Eagle Picher Industries, Inc.; A. C. Williams Co.

National Labor Relations Board - Board Decisions

Feb 25, 1986

278 N.L.R.B. 696 (N.L.R.B. 1986)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lectromelt Casting and Machinery Company, a Divi-
sion of Akron Standard Division, Eagle Picher
Industries, Inc.; and Lectromelt Casting Divi-
sion, Ravenna Industries, Inc., a wholly-owned
subsidiary of the A. C. Williams Company and
Helis Palmer
Lectromelt Casting Division, Ravenna Industries,
Inc., a wholly-owned subsidiary of the A. C.
Williams Company and Donnal May. Cases 8-
CA-13000 and 8-CA-13431
25 February 1986
SUPPLEMENTAL DECISION AND
ORDER
By MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 June 1984 Administrative Law Judge
Lowell Goerlich issued the attached supplemental
decision. The Respondents filed exceptions and
supporting briefs,' the General Counsel filed cross-
exceptions and a brief in support, and Respondent
Akron filed an answering brief to the cross-excep-
tions.
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,2 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that Respondent Akron did not
violate Section 8(a)(3) and (1) of the Act by dis-
charging union committeeman Helis Palmer for his
role in the wildcat strike in June 1979.3 The Gen-
eral Counsel excepts to this finding, contending
that Palmer was unlawfully disciplined more se-
verely than similarly situated rank-and-file employ-
ees because of his position on the Union's
Negotiating/Grievance Committee. We find merit
in this exception.
On 8 June Palmer was suspended for 5 days,
commencing 11 June.4 His suspension triggered a
wildcat strike from 12 June through 19 June. On 18
June Akron decided to discharge 10 employees, 6
rank-and-file employees, and 4 union representa-
tives. Each of the discharged employees received a
letter stating that he was being terminated because
i The Respondents also filed a joint motion for reconsideration of the
Board's previous decision in this case, reported at 269 NLRB 933 (1984)
This motion is denied as untimely
2 The Respondents have 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
1951) We have carefully examined the record and find no basis for re-
versing the findings
3 All dates refer to 1979 unless otherwise indicated
4 Palmer's suspension was found by the Board to be for cause and not
because of his union activity 269 NLRB 933 (1984)
he "instigated, supported and/or participated in the
strike."5 The six rank-and-file employees who were
discharged were the first six people observed by
Akron on the picket line. The remaining four em-
ployees, Palmer , E. May, D. May, and Probst,
were all members of the Union Negotiating/-
Grievance Committee and were all observed on
the picket line at some point during the strike.6
These same four employees were on the
Negotiating/Grievance Committee in February
1979 when the Employer was previously subjected
to a wildcat strike. At that time Akron informed
the Union that if another illegal walkout occurred,
Akron was prepared to (1) file a lawsuit for dam-
ages; (2) file unfair labor practice charges with the
Board; and (3) severely discipline the union com-
mitteemen because, in the Company's opinion, they
had a greater responsibility than rank-and-file em-
ployees to be on the job and not support an illegal
strike.? When the employees struck 4 months later
over Palmer's suspension, Akron took each of these
actions.
The judge determined that since Palmer was "a
union representative and the sole beneficiary of the
strike," his presence on the picket line had a great-
er significance than the presence of a rank-and-file
employee. Thus, according to the judge, Palmer's
actions created the impression that he condoned
the strike and was exercising a leadership role
therein. Accordingly, the judge concluded that
Akron lawfully terminated Palmer. We disagree.
The judge was correct insofar as he assumed that
an employer is free to discipline union officers as
well as rank-and-file employees for engaging in un-
protected strikes so long as it does not deal more
severely with the former simply by reason of their
union office. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 699-700 (1983). The judge was also cor-
rect in assuming that an employer may punish any
employee, including union officers, more severely
for actual instigation or leadership of an unprotect-
ed strike. Midwest Precision Castings Co., 244
NLRB 597, 598 (1979); Chrysler Corp., 232 NLRB
466, 474 (1977). He erred, however, in concluding
that Palmer's presence on the picket line beginning
on the third day of the strike, coupled with his
5 Employee John Ritter's letter cited picket line misconduct as an addi-
tional reason for his discharge
6 The fifth member of the Negotiatmg/Grievance Committee, Kim
Bond, was not present during any of the committee's discussions with
management concerning the strike and had no role in the strike since he
was on sick leave at the time Bond was the only member of the commit-
tee who was not discharged
7 The record indicates, and the judge found, that the contract between
the Union and Akron at the time of the strike did not contain any con-
tractual provisions which imposed an affirmative duty on union commit-
teemen or officers to attempt to prevent or resolve an illegal work stop-
page
278 NLRB No. 102
LECTROMELT.CASTING CO.
union office, constituted sufficient evidence of
strike leadership. 8 That conclusion is contrary to
the Board's holding in. Precision Castings- Co., 233
NLRB 183, 184 fn. 3, 198 (1977) (union stewards'
appearance on the picket line did not establish that
they were active in "calling or conducting the
strike"). And in giving undue weight to Palmer's
status as a union representative, the judge ran afoul
of the Supreme Court's holding in Metropolitan
Edison (460 U.S. at 702-705), that, absent clear
contractual waiver, an employer violates Section
8(a)(3) and (1) of the Act when, in the course of
disciplining wildcat strikers, it singles out union of-
ficials for more severe treatment simply on the
basis of their union office.
As noted above, out of the 130-135 employees
on strike (including 30 on the picket line),9 Akron
chose for discipline the first six employees to
appear on the picket line and four members of the
Union's Negotiating/Grievance Committee. Al-
though the committeemen , including Palmer, ap-
peared on the picket line at some point, nothing in
the timing of their appearance or their actions or
remarks while there differentiated them from other
picketing employees who were not disciplined.
That fact, coupled with Akron's February letter to
the Union and the wording of the discharge notices
given the 10 disciplined employees; made out the
General Counsel's requisite prima facie showing
under Wright Line,10 that Palmer's identity as a
union committeeman was a motivating factor in his
discharge. As noted above, in its letter to the
Union in February, Akron had expressed the view
that it could unilaterally impose a higher duty on
union committeemen during wildcat strikes, sug-
gesting that it planned to discipline such individuals
for action or inaction that would not be regarded
as grounds for punishment of a rank-and-file em=
ployee. Furthermore, in the letter sent to each of
the 10 discharged employees, the employee was
notified simply that he was being disciplined for
having "instigated, supported and/or participated in
the strike" (emphasis added). There was no claim
in the letter sent to Palmer--and Akron introduced
no evidence-that he had been guilty of instigation
or was otherwise functioning as a strife leader. I.1
8 Akron introduced no other evidence of conduct by Palmer from
which it might be inferred that he was leading the strike
9 The judge found that the production and maintenance unit included
145--150 employees; and only 15 reported for work during the strike.
10 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir,
1981), cert. denied 455 U S 989 (1982), approved in NLRB s Transporta-
non Management Corp., 459 U.S 1014 (1982).
11 In fact, during the days that Palmer was on suspension, he could
not, strictly speaking, even be said to be a strike participant , since he was
not withholding services from Akron
697
Further, we find that Akron did not establish that
Palmer would have been discharged in any event
had he not been a member of the Negotiating/-
Grievance Committee.
Our conclusion is not inconsistent with Midwest
Precision Castings Co., 244 NLRB 597 (1979), and
Chrysler Corp., 232 NLRB 466 (1977), in which the
Board held that - the employers did not violate the
Act in firing union stewards for inducing or other-
wise taking leadership roles in unprotected strikes.
In Midwest Precision Castings, which involved a
plant slowdown , the Board found that the steward
had urged one of the employees to slow down her
work . 244 NLRB at 599.12 In Chrysler Corp., the
judge, affirmed by the Board, found, among other
things, that the union steward had arranged a loca-
tion for striking workers to assemble after they
were ordered out of a restaurant in which they had
gathered , that he organized a picnic for the strikers
to take place a few days after that meeting, and
that by the end of the evening he had ' made the
strike activities "his show." 232 NLRB at 474-475.
No comparable activities were shown on the part
of Palmer.
In sum , contrary to the judge, we are unwilling
to find that, under the circumstances here, Palmer's
mere presence on the picket line and the triggering
role that his suspension played in the strike consti-
tute proof that he was actually a strike leader. Be-
cause, as we have found, Akron was not discharg-
ing Palmer for strike leadership activities, but had
singled him out from otherwise similarly situated
employees on the basis of his union position, his
discharge violated Section 8(a)(3) and ( 1) of the
Act.13
For similar reasons, we 'agree with the judge that
Akron violated Section 8 (a)(3) and (1) of the Act
by discriminatorily discharging Union Committee-
men E . May and D. May for their alleged partici-
pation in the wildcat strike . As noted above, D.
May and E. May were also on the Union
Negotiating/Grievance Committee in both Febru-
ary and June 1979. After Palmer's suspension, the
committee met with Akron's officials to urge the
12 The judge in the present case accurately quoted the Supreme Court
in Metropolitan Edison as noting the Board's view that "a remark made
by a union official may have greater significance than one made by a
rank-and-file member." 460 U.S at 699 fn. 6 The Court cited Midwest
Precision Castings for this proposition
is Akron nurses the essential holding of Metropolitan Edison in con-
tending that because it punished Palmer no more severely than the six
rank-and-file employees who were also punished for engaging in the
wildcat strike it is not guilty of unlawful disparate treatment Although
that case involved harsher punishment for union officers, the underlying
principle is that, absent waiver, union office cannot serve as a differentia-
tion basis in discipline . Such unlawful differentiating occurs just as clear-
ly where union office is a basis for the decision to discipline as where it
serves as a basis for imposing more severe discipline.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rescission of the suspension. Although D. May and
E. May referred to the fact that there was talk of a
strike among the employees, these remarks were
not threats of a strike nor, were they a basis for
concluding that the members of the committee
were the instigators of the strike which occurred
the next day.
The day of the strike, 12 June, D. May reported
for work at the plant, despite the presence of a
number of employees outside the premises, and was
confronted by his foreman who questioned him as
to "what was going on." On learning that the em-
ployees were on strike to protest Palmer's suspen-
sion, the foreman told D. May that it was May's
job as a union representative to get them back to
work. Throughout the day, D. May and E. May
repeatedly urged the employees to go back to
work, with no success . Their efforts to meet with
management to discuss the situation were equally
ineffective. An emergency union meeting was held
on 19 June, and the employees were eventually
persuaded to return to work. On 20 June, D. May
and E. May received their notices of discharge.
We find that these facts establish a prima facie
case of discrimination. The record reveals that both
E. May and D. May were active and visible union
supporters. They were two of the four union com-
mitteemen who were singled out for discharge
when Akron decided to take the action it had
threatened 4 months earlier. Indeed, they were dis-
charged despite management's knowledge that they
were actively working during the strike to per-
suade the employees to return to work. Thus, the
General Counsel has demonstrated that the em-
ployees' status as union committeemen was a moti-
vating factor in their discharges.
Akron asserts that D. May and E. May were dis-
charged because they allegedly threatened a strike
to management in the two prestrike meetings on 9
and 11 June, because they were observed on the
picket line, and because they were considered to
have been instrumental in fomenting the strike. We
agree with the judge, however, that at the prestrike
meetings the Mays never conveyed the impression
that they would cause a strike if Palmer's suspen-
sion was not rescinded, but rather only conveyed
the hostile attitude of the employees. Further, their
presence on the picket line was prompted by their
desire, which the Respondents concurred with and
fostered, to persuade employees to abandon the
strike. Also, as noted above, since the union com-
mitteemen were the only employees, other than the
first six picketers, who were discharged for their
presence on the picket line, an inference of discrim-
ination is created which the Respondents have not
rebutted. As the judge found, the Respondents
failed to meet their burden of showing that, absent
the Mays' positions on the Negotiating/Grievance
Committee, the same action would have been
taken.
Accordingly, for all the reasons stated, we find
that the discharges of E. May and D. May violated
Section 8(a)(3) and (1) of the Act.14
THE AMENDED REMEDY
Having found that the Respondents have en-
gaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act, we shall
order that they cease and desist therefrom, and
take certain affirmative action necessary to effectu-
ate the policies of the Act. In particular, the Re-
spondents shall offer immediate reinstatement to
Helis Palmer, Donnal May, and Eddie Lee May to
their former positions or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, dismissing, if
necessary, any employee hired to fill their posi-
tions. In addition, the Respondents shall make the
discriminatees whole for any loss of earnings they
may have suffered by reason of the wrongful dis-
charges, by paying to each of them a sum equal to
what he would have earned, less net interim earn-
ings, with backpay as computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977). Finally, we shall order the
Respondents to cease and desist from in any like or
related manner interfering with , restraining , ' or co-
ercing the employees in the exercise of their rights
guaranteed by Section 7 of the Act.
ORDER
The National Labor Relations Board orders that
the Respondents, Lectromelt Casting and Machin-
ery Company, a Division of Akron Standard Divi-
sion, Eagle Picher Industries, Inc., and Lectromelt
Casting Division, Ravenna Industries , Inc., a
wholly-owned subsidiary of the A.C. Williams
Company, Barberton, Ohio, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
14 The Respondents excepted to the judge's recommended remedy,
contending that it could be interpreted as entitling the discnmmatees to
backpay which may have accrued after the plant was no longer in oper-
ation We find merit in this exception and shall issue an amended remedy
providing a traditional make-whole remedy. As the issues of the termma-
tion of operations and its effect on the earnings of the discriminatees
were not litigated at the hearing, we shall leave their resolution to the
compliance stage of these proceedings Accordingly, Respondent Raven-
na's motion to supplement the record with evidence regarding the plant
closure is denied. See Bacchus Wine Cooperative, 251 NLRB 1552 (1980)
LECTROMELT CASTING CO
(a) Discharging or otherwise discriminating
against employees regarding to hire or tenure of
employment, or any term or condition of employ-
ment, because of their union or protected concert-
ed activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Helis Palmer, Donnal May, and Eddie
Lee May immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the Supplemental
Decision and in the Decision and Order entitled
"The Amended Remedy."
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(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 Barberton, Ohio plant copies of
the attached notice marked "Appendix." 15 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able 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.
15 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
699
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 discharge or otherwise discrimi-
nate against employees regarding to hire or tenure
of employment, or any term or condition of em-
ployment, because of their union or protected con-
certed activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Helis Palmer, Donnal May, and
Eddie Lee May immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, discharging if necessary
any employee hired to replace them, and WE WILL
make them whole for any loss of earnings and
other benefits resulting from their discharge, less
any net interim earnings , plus interest.
WE WILL notify Helis Palmer, Donnal May, and
Eddie Lee May that we have removed from our
files any reference to their discharges and that the
discharges will not be used against them in any
way.
LECTROMELT CASTING DIVISION,
RAVENNA INDUSTRIES, INC., A
WHOLLY-OWNED SUBSIDIARY OF A,
C. WILLIAMS COMPANY
Paul C. Lund, Esq., for the General Counsel.
David H. Shaffer, Esq., of Akron, Ohio, for Respondent
Akron.
Sidney C. Foster, Jr. Esq., of Akron, Ohio, for Respond-
ent Ravenna.
Donnal May and Helis Palmer, of Akron, Ohio, in propria
persona.
SUPPLEMENTAL DECISION
LOWELL GOERLICH, Administrative Law Judge. These
cases were remanded by the Board (269 NLRB 933
(1984)) to the administrative law judge for disposition on
their merits . Chairman Donald L . Dotson dissented. The
principal issue, which involved the discharges of Helis
Palmer, Donnal May, and Eddie Lee May , had been de-
ferred to a settlement agreement executed by and be-
tween Respondent Lectromelt Casting Division, Raven-
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
na Industries, Inc., a wholly-owned subsidiary of A. W.
Williams Company (Ravenna) and the International
Molder and Allied Workers Union, Local Union No. 754
(the Union) by the administrative law judge.
On the entire record' in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. THE DISCHARGES OF PALMER, D. MAY, AND E.
MAY
At all material times herein Helis Palmer was a
member and chairman of the Safety Committee for Lec-
tromelt Casting and Machining Company, a Division of
Akron Standard Division, Eagle Picher Industries, Inc.
(Akron); Donald May was the chairman and a member
of the negotiating committee. Other members of the ne-
gotiating committee were Ken Bond, president of the
Union, and Forrest Probst. A labor agreement between
the Union and Akron was in existence which covered a
production and maintenance unit of between 145 and 150
employees. On June 8, 1979, Palmer was suspended for 5
days commencing June 11, 1979.2 His suspension trig-
gered a wildcat strike which commenced on June 12,
1979, and ended June 19, 1979.
On June 18, 1979, Respondent Akron held a meeting
among management personnel to decide what measures
should be taken concerning the strike. It was decided to
discharge the instigators, supporters, and leaders of the
strike. On the same day, termination letters were sent to
10 employees, 4 of whom were union representatives.
As was detailed in the Respondent Akron's brief, page
11:
Six of the employees terminated were rank-and-
file employees who were the first pickets on the line
on June 12. They were Bobby Ward, Larry West-
fall, James Ritter, Harold Ireton, Odell May, and
Paul Armbruster. (James Ritter was also terminated
for his picket line misconduct.)
Helis Palmer was terminated because he was ob-
served on the picket line while on suspension and
because he was observed taking a nonstriking em-
ployee (John Small) out of the plant. Donnal May,
Eddie Lee May, and Forrest Probst were terminat-
ed because they had made threats of the strike to
management and were observed on the picket line
.... other union officials were not terminated be-
cause they had not threatened strike nor were ob-
served on the picket line.
At all times material herein Michael Klimko was the
manager of industrial relations, George Vernon was the
plant manager, Joseph Segatta was the vice president of
' There being no opposition thereto Respondent Akron's "Motion for
leave to Introduce Newly Discovered Evidence" and "Motion to Intro-
duce Newly Discovered Evidence" are granted and the attachments to
the latter motion are made a part of the record herein.
2 In 269 NLRB 933, the administrative law judge found that Palmer's
suspension did not violate the Act.
industrial relations, and L. J. Walker was a foreman for
Respondent Akron.
A. Events Leading Up to the Strike
After the suspension of Palmer and before the strike
commenced it was apparently obvious that a strike was
in the offing. Vernon testified that when "you walked
through the plant, you just knew it"; "slow down,
groups standing around talking"; "attitude of the em-
ployees in the shop"; "committee-men talking"; all point-
ed to a strike.
Vernon, Walker, Probst, and D. May had met on June
9 at 8:30 to discuss Palmer's suspension. The meeting
was "a little noisy." According to Vernon, the message
he received from the meeting was, "There was going to
be trouble, which meant there was going to be another
strike, a walk-out, another wildcat." However, he did
not hear the words, "We're going to hit the hill."a
Vernon further observed, "I think I would have to say
they [the committee] couldn't stop the employees at that
particular meeting." Probst and May denied making any
threats of a strike although, they urged that Palmer's sus-
pension be rescinded.4 Probst testified that he said that
"the guys were angry out there" and that "we told the
company the guys were pretty upset over what hap-
pened and everything."
While it was apparent a strike was brewing, the credi-
ble evidence5 does not indicate that at this meeting the
committee was instigating a strike or threatening to do
so.
On Monday, June 11, the committee and the Respond-
ent Akron met again to consider the Palmer suspension.
Present were Klimko, Vernon, Probst, D. May, and E.
May. This was again a noisy meeting. Vernon remem-
bered that the word strike was never discussed," that
"nearest to [his] knowledge" it was said, "you know
what is going to happen; you know what will happen,"
and "possibly in the meeting" he was told that "there
was going to be a strike and they couldn't help it."
Vernon also remembered, after his recollection was re-
freshed, that D. May said, "Bring them back now or you
know what will happen."s
8 "Hit the hill" was a commonly used phrase for referring to a strike
4 Walker testified that D. May said at the meeting, "If Palmer didn't
get back to work Monday, they would be on the hill, they were going to
strike" (emphasis added). I consider Walker to be an untruthful witness
on this point Moreover, Vernon testified that the words "hit the hill"
were not used
5 Where credibility is a factor in the case I have considered Palmer
and Walker to be subreptious witnesses . I note the inconsistencies be-
tween Palmer's OSHA affidavits and his testimony . The comportment of
both Palmer and Walker on the witness stand disclosed individuals en-
gaged in intentional falsehood . Klimko is deserving of crediting only
when corroborated. As to Vernon, D. May, and E May, I am persuaded
that they spoke the truth to their best recollections.
6 Klimko's minutes reflect:
D. May We want you to put man [sic] back to work.
M. Klimko We'll give you an answer.
D. May We'll go all the way to the Supreme Court.
M. Klimko He has a right to the grievance procedure
D. May Bring him back now or you know what will happen.
M Klimko No, what will happen
D. May You know. [Resp . Exh. 7].
D. May testified that he never "threatened that something was going to
happen if they didn't put Palmer back to work."
LECTROMELT CASTING CO. 701
D. May testified that he said that "them guys were
really angry from the weekend. They were really angry
that Friday and Saturday about your giving Mr. Palmer
five days off" Probst along the line testified that "one of
us told the company that something was going to happen
over this, because all the guys were mad about Palmer's
suspension ."7 As- Klimko related, for Respondent Akron
employees, illegal work stoppages were "a way of life."
While one may quibble about the meaning of the lan-
guage used by the participants in the meeting , neverthe-
less, it was clear at this point, as observed be Vernon,
that a strike was in the offing if Palmer's suspension was
not lifted and there was little the committee could do
about it. Apparently it was the employees' "way of life"
which the committee could not control. Thus, since the
strike was near reality, I do not conclude at this meeting
that the remarks of D. May, E. May, or Probst provided
a basis for Respondent Akron' s concluding that they
were the instigators or the promoters of the strike. At
most they revealed to Respondent Akron the state of the
employees' intentions which, according to Vernon, he
had already sensed.
On the morning of June 12, 1979, about 30 pickets ap-
peared on the hill and about 15 people reported for
work. The strike commenced. It grew violent, rocks
were thrown and some employees were injured. Stones
as big as "grapefruit" were thrown by the pickets. An in-
junction was granted which was read to the pickets on
the picket line by a deputy sheriff on June 13, 1979. Be-
tween 12 and 25 employees crossed the picket line. One
shift operated which commenced at 8 a.m.
B. Hells Palmer's Alleged Participation in the Strike
Palmer denied any involvement in the strike and testi-
fied that he had visited the plant on only two occasions
dui ing the strike, once to pick up his check on June 14
and again on June 18, when his suspension, had ended.
Palmer's discharge was effected on June 8, 1979, for in-
stigating , supporting, and/or participating in an illegal
wildcat strike "for [his] conduct June 12-15. 1979."
According to records kept by Klimko and Frank
Hurst, Palmer was observed on the picket line at 11 a.m.
and 3:50 p.m. on June 14, at 9 a .m. on June 15 and again
on June 18, 1979. According to Klimko, "the period of
time I seen him was at least 45 minutes or so, or more."
Palmer went to the plant some time between 5:30 and
6:30 a.m. on June 18, 1979. (During the strike the plant
was commencing work at 8 a.m.) Upon entering the
plant, Palmer (according to affidavit given to OSHA
which have a more probable credibility) found that his
timecard was not in the rack:
The Pinkerton Guard on duty was telling employ-
ees that there was no work, that "they" were on
strike. He did not tell me that, I only heard him
telling other employees. I went on into the plant,
which was very dark at the time, and found John
7 Klimko testified that "they said employees were upset" but he did
not ask them whether there would be a wildcat strike nor were any sug-
gestions made by management that the committee encourage the employ-
ees not to strike. Apparently Respondent Akron had elected to take this
one on.
Small, an employee, in the aisle between the steel
and Iron Foundry. I walked up to Small and asked
what was going on by way of greeting. Small re-
sponded nothing much. I then stated that it "looked
like they had a strike on" and Small stated "yes"
and that he was just waiting around till someone
made up their minds. I then said to Small that if he
kept standing around like he was, he might get ate
up by the rats. I made that comment to Small be-
cause he seemed to have been dozing and there
were rats in the Foundry. Small stated "I guess you
are right" and then walked up the aisleway. I did
walk with him up the aisleway, but I left the plant
while he was still there in the plant.
Klimko testified that he had talked to Small who,
when asked by Klimko "why he "came to work and why
he left," answered that "he declined to leave. Small did
not say that Palmer had asked him to leave.
According to Palmer, when he was leaving the plant
on June 18, 1979, he talked to some of the people "up on
the hill' picketing." Palmer testified, "I know Blankenship
was up there. I talked to Blankenship. I told Blankenship
it's an illegal wildcat strike, and you got to go to
work. "8
Palmer proceeded to Emils' bar next to the union hall
where he waited until a key to the union hall could' be
obtained.
Quoted from Palmer's OSHA affidavit dated August
24, 1979:
I then went out to my car, which was in the visi-
tor's parking lot, and drove up to the hill where the
striking employees were standing and informed
them that it was an illegal strike. I then got the
union committeemen together and we all drove to
AMOS' tavern to organize our strategy in getting
the men back to work. It was at that time that I
called the radio stations to announce the special
union meetings to be held on June 19, 1979 as I
stated in my previous statement . I did not in any
way encourage or suggest to Small to leave the
plant. I did not at any time encourage or suggest
the strike that occurred at the plant.
Palmer testified that at the union meeting he "suggest-
ed . . . that they should go back to work and talk that
over, because the only way he could talk it over was to
get the men back to work . . . in all fairness , you guys
get out here, and what you have done, you've lost 5
days and everthing else, and the Company is not going
to talk to you guys until you go back to work .. .
please go back to work."
The employees were persuaded to return to their jobs.
C. Palmer's Alleged Discriminatory Discharge
Since Palmer was a union representative, the Supreme
Court case of Metropolitan Edison Co. v. NLRB, 460 U.S.
8 In respect to June 14, Palmer testified that he could not remember
but he "might have told them to go back to work, that it was an illegal
wildcat strike."
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
693 (1983), is the point of, departure and its teachings
must be accompanied. This case concerned a situation
where an employer had disciplined union officials more
severely than other participants in a wildcat strike. The
Court pointed out that the question whether an employer
may impose stricter penalties on union officials who take
a leadership role in an unlawful strike was- not present in
the case.9 "The narrow question presented is whether an
employer unilaterally may define the actions a union offi-
cial is required to take to enforce a no-strike clause and
penalize him for his failure to comply." The Court ruled
that the imposition of more severe sanctions on union of-
ficials for participating in an unlawful work stoppage
violates Section 8(a)(3); however, a union may waive this
protection by imposing contractual duties on its officials
to ensure the integrity of no-strike clauses. 10 See Bruns-
wick Corp., 267 NLRB 457 (1983).
Thus the question as to Palmer is: whether Palmer's
participation in the strike,, as a matter of law, permitted
the Respondent to discipline him more severely than
other employees who were not union representatives.
Under Metropolitan Edison Co. v. NLRB, supra, Palmer's
discharge will stand only if he instigated or provided a
leadership role in the strike, for employees, other than
the six employees who first appeared on the picket line
and who may he considered the instigators of the strike,
were not disciplined. Palmer was not with that group of
six.
In its brief, Respondent Akron cites, as reason for Re-
spondent Akron's discharge of Palmer (p. 12), "Helis
Palmer was terminated because he was observed on the
picket line while on suspension and because he was ob-
served taking a nonstriking employee [John Small] out of
the plant." Regarding the latter reason, the credited evi-
dence does not support a finding that Palmer caused
Small to leave the plant. Klimko testified that his conver-
sation with Small did not confirm that Palmer had in-
duced Small's leaving the plant. Moreover, the Small in-
cident occurred after the Respondent Akron had made
its decision to discharge Palmer and thus could not have
entered into its decision. Accordingly this reason for
Palmer's discharge is without merit.
As to the other reason, i.e.,- Palmer was seen on the
picket line, the Respondent Akron asserts that, in that
the strike was a sympathy strike for Palmer, his presence
on the line "undoubtedly encouraged the strike thus the
company had ample basis for concluding Palmer's pres-
ence on the line by itself constituted a leadership role."
Respondent Akron cites Chrysler Corp., 232 NLRB 466
(1977), noted by the Supreme Court in Metropolitan
Edison Co. Y. NLRB, supra, fn. 6, to support its conten-
tion. However, in the Chrysler case the discharged union
representative had unquestionably exercised a leadership
9 In fn 6 the Supreme Court noted: "The Board has held employees
who instigate or provide leadership for unprotected strikes may be sub-
ject to more severe discipline than other employees. See Midwest Preci-
sion Castings Co., 244 NLRB 597, 598 (1979); Chrysler Corp., 232 NLRB
466, 474 (1977). In making this factual determination the Board has rec-
ognized that a remark made by a union official may have greater signifi-
cance than one by a rank-and-file member. See Midwest Precision Castings,
supra at 599."
io The extant contract between the Union and Akron did not provide
for a waiver of this protection.
role which allowed the employer to single him out for
unique treatment. In the instant case Palmer's alleged
leadership role, upon which Respondent Akron relies for
his discharge, must be inferred from the fact that he, as a
union representative, appeared at the picket line site on
June 14 and 15. Being not unmindful that the Supreme
Court in footnote 6 above has noted that "the Board' had
recognized that a remark made by a union official may
have greater significance than one by a rank-and-file
member," (a fortiori, the presence of a union official on a
picket line may have a greater significance than that of a
rank-and-file member), I find the inference to be well
taken. Not only was Palmer an important union repre-
sentative but his complaint against the employer was the
only cause of the strike. Moreover, Palmer's presence on
the picket line identified him with the wildcat strikers
and created the impression that, as a union representative
and the sole beneficiary of the strike, he had condoned
the strike and was exercising a leadership role therein.
Although Palmer testified that on June 18, 1979, he
urged employees to discontinue the strike, this testimony
was not corroborated and is not credited. By reason of
his leadership role as manifested on the picket line, Re-
spondent Akron was within its lawful rights to discharge
him. It is recommended that the allegations in the second
amended consolidated complaint be dismissed as they
relate to the discharge of Helis Palmer.
D. May's Alleged Participation in Strike
According to D. May, he arrived at the plant on the
morning of the strike (June 12, 1979) about 6:20 a.m. He
saw a "group of guys standing across the street from the
Company's premises" but, nevertheless, went to the plant
and punched his timecard. D. May met his foreman at
the timeclock who asked him "what was going on." D.
May did not know and asked permission of his foreman,
Kenny Connor,l 1 to "go out there and find out." Upon
arriving "out there" D. May was informed that "they
were out for Helis Palmer because the Company gave
him five days off." D. May asked them "to go back to
work; let us go through the grievance procedure, be-
cause they were violating the contract." The strikers re-
plied that "they weren't going to work."
D. May returned to his foreman and asked him what
was he "supposed to do." D. May's foreman replied,
. . there wasn't nothing there for me to do until I get
those guys back to work; that the Company wasn't going
to pay me my eight hours to sit in there up in a crane for
nothing." D. May and Probst, who was also present
during the incident, returned to the picket line and talked
to "these guys again." D. May asked the employees to
go "back to work, because they were violating the Com-
pany's,contract, to let us to through the grievance proce-
dure." The strikers answered that "they weren't going
back until the Company talked to the committee." D.
May returned to his foreman who told him "there wasn't
no work until [he got] them guys back in there." He
added that "he had been a union representative before"
i i Connor did not testify.
LECTROMELT CASTING CO
and that it was D May 's "job to get the guys back to
work "
D May told his foreman that he was going to "report
off" and "get some help" 12 He reported "off sick "
D May then phoned International Vice President Wil-
liams and asked him to help "get them guys back in " D
May was referred to District Representative Kishner
Kishner told D May "to go get them guys back to
work." D May replied that he had "tried everything
within [his] power" and that he needed help Kishner
told D May to get the committee together and meet
with him at 8 o'clock the next day.
Around 8 a .m on the same day, D May and Probst
returned to the company premises to talk with Segatta
and Klimko They met Walker's and Jerry Hathway, as-
sistant to the general manager .' 4 Hathway told D May
and Probst to get off of the premises D May informed
him that he wanted to talk to Segatta and Klimko "about
getting those guys back to work " Hathway started
"shouting" and using "bad language" and told them to
get off the company premises Hathway told his secre-
tary to call the Barberton police to order them off the
premises "He said we didn't belong down there, and
that we belonged on the hill where the strikers were."
As related by D. May, "I told him no He told me to get
off the company premises I was headed back to the en-
trance of the shop to get my paperwork out, and he told
me, 'No , don't go in there ' I couldn't get back in there.
He wouldn't let me back in the shop" D May and
Probst then left and went to the picket line where they
urged employees to return to work Being unsuccessful,
they proceeded to open the union hall As put by D
May "Because it was getting too violent up on the hill to
try to talk to the guys , because they were dunking alco-
hol I figured if we opened the union hall, we could get
them in a meeting " The employees refused to come to
the union hall
D May testified that he did not go to work because
he was "afraid of violence on the picket line " I wasn't
about to put [my life] on the line because I was ordered
to stay away from there "
On June 13 , 1979, Kishner, E May, D May, and
Probst met at the gate "The guys made [them] leave
[their] cars up on the hill " This group "made it to the
personnel office" where they met Vernon and Klrmko
Kishner asked if he could set up a meeting with them
"about getting the guys back to work ." Klimko said, "I
ain't giving you no meeting until those guys get back to
work" and slammed the door in their faces The group
then proceeded to the Company 's coffee shop to get
some coffee After they entered the shop the lights were
turned off
The group then went to the picket line where Kishner
told the strikers to "get back to work because the com-
IE D May testified , "I did get permission from my foreman to go for
help " Of his foreman he testified , "And by him being a union representa-
tive before, he told me what I had to do, go call the top officials "
" In its brief, Respondent Akron relies on testimony of Walker to the
effect that D May refused to return to work and stated that he was stick-
ing it out with his brothers until Palmer was taken back and that Probst
said that they would "padlock the company and throw away the key "
Walker's testimony is discredited
14 Hathway did not testify
703
pany would not talk to us until them guys get back to
work " The strikers gave Kishner a "bad" time, they
"really gave him a rough time ." D May told the strikers
to go back to work and follow the grievance procedure
They refused , whereupon the group went to the union
hall where D May phoned Klimko, who refused to talk
to him Thereafter , D May went to the picket line for
brief visits at least once a day to urge employees to
return to work, however , on one occasion he went to
the picket line because it was reported that "one of the
Company 's supervisors had ran over some of the union
strikers with his car"
D May testified that he never encouraged the striking
employees to stay on strike.
It was broadcast by radio that there would be a union
meeting on June 19 , 1979 , around 10 D May talked to
"the guys at the meeting , asking them would they go
back to work " Palmer and E May also encouraged em-
ployees to return The first vote to return to work lost.
However , after more urging by E May and D May the
employees finally agreed to return to work
On June 20, 1979, D May heard rumors that "some of
the guys had got it " He was given his letter of dismissal
on June 20, 1979
D May testified that prior to his receipt of the dis-
charge letter no representative of management had ad-
vised him that anyone would be discharged for partici-
pating in the wildcat strike
D May said that he did not go to work during the
period of the strike because "[e]arlier the Company had
called the authorities and told me not to come back
down there on the Company premises , because I did not
belong down there And they were violent up there on
the hill to anyone that would go down in there "
E D May 's Alleged Discriminatory Discharge
According to Segatta, six of the discharged wildcat
strikers were chosen for discharge because they were the
first six people observed on the picket line Segatta said,
"To the best we could determine, they were instigators,
supporters and participants in the wildcat strike " These
were all rank-and-file employees Probst , E. May and D
May, according to Segatta, were chosen for discharge
because they threatened a wildcat strike on Saturday and
Monday . "They were also on the picket line "
In its brief, Respondent Akron asserts that D May
was terminated because he made "threats of the strike to
management" and was "observed on the picket line." (p
12) Added was this language , " the four stewards
who were discharged were not terminated because they
failed to assume the affirmative duty of ending the strike,
but because they actually had a hand in fomenting it "
(p 16).
Respondent Akron's claim that D May was "involved
in two meetings where he tried to coerce management
into rescinding Palmer's suspensions by threatening
strike" is not borne out by the credible record . While, as
Vernon stated, wildcat strike was "on all our minds,"
neither the word "strike" nor "hit the hill" was men-
tioned by any of the conferees Considering the tempera-
ment of the conferees and the "noisy" character of the
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting , had strike been actually threatened by the union
representative the word strike surely would have slipped
out in an unguarded moment Nevertheless , assuming, ar-
guendo, that D May did say, as claimed by Klimko,
.,you know what's going to happen ," such language
favors the conclusion that, unless Respondent Akron ca-
pitulated , the employees would strike and (as was ob-
served by Vernon) there was little the committee could
do about it 15 This state of affairs was confirmed on
Tuesday morning when D May for the first time en-
countered the picket line and was unable to persuade the
pickets to go to work Neither expressly nor by implica-
tion did any of the union conferees convey at these
meetings the idea that unless Palmer's suspension was re-
scinded they would cause a wildcat strike Nor may it be
considered to have been a threat by them to have in-
formed Respondent Akron what the true situation among
the employees was in the plant Indeed Respondent
Akron must have viewed the meetings in this light, be-
cause in its notice of discharge it did not cite a threat to
cause a wildcat strike as a reason for discharge Such
reason differs from the reasons given, i e, "instigated,
supported and/or participated in the illegal wildcat
strike " Moreover, the alleged misconduct for which D
May was discharged occurred between June 12 and 15,
1979-after the alleged threats were supposed to have
occurred Since D May was not discharged for alleged
misconduct prior to June 12 , 1979, the alleged threat
which occurred earlier appears to have been an after-
thought for the purpose of giving supposed legitimacy to
Respondent Akron's disciplinary action Apparently this
alleged threat held no threatening meaning for Respond-
ent Akron until it became a post -rationalization for D
May's discharge in this case 16 Moreover , the threat to
strike is inconsistent with D May's subsequent conduct
in passing through the picket line , clocking in , and dili-
gently urging the strikers to return to work The first
reason advanced by Respondent Akron is not supported
by the credible facts and is without merit
Respondent Akron's additional asserted reason for D
May's discharge was that he was observed on the picket
line D May was not among the first six pickets Thus,
in order to avoid a charge of disparate treatment D May
must have been treated as were the remaining strikers
On the first day of the strike, after clocking in, D
May with the permission of his supervisor went to the
picket line where he told the strikers to return to work.
Indeed D May was admonished by his foreman that it
15 Moreover, if the management representatives had considered that
D May or the union conferees were threatening to stoke, it seemed rea-
sonable that they would have warned them of the consequences, which
they did not do
16 Indeed Klimko testified that he had heard the words "you know
what will happen" before from union representatives even though a
strike did not occur Klimko testified
I believe through the course of time, even though there were no
wildcats, I heard that expression different times, although they didn't
always result in a wildcat stoke
I want to make that clear, that it's not only when there was a
strike that I heard this I heard it at others when they didn't stoke
That was a common thing to threaten, you know, you know what
we'll do, you know what will happen if you don't, you know
was his job "to get the guys back to work " He also told
D May to call the top union officials
Being unsuccessful in persuading the strikers to return,
D May contacted the top union officials Thereafter D
May appeared at the plant with District Respresentative
Kishner Although the Employer slammed the door in
their faces , it must have known from Kishner's appear-
ance that D May and the committee had sought aid
from the International Union Moreover, it is reasonable
to conclude that the Respondent Akron also must have
known that D May was striving to return the strikers to
work because of the adamant position the Employer was
taking, i e, "I ain't giving you no meeting until those
guys get back to work " Moreover , had the Employer
been watching (as no doubt it was because it recorded
D May 's name) it would have seen D May and Kishner
together at the picket line after they had tried to talk to
the Employer Since the Employer had just rendered an
ultimatum, it was reasonable to infer that they were at
the picket line to encourage employees to return to
work I believe D May when he said that he was at the
picket line to try to get the pickets to cease picketing
and return to the plant Unlike Palmer, D May was ob-
servably engaged in encouraging the strikers to return to
work, hence an inference cannot be drawn that he filled
a leadership role in fomenting the strike Contrary to the
Respondent Akron's contention , D May was not fo-
menting a wildcat strike but rather was engaged in ef-
forts to end it when he was discharged Cf Roadway Ex-
press, 250 NLRB 393 (1980) D May's absence from his
job, which was employer willed , was for the purpose of
trying to get the strikers back to work 17 I am convinced
that D May would not have been discharged had he not
been a union representative 18 Such disparate treatment
falls within the condemnation of Metropolitan Edison Co.
v. NLRB, supra, and it is found that by discharging D
May under the circumstances above detailed , Respond-
ent Akron violated Section 8(a)(1) and (3) of the Act
Additionally as late as February 16, 1979, Respondent
Akron held a view which did not conform with the
teachings of Metropolitan Edison Co v. NLRB, supra, i e,
"When a walk out occurs the union representative have
a greater responsibility than the rank -and-file employees
to be on the job and to set the example as union leaders
Their absence from their jobs during a walk out indicates
complete support for an illegal act " It is clear that Se-
gatta, who wrote the foregoing language and who was
instrumental in the discharge of D May, had mistook the
law as it applied to the duties imposed on union repre-
sentatives during the time of a wildcat strike The mis-
takes view of the law, coupled with the fact that the
credible evidence does not support the reason advanced
by Respondent Akron for the discharge of D. May, leads
to the inescapable conclusion that D May was dis-
charged because of his union status I find, based on the
credible evidence in this case, that D May did not insti-
17 D May's foreman told him that "there wasn 't no work until [D
May got] them guy back in there "
is Cf Wright Line, 251 NLRB 1083 (1980)
LECTROMELT CASTING CO.
gate, support, and/or participate in an illegal wildcat
strike. 1s
Respondent Akron's mistaken belief'that D. May insti-
gated , supported, and/or participated in the wildcat
strike did not justify the discharge , when D. May had
not actually engaged in any misconduct. Volkswagen of
America, 261 NLRB 248 (1982); Babcock & Wilcox Co.,
249 NLRB 739, 740 (1980).
F. E May's Alleged Participation in the Strike
]Eddie Lee May arrived at the plant vicinity about 3
p.m., on June 12, 1979. He worked on the second shift.
The strikers stopped him on the hill and advised him not
to take his car "down there" or they would "tear it up."
"[J]ust about all of the people that worked the first and
second shift, was there." He went "down to the plant"
and talked to Foreman Castella. He told Castella that he
was going "back down to see if [he] could get the buys
[sic] back to work." D. May urged the strikers to return
to work bui was unsuccessful. He then proceeded to the
union hall.
E. May had first learned for the strike from his broth-
er D. May about 11 a.m. on June 12 when D. May had
phoned him with news of the event. Prior to that time he
had learned that there were "a lot of people upset about
them giving Helis Palmer the time off." On Friday night
"everybody knew" of Palmer's suspension on the second
shift. E. May knew that employees were "talking" strike.
According to E. May, on June 13, 1979, E. May, D.
May Probst, and the "guy that works for the Internation-
al" went down to the plant around 8 o'clock. The group
"made it as far as the office where Mr. Klimko's office
was." They were met by Vernon. "[H]e wasn't going to
talk to us and he wasn't going to let us see Mr. Klimko
until the people started work." The International repre-
sentative told Vernon that "We can't get the guys back
unless you talk to them." The group returned to the
"hill" where they urged the strikers to return to work.
E. May ' told'them it was "an unlegal [sic] strike, and the
company would not talk to them as long as they were
our on an illegal strike. They would have to come back
and let us go through the grievance step by step."
E. May testified: "I was up there three times on the
hill after they had the strike, and each time I was there I
went down and tried to talk to the Company."
At the union meeting of June 19, 1979, E. May along
with other committeemen urged employees to go back to
work. The return to work was voted down. Thereafter,
E. May told the strikers, "It's unlegal [sic] to take a vote
on an unauthorized work stoppage.... We are going to
19 While Respondent Akron observes in its brief, p 16, that the "four
stewards who were discharged were not terminated because they failed
to assume the affirmative duty of ending the strike," nevertheless it de-
votes several pages to the discussion of the subject It claims that Segat-
ta's communication to the Union on February 16, 1979, contained conces-
sions in exchange for the Union 's promise to prevent illegal walkouts in
the future (see language set out above for these alleged union promises).
However, such communication did not constitute a clear and unnustak-
able waiver as is required by Metropolitan Edison Co. R NLRB, supra.
See also Brunswick Corp., 267 NLRB 457 ( 1983) Moreover, assuming ar-
guendo that such communication constituted a waiver, I find on the basis
of the credited evidence in this case that D May and E . May fulfilled
any responsibilities cast upon them as union representatives
705
have to go back and go with the legal procedures." "We
talked back and forth . . . until we got a majority of the
people to say they would go back in."
E. May testified that he tried to stay away from the
picket line. He did not want it said that he was "trying
to be in the picketing." E. May said he did not encour-
age any employees to stay on strike.20
D. May said that he did not remain at work the first
day of the strike because there was no one on the second
shift. Thereafter there was no job on the second shift. He
said he attempted to return to work but "[i]t'was violent
on the hill. If you went down through there, you are
subject to be hurt. . . . There were rocks throwing,
bricks, and windshields busted on any cars that tried to
go down in there-1121
G. E May's Alleged Discriminatory Discharge
As in the case of D. May , Respondent Akron asserts
that E . May was "terminated because [he] had made
threats of the strike ' to management and [was] observed
on the picket line." (R. Br. p. 12.)
While E. May attended a Palmer grievance meeting,
the credited evidence22 does not disclose that he threat-
ened a wildcat strike with words either express or im-
plied. Thus, the first reason advanced by Responent
Akron is without validity.
As did D. May, E. May tried to induce the strikers to
return to work and fulfilled any alleged duties or respon-
sibilities cast upon him because of his status as a union
representative.
On the basis of the entire credited record in this case
and for the same reasons which I set forth in my treat-
ment of D. May's discharge above, I find that E, May
did not instigate , support , and/or participatein an illegal
wildcat strike ascharged by Respondent Akron, but be-
cause of his status as a union ' representative he was dis-
charged.
Accordingly, Respondent Akron violated Section
8(a)(3) of the Act by discharging E. May on June 18,
1979.
H. THE 10(B) QUESTION
Respondent Akron asserts that the charge in Case 8-
CA-13431 is outside the 10(b) period with respect to Re-
spondent Akron because, from the end of August 1979,
when Respondent Akron sold Lectromelt to Respondent
Ravenna, until November 4, 1981, Respondent had
notice only of the Palmer charge in Case 8 -CA-13000.
Assuming, arguendo , that such assertion is valid, never-
theless, because the discharges of D. May and E. May
were closely related to the charge filed by Palmer within
the 10(b) period and served upon Akron, the second
amended consolidated complaint including the alleged
20 B. Palmer, a striker , testified that E May said that "we should go
back to work and that Palmer was sure he could win his case, and the
Company wasn't going to be talking , because we were on strike.
21 When E May was asked if he had offered to go back to work he
said, "I couldn't offer nobody when I couldn't talk to nobody. I couldn't
talk to no Company men "
22 Neither Klimko's minutes of the June 11 meeting nor his affidavit
indicate that E. May used any threatening words
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharges of Palmer , D. May, and E.
May will lie. Palmer 's charge alleges:
On or about June 18, 1979, it, by its officers, agents,
and representatives , discharged Helis Palmer be-
cause he engaged in or it believed he engaged in
concerted activities for the purpose of mutual aid or
protection.
By the above and other acts, the above-named em-
ployer has interfered with, restrained , and coerced
employees in the exercise of their rights guaranteed
by the Act.
The Supreme Court has said in the case of NLRB v.
Font Milling Co., 360 U.S. 301 (1959):
A charge filed with the Labor Board is not to be
measured by the standards applicable to a pleading
in a private lawsuit . Its purpose is merely to set in
motion the machinery of an inquiry.
Once its jurisdiction is invoked the Board must
be left free to make full inquiry under its broad in-
vestigatory power in order properly to discharge
the duty of protecting public rights which Congress
has imposed upon it. There can be no justification for
confining such an inquiry to the precise particularliza-
tions of the charge. [Id. at 307, 308. Emphasis
added.]
Thus it is immaterial whether the names of D. May
and E. May were contained in the Palmer charge in
order that their names could be included in the second
amended consolidated complaint. The discharges of D.
May and E . May were closely related and arose out of
the same transaction as the conduct alleged to be unlaw-
ful in the timely filed charge by Palmer. The discharges
of D. May and E. May were a part of the same incident
and involved the same subject matter of the action as did
the discharge of Palmer . The reasons for discharge were
the same, i.e., "instigating , supporting, and/or participat-
ing in the illegal wildcat strike." Accordingly, the names
of D. May and E. May were properly included in second
amended consolidated complaint . See Sunrise Manor
Nursing Home, 199 NLRB 1120, 1121 (1972); Great
Plains Steel Corp., 183 NLRB 968, 974-975 (1970).
Moreover, the allegation in Palmer 's charge was suffi-
ciently broad to cover the discharges of D. May and E.
May which were part and parcel of Respondent Akron's
alleged misconduct. As was stated in the case of Commu-
nications Workers, Local 1127 (New York Telephone), 208
NLRB 258, 264 (1974), the Respondent "has not been
prejudiced by the Regional Director's procedure of
processing as individual charges what could have been
processed in a single charge." In that case the Board
held that even if an alleged discriminatee 's charge was
untimely filed , his inclusion in the complaint was deemed
proper on the charges of other alleged discriminatees
filed within the 10(b) period. As is the case of the Palmer
charge, these charges included the catchall clause quoted
above from the Palmer charge which was deemed suffi-
cient to sustain the inclusion of an alleged discriminatee
in the complaint whose name did not appear in the
charge. See also Michigan Consolidated Gas Co., 261
NLRB 555 (1982); NLRB v. Carilli, 648 F.2d 1206 (9th
Cir. 1981).23
Hence Respondent Akron's assertion that the claims of
D. May and E. May are barred by Section 10(b) are not
well taken.24
CONCLUSIONS OF LAW
1. Respondent Akron and Respondent Ravenna are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and it will effectuate
the purposes of the Act for jurisdiction to be exercised
herein.
2. By unlawfully discharging Donnal May and Eddie
Lee May on June 18 , 1979 , Respondent Akron has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
3. Respondent Ravenna has continued to be the em-
ploying entity and is a successor to Respondent Akron.
4. Respondent Akron and Respondent Ravenna are
jointly and severally liable for any backpay awarded
herein and Ravenna is obligated to offer D. May and E.
May reinstatement as set forth in the remedy section of
this Supplemental Decision , infra.25
5. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent Akron and Re-
spondent Ravenna are jointly and severally liable for any
backpay awarded herein and Revenna is obligated to
offer Donnal May and Eddie Lee May reinstatement, it
is recommended that said Respondents take such actions
as are designed to effectuate the policies of the Act. It is
further recommended that Respondent Ravenna offer
Donna] May and Eddie Lee May immediate and full re-
instatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, dismissing , if necessary,
any employee hired on or since June 18, 1979 , the date
of their discharges, to fill those positions, and Respond-
ent Akron and Respondent Ravenna shall make them
whole for any loss of earnings they may have suffered
by reason of the wrongful discharges, by payment to
them of a sum of money equal to the amount they would
have earned from the date of their unlawful discharges
to the date of an offer of reinstatement or if reinstate-
ment cannot be effected because of the termination of
the operations of the plant which is the subject of the
23 In the latter case it was stated " .. the `by this and other acts' lan-
guage of the original charge was sufficiently specific because it was am-
plified by the consolidated complaint which related back to the date of
that charge "
24 In that I am bound by the Board's decision (See Penntech Papers,
263 NLRB 264, 284 (1982)), the case of Mine Workers v. NLRB, F 2d
2441 (D C. Cir 1962), cited by Respondent Akron is inappropriate
25 See Golden State Bottling Co. v. NLRB, 414 U S 168 (1973)
LECTROMELT CASTING CO. 707
proceedings, such time as they have secured substantially lished by the Board in F. W. Woolworth Co., 90 NLRB
equivalent employment with another employer, 26 less 289 (1950), and Florida Steel Corp., 231 NLRB 651
net earnings during such period with interest thereon, to (1977).27
be computed on a quarterly basis in the manner estab- [Recommended Order omitted from publication.]
26 At the time of the hearing the plant was not operating . 27 See generally Isis Plumbing Co, 138 NLRB 716 (1962)