General Electric Co (Hotpoint)

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 843 (N.L.R.B. 1989)

GENERAL ELECTRIC CO
General Electric Co (Hotpoint) and Local No 601,
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry
of the United States and Canada Case 30-CA-
9450
January 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On July 29, 1988, Administrative Law Judge
Wallace H Nations issued the attached decision
The Respondent filed exceptions and a supporting
brief The General Counsel and the Charging Party
filed answering briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions only to the extent consistent with this
Decision and Order, and to adopt the recommend-
ed Order
The issue presented is whether the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging Frank Akre after he failed to cross a
picket line established by the Union at the Re-
spondent's facility on December 29, 1986 In agree-
ing with the judge that the Respondent violated
the Act by discharging Akre, we rely exclusively
on his finding that the Respondent condoned
Akre's conduct
On December 29, the Union engaged in nonem-
ployee picketing of the Respondent's facility after
learning that a nonunion subcontractor was per-
forming steamfitter work at the plant When proba-
tionary steamfitter Frank Akre arrived for work
that morning, he discovered that all entrances were
picketed Akre was not a union member Union
Business Agent Richard Pipke explained the situa
tion to Akre Pipke told Akre that it was not in his
best interest to report to work, but that Pipke
could not tell Akre what to do
Before the start of his shift, Akre called his su-
pervisor, Lee Herriges Akre told Hernges that he
was outside the plant and was advised by the
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has requested oral argument The request is denied as
the record exceptions and briefs adequately present the issues and the
positions of the parties
843
Union not to cross the picket line Akre asked Her-
nges what to do Herriges told Akre that he could
not tell him what to do, that Akre was in a very
difficult position, that Herriges would speak with
his supervisor, Murley Henson, 2 and that Akre
should call back
When Akre called back at 7 45 am, Herriges
was in a meeting with Henson Akre spoke with
another maintenance supervisor, Pat Zielinski Zie-
linski told Akre that Hernges was unavailable, that
Zielinski could not tell Akre what to do, that Akre
was scheduled to work, and that Akre could3 call
Herriges back
Akre called back at 8 20 am and received a
similar response, although Akre may have volun-
teered that he would call back Akre called the
plant a fourth time around 8 30 a m and again
spoke with Zielinski Zielinski informed Akre that
Henson and Unit Manager Thomas Holak were
going to the main gate to speak with Pipke Akre
indicated that he would meet them at the gate 4
When Akre arrived at the picket line, Henson and
Holak had already departed Akre spoke with
Pipke, who indicated that there had been some sort
of resolution5 and that Akre could report for work
Akre went into the plant at 9 a in He was the
first steamfitter to do so He located Hernges,
threw up his hands, and said "I'm here " Herriges
took Akre to see Henson While on route, Herriges
explained that he understood Akre's position be-
cause he had been a probationary employee in a
similar situation during a work stoppage at United
Airlines, and he did not know what to do then, nor
could he advise Akre what to do now
Akre and Herriges met with Henson Henson
told Akre that there was work available and that if
he failed to report to work there was a possibility
of disciplinary action Akre stated that he did not
want to jeopardize his job and that he would clock
in immediately Akre also explained that he had un
successfully tried to obtain some guidance from the
Respondent because he did not want to jeopardize
his job
After clocking in, but prior to actually com-
mencing work, Akre encountered Zielinski and
Holak at the coffee machine Akre explained the
events of the morning, his concern about possible
2 Henson was manager of employee and community relations
8 The judge misquoted Zielinski s notes to read should rather than
could call back This distinction does not affect our result
4 Although Zielinski s notes do not expressly indicate that he told Akre
to meet Henson and Holak at the gate the notes do not controvert
Akre s express testimony that Zielinski related Hernges direction to meet
there
5 After being advised of the proper gate to be reserved for the non
union subcontractor Pipke moved the pickets to that gate Picketing con
tinued at the reserved gate for the rest of the week and did not interrupt
passage of the Respondent s employees to or from work
292 NLRB No 90
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
blackballing by the Union, and his desire to remain
in the Respondent's employ. Holak told Akre that
he handled the situation as best he could and that
there was no other way to handle it. Akre then
began working. The other steamfitters reported to
work an hour later.
Later that day, all the steamfitters were ques-
tioned by Herriges concerning their absence and
whether they would work the remainder of the
week. Akre indicated that union violence, threats,
or hints of retaliation related to crossing a picket
line would keep him from reporting for work.
Akre worked the remainder of the week and the
following week. Nothing was said to Akre about
possible discipline during this period.
On January 5, 1987, the Respondent' s manage-
ment representatives met to discuss the events of
December 29 and decided that Akre should be
questioned again about why he had refused to
cross the picket line. Questions were prepared by
Holak. On January 6, Herriges directed Akre and
his shop steward to meet in Holak's office. Her-
riges and Holak questioned Akre. Thereafter, the
Respondent's officials reconvened and determined
that discipline was necessary because Akre's re-
sponses indicated he had consciously followed
Pipke's instructions and thereby participated in a
work stoppage on December 29.
The Respondent terminated Akre on January 7,
1987, for violating rule 27 of its code of conduct
prohibiting an employee from participating in any
illegal interference with work. The next day the
Respondent gave 5-day suspensions to the other
steamfitters who refused to cross the Union's picket
line. It is undisputed that the Respondent's discipli-
nary policies required termination of any employee
disciplined during the probationary period.
The judge found that the work stoppage was
protected because it had no proscribed objectives
and did not violate the contractual no-strike provi-
sions . He concluded, therefore, that Akre's dis-
charge for failure to cross the picket line was un-
lawful discrimination against protected activity in
sympathy with the Union. The judge found that
even if the December 29 work stoppage was un-
protected, the Respondent condoned both the pick-
eting and Akre's failure to cross the picket line and
therefore Akre's subsequent discharge violated the
Act. Relying on Board precedent in Super Value
Xenia, 228 NLRB 1254 (1977), the judge concluded
that the actions taken by Akre in response to man-
agement's directives, together with management's
statements to Akre, established that the Respondent
condoned Akre's failure to cross the picket line.
The judge further reasoned that Akre was actu-
ally not discharged because of his failure to cross a
picket line on December 29, but because of his as-
serted willingness to honor future picket lines and
union instructions. Finally, the judge concluded
that Akre's discharge, notwithstanding his quest for
advice, evidenced disparate treatment designed to
discourage union activity generally, because other
steamfitters who clearly refused to cross the picket
line received only 5-day suspensions.
For the reasons set forth below, we agree with
the judge's finding that the Respondent violated
Section 8(a)(3) by discharging Akre for his refusal
to cross the picket line after it had condoned that
refusal. We find it unnecessary to pass on the
judge's antecedent findings that the work stoppage
was lawful under the Act and was permissible de-
spite the contract's no-strike provisions. Further,
we expressly disavow reliance on the judge's pre-
text and disparate treatment analyses.
Even assuming that Akre's conduct was unpro-
tected, we find that the Respondent condoned
Akre's refusal to cross the picket line. The doctrine
of condonation applies where there is clear and
convincing evidence that the employer has agreed
to forgive the misconduct, to "wipe the slate
clean," and to resume or continue the employment
relationship as though no misconduct occurred.6
"The doctrine prohibits an employer from mislead-
ingly agreeing to return its employees to work and
then taking disciplinary action for something appar-
ently forgiven."7
The essential elements of condonation are
present here. As found by the judge, Akre sought
but received no clear guidance from the Respond-
ent. Although outside the picket line, he was never
clearly told to report to work or that he was jeop-
ardizing his job by failing to report. He complied
with the specific directions that he was given by
management. When he initially entered the plant,
management (Herriges) expressed sympathy for his
plight. The credited testimony established that
during the critical meeting in Henson's office Akre
was first told that if he did not then report for
work there was a possibility of disciplinary action.
When Henson informed Akre that he was jeopard-
izing his job by not reporting for work, Akre im-
mediately clocked in and was permitted to work
for more than a week without any further mention
of disciplinary action. On the contrary, shortly
after Akre clocked in, he was informed by manage-
6 Kohler Co., 128 NLRB 1062, 1105 (1960), enfd . in part and remanded
sub nom . Auto Workers Local 833 v. NLRB, 300 F.2d 699 (D.C. Cir.
1962), cert. denied 370 U.S. 911 (1962); NLRB v. Colonial Press, 509 F.2d
850 (8th Cir. 1975), cert. denied 423 U.S. 833 (1975); NLRB v. Communi-
ty Motor Bus Co., 439 F.2d 965 (4th Cir. 1971); Bakery Workers Local 805
Y. NLRB, 312 F.2d 108 (2d Cit. 1963); and Plasti-Line, Inc. Y. NLRB, 278
F.2d 482 (6th Cit. 1960). See also Emarco, Inc., 284 NLRB 832 (1987).
7 Packers Hide Assn. v. NLRB, 360 F.2d 59, 62 (8th Cir. 1966).
GENERAL ELECTRIC CO
ment (Holak) that he had handled the situation in
the best way possible
In these circumstances, we conclude that the Re-
spondent clearly evidenced an intention and com-
mitment to overlook Akre's refusal to cross the
picket line, and it permitted the continuation of the
employment relationship as though no misconduct
had occurred Having once condoned Akre's brief
failure to work in response to the picket line, the
Respondent was not privileged to change its posi-
tion By thereafter discharging Akre, it violated
Section 8 (a)(3) and (1) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, General
Electric Company (Hotpomt), Milwaukee, Wiscon-
sin, its officers, agents, successors, and assigns, shall
take the action set forth in the Order
Benjamin Mandelman Esq, for the General Counsel
Robert H Duffy and George K Whyte Esq.., of Milwau
kee, Wisconsin , for the Respondent
Scott R Merrill Esq, of Louisville , Kentucky , for the
Respondent
Marianne Goldstein Robbins Esq , of Milwaukee , Wiscon
sin, for the Charging Party
DECISION
STATEMENT OF THE CASE
WALLACE H NATIONS, Administrative Law Judge
On January 12, 1987, Local 601 United Association of
Journeymen and Apprentices of the Plumbing and Pipe
fitting Industry of the United States and Canada (the
Union) filed a charge against General Electric Co (Hot
point) (Respondent) Complaint and notice of hearing
issued on February 20, 1987, from Region 30 The com
plaint alleges violation of Section 8(a)(1) and (3) of the
Act by the discharge of its employee Frank Akre by Re
spondent A hearing was held before me on May 7 and
8 1987, and briefs were submitted by the parties
Based on all the evidence of record including the de
meanor of the witnesses giving testimony, I make the fol
lowing
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with an office
and place of business in Milwaukee, Wisconsin, has been
and is engaged in the manufacture and nonretail sale and
distribution of dishwashers and related products Re
spondent admits the jurisdictional allegations of the com
plaint, and I find that Respondent is now, and at all
times material , has been an employer engaged in com
merce within the meaning of Section 2(2), (6), and (7) of
the Act
II THE LABOR ORGANIZATION
845
All parties admit that the Union is now , and at all
times matenal has been , a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The question presented in this proceeding is whether
Respondent violated Section 8(a)(1) and (3) of the Act
by discharging employee Frank Akre As will be dis
cussed in detail below, Akre was discharged because he
did not cross a picket line at Respondents facility on
December 29 The General Counsel asserts Akre's con
duct was protected and his subsequent discharge there
fore unlawful The General Counsel also asserts that Re
spondent condoned Akre s refusal to cross the picket line
and that its subsequent decision to discharge him reflects
unlawful motivation and an intent to discourage protect
ed union activity
The Respondent acknowledges that it did discharge
Akre because of his refusal to cross the picket line, citing
Akre s refusal as a violation of the Company s employee
code of conduct It further contends that Akre s refusal
to cross the picket line was not protected activity be
cause of the no strike provisions contained in the collec
tive bargaining agreement between it and the Union
A Background Information with Respect to
Respondents Business and Union Relationship
Respondent manufactures dishwashers and related
products at a facility located in Milwaukee, Wisconsin
The Milwaukee plant is in the Respondent's major apple
ance business group Frank Kos, acting plant manager, is
in overall charge of Respondents Milwaukee operations
Specifically involved in this proceeding are various su
pervisors in the maintenance and industrial engineering
unit The unit manager was Thomas Holak Reporting to
Holak were Maintenance Supervisors Lee Hernges and
Pat Zielinski Murley Henson was manager of employee
and community relations at all times material to this de
cision
Respondent employs approximately 488 individuals in
Milwaukee Of that total, 430 are represented by 5 differ
ent unions The Union involved in this proceeding repre
sents seven employees who perform maintenance on
plant equipment The Union s chief representative is
Richard Pipke financial secretary treasurer and business
agent Pipke handles the Union s business at about 50
area employers He negotiated the most recent collec
tive bargaining agreement between the Union and the
Respondent Apart from Pipke the Union has a shop
steward, Garron Roberts at the Respondents facility
Roberts is a full time employee of the Respondent
The alleged discnmmatee Frank Akre, began working
for Respondent on October 27 1986 When discharged
Akre was a probationary employee and was not yet a
member of the Union Before his employment with Re
spondent Akre was a machinist mate in the United
States Submarine Force In the Navy, he received sub
stantial technical maintenance training and Respondent
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stipulated that Akre's work was very satisfactory and
Respondent had no complaints with him as an employee.
The collective-bargaining agreement between the
Union and Respondent is effective from July 1, 1985,
until June 26, 1988 . The agreement was negotiated on a
local basis with Pipke and Henson being the principals
involved . The agreement contains a grievance procedure
and provides for arbitration in only limited circum-
stances . The contract has several clauses relevant to the
dispute at hand, which are set forth below:
ARTICLE XI-STRIKES AND LOCKOUTS
1. This Agreement shall not prohibit a strike aris-
ing out of a grievance after the grievance proce-
dures have been fully complied with, and provided
that the grievance does not involve a matter subject
to arbitration or a matter on which the Company
has indicated in writing its willingness to arbitrate
in accordance with Article X, Arbitration . Except
for the foregoing , the Union agrees that there will
be no strike , stoppage of work, sitdown, slowdown,
picketing , employee demonstrations or other sus-
pension or cessation of work of any kind during the
terms of this Agreement for any reason whatsoever,
and such actions will not be sanctioned by the
Union or its representatives . The Company agrees
that there will be no lockout of employees during
the term of this Agreement for any reason whatso-
ever resulting from any matter in dispute while the
matter is under discussion at any of the steps of the
grievance procedure , or if the matter is submitted to
arbitration as provided for in Article X, Arbitration.
The Union shall give the Company ten day's [sic]
notice in writing prior to any strike permitted under
this Article and shall therein identify the grievance
over which such actions to be taken.
2. In the event any violation of the Section above
occurs which is not authorized by the Union, the
Company agrees that there shall be no liability on
the part of the Union , providing that in the event of
such unauthorized action , the Union first meets the
following conditions:
(a) The Union shall declare publicly that such
action is unauthorized.
(b) The Union shall promptly order its mem-
bers to work, notwithstanding the existence of
any picket line.
(c) The Union shall not question the unquali-
fied right of the Company to discipline or dis-
charge any employee or employees engaged in
participating , or encouraging such unauthorized
action . It is understood that such action on the
part of the Company shall be final and binding
upon the Union and its members, and shall in no
case be construed as a violation by the Company
of any provision of this Agreement. However, an
issue of fact as to whether or not any particular
employee has engaged in, partcipated in, or en-
couraged any such violation may be subject to
the grievance procedure herein provided for.
3. In the event picket lines are established by em-
ployees of the Company represented by collective
bargaining organizations other than the Union, the
members of the Union will each make a bona fide
attempt to report for work when scheduled to
work, but if they are unable to so report due to vio-
lence or threats of violence, such failure shall not,
for the purpose of this Agreement , be regarded as a
strike , stoppage or slowdown of work, nor shall it
subject such employees to discharge or other disci-
plinary action.
The above clauses, or substantially similar clauses,
have existed in the parties ' collective-bargaining agree-
ment since at least 1963. No discussion between the par-
ties occurred concerning the above clauses or their appli-
cability to picketing at Respondent 's facility directed at
third parties (subcontractors).
B. Picketing and Related Events
Each year between the Christmas and New Year's
holidays the Company shuts down its manufacturing op-
erations for a 2-week period . During this time major ren-
ovation , reconditioning, and installation projects are un-
dertaken . Although the production employees are, for
the most part , off work during this period , the mainte-
nance employees , including the steamfitters are working
full time. Also during this period a significant number of
projects are subcontracted . On December 8, 1986 , notice
was sent to all shop operation personnel , including union
stewards , advising them of the major projects planned
for the winter shutdown. On Friday, December 26,
Garron Roberts, union steward for Local 601 at the Mil-
waukee plant , learned that a subcontractor , Associated
Erector was doing steamfitters' work at the plant. He no-
tified Richard Pipke , business agent for Local 601 , of this
fact. Roberts spoke with Murley Henson shortly thereaf-
ter, telling Henson that one of the ways that the dispute
could be resolved was if the Company allowed the
steamfitters to perform the subcontracted work . During
this conversation Henson told Roberts that General
Electric would enjoin any picketing . The conversation
concluded with Roberts telling him that the problem was
between Henson and the business agent of Local 601 as
the unit members did not want to have any part of strike
or picket action.
On December 28, Pipke and Henson had a telephone
conversation . Pipke told Henson that he understood a
nonunion contractor would be working at Respondent's
facility and testified that he told Henson that if they re-
mained the Union would be advertising by picketing that
they were paying substandard wages. Henson testified
that he advised Pipke that the employment of the sub-
contractor was not in violation of the collective-bargain-
ing agreement . On brief, Respondent urges that Pipke
then threatened to picket the gates of the plant with area
standards pickets, unless the nonunion subcontractor was
removed from the plant . Having carefully considered the
testimony of both Pipke and Henson, I do not find that
Pipke so threatened Henson. Henson during this conver-
sation informed Pipke that a reserved gate for the sub-
GENERAL ELECTRIC CO
contractor would be posted Pipke testified that he told
Henson that the Union would picket at the right place
Henson did not mention to Pipke that such picketing
would be in violation of the parties no strike clause
Henson sent out a mailgram on December 28, advising
the Union that Respondent was establishing a reserve
gate for Associated Erector This mailgram, which specs
feed the gate to be utilized , was not received until late in
the morning of December 29, after picketing had already
begun The mailgram does not mention that picketing by
the Union would breach the parties' no strike clause
On December 29, the Union picketed Respondents fa
cility Picketing was not conducted by Respondents em
ployees, but by other members of Local 601 At the start
of picketing , there were no signs directing the Union to
the gate that had been reserved for the subcontractor
The Union 's picket signs read , Our Only Dispute Is
Substandard Wages & Fringes Paid By Associated Erec
tors Steamfitters Local 601 As a consequence of the
picketing , Respondents steamfitters , including Akre,
who were scheduled to start work at 6 30 a in did not
report to work until later on Monday morning
Pipke was present at the picket line on December 29,
and about 9 or 9 30 am he spoke with Henson and
Holak Henson told Pipke there would be three gates
one for Respondents employees , a second for Associated
Erector , and a third for other contractors Henson also
asked Pipke if he had received a mailgram , and Pipke re
plied that he had not There was no assertion made to
Pipke that his picketing breached the no strike clause
that it was a secondary boycott , or that the Union s mes
sage concerning Associated Erector was inaccurate
Pipke after being advised that gates were going to be
established moved the pickets to the 43d Street/
Associated Erectors gate Picketing continued at that
gate for the remainder of the week Following the ex
change between Pipke and Henson the Respondent's
steamfitters reported to work They worked without
interruption thereafter even though the Union continued
to picket
C Was the Union 's Picketing Protected Activity?
1 Did the picket line violate Section 8 (b) of the Act as
a secondary boycott?
Respondent contends , inter alia that the picketing by
Local 601 constituted an unlawful secondary boycott It
bases its position on its assertion that (1) the Union did
not sufficiently investigate the wages being paid by Asso
ciated Erectors before determining that they were sub
standard and (2) because of alleged threats made by the
Local that would lead Respondent to believe that the
picketing was aimed at forcing it to cease doing business
with Associated Erectors
Regarding the first premise it is clear from the record
that Pipke based his understanding of the substandard
nature of Associated Erectors wages wholly on the rep
resentations of another business agent in another State
He conducted no independent investigation to determine
whether Associated Erectors was in fact paying sub
standard wages For his part, Pipke urged that if Henson
or presumably any one else with Respondent indicated to
him that he had proof that the wages being paid by As
847
sociated Erectors were area standards wages he would
not have picketed Although I believe that the Local did
have an obligation to determine whether the wages actu
ally paid by the subcontractor were below area stand
ards, I find it significant that General Electric did noth
ing to determine the level of wages in order to avoid the
picketing or to stop the picketing once it had begun It
seems clear to me that the Respondent assumed, as did
the Union , that Associated Erectors was paying below
area standards wages or it would have inquired as to the
level of wages in order to avoid the picketing at its
outset or to stop it once it had begun I credit Pipke's
representation that his information with respect to the
wage level being paid by Associated Erectors was de
rived from a conversation with another business agent
for the Union No serious question is raised in this record
regarding this representation Because General Electric
was in a direct contractual relationship with the involved
subcontractor it appears to have been a fairly easy task
to make the determination as to the level of wages being
paid by the subcontractor On the other hand such infor
mation would not be readily available to the Local
I also disagree with Respondents position that state
ments attributed to Pipke and Roberts constitute threats
and/or proof that the primary objective of the picketing
was to cause Respondent to stop utilizing the subcontrac
tor I credit Roberts' testimony that he told Henson that
one of the ways to resolve the situation was to allow the
General Electric steamfitters to perform the work being
done by the subcontractor Pipke testified that he told
Henson of his understanding that there was a nonunion
contractor at the General Electric facility and that if the
contractor remained working there , the Local would be
picketing and advertising that it paid substandard wages
I do not believe that the statements by Roberts and
Pipke constituted threats or that the resulting picketing
had as its objective forcing General Electric to cease
doing business with Associated Erectors
Respondent points out that there is available to the
Union a grievance procedure for objecting to the use by
General Electric of subcontractors and that the Union
had availed itself of this procedure in the past over this
issue Use of the grievance procedure indicates that the
Union knew of its rights and its responsibilities and had
acted properly in the past Moreover the signs utilized
by the Union in the picketing were, in my opinion, clear
ly informational and directed totally toward Associated
Erectors not General Electric It is also the fact that the
Union when informed of the proper gate to be utilized
for picketing immediately moved its pickets to that gate
and did not at any time interfere with the passage of the
Company's employees into or out of the involved plant
All these actions support Pipke s and Roberts versions
of their conversations with Henson and belie the asser
tions of threats I credit Roberts' and Pipke 's versions of
their conversations with Henson
I also find it significant that at the time the picketing
took place, the Respondent did not advise the Union that
it objected to the activity as an unlawful secondary boy
cott nor did it seek to enjoin the picketing activity on
that ground For that matter it did not advise the Union
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that such picketing was in violation of the collective-bar-
gaining agreement . Based on the evidence introduced at
the hearing, it would appear that General Electric con-
sidered the picketing to be lawful at all times material to
the events in dispute in this proceding and only alleged
the unlawful nature of picketing for purposes of its posi-
tion at the hearing. I
For the reasons set forth above, I believe that the pri-
mary objective of the picketing was to further the objec-
tion, based on the Union's good-faith belief, that the in-
volved subcontractor was paying substandard wages and
had no other, unlawful, purpose. Being lawful, the con-
duct of the unit members of Local 601 in not crossing
the picket line until it was removed to the posted gate
was protected activity.
2. Did the parties' collective-bargaining agreement
waive the unit members' right not to cross the otherwise
lawful picket line?
Respondent also argues that the Union waived its
members' right to maintain or honor any picket line at
Respondent's facility. Respondent argues the right to
cross an otherwise lawful picket line may be waived by a
collective-bargaining agreement, if the waiver is "clear
and unmistakable." NLRB v. Southern California Edison
Co., 646 F.2d 1352, 1364 (9th Cir. 1981), and other cases.
Respondent urges that the picketing activity here in-
volved was expressly proscribed by the no-strike clause
contained in the collective-bargaining agreement. Refer-
ence is here made to an earlier portion of this decision
where the entire contractual no-strike provision is set
out. However, for purposes of clarity, the portion of the
contract language on which Respondent relies is repeat-
ed:
Except for the foregoing, the Union agrees that
there will be no strike, stoppage of work, sit down,
slow down, picketing, employee demonstration, or
other suspension or cessations of work of any kind
during the term of this agreement for any reason
whatsoever. . . . The Union shall give the Compa-
ny 10 days notice in writing prior to any strike per-
mitted under this Article and shall therein identify
the grievance over which such action is to be taken.
(Art. XI, strikes, lockouts.) The intent of the parties
relating to the scope of the no-strike clause is further de-
fined in article X l, section 3:
In the event picket lines are established by employ-
ees of the Company represented by collective bar-
gaining organizations other than the Union, the
members of the Union will each make a bona fide
attempt to report for work when scheduled to
work, but if they are unable to so report due to vio-
lence or threats of violence, such failure shall not,
for the purposes of this agreement be regarded as a
strike, stoppage or slowdown of work, nor subject
such employees to discharge or other disciplinary
act.
Respondent argues that the no-strike clause is a clear
and unmistakable waiver of the steamfitter employee's
right under Section 7 to honor its own Union's picket
line. The clause provides that "except for the foregoing"
all strikes, picketing, or work cessations of any kind are
prohibited under article XI, section 1. The "foregoing"
referred to in that section is limited to strikes "arising out
of a grievance after the grievance procedures have been
fully complied with." I do not agree with the position of
Respondent.
The contract language in article XI, section 1 does not
contain any language concerning sympathy strikes. The
no-strike/no-lockout promise relates to matters cogniza-
ble under the grievance procedure. The Union's dispute,
that is, substandard wages paid by Associated Erectors,
is not resolvable under the grievance procedure.
In section 3, the parties clearly limited the right of
members of the Union to honor the picket lines of Re-
spondent's other union employees. The contract pro-
vides, as noted above, "the members of the Union will
each make a bona fide attempt to report for work when
scheduled to work...." Such language could have been
extended to any picketing by anyone at Respondent's fa-
cility . I agree with the General Counsel that the omis-
sion does not appear to be accidental and the Respond-
ent is aware of the possibility of informational picketing
occurring against subcontractors performing services at
one of its facilities.
The parties' bargaining history provides no informa-
tion about the parties' stance on this issue. However, Re-
spondent's principal bargainer, Murley Henson, admitted
to Holak that the no-strike clause was inapplicable to the
instant case. Holak testified: " I was assuming that we
could not be picketed by 601 when they do not have a
direct dispute with us . . . and Murley said no, that was
not the case. That they had the right to do that; and so
that is why he was identifying the contractor's gates."
The following questioning by the General Counsel fur-
ther clarified Respondent 's understanding as to the scope
of the no-strike clause.
A. (Holak) It was my opinion that we could not
be picketed against when the dispute was not direct-
ly with us. That was my opinion.
Q. Okay.
A. And Murley informed me at that point in time
that no, that picket lines could be established by the
local.
Q. At your facility. Do I have that right? At the
plant.
A. Yes.
Q. And that wasn't going to be a breach of that
no-strike clause; is that correct?
A. Yes.
I Respondent also argues that Pipke told Frank Akre that (1) it was
not in Akre's best interest to report to work, and (2) "how can we get
management's attention if people reported to work." For the reasons set
forth above and additional reasons that will be set forth in a later portion
of this decision, the second part attributed to Pipke is not credited as fact.
It was Pipke's position that the Union picketing over
substandard wages is not covered by the collective-bar-
gaining agreement. Further , the Respondent first learned
of possible picketing on December 26. At no time before
GENERAL ELECTRIC CO
Akre was discharged did anyone from the Respondent
assert the picketing or sympathetic action by the employ
ees constituted a breach of the no strike clause The
General Counsel notes that the Respondent's officials in
cluding Henson had numerous contacts with the Union
and its members and not once did Respondent assert that
the Union s picketing breached the no strike clause He
urges that this silence, like Holak s testimony, is an ad
mission that the Respondent believed that the no strike
clause had no application to the Union's and employees
(including Akre's) actions In conclusion, I do not find
that the contract precludes picketing of the type in
volved in this proceeding nor under the circumstances
presented in the case prohibit the 3 hour symphathy
strike By carefully eliminating the right of the unit
members to honor the picket lines of other unions, the
contract implies that the parties contemplated that the
unit members could honor their own picket line if that
picket line were allowed by the contract involved The
contract itself would, in my opinion, allow picketing to
be established against the subcontractor as here, and that
the picket line could be honored as the Union's dispute
with the subcontractor is not arbitrable under the con
tract
There remains the question, however, of whether the
Union was required to give 10 days written notice of its
intention to strike as called for by the parties contract I
do not believe that this contract provision should come
into play in this proceeding There is no showing that
the Union ever intended to engage in a strike As I have
heretofore found, the purpose of the picketing was
purely informational and was directed against Associated
Erectors Only because of a failure of communication be
tween Respondent and the Union, that is, failure to corn
municate during telephone conversations and a failure of
a mailgram to arrive in a timely fashion, were proper
gates for the picketing not established prior to the time
picketing began Had the gates been marked early on the
morning of the picketing or had the mailgram been de
livered timely there appears to be no question but that
the Union would have confined its picketing to the des
ignated gate In that circumstance, there would have
been no strike Having knowledge that picketing was to
begin in the morning of December 29 and having failed
to place signs at the gates directing the pickets to the
gates reserved for Associated Erectors, I find that Re
spondent has at least contributed significantly to the situ
ation that gave rise to the sympathy strike By doing so,
I find that it has waived its right to complain at a later
date that the picketing and the strike were prohibited
Again I find it significant that it was not until on or after
Akre was actually discharged, that the 3 hour refusal to
cross the picket line by the unit members was described
as either unlawful as being a secondary boycott or un
lawful as being in violation of the parties no strike
clause in their contract
Under all the circumstances presented in this case I
find that the picketing was lawfully established and was
not in violation of the parties' no strike agreement I fur
ther find that by its actions in not having established at
the outset of the lawful picketing a reserve gate and by
not thereafter until the discharge of Akre assert that re
849
fusing to cross the picket line was in violation of the
Company s no strike clause the Company has indicated
its true belief that it was not an unlawful action and, in
any event, has waived or condoned this action I there
fore find that the refusal to cross the picket line under
the circumstances given was activity protected under
Section 7 of the Act
Although I have concluded that the work stoppage
was not unlawful under the Act and was not precluded
by the parties collective bargaining agreement, in the
event that it is subsequently held otherwise, the Board
has also held an employer can by its action condone an
employees participation in an unprotected work stop
page Accordingly a discharge for the earlier misconduct
violates the Act The Board recently explained Such
condonation rendered the strike, in effect, protected ac
tivity regardless of whether it was initially protected or
unprotected Emarco Inc, 284 NLRB 832 833 (1987)
D Akre and the Events Surrounding his Discharge
Akre arrived at Respondent's facility about 6 a in on
December 29, and drove to all three gates in an attempt
to avoid the picketing According to Akre he wanted to
avoid a conflict with anyone After discovering all the
entrances were picketed, Akre spoke with Pipke at one
of the gates Akre asked Pipke what was going on Pipke
explained that the Union was engaged in informational
picketing advertising Associated Erectors substandard
wages Akre asked Pipke what to do
Pipke explained that he could not tell Akre what to
do 2 Akre then decided to call his supervisor for instruc
Lions
According to Akre's testimony, he first called about
6 15 a m At that time there was no responsible official
present Akre called again before the start of his shift He
spoke with his supervisor, Lee Herriges Akre testified
he told Hernges he was at the plant that there were
pickets and that he did not know what to do Hernges
said that he did not know what to tell Akre, and he was
waiting for Henson who was expected about 7 45 am
Herriges told Akre he understood Akre s position and
that Akre was between a rock and a hard place The
conversation concluded with Herriges telling Akre he
should call back at 7 45 a in
Hernges notes of this conversation made near the
time the events occurred indicate that Akre advised him
2 Tom Holak the Company s manager of industrial engineering and
maintenance testified that in a January 6 1987 meeting with Akre Akre
stated that Pipke told him ( 1) it was not in his best interest to report to
work and (2) how can we get management s attention if people report
to work? Holak s memory of the statement is based on a short note he
took of Akre s responses at the meeting Akre did not admit making these
statements Pipke did not testify as to having made these statements Su
pervisor Lee Herriges notes of the meeting do not make mention of the
alleged statements about getting managements attention Under these cir
cumstances I do find that Akre told Holak and Herriges the first alleged
Pipke statement but not the second one In any event as will be dis
cussed further Akre s meeting with Pipke added to his personal confu
sion and fear about what to do In this decision except where the testi
mony of Holak or Hernges is supported by notes to the extent it con
flicts with the testimony of Akre I credit Akre s version I found Akre to
be straightforward and credible whereas Hernges and Holak were often
evasive
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the first telephone call at 6:30 a.m. that he was outside
the plant gates and had been advised by Pipke not to
cross the picket line because it would not be in his best
interest. The notes indicate that Akre asked Herriges,
"What do I do?" Herriges' notes indicate he said that he
told him "he can't tell him what to do, you are in a very
precarious awkward position." Akre again asked, "What
should I do?" Herriges' notes indicate that he had re-
plied, "I will have to talk to Murley Henson when he
comes in. . . . call about 7:30 to 7:45 a.m." Akre an-
swered, "OK."
Other testimony given by Akre shows that he was
genuinely worried about what might happen to him from
the standpoint of union reprisal if he crossed the picket
line ahead of the other employees. Given his attitude at
the time regarding the Union, I find it conceivable that
he may well have told Herriges what he perceived to be
Pipke's attitude, i.e., it would not be in Akre's best inter-
est to cross the picket line. Whether Pipke actually
stated those words is not certain as Pipke denies the as-
sertion. However, even giving credit to the fact that
Akre told Herriges this, I find. it significant that the
Company did not give Akre any more instructions other
than to acknowlege that he was in a precarious and awk-
ward position.
Following Herriges' directions, Akre called again at
7:45 a.m. and asked to speak to Herriges. Herriges was
not available at that point and he spoke with Pat Zie-
linski, another supervisor. Zielinski told him that Her-
riges was in a meeting and Akre should call back. Akre
called back at 8:20 a.m. and again spoke with Zielinski
and asked him what to do. Zielinski told Akre that he
was scheduled to work, and that he was not able to get
Herriges and Akre should call back. Zielinski's notes of
his remembrance of these conversations were made after
the event, but far in advance of his testimony in this pro-
ceeding. They recite: "Frank Akre did not report to
work at his scheduled time of 6:30 a.m. He called at ap-
proximately 7:30 a.m. and asked for Lee Herriges. I told
him that he was in the office. He then asked if I heard
anything from Lee as to what could happen to him. I
told him no. He asked what he should do in this situa-
tion. I told him, 'I don't know what to tell you. You're
scheduled to work.' I then told him that he should call
back in half an hour and try to get a hold of Lee. He did
call back a half hour later and I again spoke to him. I
told him that Lee was talking to Murley Henson. I told
him I did not know how the Company would treat this
situtation because I had only been here a year. He said
that he would call back in half an hour. Around 8:30
a.m., Frank called back and I told him Murley Henson
and Tom Holak were going to the gate to talk with the
business agent. Frank said that he would talk to them at
the gate."
In response to Zielinski's direction, Akre went to the
picket line but missed Henson and Holak who had al-
ready left. Akre spoke with Pipke who told Akre it was
alright to go into work. Akre went into the plant about 9
a.m. He was the first steamfitter to do so. Akre located
Herriges and told him that "I'm here." Herriges said that
they should go see Henson. On the way to Henson's
office, Herriges told Akre "that he had been in a similar
position with United Airlines where he was a probation-
ary employee and they had gone on strike or something
to that effect and he was caught between the Union and
the Company and he understood and he didn't know
what to do then and he doesn't know what for me to do
now. And that was it." Herriges did not deny this con-
versation took place.
Akre and Herriges met with Henson. Henson told
Akre there was work available and there was a possibili-
ty of disciplinary action if Akre did not report to work.
Akre explained that he did not want to jeopardize his job
and that he would punch in immediately. He also ex-
plained that he had unsuccessfully tried to get some
guidance early in the morning. Akre, at about 9:25 a.m.,
punched in and went to work.
Prior to actually starting work Akre encountered Zie-
linski and Holak at the coffee machine and explained to
them about the events of the morning. Akre explained
that he had called in four times trying to get answers as
to what to do, and that he had been concerned about
possible retaliation by the Union, including blackballing.
Akre continued that he did not want the Respondent to
fire him. Akre testified Holak said, "that I handled it as
best I could and there was no other way to handle it.
What else was I going to do?" At that point Akre went
to work.
The other steamfatters scheduled to work that day re-
ported in about 10:30 a.m., 1 hour after Akre reported to
work.
After Akre and the other steamfitters reported to work
they were questioned by Herriges concerning their ab-
sence from work and whether they would work the re-
mainder of the week. Akre advised the Respondent of
his unwillingness to cross the picket line. Akre worked
the remainder of the week and the following week until
his discharge. During this time nothing was said to Akre
about possible discipline or that he had done anything
improper.
Although notes prepared by Holak indicate that at a
management meeting before Akre reported to work it
was decided that Akre was subject to discipline for not
crossing the picket line, Herriges testified that on De-
cember 29, he did not recall that he knew that Akre was
either subject to discipline or would be disciplined. Fur-
thermore, even though Holak's notes would indicate that
Respondent had concluded that Akre was subject to dis-
cipline, he was permitted to work and not advised that
discipline was being contemplated.
On January 5, Respondent's officials, including
Henson , Zielinski, Herriges, and Holak met to discuss the
events of December 29. The participants questioned
Akre's actions and decided he should be interviewed so
his actions of December 29 could be scrutinized. Ac-
cording to Holak, Respondent was concerned about con-
ditions on the picket line and what prompted Akre not
to cross the picket line, but later changed his position.
Holak further explained:
We wanted to make sure he [Akre] understood,
number one, what his position was and at what time
he understood what his position was and what was
GENERAL ELECTRIC CO 851
his involvement , so that we could define whether
he was participating in that activity or not
A series of questions was prepared by Holak and Akre
was called in on January 6 to answer these questions
Hernges and Holak questioned Akre
Akre stated that he told Holak and Hernges in this
meeting that he was not physically threatened by anyone
on that day and the reason he finally did report to work
on December 29 was because Pipke told Akre that it was
all right for him to cross the picket line Akre also stated
that he was aware on December 29 that he was a proba
tionary employee , that he was scheduled for work and
that he could be disciplined for not reporting to work
Following Akre s interview Respondent s officials met
again According to Holak
I informed them that I felt and understood and feel
strongly that Frank knew the position that he was
in and was following the instructions of Mr Pipke
at that time and thereby participating in the interfer
ence of work , and that some form of discipline
would be necessary , and any form of discipline
under the probationary period would result in his
termination
Respondent 's bupervisors concluded Akre should be
terminated the following day Holak prepared a state
ment to be read to Akre on January 7
On brief, Respondent states that at a subsequent meet
ing at 1 p in on January 6, it was determined that Akre
had violated rule 27 of the code of conduct Rule 27 pro
hibits an employee from instigating , encouraging or par
ticipating in any illegal interference with work
On January 7, Akre was called into Marianne Bondar s
office Bondar was in Henson s department Present were
Bondar , Herriges , Roberts, and Akre Bondar began the
meeting and said that Hernges was going to read from
the discharge statement Akre questioned Bondar s coin
ment and Hernges apparently read the statement that
emphasized Akre was discharged because he violated
plant rule 27 Akre protested the rationale offered by
Hernges and he tried to explain what he had done on
December 29 According to Akre Bondar interjected
and said that Akre had also been tardy (Respondent's
answer in this proceeding , G C Exh 1(e) at par 5 as
serts , "another reason it disciplined Akre was because of
his unexcused absence from work ) Roberts explained
that Akre had an excuse and he had been talking to his
supervisor This alleged reason for discharge was aban
doned by Respondent During the meeting Akre ques
tioned whether his work was a problem and Hernges an-
sweied Akre's work had been excellent Hernges reiter
ated the discharge was because of Akre's rule violation
Akre unsuccessfully argued for a reduced penalty
Akre admitted that he was upset and he commented
that Respondent had ruined his future Akre testified he
recognized the futility of further discussion and the meet
ing ended
Hernges escorted Akre as he collected his tools Her
nges repeated that Akre had been a good steamfitter and
that if he had any say he would keep Akre After col
lecting his tools and changing clothes Akre left
Following Akre s discharge he requested a written dis
charge letter from Bondar She said that she would have
to speak with Henson before she could provide such a
letter After several calls Respondent provided a letter
dated January 9 that letter provides no details as to the
basis for Respondents action
On January 8 Respondent gave 5 day suspensions to
the other steamfitter employees who refused to cross the
Union s picket line on December 29 Respondent in those
suspensions stated that the employees violated plant rule
27 and article XI of the collective bargaining agreement
I have heretofore concluded in this decision that the
picket line set up by the Union was lawful , protected ac
tivity and , hence , Akre s failure to cross the picket line
was protected and that a discharge for such failure to
cross the picket line would be unlawful
I also find that if it is ultimately determined that the
picket line was not lawful and thus, failure to cross the
picket line was not protected activity , that Respondent
by its actions has condoned not only the picketing, but
Akre s refusal to cross the picket line Thus, Respond
ent s subsequent termination of Akre for activity that it
had condoned is unlawful
In my opinion , Respondent condoned Akre's participa
tion in the strike Akre called Respondent before work
on December 29 He was specifically told by Herriges
that he should call back at 7 45 am Akre subsequently
called Respondent and spoke with Zielinski and each
time he was told to call back Akre was never clearly
told to report to work or that he was jeopardizing his
job by failing to report When Henson told Akre his job
was at risk , he immediately agreed to work Akre testi
feed that Holak said that 'I had handled it as best I could
and there was no other way to handle it ' As noted ear
her, Akre was permitted to return to work without any
mention of possible discipline
The Board has concluded in similar circumstances
condonation occurred See Super Yalu Stores , 228 NLRB
1254 (1977) In Super Yalu employee Green participated
in an unprotected strike Following his participation in
the strike Green was told to come into work within 30
minutes and he did so Green was also told he had pro
tected his job by reporting, nonetheless he was subse
quently discharged for his participation in an illegal
strike
The administrative law judge concluded that
I find and conclude that Respondent Employer by
giving employee Green 30 minutes to report for
work on Monday, March I and by telling Green
when he attempted to report in that he had pro
tected his job by reporting within the half hour,"
condoned and forgave Green 's participation in the
unprotected work stoppage and manifested an un
equivocal intention to permit him to resume his em
ployment relation As the Second Circuit stated in
Confectionery & Tobacco Drivers and Warehousemen s
Union Local 805 IBT M Eskin & Son v N L R B,
312 F 2d 108, 113 (C A 2, 1963), "condonation re
quires a demonstrated willingness to forgive the im
proper aspects of concerted activity to wipe the
slate clean " [228 NLRB 1259-1260 ]
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the instant case, like Super Yalu, supra, Akre was
given specific directions by management, with which he
complied He was told to call in and go meet manage
ment officials He did those things He was finally told
that if he did not go to work his job was in jeopardy He
went to work Finally, management through Holak, ac
knowledged that Akre had done the best he could do in
protecting his job I conclude that based on the Board
precedent cited and the actions taken by Akre in re
sponse to management s directives and management's
later statements, Respondent has condoned Akre's refusal
to cross the picket line
My findings regarding condonation by the Respondent
are also supported by the reasons given by Respondent
for the discipline of Akre Respondent ultimately states
that it was disciplining Akre for violation of rule 27 nec
essanly asserting that Akre instigated, encouraged, or
participated in an illegal interference with work It is
obvious from the evidence set out above that Akre did
not encourage or instigate an interference with work I
also have found that the work stoppage was not unlaw
ful Be that as it may, did Akre participate in the work
stoppage, illegal or not? I do not find it to be rational to
hold that he did participate in the illegal interference
with work True, Akre did not cross the picket line On
the other hand he repeatedly called Respondent seeking
advice and direction on what to do when faced with the
picket line Clearly he was not part of the picket line and
equally clearly he was never given any definite direction
to report to work As far as I can determine from the
record, Akre s seeking direction from Respondent Inds
cates that he would have followed such direction had it
been given The fact that he did cross the picket line
over an hour ahead of the other steamfitters to see
Henson, in response to the first clear direction he had
been given by any supervisors indicates that he was not
participating in the picketing activity Further on being
told to report to work by Henson, he immediately re
ported to work Finally, there was no indication given to
him that he would be disciplined by the Respondent
except if he did not report to work after being told to do
so by Henson
Under these circumstances, even if it is ultimately
found as I have not that Akre s failure to cross the
picket line was unprotected, I think it is clear that the
reason for Akre s discharge does not lie with the failure
to cross the picket line I agree with the General Counsel
and the Charging Party that the real reason for his disci
pline and discharge was his answers given to questions
asked of him on December 29 in an interview with his
supervisors and again in an interview on January 6, all
relating to his willingness in the future to cross a picket
line In each of these interviews, Akre generally indicat
ed his unwillingness to cross picket lines Indeed, on De
cember 29, immediately after the event Akre was not
even asked why he did cross the picket line that morn
ing The questions only related to future picket lines
Also in the testimony of Respondents witnesses and
particularly Holak there appears to be a great deal of
concern that Akre paid attention to Union Business
Agent Pipke On brief Respondent makes the point that
Akre was advised that it was not in his best interest to
cross the picket line by the Union It appears to me and I
agree with the General Counsel and the Charging Party
that the true reason for the discipline of Akre was not
his failure to cross the picket line on December 29 as de
tailed above, but rather his asserted willingness to honor
future picket lines and follow the Union's instructions in
the future Discipline for such reasons has been found to
be unlawful See G & H Products, 261 NLRB 298
(1982) I conclude that the discharge of Akre was effec
tuated to discourage union activity generally, not for his
failure to cross the picket line on December 29, and as
such it violates Section 8(a)(1) and (3) of the Act
This judge also agrees with the General Counsels po
sition that Akre was accorded disparate treatment to em
phasize the Respondents unhappiness with the Union s
activity and to discourage future union adherents The
other steamfitter employees received 5 day suspensions
for their refusal to cross the picket line Clearly the other
steamfitters did refuse to cross the picket line Akre
sought advice as to what to do regarding the picket line
and received virtually no direction whatsoever from the
Respondent Under the circumstances it is difficult to un
derstand why Akre was disciplined at all This is espe
cially true considering that fact that he was not told that
he would be disciplined when Henson directed him to
return to work and he did so In all, I conclude that the
discharge of Akre was to present an object lesson to the
unit members and other union employees of the facility
and to other probationary and future employees of the
Company as to the Company s willingness to strike
harshly against union activity of which it does not ap
prove
Ultimate Conclusions
Based on all the evidence of record and for the rea
sons set forth above I find that Respondent has violated
Section 8(a)(1) and (3) of the Act I find and conclude
that the picketing engaged in on December 29 by Local
601 was lawful, was not a secondary boycott and was
not precluded by the collective bargaining agreement be
tween the Union and Respondent I find and conclude
that employee Frank Akre was engaged in protected ac
tivity and that his discharge because of his conduct was
unlawful I further find that the evidence in the case
does not establish any waiver of employee rights to
engage in a sympathy strike such as occurred in this pro
ceeding I further conclude that even assuming the un
derlying strike was not protected, Respondent condoned
Akre s actions and his later discharge violated the Act
Ultimately, I conclude that Respondent's discriminatory
conduct was designed to discourage both Akre and
other s union activity and thus violated the Act
CONCLUSIONS OF LAW
1 Respondent is now and at all times material to this
decision has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
GENERAL ELECTRIC CO
3 By unlawfully discharging Frank Akre on January
7, 1987, Respondent is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) and (3) of the Act
REMEDY
Having found that Respondent has engaged in unfair
labor practices, I recommend that it cease and desist
therefrom and to take certain affirmative action neces
sary to effectuate the policies of the Act Having found
that Respondent unlawfully discharged Frank Akre on
January 7, 1987, and has since failed and refused to rein
state him in violation of Section 8(a)(1) and (3) of the
Act, I recommend that Respondent remedy such unlaw
ful conduct In accordance with Board policy, I recom
mend that Respondent be ordered to offer Frank Akre
immediate reinstatement to his former position, discharg
ing, if necessary, any employee hired to replace him, or,
if that job no longer exists to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges and make him whole for any loss of
earnings he may have suffered as a result of discnmina
tion against him to be computed in the manner described
in F W Woolworth Co, 90 NLRB 289 (1950), with in
terest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 1 further recommend that Respond
ent be required to remove from its files any reference to
the discharge of Frank Akre, notify him in writing that
this had been done, and evidence of his unlawful dis
charge shall not be used as a basis for future personnel
actions against him
On the basis of these findings of fact and conclusions
of law and on the entire record, I issue the following
recommended3
ORDER
The Respondent, General Electric Company (Hot
point), Milwaukee, Wisconsin, its officers agents, succes
sors, and assigns, shall
1 Cease and desist from
(a) Discouraging union or protected concerted activi
ties of its employees or their membership in Local No
601 United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, or any other labor organization, by
unlawfully discriminatorily discharging its employees or
discriminating against them in any matter with respect to
their hire, tenure of employment, or any term or condi
tion of employment in violation of Section 8(a)(1) and (3)
of the Act
(b) In any like or related matter interfering with re
straining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Frank Akre immediate and full reinstatement
to his former position or, if such position no longer
3If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
853
exists, to a substantially equivalent position, without prej
udice to his seniority or other rights and privileges previ
ously enjoyed, discharging, if necessary, any employee
hired to replace him, and to make him whole for any
loss of pay he may have suffered by reason of Respond
ent s unlawful discharge of him in accordance with the
recommendations set forth in the remedy section of this
decision
(b) Remove from personnel files any reference to the
discharge of Frank Akre and notify him in writing that
this has been done and that evidence of this unlawful dis
charge will not be used as a basis for future personnel
actions against him
(c) Preserve and, on request make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, time cards,
personnel records, and reports, and all other records nec
essary to analyze the amount of back pay due under this
Order 4
(d) Post at Milwaukee, Wisconsin place of business
copies of the attached notice marked Appendix '5
Copies of the notice, on forms provided by the Regional
Director for Region 30, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately 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 Respond
ent 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 Respondent
has taken to comply
* The General Counsel has requested a visitatonal clause be inserted in
the Order Under the circumstances of this case I do not consider it nec
essary
b 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discourage union or protected activities
by our employees or their membership in Local No. 601,
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada or any other labor organization by un-
lawfully discriminatorily discharging our employees or
discriminating against them in any manner regarding
their hire or tenure of employment , or any term or con-
dition of employment in violation of the National Labor
Relations Act.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Frank Akre who we unlawfully dis-
charged on January 7 , 1987, immediate and full reinstate-
ment to his former position , or, if that position no longer
exists, to a substantially equivalent position , discharging,
if necessary , any employee hired to replace him; WE
WILL restore his seniority and other rights or privileges
previously enjoyed ; and WE WILL make him whole for
any loss of back pay to which he may be entitled, to-
gether with interest.
WE WILL remove from our files any reference to the
unlawful discharge of Frank Akre and notify him in
writing that this has been done, and evidence of this un-
lawful action will not be used as a basis for future disci-
pline against him.
GENERAL ELECTRIC CO. (HOTPOINT)