Auburn Foundry, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1317 (N.L.R.B. 1985)

AUBURN FOUNDRY 1317
Auburn Foundry , Inc. and Roy Sayles , Jr. and
Local 322, International Molders and Allied
Workers Union , AFL-CIO, CLC. Cases 25-
CA-13380 and 25-CA-13889
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 May 1982 Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent and the General Counsel (joined by
the Charging Party) filed exceptions and support-
ing briefs, and the Respondent filed a reply brief to
the General Counsel's exceptions.
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,' and
conclusions2 and to adopt the recommended Order
as modified.3
' The General Counsel has excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an administra-
tive 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
195'.) We have carefully examined the record and find no basis for re-
versing the findings
No exceptions were filed to the judge 's finding that the Respondent
violated the Act by discharging George Sanchez
2 The judge found that during the 10(b) period the Respondent had
maintained solicitation -distribution rules that violated Sec 8 (a)(1) We
agree that the Respondent 's rules were unlawfully broad, but we do not
endorse the holding in TR W Bearings, 257 NLRB 442 (1981), which
Our Way, Inc, 268 NLRB 394 (1983), reversed The judge concluded
that no remedial action was necessary on the basis of company counsel's
representation that after the close of the hearing the Respondent modified
its rules We have, however, no record evidence of the purported modifi-
cation We therefore have no evidence whether there has been adequate
publication to assure employees that in the future their employer will not
interfere with the exercise of their Sec 7 rights Consequently, we be-
lieve it is necessary to provide an appropriate remedy for the violation,
and we shall leave to the compliance stage of this proceeding the deter-
mination whether the rules have been properly amended
The judge found that the Respondent unlawfully discharged striking
employee Sanchez and ordered that the Respondent reinstate him, dis-
missing , if necessary , anyone hired to replace him We note that the em-
ployees began striking 26 April 1981 and that the Respondent discharged
Sanchez 6 August 1981 We shall modify the judge's recommended
Order to require the Respondent to reinstate Sanchez if he had not been
permanently replaced before 6 August 1981 , dismissing , if necessary, any
replacement hired after that date
Member Dennis agrees with the dissent in Abilities & Goodwill, 241
NLRB 27 (1979), that the majority in that case improvidently overruled
more than 30 years of Board precedent requiring unlawfully discharged
strikers to offer to return to work in order to initiate the running of back-
pay Absent three votes to overrule Abilities & Goodwill, Member Dennis
will apply the remedy set forth in that decision
Chairman Dotson would overrule Abilities & Goodwill and would, in
the event Sanchez was not permanently replaced prior to his discharge,
date the Respondent's backpay obligation to Sanchez from the time the
striking Sanchez made an unconditional offer to return to work
3 We shall modify the judge's recommended Order to require that the
Respondent expunge from its files any reference to Sanchez ' unlawful
discharge and to notify him, in writing, that it has done so and that evi-
dence of the unlawful discharge will not be used as a basis for future per-
sonnel actions against him See Sterling Sugars, 261 NLRB 472 (1982)
The judge found that employees Kern Collins
and Willard Hughes engaged in conduct sufficient-
ly serious to justify the Respondent's disharge of
them, but that the Respondent's discharge of em-
ployee Andy Handshoe violated Section 8(a)(3)
and (1). We agree with the judge's conclusions re-
garding Kern Collins and Hughes. We do not,
however, agree with his conclusion that Hand-
shoe's discharge violated the Act.
On 5 August 1981 Kern Collins, Hughes, and
Handshoe met at strike headquarters. They went
together in Kern Collins' station wagon to a park-
ing lot near the Respondent's plant, where they
met James Collins. Handshoe left the station wagon
and entered James Collins' Nova. The Respond-
ent's vice president (Reesman), who recognized
Kern Collins' vehicle from previous strike inci-
dents, pulled into the parking lot and stopped be-
tween the station wagon and the Nova. The station
wagon and Nova left the lot, but came back after
Reesman left . Reesman then returned to the lot.
When a Monte Carlo carrying several nonstrik-
ing employees passed the parking lot, Kern Collins
and Hughes drove out of the lot in Collins' station
wagon and followed the Monte Carlo. As Kern
Collins left the lot, he gestured to James Collins to
follow. Reesman followed the station wagon out of
the lot. James Collins (who had left his car to
speak to a parking lot attendant) got back into the
Nova, and he and Handshoe drove out of the lot.
The Monte Carlo, the station wagon, and Reesman
proceeded down a state road at high speed for 8 or
9 miles. About 2 miles down the road, Reesman
observed a car behind him, also traveling at high
speed. The Monte Carlo and station wagon sudden-
ly turned off the state road at an intersection that
Reesman missed He stopped a short distance down
the road, turned around, and drove back. Ap-
proaching the intersection, Reesman saw the Nova
(which was the car he had observed behind him)
turn the same direction as the Monte Carlo and the
station wagon had turned. Reesman made the same
turn and, shortly after, came upon the Nova, which
had sideswiped a car driven by an unidentified
person
The judge, based on Reesman's testimony (cor-
roborated by witnesses who were occupants in the
Monte Carlo), found that Kern Collins and Hughes
in Collins' station wagon pursued the Monte Carlo
in which several nonstriking employees were
riding. The judge specifically discredited the testi-
mony of Kern Collins, Hughes, and James Collins
We shall also modify the judge's recommended Order to accord with
the finding that the Respondent maintained unlawful solicitation-distribu-
tion rules
274 NLRB No. 192
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they were merely going to James Collins'
house. The judge concluded instead that Kern Col-
lins, accompanied by Hughes in the station wagon,
chased the Monte Carlo for the purpose of intimi-
dating employees who chose to work during the
strike. But the judge found that the record estab-
lished only that James Collins and Handshoe drove
from Auburn to a point where the Nova collided
with another car and failed to reveal that the Nova
was chasing anyone.
We believe the judge ' s analysis distorts what is
essentially a single continuous event (the station
wagon 's chasing of the Monte Carlo at high speed
followed by Reesman and the Nova ) into separate
incidents . The details of the single continuous
event are: Kern Collins , Hughes, and Handshoe
were in association from the time they met at strike
headquarters ; from strike headquarters , they went
together to the parking lot, where they met James
Collins; as Kern Collins and Hughes drove from
the' lot to pursue the Monte Carlo, Kern Collins
gestured for James Collins to follow ; James Collins
and Handshoe took the same route as the Monte
Carlo and station wagon , following at high speed
directly behind Reesman.
We believe that an assessment of the record as a
whole, including the inherent probabilities and par-
ticularly the judge 's discrediting of the General
Counsel ' s witnesses in reaching his conclusion that
Kern Collins and Hughes were pursuing the Monte
Carlo, makes it improbable that the Nova 's driving
at extraordinary speed down the same route as the
Monte Carlo and station wagon was a coincidence
entirely unrelated to the high speed chase in
progress . Rather , we find it more reasonable to
infer from the record as a whole that James Collins
and Handshoe were engaged in the same high
speed chase as Kern Collins and Hughes for the
purpose of intimidating nonstriking employees.
Accordingly , we find that Handshoe participated
with Kern Collins and Hughes in misconduct that
clearly has a reasonable tendency to coerce and in-
timidate employees in the exercise of Section 7
rights.4 Clear Pine Mouldings , 268 NLRB 1044
(1984). Therefore , the Respondent ' s discharge of
Handshoe did not violate the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge, as modified and set out in full below, and
orders that the Respondent , Auburn Foundry, Inc.,
Auburn, Indiana, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Local 322,
International Molders and Allied Workers Union,
AFL-CIO, CLC, or any other labor organization,
by discharging employees for engaging in a pro-
tected strike or other lawful union or concerted ac-
tivities for the purpose of mutual aid or protection.
(b) Altering the hours employees are to report
for or leave work because they file a grievance
against foremen pursuant to the collective -bargain-
ing agreement with the above -named Union.
(c) Maintaining unlawful no-distribution and no-
solicitation rules.
(d) In any like or related manner interfering
with , restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer employee George Sanchez immediate
and full reinstatement to his former job or , if that
job no longer exists, to a substantially equivalent
position , without prejudice to his seniority or any
other rights or privileges , if he was not permanent-
ly replaced before 6 August 1981, dismissing if nec-
essary any replacement hired after that date; and
make him whole for any loss of earnings he may
have suffered by reason of the discrimination
against him in the manner set forth in the remedy
section of the administrative law judge's decision,
as modified . If no employment is available for such
employee, he shall be placed on a preferential
hiring list based on seniority , or some other nondis-
criminatory test , for employment as a job becomes
available.
(b) Expunge from its files any reference to the
unlawful discharge of employee George Sanchez
on 6 August 1981 and notify him in writing that
we have done so and that evidence of the unlawful
discharge will not be used as a basis for future per-
sonnel actions against him.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at ' its place of business in Auburn, Indi-
ana, copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by
4 Member Dennis agrees that Handshoe voluntarily participated in the
same strike misconduct for which Kern Collins and Hughes were justifi-
ably discharged , and Handshoe has likewise forfeited his right to protec-
tion under the Act See her concurrence in Clear Pine Mouldings
5 If this Order is enforced by a Judgment of a United States Court of
Appeals , the words in the notice reading "Posted by Order of the Na-
Continued
AUBURN FOUNDRY 1319
the Regional Director for Region 25, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
available for him, WE WILL place him on a prefer-
ential hiring list based on seniority, or some other
nondiscriminatory test, for employment as a job be-
comes available.
WE WILL expunge from our files any reference
to the unlawful discharge of employee George San-
chez on 6 August 1981, and notify him in writing
that we have done so and that evidence of this un-
lawful discharge will not be used as a basis for
future personnel actions against him.
AUBURN FOUNDRY, INC.
DECISION
STATEMENT OF THE CASE
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in Local
322, International Molders and Allied Workers
Union, AFL-CIO, CLC, or any other labor orga-
nization, by discharging employees for engaging in
a protected strike or other lawful union or concert-
ed activities for the purpose of mutual aid or pro-
tection.
WE WILL NOT alter the hours employees are to
report for or leave work because they file griev-
ances against foremen pursuant to our collective-
bargaining agreement with Local 322, International
Molders and Allied Workers Union, AFL-CIO,
CLC.
WE WILL NOT maintain unlawful no-distribution
and no-solicitation rules.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL. offer employee George Sanchez imme-
diate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
any other rights or privileges, if he was not re-
placed before 6 August 1981, dismissing if neces-
sary any replacement hired after that date; and
make him whole for any loss of earnings he may
have suffered by reason of our discrimination
against him, with interest. If no employment is
DONALD R HOLLEY, Administrative Law Judge. On
an original charge filed in Case 25-CA-13380 by Roy
Sales Jr., the Regional Director for Region 25 of the Na-
tional Labor Relations Board issued a complaint on May
26, 1981, alleging, inter alia, that at various times in De-
cember 1980 Respondent interrogated and threatened
Sayles in connection with his grievance activities and
that it suspended and then terminated him because he en-
gaged in protected activity Respondent filed a timely
answer denying that it had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as alleged. Sub-
sequently, on an original charge filed by the above-
named Union in Case 25-CA-13889, the above-named
Regional Director issued an order consolidating cases
and a complaint and notice of hearing dated October 29,
1981, consolidating the above-described cases for trial
and alleging, inter alia, that Respondent terminated
George Sanchez on August 5, 1981, and Kern Collins,
Willard Hughes, and Andy Handshoe on August 6, 1981,
in violation of Section 8(a)(1) and (3) of the Act By
timely answer, Respondent denied that it had engaged in
the unfair labor practices alleged in Case 25-CA-13889,
and it affirmatively pleaded that the four named employ-
ees were terminated because they had engaged in unpro-
tected strike misconduct.
When the hearing opened, the General Counsel was
permitted to amend the complaint to allege that a no-
solicitation/no-distribution rule contained in Respond-
ent's employee handbook is unlawfully broad and viola-
tive of Section 8(a)(1) of the Act
The cases were tried before me in Auburn, Indiana, on
November 17, 18, and 19, 1981. All parties appeared and
were afforded full opportunity to participate. The Gener-
al Counsel and counsel for Respondent filed posthearing
briefs which have been carefully considered. On the
entire record in the case, the briefs, and arguments and,
from my observation of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I JURISDICTION
Respondent, an Indiana corporation , is engaged at
Auburn, Indiana, in the operation of a gray iron foundry.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the calendar year 1980, it sold to customers lo-
cated outside the State of Indiana goods and materials
valued in excess of $50,000 and during the same period it
purchased goods and materials valued in excess of
$50,000 from suppliers located outside the State of Indi-
ana Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
Ii STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act
III, THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Respondent operates a gray iron foundry which
produces mostly castings for the automotive, farm,
equipment, and housing industries At all times material,
its foundry employees were supervised by Robert Rees-
man, vice president and plant manager, David N. Fergu-
son, director of industrial relations; John Hood, mainte-
nance superintendent, Don Pritchard, maintenance fore-
man, Emmett Bennet, foreman, and Richard Taylor,
plant superintendent '
The production and maintenance employees employed
at the foundry are represented by the Union On April
24, 1981, the then existing collective-bargaining contract
between Respondent and the Union expired by its terms
and, on April 26, the bargaining unit employees went on
strike 2
B. Contention of the Parties
junction enjoining the Union and its members from en-
gaging in specified activities at or away from their picket
locations 3 On August 5 and 6, 1981, Respondent notified
employees Sanchez, Collins, Hughes, and Handshoe by
separate letters that they had been terminated because
they had engaged in unprotected strike-related activities.
Sanchez failed to respond to a subpoena issued by the
General Counsel and did not appear at the trial Certain
documents which reveal his strike-related conduct were
placed in the record by stipulation 4 The General Coun-
sel contends that Sanchez' strike activities were not suffi-
ciently serious to warrant discharge. Respondent claims
Sanchez was guilty of serious strike misconduct and its
decision to disharge him for engaging in activity not pro-
tected by the Act was proper
The permanent injunction obtained by Respondent on
July 16, 1981, enjoined the Union and its members from,
inter alia (R Exh. 15)• "6 Threatening, intimidating, or
putting in fear any of the plaintiff's officers and employ-
ees . . . " Respondent claims that employees Collins,
Hughes, and Handshoe threatened and intimidated sever-
al nonstriking employees when they left the foundry
after working the second shift on August 5, 1981, by en-
gaging in a high-speed chase of the automobile in which
the nonstriking employees were riding. It claims such ac-
tivity was unprotected and that it lawfully terminated
the employees named because they engaged in such ac-
tivity. The General Counsel contends that Collins,
Hughes, and Handshoe did not engage in the activity at-
tributed to them, and assuming, arguendo, that they did,
the conduct was not sufficiently serious to justify a deci-
sion to discharge them.
1 Sayles
During the course of the term of the 1978-1981 collec-
tive-bargaining agreement, employee Sayles filed two
grievances accusing Foreman Pritchard of performing
bargaining unit work About the same time, Pritchard
orally reprimanded Sayles several times, once for taking
too long for lunch, and once for failing to grease certain
machinery which was supposed to be greased every day.
During an altercation between the employee and his
foreman on December 6, 1980, Sayles was suspended in-
definitely and on December 10, 1980, he was terminated
by Respondent. The General Counsel contends Sayles
was fired because he filed grievances against Pritchard.
Respondent claims that Sayles quit his employment be-
cause he wanted to carry mail and farm full time
2 Sanchez, Collins, Hughes, and Handshoe
The 1978-1981 collective-bargaining agreement be-
tween Respondent and the Union expired on April 24,
1981, and the employees went on strike April 26. During
the course of the strike, Respondent sought and obtained
in the Circuit Court of Dekalb County, Indiana, a tempo-
rary restraining order and, subsequently, a permanent in-
' It is admitted, and I find, that each of the named individuals are, and
have been at all time,, material, agents of Respondent and supervisors
within the meaning of Sec 2(11) and (13) of the Act
2 See R Exh 2
3. The no-solicitation/no-distribution rule
The General Counsel contends that the no-
solicitation/no-distribution rule contained in Respond-
ent's employee handbook is unlawfully broad and there-
fore violative of Section 8(a)(1) of the Act Since the
record was closed in this proceeding, Respondent has re-
vised the pertinent section of the employee handbook
and has attached a copy of such revision to its brief It
claims that no remedial order is necessary in the circum-
stances.
C The Sayles Situation
Roy Sayles was hired by Respondent in July 1979. His
job classification was millwright lubrication. He worked
the third shift (10 p.m. to 6.30 a.m.) and his immediate
foreman was Don Pritchard The record reveals that he
was proficient at his job. Thus, he received a merit in-
crease in September 1979 and was thereafter offered, but
refused, promotion to the job formerly held by employee
James Slents 5
3 See R Exhs 14 and 15
" See G C Exhs 9(a), (b), and (c)
a Sayles thought the job held by Slents was a supervisory position Re-
spondent claims Slents was merely a plant clerical employee Slents'
status was not fully litigated so the record contains insufficient facts to
permit me to determine whether he was a supervisor within the meaning
of the Act
AUBURN FOUNDRY
During his last 3 weeks in November 1980, Sayles,
with the permission of Maintenance Superintendent
Hood, reported for work at 9.30 p in and quit work at 6
a m. as he was then substituting for a Postal Service mail
carrier at the Kendallville, Indiana Post Office who was
on vacation
On November 25, 1980, Sayles filed a grievance
against Foreman Pritchard claiming the supervisor had
performed bargaining unit work on November 24, 1980 6
By November 29, 1980, Sayles had returned to work
during the regular hours for his shift-10 p in to 6.30
a m. On December 1, the mail carrier for whom he had
substituted had a heart attack Consequently, on Decem-
ber 1, Sayles informed Maintenance Superintendent
Hood the carrier was ill and that the Postmaster had
asked if he would carry the mail again . According to
Sayles, Hood agreed he could report and leave early
again 7
On December 1, two additional events occurred. First,
Pritchard timed Sayles when he took his lunch break
that day When he returned, Pritchard asked if he was
returning from lunch and, when the employee answered
yes, Pritchard told him he had taken 45 minutes rather
than the allowed 35 minutes 8 Sayles denied he had
taken 45 minutes and invited Pritchard to look at his
timecard which he claimed showed he was off the clock
for 29 minutes. According to Sayles, Pritchard asked him
what kind of games be was playing and Sayles explained
that after clocking in he had gone to his car to leave his
lunch pail and had then stopped at the men's room.
When Pritchard did not relent, Sayles informed him he
thought he was discriminating against him and Pritchard
called Union Steward Sidney Roberts over When Rob-
erts joined them, Pritchard again indicated he had timed
Sayles and he had taken too long at lunch Sayles repeat-
ed what he had done, and then, according to Roberts,
Pritchard "mentioned the grievances" and said they
were playing games, stating, "That means you, too,
young man "9 Sayles then asked what Pritchard was ac-
cusing them of and, when Pritchard failed to answer,
Sayles asked if Pritchard was finished. Pritchard replied
yes, and Sayles returned to work. At the conclusion of
the shift, Pritchard, in the presence of Roberts and em-
ployee Robert Yowel, gave Sayles a contact slip for
being late returning for lunch that day 10
6 Pritchard claimed during his testimony that he was performing work
due to an emergency and such was permitted by the contract Respond-
ent rejected the grievance See G C Exh 14
Hood testified Sayles merely told him the carrier had been found at
home-that he was not informed the man had had a heart attack Hood
claims he understood Sayles had requested permission to come in and
leave early on December 1 only
9 Lunch break is 30 minutes with an additional 5-minute allowance for
washup time
0 Sayles did not recall any mention of grievances and, while Pritchard
admitted making a remark about playing games , he denied he said any-
thing about grievances I conclude Roberts erroneously recalled that
grievances were mentioned during the conversation
10 A contact slip is a written account of a verbal warning Under Re-
spondent's disciplinary system employees are first orally warned There-
after , they are given written warnings as distinguished from contact slips
Four written warnings lead to termination
1321
At the end of the third shift on December 1,11 Sayles
and I1 other third-shift employees filed a grievance
against Pritchard accusing him of performing bargaining
unit work "almost every day "12
On December 2 about 5 p.m., Pritchard telephoned
Sayles' home and informed the employee that he was to
report for work that evening at the regular time Sayles
indicated he would do as requested Subsequently, Sayles
filed a grievance over the matter as he felt he was being
discriminated against 13 After filing the grievance, Sayles
reported for work at the normal time until he was sus-
pended on December 6, 1980 He did not attempt to dis-
cuss the situation further with Pritchaid or Hood.
On December 5, Sayles reported for work at 10 p m.,
his regular starting time A greasing schedule placed in
the record as Respondent's Exhibit I reveals that, as part
of his daily routine, Sayles was supposed to grease the
wheels on three mullor machines While Sayles and
Foreman Pritchard were in proximity to one another
during the shift, Sayles indicated they did not speak to
one another Some time between 3-30 and 5 a m. during
the morning of December 6, Pritchard decided to check
the mullor machines to see if the three wheels in each
machine had been greased by Sayles 14 When it ap-
peared to him that the machines had not been greased,
he questioned the cleanup man who had scraped the ma-
chines to ascertain whether the wheels had been greased.
When the cleanup man indicated they had not been
greased, Prithcard caused Union Steward Roberts and
another millwright, Wayne Abner, to crawl into the mul-
lors to see if they had been greased The employees con-
cluded after inspecting the machines that they had not
been greased Thereafter, at approximately 6 a.m ,
Pritchard paged Sayles indicating he should report to the
superintendent 's office When Sayles arrived, Hood,
Pritchard, and Roberts were present While Sayles, Rob-
erts, Pritchard, and Hood each described the meeting,
the General Counsel placed a memorandum prepared by
Pritchard several hours after the meeting in evidence as
General Counsel's Exhibit 9(a) In it, Pritchard states as
follows-
Meeting Comments
Told Roy I was giving him a contact slip for fail-
ure to perform assigned work (poor work effort).
Mullor wheels I asked Roy if he had anything to
say? Roy No comment I asked Roy did you grease
11 The shift actually ended at 6 30 a m (6 a in for Sayles) on Decem-
ber 2
12 See G C Exh 13
11 Hood testified he understood that Sayles had earlier requested per-
mission to report and leave early on December 1 only and that he in-
structed Pritchard to make the call For the reasons set forth, infra, I find
that Hood directed that Sayles report at the normal reporting time to
punish the employee for filing grievances against his foreman
14 Pritchard testified he checked the machine at 5 a in , about one-half
hour before they were to be run at 5 30 a in Roberts claims Pritchard
asked him to check the machines at 3 20 a in I accept Pritchard's esti-
mate of the time the machines were checked as the record reveals all
three machines could have been greased in an hour and they were not
greased If sufficient time remained to have them greased, I feel Pritchard
would have had them greased
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mullor wheels? Roy No comment I don't have to
answer any questions) I told him that as long as he
was working for me and Company was paying him
he should answer I asked Roy again did you grease
the mullor wheels? I don't have to answer your
questions.
I said Roy I am demanding a answer! Roy said
he still didn't have to answer Then I said I am tell-
ing you to answer Did you grease the mullor
wheels? Roy-Okay I didn't grease them. I told
him as far as I am concerned this was insubordina-
tion. I had him read Employee Handbook page 5
Article I #1. He said he didn't refuse-he just
didn't do it. I said that was his daily assigned work.
He said you know you, how you are saying that
you have your work to do and I have mine-well
my job and everyone else's is to watch so the fore-
man don't work John H. said since the Company is
paying you you are to do the work assigned and the
Union is not the one paying you.
Then I said I felt this was insubordination and as
far as I am concerned you are suspended subject to
dismissal and was [to] contact personnel.
Sayles' version of the December 6 meetings was that
Pritchard asked him three or four times if he had greased
the mullors and he refused to answer him. He claims
Pritchard then said he knew he had not greased them be-
cause he had Roberts and someone else check them; that
he (Pritchard) was going to write him up for failure to
perform assigned work According to Sayles, Pritchard
then wrote up a contact slip and handed it to him. He
refused to sign it but Roberts did sign it. Thereafter,
Pritchard took a little red book out of the desk and
stated that failure to perform assigned work was an act
of insubordination. Sayles stated he did not refuse to per-
form the work. Pritchard looked at Hood at that point
and asked what he thought Hood replied , "Borderline."
Sayles testified Pritchard then stated that as far as he was
concerned he was out of a job until he could talk to Fer-
guson and get the matter straightened out, and he further
stated . "I don't know what your problem is . . . but
these grievances filed against me has got to stop." At
that point, Sayles claims Hood said- "Roy . . you
weren't hired in here to file grievances against foremen.
You were hired in here to work for Auburn Foundry."
Sayles contends he informed Hood he had the privilege
of filing grievances and he then asked when he could see
Ferguson. Pritchard allegedly replied, "That's your
problem." Sayles' version of the meeting was corroborat-
ed by Roberts. 15
Roberts indicated during his testimony that he re-
turned to the plant the morning Sayles was suspended to
discuss the situation with Hood and Bruce Bammons,
who is in charge of plant maintenance At that time,
15 Prior to the December 6 meeting , Sayles had accused Pritchard of
discriminating against him While I am constrained to believe that Pritch-
ard was checking Sayles' work on the occasion under discussion to retali-
ate against the employee because he had filed grievances accusing the
foreman of performing bargaining unit work , I do not credit the employ-
ees' assertions that Pritchard stated during the conversation that the
grievances against him had to stop
Hood told Roberts that Sayles had been suspended be-
cause he refused to answer Pritchard's questions, and he
informed Roberts he had told Sayles he could not shift
his hours to work another job because if Roy Sayles was
not going to do them any favors, the Company was not
going to do him any favors either. Near the same time,
Pritchard held a meeting with second-shift maintenance
employees and informed them he had suspended Sayles
because he was insubordinate when he refused to grease
the mullor wheels
Ferguson, Respondent's director of industrial relations,
testified that normal procedure in case of a suspension
pending discharge is that a meeting is held in his office
the next working day after the employee is suspended to
permit him to hear the facts and determine what should
occur thereafter In the Sayles situation, Ferguson indi-
cated he made himself available at 6:30 a.m. on the
Monday following the suspension but Sayles did not call
or appear . Ferguson then scheduled a meeting in the
Sayles matter for 6 30 a . m. Wednesday , December 10,
and informed Union President Crager and Union Vice
President Ivan Tussey of the meeting , requesting that
they inform Sayles.
At some unstated time between Monday, December 8,
and Wednesday, December 10, Union Steward Roberts
telephoned Sayles to tell him of the Wednesday meeting.
Sayles then told Roberts he did not intend to attend. On
December 9, Ferguson attempted to telephone Sayles on
seven occasions . The seventh time, he reached Mrs.
Sayles and asked her to tell Sayles a meeting would be
held the next morning at 6:30 a . m. and if there was any
problem to have him give him a call. 16
On Wednesday, December 10, Ferguson, Hood,
Pritchard, and Roberts appeared at Ferguson's office for
the Sayles meeting, but Sayles did not appear. Ferguson
indicated at that time that his discussions with Hood and
Pritchard convinced him Sayles had a case and he in-
formed Roberts he would have put Sayles back to work
if he had attended the meeting . Since he did not attend,
Ferguson decided to consider him to have quit . Accord-
ingly, he sent him a letter dated December 10, 1980,
which stated , inter alia: t
When you failed to appear at this morning's meet-
ing and failed to attempt to re-schedule it, you left
the management with no alternative but to termi-
nate your employment with Auburn Foundry. You
have shown absolutely no desire to protect your job
or object to the recent suspension.
Accordingly, you are hereby advised that effective
this date, your employment has been terminated
with us and your services will no longer be re-
quired.
Analysis and Conclusions
The complaint in Case 25-CA- 13380 alleges that Re-
spondent treated Sayles discriminatorily when it . ( 1) rep-
rimanded him on December 1, 1980 (lunch matter), (2)
16 Sayles denied that his wife gave him the message I do not credit his
denial
AUBURN FOUNDRY 1323
required him to work his regular shift on and after De-
cember 2, 1980, (3 ) suspended him on December 6, 1980,
and (4) discharged him on December 10, 1980 For the
reasons stated below, I find that the General Counsel has
shown that Respondent violated Section 8(a)(1) and (3)
as alleged by requiring Sayles to report for work at the
regular starting time on December 2, 1980. For reasons
stated, I find that the General Counsel has offered insuf-
ficient evidence to prove the remaining allegations.
1. The late lunch
With respect to the December 1 lunchtime incident,
the record clearly reveals that employees were permitted
to take a 30 -minute lunch break and they were given an
additional 5 minutes for cleanup time It is undisputed
that Sayles was away from his work station more than
35 minutes on the occasion when Pritchard timed the
length of his lunch break The General Counsel caused
Sayles to explain why he was gone longer by eliciting
testimony which revealed he took his lunch pail back to
his car and went to the men's room after he clocked
back in from lunch In my view , that evidence is mean-
ingless absent a showing that other employees extended
their lunch period in the same manner without objection
from supervision The General Counsel made no such
showing. As a consequence , there is no basis for a find-
ing that Sayles was treated in a disparate manner.
In sum, while the record reveals Sayles filed a griev-
ance accusing Foreman Pritchard of performing bargain-
ing unit work approximately a week before the above-de-
scribed incident , and Pritchard made reference on De-
cember 1 to the fact that Sayles and Roberts were play-
ing games, Respondent had the right to require that its
employees absent themselves from their work stations
during lunch for a period not exceeding 35 minutes.
Sayles was gone longer, and the General Counsel has
failed to show he was treated disparately . In the circum-
stances, I find that the General Counsel has failed to
prove that Respondent violated Section 8(a)(1) and (3)
by orally warning Sayles on December 1 because he was
away from his work station more than 35 minutes.
2 Revocation of permission to report and leave
early
Union Steward Roberts' testimony concerning his De-
cember 6 conversation with Hood and other record evi-
dence convinces me Sayles was not permitted after De-
cember 1 to continue to report early for work and leave
early because he filed grievances against his foreman. In
essence, Hood's claim is that Sayles telephoned him on a
Monday evening indicating a mail carrier had failed to
show up for work and that he would like permission to
come in early and leave early that evening so he could
carry mail to substitute for him According to Hood, he
gave his permission and instructed Sayles to let him
know if he needed additional days Sayles' version is that
he told Hood the carrier had had a heart attack and that
he was given permission to resume reporting early and
leaving early and that nothing was said concerning the
length of time the arrangement would exist Significant-
ly, Sayles filed a grievance on December 2 when Pritch-
ard instructed him to report at his normal time again. I
conclude it unlikely that Sayles would simply tell hood
he needed to carry mail again because the carrier had
not shown up for work without indicating , as he con-
tends, that the carrier had experienced a heart attack.
Similarly, if Sayles asked for permission to report and
leave early on December 1 only, it is unlikely that he
would have filed a grievance alleging discrimination
when Pritchard altered his reporting and leaving time on
December 2 In short, logic compels me to conclude
Sayles' version of his conversation with Hood is accu-
rate
Acceptance of Sayles' assertion that no time limit was
discussed between him and Hood on December 1 leads
inescapably to a conclusion that Sayles was discrimina-
torily denied permission to report and leave early so he
could carry mail. Thus, Sayles testified without contra-
diction that in 1979, before he filed any grievances, he
was given permission to work through his lunch hour so
he could leave early to deliver mail. Moreover, he re-
called that an employee named Marty Amspock was per-
mitted to adjust his schedule so he could go to school,
and one Bob Miller was permitted to adjust his schedule
for an indefinite period so he could drive a schoolbus.
Finally, Hood practically admitted he was treating
Sayles in a disparate manner because he had filed griev-
ances attacking his foreman when he discussed Sayles'
schedule change situation with Roberts on December 6
and told Roberts that if Roy was not going to do them
any favors, the Company would do him none.
In sum , I find that Respondent, in accordance with its
past practice, gave Sayles permission on December 1 to
report for work early and leave early because he had a
good reason for requesting that his schedule be altered. I
further find that it treated him in a disparate manner by
revoking the arrangement on December 1 shortly after
the employee and I1 other employees filed a grievance
against Foreman Pritchard which accused him of per-
forming bargaining unit work Such conduct violates
Section 8(a)(1) and (3) of the Act as alleged.
3. The December 6 suspension
As revealed, supra, Sayles had, prior to the morning of
December 6, signed two grievances accusing Foreman
Pritchard of violating the contract by performing bar-
gaining unit work Significantly , while Sayles had been
employed since 1979, the record fails to reveal that he
had been given contact slips or any written warnings
prior to the time the first grievance naming Pritchard
was filed . Thereafter , however , he was timed when he
went to lunch in December and on December 2 he was
discriminatorily refused permission to report and leave
early. It was in the above context that Pritchard decided
on December 6 to check the employee 's work. Thus,
while I have refused to credit Roberts' and Sayles' asser-
tion that Pritchard told him on December 6 that griev-
ances against him had to stop , I indicate at the outset of
this analysis of the suspension situation that I infer that
Pritchard checked Sayles' work on the morning of De-
cember 6 because he was hoping to retaliate against the
employee because of the grievance situation.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the fact that I have found that Sayles' partici-
pation in protected activities motivated Foreman Pritch-
ard to check his work on the morning of December 6, I
conclude that his suspension was not violative of the
Act Thus, review of Respondent's work rules17 reveals
that an employee is subject to an oral warning (contact
slip) for "not performing work assignment," but he or
she is subject to immediate dismissal for "Insubordination
or refusal to perform the work assigned " At the outset
of the December 6 meeting, Sayles had, by failing to
grease the mullor wheels , subjected himself to an oral
warning and/or contact slip and, as found supra, Fore-
man Pritchard prepared such a document either before
or during the meeting . At that point Pritchard had no
valid reason for suspending the employee pending dis-
charge Unfortunately, however, Sayles clearly engaged
in insubordinate behavior when he refused to answer
Pritchard 's legitimate inquiries concerning the mullors.
Thus, when the foreman suspended the employee pend-
ing discharge at the end of the meeting, he was acting in
conformity with Respondent's published work rules.
In sum , I conclude that employee Sayles subjected
himself to suspension and possible discharge on Decem-
ber 6 by repeatedly refusing to tell Pritchard whether he
had greased the mullor wheels While imposition of such
a punishment would have been unlawful absent the in-
subordination , I find that Respondent did not violate the
Act as alleged by suspending the employees under the
circumstances described.
4 The December 10 termination
The record reveals that Sayles was carrying mail on a
regular basis on December 10, 1980, and that he com-
menced that activity at 7:30 a m. each weekday morning.
As indicated supra, I have found that Sayles was aware
that Ferguson would be at the plant at 6.30 a.m. on De-
cember 10 to consider his situation Sayles chose not to
appear to contest his suspension. In the circumstances, I
infer that Sayles chose on or before December 10, 1980,
to carry mail rather than work for Respondent Accord-
ingly, I find that Respondent did not violate Section
8(a)(1) and (3) of the Act as alleged by terminating him
on December 10, 1980
D The Alleged Strike Misconduct
The strike misconduct issues involve two distinct situa-
tions, i.e., the Sanchez situation and the alleged high-
speed chase of nonstrikers situation in which Collins,
Hughes, and Handshoe were allegedly involved They
are discussed immediately below
1. The Sanchez situation
As indicated supra, George Sanchez did not attend the
trial. Despite his inability to cause Sanchez to appear to
give testimony, the General Counsel introduced by stipu-
lation- two incident reports completed by Respondent
agents on August 5, 1981; a police report bearing the
"GC Exh 8
same date , and the Sanchez termination letter dated
August 6, 1981 18
Perusal of the General Counsel's Exhibits 9(a), (b), and
(c) reveals that at approximately 1:40 a m. on August 5,
1981, two persons kicked the main lobby doors at Re-
spondent's premises three times and they then kicked the
personnel door once . The Auburn , Indiana police there-
after responded to a call and found Sanchez and another
individual at the foundry door . Sanchez, who was then
reported to have been drinking beer, was arrested.
Neiether the incident reports (G.C. Exhs. 9(a) and (c))
nor the police report (G C Exh 9(b)) reveal whether
Sanchez or the individual who was with him actually
kicked the doors.19 The body of the termination letter
states:
On August 4, 1981 you were positively identified in
an act of violence against Auburn Foundry, Inc.
This violates the court injunction as well as being
an unfair labor practice . You have been terminated
effective August 5, 1981 for said activities. If you
have any questions call Bob Reesman or Bill Fink
at 925-0900.
In Coronet Casuals, 207 NLRB 304, 304-305 (1973),
the Board stated.
Sections 7 and 13 of the Act grant employees the
right to strike , picket, and engage in other concert-
ed activities for the purpose of collective bargaining
or other mutual aid or protection . It is true, of
course, that not all forms of conduct literally within
the terms of Sections 7 and 13 remain entitled to
statutory protection In deference to the rights of
employers and the public, the Board and the courts
have acknowledged that serious acts of misconduct
which occur in the course of a strike may disqualify
a striker from the protection of the Act. Thus, strik-
ers have been deemed to lose the Act's protection
when they seized the employer's property, or en-
gaged in acts of "brutal violence" against a non-
striker At the same time it is true that not every
impropriety committed in the course of a strike de-
prives an employee of the protective mantle of the
Act. Thus, absent violence, the Board and the
courts have held that a picket is not disqualified
from reinstatement despite participation in various
incidents of misconduct which include using ob-
scene language, making abusive threats against non-
strikers, engaging in minor scuffles and disorderly
arguments, momentarily blocking cars by mass pick-
eting, and engaging in other minor incidents of mis-
conduct . Consistent with these cases, the Board and
the courts have long held that minor acts of miscon-
duct must have been in the contemplation of Con-
gress when it provided for the right to strike and
that this right would be unduly jeopardized if any
misconduct, without regard for the seriousness of
18 See G C Exhs 9(a), (b), and (c) and G C Exh 5
19 The doors were not damaged and no evidence other than scuff
marks revealed they had been kicked
AUBURN FOUNDRY
the act, would deprive the employee of the protec-
tive mantle of the Act Thus, in the words of one
decision,
not every incident occurring on the picket
line, though harmful to a totally innocent em-
ployer, justifies a refusal to reemploy a picketing
employee for acts that exceed the bounds of rou-
tine picketing Impulsive behavior on the picket
line is to be expected, especially when directed
against nonstriking employees and strike breakers
[Footnotes omitted ]
Patently, under the rationale of Coronet Casuals, the
misconduct attributed to employee Sanchez must be
deemed to be innocuous conduct which should not de-
prive employee Sanchez of the protective mantle of the
Act I so find.
Remaining is Respondent's contention that I should re-
frain from finding that it violated the Act by discharging
Sanchez because the General Counsel has failed to show
that Sanchez participated in protected concerted activity
I reject the defense While Respondent correctly ob-
serves that no express testimony was offered by the Gen-
eral Counsel to show that employee Sanchez joined or
participated in the strike in progress against Repsondent
on August 5 and 6, 1981, I note that the various court
documents placed in the record identify George Sanchez
as a participant Thus, an affidavit in "Support of Peti-
tion for Rule to Show Cause" executed by David N.
Ferguson on August 19, 1981, in Case No. C-81-96
before the Circuit Court of DeKalb County, Indiana,20
identifies Sanchez as an individual who engaged in an
"act in contemptuous disregard of paragraph F of the
preliminary and permanent injunctions issued by this
Court." The order granting permanent injunction pro-
vides, inter alia 21
8 That this order shall be binding upon and ef-
fective against any and all current members of said
Union Local who are currently or will in the future
participate in any strike work stoppage, or walk-
out, or other such activity as against Plaintiff.
As Respondent identified Sanchez as an individual who
was bound by the above-described injunctive order, I
find, in the absence of evidence to the contrary, that the
record reveals that Sanchez had joined the Union's strike
and thus engaged in protected concerted activity.
For the reasons stated, I find that Respondent violated
Section 8(a)(1) and (3) of the Act as alleged by terminat-
ing George Sanchez on August 6, 1978.
2 The alleged high-speed chase of nonstrikers
On August 6, 1981, Respondent terminated the em-
ployment of employees Kern Collins, Willard Hughes,
and Little Andy Handshoe. They were informed of their
terminations by identical letters signed by R. W. Rees-
20 See G C Exh 7
1 1 See R Exh 15
1325
man, Respondent 's general manager and vice president
The body of the letters stated 22
On the night of August 5, 1981 you and others were
positively identified chasing second shift employees
of Auburn Foundry, Inc This form of coercion and
harassment violates the court injunction as well as
being an unfair labor practice You have been termi-
nated, effective August 6, 1981, for said activities If
you have any questions call Bob Reesman or Bill
Fink at 925-0900.
Respondent sought to show that it had reasonable cause
to believe that Collins, Hughes, and Handshoe engaged
in serious strike misconduct which justified its decision
to discharge them through the testimony of Reesman,
employee Cameron Speaker, and employee Paul Jacobs
Reesman indicated that prior to August 5 he had re-
ceived reports that employees who were working during
the strike had been chased and intimidated, and for that
reason he and one Lee Springer, a security officer whose
firm had been hired during the strike, were patrolling in
the vicinity of the plant on August 5. As they passed by
Cooper Tire, a business located adjacent to Respondent's
premises, Reesman testified he saw what he recognized
to be a "strike related" vehicle-Kern Collins' brown
Ford station wagon-backed into the parking lot in front
of Cooper Tire. Thinking that the Collins vehicle might
be parked in the Cooper Tire lot waiting for the second
shift employees to go by, Reesman backed his vehicle
into the Cooper Tire lot, parking between the station
wagon and a blue Chevy Nova According to Reesman,
when he backed in between the two vehicles, employees
Collins and Hughes were in the station wagon and Hand-
shoe was in the blue Nova About the time Reesman
backed into the lot, the station wagon and Nova left.
When they reached 11th Street on leaving the parking
lot, the station wagon went one way on 11th Street and
the Nova went the other way. At that point, Reesman
and the security officer drove out of the lot and cruised
around a shopping center located a short distance away
In a short time, Reesman returned to the Cooper Tire
area and again backed into that parking lot when he ob-
served the Collins' station wagon and the blue Nova
were back in the lot.24 Some 10-15 minutes later, some
second-shift employees passed Cooper Tire in a red or
maroon car and the station wagon left immediately fol-
lowing the maroon car When the station wagon left,
Reesman pulled out of the lot and followed it. Reesman
indicated that when he left the Cooper Tire lot, the
driver of the blue Nova was talking to the Cooper Tire
guard at Cooper's guard shack After entering 11th
Street, Reesman followed the station wagon to West
Street, and thence north on that street to State Road 8.
All three cars observed a stop sign at State Road 8, and
then turned west on State Road 8 and proceeded at high
speeds-70 or 80 miles per hour for some 8-9 miles to
the intersection of State Road 8 and County Road 1000
22 See G C Exhs 2, 3, and 4
24 Reesman indicated the station wagon was parked in front of the
Cooper Tire office, facing IIth Street
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East 25 At the intersection of State Road-8 and 1000 E,
the station wagon turned right or north on 1000 E. Rees-
man claims he was some 100 yards behind the station
wagon when it turned north on 1000 E He was going
too fast to make the turn and continued on State Road 8
to a trailer park several hundred yards down the road
where he turned around While turning, he testified he
observed the blue Nova arrived at the State Road 8-1000
E intersection where it turned north on 1000 E. Reesman
then returned to the intersection and followed the Nova
up 1000 E at approximately 60 miles per hour A short
time later, Reesman came upon the Nova which had
sideswiped a car driven by an unidentified lady. Reesman
stopped and put the lady in his car and proceeded to a
town named Kendallsville, which is located some dis-
tance northwest of the accident site. Subsequently, Rees-
man came back to the accident site and, after stopping
briefly, returned to Auburn.
Speaker testified that he was hired by Respondent to
work the second shift on July 20, while the strike was in
progress. He, together with several other employees, live
in Ligonier, Indiana, which is somewhat distant from
Auburn. At Respondent counsel's request, Speaker used
a red pencil to mark on a map the normal route taken by
Speaker and the other Ligonier employees as they went
to and from work.26 Speaker indicated that a late model
Oldsmobile followed the car he was in when he left
work on August 3 and after a high-speed trip during
which the car in which he was riding ran out of gas, two
unidentified men in the Oldsmobile warned him and the
other second-shift employees that, if they had to follow
them again , they would fill them with lead 27
According to Speaker, he was riding in fellow em-
ployee Paul Jacob's dark red Monte Carlo on August 5,
together with Paul Jacobs, Johnny Jacobs, Delbert
Jacobs, and Dan Halsey, all second-shift employees
They left the plant about 11:25 p m with Halsey driv-
ing.28 According to Speaker, when they passed Cooper
Tire, a big Ford station wagon pulled onto 11th Street
behind them When they reached the stop sign at the
intersection of West Street and State Road 8, the station
wagon was still behind them. Both cars turned west on
State Road 8 and , after they passed the city limits,
Speaker claims the station wagon driver blinked his
headlights at them while following them closely The
Speaker car then accelerated to 70- 80 miles per hour and
on several straight stretches during the 8-9 mile trip
from Auburn to County Road 1000 E, Speaker indicated
the station wagon would pull up alongside them and
then drop back again to blink lights, blow the horn, and
follow them closely At County Road 1000 E, the Monte
Carlo turned north from State Road 8 to County Road
1000 E. Speaker claims the station wagon did likewise
The Monte Carlo proceeded north on County Road 1000
E to County Road 300 N where it turned west. The sta-
25 Reesman indicated they passed several cars while on State Road 8
26 See R Exhs 12(a) and (b)
27 Speaker reported the incident to Respondent and subsequently exe-
cuted a short statement describing the August 3 and 5 incidents See G C
Exh 19
28 Speaker marked in yellow the route they took home on August 5 on
G C Exhs 12(a) and (b)
tion wagon followed Speaker testified the car he was in
ran the stop sign where 300 N crossed State Road 3 and
he thought Halsey turned off the lights as they continued
west on 300 N At County Road 600 E, a gravel road,
Halsey turned north and drove about a mile without any
lights When the Monte Carlo reached Lisbon Road,
Halsey turned west again and at that point Speaker indi-
cated they lost the station wagon
Employee Paul Jacobs testified he worked at Respond-
ent for 2 days He quit after his car was followed on the
two occasions described by Speaker While he described
the so-called high-speed chase which occurred on
August 5, his testimony paralleled and corroborated that
given by Speaker
When the individuals who were riding in the above-
mentioned automobiles (the Nova and station wagon) on
August 5 were called as witnesses, they uniformly denied
that they had been seeking to chase or intimidate striker
replacements and/or employees who chose to work
during the strike Moreover, the General Counsel caused
several additional employees-Harold Back Jr and
Martha Back-to testify that Reesman had monitored
their innocent activities while they were in vehicles
during the strike period.
With respect to the so-called August 5 high-speed
chase, Kern Collins, his brother James who is employed
by Cooper Tire, Andy Handshoe, Rick Truelove, Wil-
lard Hughes, and Robert Terry all gave their versions of
events which occurred on the evening in question No
useful purpose would be served by setting forth the testi-
mony of each of the named individuals as they all told
essentially the same story. The scenario they urged me to
accept is summarized below.
Kern Collins indicated he picked up Andy Handshoe,
his cousin, at home and they went to the Union's strike
headquarters trailer, which is located near the foundry
Kern's brother James was then working at Cooper Tire.
Sometime after James Collins got off work, Kern Collins
and Handshoe, who had been joined by Rick Truelove,
Robert Terry, Tom Terry, Willard Hughes, and Lacey
Talby, went to the Cooper Tire lot, supposedly to join
James Collins. When the group arrived at Cooper Tire,
Andy Handshoe, and Rick Truelove moved from Kern
Collins' brown Ford station wagon to James Collins'
blue Nova Both groups then sat in the parking lot and
drank beer. At some undescribed point, they supposedly
agreed they would all go to James Collins' house to
drink and play cards. The named individuals uniformly
agreed that, when Reesman first backed into the Cooper
Tire lot, both the Nova and the station wagon pulled
out. Soon thereafter, they both returned to the lot. James
Collins explained he returned because when they left the
parking lot he went one way on 11th Street and Kern
Collins went the other way, which was not the way to
James' house. When Reesman backed into the parking
lot the second time, James Collins got out of his car and
went to talk to the Cooper Tire security guard because
he felt Reesman had no legitimate reason for being on
Cooper Tire property While James was talking to the
guard, his brother Kern decided to leave the lot and he
supposedly made some hand motion to James as he
AUBURN FOUNDRY
pulled out Kern Collins, Robert Terry, and Hughes,
who were then in the station wagon, could not recall
pulling onto 11th Street behind a red or maroon Monte
Carlo, and they indicated they had not parked in the lot
to wait for second-shift Respondent employees who fin-
ished work at approximately 11 30 p m According to
Kern Collins, Terry, and Hughes, the Collins station
wagon proceeded from 11th Street to West Street, north
on West Street to State Road 8, west on State Road 8 to
County Road 1000 E, and north on 1000 E, approximate-
ly 4 miles to James Collins' house While traveling the 8-
9 miles from the intersection of West Street in Auburn to
the intersection of State Road 8 and 1000 E, they claim
they drove 60-70 miles per hour and passed two cars,
one of which was a red or maroon car. They denied fol-
lowing any red car closely or pulling alongside any car
and then dropping back. Kern Collins claimed he did not
blink his lights because two of his headlights were dis-
connected Collins, Hughes, and Terry all denied that
they turned off of 1000 E until they arrived at James
Collins' house They claim they waited some 10 minutes
or so at James' house and then drove 2-3 miles south on
1000 E to discover that James had had an accident
According to James Collins and Handshoe, they left
the Cooper Tire parking lot shortly after Kern Collins
and Reesman left They claim they were alone when
they went the 8-9 miles from Auburn to the intersection
of State Road 8 and 1000 E at approximately 60 miles
per hour As they turned north on 1000 E, they noticed
Reesman's car some 300 feet west of the State Road 8-
1000 E intersection As they proceeded north on 1000 E,
James glanced back from time to time and as he came to
the top of a rise some 2 miles up 1000 E, he was left of
the center line and sideswiped a southbound car driven
by a lady. When Reesman stopped and picked up the
lady, Handshoe and Truelove went to a nearby farm-
house and called the police After the police arrived and
completed their investigation, James Collins drove Hand-
shoe and Truelove home
After adducing the testimony summarized above, the
General Counsel sought, through the testimony of
Harold and Martha Back, to show that during the strike
Reesman followed strikers around Auburn when they
were engaged in innocent activity. Thus, Harold Back
testified that, on August 5, Reesman and some security
guard came to the back gate to the foundry where he
was picketing at 9-9:30 p.m. and asked him if he had
read a notice that had been posted at the strike trailer.
The witness further indicated that he was sitting in his
van parked in a Murphy's Mart parking lot at approxi-
mately 11.15 p.m when Reesman drove by and shined
the lights of his automobile into the van.29 Martha Back
indicated during her testimony that, after completing
some picketing on July 7, she and another woman were
followed by Reesman through a residential area of
Auburn She claims she stopped at several houses seek-
ing to find a woman who had a potty trainer for sale and
19 Harold Back testified that a short time later he saw a maroon car,
Collins' station wagon , and Reesman ' s car in a line traveling west past
the shopping center on State Road 8 He claims he was alarmed because
he knew the security officer in Reesman's car was armed and he reported
his observation to the police
1327
that Reesman, who had others in his car, parked behind
the car in which she was riding and stayed parked while
she asked at two homes for the person she was seeking.
Analysis and Conclusions
Respondent claims in its brief that I should dismiss the
complaint allegations pertaining to Collins, Hughes, and
Handshoe because the General Counsel has failed to
prove that they engaged in protected concerted activity,
i.e., joined the strike I reject the defense. The record
clearly reveals that a strike was in progress at Respond-
ent's facility on August 5, 1981, and that Kern Collins,
Willard Hughes, and Little Andy Handshoe were em-
ployees who had chosen to refrain from working for Re-
spondent during the strike Moreover, Collins testified,
without contradiction, that he, Hughes, and Handshoe
commenced their evening activities on August 5 by visit-
ing the Union's strike trailer Finally, Reesman indicated
he backed into the Cooper Tire lot because he recog-
nized the automobile the alleged discriminatees were in
as a "strike related vehicle " On these facts, I find that
the General Counsel has adequately shown that Kern
Collins, Hughes, and Handshoe were, together with
other employees of Respondent, participants in the then
ongoing strike against Respondent Since it is undisputed
that Respondent terminated Collins, Hughes, and Hand-
shoe while they were participating in a lawful strike
against it, I find that the General Counsel has proved,
prima facie, that they were discriminatorily discharged
The Board defined the burden of proof of an employer
and the General Counsel in a situation such as this in
Rubin Bros. Footwear, 99 NLRB 610, 611 (1951), stating.
We are now of the opinion that the honest belief of
an employer that striking employees have engaged
in misconduct provides an adequate defense to a
charge of discrimination in refusing to reinstate such
employees, unless it affirmatively appears that such
misconduct did not in fact occur. We thus hold that
once such an honest belief is established, the Gener-
al Counsel must go forward with evidence to prove
that the employees did not, in fact, engage in such
misconduct The employer, then, of course, may
rebut the General Counsel's case with evidence that
the unlawful conduct actually did occur. At all
times, the burden of proving discrimination is that
of the General Counsel. This modification of the
Mid-Continent rule does no more than recognize the
true nature of the General Counsel's obligation to
establish all the essential elements of a charge that
discrimination has occurred when a striking em-
ployee is refused his job. It merely places an em-
ployee's honestly asserted belief in its true setting
by crediting it with prima facie validity
Patently, Reesman 's observations on August 5 and the
subsequent reports received by Respondent from em-
ployees Speaker and Jacobs justified Respondent's belief,
expressed in the termination letters mailed to Collins and
Hughes on August 6, that those employees had engaged
in strike misconduct which justified their termination.
With respect to Handshoe, however, Respondent failed
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show that it had any basis on August 5 for forming a
good-faith belief that he had engaged in any misconduct
on that date. To the contrary, the record merely reveals
that Handshoe rode in James Collins' blue Nova from
Auburn to a point on County Road 1000 E where the
vehicle collided with another car during the evening of
August 5. On the occasion in question, the Nova fol-
lowed Reesman's vehicle rather than a vehicle in which
employees were riding Moreover, the record fails to
reveal that James Collins was chasing anyone with his
Nova. For the reason stated, I find that Respondent has
failed to rebut the General Counsel's showing that Little
Andy Handshoe was discriminatorily discharged. Ac-
cordingly, I find, as alleged, that Handshoe was termi-
nated by Respondent on August 6, 1981, in violation of,
Section 8(a)(1) and (3)
The General Counsel claims I should credit the testi-
mony given by the occupants of the Ford station wagon
and the Nova, including Kern Collins and Willard
Hughes, and thereafter conclude that he has shown that
Collins and Hughes did not, in fact, engage in the unpro-
tected activity attributed to them. I reject his contention
because I simply do not credit the claim of those individ-
uals that they intended to go to James Collins' house to
drink and play cards on August 5, nor do I credit their
denial that the Kern Collins vehicle chased the Jacobs
automobile as asserted by employees Speaker and Jacobs
on August 5, 1981 30 To the contrary, careful consider-
ation of the entire record convinces me that the Kern
Collins' vehicle, driven by Collins who was accompanied
by, inter alia, Willard Hughes, chased the red Monte
Carlo driven by Halsey on August 5 as described by
Speaker and Jacobs for the purpose of intimidating em-
ployees of Respondent who chose to work during the
strike I find that such conduct was sufficiently serious to
justify Respondent's discharge of Kern Collins and Wil-
lard Hughes Accordingly, I recommend that the com-
plaint be dismissed as to such employees.
E. The No-Solicitation Rule
Paragraph 5(c) of the complaint, as amended at the
hearing, alleges:
On an unknown date before October 2nd, 1980,
the Respondent promulgated, and since that date
has maintained the following rules contained in its
Employee Handbook on page 6 under Rules and
Regulations.
1. Soliciting of any kind on Company property
without permission from the Personnel Depart-
ment
2. Distributing notices, cards, pamphlets, or lit-
erature of any kind without prior permission of
the Personnel Department.
The record reveals that Respondent's most recent em-
ployee handbook, which contains the above-described
rules and provides that violation of such rules can lead
30 1 found Speaker and Jacobs to be very straightforward witnesses
whose testimony had the ring of truth Where their testimony conflicts
with that given by the General Counsel's witnesses, I credit them
to discipline , including discharge , was published in Octo-
ber 1979. In his brief Respondent 's counsel indicates the
above-described rules "may well not meet the new
NLRB position adopted July 31, 1981, by the Board in
T.R. W., Inc, 275 NLRB No. 47." I agree and find that
rules 3 and 4 of Respondent 's employee handbook are
unlawfully broad and that by maintaining such rules
within the 10(b) period Respondent violated Section
8(a)(1) of the Act as alleged
In his brief, Respondent 's counsel indicated that Re-
spondent amended its employee handbook on December
22, 1981 , and posted a notice to employees to inform
them of the alterations made to make the rules lawful.
The notice , which is attached to Respondent 's brief,
states.
DATE. December 22,
TIME. 10. 15 a.m.
NOTICE
Effective immediately the following amendments
are made to the Employees' Handbook of Auburn
Foundry Co., Inc., issued 10/79 (the red book)-
Rules and Regulations II., Paragraphs 3 and 4,
are amended to read as follows.
"3. Members of the public are prohibited from
soliciting employees or customers or distributing
any written materials to employees or customers on
the premises at any time.
"4. Employees are prohibited from soliciting em-
ployees or customers or distributing any written
materials to employees or customers during work-
ing time. ('Working time' applies not only to the
employee doing the soliciting or distributing but
also includes the persons to whom the solicitation
or distribution is aimed.) Employees are not permit-
ted to distribute literature, notices, cards, or pam-
phlets of any kind during their working time, or at
any time in working areas. Solicitation by an em-
ployee of another employee is prohibited while
either person is on working time. Working time is
all times when an employee's duties require that the
employee be engaged in work tasks, but does not
include an employee's own time, such as meal peri-
ods, scheduled breaks, time before or after a shift,
and personal clean-up time. Off-duty employees are
prohibited from entering into or remaining inside
the building or a work area outside the building for
any purpose without prior authorization from the
Personnel Department."
In my view, rules 3 and 4 in Respondent's employee
handbook, as amended on December 22, 1981, comply
with the requirements of T.R. W., Inc., supra. Conse-
quently, I accept counsel's representation that Respond-
ent's employees have been notified of the revision of the
rules and find that no further remedial action is neces-
sary or required.
AUBURN FOUNDRY 1329
CONCLUSIONS OF LAW
I The Respondent, Auburn Foundry, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. By engaging in conduct described in section III,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
4 Those allegations of the consolidated complaints not
specifically found herein are dismissed as not proven by
the preponderance of the evidence.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act
Respondent will be required to offer George Sanchez
and Andy Handshoe reinstatement to their former posi-
tions of employment or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing,
if necessary, anyone who may have been hired to per-
form the work which they had been performing Addi-
tionally, Respondent will be ordered to make these em-
ployees whole for any loss of earnings they may have
suffered by reason of their unlawful terminations with
backpay to be computed on a quarterly basis, less their
net earnings during such period,, with backpay and inter-
est thereon to be computed in the manner prescribed in
F. W. Woolworth Co, 90 NLRB 289 (1950), and Florida
Steel Corp, 231 NLRB 651 (1977) 31 '
[Recommended Order omitted from publication
31 See generally Isis Plumbing Co, 138 NLRB 716 (1962)