Ornamental Iron Work Co.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 473 (N.L.R.B. 1989)

ORNAMENTAL IRON WORK CO. 473
Ornamental Iron Work Co. and Iron Workers Shop-
men's Local Union No. 468 of the International
Association of Bridge , Structural and Ornamen-
tal Iron Workers , AFL-CIO. Case 8-CA-
20463
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 15, 1988 , Administrative Law
Judge Joel A. Harmatz issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
i The Respondent has excepted to some of the judge 's credibility find-
ings . The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings
We agree with the judge 's finding that the Respondent violated Sec.
8(a)(3) and ( 1) of the Act by failing to reinstate strikers Lee Vue, Zanna
Vue, Richard Marzich , and Daniel Amhauser following the unconditional
offer to return to work We agree that the Respondent presented no spe-
cific explanation for its failure to reinstate and find it unnecessary to rely
on the remainder of the judge 's discussions regarding this issue
The judge found , and we agree , that the Respondent 's sole asserted
reason for discharging striker Larry Winkler was his participation in a
physical altercation on the picket line with Respondent 's superintendent,
Rudy Domingo , and that Winkler's discharge violated Sec . 8(a)(3) and
(1) of the Act because Domingo provoked the fight and Winkler did not
engage in any misconduct in this respect . The judge assumed that at the
time of Winkler's discharge the Respondent was unaware of additional
picket line misconduct (a threat) attributed to him by employee Adolf
Kissner However, in its exceptions the Respondent states that, prior to
Winkler 's discharge , Kissner reported the alleged threat to William
Boesche , the Respondent 's president . Despite the fact that the Respond-
ent was aware , before Winkler's discharge , of Winkler's alleged threat to
employee Kissner , the Respondent stated at the unfair labor practice
hearing that Winkler was discharged solely for the physical altercation
with Domingo.
The judge credited the testimony of striker Louis Domico concerning
a conversation he had with truckdnver Karolina Glas near the picket
line. Because Domico 's testimony was uncontradicted, we find it unnec-
essary to rely on the judge's assumption that , if Glas had testified, her
testimony would not have been favorable to the Respondent
Chairman Stephens observes that given the judge 's crediting of testi-
mony concerning the alleged blocking of Roy Poe's truck, the incident is
distinguishable from the incidents found in Tube Craft, 287 NLRB 491
(1987), to constitute blocking action warranting discharge under the
Clear Pine standard.
Finally , we correct inadvertent errors . In fn . 3 the judge referred to
four strikers allegedly replaced by Respondent but it is clear from his
earlier findings that he meant to refer only to three such strikers . Similar-
ly, in fn . 16 the judge found that the Respondent received the Union's
offer to return to work on September 12; the correct date is October 12.
Member Cracraft finds it unnecessary to rely on the judge 's discussion of
the plurality opinion in Clear Pine Mouldings, 268 NLRB 1044, 1047
(1984), set forth in sec . III,D ,3,b, par 3 of the judge 's decision In light of
the absence of exceptions to the judge 's finding that the discharge of em-
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Ornamental Iron Work Co., Akron,
Ohio, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.2
1. Substitute the following for paragraph 2(a).
"(a) Offer the employees listed below immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions , without prejudice to their seniority
or any other rights or privileges previously en-
joyed:
"Arnold Adams Timothy Delagrange
Rodney P. Ford Louis M. Domico, Jr.
Richard A. Miller Larry P. Norris
Henry Petz William Stanley
James Swope Lee Vue
Zanna Vue Bruce Walgenbach
Larry E. Winkler Richard Marzich
Daniel Amhauser"
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Remove from its files any reference to the
unlawful discharges and refusal to reinstate and
notify the employees in writing that this has been
done and that these actions will not be used against
them in any way."
3. Substitute the attached notice for that of the
administrative law judge.
ployee Bill Graham did not violate the Act , Member Cracraft does not
pass on this finding
2 In the remedy section of his decision , the judge recommended that
the discrimmatees be offered immediate reinstatement to their former po-
sitions or substantially equivalent positions , and that backpay should be
computed to the date of a bona fide offer of reinstatement to substantially
equivalent positions . In accord with established Board policy , we note
that the discriminatees must be offered reinstatement to their former jobs
unless they no longer exist and that backpay must be computed accord-
ingly. In par 2(e) of the judge 's recommended Order, he sets forth a 28-
day period for the Respondent to notify the Regional Director about
what steps it has taken in compliance ; the correct period is 20 days.
295 NLRB No. 53
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership or activi-
ties on behalf of Iron Workers Shopmen's Local
Union No. 468 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, or any other labor organization, by dis-
charging economic strikers, by refusing to reinstate
unreplaced economic strikers on their uncondition-
al offer to return to work, or by in any other
manner discriminating against our employees be-
cause they have elected to engage in activity pro-
tected by Section 7 of the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer the employees listed below im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed:
Arnold Adams
Rodney P. Ford
Richard A. Miller
Henry Petz
James Swope
Zanna Vue
Larry E. Winkler
Daniel Amhauser
Timothy Delagrange
Louis M. Domico, Jr.
Larry P.Norris
William Stanley
Lee Vue
Bruce Walgenbach
Richard Marzich
WE WILL notify each of the above employees
that we have removed from our files any refer-
ences to their discharge or refusal to reinstate and
that these actions will not be used against them in
any way.
WE WILL make whole the above-named employ-
ees for any loss of earnings or other benefits they
may have sustained by reason of our discrimination
against them, less net interim earnings, plus inter-
est.
ORNAMENTAL IRON WORK COMPANY
Frank D. Motil, Esq., for the General Counsel.
H. Brian Rector and Gregory P. Rector (Rector and Associ-
ates), of Akron, Ohio, and William Boesche, President,
of Norton, Ohio, for the Respondent.
Carl W. Gray, Business Manager, of Cleveland, Ohio, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Akron, Ohio, on May 2,
3, and 4, 1988, upon an initial unfair labor practice
charge filed on October 13, 1987, and a second amended
complaint, issued on April 7, 1988, alleging that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging and/or refusing to reinstate striking employ-
ees, following their unconditional offer to return to
work. In its duly filed answer, Respondent denied that
any unfair labor practices were committed. Following
close of the hearing, briefs were filed on behalf of the
General Counsel and the Respondent.
On the entire record in this proceeding, including my
opportunity to observe the witnesses while testifying and
their demeanor, and after consideration of the posthear-
ing briefs, it is found as follows.
1. JURISDICTION
The Respondent is an Ohio corporation, with a place
of business in Norton, Ohio, from which it operates as a
subcontractor in the construction of residential and com-
mercial facilities. In the course of said operations, the
Respondent annually sells and ships from said facility
goods and materials exceeding $50,000 in value directly
to points outside the State of Ohio. The complaint al-
leges, the answer admits, and it is concluded that the Re-
spondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and it is
concluded that Iron Workers Shopmen 's Local Union
No. 468 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (the
Union) is now, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
ORNAMENTAL IRON WORK CO. 475
III. CONCLUDING FINDINGS
A. The Issues
This case derives from the Respondent 's failure imme-
diately to reinstate 18 economic strikers following an un-
conditional offer to return to work. The resultant 8(a)(3)
allegations are challenged by a variety of alternative de-
fenses, including assertions that certain strikers were re-
placed prior to the strike 's termination , ' and that 14
were discharged for their participation in strike miscon-
duct, while the remaining 4 were placed on a preferential
hiring list.
B. Preliminary Statement
The Respondent is a family held operation which dates
back to 1906 . Since 1935, its employees had been repre-
sented by Iron Workers Local 587 . Apparently, that
Local was placed in trusteeship by the International, and
in 1986 disclaimed interest in representing these employ-
ees. In consequence , the Respondent has had no collec-
tive-bargaining agreement covering its in-plant workers
since 1984, when its contract with Local 587 expired.
Subsequently , on May 29, 1987, following a Board-con-
ducted election , Iron Workers Local 468 was certified as
the exclusive representative of these employees.
Ensuing contract negotiations continued into the fall of
1987 . By late September , employee dissatisfaction
emerged with respect to the Respondent 's willingness to
schedule meetings . At a union meeting on Sunday, Sep-
tember 27, 1987,2 authority was conferred on the
Union 's negotiating committee to call a strike when it
was deemed necessary . In addition , during the ensuing
week , bargaining unit employees engaged in lunchtime
informational picketing . In doing so, they clocked out
for their lunch period , and carried informational placards
across the street from company property. This tactic ap-
parently failed to produce a satisfactory solution.
Thus, a strike commenced at midday on Thursday,
October 1. A week later, on October 8, a negotiating ses-
sion was held. In the course thereof, the Union elected
to terminate the strike and, in consequence, on that date,
the pickets were withdrawn . None of the strikers were
immediately recalled.
On Tuesday , October 13, the strikers met with em-
ployer representatives and were informed by the latter
that 3 strikers had been replaced , 4 would be put on a
preferential hiring list, and the remaining 11 discharged
for illegal strike activity . 3 The employees were also in-
formed that in consequence of the strike , the Respondent
would cease its fabrication activity.
i The Respondent 's position in this proceeding is not always a model
of clarity . It did elicit testimony from witnesses that , in consequence of
the effects of the strike , it suspended indefinitely the work of bargaining
unit employees . Yet, the Respondent does not presently suggest that it
relies on this step as supporting any viable defense. Nevertheless, the
issue is analyzed herein because an attempt to resurrect the issue at some
point in the future is not beyond possibility.
2 Unless otherwise indicated all dates refer to 1987.
8 During the hearing , the Respondent revised its position slightly by
contending that the four replaced strikers were also discharged for strike
misconduct
C. The Offers to Return to Work
A threshold issue is presented as to when the Union
perfected an unconditional offer to return to work. The
Respondent contends that this did not occur until Octo-
ber 12, a date after replacement of at least three, and
possibly all strikers . Thus, William Boesche , Respond-
ent's president, testified that on October 7 , the decision
was made to contract out all fabrication work : "At least
until we resolved our labor difficulties ." He also avers
that on the morning of October 8 , he decided to begin
looking for replacements for the strikers.4
The relevant facts show that on October 8, probably
around midday , all pickets were withdrawn . As hereto-
fore indicated, earlier that morning, a negotiating meet-
ing was held in the presence of Federal Mediator Tom
Mick . The parties were separated . Ultimately , union rep-
resentatives were informed that the Respondent agreed
to utilize the Federal Mediation Service for arranging
and scheduling future meetings . As a result , the Union,
being of the view that the stoppage had served its pur-
pose, elected to end the strike . Mick was informed of the
Union 's position . According to Brian Rector , the Re-
spondent's negotiating agent , Mick then approached him,
telling him that he thought the strikers were going to
return to work , and that, if they did, a telegram would
be sent.5
Consistent with its position , at 11:10 a.m., on October
8, the Union dispatched the following mailgram to the
Respondent:
This is to advise you that the work stoppage that
commenced on 10-1 -87 is hereby terminated and all
employees will be reporting to work at their normal
starting time on October 9, 1987 . The above action
is being taken as a result of the Company's committ-
ment to schedule meetings and bargain in good
faith.
A confirmation copy of the mailgram reflects that this
message was delivered to Brian Rector and William
Boesche . The time of delivery is not indicated . 6 The evi-
4 As I understand Boesche 's testimony, he on that date also decided to
discharge those strikers that he believed engaged in misconduct
5 Brian Rector was Respondent 's spokesman in the course of the con-
tract negotiations . It also appears he was among those counseling Re-
spondent during the entire period relevant to this proceeding . His testi-
mony, in many areas , struck as improbable and an argumentative by-
product of a desire on his part to shore up his advocacy At the same
time , Mick did not testify. Thus , there is no probative alternative to Rec-
tor's version of what Mick told him . Nevertheless, Rector's account is
accepted solely to the extent of its admission that the Respondent was
afforded some information concerning the Union 's intent to end the strike
on that morning.
9 See G .C. Exh . 6. The General Counsel argues that the above tele-
gram substantiates testimony by union representatives that they had au-
thorized mediator Mick to notify Brian Rector of termination of the
strike . While I would agree with this view, as Mick did not testify, Brian
Rector's account is the sole evidence of what Mick communicated to the
latter. The issue here is not what the Union intended , but what was com-
municated to the Respondent . In addition , the testimony by Union Repre-
sentative Gray , partially corroborated by stoker Ronald Buck , that Mick
returned to inform the union committee that Rector had been told that
the strike had ended, is also a hearsay version of what actually took place
between Mick and Rector.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence is uncontradicted that on the afternoon of October
8, picketing ceased , and all vestiges of strike action were
removed from areas proximate to the Respondent 's plant.
On Friday, October 9, the 18 former strikers appeared
at the plant at 7 a .m. Although the plant had been open
throughout the week, on October 9, the plant was
closed , no one was present , and the gates were locked.
The men remained for about an hour, until Union Busi-
ness Agent Carl Gray was contacted . The latter advised
the men to leave, but to report again on Monday, Octo-
ber 12, at their regular starting time . Respondent offers
no explanation for any late start or failure to operate that
morning.
The employees again reported to the plant on
Monday, October 12. Once more the gate was locked,
but Brian Rector soon appeared . Rector gave Ron Buck,
the Union 's chief shop steward and a member of the ne-
gotiating committee , a yellow pad headed "A LIST OF
MEN DESIRING REINSTATEMENT." Buck credi-
bly testified that he asked Rector what was meant by the
term "reinstatement" and whether the men would be
given a new rate or hired as a new man. Rector admit-
tedly responded that this "would be determined" after he
was informed as to who wished to return to work. Buck,
unsure of the list's implications , telephoned Gray who
advised against signing any document until Gray had an
opportunity to review it. According to credited testimo-
ny of Buck, he returned the pad to Brian Rector, advis-
ing the latter that Gray would have to look over the
paper and would get back to him . Buck then reported
what had transpired to his coworkers , and it was agreed
that the 18 former strikers would try again the next
morning.'
That day at 2 p.m., Gray transmitted another mail-
gram to the Respondent , as follows:
This is to advise you that the action taken by the
Company on Friday, 10/9/87 and Monday,
10/12/87 is being construed as a lockout by the
Union. This is also to advise you that all employees
will report again to work unconditionally on
10/13/87 at their regular starting time.8
On Tuesday, October 13, at 7 a. m., at least 17 of the
former strikers , consistent with the mailgrams previously
sent, presented themselves at the plant . On this occasion,
the employees, together with their union representative,
Gray, were invited by Brian Rector into the plant,
where, in the presence of various management officials,
Rector announced that 3 pickets had been replaced, 4
9 The General Counsel correctly observes that, if the strikers had pre-
viously established their entitlement to reinstatement as unreplaced eco-
nomic strikers, the Respondent could not impose any conditions on the
discharge of its obligation to offer immediate reinstatement In that con-
text, the failure to either sign the list , or designate in writing those who
desire reinstatement would in no sense excuse the Employer's obligation.
Moreover , considering the fact that all 18 former strikers were present at
the plant , Rector could rightfully assume that all sought a return to
work, and it is difficult to accept that the list was in furtherance of any
legitimate business exigency.
8 See G .C. Exh. 7.
had been placed on a preferential hiring list, and the re-
maining 11 had been discharged.9
On the issue of when the Respondent received notifi-
cation of the unconditional offer to return to work,
Boesche testified that he did not receive the Union's Oc-
tober 8 mailgram until Monday , October 12. Brian
Rector testified that prior to the early morning hours of
October 12 , he had heard rumors that the Union had
sent "telegram" indicating that the men wanted to return
to work, but that he had not received it and, to his
knowledge , a copy had not been received by the Compa-
ny either. There is no evidence to the contrary. Never-
theless, the issue is not free from doubt . For I have
strong reservations concerning the trustworthiness of Re-
spondent 's witnesses . On balance , however, this alone, in
the circumstances , does not merit an inference that the
Respondent actually received the required notification
prior to October 12. The probability that mailgrams
would have been received earlier is not so strong as to
warrant a conclusion that Respondent 's testimony was so
irrational as to suggest that the opposite is true . It is ar-
guable that Respondent, prior to that date , had every
reason to suspect the Union's intention in this regard.
This is particularly so when considered in the light of
the termination of picketing on October 8, the unex-
plained failure to open the plant at customary hours on
October 9, and Rector 's attempt to secure specific evi-
dence of those attempting to return to work in the early
morning hours of October 12. However, the Respondent
is entitled to formal notification that the strike has ended
unconditionally and, absent specific , primary evidence of
when this occurred, there is no basis for concluding that
it was perfected prior to October 12.1 0 It is in this light,
that the Respondent 's affirmative defenses concerning
the permanent replacement of the strikers must be evalu-
ated . The Respondent has the initial burden with respect
to all such defenses.
D. The Respondent 's Defenses
1. The hiring of permanent replacements
Boesche testified that strikers Norris, Stanley, and
Walgenbach were permanently replaced . Undisputed
company records show that on October 8, Richard Ben-
nage was hired and commenced work as a truckdriver."
9 The Respondent 's witnesses seem to agree that the decision to take
these steps was made much earlier If this were the case , Rector's request
for a list of those desiring reinstatement on October 12 amounted to a
cruel charade , unless, that is, the Respondent 's position vis-a-vis the stnk-
ers had not crystalized as of that date.
10 Were I to have concluded otherwise , I would disagree with the Re-
spondent that the October 8 mailgram was conditional , and for that
reason failed to convey a valid offer to return . Nothing in that letter re-
quires the Employer to adopt any measures or take steps beyond what, in
the circumstances, the law required it to do Although the Respondent
cites Mid-County Transit Mix Co ., 264 NLRB 782 (1982), that decision
hardly supports its view. There, the union's letter of April 7 stated that
employees "wanted to commence negotiations for a collective bargaining
agreement ." The judge, with Board approval , concluded that this decla-
ration failed to impose an unlawful condition upon the otherwise uncon-
ditional offer to return to work . 264 NLRB at 790.
11 This confirms the testimony of Boesche that at least as of that date
efforts commenced to obtain permanent replacements for the strikers.
ORNAMENTAL IRON WORK CO. 477
According to the Respondent 's formulation , it decided to
replace the strikers with the least seniority first . Consist-
ent therewith , Bennage replaced Larry Norris.
Firstly, it is noted that Respondent 's decision to re-
place along seniority , rather than occupational lines, was
a unilateral election . It was inconsistent with the tradi-
tional rights of strikers under the law. Norris was a
welder . There is no indication that he ever performed
any truckdriving duties . The right to reinstatement at-
taches to the "job for which the striker is qualified." See,
e.g., NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378
(1967). It is true that seniority may be invoked to resolve
competing claims by strikers for a single vacancy.
Beyond that, however, the employer may not frustrate
reinstatement to the striker's former position unless un-
available in consequence of legitimate considerations.
Thus, as the Respondent failed to demonstrate that a
welder was hired prior to the unconditional offer to
return to work, it follows that the Respondent could not
lawfully deny reinstatement to Norris on grounds that he
had been permanently replaced.
As for the alleged replacement of Stanley and Walgen-
bach , Respondent's records reflect that poststrike hiree
John Ward did not begin work until October 13 and that
Gregory Berkey did not start until October 19. There is
no specific evidence as to when these individuals were
interviewed , or when Respondent committed itself to
hiring them . To the extent that Brian Rector's testimony
is susceptible to an interpretation that these replacements
were informed that they had been hired on October 8
and 9, he was not believed . Accordingly , it is concluded
that the Respondent has failed to demonstrate that eco-
nomic strikers Walgenbach and Stanley were permanent-
ly replaced before Respondent was made aware that an
unconditional offer to return to work had been made on
their behalf. See, e .g., Harvey Engineering Corp., 270
NLRB 1290, 1300 (1984).
2. The preferential hiring list
Four of the strikers , namely, Lee Vue, Zanna Vue,
Richard Marzich , and Daniel Amhauser were placed on
a preferential hiring list. The Respondent explains that
this action was taken because this group had not engaged
in picket line misconduct . However, there is no specific
explanation as to why immediate reinstatement was not
conferred in their case . It is entirely possible that their
employment opportunities may have been affected by the
alleged decision on the part of Respondent to discontinue
fabrication work. However, the Respondent makes no
specific claim to this effect. Unquestionably, the strikers
were informed of this decision on October 13. Moreover,
at the outset of the hearing, Brian Rector mentions the
elimination of fabrication , but goes no further. In the Re-
spondent's posthearing brief, this significant decision is
not even mentioned , let alone argued as the predicate for
an assertion that work of any of the strikers disappeared
in consequence thereof. Instead of linking the fabrication
cutback with the need for a preferential hiring list, the
Respondent merely asserts that Amhauser, Marzich, and
the Vues, like Norris , Walgenbach , and Stanley were not
given work "because sufficient replacements had previ-
ously been hired." 12
The Respondent's failure to raise the defense is possi-
bly attributable to several considerations . First, the evi-
dence does not establish that as of October 12, when the
offer to return to work was received , the Respondent
had actually committed all or part of the struck work to
outside contractors.13
Secondly, testimony concerning the subcontracting
raises additional questions as to the legitimacy of the un-
derlying motivation . The following colloquy between
William Boesche and Brian Rector provides the pivotal
frame of reference.
Q. Okay. So it was your decision to contract the
work out that was involved with these contracts.
Did you make a decision to suspend fabrication at
the company?
A. Yes.
Q. And how long-in your mind , how long did
you plan on having the fabrication suspended?
A. I had nothing definite in mind . At least until
we resolved our labor difficulties, I thought it
would be necessary.114
Whatever the underlying intent , subcontracting as a
means of replacing protected strikers is a sharply limited
concept . Thus, the Board has held that temporary sub-
contracting during the course of a strike is permissible,
but may only be continued beyond termination of the
strike "where dictated by the exigencies of the strike, or
because of the threat of imminent strike ." See Land Air
Delivery, 286 NLRB 1131, 1132 fn. 8 (1987). The limited
utility of this device was underscored by the Board as
follows:
[P]ermanently contracting out the work of unit em-
ployees is not equivalent to replacement of one em-
ployee by another . . . . With regard to replacing
the strikers , the Respondent had two options to
assure its continued operation : the Respondent had
12 It is noteworthy that on October 13, Brian Rector announced that
three employees had been replaced. At that time there was no suggestion
that this group had been discharged , and it is curious that Respondent
would have categorized them separately if they , like the remaining 11,
had been discharged for strike misconduct . Moreover , those allegedly re-
placed were not placed on a preferential hiring list , as would be required
under Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F.2d 99 (7th Cir.
1969), cert denied 397 U.S. 920 ( 1970) It was my impression that the
belated claim that they were discharged was an afterthought which took
the form of a last-minute shift in position to cover this omission
19 The Respondent did not afford the Union advance notification and
an opportunity to bargain concerning the issue , thus raising a collateral
question of legality . See, e .g., American Cyanamid Co., 235 NLRB 1316
(1978) Moreover , since the Union was kept in the dark , the opportunity
for discerning whether Respondent did or did not become inextricably
bound to vendors before formal termination of the strike is further be-
clouded . The Respondent 's own representatives seemed confused as to
the scope of this decision . Thus, its vice presidents, Beasley and Alexan-
der, described the decision as permanent . As shall be seen, Boesche did
not agree
14 Boesche does not define the nature of the resolution required. Since
he claims that at termination of the strike , 14 of the 18 union supporters
had been discharged , one might argue that it was his intention to restore
fabrication only upon total demise of the Union
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the right to hire permanent employee replacements,
the strikers thereby retaining reinstatement rights in
accordance with Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (1969), cert. denied 397
U.S. 920 (1970); or the Respondent had the right to
contract out the work temporarily for the duration
of the strike in accordance with American Cyana-
mid, supra. The Respondent's admitted course of
action-unilateral permanent contracting out of the
work-is, absent proof that the options set forth
above were unavailable to it, not permissible under
the Act. [Footnote omitted.]
Here, the decision to contract out took place late in
the strike and was to continue into the indefinite future.
The only real justification for this measure was Respond-
ent's inability to meet its obligations to certain customers
during the strike. While it may have been perfectly le-
gitimate to meet commitments to existing customers by
utilizing subcontractors during that period, no acceptable
reason is offered for continuing that process after the
work force became available. Here, following the offer
to return to work, there was no suggestion that a follow-
up strike was imminent or reasonably threatened. Hence,
the Respondent's justification for poststrike contracting
merely rests upon the inevitable consequences of strike
action. Were employers free to eliminate unit work in-
definitely on this basis, the defense which would inure is
of such universality as to strike at the heart of the funda-
mental right to strike. In short, an employer's speculative
assertion that continued subcontracting is a requisite
hedge against future strike-related losses falls within the
category of business judgments ineffective to validate
that which is "inherently destructive of employee inter-
ests." NLRB v. Great Dane Trailers, 388 U.S. 26, 33
(1967).
In this light, considering the assigned reason for the in-
definite scope of the contracting out, as well as the ques-
tionable utility of this device as a basis for replacing
strikers, it is understandable that the Respondent, in its
posthearing brief, declined to mention the issue as among
the defenses to its failure to reinstate the economic strik-
ers. But should the matter be raised in the future, it is my
conclusion, on the above reasoning, that the subcontract-
ing did not constitute a legitimate basis for denying im-
mediate reinstatement to the strikers following their un-
conditional offer to return to work.
3. The misconduct discharges
a. Preliminary statement
Under established Board precedent, the discharge of a
striker is presumptively unlawful. However, rebuttal is
substantiated on the employer's showing of an honestly
held belief that the striker engaged in the misconduct for
which he or she was discharged. See Rubin Bros., 99
NLRB 610 (1952), enfd. 203 F.2d 486 (5th Cir. 1953).
The quality of the proof necessary to substantiate the
employer's responsibility in this regard was articulated in
General Telephone Co. of Michigan, 251 NLRB 737, 739
(1980), as follows:
[T]he burden of establishing an "honest belief" of
misconduct requires more than the employer's mere
assertion that an "honest belief" of such misconduct
was the motivating force behind the meting out of
discipline. Meeting the burden also requires more
than a general statement about the guidelines used
in establishing the alleged "honest belief." Rather, it
requires some specificity in the record, linking particu-
lar employees to particular allegations of misconduct.
[Emphasis added.]
Obviously this standard is not satisfied where the under-
lining facts are unknown at the time of discharge. See,
e.g., Axelson, Inc., 285 NLRB 49, 52 (1987). In addition,
not all misconduct will suffice to substantiate the em-
ployer's initial burden. The strikers will be disqualified
only where the employer's good-faith belief is supported
by "misconduct . . . [which] under the circumstances ex-
isting . . . reasonably tend[ed] to coerce or intimidate
employees in the exercise of rights protected under the
Act." Clear Pine Mouldings, 268 NLRB 1044, 1046
(1984); Lima v. NLRB (Keco Industries), 819 F.2d 300
(D.C. Cir. 1987).16
Upon proof of the requisite elements by the Respond-
ent, the burden shifts to the General Counsel to establish
either that the conduct was not sufficiently serious to
support discharge, or that misconduct did not in fact
occur. See, e.g., NLRB v. Burnup & Sims, 379 U.S. 21
(1964); Clear Pine Mouldings, supra.
The General Counsel variously contends that Re-
spondent has failed to meet its initial burden under Rubin
Brothers, supra, that the misconduct did not in fact
occur, and, in any event, the discharges were pretextual
and designed to "enable Respondent to claim that it had
no further obligation to bargain regarding the bargaining
unit which had chosen to strike."16
The Respondent in its posthearing brief names 14 strik-
ers as having engaged in "blocking the ingress and egress
of the Respondent's facility, threatening and/or intimi-
15 The Respondent argues that conduct in contravention of its internal
policies would support legitimacy of the discharge . In this connection it
is argued because several pickets were observed drinking beer on compa-
ny property , and because such conduct contravenes an established rule,
the discharges of these individuals must be upheld . See R. Exh. 10. First-
ly, the pickets may have been on company property during the period in
question, but they were neither working under the influence of alcohol,
nor using alcohol dung working hours . Hence, their action did not fall
within the scope of the Employer 's proscription . More importantly, how-
ever, the Respondent 's contention assumes that an employer 's internal
regulation of conduct takes precedence over Board policy . On the con-
trary , the Board's definition of disqualifying conduct is the exclusive ref-
erence for determining whether there is legitimate foundation for a strik-
er's discharge. In this instance, the apparently temporary presence of al-
coholic beverages on the picket line is not shown to have resulted in in-
toxication of any of the pickets , or to have corresponded to any danger-
ous condition on the picket line. Accordingly , the conduct was not
shown as having any tendency to contribute to a coercive aura.
16 This claim bears little relationship to the proven facts . The circum-
stantial evidence plainly is not so strong as to deny the Respondent the
right to terminate those who have engaged in serious misconduct More-
over, in rejecting the claim of pretext , it is noted that no significance at-
taches to the General Counsel 's claim that the Respondent delayed in in-
forming the strikers of misconduct discharges until several days after the
picketing had ended. As heretofore indicated, the Union's offer to return
to work was not received by the Respondent until September 12.
ORNAMENTAL IRON WORK CO. 479
dating employees and customer[s], damage to employee
property and consuming alcoholic beverages which were
unprotected by the Act and contrary to established com-
pany and public policies." The Respondent contends that
the discharges were in consequence of a decision-making
process that went on throughout the strike. Participating
in that process were Boesche, Brian Rector, Bob Beas-
ley, Respondent's vice president in charge of estimating
and sales, and John Alexander, Respondent's vice presi-
dent in charge of engineering . In terms of specifics, these
individuals, together with Steel Salesman Mark Denham
and Shop Superintendent Robert Michin, were able to
relay first-hand or reported information concerning only
a handful of incidents, in which specific misconduct is at-
tributed to identified strikers.
b. The blocking of plant access
According to Boesche, certain strikers were dis-
charged solely because they blocked the plant entrance.
The group included Arnold Adams, Tim Delagrange,
Rodney Ford, Richard Miller, Larry Norris, Harry Petz,
Bill Stanley, and Bruce Walgenbach. As for his personal
knowledge of their alleged offense, Boesche revealed as
follows:
I didn't see any trucks blocked. It was that the cus-
tomers related to me . . . by phone, and what our
own employees related to me.
Nevertheless, Boesche does purport to have witnessed an
incident involving a company truck driven by Jim
Swope, a supporter of the strike. He relates that on the
first day of the picketing, as Swope approached the
plant, he had to slow down because "the pickets were
ready to make him halt at the gate." Boesche could not
identify the pickets involved from his point of observa-
tion, and apparently took no steps to find out who they
were.
Brian Rector testified that he witnessed another inci-
dent in which trucks were obstructed. He relates that at
the time Henry Petz, Larry Norris, Tim Delagrange, and
Richard Miller were on the picket line. As I understood
his testimony, he noticed Petz and Norris standing in
front of a truck, and Delagrange and Miller adjacent to
it. According to Rector, he informed Petz that he would
have to move from the front of the vehicle and allow it
to pass . Petz allegedly balked, indicating that he would
not move, whereupon Rector indicated that he would
have to have him moved. Rector then instructed Beasley
to call the police. After consulting with the driver and
finding that he wished to cross the picket line, Rector as-
serts that he asked him to wait. According to Rector,
when the police arrived, Petz and Norris moved and the
truck was allowed to pass . There is no indication that
Delagrange and Miller in any physical fashion impeded
access of the vehicle.''
17 Beasley does not mention the incident . Boesche does not assert an
awareness of it at the time he decided to discharge strikers . Petz admits
to an incident where he was told by Rector to move in order to allow
the truck's entry or he would have to move Petz.
One might give the Respondent benefit of the doubt
and infer that the incident was reported to Boesche and
constituted the foundation for his discharge of Petz and
Norris. However, the inquiry is not ended simply by a
finding that Respondent had a reasonable basis for be-
lieving that Petz and Norris obstructed a vehicle's entry
to the plant. It is true that in Clear Pine Mouldings, supra
at 1047, the Board stated as follows:
We believe it is appropriate, at this point, to state
our view that existence of a "strike" in which some
employees elect to voluntarily withhold their serv-
ices does not in any way privilege those employees
to engage in other than peaceful picketing and per-
suasion . They have no right, for example, to threat-
en those employees who, for whatever reason, have
decided to work during the strike, to block access
to the employer's premises, and certainly no right to
carry or use weapons or other objects of intimida-
tion. As we view the statute, the only activity the
statute privileges in this context, other than peaceful
patrolling, is the nonthreatening expression of opin-
ion, verbally or through signs and pamphleteering,
similar to that found in Section 8(c).
However, this general statement of the law is not taken
as impinging upon the traditional right of pickets to take
steps necessary to perfect a verbal appeal to a driver
headed for a strike-bound facility. Specific precedent
confirms that, to this end, an instantaneous blockage,
which allows those seeking access to freely choose be-
tween disregarding or honoring the picket line, fails to
convert protected into unprotected strike action. For
many years the Board, with court approval, has recog-
nized a distinction with respect to such conduct, stating:
"momentarily blocking cars by mass picketing, fails to
disqualify a striker from reinstatement." See Coronet Cas-
uals, Inc., 207 NLRB 304, 305, and cases cited at fn. 9
(1973). Clear Pine Mouldings, supra, fails to address this
distinction, and until the Board rules otherwise, a mo-
mentary, otherwise noncoercive blockage will fall within
that form of mischief classified as "minor acts of miscon-
duct [which] must have been in the contemplation of
Congress when it provided for right to strike."
In this regard, Petz denied that there was any physical
obstruction of the truck on a prolonged basis . Roy Poe,
the driver of the Chippewa Steel vehicle, although called
by the Respondent, afforded an account more consistent
with that of Petz than that related by Rector. Thus,
upon examination by Rector, Poe related as follows:
Q. Did you ever have an occasion to drive the
Chippewa company's truck to the Ornamental Iron
Work Company?
A. Yes, I do.
Q. And did you have occasion to drive over
there when there were pickets at the Ornamental
Iron Work Company?
A. Yes.
Q. Can you remember what day that was, Mr.
Poe?
A. No, I can't.
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Okay. When you were leaving your company,
Chippewa, to drive your truck over there, were
there any specific instructions given to you by your
superior?
A. Yes, there was.
Q. Can you explain to us what those instructions
were?
A. I left at a certain time-specific time that I was
told to leave and I was told to go there and pick up
a load of steel. I was told to go in if I could go in,
but not to cause any trouble. And that the police
would arrive at a certain time to escort me in.
Q. So in other words, your trip from Chippewa
to Ornamental Iron was a specifically designed trip
and the police were to be there to get you in if you
had any trouble. Is that true?
A. Yes.
Q. Did you go over to Ornamental Iron Work?
A. Yes.
Q. And can you tell us in your own words what
events took place when you arrive there?
A. I arrived there at the front gate. There was
two men standing blocking the gate . I pulled up and
said I come to get a load of steel . They said, "We're
on strike. Would you honor our picket line?" I
pulled back out and waited for the police to come.
Q. Did the men stand directly in front of your
truck?
A. Yes, they did.
Q. Did the police eventually arrive?
A. Yes, they did.
Q. Did the police escort you across the picket
line?
A. No.
Q. Did they insure your entrance to the plant?
A. Yes.
Thus, Poe relates, contrary to Rector, that the ar-
rangement with the police was made prior to his arrival.
Furthermore, the latter's specific testimony that he, after
hearing the picket's appeals, "pulled back out and waited
for the police to come," is clearly indicative of a momen-
tary intervention, which produced a voluntary decision
on the part of the driver to adhere to their wish, at least
temporarily. In the circumstances, based on the testimo-
ny of truckdriver Poe, I am convinced that the incident
did not occur as described by Rector, and that the pick-
ets did not physically prevent the truckdriver from en-
tering the plant for any prolonged period.
Accordingly, it is concluded that the instantaneous
blockage on the part of Petz and Norris was solely to
gain the attention of the driver in order for them peace-
ably to deliver their message, and hence represented con-
duct for which they could not be discharged.
Boesche described a group of five other strikers as
having been discharged because they "blocked traffic."
Included were Adams, Delagrange, Miller, Stanley, and
Walgenbach. In their case, not a shred of evidence was
offered identifying them with any blockage of any vehi-
cle be it that of a customer, supplier, visitor, or employ-
ee. Nor did anyone testify to an awareness of any specif-
ic situation in which these employees blocked access to
the plant. Thus, Respondent' s case against these strikers
rests on a bald allegation which fails to cast any light
upon "the guidelines used in establishing the alleged
`honest belief."' Thus, as to the foregoing strikers, the
Respondent has failed to meet its initial burden consistent
with the dictates of General Telephone, supra; the dis-
charges of these strikers cannot be upheld on the raw al-
legation that they blocked access to the plant.
c. Specific misconduct
(1) Conduct toward nonstriker Adolf Kissner
Adolf Kissner is a truckdriver, who had been em-
ployed by the Respondent for 31 years. He was basically
unsympathetic to the Union. On October 1, the first day
of the strike, he did not return to the plant until 4 or 4:30
p.m. As he pulled his truck into the driveway, he was
surrounded by pickets and stopped his vehicle. Accord-
ing to Kissner, striker Charles Currence, opened the
door to the truck, pulled Kissner's leg, while stating "get
out." Kissner declined, whereupon Currence referred
him to a nearby 5 gallon drum, stating "If you don't get
out, we're going to get that gasoline and pour it on your
truck and blow your ass away." Kissner claims that Cur-
rence pulled him from the truck, but that he was allowed
to remove his CB radio, and then went directly to his
car, and drove home. Thus, Kissner was precluded from
returning the truck to the plant. Kissner added that as he
was walking to his car, striker Winkler yelled, "get the
fuck out of here, or we're going to fuck you in the ass
and kill, you son-of-a-bitch." In addition, Domico alleg-
edly "mumbled" to Kissner that he had better get out of
here. 18
It is the sense of Boesche's testimony that the incident
was reported to him and that Charles Currence and
Louis Domico were discharged in consequence thereof.
However, since Boesche named Winkler as having been
discharged for his involvement in other matters; one
could fairly assume that Boesche, at the time of dis-
charge, was not aware of any misconduct on Winkler's
part toward Kissner.19 Indeed, there is no evidence that
any other representative of management, was aware of
any such threat. Accordingly, the Respondent has failed
to substantiate that the conduct Kissner attributes to
Winkler in any way contributed to the latter's discharge.
In the case of Domico, he denies that he threatened
Kissner. He insists that he was not even in the immediate
area of Kissner's truck at the time. In any event, the
remark imputed to him does not imply that any action
was contemplated by Domico, and the statement is too
ambiguous to fall within the definition of disqualifying
misconduct set forth in Clear Pine Mouldings, supra. Ac-
cordingly, the conduct attributed to Domico offers no
substantial basis for a legitimate discharge.
Currence, who admittedly confronted Kissner at the
driver's side of the vehicle, denies having threatened
Kissner, but states that he advised Kissner that the men
1 9 Kissner described Domico 's remark as a threat.
19 Winkler admitted to being in the area , but claims that he said noth-
ing to Klssner other than to request that he join the picket line, and nei-
ther used profanity , nor threatened Kissner
ORNAMENTAL IRON WORK CO. 481
were on strike , that he "wished" that Kissner would get
out of the truck and go out on the picket line, or "go
home." As Kissner was believed over Currence, the
latter is deemed to have transcended lawful picket line
activity through a serious threat of physical harm. In
accord with Clear Pine Mouldings, his conduct provided
grounds for legitimate discharge . Accordingly, the
8(a)(3) and ( 1) allegation in his case shall be dismissed.20
(2) Conduct towards nonstriking employee
Guy Walker
Walker was the only employee present at the plant on
October 1, when the strike began, who declined to par-
ticipate and continued to work through the balance of
the day. He claims that as he left work at 5:30 that
evening, striker Rodney Ford stepped in front of his car,
forcing Walker to stop. As he did so , striker Bill Graham
Kicked his car door . Mark Denham , a steel salesman em-
ployed by the Respondent , confirms that he was in the
car which followed Walker as he left the plant that day.
However, he could not identify Rodney Ford as among
the employees that blocked the car, but that Charles
Currence was the only one he could single out , though
he was aware that others were present.
Firstly, the Respondent has suffered a proof failure
with respect to Rodney Ford. Boesche simply claims
that Ford was discharged for blocking the entrance to
the plant . He does not describe the incident . He does not
acknowledge that he received information that it was
Ford who stepped in front of Walker's car . Walker was
involved in several confrontations , and although he
claims to have reported the incidents to his supervisor,
Robert Michin , the record is silent as to what Michin
was told . Michin does not relate that he reported, or was
aware of, the fact that Ford had been implicated by
Walker. In this light, considering the conflict as to who
had blocked Walker's vehicle, in the absence of any evi-
dence that the conflict had been resolved, or that
Boesche was aware of the accusation against Ford, it is
concluded that he had no reasonable basis for belief to
this effect . In any event , since Walker describes the
blockage as "momentary ," and since there is no evidence
of any predesign to inflict damage to his vehicle, it is
concluded that the evidence does not support a finding
that Ford had conspired with Graham to that end. In
sum, although Ford did not testify, it is concluded that
the incident provided Respondent with no reasonable
basis for discharging him.
In the case of Graham, Boesche simply testified that
he was discharged for "an incident on the picket line
other than just blocking traffic." On the total record, it is
20 In so finding, the Respondent has been given the benefit of the
doubt as to the basis for this discharge. The defense was litigated in am-
biguous style . Despite my prodding, the grounds for discharges were
seldom articulated in specific terms , so as to afford a clear understanding
as to just what acts of misconduct were attributed to what striker as the
foundation for discipline In addition , there was little indication on an in-
dividual discharge basis, as to just what evidence was available to
Boesche or its source . Nonetheless , in the case of Currence , I am willing
to assume that Respondent met its burden through Boesche's testimony
that he was discharged because of his involvement in "the incidents on
the picket line." The reference , although vague , on the total record, is
construed as founded upon the threat to Kissner.
fair to give the Respondent the benefit of the doubt that
this reference was to the Walker incident . Concerning
the incident , Graham testified that no one blocked Walk-
er's vehicle , but that as his car passed , he hollered, re-
peatedly calling Walker a scab . He claims that Walker
paused and then continued on. As against Graham, the
testimony of Walker and Denham was preferred. I did
not believe that they contrived the incident from whole
cloth. Moreover , Walker related that the dent remains in
his car, thus indicating that more than a general tap was
involved. This kind of disrespect for the property of
others on a picket line, albeit isolated, signals a propensi-
ty towards retribution which makes it at least equatable
to the verbal threats considered in Clear Pine Mouldings.
In sum, it was a physical act, perhaps not itself violent,
which tended to instill fear of harm . See, e .g., Gem Ure-
thane Corp., 284 NLRB 1349, 1353 (1987). Accordingly,
it is concluded that Respondent lawfully discharged
Graham in consequence of this incident and the 8(a)(3)
allegation in this respect shall be dismissed.
Walker's second encounter with a striker occurred on
the morning of October 2, when he reported to work.
Thus, as he drove his vehicle onto the office parking lot,
he avers that he was met at the door by Ronald Buck.
Buck held a baseball bat as he advised Walker that if he
got out of the car, he would use the bat on Walker's
head. Walker obliged. Later, other pickets arrived, and
after Walker convinced them that he would not work,
but simply would pick up his paycheck and leave, they
permitted him to enter the plant.
In this connection , Boesche testified specifically that
the incident was brought to his attention by Bob Beasley
and Bob Michin . This is the sole instance where Boesche
described the basis for his action in detail . Based thereon,
it is concluded that Respondent discharged Buck with a
reasonable basis for belief that he engaged in conduct of
a disqualifying nature . Striker Henry Petz confirmed that
he observed Buck talking to Walker in the latter's car,
and at the time Buck was carrying a baseball bat. Buck
was not examined as to the incident . Walker was be-
lieved , and in the circumstances , the 8(a)(3) and (1) alle-
gation shall be dismissed.
(3) The altercation
Boesche testified that Winkler was discharged because
of his involvement in a fight at the picket line. The con-
frontation involved Winkler and Rudy Domingo, the su-
perintendent of Respondent 's field staff. Domingo did
not testify. The only eyewitness presented by Respond-
ent was Robert Beasley , a vice president . Prior thereto,
striker Swope had left his truck outside the plant in
order to join the strikers . Beasley testified that he and
Domingo left the building and proceeded in the direction
of Swope's abandoned , still running truck. As they
walked , Beasley relates that Swope hollered to Domin-
go, "it looks like you're going to have to drive the truck
in, Rudy." Striker Winkler then added "Rudy will drive
that damn truck in over my dead body ." Beasley contin-
ued to the truck , and with the assistance of Swope got it
in gear, and drove it towards the picket line. As he did
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
so, he observed Domingo and Winkler exchanging
blows.
With the exception of the remark he ascribes to
Winkler, Beasley could give no explanation as to what
specifically provoked the fight. Boesche did not testify as
to what he understood to have been the immediate
cause . Moreover , Beasley's testimony suggests strongly
that Domingo left him in order to confront Winkler. Re-
spondent 's evidence does not disclose who threw the
first blow, or what happened thereafter. If there were
sufficient provocation for Dimico's foray to the picket
line, I am not convinced that the remark attributed to
Winkler sufficed. In this state of the record, it does not
appear that Respondent knew precisely what provoked
the fight , or that the assumption that Winkler was at
fault was reasonably premised . 21 Domingo did not testi-
fy, and as he was not shown to be unavailable , it is as-
sumed that if presented , his testimony would not have
been favorable to the Respondent . Beyond that, the evi-
dence available to the Respondent was limited to Beas-
ley's account , which clearly demonstrates that Domingo
altered his course to reach Winkler , and not vice versa.
Thus, Domingo was the aggressor . The remark Beasley
attributes to Winkler was a colloquial phrase of contempt
and disdain, but hardly was an invitation to fight or rea-
sonable justification for Domingo 's assault of a picket. I
do not believe that the Respondent had a reasonable
basis for concluding otherwise . To hold that the evi-
dence against Winkler constitutes a reasonable basis for
belief that he engaged in misconduct would condone the
discharge of a striker whenever a management represent-
ative or nonstriker were to lose control and engage a
picket in fisticuffs. The right to strike does not hinge on
such a precarious limitation . The evidence shows that
Winkler did not engage in misconduct in this respect,
and the Respondent had no reasonable basis for believing
otherwise.
(4) The threat involving John Glas Ornamental Iron
This issue is discussed more because of the attention
given it by the parties than its relevance to the pleadings.
Glas is a customer , who during the picketing sought to
pick up materials at the strikebound plant . The Respond-
ent, without calling John Glas, himself, adduced testimo-
ny concerning a threat eminating from the picket line.
First Shop Superintendent Michin testified that Glas
reported that during one of several attempts to cross the
picket line , an "unremembered" picket, in reference to
Glas' new truck, importuned that the latter had a nice
truck and that if he wanted to keep it that way he should
not come back. 22 Respondent 's vice president, John Al-
exander, testified to a similar conversation with Glas. Al-
exander, does not suggest that the striker who made the
threat was ever identified to him . Finally, Boesche did
not relate that he was ever informed of the source of the
alleged threat.
21 According to Winkler, Domingo came running toward the picket
line on the occasion in question , jumped Winkler throwing his fist, while
calling Winkler a "thief." Domingo and Winkler were quickly separated.
22 The only representative of John Glas who appeared was his son.
The latter failed to testify that he was the object of any such threat.
Although the Respondent failed to link the incident
with any dischargee , the General Counsel chose to ex-
amine striker Louis Domico concerning a conversation
with Glas' daughter, Karolina. He testified as follows:
The first occasion, Karolina Glas, which is the
daughter, came down Newpark Drive with their
truck, and our pickets were walking back and forth,
and as she pulled her truck into the opposite lane of
traffic, blocking the other-the opposite lane of
traffic, and she got out of her truck, left it sit there,
and she come over and started talking to us about-
I think there was about 12 or 15 of us there. I'm not
sure how many. And we were talking to her. We
told her about working with her father there. I'd
worked with her father. And I made a statement
that that sure is a nice truck, and I 'd hate like heck
to see anything happen to it. Why don't you move
it. It was parked in the road, blocking traffic. There
was cars going around it. And that was it . That was
the only statement I said.
Q. Now, will you explain in greater detail why
you said that she ought to move the truck? I don't
understand that.
A. Because her truck was blocking traffic. I
didn't want to see nobody hit her truck. There was
cars coming up through there that had to go
around.
As indicated, the Respondent did not call Karolina, thus
allowing Domico's version to stand uncontradicted.
Indeed , as there is no indication that Karolina was un-
available, it is fair to assume that , if called, she would
not have offered testimony favorable to the Respondent.
Accordingly, it is concluded that no threat was involved,
and that Domico was simply referring Ms. Glas to peril
presented by her hazardous choice of a parking spot, a
statement totally divorced from the objectives of the
picket line. Accordingly, while the Respondent does not
indicate that Domico's discharge was related to the inci-
dent, it is further concluded that no misconduct of a dis-
qualifying nature was involved.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(3) and
(1) of the Act by discharging strikers Charles C. Cur-
rence, Ronald M. Buck, and Billie J. Graham.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging the following economic strikers
in reprisal for their protected activity:
Arnold Adams Timothy Delagrange
Louis M. Domico, Jr. Rodney P. Ford
Richard A. Miller Larry P. Norris
Henry Petz William Stanley
James Swope Bruce Walgenbach
ORNAMENTAL IRON WORK CO. 483
Larry E. Winkler
5. The Respondent violated Section 8(a)(3) and (1) of
the Act by failing to offer immediate reinstatement to
their former or substantially equivalent positions of em-
ployment, the above -named strikers together with:
Daniel Amhauser Richard Marzich
Lee Vue Zanna Vue
6. The above unfair labor practices have an effect
upon commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, it
shall be recommended that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging strikers named above in para-
graph 4, and by failing to offer immediate reinstatement
to strikers Amhauser, Marzich, and Lee and Zanna Vue,
following their unconditional offer to return to work, it
shall be recommended that they be offered immediate re-
instatement to their former position, or a substantially
equivalent position.23 It is further recommended that the
named discriminatees be made whole for any loss of
earnings or other benefits they may have suffered by
reason of the discrimination against them. Backpay under
the terms of this Order shall be computed on a quarterly
basis from October 12, 1987, to the date of a bona fide
offer of reinstatement to a substantially equivalent posi-
tion, less net interim earnings , as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and shall include
interest computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On the entire record in this proceeding, including the
findings of fact and conclusions of law made above, I
issue the following recommended24
ORDER
The Respondent, Ornamental Iron Work Co., Norton,
Ohio, its officers, agents, successors, and assigns, shall
23 Subsequently Amhauser and Marzich were reemployed. In addition,
the Respondent alleges that both Lee and Zanna Vue were offered, but
declined offers of reinstatement . Neither the quality of the jobs provided,
nor the substantiality of the offers of reinstatement were fully litigated,
and the impact of these questions on the recommended remedy is left for
resolution dung compliance stages of this proceeding.
24 If no exceptions are filed as provided in Sec . 102.46 of the Rules and
Regulations of the National Labor Relations Board , the findings, conclu-
sions, and recommended Order herein shall, as provided in Sec 102.48 of
the Rules and Regulations , be adopted by the Board and become its find-
ings, conclusions, and Order , and all objections to them shall be deemed
waived for all purposes.
1. Cease and desist from
(a) Discouraging activity on behalf of a labor organiza-
tion by discharging economic strikers , by refusing imme-
diately to reinstate unreplaced economic strikers upon
their unconditional offer to return to work , or in any
other manner discriminating against employees with re-
spect to wages, hours, or terms and conditions of em-
ployment.
(b) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the employees listed below immediate rein-
statement to their former positions , without prejudice to
their seniority , or other rights and privileges.
Arnold Adams
Louis M. Domico, Jr.
Richard A. Miller
Henry Petz
James Swope
Larry E. Winkler
Zanna Vue
Richard Marzich
Timothy Delagrange
Rodney P. Ford
Larry P. Norris
William Stanley
Bruce Walgenbach
Lee Vue
Daniel Amhauser
(b) Make whole the above-named discriminatees for
any loss of earnings they may have suffered by reason of
the discrimination against them in the manner set forth in
the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board and its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Norton, Ohio facility copies of the at-
tached notice marked "Appendix."25 Copies of the
notice on forms provided by the Regional Director for
Region 8, after being signed by Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
as If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "