Koenig, Vic, Chevrolet

National Labor Relations Board - Board Decisions

Aug 23, 1982

263 N.L.R.B. 646 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vic Koenig Chevrolet and Tracy Ruble. Case 14-
CA- 15276
August 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On May 11, 1982, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has excepted to the Administrative Law
Judge's credibility determination between Tracy Ruble and Victor
Koenig and contends that it was not based on testimonial demeanor. It is
well settled that the Board will not displace an administrative law judge's
credibility resolutions which are based on his observation of demeanor
unless a clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). Likewise, the Board has held
consistently that when "credibility resolutions are not based primarily
upon demeanor . . . the Board itself may proceed to an independent
evaluation of credibility." J. N. Ceazan Company, 246 NLRB 637, 638 at
fn. 6 and cases cited therein (1979). When the demeanor factor is dimin-
ished, the choice between conflicting testimony rests not only on demea-
nor, but also on the weight of the evidence, established or admitted facts,
inherent probabilities, and reasonable inferences drawn from the record
as a whole. El Rancho Market, 235 NLRB 468, 470 (1978), enfd. 603 F.2d
223 (9th Cir. 1979). We have examined the record carefully and find no
basis under either standard for reversing the Administrative Law Judge's
credibility resolution. See Garrett Railroad Car d Equipment, Inc., 244
NLRB 842, fn. 1 (1979).
We also note that the Administrative Law Judge misspelled lot boy
Doug Knolten's name as "Knolton," rather than "Knolten." Additionally,
the Administrative Law Judge erred inadvertently in stating, without
qualification, that lot boys do not change batteries. Although Ruble testi-
fied initially that lot boys did not change batteries, he amended his state-
ment by testifying subsequently that he had changed a battery once in his
year of employment.
263 NLRB No. 88
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge:
This case involves an employee who was fired during a
strike when he told his employer he would only wash
cars, which was less than he usually did. I find the dis-
charge was lawful.
These proceedings began with unfair labor practice
charges filed August 18, 1981,1 by Tracy Ruble, an indi-
vidual, against Vic Koenig Chevrolet (Koenig or Re-
spondent). A Board complaint based on these charges
issued September 10 alleging that Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) of
the National Labor Relations Act, as amended (the Act),
by discharging Ruble on August 11 and thereafter not
reinstating him. Respondent answered, denying this alle-
gation, but admitting the jurisdictional allegations in the
complaint. The case was heard before me in St. Louis,
Missouri, on January 13, 1982.
Based on the entire record, including my observation
of the witnesses and consideration of the briefs of the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent, an Illinois corporation, is engaged at Car-
bondale, Illinois, as an automotive dealer in the retail
sale, service, and distribution of new and used motor ve-
hicles, parts, and related products. During the calendar
year ending July 31, a period representative of its oper-
ations, Respondent derived gross revenues exceeding
$500,000 from this business and also during the same
period received at Carbondale directly from points out-
side Illinois goods and materials valued over $50,000. Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
At the time of the events involved here, Respondent's
management consisted of Victor Koenig, its president
and owner, Alan Rausenberger, general sales manager,
Dan (Charles Daniel) Binkley, new-car sales manager, an
unidentified used vehicle sales manager, an unidentified
office manager, Erve Legendre and Don Schlinker, man-
ager and assistant manager, respectively, of the service
department, and an unidentified manager of the parts de-
partment. The employees included from 3 to 8 salesmen
who worked under the supervision of the sales managers,
2 lot boys, Tracy Ruble and Douglas Knolton, who
were supervised directly by Binkley and indirectly by
Rausenberger in the sales department, 3 office employ-
ees, 11 mechanics and bodymen who worked in the serv-
ice department under Legendre and Schlinker, and a
parts department employee.
I All dates herein are in 1981 unless otherwise indicated.
646
VIC KOENIG CHEVROLET
The dealership's physical facilities include a showroom
for new vehicles with offices for the salesmen as well as
for the office staff. A covered service drive located adja-
cent to the sales area connects to the garage which
houses the service and parts departments. Nearby park-
ing lots are used to park new and used vehicles for sale
as well as those of customers and of staff and employees.
The mechanics and parts employees spend most of
their working time in the garage area. Salesmen, of
course, work chiefly in and around the sales office, the
showroom floor, and sometimes in the parking lots. The
lot boys, who are normally under the supervision of the
sales department, generally work in the service drive
area but also work in all other areas of the operation as
particular jobs require.
An important factual issue is the duties of the lot boys
compared with those of the mechanics. In normal oper-
ations, the mechanics service and repair automobiles and
trucks, including all types of engines, drive trains, sus-
pensions, and chassis. Except for minor items, lot boys
have not performed this type of work. In general terms
the work of lot boys may be described as miscellaneous,
light, unskilled work. As the name lot boy implies, the
job involves moving vehicles in and around the service
drive, parking lots, garage, and showroom areas. Lot
boys also clean vehicle interiors and put them through
the automatic car wash. They often change license
plates, using such light tools as are necessary. They
check the fluids, including those for coolant, brakes,
power steering, window washer, transmission and lubri-
cation, and if necessary replenish them. On occasion they
recharge batteries but do not change batteries.2 If a vehi-
cle is out of gas, they add fuel and even prime the carbu-
retor to get it started, part of their duties being to start
all inventory cars in the parking lot each morning. If a
lighting fixture needs a new bulb, they change that.
When necessary they change a tire as, for example, when
a tire is flat, but ordinarily do not rotate tires. On occa-
sion they change trailer hitches. In performing these
chores they use small tools such as screw drivers, pliers,
and small wrenches as well as lug wrenches and impact-
ed tools in changing tires, and jacks in raising vehicles so
tires can be changed. They do not do any substantial
amount of mechanical work although some of their
chores such as changing tires or charging batteries or re-
placing lightbulbs are also performed by mechanics on
cars they service.
Respondent offered the testimony of Marc Lauzon, a
lot boy who worked for Respondent some 4 years previ-
ously, to the effect that both he and mechanics per-
formed minor mechanical jobs, including the changing of
step bumpers or. pickup trucks, the changing of batteries,
the filling of batteries with acid, the adjusting of carbure-
tors, the writing of some service tickets, and the installa-
tion on cars and trucks of electrical hookups (called pig-
tails) for trailers. Even though Victor Koenig testified
that lot boy duties had not changed over the years
except for that resulting from the installation of the auto-
matic car wash machine, I find that the testimony of
a In years past lot boys apparently did change batteries, but that was
not a lot boy duty at the time of the escnt, involved here.
Lauzon does not relate to a time pertinent to the issues
in this case. The credible evidence of the two lot boys
involved in the present matter, Ruble and Knolton, indi-
cates they did not perform the duties above noted which
Lauzon described and I find that they did not.
In addition to their duties involving vehicles, lot boys
do considerable cleanup around the premises, including
cleaning toilet facilities and sweeping floors in the sales
area. Normally, service department employees sweep the
floor in the service department areas. Although lot boys
on occasion are called upon to be in the garage where
mechanics work, they spend a minor amount of time
there. They spend the major portion of their time in and
around the service drive area, the showroom, and the
parking lots. Lot boys are also available to run errands
when necessary. Their wage rate is considerably less
than that of mechanics. 3
In contrast to the lot boys, mechanics routinely per-
form major mechanical jobs such as engine overhauls as
well as lesser ones such as engine tuneups and tire instal-
lations. Most of their work is clearly distinguishable from
work done by lot boys although there is some overlap-
ping in the area of minor chores which mechanics rou-
tinely include when they repair or service a vehicle. Me-
chanics work in the garage. Lot boys, on the other hand,
for the most part do not and the servicing chores on cars
which they do perform are normally unrelated to more
extensive service or repair jobs. In this connection it is
noteworthy that lot boys work within the sales depart-
ment rather than the service department which includes
mechanics.
B. The Strike
For purposes of collective bargaining, Respondent's
service department employees, including mechanics,
have for the past 15 years been represented by Local
Lodge 1242 of the International Association of Machin-
ists. Respondent bargains with that Union through Car-
bondale Automobile Association, an association of auto-
motive dealers. On August 11, 1981, the most recent col-
lective-bargaining agreement between the Union and the
Association expired and the employees represented by
the Union, including Respondent's mechanics, went on
strike in support of the Union's bargaining positions. 4 On
the morning of August I I striking mechanics established
a picket line in front of Respondent's premises.
When the strike began, Koenig decided to keep his op-
eration open. He met with his supervisors in the morning
to discuss how this would be accomplished. He decided
that the service department would remain open with Le-
gendre and Schlinker performing the work which me-
chanics normally performed. He also planned to assign a
parts department employee to mechanics' work if that
employee were willing. This was obviously a very small
staff to carry the workload normally performed by the
11 mechanics and I infer that Koenig was interested in
3 At the time of the events involved herein, lot boys received $3 45 per
hour. Although the record does not reflect the wage rate of mechanics,
credible testimony establishes that lot boys received considerably less
than mechanics.
4 The strike continued for 2 months until a settlement was reached.
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtaining assistance in the garage from any available
source, including lot boys. In his testimony, Koenig
downplayed this need by saying that during the strike all
that was needed in the garage, over and above the serv-
ice manager and the assistant service manager, was help-
ers and runners. However, other evidence, notably the
testimony of Knolton, indicates that Legendre was eager
to make use of whatever mechanical ability stand-in em-
ployees might have. And Koenig himself made an effort
to sell nonstriking employees, including the two lot boys,
on the idea of working in the garage by telling them that
with the expiration of the union contract the Union was
no longer working, so that nonstriking employees work-
ing in the garage would not be doing anything against
the strikers.
C. Reassignment of the Lot Boys
I. The Binkley request
Ruble's normal reporting time was 7:30 in the morn-
ing. On August 11, in accordance with instructions from
Binkley, he reported at 8:30 a.m., by which time the me-
chanics had already begun picketing. Nevertheless,
Ruble went into the dealership and commenced doing
cleanup work.
In the meantime, Koenig was conferring with his su-
pervisors regarding how they would operate during the
strike. Following this meeting, Binkley called Ruble and
Knolton into his office in the sales department. He asked
them if they would work in the garage for Erve Le-
gendre. Ruble testified that Binkley told them to report
to Legendre. Although the import of the entire conver-
sation was, in effect, that of a directive, I find, based on
the mutually corroborative testimony of Knolton and
Binkley, that the initial words of Binkley were couched
in the form of a request. Binkley did not indicate specifi-
cally what working in the garage would entail, so Ruble
interjected that he would work for Legendre doing all
the things he usually did but that he would not do me-
chanics' work or, as he said, "turn wrenches" or any-
thing that "went with the Union." According to the un-
contradicted testimony of Ruble, Binkley indicated they
would do whatever Legendre told them to do. About
that time, Rausenberger joined the group. According to
him, Knolton was willing to work in the garage but
Ruble had difficulty accepting the reassignment, the gist
of his position being that he would not be a mechanic
nor a scab. According to Rausenberger, Binkley told
Ruble that, although the choice was his, he ought to
consider strongly what he was saying. And, according to
Knolton, Rausenberger could not understand why Ruble
did not want to go back and help Legendre. Ruble's
recall of Rausenberger's part in the conversation is much
more specific and for that reason I find his account to be
accurate. Knolton had indicated that he did not wish to
make either the Company or the Union mad and did not
know what to do. Rausenberger then commented they
were going to do what Legendre told them to do. Ruble
repeated again he would do anything besides turning
wrenches. This apparently annoyed Rausenberger who
conmented that, "You'll either do it or I got a hundred
people that can do your job." This was an obvious threat
of discharge if Ruble did not do what the service man-
ager directed him to do. 5 Nevertheless, Ruble held his
ground and repeated that that is how he felt. Rausen-
berger then told them to go talk with Legendre and see
what he wanted them to do.
Following Rausenberger's directions, Ruble went to
the garage to talk with Legendre. 6 He was unable to
locate Legendre so he went to the parts department to
discuss his situation with parts salesman Brian Green.
Shortly thereafter he found Legendre who asked Ruble
if he knew anything about mechanics. Ruble said no. Le-
gendre's question demonstrates the intent of management
to use nonstriking employees, including the lot boys, to
perform whatever mechanical work they were compe-
tent to perform, including work normally done by the
striking mechanics. Ruble told Legendre how he felt
about doing mechanics' work. Legendre said he would
try to work it out and directed Ruble to clean up the
body shop. Ruble agreed to do so because, as he testi-
fied, it was just sweeping. The body shop in the service
department is normally swept by the employees in that
department. However, during the strike the body shop
was closed. It is clear, therefore, that Ruble was doing
work which was normally done by service department
employees who were on strike.
2. Koenig's request
At noon on August 11 the two lot boys ate lunch to-
gether. Near the end of their lunch period they went out
to talk with the pickets. After about 10 minutes Koenig,
seeing them out there, called for them to come to his
office for a talk. At that point he did not know that
Ruble had been working in the service department
before lunch. Ruble told him they still had time left on
their lunch period. Koenig told them to come in when
the period was over, which they did.
In his office, Koenig asked the two lot boys to sit
down and proceeded with what he described as his pep
talk. According to him, he explained how the strike vote
taken by the Union had been a tie vote.7 He said a car
dealership differs from a factory in that during a strike a
dealership does not close but continues to operate and,
therefore, during a strike all must work together. Ac-
cording to Knolton who testified on behalf of Respond-
ent, Koenig "explained to us that Erve Legendre needed
help back in the garage and he asked us if we would be
willing to go back and help him." Ruble testified, and I
find, that Koenig also said, "I would like to explain the
situation to you. When the mechanics go on strike, that
abolishes the contract. So that means the Union is not
working here now. If you do union work, you will not
be going against them." This testimony is not specifically
I There is no allegation nor contention that Rausenberger violated the
Act. At the time of the hearing he no longer was employed by Respond-
ent.
I The record does not indicate specifically what Knolton did at that
point.
I In the course of bargaining, the Association had made an offer on
behalf of the employers which the Union presented to the membership
for acceptance or rejection. On this proposition the vote was tied and,
lacking majority support, it was rejected. Thereafter a stnke vote was
taken and passed.
648
VIC KOENIG CHEVROLET
contradicted. For this reason and because Koenig's pur-
pose in part seemed to be to assure the lot boys that by
continuing to work and by working in the garage they
would not be acting contrary to the best interests of their
striking fellow workers, I find that he made it, even
though neither he nor Knolton included it in their de-
scription of the conversation.
Ruble, whom Knolton described as "uptight" that day
in that he was talking louder than usual, although he did
not holler as described by Koenig, interrupted Koenig
and, according to Knolton, "again expressed that he did
not want to go back and do mechanical work and I re-
member him saying that he was not trained to do that, so
he did not want to do it. He wanted to do what he was
supposed to do as a lot boy."
Knolton did not recall what further transpired in the
conversation and the versions of Ruble and Koenig con-
flict. According to Koenig, whom I credit, Ruble inter-
rupted him to say that he would not do any mechanical
work, that he was only going to do the work for which
he was trained. He then recited specific things he would
not do, including changing license plates, changing bat-
teries, charging batteries, removing trailer hitches, or
anything that required a tool or a wrench of any kind,
that he was only going to do the job for which he was
trained which was washing cars. The fact that at that
time Respondent had an automatic car wash gives some
indication of the state of Ruble's excitement. Koenig
asked him specifically, "What you're telling me is that all
you're going to do is wash cars?" and Ruble responded
"Yes."
Intending to reprimand Ruble out of the presence of
Knolton, Koenig took him out onto the showroom floor
and then into a vacant office adjacent asking Binkley and
Rausenberger to join him. In the private office he again
asked Ruble if all he were going to do was wash cars
and Ruble nodded in the affirmative. Because Binkley
was not looking at Ruble at the moment he nodded,
Koenig again asked him the question and again Ruble
nodded. Binkley and Rausenberger corroborate Koenig
in this respect. Koenig then discharged Ruble.
Ruble's account differs. Ruble testified generally that
he did not refuse to do any job he had done in the past.
According to him, while he was in Koenig's office in the
presence of Knolton, he told Koenig he would do his
regular lot boy duties and would not do any "wrench
turning or union work." Koenig then asked, "Is that the
way it is?" to which Ruble replied, "Yes." Koenig then
took him out onto the showroom floor and into the
vacant office and called in Binkley, stating to Binkley, "I
want you to hear this, Dan." He then asked Ruble, "Are
you going to do this work like I asked you to do?" Ac-
cording to Ruble he replied, "I'll do anything you tell
me to do except union work." Koenig then discharged
him by saying, "Okay, then, Dan. Go punch him out." I
do not credit this portion of Ruble's testimony because
he is contradicted not only by Koenig but also by Bink-
ley and Rausenberger, because he was keyed up at the
time and may not have had as accurate a recollection as
the others, and because by his own testimony he had
been advised by a friend on the picket line not to do me-
chanics' work, that the Union did not want him doing
mechanics' work, and that the Union would back him all
the way.
After the discharge, Binkley then went to punch out
Ruble's timecard and Ruble received his paycheck.
Ruble then went to the parts department to use the tele-
phone to call the Board's Regional Office. However,
Koenig had followed him and prevented him from
making the call, telling him he was no longer an employ-
ee and could not use the telephone. Koenig walked him
to his pickup truck and he left in a huff.
Respecting his reasons for discharging Ruble, Koenig
testified that he did so because Ruble refused to do his
usual job and because he was insubordinate in that, in-
stead of discussing with Koenig his reservations about
working under Legendre, he just declared in adamant
terms the things he would not do.
D. Analysis
The evidence demonstrates that Koenig and his super-
visors wanted the lot boys to perform what amounted to
struck work. This included working under the strikers'
supervisor instead of their usual supervisor, working in
the area where the strikers normally spent their time and
where the lot boys usually spent little time, and perform-
ing whatever work that the strikers normally performed
which the lot boys were capable of performing. This
latter work included work similar to that which lot boys
normally did themselves. Nevertheless, to the extent
such similar work would have been done by mechanics
but for the strike, it was struck work. Knolton acceded
to management's request without question. Although
Ruble had reservations which he expressed in the morn-
ing to Binkley and Legendre, he too cooperated to the
extent of working in the mechanics' area and sweeping
the body shop which normally was done by them. His
expressed reservation was that he not turn wrenches
which meant not using tools in the manner and for the
type of work that mechanics usually performed. Up to
that point there was no serious problem. Then the lot
boys talked with the pickets during the lunch hour and
were seen by Koenig. I infer that it was at the picket line
that they were admonished not to do mechanics' work
and were told the Union would back them all the way.
Koenig, in apparent ignorance of the extent of the lot
boys' cooperation in the morning, decided they needed a
pep talk thereby setting the scene for a confrontation by
making an issue where one might not otherwise have ex-
isted.
During the conference with Koenig, Ruble was ex-
cited. He indicated he would not do many of the jobs
which Koenig could reasonably expect him to do if he
were not on strike, and for that reason Koenig fired him.
In substance, Ruble took the position he would do no
work involving the use of tools, even though lot boys
normally use some tools, not only on jobs which only
they perform, but also on others which either lot boys or
mechanics perform. The distinction between lot boy
duties and mechanic duties is not clearcut, the categories
of their respective normal duties not all being mutually
exclusive, some falling in a penumbra in which both
types of employees worked. Ruble in his discussion with
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Koenig took an extremely restrictive view of his job, a
view which eliminated from the job much of what he
normally was paid for. In taking this position he unwit-
tingly gave up the protection of the Act because he in
effect was declaring his intention to engage in a partial
strike thereby accepting his pay for performing only part
of the job while avoiding the disadvantages of complete
strike action. Koenig was therefore justified in discharg-
ing him. Omni International Hotel, 242 NLRB 248, 254
(1979); F. W. Woolworth, 204 NLRB 396, 398 (1973); C.
G. Conn, Ltd. v. N.L.R.B., 108 F.2d 390, 397 (7th Cir.
1939); N.L.R.B. v. Montgomery Ward & Co., 157 F.2d
486, 496-497 (8th Cir. 1946); Home Beneficial Life Insur-
ance Company, Inc. v. N.L.R.B., 159 F.2d 280, 283, 284-
286 (4th Cir. 1947); see also N.L.R.B. v. Fansteel Metal-
lurgical Corp., 306 U.S. 240, 254 (1939).
This is a harsh result for an individual employee, par-
ticularly one such as Ruble who is young, inexperienced,
very likely unknowledgeable about labor relations, and
who had friends on the picket line. The result is also un-
fortunate because it penalizes him more than the employ-
ees on strike who at the end of a strike enjoy rights of
possible reinstatement not given him. On the other hand,
a struck employer is entitled to a clearcut decision from
employees either to join the strike or to work in accord-
ance with the instructions of the employer, including
performance of struck work,8 so long as the employer
does not discriminate against employees unwilling to per-
form the work of the strikers. Here, management ap-
peared to be understanding of Ruble's reservations up to
the point when he made his declarations to Koenig.
While it is true that on no occasion on August 11 did
Ruble flatly refuse to follow a specific direction of man-
agement, it is also true that management on no occasion
ordered him to perform any job which he specifically in-
dicated he was unwilling to perform. In the circum-
stances it is impossible to say that he was discharged for
refusing to perform struck work.
The circumstances here are distinguishable from those
ih The Cooper Thermometer Company, 154 NLRB 502
(1965), and its progeny,9 relied on by counsel for the
General Counsel. In those cases employees who refused
to perform struck work were discharged and thereby
suffered discrimination, but they did not refuse, or indi-
cate any intention to refuse, to do their usual work. The
General Counsel's theory applied to the facts found
herein requires extension of the Cooper Thermometer line
of precedent beyond what the Board has thus far been
willing to hold.
8 See Pinaud, Inc., 51 NLRB 235 (1943).
9 Counsel for the General Counsel cites General Tire & Rubber Co.,
190 NLRB 227 (1971), enfd. 451 F.2d 257 (Ist Cir. 1971); Valmac Indus-
tries Inc., 217 NLRB 580 (1975); and Controls Division/Lexington. Ohio
Plant. a Division of Essex International, Inc., 221 NLRB 742 (1975).
The Act and Board law do not protect the individual
employee such as Ruble from being the more or less in-
nocent victim of industrial conflict. No accommodation
is made for his naivete in labor relations, for his under-
standable sympathy for those on the picket line, or for
his excited condition. In his testimony Koenig indicated
he considered Ruble insubordinate. Ruble was excited
but not insubordinate. And in fact, the circumstances
suggest strongly that Koenig himself was excited. These
circumstances include his calling of the lot boys away
from the picket line, deliverance of his pep talk without
knowing how they had responded during the morning to
the directions of supervisors, and his precipitous and ag-
gressive, albeit lawful, forcing of the issue by repeatedly
pressing Ruble to reaffirm the corner into which he had
painted himself, and then peremptorily discharging him.
There is no doubt that Ruble wanted to work on some
basis and also that Koenig wanted the lot boys to work
because he needed all the hands he could get during the
strike. Had Koenig allowed Ruble time to settle down,
events of the afternoon might have followed the pattern
of the morning. They might even have been able to dis-
cuss the difficulties of clearly defining struck work and
the obligation of nonstriking employees to avoid partial
strikes. See Mt. Clemens Pottery Company, et al., 46
NLRB 714 (1943). Instead, what happened was that
Ruble took an untenable position which was unprotected
in that in his efforts to avoid struck work he declared a
partial strike. For that reason the complaint must be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent, by discharging Tracy Ruble on August
11, 1981, and thereafter not reinstating him, did not
commit unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER '
The complaint is dismissed in its entirety.
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
650