see them in his office and told them it concerned their presence in the raw mill control office as an "illegal visitation." Later in the day while Hardin and Baker were walking to Henkel's office, Baker asked Hardin for union representation at the meet- ing and was told that it would not be needed. Once in Henkel's office, Henkel explained what he wanted to dis- cuss and Baker again requested union representation. Henkel also responded that it would not be needed and it was not a disciplinary meeting. Thereafter, Henkel read Baker the work rules pertaining to illegal visitation and work stoppages. Baker explained that the purpose of his visit to the raw mill control office was to pick up some gloves that he had left to dry in an oven there on the previous Friday. Henkel told him that he and Hardin would review the circumstances and let him know later if there would be disciplinary action. However, no disci- plinary action was taken. Baker's testimony once again is unrebutted since Respondent called no witnesses to testi- fy concerning this incident. As noted above, Weingarten applies only to those interviews wherein the employee has a reasonable belief that disciplinary action could result Respondent con- tends that Baker had no such reasonable belief. I do not agree. On inquiry, Baker was advised that the interview concerned a violation of plant rules, notably an "illegal visitation," whereupon Baker requested union representa- tion. The interview continued and Baker was told that a disciplinary decision would be made later although no discipline was ever imposed In my opinion, it is clear, even assuming that Henkel said that the meeting was not disciplinary, that Baker had a reasonable belief that disci- plinary action could result from the interview and Re- spondent's denial of union representation and continuing the interview violated Section 8(a)(1) of the Act. c. Paul Slack, Robert Barrett, and Robert Wartenbe Slack:-In the spring of 1985, Respondent experienced an outbreak of vandalism. In an effort to determine who was responsible for it, Respondent hired investigators to interview certain employees. On 12 April, Stack was called to the office of Plant Engineer John Gilliland, where he was asked to meet with one of the investiga- tors. Slack asked for a union representative to be present at the interview and was told by Raymond Houk, pro- duction superintendent, that he could not have a union representative present; that he was only entitled to a union representative during a grievance procedure. Gilli- land then told Slack that his instructions were that if Slack refused to be interviewed he would be suspended. Houk left and returned some 40 minutes later with Frank DeNardo, investigator. Slack reiterated to DeNardo that he did not want an interview without union representa- tion present. DeNardo told Slack that he would not force him to take the interview and that he might as well go back to work, and Slack returned to work. On 18 April, Slack was once again called into Gilli- land's office, this time by Charles Kuhn, operations man- ager. DeNardo and another investigator were there. Slack was again asked to have an interview with the in- vestigator. Slack asked for union representation at the interview which was denied by Kuhn. One of the inves- tigators told Slack that he would be on immediate indefi- nite suspension if he refused the interview. Slack asked for time to speak to his attorney. Kuhn responded, "If you're guilty, maybe the best thing for you to do is talk to your lawyer." At this point Slack turned away from Kuhn with whom he had personal differences and told DeNardo that he would agree to a one-on-one interview with him Slack explained that he decided to do this partly because of the threat of suspension and also be- cause of a personality conflict between himself and Kuhn which caused him to want to get it over with and speak to the investigator. Kuhn and the other investigator left. DeNardo explained that he was investigating sabotage, including conveyor belt cuttings. Slack denied any re- sponsibility or that he knew anyone was responsible and the interview ended. Respondent contends that Slack waived his Weingarten rights by voluntarily submitting to the interview. I do not agree. There can be no doubt that Slack had a rea- sonable belief that disciplinary action could result from the interview since he had been warned twice on 12 and 18 April, that this failure to submit to the investigative interview would result in his suspension. A careful review of the testimony persuades me that while Slack did agree to the interview, his agreement was obtained under duress of his threatened suspension and certainly did not constitute an unequivocal waiver of his Weingar- ten right, despite his desire to "get it over with." In these circumstances, I conclude that Respondent violated the Act by denying Slack the requested union representation and threatening him with suspension for refusing to par- ticipate in the interview and by conducting the interview after rejecting Slack's request. Barrett:-On 19 April, Barrett, a heavy equipment op- erator, was called to Gilliland's office where he was met by two investigators who asked him if he knew why he was there. Barrett responded that he had heard rumors they were investigating "a belt cutting and painting and stuff on the walls." One investigator left and the other, whom Barrett could not identify, asked a few prelimi- nary questions at which point Barrett requested the pres- ence of a union representative. The investigator told him that the Union was not involved and called in the other investigator who left and returned in about 5 minutes with Barrett's supervisor, Allen Rutledge, and Kuhn who asked what the problem was. Barrett responded that he wanted a union representative present during the questioning. Kuhn told him that the Union was not in- COLUMBIA PORTLAND CEMENT CO volved and that he had no right to have a union repre- sentative present . At this point Kuhn told Barrett that he was suspended immediately . Barrett asked for it in writ- ing and Kuhn told him that he would receive it. Barrett was allowed to return to work on 24 April . By letter dated 26 April , Barrett was advised, in a letter from Kuhn: This letter is to officially inform you of the rea- sons for your two and one half day suspension, April 19, (noon) through April 21, 1985. Recent destructive acts of belt cutting done on plant property prompted management to hire an in- vestigator to handle the matter . The destruction re- sults in big dollar losses due to loss of production time. Your refusal to talk with the investigator di- rectly resulted in your suspension In the future we hope that your cooperation will be voluntary when destructive acts are being investigated. Future refusal to cooperate under the above stated circumstances will result in a stricter discipli- nary action up to and including dismissal. This letter is meant to be constructive and not punitive in nature. Respondent does not seriously contend that Barrett's Weingarten rights were not violated, describing it as a "harmless foul" and noting that Respondent reinstated Barrett and offered him backpay for what Respondent conceded in brief was an "erroneous " suspension, as re- flected in his letter of suspension. Nonetheless, Respond- ent's denial of representation and suspension violated the Act and must be remedied. Wartenbe •6-On 18 April, Wartenbe, a finish mill oper- ator, was called to Gilliland 's office where he met an in- vestigator The investigator said he would like to ask some questions about things going on at the plant. War- tenbe was aware that other employees had been ques- tioned about sabotage at the plant and he told the inves- tigator that he wanted a union representative present during the questioning. The investigator said he could not and Wartenbe told him the meeting was over and started to leave. The investigator warned him there could be repercussions and Wartenbe testified that he said, "Don't tell me that shit and if he could do it, do it" and left . About 45 minutes thereafter, Wartenbe was "in- definitely laid off' by Production Supervisor Raymond Houk . By letter dated 26 April from Kuhn , Wartenbe was advised: This letter is to officially inform you of the rea- sons for your indefinite suspension which was issued and began on April 18, 1985. Recent destructive acts of belt cutting done on plant property prompted management to hire an in- vestigator to handle the matter . The destruction re- sults in big dollar losses due to loss of production time. Your refusal to talk with the investigator di- rectly resulted in your suspension . In the future we 6 By agreement of the parties , two affidavits submitted by Wartenbe were received into evidence in lieu of Wartenbe 's testimony 415 hope that your cooperation will be voluntary when destructive acts are being investigated. Mr. Raymond Houk has tried to reach you on several occasions, the last of which was April 24, 1985 to discuss the disciplinary action . Please call Mr Houk to schedule a meeting for this purpose on Monday, April 29, 1985. Future refusal to cooperate under the above stated circumstances will result in a stricter discipli- nary action up to and including dismissal. This letter is meant to be constructive and not punitive in nature. On 26 April, Wartenbe telephoned Gilliland who told him that he was to report at 8 a .m. on 30 April to be interviewed by Kuhn and after that to begin work. War- tenbe told Gilliland that he would not talk to anyone without union representation and Gilliland told him that if you refuse to talk to Kuhn without union representa- tion he would be regarded as having quit his job On 30 April, Wartenbe reported to Kuhn's office at 8 a.m. After some discussion about job duties, Kuhn raised the subject of belt cutting, making the observation that a lot of belts had been cut in the middle lately . Wartenbe asked for union representation . Kuhn refused the request and told Wartenbe that he was obligated to answer his questions . Kuhn told Wartenbe that he could be forced to answer the questions. Wartenbe responded with some profanity , saying that Kuhn was "full of shit ." Wartenbe left the office . Kuhn followed him, saying that he was discharged and that "nobody swears at me." By letter dated 1 May 1985, Kuhn advised Wartenbe: This letter is to officially inform you that you are on indefinite suspension as of April 30, 1985. Your refusal to talk with me about the belt cut- ting problems at the plant and the use of abusive language are the reasons you are on indefinite sus- pension. Since this is the second time you have re- fused to cooperate in this investigation, a review of your work record will be made and appropriate action will be taken. You will be notified within five days of your future relationship with Columbia Portland Cement Company. Subsequently Wartenbe was terminated by letter from Kuhn reading:' This letter is to officially inform you of your ter- mination of employment with Columbia Portland Cement Company, Inc. effective May 5, 1985. This action was taken after reviewing your past work record with Columbia Portland. Your refusal to cooperate with the Company investigation into destructive acts which had occurred as well as your unsatisfactory performance in past work and absen- tee records were contributing factors. 7 The parties stipulated that the letter bears a date of 26 April, which was a typographical error and that the letter was actually sent to War- tenbe on 6 May 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By letter dated 8 July, Respondent advised that War- 3. Refusal to process grievances tenbe that, On May 6, 1985, the undersigned advised you that you were being terminated from employment with Columbia Portland Cement Company due to your past unsatisfactory work record with Colum- bia Portland Cement Company. On May 18, 1985, Columbia Portland Cement Company received a notice from the NLRB that you had filed a unfair labor practice charge with Region 8 of the NLRB alleging that you were fired for refusing to participate in an interview without a union representative present. The purpose of this letter is to advise you that if the NLRB rules in your favor in Case #8-CA- 18283 and orders your reinstatement with Columbia Portland Cement Company, that the Company will refuse to reinstate you due to your assault of em- ployee Jim Jackson on July 3, 1985 and that the as- sault is grounds for your termination from employ- ment with Columbia Portland Cement Company. Jackson did not testify and the only evidence to support the allegation is an unsigned "General Case Report" form containing an account of the incident, presumably related by Jackson to a Lieutenant C. T. Kelly. It is not signed or confirmed by Jackson, and neither Jackson nor Kelly nor anyone else testified concerning this incident. It does not appear that Wartenbe was ever charged in this matter. It is clear from the undisputed facts and Respondent's own correspondence, noted above, that Wartenbe was discharged for refusing to participate in the interview. As noted above, an employee has a right to union repre- sentation during an employer interview which the em- ployee reasonably believes may result in disciplinary action. This violation is clear. However, Respondent takes the position that even if the original discharge was unlawful under Weingarten, the subsequent discharge on 8 July was lawful since Respondent had an honest belief that the assault did in fact occur and it was not shown by the General Counsel not to have occurred. I do not agree. Jackson did not testify and the police report is simply hearsay description of the incident, not affirmed by Jackson. Nor does the report even describe any "as- sault" on Jackson, only the striking of his car. The report describes the complaint only as an "attempted as- sault." Moreover, the record does not even disclose whether or not Kuhn was in possession of or even aware of the police report at the time that he discharged War- tenbe on 8 July. However, since it appears that Wartenbe was convict- ed of murder in the death of a truckdriver in a strike- related incident occurring on 2 August, I conclude, in agreement with the General Counsel, that he is disquali- fied from reinstatement and that any backpay liability is tolled as of that date. a. Precontract expiration grievances As noted above, Respondent and the Union were par- ties to a contract and an extension thereto terminated by Respondent effective midnight on 5 September 1984. The business had been sold on 28 August 1984. The sale was a stock purchase only with no change in the operation. At the time of the sale there were pending numerous grievances filed in 1984, and some dated back to 1983 and 1982. After the purchase, negotiations were conduct- ed between Respondent and the Union with a view toward reaching agreement on a new contract. During bargaining sessions on 4 and 5 September, the Union re- quested that all grievances pending at the time of the sale be processed. The Respondent, while not denying any of its responsibility to process the grievances, deflected the request by saying that they should pursue the negotia- tions. Essentially, Respondent did not respond to the re- quest The Union made the same request at other bar- gaining sessions in September and October and Respond- ent continued to put them off. It is undisputed that in December 1984 or January 1985 the Respondent decided that it was not obligated to process any of the prepur- chase grievances, taking the position that they were "too old" and that "there wasn't a good-faith effort to go forth with them." It is clear, and Respondent concedes, that a successor employer in a simple stock purchase situation, with no substantial change in the Company's operation, has an obligation to reorganize contractual commitments and process grievances pending at the time of the sale under the terms of the predecessor's contract Armitage Lamp, 260 NLRB 951 fn. 1 (1982). So clearly there exists an obligation, as noted above, on the part of the Respondent to process all of the griev- ances filed prior to the expiration of the extended con- tract which expired at midnight on 5 September. Nonetheless, Respondent contends that the age of the grievances and lack of diligence by the Union in pursu- ing the grievances with the prior owners somehow privi- leges Respondent to reject these grievances under theo- ries of waiver, estoppel, or latches. The facts do not sup- port this position. The record is inconclusive as to why the grievances had not been more expeditiously proc- essed prior to the change in ownership. However, it is clear that demands for their processing were made as soon as the sale was made and demands thereafter were clear and frequent and categorically rejected, first by evasion and later by a fully articulated refusal. Despite the age of the grievances and prior delays in processing, Respondent was nonetheless obliged to honor and proc- ess them. Respondent also argues that it was privileged to reject the pending prepurchase grievances under the terms of article XIX, section III, of the prior contract which states in pertinent part, "All grievances which have not been settled under the 1981 Agreement expiring April 30, 1984, must be presented for settlement within fifteen (15) days after expiration of the Agreement." This argu- ment must fail. First it is clear that the pending griev- COLUMBIA PORTLAND CEMENT CO. 417 ances were "presented for settlement" by request of the Union as early as 4 September, within a few days after the purchase and while the extended contract was still in effect. Thus it is clear that even under Respondent's in- terpretation, the grievances were "presented for settle- ment" within 15 days after the expiration of the extended contract at midnight on 5 September 1984. Second, under any reasonable interpretation, the above contract language must be read to provide that griev- ances arising under the old contract had to be filed within 15 days after the expiration of that contract. To hold otherwise would mean that all pending grievances in whatever stage of processing, but not "settled" would have to be submitted anew within 15 days after the con- tract's expiration.8 The parties could not have intended such a result. Accordingly, I conclude that by refusing to process grievances pending when the contract expired, Respond- ent is refusing to bargain with the Union in violation of Section 8(a)(5) of the Act. b. Postcontract/preimplementation grievances Certain grievances were filed by the Union during the period between the expiration of the contract on 5 Sep- tember 1984 and the time when a valid impasse in bar- gaining was reached and Respondent lawfully, but with- out union approval, implemented its proposed contract on 28 October 1984. These grievances related to layoffs of individual employees allegedly in violation of article VIII of the expired contract.9 Some meetings were held after the implementation in late 1984 and early 1985 with a view towards processing those grievances. However, Respondent insisted that those postcontract/preimplementation hiatus grievances be processed under the grievance and arbitration provi- sions of the implemented contract. The Union did not agree, taking the position that the grievance and arbitra- tion procedures of the old contract should be utilized. None of these grievances have been resolved. The General Counsel contends that Respondent violat- ed Section 8(a)(5) of the Act by refusing to process these hiatus grievances under the grievance and arbitration provisions of the expired contract and by insisting on processing these grievances under the procedures of its lawfully implemented proposal. In Indiana & Michigan Electric Co., 284 NLRB 53 (1987), the Board, in an effort to clarify the impact of the Supreme Court decision in Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977), decided, inter alia, that under Nolde an employer was under no contractual obli- gation to arbitrate hiatus grievances unless the dispute "concerns contract rights capable of accruing or vesting 8 Respondent's assertion that this matter should be heard under Sec 301(a) of the LMRA is not well taken Clearly, cases involving a succes- sor employer's duty to process grievances arising under a predecessor's contract fall within the provisions of Sec 8(a)(5) of the National Labor Relations Act e As alleged in par 16(A) of the complaint, and admitted, "Between September 4, 1984, and October 22, 1984, the Union presented approxi- mately thirty (30) grievances to Respondent, said grievances setting forth alleged violations of Article VIII of the expired collective bargaining agreement, described in Paragraph 13(B), which relates to layoff proce- dures." to some degree during the life of the contract and ripen- ing or remaining enforceable after the contract expires. i o On the facts of Indiana & Michigan, supra at 61, the Board therein concluded: We have examined the pertinent contract provisions and conclude that the rights invoked in each griev- ance do not "arise under" the expired contracts within the meaning of Nolde. All of the nine griev- ances were triggered by events or conduct that oc- curred after the expiration of the contracts. None of the rights invoked were worked for or accumulated over time, and there is no other indication that the parties contemplated that such rights could ripen or remain enforceable even after the contracts expired. On the facts of the instant case, it is clear that the layoff grievances do not concern any contract rights "ca- pable of accruing or vesting to some degree during the life of the contract and ripening or remaining enforceable after the contract expires." All the grievances were pre- cipated by layoffs occurring after the contract expired and did not involve rights capable of accruing or vesting during the life of the contract so as to be enforceable after its expiration. There remains the issue, did Respondent violate Sec- tion 8(a)(5) by insisting that the grievances be processed under the grievance and arbitration provisions of the im- plemented contract? I think that it did. Under Indiana & Michigan, Respondent was obligated to discuss and confer with the Union concerning the hiatus layoff griev- ances since the Union was the legal collective- bargaining representative of the Respondent's employees at that time. It could not, however, insist that a procedure or format be utilized which had been unilaterally, albeit le- gally imposed, and to which the Union had never agreed. Accordingly, I conclude that by insisting that grievances be processed under the provisions of the im- plemented proposal. Respondent has violated Section 8(a)(5) of the Act. 4. Respondent's establishment and enforcement of a policy which interfered with employees in the selection of their representatives Boyd Folden was an employee of the Respondent until he retired on 1 September 1984. At that time Folden was also chairman of the Union's grievance committee. It is undisputed that Folden presented grievances on behalf of employees even after his retirement and even attended a grievance meeting on 10 October 1984, all without ob- jection from the Company. However, on 13 December, on a visit to the plant for a grievance meeting, he was advised by Roman that henceforth only active employees would be permitted to process grievances. Donald Fisher, who was also present for the grievance meeting, protested that it was the Union's right to select its own 1s In Indiana & Michigan, the grievances concerned postcontract expi- ration suspensions, overtime, asssignments, working conditions, compen- sation, reporting date for transfer, route assignments, oral warning, and the acquisition and use by a supervisor of an employee's telephone number 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representative. Roman replied that while the Union could select whomever it wanted, the Respondent would recognize whomever it wanted and would recognize only active employees in the processing of grievances. Roman offered no explanation for this change. Again, on 24 January, Folden was denied admission to a grievance meeting for the reason that he was not an active employee. Likewise, Folden was denied access to the plant for a grievance meeting on 19 June, the day following the second strike. Respondent did raise in negotiations its desire to "streamline" the grievance procedure because it felt that the old grievance procedure was too cumbersome and time-consuming. As Roman testified, "With the twenty- or with the thirty-six people retired, to tie up a whole afternoon with eight people plus a number of manage- ment personnel was very cumbersome." However, nei- ther the old nor the newly implemented contract con- tains in the grievance procedures any provision restrict- ing representation in grievance processing to active em- ployees, and this matter was never discussed during ne- gotiations. Section 7 of the National Labor Relations Act gives to employees the right, inter alia, "to bargain collectively through representatives of their own choosing." This right has been applied to the selection of employee rep- resentation in the grievance process, as well as collec- tive-bargaining procedures. In Native Textiles, 246 NLRB 228, 229 (1979), the Board concluded that an employer's "refusal on and after March 22, 1978, to meet and bar- gain with Florence Fontaine [a recently discharged em- ployee,] as the Union's designated representative for processing grievances was violative of Section 8(a)(5) and (1) of the Act " There are no substantial distinctions to be drawn which warrants a different result in the in- stant case. Respondent attempts to show that changes in the grievance procedure found in the implemented contract were desirable and necessary, but this begs the question. The only issue is whether or not Respondent could deny to a nonactive, i.e., retired, employee the right to repre- sent employees in the grievance procedure. In my opin- ion, they may not, and to do so clearly interferes with the right guaranteed to employees to select their own representatives to conduct such matters. See also Arizona Portland Cement Co., 281 NLRB 304 (1986). Respondent also appears to argue that Folden's pres- ence would pose problems with Federal law regarding nonemployees at its plant, citing some undefined provi- sions of the Mine Safety and Health Act limiting nonem- ployee access to production areas. Respondent does not, however, set out what sections, if any, prohibit Folden's presence. I am not satisfied, based on the evidence ad- duced by Respondent at the hearing, that the Mine Safety and Health Act would preclude Folden from vis- iting parts of the plant suitable for grievance meetings. Even if an escort to and from certain production areas were necessary, it would not be excessively burdensome, particularly since Respondent could conduct grievance meetings in unrestricted areas such as the plant office freely accessible to Folden with no safety considerations. In short, I conclude that by establishing, maintaining, and enforcing a policy which denied to employees the right to select a representative of their own choosing to represent them in the grievance process, Respondent has violated Section 8(a)(5) and (1) of the Act. 5. Respondent's discontinuance of the issuance of work gloves For some years prior to the sale of Respondent on 28 August 1984, it had been the practice of Respondent to furnish work gloves for its employees. This practice con- tinued after the sale and became a part of the contract proposal lawfully implemented by Respondent on 28 Oc- tober. The pertinent provision of that contract reads: ARTICLE XII SAFETY GEAR The Company will provide all employees with a hardhat, goggles and gloves, respirator, ear plugs, welder's helmets and tools for the performance of any job. Company reserves the right to revoke the issuance of gloves to the employees upon a determi- nation by the Company of an abuse of the privilege by an employee. It is undisputed that in mid-February 1985, Respond- ent discontinued this practice and that it did so without notice to or consultation with the Union. Respondent took this action because, after a study had been done, it concluded that employees had been abusing the privi- lege As noted above, article XII reserves to the Company the right to revoke the issuance of gloves to employees "upon a determination by the Company of an abuse of the privilege by an employee." A literal meaning of this article suggests that Respondent could revoke issuance of work gloves to all employees on a determination that a single employee abused the privilege. Respondent's study apparently disclosed more widespread abuse which would, "a fortiori," allow Respondent to discontinue is- suance of work gloves. Moreover, the lawfully imple- mented contract describes the provision of work gloves as a "privilege," implying a certain degree of discretion in the matter In short, I conclude that Respondent was justified, under the provisions of article XII to discontin- ue issuing work gloves to employees. 6. The first strike In February 1984, prior to the expiration of the con- tract on 1 May 1984, a vote was taken among the mem- bership of the Union authorizing a strike in the event that negotiations for a new contract were not successful. Thereafter, as noted above, a series of events occurred, including a change in ownership and after negotiating to impasse the implementation of Respondent's proposed contract on October 28. In April 1985, two union meet- ings were held at which the membership discussed taking strike action against the Respondent because of certain activity engaged in by Respondent which the Union re- garded as unlawful. As Donald Fisher and Michael COLUMBIA PORTLAND CEMENT CO. Fisher testified, at these meetings, the Union protested Respondent's denial of union representation to employees being interviewed by management, the refusal to recog- nize Folden as a union representative; the refusal by Re- spondent to process grievances; and the Respondent's re- fusal to furnish work gloves to employees. The member- ship also complained about certain unsafe working condi- tions. At the close of the last meeting, a strike vote was taken among the membership resulting in a unanimous vote to strike. On 8 May, the Union struck. It is clear that when a strike is caused or prolonged by the unfair labor practices of an employer, that strike is an unfair labor practice strike. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). In my opinion that precedent is directly applicable. I have concluded that most of the complaints raised by the membership at the meeting where the decision to strike was reached, con- cerned conduct by the Respondent which, in my opin- ion, constituted unfair labor practices. Accordingly, it is clear that Respondent was engaged in unfair labor prac- tices. What remains to determine is whether or not there was any causal relationship between these unfair labor practices and the strike. The circumstances of this case, especially an examination of the prestrike union meet- ings, disclose that it was the unlawful action of Respond- ent which precipitated the strike. While it may be true that other matters of concern to the membership, such as safety or working conditions, were discussed and may have contributed to the decision, it is apparent that the compelling and predominant motivation for the strike action was the unfair labor practices being committed by Respondent. This is sufficient to make out an unfair labor practice strike. Crown Cork de Puerto Rico, 273 NLRB 243 (1984)."i 7. Discharges of strikers After the strike began on 8 May, the Union made an unconditional offer on behalf of the strikers to return to work on 31 May. Most of the striking employees were returned to work on 12 June, however, some 19 strikers were discharged in early June for misconduct and were not returned to work. Generally, the misconduct fell into three categories: first, discharges for misconduct at or away from the picket line; second, discharges for de- struction of equipment at the time of the strike; and third, discharges for failure to take reasonable precau- tions at the time of the walkout to protect Respondent's facility and equipment from damage. 8. Discharges for misconduct at or away from the picket line Bradford Jordan.-Jerry Henkel, maintenance superin- tendent at the plant, testified that he left work for home at about 7 p.m. on 4 June driving his motorcycle. On his i i Respondent argues that the strike was unprotected since when the strikers struck, they failed to take reasonable precautions against damage to equipment which could and did occur This is beside the point The matter being addressed at this point is whether or not Respondent's unfair labor practices caused the strike These are separate and distinct issues If, as Respondent contends, the manner in which it is accom- plished renders the strike unprotected, this involves the question of strik- ers' right to reinstatement, rather than the cause or nature of the strike 419 way, some 10 miles from the plant, a car driven by Jordan pulled up beside his motorcycle and, while trav- eling at about 55 miles per hour, began to ease into Henkel, forcing him closer to the median strip. Henkel testified that the car was so close he could touch it. After about one-half mile, and in order to escape, Henkel "cranked it up all the way to the top" and pulled away from the car. Henkel reported this incident to Charles Kuhn. Jordan denied that this incident ever occurred. However, having carefully evaluated all the testimony, I conclude that Henkel's account should be credited. A second incident involved Donald Lincicome, a truckdriver. During the strike he hauled bulk cement from the plant to various customers. On 31 May, as he left the plant with a load of cement, a car driven by a man Lincicome later identified as Jordan, pulled out in front of him and slowed down, forcing Lincicome to quickly brake the truck. Jordan stayed in front of Linci- come until Lincicome reached his destination. Lincicome reported this incident to security guards on the picket line, and to the sheriff's office. Jordan denies this inci- dent ever happened, but having reviewed the record, I am satisfied that it happened as described by Lincicome. In another incident, on about 10 June, Lincicome was driving his truck out the main gate. Jordan was on the picket line. Lincicome testified that as he drove through he recognized and "snarled" at Jordan, while Jordan tes- tified that Lincicome threatened him, shaking his fist and saying that he was going to "kill my black ass." Thereaf- ter, Jordan drove after Lincicome, passed him and then pulled off the side of the road. When Lincicome came upon Jordan, he was standing at the side of the road mo- tioning Lincicome to come to the side of the road. Jordan had his hand on a sheathed knife. Jordan testified that he did this because he wanted to see what Linci- come's "problem was." Lincicome drove toward Jordan, forcing him to jump onto the beam on the side of the road. Lincicome testified that he did this because he wanted to get Jordan to leave him alone. Thereafter, Jordan followed Lincicome again for about a mile and left. At this point Lincicome stopped and made a tele- phone report of the incident to the security guards at the plant. In Clear Pine Mouldings, 268 NLRB 1044 (1984), the Board held that picket line misconduct is sufficient to justify a refusal to reinstate if that misconduct, under all the circumstances, reasonably tends to coerce or intimi- date other employees. In the case of Jordan, I have con- cluded that he did participate in the incidents described above. Having so determined, I further conclude that such action was intimidating and constituted sufficient misconduct so as to disqualify him under the Clear Pine Mouldings standard. See also GSM, Inc., 284 NLRB 174 (1987). Carey Emory:-In the early evening of 31 May, a group of strike replacements being housed by Respond- ent at a Quality Inn in Zanesville, Ohio, were in the pool area grilling food for dinner when one of them heard a hissing noise in the adjacent parking lot. Michael Christ and David Dean, among others, jumped over a fence and went into the parking lot. They observed two men flee- 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing from two company vehicles, a van and a car, the tires of which had been punctured. They gave chase. The two individuals jumped into a green and white Ford Bronco and took off. Dean was unable to identify the men. However, Christ testified that he saw the driver. Later, at the picket line, he saw the Ford Bronco and its driver was identified to him as Emory. While Emory, for his part, denies having been at the Quality Inn at the time in issue, I am persuaded that the identification was sufficient and, that while the evidence is circumstantial, to the extent that he was not observed actually slashing tires, he was responsible at least in part for the damage done to the Respondent's vehicles. Nothing else would account for his precipitous and contemporaneous flight from the site of the damage. I further conclude that this misconduct was sufficiently egregious and intimidating as to justify Respondent's refusal to reinstate him under the criteria set out in by the Board in Clear Pine Mouldings, supra. In any event, the evidence makes it clear that Re- spondent did have an honest belief, based on the evi- dence available to it, that Emory did engage in this mis- conduct. Having established such an "honest" belief, it is incumbent upon the General Counsel to show that the misconduct did not occur. General Telephone Co., 251 NLRB 737 (1980); Desert Inn Country Club, 275 NLRB 790 (1985). Despite Emory's denial that he was ever at the Quality Inn during the strike, I am persuaded that the credible testimony supports the conclusion that he was, and further, that Christ's account is essentially cor- rect. Accordingly, I conclude that the General Counsel has failed to sustain its burden of showing that the mis- conduct did not occur In these circumstances, I shall recommend dismissal of this allegation. Tommy Tipton:-Kevin Kanavel, a security guard at the main gate of Respondent's plant, testified that on 17 May at about 12:10 p.m., a man he identified as Tommy Tipton, driving an orange and black pickup truck regis- tered to Tommy Tipton, came through the main gate and spun around, dumping about 2 gallons of broken glass in the driveway. It then sped away out of the en- trance, spilling more glass as he went Tipton testified that he could not recall such an incident. In another incident, Wayne Hartong, a truckdriver, testified that on about 28 May, he drove out of the plant at about 6:45 a.m. with a load of cement. As he drove down the highway at about 30 miles per hour, he ob- served about four pickets, including Tipton, on the side of the road. As he passed them, he observed a man, pre- viously identified to him by security guards as Tipton, in a side view mirror throwing a handful of nails backhand under the rear wheels of the trailer. The tires were not damaged. Hartong reported this incident to security guards at the plant on his return that afternoon. Tipton denied any involvement in this incident, claiming that he did not leave his house on 28 May until 10:30 or 11 a.m. Although Tipton's wife's testimony supports Tipton's version, I am convinced, after a careful evaluation of the testimony, that Hartong's version is correct and that Tipton did throw nails under the trailer as it passed. Respondent cites other misconduct by Tipton to sup- port his discharge, however, the evidence is insufficient to support Respondent's contentions as to those inci- dents. However, based on Tipton's misconduct in con- nection with the two incidents described above, I con- clude that sufficient justification existed for his discharge, and that this allegation should be dismissed. 8. Discharges for damage to equipment Among those discharged by Respondent during the strike were Keith Luzadder, mobile equipment mechanic; Terry Frame, driller/blaster; Jim Hughes, heavy equip- ment operator; Mark Jellison, heavy equipment operator; Russell Barrett, greaser; James Dalrymple, mine mainte- nance repairman; Homer Searls, general maintenance re- pairman; Gene Swingle, mobile equipment mechanic; and George Williams, heavy equipment operator. Respondent contends that all of these nine individuals were dis- charged because of damage to various pieces of equip- ment. The evidence discloses that after the time that the strike began at about 5 a.m. on 8 May, management offi- cials began an inspection of the premises and equipment which disclosed that there had been substantial damage to several pieces of equipment, such as trucks, loaders, a drill, and a forklift. In some cases metal pins had been inserted into the engines to cause malfunctions. In other instances, acid was found in the fuel, causing damage to the engines. Respondent was unable to produce any evi- dence showing that any of these individual employees were responsible for any damage to any particular piece of equipment. Nonetheless, all nine of the above-named individuals were discharged on account of that damage. All denied having damaged any equipment. Respondent takes the position that they were all responsible for the damage since the damaged equipment was within their control because they were the last persons to have worked on or with the equipment. In this regard Roman was asked, "Is it not the compa- ny's position that all of these men were fired because they were either working on, or working in the area of equipment which was later found to be damaged?" Roman responded "That was their area of responsibil- ity." Later, as to the basis for his discharge recommenda- tions on these individuals, Roman testified, "Primarily because they were in charge or had responsibility for that equipment, the night of the strike or the morning of the strike." Respondent concedes that it had no informa- tion to associate any of these individuals with any specif- ic act of destruction. Harold Roberts, mine superintend- ent, testified that he recommended to Kuhn and Larry Ousky, vice president of operations for Carlow Group Company, parent corporation of Respondent, the termi- nation of these individuals because of damage to the equipment. He testified "On the damage to the equip- ment. The fact that they were the last people to run it, and that was the people that were responsible for it." Harold Miller testified that he felt that since the ma- chines were running on the second shift because the mine was in production, he felt that it was more likely that the damage had been done on the third shift where there was no production, only maintenance work being done on the third shift. However, Miller could not asso- COLUMBIA PORTLAND CEMENT CO. ciate any individual with any specific damage. Miller tes- tified "At that time I felt like they [third shift] were re- sponsible. I could not tell you which one." Clearly, had any of the discharged employees been linked in an evidentiary fashion to the destruction which took place, Respondent could make a compelling argu- ment to support its position. However, any conclusion that a specific individual committed any specific act of destruction is bottomed on an insupportable leap of logic. The fact that damage has occurred to equipment operated or worked on by third-shift employees does not support a general conclusion or even an "honest belief' that any third-shift employee was responsible for any damage. A general pattern of misconduct will not sup- port a specific conclusion of guilt. This is tantamount to concluding that simply working on the third shift, with- out more, justifies discharge because of the destruction of equipment that occurred on that shift. I do not agree. In short, there is no evidentiary basis to support any "honest belief' by Respondent that any of these individ- uals were responsible for the destruction of any piece of Respondent's equipment. As the Board held in General Telephone Co., supra at 739, an honest belief "requires some specificity in the record, linking particular employ- ees to particular allegations of misconduct." To hold that Respondent held an "honest belief' that these individuals damaged equipment would put the General Counsel in the position of having to show that they did not damage the equipment. As the Board notes in General Telephone Co., this would be an impossible burden since Respond- ent "failed to identify the alleged misconduct of each employee," It is also worthy of note that three of these employees, Frame, Hughes, and Williams, of the nine who were dis- charged, were second-shift employees who testified with- out rebuttal that they were not even aware that a strike had been called when they left the plant at the end of their shifts In these circumstances, it is even more diffi- cult to assign responsibility to them, even in a general sense, for the destruction of any equipment, and points up the indiscriminate or wholesale assignment of guilt for specific acts of destruction. Accordingly, I conclude that these nine discharges violate Section 8(a)(3) of the Act.12 10. Discharges for striking without taking reasonable precautions to prevent damage to plant This allegation involves the discharges of plant em- ployees engaged in the processing of the raw material, as distinguished from the mining operation, specifically, Mi- chael Corbett, Paul Fisher, Michael Fisher, Larry Tyo, Larry Jarvis, and Joseph Stoneburner.13 12 By letter dated 19 June, the day after the strike began, Respondent, apparently reconsidering the discharges of Luzadder and Frame, advised them that their discharges were being withdrawn and that instead, they were being issued 5-day suspensions with Luzadder to report for work on 19 June and Frame on 20 June The reason assigned in both letters for the suspensions was "inability to perform your job properly " Clearly this was a hastily contrived subterfuge, totally unsupported by the record, and I conclude that their supensions had the same unlawful objective as their discharges and violate Sec 8(a)(1) of the Act " The allegation as to Wayne Dixon, the kiln burner, was settled at the hearing and is not in issue 421 Donald Fisher, union president, decided when the strike would be called. It was his decision that the strike should commence at 5 a.m. on 8 May and he so advised a few employees. Most, however, were not aware that a strike was to take place until they were told shortly before it happened at about 5 a.m. on 8 May. Paul Fisher, a trustee of the Union and the brother of Donald Fisher, was told by Donald Fisher a couple of hours prior to his starting time at 11 p.m. on 7 May that the strike would commence at 4 a.m. on 8 May. Donald Fisher also told him to advise the foreman on that shift, Carl Hardin, about the strike. At about 3:55 a.m., Paul Fisher called Hardin and asked him to come to the con- trol center. When Hardin arrived at about 4:15, Paul Fisher, along with Michael Fisher, union vice president, told him that a strike had been called for 4 a.m. and asked him if he wanted the equipment shut down or left running. Hardin asked him to shut down, and the opera- tors of the various machinery used in the production process went about shutting down their equipment. While the strike had been called for 4 p.m., Paul Fisher testified that it did not begin until Hardin had been ad- vised and consulted. With respect to the kiln, Wayne Dixon, kiln operator, explained to Hardin as he shut down the kiln that the kiln had to be turned occasionally to prevent warpage and Hardin said that he under- stood.14 Hardin instructed Larry Jarvis, extra kiln opera- tor, to turn on the auxiliary diesel motor so as to run the kiln slower but to turn it periodically to avoid warpage from a quick cooling off. Paul Fisher testified that at about 4:45 a.m. "I asked Carl Hardin if' he was satisfied with the shutdown, at which time he stated that he was. We asked him if he had any more information or any- thing he needed, and he said he needed-he had every- thing he needed, and we asked him if it was okay for us to leave the plant." When Hardin replied affirmatively, Paul Fisher and Dixon left the plant together. It is undis- puted that in order to prevent warpage, the kiln could not cool too quickly and that unlike the other machinery which could be shut down without any substantial imme- diate damage, the kiln needed supervision during the cooling off period. Despite the argument made by Re- spondent that damage could have come to other equip- ment, the evidence adduced by Respondent does not es- tablish that any production equipment other than the kiln was damaged. Larry Ousky testified that he arrived at the plant at about 10 a.m. on 8 March and that the kiln was shut down and no further damage was being done. According to Ousky, damage was done to the kiln by not maintain- ing a flow of feed (slurry) into the kiln and leaving the drafts to the kiln open. The kiln remained operable but damage from warpage causes the kiln to lose brick every 6 or 7 weeks. After consultation with the kiln supervisor, Ray Dunlop, a decision was made to resume production. This was done at about 3:30 or 4 p.m. on 8 March and by late in the day on 9 March, full production had been resumed. 14 Hardin did not testify at the hearing 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent contends that in the circumstances of this case it was entitled to reasonable notice of the Union's intent to strike in order to avoid damage to its equip- ment. The General Counsel, on the other hand, argues that adequate advance notice was provided; reasonable precautions taken; and that any damage to the kiln was the fault of the Respondent. The general proposition was set out by the Board in Marshall Car Wheel Co., 107 NLRB 314 (1953), where the Board said: In cases involving supervisory and plant-protec- tion employees, the Board has recognized the valid- ity of the general principle that the right of certain classes of employees to engage in concerted activity is limited by the duty to take reasonable precautions to protect the employer's physical plant from such imminent damage as forseeably would result from their sudden cessation of work. We are of the opin- ion that this duty extends as well to ordinary rank- and-file employees whose work tasks are such as to involve responsibility for the property which might be damaged. Employees who strike in breach of such obligation engage in unprotected activity for which they may be discharged or subjected to other forms of discipline affecting their employment con- ditions.1 s In my opinion, the circumstances of the instant case do not call for the application of this precedent. Let us ex- amine the circumstances. Prior to the walkout, Hardin was told that a strike had been called and he was asked whether he wanted to continue the operation or shut down. While it is true that shutting down was the only viable option, it also appears that the operators of the equipment took appropriate steps to shut down the equipment. The kiln was the only piece of equipment damaged. Even with respect to the kiln, it appears that steps were taken to minimize the possibility of damage to it. Those responsible for the kiln did not leave until they had asked for and received approval from Hardin. This suggests that Hardin was satisfied that adequate steps had been taken to prevent damage to the kiln. There was no "sudden cessation of work." Had Hardin asked for more to be done to ensure that the kiln not be damaged, it is likely that the employees would have stayed until that had been accomplished. Hardin was the only supervisor working on this shift, and was inexperienced in the oper- ation of the kiln. This may have made it more difficult for him to cope with a full shutdown of the kiln. How- ever, this lack of experienced supervision was not the re- sponsibility or the fault of the Union. They were not obliged to withhold strike action until the Respondent provided adequate and experienced supervision. In my opinion, the damage done to the kiln was more a failure on the part of Respondent to exercise diligence in re- sponding to the strike than any fault on the part of the Union in failing to take reasonable precautions. Most strikes involve an interruption, disruption, incon- venience, and economic loss to an employer. These are the forseeable and lawful consequences of strike activity. In this case, the notice was adequate; the precautions were reasonable; and the shutdown was orderly. In these circumstances, I conclude that the discharges of the above-named employees were unlawful in violation of Section 8(a)(3) of the Act. 11. Deferral issue Respondent contends that the discharges in issue have been waived by the Union because it "ignored" a Dubo16 referral letter dated 31 October 1985 regarding Case 8-CA-18343-1 from the Regional Director. I do not agree. In circumstances where, as here, the parties have no contract, there is no basis for a deferral, and Dubo is not really applicable. The grievance arbitration provision alluded to was part of Respondent's lawful uni- laterally imposed conditions of employment, but have never been agreed on between the Union and Respond- ent. Arizona Portland Cement Co., 281 NLRB 304 (1986). 12. The second strike The orginal strike ended when Respondent's offer to return to work was accepted at a meeting of the union membership in early June attended by some 40 to 50 members. Donald Fisher testified that he recommended that they return and had legal counsel to that effect. The employees returned to work on 12 June. The member- ship was aware at the time that it accepted Respondent's offer that certain employees had been discharged and would not be allowed to return. However, after some debate at the meeting, they decided to accept Respond- ent's offer and return to work. On 17 June, another union meeting was held at which there was a discussion of the Respondent's unfair labor practices, including those found herein to be unfair labor practices, particularly those employees discharged during the strike. The union members present complained that nothing had been done to resolve any of the matters since they had returned to work, and they voted 55 to 1 to strike again, and did so on 18 June. There was also some discussion at this meeting about the suspension of five employees on 12 June. t 7 However, according to Donald Fisher, this was not a major topic of discussion. International Representative August Clavier attended the 17 June meeting and supported a proposal to call a second strike. The General Counsel contends that the second strike was caused by Respondent's failure to remedy the unfair labor practices, including the unlawful discharge of strik- ers. Respondent argues that once having accepted Re- spondent's offer of reinstatement and returning to work, the Union waived its right to strike, and could not there- after claim unfair labor practice strike status for a second strike protesting the same unfair labor practices. Clearly the discharges of striking employees were con- tinuing unfair labor practices, and I have concluded that these discharges, with the exception of Jordan, Emory, 15 See also Harsco Corp, 256 NLRB 863 (1981), where the principle is discussed and rejected in circumstances where an employer argued that machinery should have been left running when the walkout began. 1 a Dubo Mfg Corp., 142 NLRB 431 (1963) 1T An unfair labor practice charge was filed but later dismissed as to those discharges COLUMBIA PORTLAND CEMENT CO and Tipton, were unlawful. In addition, I have found unfair labor practices as to various other misconduct, all of which is set out above. None of these violations have been remedied by Respondent and were not remedied at the time of the second strike 17 June. In these circum- stances, I am satisfied that the second strike, like the first, was motivated by the Respondent's continuing unfair labor practices, rather than the discharges of 12 June. The 12 June discharges, while discussed at the 17 June union meeting, were not motivating considerations in the Union's decision to strike. Nor can I construe the decision to return to work as a waiver of the employees' right to strike, and it was an unfair labor practice strike, despite the fact that the Union was aware when it re- turned to work that the dischargees were not returning. New unfair labor practices were not necessary in order to constitute the second strike an unfair labor practice strike. In short, in circumstances where there exists out- standing, continuing, unremedied unfair labor practices, the Union could reconsider its decision to return to work and strike again. IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section III above, in connection with Respondent's operations described in section I above, have a close and intimate relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices, I shall recommend that they cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having concluded that Respondent unlawfully discharged Russell Barrett, James Dalrymple, Jimmy Hughes, Mark Jellison, Homer Searls, Gene Swingle, George Williams, Michael Corbett, Michael Fisher, Paul Fisher, Larry Jarvis, Joseph Stoneburner, and Larry Tyo, to the extent that this has not been accomplished, Respondent shall be ordered to offer them full and im- mediate reinstatement to their former positions of em- ployment or, if those positions no longer exist, to sub- stantially equivalent employment, without prejudice to their seniority or other rights and privileges, and back- pay, with interest, from the date of their discharges. Abilities & Goodwill, 241 NLRB 27 (1979); Gulf Envelope Co., 256 NLRB 320 (1981). As to Wartenbe, as noted above, reinstatement is not ordered, however, backpay shall run from 18 April 1985, the time of his unlawful suspension and discharge, until 2 August 1985, the date of the homicide for which he was later convicted, and which event I have concluded tolls the Respondent's reinstatement and backpay obligations. As to Luzadder and Frame, whose discharges were re- duced to 5-day suspensions, I conclude that when they failed to report to work on 19 and 20 June 1985, respec- tively, they reacquired unfair labor practice striker 423 status. As to them, Respondent's backpay obligation will run from the time of their unlawful discharges to their reporting dates after the suspensions. Thereafter, like the other unfair labor practice strikers, their reinstatement would be contingent on an application to return to work. In addition, the employees who participated in the strike caused by the Respondent's unfair labor practices, shall, on their application for reinstatement, be reinstated to their former positions or, if such positions no longer exist, to substantially equivalent positions without impair- ment to their seniority and other rights and privileges, dismissing, if necessary, any persons hired as replace- ments on or after 18 June 1985. If, after such dismissals, there are insufficient positions remaining for all the strik- ing employees who desire reinstatement, the available positions shall be distributed among them without dis- crimination because of their union membership or activi- ties or participation in the strike, in accordance with se- niority or other nondiscriminatory practices as have been applied in the past by the Respondent in the conduct of its business at its plant in Zanesville, Ohio. Those strik- ers, if any, for whom no employment is immediately available after such distribution, shall be placed on a preferential hiring list with priority determined among them by seniority or other nondiscriminatory practices and thereafter, in accordance with such system, they shall be offered reinstatement as positions become avail- able and before other persons are hired for such positions of work. The striking employees shall be made whole for any loss of earnings they may have suffered, or may suffer, by reason of the Respondent's refusal, if any, to reinstate them by payment to each of them a sum of money equal to that which he or she would have earned during the period from 5 days after the date on which he or she applied, or shall apply, for reinstatement, to the date of the Respondent's offer of reinstatement, should there be any, absent a lawful justification for the Re- spondent's failure to make such an offer. All backpay and reimbursement provided herein, with interest, shall be computed in the manner prescribed in New Horizons for the Retarded,1' and F. W. Woolworth Co., 90 NLRB 289 (1950). CONCLUSIONS OF LAW 1. The Respondent, Columbia Portland Cement Com- pany, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL-CIO affiliated with Cement, Lime, Gypsum and Allied Workers Divi- sion, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 18 In accordance with the Board's decision in New Horizons for the Re- tarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1987 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. At all times material, the following described unit has been an appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Respondent's Zanesville, Ohio facility, excluding all office clerical employees and profes- sional employees, guards and supervisors as defined in the Act. 4. At all times material, the Union has been, and is now, the exclusive representative of the employees in the above-described bargaining unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. The Respondent and Union were parties to a collec- tive-bargaining agreement from 1 May 1981 to 1 May 1984, extended to 5 September 1984 when it was lawful- ly terminated by Respondent. 6. On 28 October 1984, after impasse in negotiations, Respondent lawfully and unilaterally implemented its contract proposals. 7. By conducting investigatory interviews of employ- ees Donald Fisher, Marvin Baker, and Paul Slack after having denied their request for union representation, Re- spondent violated Section 8(a)(l) of the Act. 8. By threatening employee Paul Slack with suspension for refusing to participate in an investigatory interview after having denied his request for union representation, Respondent violated Section 8(a)(1) of the Act. 9. By threatening to force employee Robert Wartenbe to participate in an investigatory interview after having denied his request for union representation, Respondent violated Section 8(a)(1) of the Act. 10. By threatening employee Robert Wartenbe with reprisals for refusing to participate in an investigatory interview after having denied his request for union repre- sentation, Respondent violated Section 8(a)(1) of the Act. 11. By suspending employee Robert L. Barrett, and suspending and discharging employee Robert Wartenbe for refusing to participate in an investigatory interview after having denied their request for union representa- tion, Respondent violated Section 8(a)(3) of the Act. 12. By refusing to process grievances filed prior to 5 September 1984, under the terms of the collective-bar- gaining agreement in effect from 1 May until 5 Septem- ber 1984, Respondent has violated Section 8(a)(5) of the Act. 13. By refusing to process grievances filed between 5 September and 28 October 1984 under the terms of the collective-bargaining agreement in effect from 1 May to 5 September 1984, Respondent has violated Section 8(a)(5) of the Act. 14. The Respondent did not violate the Act by refus- ing to arbitrate grievances filed between 5 September and 28 October 1984 under the terms of the collective- bargaining agreement in effect from 1 May 1981 to 5 September 1984. 15. By insisting that grievances filed between 5 Sep- tember and 28 October 1984 be processed under the grievance procedures of the implemented contract pro- posal of 28 October 1984, Respondent has violated Sec- tion 8(a)(5) of the Act. 16. By establishing a policy that only active employees could participate in the filing and processing of griev- ances, Respondent has violated Section 8(a)(1) and (5) of the Act. 17. By refusing to allow the retired grievance commit- tee chairman, Boyd Folden, to participate in the filing and processing of grievances, Respondent has violated Section 8(a)(1) and (5) of the Act. 18. The Respondent did not violate the Act by discon- tinuing the issuance of work gloves to employees. 19. The strike of 8 May 1985 was an unfair labor prac- tice strike. 20. The strike of 18 June 1985 was an unfair labor practice strike. 21. By discharging or suspending employees Terry Frame, Keith Luzadder, Russell Barrett, James Dalrym- ple, Jimmy Hughes, Mark Jellison, Homer Searls, Gene Swingle, George Williams, Michael Corbett, Michael Fisher, Paul Fisher, Larry Jarvis, Joseph Stoneburner, and Larry Tyo for having participated in the strike which began on 8 May 1985, Respondent has violated Section 8(a)(3) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edis ORDER20 The Respondent, Columbia Portland Cement Compa- ny, Zanesville, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Conducting investigatory interviews of employees after having denied their requests for union representa- tion. (b) Threatening employees with suspension for refus- ing to participate in investigatory interviews after having denied their requests for union representation. (c) Suspending, discharging, or otherwise discriminat- ing against any employee for refusing to participate in in- vestigatory interviews after having denied their request for union representation. (d) Refusing to bargain collectively within the mean- ing of the Act with United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL-CIO affiliated with Cement, Lime, Gypsum and Allied Workers Division, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO as the exclusive bargaining repre- sentative of its employees in the appropriate unit by: re- fusing to process grievances filed prior to 5 September 1984 under the terms of the expired contract; refusing to 19 If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 20 In the absence of circumstances indicating the propriety of a visita- tonal clause as a part of the proposed remedial Order herein, the General Counsel's request therefore is denied COLUMBIA PORTLAND CEMENT CO. process grievances filed between 5 September and 28 October 1984 under the terms of the expired contract; in- sisting that grievances filed between 5 September and 28 October 1984 be processed under the grievance proce- dures of the implemented contract proposal of 28 Octo- ber 1984. (e) Refusing to bargain collectively within the meaning of the Act with United Cement, Lime, Gypsum and Allied Workers' International Union, Local No. 24, AFL-CIO affiliated with Cement, Lime, Gypsum and Allied Workers Division, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO by: establishing a policy that only active employees could participate in the filing and proc- essing of grievances; refusing to allow retired Union grievance committeeman Boyd Folden to participate in the filing and processing of grievances. (f) Discharging, suspending, or failing to reinstate any employee for participation in a strike or engaging in any other union or concerted activities protected by Section 7 of the Act. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act.21 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole employees Robert Barrett, Robert Wartenbe, Russell Barrett, James Dalrymple, Terry Frame, Jimmy Hughes, Mark Jellison, Keith Luzadder, Homer Searls, Gene Swingle, George Williams, Michael Corbett, Paul Fisher, Larry Jarvis, Larry Tyo, Joseph Stoneburner, and Michael Fisher to the extent this has not been accomplished, for any loss of pay they may have suffered by reason of the discrimination against them found herein, to be computed in conformity with the remedy section of this decision. (b) Offer to Russell Barrett, James Dalrymple, Jim Hughes, Mark Jellison, Homer Searls, Gene Swingle, George Williams, Michael Corbett, Paul Fisher, Larry Jarvis, Larry Tyo, Joe Stoneburner, and Michael Fisher immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges. (c) On application for reinstatement on behalf of em- ployees who participated in the unfair labor practice strike which began on 18 June 1985 and who have not already been reinstated, offer full and immediate rein- statement to all such employees or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired as replacements on or after 18 June 1985. If, after such dismissals, suffi- 21 Hickmott Foods, 242 NLRB 1357 (1979) 425 cient jobs -are not available for these employees, they shall be placed on a preferential hiring list in accordance with their seniority or nondiscriminatory practices uti- lized by the Respondent, and they shall be offered em- ployment before any other persons are hired. These em- ployees shall be made whole for any loss of earnings, if any there be, they may have suffered or may suffer by reason of Respondent's refusal and failure to reinstate, all of which is to be done in the manner set forth in the remedy section of this decision. (d) Remove from its files any references to the suspen- sions or discharges of any of the above-named employ- ees, and notify them in writing that this has been done and that evidence of these unlawful suspensions and dis- charges will not be used as a basis for future personnel action against them. (e) Process, on request, through the grievances and ar- bitration procedures of the expired 1981-1984 contract those grievances arising under that contract. (f) Process, on request, through the grievance proce- dure of the expired 1981-1984 contract, those grievances arising during the hiatus between the expiration of the extended 1981-1984 contract (5 Sept. 1984) and the im- plementation of Respondent's contract proposal (28 Oct. 1984). (g) Recognize and bargain with Boyd Folden as a rep- resentative of the Union in the filing and processing of grievances. (h) Rescind any rule or policy stating that only active employees will be recognized as union representatives in the processing of grievances. (i) Preserve and, on request, make available to the Board or its agents for examination and copying all pay- roll records, social security records, and reports, and all other records necessary to analyze the amounts of back- pay due herein. 0) Post at its Zanesville, Ohio plant, copies of the at- tached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (k) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 22 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 "