Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1953

107 N.L.R.B. 314 (N.L.R.B. 1953)

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cory Corporation, 84 NLRB 972, 974. Though the size of the picket line at some of the outlets
has been considered in determining whether or not it constituted an informational technique,
I find no substantial evidence that it interfered with ingress or egress.
Coca-Cola also contends that the "Friends" picketing constituted a violation of Section
8 (b) (1) (A) per se, citing as authority therefor the decision of the Ninth Court of Appeals
in the case of Capital Service Co., 31 LRRM 2326. The General Counsel disclaims such a
contention. Since the framing of the issues of violation is a function committed by Congress
exclusively to the General Counsel, and not to private parties, I find this contention beyond
the scope of the issues. Moore Dry Dock, 92 NLRB 547, footnote 1. -
It will consequently be recommended that the allegation of violation of Section 8 (b) (1) (A)
be dismissed.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the operations
of the charging parties and the named outlets, previously described, have a close, ultimate,
and substantial relation to trade, traffic, and commerce within the District of Columbia,
and tend to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will be recom-
mended that it cease and desist therefrom and take affirmative action designed to effectuate
the policies of the Act.
Upon the basis of the foregoing findings and conclusions, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Brewery and Beverage Drivers and Workers, Local No.67, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By inducing and encouraging employees of suppliers to outlets of, and employees of
outlets of, Washington Coca-Cola Bottling Works, Inc., to engage in a concerted refusal to
perform services for their employers, with an object of requiring the outlets to cease doing
business with Coca-Cola, Local 67 has engaged in unfair labor practices within the meaning
of Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not committed unfair labor practices in violation of Section 8 (b)
(1) (A) of the Act.
[Recommendations omitted from publication.]
MARSHALL CAR WHEEL AND FOUNDRY CO. OF MARSHALL,
TEXAS, INC. andUNITED STEEL WORKERS OF AMERICA,
CIO. Case No. 16-CA-443. December 10, 1953
SUPPLEMENTAL DECISION AND ORDER
DENYING MOTION FOR RECONSIDERATION
On May 28, 1953, the Board issued its Decision and Order
in the above-entitled proceeding., In its Decision the Board
in substance found, in agreement with the Trial Examiner,
1105 NLRB 57.
107 NLRB No. 100.
MARSHALL CAR WHEEL AND FOUNDRY CO. 315
that on October 16, 1951, the Respondent's employees in
question engaged in an economic strike; that thereafter the
Respondent refused to take the strikers back except as new
employees, if there were vacancies, because the Respondent
regarded the strikers as having quit their jobs by violating
a plant rule forbidding an employee from leaving work without
permission; and that the Respondent's conduct in refusing to
reinstate the strikers except as new employees was tantamount
to a discharge in violation ofSection8(a) (3) and (1) of the Act.
On June 18, 1953, the Respondent filed with the Board a
"Motion for Reconsideration of the Decision and Order."
I
In point numbered I in its motion, the Respondent contends
in substance that the striking employees should not be afforded
the protection of the Act because the strike was "deliberately
timed so as to accomplish a partial destruction of Respondent's
plant and/or equipment."
The Respondent conducts foundry operations involving melting
of iron in a cupola and pouring of the molten metal into molds
to make car wheels. Without any advance notice, about 45
percent of the Respondent's work force walked out on an
economic strike at 11 a. m. on October 16, 1951, at the peak
of the foundry operations. By commandeering supervisors and
employees who remained at work in the plant, the Respondent
restored operations without any damage to its physical property.
The Respondent asserts , however, that, if all the employees
in the bargaining unit had struck, there would have resulted
substantial damage to plant equipment and material.
In cases involving supervisory' and plant-protection em-
ployees,' the Board has recognized the validity of the general
principle that the right of certain classes of employees to
engage in concerted activity is limited by the duty to take
reasonable precautions to protect the employer's physical
plant from such imminent damage as forseeably would re-
sult from their sudden cessation of work. We are of the opinion
that this duty extends as well to ordinary rank-and-file
employees whose work tasks are such as to involve re-
sponsibility for the property which might be damaged, Em-
ployees who strike in breach of such obligation engage in un-
protected activity for which they may be discharged or subjected
to other forms of discipline affecting their employment
conditions. However, it is well settled that such a striker does
not automatically lose his status as an employee under the Act.
An employer may waive his right to discharge or discipline an
employee for engaging in such conduct; and once he has made
2 Carnegie- Illinois Steel Corp. ( Gary Steel Works), 84 NLRB 851 , affd in Albrecht v.
N. L R B , 181 F ( 2d) 652 (C A. 7).
3Reynolds & Manley Lumber Co , 104 NLRB 827; U . S Steel Company (Joliet Coke Works),
196 F ( 2d) 459 ( C A 7), setting aside 95 NLRB 763.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the waiver , an employer may not later assert the misconduct
as a valid reason for discharge or refusal to reinstate. Thus,
if an employer in fact discharges an employee for an unlawful
reason, the circumstances that the employer might have dis-
charged him for a valid reason , for example , as here, partici-
pation in unprotected activities , is not subsequently available as
a defense to the unlawful discharge.4
The Board appears to be unanimous in its determination that
at least some of the strikers engaged in unprotected activity.
We are in disagreement with our dissenting colleague on the
issue of whether the Respondent did in fact condone or waive
the strikers ' misconduct in this case . In our opinion the record
discloses clear and convincing evidence of such condonation;
the Chairman can find no real evidence . Thus, this issue
upon which we are divided is purely a factual one. We turn now
to a consideration of the evidence on this issue.
At the time of the strike , the Respondent had in force a rule
which prohibited " any employee to leave the employer ' s prem-
ises without permission during working hours." In the event
of a breach of this rule, "it was presumed he had quit his
job." Within an hour after the commencement of the strike,
when the Union offered to supply workers to pour the metal,
the Respondent notified the Union that the strikers could apply
for work , but only as new employees ; the Respondent further
made it clear that it had not discharged the strikers and that
its unwillingness to take them back except as new employees
was based on the fact that the strikers had voluntarily severed
their employment relationship by leaving work without per-
mission in violation of the plant rule.5
4See, for example, the following cases involving strikers in breach of contract : Alabama
Marble, 83 NLRB 1047, enfd . in 185 F. 2d 1022 (C. A 5); E. A. Laboratories , 80 NLRB 615,
enfd. in 188 F 2d 855 (C A 2); Fafnir Bearing, 73 NLRB 1008 . See, also , for example,
Hoover Co., 90 NLRB 1614, 1622 ( mass picketing ), set aside on other grounds . 191 F. 2d 380
(C. A. 6); Acme Evans , 24 NLRB 71, 100 (violence ), enfd. in 130 F 2d 477 (C. A. 7), cert.
den 318 U. S . 732. See , particularly , Clearfield Cheese Co., Inc. , 106 NLRB 417 , and cases
cited therein, decided July 29, 1953, where the Board held that an employer condoned
strikers' picket - line violence and waived any right to refuse their reinstatement by indicating
that strikers would be reinstated to available jobs while failing to mention misconduct as a
reason for not reemploying them.
5 The Trial Examiner so found ; there was no exception thereto; and the Board adopted these
findings in its decision . At the hearing, Vice President Fry credibly testified as follows:
Q. Did you fire them for walking out?
A. No. I did not.
Q. You just told them they would have to come back as new employees9
A. That is right.
Q You told them at that time the foremen may or may not take them back , is that
correct?
A. I told them that it was strictly up to the foremen ; if we needed a fellow and he
hadn't been replaced-
Q. So far as you were concerned the employees quit when they walked out at 11 o'clock?
A. Well, I think So, yes
Q. That was your position , they quit their employment when they walked out at 11
o'clock.
A. Yes.
MARSHALL CAR WHEEL AND FOUNDRY CO. 317
Later that same day, about 3:30 p. m., when the Union un-
conditionally offered to return all the strikers to work, the
Respondent repeated this position to the Union. Contrary to the
opinion of our dissenting colleague , the same position was
maintained by the Respondent throughout subsequent negotia-
tions with the Union. And consistent with this position, some
of the strikers were later reemployed by the Respondent as
new employees, with loss of vacation and Christmas bonus
privileges.
At no time did the Respondent in any manner indicate, or
even intimate , that its treatment of the strikers as new
employees was a disciplinary measure for the strikers' con-
duct in failing to take appropriate steps to protect the Respond-
ent's property from the damage which might result from an
effective strike, although the Respondent was at all times
fully aware of the nature of the strikers' conduct and the
possible damaging consequences thereof.
At the hearing before the Trial Examiner, the Respondent
again denied that it had discharged the strikers and reiterated
its position that the strikers had quit their employment by
violating the plant rule prohibiting employees from absenting
themselves from work without permission.' We have already
alluded to Vice President Fry's testimony in footnote 5. The
record also contains the following colloquy:
Trial Examiner:. . . .as I understand the pleadings,
no employee was discharged or refused reinstatement
because of this potential serious situation in the plant.
Mr. Gooch (representing the Respondent): That's right.
Trial Examiner : But these men were not penalized or
discharged , so where is the issue?
Mr. Gooch: I don't-thinkwe have a case, but that is what
we are trying down here.
And in its brief submitted to the Trial Examiner, Respondent
stated that the position which Fry expressed at the hearing
was in conformity with the Respondent's established policy.
Even to this day the Respondent makes no claim that it
disciplined the strikers for failing to take appropriate measures
to avoid potential damage to the Respondent's property. Thus
in its very motion for reconsideration the Respondent "denies
that it discharged any of the men" and.contends that "although
it had a legal right to do so, the Respondent did not discharge
the strikers." Construed most favorably to the Respondent,
6 In paragraph 16 of its answer to the complaint issued by the General Counsel, the Re-
spondent merely alleged that 45 percent of its employees ceased work without taking appro-
priate measures to safeguard the plant from the serious damage which would have resulted
if the strike was 100 percent effective . However, nowhere in its answer does it allege or
claim that it disciplined the strikers for suchconduct by treating them as new employees.
337593 0 - 55 - 22
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its position in its motion for reconsideration is that, by
engaging in unprotected activity , the employee status of the
strikers was automatically severed , a position apparently
embraced by our dissenting colleague but consistently repu-
diated by the Board and the courts.?
We are as ever ready as the Chairman to recognize and
condemn unprotected conduct wherever it may occur. And we
are just as vigilant to protect an employer ' s right to discipline
strikers or any employee for engaging in such misconduct.
But we are equally vigilant to protect the employees ' statutory
rights against infringement by an employer for reasons other
than their misconduct . Our position is not a novel one. It has
been applied in cases ( too numerous to cite ) wherein, despite
the existence of a valid reason for discharge or discipline, the
employer effects the discharge or takes disciplinary action
for a discriminatory reason proscribed by the Act. In all
such cases the finding of a statutory violation rests upon the
ground that the failure to invoke the valid reason affirmatively
demonstrates that the employer has condoned such conduct
or forgiven the employee for it. It rests, too, upon the entire
circumstances surrounding each case; and, in this connection,
the employer ' s continual silence on the matter is just as
eloquent as a pronouncement of condonation.
In this case the record shows that from the very inception
of the strike the Respondent was fully aware of the nature of the
strikers ' conduct and the danger of damage to plant facilities.
For the Respondent to indicate in some manner that it was
treating the strikers as new employees because of their failure
to take proper precautions to safeguard the property from
damage, requires no use of magic words, nor any technical
legal formula , nor imposes any undue burden upon it. Yet, to
this day, no evidence has been called to our attention which
would indicate that as the Respondent ' s reason for treating
the strikers as new employees ; nor does the Respondent
even contend that such was the case . On the other hand, the
evidence at every turn affirmatively demonstrates that the
Respondent was not concerned with this aspect of their conduct
but treated the strikers as applicants for new employment
solely because of their violation of the plant rule prohibiting
an employee from leaving work without prior permission.
Its position at the hearing could not be any more specific
when it bluntly stated that the strikers were not penalized be-
cause of the potential damage to the plant equipment. From
the very beginning the Respondent steadfastly maintained that
it was the violation of the plant rule which caused the Respondent
to refuse to reinstate the strikers except as new employees. It
7 In addition to the cases cited in footnote 4, supra , see Stewart Die Casting Corp v.
N. L. R B ., 114 F . 2d 849, 855 (C A. 7), cert . denied, 312 U S. 680 , holding that the em-
ployee status of sit-down strikers is not automatically terminated in the absence of affirma-
tive action by the employer for engaging in such misconduct
MARSHALL CAR WHEEL AND FOUNDRY CO. 319
was the violation of the plant rule, and that alone, which
Respondent refused to condone or forgive. As the Trial
Examiner correctly concluded that such a plant rule cannot
abrogate the statutory right of employees to engage in con-
certed activity , the evidence compels us to find that the
Respondent condoned the strikers ' participation in any alleged
unprotected activities and thereby waived any right it might
have had to discipline them for it.8 Hence we find no merit in
point numbered I of the Respondent ' s motion for reconsidera-
tion. 9
The Respondent ' s motion raises no other matter not pre-
viously considered by the Board.
[The Board denied the motion.]
Chairman Farmer, dissenting:
I cannot agree with my colleagues that the Respondent violated
the Act in refusing to reinstate the strikers.
The Respondent is a small manufacturer of car wheels, soil
pipe, and related products . Its total annual business approxi-
mates $500,000 . In connection with its manufacturing opera-
tions, the Respondent operates a foundry. It melts iron in a
cupola or furnace. The hot molten metal is tapped into a bull
ladle for cooling and then poured into smaller ladles for trans-
portation to other parts of the plant where it is poured into
molds . About 11 a. m. eachmorning , the cupola is full of molten
metal and must be emptied immediately or severe damage to
plant and equipment will result.
The Union was fully aware of the importance of the 11 o'clock
hour in the pouring operations , and, by its own admission,
deliberately timed the strike so as to cause the maximum
physical damage and financial loss to the employer. The Re-
spondent ' s witnesses testified , without contradiction , that the
damage to the plant from such an event would be "hardly less
than 75,000" besides the loss of business which would result
BContrary to the assertion of our dissenting colleague , in the Clearfield Cheese Co case
(106 NLRB 417) where the Board as recently as last July found condonation , the employer,
as in this case, had offered to reinstate the strikers with penalty, that is , as new employees.
A full reading of the decision also discloses that, as in this case, the manner in which the
employer affirmatively indicated an intent to condone the misconduct was solely by (1)
offering to take all strikers back as new employees because the employer considered them
as having quit and (2) by never mentioning their misconduct as the reason for treating them
as new employees , although fully aware of such misconduct
The other cases on which the dissenting opinion relies are inapposite . Thus in The Longview
Furniture case, unlike in the instant case , there was no work available for the strikers at
the time of the refusal to reinstate them and the employer never offered to reinstate the
strikers even as new employees when work should become available In the Dorsey Trailer
case, the court, in disagreement with the Board, found that the employer did make it clear
that its reason for not recalling the strike leaders to work was because of the unprotected
character of their activity. The Warner Bros Pictures , Inc., and the W T. Rawleigh Co
cases turned on their own peculiar facts.
9 In view of our decision herein, we find it unnecessary to determine which, if any, of the
strikers engaged in unprotected activity under the circumstances of this case.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while ruined parts of the plant and equipment were being re-
built , a process which was likely to take several months. This
would have gone far to bankrupt this Employer and deprive all
of the employees of their job opportunities.
With the admitted intent, in event the Respondent did not
capitulate immediately , of doing the maximum amout of damage
to the Respondent ' s property , the Union , without prior warning
to the Employer , called the employees out on strike at 11 a. m.
on October 16, 1951. The timing of the strike so as to cause the
maximum physical damage and crippling of the plant was
boldly announced by the Union at a union meeting preceding the
strike. Thus , R. C. Lisman , the president of the Union ' s local,
on cross-examination , testified substantially as follows:
11 o'clock in morning is the time "when they were pouring
off the wheels and taking them out"; that is "about the
time when the crucible that carried the molten metal is
about the hottest ;" if they don't pour the molten metal off
at 11 o'clock " it will come off the cupola and run off down
the sides the railroad tracks" and " run everybody out of
there;" if there are wooden legs under the crucible, it
would burn them, if they didn 't take the molten metal out
of the crucible.
J. A. Lee, union international representative , gave substantially
the following testimony:
We decided 11 o'clock would be the most effective time to
come out; that would be time when operation of plant would
be at its highest peak of activity ; I knew that at that time
the cupola had been fully charged and would be full of molten
metal that would have to be poured off, requiring some
"hasty labor ," unless it were dumped; and , if all em-
ployes had walked out, there would not be any labor to
take care of it. . . . It was the crippling time for all the
employees to come out . Unless the molten metal could
be poured off quickly at 11 o'clock , I knew that it possibly
would be a severe blow to the company financially and
"otherwise." 10
Fortuitously, by calling upon its supervisors , including its
vice president and general manager , and the employees who did
not answer the strike call, the Respondent was able to muster
enough emergency help to prevent the damage to its physical
property which the Union foresaw , and, in fact , admittedly
planned.
About an hour after the start of the strike , the Union ' s repre -
sentative telephoned Fry, the Respondent ' s vice president and
10 Except for that portion set out in quotation marks, the above is a paraphrase of the
testimony of Lisman and Lee.
MARSHALL CAR WHEEL AND FOUNDRY CO. 321
general manager , who was then himself pouring molten metal,
and belatedly offered to furnish a number of strikers to help
pour the metal in the cupola. It was then too late for the strikers
to be of assistance , and Fry told the Union ' s representative that
he considered the strikers had quit their jobs, that they would
have to apply to their respective foremen for employment, that
it was up to the foremen as to whether the employees were taken
back, and that if they did come back, they would do so as new
employees. The Board in its original decision, in which I did
not participate, found that, by this action, the Respondent dis-
charged the striking employees. I agree with this interpretation
of the Respondent's conduct.
There are two questions presented for decision in this posture
of the case: (1) Whether the strikers were engaged in protected
concerted activity; and (2) whether, if unprotected, the Re-
spondent waived or condoned such action so that the discharge of
the strikers was unlawful.
As to the first question, the majority states a general prin-
ciple with which I wholeheartedly agree, namely, that the right of
rank-and-file employees, as well as that of supervisors and
plant-protection employees, to engage in concerted activity
carries with it the concomitant duty to take reasonable pre-
cautions to protect the employer's physical plant from such
imminent damage as would result from their sudden cessation
of work. However, after stating the principle, the majority find
it "unnecessary to determine which . . . of the strikers engaged
in unprotected activity under the circumstances of this case."
I have no hesitancy in holding that, when employees strike with-
out warning with the purpose and expectation that the employer's
physical plant will be seriously damaged thereby, they engage
in a form of sabotage which is not entitled to the protection of
the Act. Byits own admission, this was the purpose and expecta-
tion of the Union in this case.
The majority does not gainsay this, but nevertheless finds
that the Respondent condoned the strikers' conduct and thereby
waived its right to discharge or discipline them. I am not con-
vinced that the doctrine of condonation has any application to a
case of this kind, since I view this type of activity as outside
the protection of the Act." Moreover, even if applicable, when
we (both the majority and I) agree that the strikers' conduct,
motivated by a vindicative desire to destroy the enterprise
which provides them employment, that finding should be dis-
positive of the case. The majority, in my view, affords too easy
an escape for the strikers from the normal consequences of
their wanton and deliberate conduct. Our democratic society,
contrary to the attitude of other political philosophies which we
abhor , safeguards and grants protection to employees to strike
in furtherance of economic aims. But , it seems to me basic in
our scheme of free collective bargaining and the right to strike,
iiFansteel, 306 U. S 240; Southern Steamship, 316 U. S. 31.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the strike weapon shall be used as an instrument of
union policy to exert economic strength to attain economic
objectives , and not as a weapon of destruction so planned and
so timed as to result in the physical destruction of property of
such nature as to deal a crippling blowto the continued existence
of the very enterprise from whichthe strikers gain their liveli-
hood. The distinction , of course , is between the financial loss
which is incidental to the withholding of the strikers' labor
and the physical destruction and loss resulting from a planned
attempt to destroy property by a surprise abandonment of job
responsibility . The latter has no place in our society and is
not entitled to protection insofar as I am concerned.
But, meeting the majority on their own artifically created
issue, there is no real evidence of condonation in this case.
Within an hour after the strike , the Respondent ' s vice president,
who was then himself laboring in the foundry to prevent the
damage planned by the strikers , told a union representative
in substance that the strikers were discharged . Throughout
subsequent negotiations between the Union and the Respondent,
the latter never receded from the position it had taken on
October 16. At no time did it indicate forgiveness of the
strikers . 12 On the contrary , Respondent ' s whole course of con-
duct indicated unforgiveness . I do not think it decisive that
the Respondent did not immediately say, in so many words, that
it discharged the strikers because of the timing of their walkout.
The Respondent ' s spokesman was not a labor lawyer, and he
was not required to know the magic word formula which had he
chanted correctly might have excused his discharge of the
strikers . It strikes me as completely disingenuous to ascribe
an attitude of forgiveness to Vice-President Fry, 1 hour
after the walkout while Fry himself was working as a foundry
hand to prevent serious damage to his plant . When the offense
is potentially so serious and the Respondent ' s action so in-
stantaneously follows on the offense , we should require more
substantial evidence than is available in this case to find con-
donation.
Moreover , the condonation or waiver doctrine rests on some-
thing more than the failure to raise the defense of unprotected
activity in a given time. 13 Before condonation can be found,
iz Webster 's New International Dictionary ( 1950) defines condonation as follows: "Pardon
of an offense ; voluntary overlooking or implied forgiveness of an offense by treating the
offender as if it had not been committed "
13Longview Furniture Company , 100 NLRB 301 , 306, where the Board said:
It is true . , that the Respondent did not disclose a determination not to reinstate
the strikers who had engaged in misconduct when the Union applied on their behalf, but
relied on its representation that it had no job vacancies However, this fact is insufficient
to establish an intent by the Respondent tocondone the misconduct in question . (Emphasis
supplied ) 6 N L. R B v. Dorsey Trailers , Inc , 179 F. 2d 589, 592 (C A. 5), where in
reversing a Board finding of condonation , the court said:
If we could agree with their (Board's] ... view that respondent did not make it clear
from the beginning to these three that t cy would not be treated differently from the
BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS 323
there must also be affirmative, positive action bythe employer
which indicates that he is forgiving the unprotected activity of
an employee. Most frequently, this affirmative action has
taken the form of an invitation from, or agreement by, the
employer to reinstate strikers without penalty. The relevant
cases cited by the majority in support of their waiver finding
(footnote 4) are of this character. 14 There is no affirmative
evidence of condonation in this case. The Respondent did not
promise to reemploy the strikers without penalty; nor did it
invite them to return to work under such circumstances as to
indicate an intent to overlook their conduct in the strike.
To me it is clear that the strikers engaged in unprotected
activity; that, even if relevant which I reject, Respondent did
not condone or waive such activities; and therefore that the
Respondent was lawfully entitled to discharge the strikers. I
would so find and dismiss the complaint.
Member Murdock took no part in the consideration of the
above Supplemental Decision and Order Denying Motion for Re -
consideration.
rank and file of the workers, we could not agree with it that this would be a waiver of
their breach of contract, and a condonation of their wrongheadedness, their injurious
and harmful action both to the company and to the employees.
14 Alabama Marble Company, 83 NLRB 1047, enfd. 185 F. 2d 1022 (C. A. 2) (Respondent
agreed to permit and did permit employees who struck in violation of a no- strike clause to
return to work without reserving the right to discipline any striker); E. A. Laboratories,
Inc., 86 NLRB 711, enfd. 188 F. 2d 855 (C. A. 2) (Respondent agreed to reemploy strikers
who struck in violation of a no-strike clause); The Fafnir Bearing Company, 73 NLRB 1008
(Respondent invited strikers in violation of a no- strike clause to return to work and promised
them reinstatement to their former positions without exception or qualification); The Hoover
Company, 90 NLRB 1614, 1622, enfd as modified 191 F. 2d 380 (Respondent invited all em-
ployees who engaged in mass picketing to return to work; in court decision, court found
that when Respondent invited employees engaged in boycotting activities to return to work if
they first disassociated themselves from such activity, it thereby waived right to refuse to
reinstate employees who complied with its invitation); Clearfield Cheese Company, Inc.,
106 NLRB 417 ("In addition to its delay in raising the misconduct issue, despite the numerous
opportunities to do so, until long after the termination of the strike, the Respondent affirma-
tively indicated at the time of the applications for reinstatement on November 13, and in
its letters to, and conversations with, its employees an intent to condone the misconduct").
See also the following court decisions reversing Board findings ,.f condonation: N. L. R. B. v.
Dorsey Trailers, Inc., supra; N. L. R. B. v. Warner Bros. Pictures, Inc., 191 F. 2d 217
(C. A. 9), setting aside 82 NLRB 568; W. T. Rawleigh Co. v. N. L. R. B., 190 F. 2d 832
(C. A. 7), enfg. as modified 90 NLRB 1924.
BROTHERHOOD OF PAINTERS, DECORATORS & PAPER-
HANGERS OF AMERICA, LOCAL UNION NO. 365, AND
HUGH J. SMITH, its Business Agent and JOHN SALANSKY
and ELMER LEE RIDGWAY. Case No. 10- CB-145. Decem-
ber 11, 1953
DECISION AND ORDER
On September 14, 1953, Trial Examiner Robert L. Piper
issued his Intermediate Report in the above-entitled proceed-
107 NLRB No. 93.