Metal Products, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1969

174 N.L.R.B. 838 (N.L.R.B. 1969)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Products , Inc. and United Steelworkers of
America, AFL-CIO. Case 6-CA-4183
February 27, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 4, 1968, Trial Examiner Benjamin
K. Blackburn issued his Decision in the
above-entitled proceeding, finding that the
Respondent had not engaged in unfair labor
practices as alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.
8(a)(5) allegations on the ground that, subsequently to
issuance of the complaint, Respondent and the Charging
Party had entered into a collective-bargaining agreement.
I granted the motion. Consequently, the only issue
litigated was whether Respondent violated Section 8(a)(1)
and (3) of the Act by terminating the employment of Paul
Russell and Tony Marino, Jr., on or about March 4 at the
end of a strike for alleged picket line violence.
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and
to file briefs.
Upon the entire record,' including briefs filed by the
General Counsel and Respondent, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
Respondent, a West Virginia corporation, is engaged at
Clarksburg in the manufacture of fabricated steel,
weldment and special machinery. In the year prior to
issuance of the complaint it purchased and received
materials valued in excess of $50,000 which were shipped
directly to it in Clarksburg from points outside the State
of West Virginia. On the basis of these admitted facts, the
complaint alleges, the answer admits, and I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner. The charge
in this case was filed on March 11, 1968,' and amended
on June 5, by United Steelworkers of America,
AFL-CIO, referred to herein as the Charging Party or the
Union, against Metal Products, Inc., referred to herein as
Respondent. On June 25, the General Counsel of the
National Labor Relations Board, acting through the
Acting Regional Director of Region 6 (Pittsburgh, Pa.),
issued a complaint and notice of hearing in which it was
alleged that Respondent violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act by various acts
and conduct. Respondent's answer denied any violations
of the Act. Pursuant to due notice, hearing was held
before me in Clarksburg, West Virginia, on August 27, 28
and 29. At the outset counsel for the General Counsel
moved to amend the complaint to delete all Section
III. THE UNFAIR LABOR PRACTICES
A. The Facts Other Than the Wilfong Incident
The Charging Party was certified as representative of
Respondent's production and maintenance employees in
September 1967. Bargaining commenced in October and,
by February 28, some 11 meetings had been held. Paul
Russell participated in the negotiations as a member of
the Union's employee committee. On Wednesday,
February 28, the Union struck Respondent. None of the
116 employees in the unit at that time reported for work
that morning.
Pickets appeared at the entrance to Respondent's plant
around 5 A.M. in preparation for the arrival of the day
shift, scheduled to report at 7 A.M. Russell and Tony
Marino, Jr., were among them. At approximately 6.45
A.M. an incident took place at the picket line which
involved one Wilbur Wilfong and his teenage son, David
Wilfong. The facts with respect to this incident and events
flowing therefrom are set forth in detail below under The
Wilfong Incident.
One employee worked the night shift on February 28,
none worked any shift on Thursday, February 29.
Sometime during the night of Thursday-Friday, February
29-March 1, three pickets, including Roy Cayton, another
employee member of the negotiating committee, were
'Dates are 1968 unless otherwise indicated
'General Counsel's motion to correct the record is granted
174 NLRB No. 124
METAL PRODUCTS, INC.
assaulted.' Among a number of employees who reported
for work on Friday morning was Charles Washington.'
Washington told Robert W. Simms, one of Respondent's
vice presidents, that he had beaten up Cayton and the
other pickets the night before. Simms did not allow
Washington to go to work.
The Charging Party's and Respondent's negotiators met
on the morning of Saturday, March 2. Respondent
warned the Union that a major part of the work being
done in the plant would be lost if the strike continued
since a principal customer had started to pull out its jigs,
machinery and materials. Respondent said that the
customer would terminate its contracts if the strike did
not end by 10 A.M. The Union agreed to end the strike at
once in exchange for Respondent's promise to engage in
intensive bargaining.' A notice was drafted by the Union
to be read over local radio and television. It announced
the end of the strike as of noon Saturday and told striking
employees to return to work immediately. Russell and
another member of the committee went to the plant to
help Respondent locate employees by telephone in order
to call them in to work. Marino received such a call and
went to the plant. He requested and received his foreman's
permission to return to work on Monday, March 4.
Nothing was said at the March 2 meeting that any
strikers would not be taken back to work. Nothing was
said to either Russell or Marino that he would not be
taken back to work.
Respondent and Union negotiators met all day Sunday,
March 3. Respondent said nothing to the Union
negotiators to indicate that it would not take back some
of the strikers although it decided, at a private caucus
during the afternoon, to suspend Russell, Marino and
Washington pending discharge for picket line violence. An
elaborate Union proposal on the bargaining table at that
stage of the negotiations provided for suspension and
hearing as a preliminary step before a discharge for cause.
The clause which Respondent and the Union finally
agreed on in June provides for a 5-day suspension period
before a discharge to provide time for processing of any
grievance which may be filed.
When Marino reported for work on March 4 he was
given a suspension letter. Washington also received a
suspension letter. A third letter was handed to Russell by
Respondent's negotiators at a meeting held on Monday
morning, March 4. All three letters are identical. They are
dated March 4 and read:
Substantial evidence has been brought to the
Company' s attention that you personally were guilty of
various serious strike misconduct at the picket line
during the recent strike which would warrant discharge.
'Washington is named as a discriminatee , along with Russell and
Marino, in the original charge filed by the Union in this case on March 11
His name does not appear in the amended charge filed on June 5 The
record does not reveal why he was dropped.
'I do not credit the testimony of Union Staff Representative Gerald
Kendrick that Respondent also specifically agreed to take back all strikers
as part of the deal to call off the strike I credit the testimony of
Respondent ' s witnesses that no such express commitment was made on
March 2 I rely on the total picture of what went on at the March 2
meeting from the record as a whole It is clear that the thrust of this
discussion , once the Union had decided to call off its strike, was to get
some men back in the plant as quickly as possible in order to meet a
deadline imposed by Respondent 's customer and that neither side raised
any question about events which had taken place on the picket line Under
the hurried circumstances that prevailed , I conclude that fine questions
about whether all or only some of the strikers would return to work
immediately dust did not come up.
8 39
Pending further investigation and clarification of the
facts respecting such incidents of strike misconduct,
including physical violence , in which you are alledged
[sic] to have participated you are hereby suspended
from your employment with METAL PRODUCTS,
INC
When Russell was handed his letter, he said to F. J
McFerran, another of Respondent's vice presidents, "I am
going to stick this [profanity] thing down your [obscenity]
throat."5
The suspensions triggered a second short strike. It
began with the day shift on Tuesday, March 5, and ended
at 6 P.M. on March 6.
The status of Russell and Marino was discussed from
time to time at subsequent negotiating sessions, the last
time in July when agreement was finally reached on a
contract. At that time Respondent asked the Union
whether they still wanted to return to work. After
checking, the Union informed Respondent that they did.
Other than an abortive attempt to obtain transcripts of
proceedings described below which were held before
justices of the peace, Respondent has made no effort on
its own initiative to obtain information to augment or
offset the evidence it possessed on March 3, on the basis
of which it decided to suspend them, that Russell and
Marino had struck Wilbur and David Wilfong on the
morning of February 28. In its discussions with the Union
it consistently took the position that it stood ready to
receive any evidence the Union had of Russell's and
Marino's innocence. Other than simple assertions that
they did not commit the wrong alleged, the Charging
Party tendered no evidence to Respondent. Respondent
has never taken any formal action to convert the
suspensions of Russell and Marino into discharges.
Based on the incident which took place at the picket
line on the morning of February 28, Wilbur Wilfong filed
assault and battery charges against Russell and Marino,
while Russell filed similar charges against Wilfong.
Russell and Marino were tried on March i 1. Russell was
acquitted. Marino was convicted and fined $30 and costs.
At the time of the hearing herem Marino's appeal was
pending. Wilfong was tried on March 13. He was
acquitted.
B. Credibility
The crux of this case is whether Russell and/or Marino
struck Wilbur Wilfong and/or David Wilfong on the
morning of February 28. Russell and Marino, supported
by their fellow pickets David O'Dell and Edgar Heldreth,'
swear that they did not. Wilbur Wilfong, supported by
Foreman Paul Watson,' another eyewitness, swears that
'I do not credit Russell ' s denial that he spoke these words for the
reasons set forth under Credibility below
'The testimony of Jerry Wilfong, called as a rebuttal witness by the
General Counsel , sheds no light on the matter. He testified that he had his
back turned to the action at the critical moments I do not credit the
testimony of Edgar Heldreth in any respect . His answers to questions
seeking specific details such as names of other persons p-esent were evasive
to the point of inanity . Moreover , he testified that the driver's window on
the Wilfong car was closed although all other witnesses testified it was at
least partially open; he testified that he was standing next to Russell and
that Russell did not help to rock the Wilfong car even though Russell
candidly admitted that he did.
'David Wilfong is in the United States Navy He did not appear at the
hearing
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they did. The conflict is irreconcilable. The issue can only
be resolved by crediting the witnesses who testified one
way and discrediting those who testified the other. I
resolve the conflict in Wilfong's and, especially, Watson's
favor for the following reasons:
General Counsel's version of what happened during the
few brief moments when the blows were either struck or
not struck is that Wilbur Wilfong stopped his car as he
approached the picket line to ask his son Jerry what was
going on, took offense at Jerry's suggestion he turn back,
backed up his automobile a few feet, raced the motor,
blinked his headlights, and charged the picket line; that he
skidded to a stop at the last instant, hitting Russell lightly
with the bumper; that the pickets surrounded Wilfong's
car and rocked it from side to side; that Russell and
Marino were standing in positions where they could not
strike at Wilbur and David Wilfong through the driver's
window; that the driver's window did not get broken, nor
did the automobile sustain any other damage, and that
Watson drove up behind Wilfong only as the rocking of
the car was coming to an end.
Respondent's version is that Wilbur Wilfong stopped
his car to speak to his son Jerry, proceeded toward the
picket line without first backing up, racing his motor, or
blinking his headlights, then stopped again at the picket
line without skidding or striking Russell; that the pickets
thereupon surrounded the Wilfong car and rocked it; that
Russell and Marino each reached through the partially
open driver's window to strike both Wilbur and David
Wilfong; that the window got broken in the course of the
melee, in addition to other damage to the car, and that
Watson drove up behind Wilfong as Wilfong was moving
from the point where he spoke to his son Jerry to the
point where the picket line melee took place, thus
observing all that took place on the picket line from a
point of vantage behind the Wilfong car.
In crediting Respondent's version over the General
Counsel's, I rely primarily on the testimony of Watson,
the only eyewitness whom I find to be completely reliable.
In doing so I have not overlooked the fact that Watson
testified he saw Marino strike the driver of the car while
he only saw Russell swinging his arm into the car without
actually seeing any blows landed by Russell while an
affidavit taken from Watson during the investigation of
this case contains the statement, "I also saw Russel [sic]
& Tony Marino attempt to hit &, in fact, hit Mr. Wilfond
[sic] through the car window. Mr. Wilfond was hit several
times. Both Russel & Marino landed blows." I do not
consider this discrepancy as, in any way, impeaching the
testimony of Watson which was presented under oath on
the witness stand and subjected to a searching
cross-examination by counsel for the General Counsel any
more than I consider similar discrepancies between their
testimony and their affidavits as impeaching Russell and
Marino. Such minor discrepancies reflect only the natural
efforts of witnesses awed by the atmosphere of a formal
judicial proceeding to tell the literal, precise truth as they
recollect it as opposed to the informal manner in which
affidavits are given and taken during precomplaint
investigations.
In finding that blows were also landed by Russell I rely
on the testimony of Wilbur Wilfong, even though I credit
him only insofar as his testimony is corroborated by other
witnesses. I consider Watson's testimony that he saw
Russell swinging his arm into the car as corroborative of
Wilfong's testimony that Russell struck both himself and
his son David. I especially do not credit Wilfong's
testimony that Russell was known to him by name at the
time of the assault , finding, rather, that Wilfong first
learned the names of both Russell and Marino from
Watson when they met at the lawyer's office on the
evening of February 28. I base this conclusion on the fact
that an affidavit taken from Wilfong by a lawyer on the
evening of February 28 does not name Russell and
Marino as the two men who "reached through [the
partially opened door window] and started striking me
with their fists, one of them reached clear through the car,
grabbed my son and struck him in the face" and states
affirmatively, "The only one I recognized was Roy Sandy
of Shinnston who I think was the one that opened my
hood."
The particular points which have persuaded me that
Respondent's version of the Wilfong incident must be
preferred over the General Counsel's are:
1. The fact that the car window was broken. Jerry
Wilfong testified that the window contained, at worst, a
crack in the lower left hand corner prior to the melee. A
photograph taken on the afternoon of February 28 shows
a portion of the top of the window broken out. Estimates
for repairs to his car obtained by Wilfong on February 29
include replacement of left front door glass. Yet General
Counsel's witnesses denied any knowledge that the glass
was broken, testimony which I find completely incredible.
Even if they were in the positions where they said they
were during the rocking of the car, they could not have
failed to note the breaking of the window.
2. The fact that Russell, in effect, subsequently
acknowledged that he knew the window had been broken,
Russell testified that, when he visited the Wilfong home to
discuss a settlement, Wilfong asked whether the Union
would pay for the broken window. Russell testified only
that he said , "I told him I didn't know whether the Union
would do something like that or not and I would not
agree to something to that effect." Russell did not
indicate in any way that he had protested that "the
Union" had not broken the window.
3. The fact that General Counsel' s witnesses attempted
to make the whole ugly episode, including the admitted
rocking of an automobile with two persons in it, sound
like friendly fun and games among schoolboys Such a
picture does not jibe with the realities of labor strife when
workers invoke their right to strike.
4. The fact that General Counsel's witnesses were
reluctant to admit that they were picketing across the
road when Wilfong drove up. Such testimony is totally
inconsistent with their statements that they were stopping
traffic in order to appeal for the support of arriving
employees and with their testimony that Wilfong
deliberately drove at the pickets. To credit their version
would require a finding that Jerry Wilfong's statement to
his father that he should not take David on to the plant
was alone sufficient to enrage Wilbur enough to cause him
to attack the pickets with his automobile even though the
pickets were not barring his path. Even though I have, as
indicated, some doubts about Wilfong's testimony as a
whole, I observed nothing about the man which would.
cause me to believe him capable of such a sadistic act.
5. The uncontradicted fact, testified to by Watson and
confirmed by Simms, that Watson told Simms just a few
minutes later that he had seen Russell and Marino
roughing up the occupants of a car on his way to the
plant.
On the basis, therefore, of the testimony of the
witnesses whom I have credited for the reasons just set
forth, I find the details of the' Wilfong incident and its
aftermath are as follows:
METAL PRODUCTS, INC. 841
C. The Wilfong Incident
David Wilfong began working for Respondent the week
of February 25. On Wednesday morning, February 28, his
father, Wilbur Wilfong, drove him to work in Wilbur's
1957 Chevrolet. Wilbur Wilfong was not an employee of
Respondent. The Wilfongs reached the vicinity of
Respondent's plant sometime between 6:30 and 6:45
A.M., just as day was beginning to break. The weather
was overcast with intermittent snow flurries. When Wilbur
Wilfong saw his older son, Jerry, also an employee of
Respondent and one of the pickets who had set up the
Union's picket line earlier that morning, he stopped his
car and rolled his window down part way in order to talk
to Jerry. Wilbur asked Jerry what was going on. Jerry
replied that, because of the strike, no one was reporting
for work, there was no point in Wilbur proceeding any
farther, and he might as well turn around and take David
home. As Jerry walked away from the car, Wilbur started
moving forward toward the picket line, still some distance
in front of him. At this moment Paul Watson, a foreman
for Respondent, drove his car around a curve in the road
and came in view of Wilfong's car. In Watson's car was
an employee of Respondent named Russell Grodie.8
Watson first saw the Wilfong car as it was moving from
the point where Wilbur Wilfong had stopped to talk to his
son Jerry to the picket line. As Wilbur Wilfong came to a
stop at the picket line, Watson brought his car to a stop
several car lengths behind it.
Angered by Wilbur Wilfong's apparent refusal to take
Jerry Wilfong's advice to turn around and go home, some
8 or 10 of the pickets swarmed around the Wilfong car
and began rocking it. There was much confusion and
shouting, including such commands as "kill the
[profanity]." Russell and Marino punched Wilbur Wilfong
through the partially opened window in the left front door.
David Wilfong was seated next to his father in the right
front seat. As he tried to move across the seat to his
father's aid, he was punched also. During the melee the
window was broken and the car sustained other damage.
Finally, as the hood sprang open, Wilbur Wilfong put his
car in reverse and backed up. He narrowly missed striking
Watson's car. He pulled to Watson's left, leaving room
for Watson to drive around him. As they did when other
supervisory and managerial personnel approached the
plant that morning, the pickets, recognizing his car, made
way for Watson. He drove through the picket line and on
to the plant. Wilfong continued to back away from the
picket line for some distance until he could stop, get out
of his car to close the hood, turn around, and drive away.
When Watson arrived at the plant he immediately told
Simms what he had observed. He named Russell and
Marino as two pickets he could identify and said that he
had seen them roughing up the occupants of the car. He
could not identify the persons in the car. Simms called the
police and reported the incident. McFerran arrived at the
plant shortly thereafter. Watson repeated his statements to
McFerran, again specifically naming Russell and Marino
as the two pickets who had struck the occupants of the
car. In an effort to try to find out who had been in the
Wilfong car, McFerran called both the city police in
Clarksburg and the sheriff's office without success. Later
in the morning, another foreman suggested that a new
employee, David Wilfong, might have been in the car.
McFerran called the Wilfong home and spoke to David.
David informed McFerran that he and his father were,
'Grodie did not appear at the hearing . His whereabouts were unknown
indeed, the two persons who had been roughed up by the
pickets. McFerran asked David to have his father call
McFerran.
When Wilbur Wilfong returned McFerran's call around
noon on February 28, they arranged to meet that
afternoon at a service station where Wilfong had left his
car. When they met, photographs were taken showing the
broken window. McFerran then took Wilbur and David
Wilfong to the office of W. Paul McWhorter, a
Clarksburg attorney. There the Wilfongs gave McWhorter
an affidavit which describes how they were beaten up at
the picket line that morning but which does not name
Russell and Marino as the pickets who had struck them.
Watson was also present in McWhorter's office that
evening.
On Thursday, February 29, McWhorter, on behalf of
Respondent, filed a complaint seeking a temporary
injunction against the picketing in the circuit court of
Harrison County, West Virginia. The motion was
supported by 27 affidavits, the Wilfongs' affidavit among
them. The other 26 affidavits refer only to mass picketing
and contain no reference to the Wilfong incident. The
complaint which McWhorter filed reads, in part, "said
pickets did swarm across the road leading to Plaintiff's
plant at any time when there was an oncoming vehicle
attempting to gain entrance into said plant. . . . Said
pickets finally attacked at least one vehicle and the
occupants thereof attempting to gain entrance to said
plant, striking and beating both of the occupants of said
vehicle, breaking a window and otherwise damaging said
vehicle and only one of the occupants of said vehicle was
an employee of the Plaintiff...."
Hearing was held on Respondent's motion on the
afternoon of February 29. Defendant' was represented by
David A. Jones, another Clarksburg lawyer. Watson and
Grodie testified for Respondent. Each named Russell and
Marino as the pickets who had assaulted the Wilfongs.'° A
temporary injunction enjoining violence and limiting
pickets at any one time to six, three at each of two
locations, was granted by the Court at the conclusion of
the hearing.
Sometime late in the week of March 3 Russell visited
the Wilfong home at Jerry Wilfong's invitation to discuss
with Wilbur Wilfong the dropping of their respective
criminal charges against each other. During the course of
their talk Wilfong brought up the damages to his car.
There was some discussion of whether the Union would
pay for them or whether a collection could be taken up
among the pickets. Russell said that he did not know
whether the Union would pay for the damages and that he
would not. No agreement was reached, and the two
criminal cases eventually went to trial as indicated above.
D. Conclusions
The General Counsel sought to try this case within the
format laid down in Rubin Brothers Footwear, 99 NLRB
610, namely, proof by the General Counsel that alleged
discriminatees have been refused reinstatement, followed
'Named as Defendants in the injunction case are 13 individuals , Russell
among them , and Local 7299 of the United Steelworkers of America,
AFL-CIO, the local which represents Respondent 's employees.
"I credit McWhorter's testimony in this regard over Jones 's denial. In
addition to the demeanor of the two men, I rely on the fact that Jones's
trial notes contain the word "Russell" under a note referring to
"Watson-foreman" and Jones 's testimony that he made the notation
because he planned to use Russell as a witness in response to something
Watson had testified to
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by proof by Respondent of its good faith belief that they
engaged in strike misconduct, followed by proof by the
General Counsel of their innocence, but Respondent early
assumed the burden of proving `not only its good faith
belief but the fact of Russell's and Marino's guilt. As my
recital of the facts indicates, I find that Respondent had a
good faith belief" that Paul Russell and Tony Marino, Jr.,
had assaulted Wilbur Wilfong and David Wilfong on the
morning of February 28 when it refused them
reinstatement on the morning of March 4. Its belief was
based on Paul Watson's accurate identification of Russell
and Marino a few minutes after the assault and his
continuing in that identification, e.g., at McWhorter's
office the evening of February 28 and before the circuit
court of Harrison County on February 29, at all times up
to the decision reached on March 3 to suspend them.
Since no substantive evidence was ever offered to
Respondent to refute Watson's eyewitness account nor
any reason advanced to throw a reasonable doubt on his
veracity or powers of observation, nothing happened at
any time to cast any doubt on Respondent's good faith.
I have also found that Russell and Marino did, in fact,
strike the Wilfongs. It follows that General Counsel has
not sustained his burden of proving that they did not.
Finally, it cannot be said that Respondent has
condoned Russell's and Marino's act in any way. On
March 2, when the Union agreed to call off its strike and
send the men back to work, Respondent had not yet made
its decision not to take back Russell, Marino, and
Washington. All of the discussion was about getting men
back to work as quickly as possible in order to establish
that the strike was over and that Respondent would be
able to meet its contracts. The Union might not, as
General Counsel argues, have agreed to end the strike if it
had been aware that Respondent had any reservations
about taking back some of the strikers. However, the fact
that the Union assumed something not so does not
establish that Respondent expressly committed itself to
take back all strikers regardless of their activities during
the strike. On the contrary, Respondent made no such
express commitment and the subject of strike misconduct,
whether in a general context or specifically with respect to
Russell, Marino, and/or Washington, never came up,
either then or the next day, March 3, when another
negotiating session was held. Marino begged off working
on March 2, before the decision not to take him back was
made. Both he and Russell were suspended on March 4
before either actually returned to work or was scheduled
to return to work by Respondent. Both were told that the
reason they were not taken back was "serious strike
misconduct at the picket line during the recent strike ...."
Therefore, there is no condonation of their conduct by
Respondent in that it actually agreed to take them back
with full knowledge of their misconduct and then reneged
or actually permitted them to return to work without
mentioning their misconduct and only sought to raise it
later.' 2 On the contrary, Respondent relied on Russell's
and Marino's picket-line misconduct before they ever
sought to return to work and without ever indicating that
it had made any other decision with respect to them, thus
precluding any finding from the sequence of events that it
forgave them.
Similarly, there is no condonation in Respondent's
reinstatement of the rest of the pickets who helped to rock
the Wilfong car but did not actually strike the Wilfongs
for the two acts differ sufficiently in kind and degree to
justify Respondent's different treatment of Russell and
Marino. And there is no condonation in Respondent's
reinstating other employees who engaged in fisticuffs
during the strike, for the suspension of Charles
Washington establishes Respondent's consistency in its
dealings with its employees. Regardless of whether
Washington did, in fact, beat up Roy Cayton and other
pickets, Respondent treated him the same as Russell and
Marino on the basis of its good faith belief that he had,
even though his action could be said to be anti-Union and
pro-Respondent while Russell's and Marino's was
anti-Respondent and pro-Union.
Since, therefore, Respondent terminated their
employment on the basis of its good faith belief that they
had beaten up the Wilfongs, the General Counsel has
failed to establish that they did not, and Respondent has
not condoned their acts, I am constrained to find that
Respondent was warranted in refusing reinstatement to
Paul Russell and Tony Marino, Jr., following the
February 28-March 2 strike because of their misconduct
on February 28. Tidewater Oil Company, 145 NLRB
1547; I. Posner, Inc., 140 NLRB 1313.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact, and upon
the entire record of this case, I make the following
conclusions of law:
1. Metal Products, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The allegations of the complaint that Metal
Products, Inc., has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act
have not been sustained. -
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.
"A point conceded by General Counsel in his brief
"Cf E.A. Laboratories , Inc., 80 NLRB 625; The Hoover Company, 90
NLRB 1114; Union Twist Drill Co., 124 NLRB 1143; Atlas Linen &
Industrial Supply, 130 NLRB 761; Packers Hide Association , Ina, 152
NLRB 655.