Overhead Door Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1975

220 N.L.R.B. 431 (N.L.R.B. 1975)

ADVANCE INDUSTRIES DIVISION
Advance Industries Division-Overhead Door Corpora-
tion and Fox River Valley District Council of Car-
penters, Local Union 2497, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO.
Cases 30-CA-2445 and 30-CA-2535
September 18, 1975
DECISION AND ORDER
On May 22, 1974, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this pro-
ceeding . Thereafter, the Respondent and the General
Counsel filed exceptions and supporting briefs. The
Respondent also filed an answer to the General
Counsel 's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions , briefs, and
answer and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as mod-
ified herein.
We agree with the Administrative Law Judge's
finding thu, .,espondent violated Section 8(a)(3) and
(1) of the Act by failing to reinstate Romenesko,
Koester , and Marheine upon the termination of the
strike in which they participated. We disagree, how-
ever, with the Administrative Law Judge's dismissal
of the complaint with respect to the allegation con-
cerning the discharge of five employees on the basis
of their in-plant conduct on August 31, 1973.2
The record shows that the five employees 3 had
participated in strike and picketing activity by the
Union until August 28. Thereafter, the five employ-
ees received telegrams directing them to return to
their regular shift on August 31. They reported, as
directed, to the second shift at the normal starting
time of 4 p.m., on August 31, and worked without
incident until 8:30 p.m. at which time Linda Kersten,
the leadwoman in their department, told them, sepa-
rately, that the shift would end and the plant would
close at 10 p.m. that evening . The five employees had
expected to work until midnight.4
When 10 p.m. came, the five employees made no
' In the absence of exceptions thereto, we adopt , pro forma, the Adminis-
trative Law Judge's finding that Respondent violated Sec . 8(aX3) and (1) of
the Act by discriminatorily depriving employee David Lee of overtime
work.
2 All dates hereafter are 1973 , unless otherwise indicated.
3 Mary Blaese , Verlee Freimuth , Peggy Bennett , Bonnie Tullberg, and
Rita Weber.
Before the strike , the second shift started at 4 p.m. and ended at mid-
night . Second -shift employees were permitted a 10-minute rest break at 10
p.m. Toward the latter part of the strike , Respondent altered the schedule
and the replacement employees on the second shift began working more
than 8 hours on each of the first 4 days of the week and less than 8 hours on
Fridays. Operations were being conducted on this revised schedule during
the week of August 27.
431
move to leave the plant but instead prepared for the
10-minute rest break they usually took at that time.
When it became apparent that the five employees
would remain in the plant after 10 p.m., Leadwoman
Kersten told them the plant was closing and that if
they did not leave she would punch their timecards.
The five employees returned to their jobs and re-
sumed working. Kersten punched their cards and
Vyse, a supervisor in another department, pursuant
to the earlier approval of Respondent's general man-
ager, Sumnicht, called the police.
The police arrived at the plant about 10:10 p.m.
and conferred with Kersten and Vyse for about 10
minutes . Thereafter the police unsuccessfully urged
the five employees to leave the plant. At about 10:45
p.m. the five employees were arrested and removed
from the plant.
The Administrative Law Judge found that the dis-
positive precedent here is N. L R. B. v. Fansteel Met-
allurgical Corporation, 306 U.S. 240 (1939). In so con-
cluding, he found that the five employees had
illegally seized the plant by remaining after their shift
and refusing to leave the plant and that they had
failed to follow the established grievance procedure.
Unlike the Administrative Law Judge, we do not
find that the evidence here shows conduct paralleling
that in Fansteel, supra. There, approximately 95 em-
ployees seized and possessed two of the employer's
key buildings for 9 days. They ousted and excluded
management representatives, and engaged in a delib-
erate and calculated show of economic (and physi-
cal) muscle, including violence, vandalism, and dam-
age to the plant, to compel the employer to submit to
their demands. The record here presents an entirely
different picture. The protest lasted for 45 minutes.
During that time the five employees did not bar ac-
cess to or attempt to exclude management officials
from the plant; just the opposite, they actively sought
to present their questions to Respondent's manage-
ment. They did not interfere with production and
their actions were unaccompanied by violence or the
threat of violence. Contrary to the Administrative
Law Judge, we see nothing in the record here to indi-
cate that the five employees attempted to take over
or seize the plant. Thus, the ground upon which Fan-
steel was decided is missing here.
It is clear that the Act would protect these employ-
ees if they had left the plant and formed a picket line
outside the plant. We do not believe the purposes of
the Act would be served if we denied the protection
of the Act to the five employees here. Their conduct
was reasonable under the particular circumstances
present in this case and was less disruptive to all con-
cerned than the resumption of the strike. In this con-
nection, the record shows that the employees had
220 NLRB No. 68
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated in strike and picketing activity by the
Union from July 20 until August 28. The strike had
been called by the Union in order to compel Respon-
dent to recognize and bargain with it. Respondent
had refused, and continued to refuse , to recognize
and bargain with the Union even though the Union
had been certified by this Board as the collective-
bargaining representative of the employees in a unit
of Respondent 's employees , including the dischar-
gees .5 Thus, as of August 31, the employees had rea-
son to believe that the Union was their collective-
bargaining representative and that the change in
their working hours was a further indication of
Respondent's refusal to recognize and bargain with
the Union. It was in this context that the five em-
ployees were discharged on the first day back to
work after the strike.
It also is significant that the telegram directing the
five employees to report to their "regular shift" made
no mention of any change in the hours of the shift. In
this connection, we note that the Employer's guide-
book states that the "normal work day shall consist
of 8 (eight) hours per day" and "that [e]mployees will
be given a reasonable notice (prior to leaving work
the day previous) of the change in hours." It was this
unexpected early dismissal of the shift contrary to
the Employer's own guidebook rule and without any
prior notice to the employees, and the effect which
the employees reasonably assumed that action would
have on their qualifying for holiday pay, that led the
five employees to seek clarification from Respon-
dent. Such activity is plainly protected, and does not
lose its protection because of the employees' remain-
ing on the plant premises after being ordered off.
Such access to and limited use of employer facilities
by employees has been protected since Republic A via-
tion Corporation v. N.L.R.B., 324 U.S. 793 (1945).
Finally, the existence of a grievance procedure uni-
laterally established by Respondent does not provide
a sufficient basis for denying the protection of the
Act to the five employees in this case 6 We perceive a
difference between the facts in the instant case and
5 As more fully described in sec . III of the Administrative Law Judge's
Decision, the record shows that on April 19 the Union won a representation
election conducted among Respondent's employees . On May 25, the Re-
gional Director overruled objections filed by Respondent and certified the
Union as the collective-bargaining representative of the employees in the
appropriate unit. On June 19, the Board denied Respondent 's request for
review of the Regional Director 's Decision. Thus, at the time of the dis-
charge of the five employees, the Union had been certified as the collective-
bargaining representative of a unit of Respondent's employees.
Thereafter , on October 31, 1974, the Board rescinded the certification of
the Union in light of the Supreme Court 's decision in N.L. R.B. v. Savair
Manufacturing Co., 414 U.S. 270 ( 1973). (See sec. III ,A,2, of the Administra-
tive Law Judge 's Decision.)
6 Sec. 9(a) of the Act provides that any individual employee or group of
employees shall have the right at any time to present grievances to their
employer.
in a case where the employees or their chosen repre-
sentatives have participated through the collective-
bargaining process in a mutually acceptable means
for the presentation and resolution of disputes aris-
ing under the terms of the contract. In the latter situ-
ation, it may defeat the purposes of the Act to allow
a group of employees to bypass a contractual griev-
ance procedure and take concerted action inapposite
to the contractual procedure, as, for example, where
employees take action which is inconsistent with a
valid no-strike clause. That issue is not before us in
this case.
Given all of the foregoing facts, we find that the
employees' conduct was not the type which is beyond
the ambit of protected activity and that their dis-
charge violated Section 8(a)(3) and (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Advance Industries Division-Overhead Door Corpo-
ration, Appleton, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Administrative Law Judge's recommended Or-
der, as modified below:
1. Add the following as paragraph 1(b) and relet-
ter the present paragraph accordingly:
"(b) Discharging or otherwise discriminating
against any employee for engaging in protected con-
certed activity."
2. In relettered paragraph 1(c), substitute the
phrase "In any other manner interfering with" for
"In any like or related manner interfering with."
3. Substitute the following for paragraph 2(a):
"(a) Offer to Darlene Romenesko, Betty Koester,
Vicki Marheine, Mary Blaese, Verlee Freimuth, Peg-
gy Bennett, Bonnie Tullberg, and Rita Weber imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, and make them whole in the
manner set forth in the section of the Administrative
Law Judge's Decision entitled `The Remedy.' "
4. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENELLO, dissenting in part:
Contrary to my colleagues, I would adopt the Ad-
ministrative Law Judge's conclusion that Respon-
dent lawfully discharged the five employees who en-
gaged in a "work-in" after the scheduled hour of
7 See Crenlo, Division of GF Business Equipment, Inc., 215 NLRB No. 151
(1974); and Pepsi-Cola Bottling Company of Miami, Inc., 186 NLRB 477
( 1970), enfd . 449 F .2d 824 (C.A. 5, 1971).
ADVANCE INDUSTRIES DIVISION 433
plant closing on the evening of August 31. In all
frankness, the result reached by the majority and the
proposition of law for which it stands are, in my
view, wholly repugnant to the purposes of the Act.
As an initial point of departure, I perceive the con-
text out of which the discharges arose in a somewhat
different light than my colleagues in several impor-
tant respects. That the five employees were con-
cerned about the possible loss of 2 hours' pay and the
effect it might have on their qualification for holiday
pay is clearly supported by the record. However, the
record is barren of any reliable evidence that the five
employees ever articulated to Respondent's officials
the nature of these concerns and their desire to pre-
sent grievances over them. And, indeed, the Admin-
istrative Law Judge so found. The majority's charac-
terization that the five employees "actively sought to
present their questions to Respondent's manage-
ment," to the extent that it suggests that the five in
fact clearly conveyed their concerns to management,
is therefore, somewhat misleading.
Additionally, the majority creates the impression
that the conduct of the five was a spontaneous reac-
tion to an unannounced early closing of the plant
and that such conduct was occasioned by a reason-
able belief that the closing at 10 p.m. was a further
indication of Respondent's refusal to bargain with
the Union. Simply put, such a picture does not com-
port with the record facts. It is clear that Kersten,
Respondent's leadwoman, advised each of the five as
early as 8:30 that evening that the plant would close
at 10 p.m. rather than at midnight, the normal time
at which the plant was closed prior to the strike.
Thus, while the announcement that the plant would
close at 10 p.m. may have been unexpected by the
five, they were in fact notified of Respondent's inten-
tion to close the plant well in advance of that hour.
Furthermore, in setting the events of that evening in
proper perspective, the record contains not even the
slightest suggestion that the five believed that the 10
p.m. closing was an attempt by Respondent to frus-
trate the Union, and, indeed, there is more than an
adequate basis for rejecting this inference drawn by
my colleagues. Thus, in notifying the five of the
scheduled closing, Kersten specifically informed at
least two of them that the change in the closing hour
was due to the fact that the employees who had been
working during the strike would have by that time
completed their full 40 hours of work for the week.
And, totally consistent with Kersten's explanation,
all the other employees on the shift punched out at
10 p.m. without incident, a fact of which the five
were aware. In these circumstances, it seems appar-
ent that the only reasonable interpretation which the
five could place on the change in hours was that
Respondent's decision to do so was based solely on
legitimate business considerations.
Given what I believe the record shows is the prop-
er context of the events of that evening, and in view
of the conduct of the five after 10 p.m., I find the
rationale of the majority in finding the violation here
totally unconvincing. My colleagues, in finding the
conduct of the five to constitute protected activity,
emphasize the factual distinctions between the in-
stant case and Fansteel, supra, which the Administra-
tive Law Judge found dispositive here. I do not deny
that the facts in the instant case are not as dramatic
as those in Fansteel. Thus, unlike that case, the con-
duct of the employees here was unattended by vio-
lence and the ousting of management officials. Nev-
ertheless, the conduct of the five employees in this
case constitutes in effect, if not in actual fact as well,
a plant seizure and, therefore, falls within the general
type of conduct found unprotected in Fansteel. Fur-
thermore, the Board has held that the "gravamen of a
plant seizure involved the refusal by employees to
yield possession of the plant when offered to do
so." 8 This is precisely what occurred in this case.
Thus, when the 10 p.m. bell rang, all employees, save
the five, left the plant. The five, however, made no
move to leave the plant at that time but instead pre-
pared to take a 10-minute break which they custom-
arily took at that time. When it became apparent that
the five would remain in the plant, Kersten again
advised them that the plant was closing and warned
that she would punch out their timecards. Thereafter,
the five returned to their benches and resumed work-
ing. Subsequently, the five, despite the directives of
the police who had been called to the plant, re-
mained on the premises. That the five remained in
the plant until only 10:45 p.m. was attributable, not
to any voluntary act by them, but rather to the fact
that the police placed them under arrest and escorted
them from the premises.
By distinguishing Fansteel from the instant case
solely on factual grounds, my colleagues have missed
the basic thrust of the Supreme Court's opinion in
that case. At the core of Fansteel lies not merely a
condemnation of violence but the very basic balanc-
ing of the employer's property rights on one hand,
and the rights of employees to engage in concerted
activity on the other hand. That a weighing of the
competing interests of an employer and his employ-
ees is a necessary and critical inquiry in cases such as
that presented here is additionally clear from the de-
cisions of the courts of appeals and the Board as
well. Thus, as the Fourth Circuit so aptly states in
8 See KDI Precision Products, Inc., 176 NLRB 135, 137 (1969), and cases
cited therein at In 4.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cone Mills:
Few rights, including the right to strike pro-
test, exist without corresponding duties and obli-
gations to those against whom the right is being
asserted. When one attempts to exercise a
claimed right he cannot, in all fairness, disregard
his corresponding duty and obligation with im-
punity.'
It is apparent, however, that my colleagues have giv-
en little, if any, consideration to Respondent's rights
in maintaining control over the use of its equipment
and the hours of plant operation. Such disregard of
an employer's rights, and particularly the immediate
interest of Respondent here in closing and securing
its plant at the conclusion of a workweek, is implicit
in the majority's equating protests occurring inside a
plant to those expressed through the formation of a
picket line outside the plant. The crucial distinction
between the two types of activity, as appears in the
instant case, lies in the fact that a protest outside
Respondent's plant would in no way have interfered
with his right to control the use of his equipment or
to secure his plant.
The majority, rather than engaging in a real ba-
lancing of the competing interests here, merely stated
that the protest in the instant case amounted to
"[s]uch access to and limited use of employer facili-
ties by employees [which] has been protected since
Republic Aviation . . . ." That case is, however, of
only marginal relevance here. Republic Aviation in-
volved an employer's enforcement of a no-solicita-
tion rule and a prohibition against the wearing of
union insignia by employees. While that case holds
that an employer may not, without substantial justifi-
cation, unduly restrict the rights of employees to en-
gage in organizational activities on his premises, it is
far too great a leap from that proposition to the con-
clusion reached by my colleagues that employees are
engaged in protected activity when they continue to
work after the scheduled hour of closing, on their
own terms and in defiance of employer and police
directives to leave. Nor do any of the other cases
relied upon by the majority support such a conclu-
sion.10 Rather, the presence of these particular facts
here make this case one of a totally different dimen-
sion than those cited by the majority.
My colleagues have elected to expand the concept
of protected activity beyond its legitimate limits. Nei-
ther Congress nor the courts have ever suggested that
Section 7 was designed to protect the type of activity
evidenced here. Nor has the Board, until today. The
effect of my colleagues holding, I fear, is to encour-
age employees to resort to a type of compulsion, i.e.,
a "work-in," which must in future cases necessarily
lead to confrontation and violence between employ-
ees and employers. Such a result is wholly at odds
with the basic purposes of our Act.
9 Cone Mills Corporation v N. L. R. B., 413 F.2d 445, 454 (C.A. 4, 1969).
That the Board has not considered the right of employees to protest to be
absolute , but rather has engaged in a balancing of interests test is also clear.
See, e .g., The Masonic and Eastern Star Home of the District of Columbia, 206
NLRB 789, 790-791 (1973); Valley City Furniture Company, 110 NLRB
1589, 1594-95 (1954), and cases cited therein.
10 Pepsi-Cola and Crenlo, relied upon by the majority, do not support my
colleagues ' conclusion that the activity of the five employees here was of a
protected nature . In those cases, the employees' protests occurred during
working time and did not extend beyond the termination of the employees'
shifts, let alone , as here , beyond the scheduled hour of plant closing. Nor
did the protesters in either of those cases refuse to leave the employer's
premises in defiance of a police order to do so . Finally, in those cases the
employees engaged in work stoppages , rather than as here a "work-in," and,
therefore , did not usurp the employer's exercise of control over the use of
his equipment in utter derogation of his property rights.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice, and we intend
to carry out the Order of the Board and abide by the
following:
WE WILL NOT refuse to give you back your jobs
because you take part in a strike against us.
WE WILL NOT refuse to permit you to work
overtime because you take part in a strike
against us.
WE WILL NOT discharge or discriminate against
any employee for engaging in protected concert-
ed activity.
WE WILL NOT in any other way interfere with
any right given to employees by the National
Labor Relations Act.
As it has been decided that we refused to take
back to work Darlene Romenesko, Betty Koester,
and Vicki Marheine, because they took part in the
strike against us called by Carpenters Union, Local
2497; and as it also has been decided that we refused
to permit David Lee to work overtime because he
took part in the strike; and as it also has been decid-
ed that we discharged Mary Blaese , Verlee Freimuth,
Peggy Bennett , Bonnie Tullberg, and Rita Weber for
engaging in protected concerted activity:
WE WILL immediately offer to reinstate Dar-
lene Romenesko, Betty Koester, Vickie Mar-
ADVANCE INDUSTRIES DIVISION 435
heine, Mary Blaese , Verlee Freimuth, Peggy
Bennett , Bonnie Tullberg, and Rita Weber to
their old jobs or, if those jobs no longer exist, to
substantially equivalent jobs.
WE WILL permit David Lee to work overtime
as he did before the strike.
WE WILL pay Darlene Romenesko, Betty
Koester, and Vicki Marheine, any wages lost by
them because we did not take them back after
the strike.
WE WILL pay Mary Blaese , Verlee Freimuth,
Peggy Bennett, Bonnie Tullberg, and Rita We-
ber any wages lost because we discharged them
for engaging in protected concerted activities.
WE WILL pay David Lee any wages lost by him
because we did not permit him to work overtime
after the strike.
meaning of Section 2(11) of the Act4 when her employ-
ment by Respondent was terminated?
2. Assuming a negative answer to the foregoing ques-
tion, did Respondent violate Section 8(a)(3) and (1) of the
Act by refusing to reinstate Romenesko upon the termina-
tion of a strike against Respondent in which she partici-
pated?
3. Did Respondent violate Section 8(a)(3) and (1) of the
Act by refusing to reinstate Betty Koester and Vicki Mar-
heine upon the termination of a strike against Respondent
in which they participated?
4. Did Respondent violate Section 8(a)(3) and (1) of the
Act by discharging Mary Blaese, Verlee Freimuth, Peggy
Bennett , Bonnie Tullberg, and Rita Weber?
5. Did Respondent violate Section 8(a)(3) and (1) of the
Act by reducing the hours of employment of David Lee?
Upon the entire record,5 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the able briefs
submitted,6 I make the following:
ADVANCE INDUSTRIES DIVISION-OVERHEAD
DOOR CORPORATION FINDINGS OF FACT
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The trial
in this proceeding, with all parties represented, was held
before me in Appleton, Wisconsin, on February 12, 13, 14
and 15, 1974, upon the General Counsel's complaint dated
January 4, 1974,1 and Respondent's answer? In general the
issues litigated were whether Respondent violated Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended (Act).3 Particularly, the principal questions for
decision are as follows:
1. Was Darlene Romenesko a supervisor within the
1 The complaint was issued pursuant to charges and amended charges
filed between September 4, and December 6, 1973, by Fox River Valley
District Council of Carpenters , Local Union 2497.
2 During the trial the answer was amended to admit Respondent's dis-
charge and failure to reinstate the employees named in pars . 6 and 7 of the
complaint, and to admit the reduction in working hours of the employee
named in par . 8 of the complaint . The answer was further amended during
the trial by adding the following as a second affirmative defense : "That the
individuals listed in paragraph 6 of the complaint engaged in picket line
misconduct which had the effect of eliminating their right to reinstatement
after termination of a strike , and that the picket line misconduct is the
reason for the termination of employment."
3 In pertinent part these sections provide.
Sec. 8(a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment ...
to encourage or discourage membership in any labor organization
Section 7 , insofar as relevant, states:
Sec. 7. Employees shall have the right to self-organization , to form,
join , or assist labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection ....
1. JURISDICTION
Respondent, an Indiana corporation, is engaged at Ap-
pleton, Wisconsin, in the manufacture of radio control de-
vices. During 1973, a representative period, Respondent
purchased goods valued in excess of $50,000 from vendors
located outside the State of Wisconsin. Accordingly, I find
that Respondent is engaged in commerce within the mean-
ing of the Act and that the assertion of jurisdiction over
this matter by the National Labor Relations Board (Board)
is warranted. Siemons Mailing Service, 122 NLRB 81, 85
(1958).
II. THE LABOR ORGANIZATION INVOLVED
Fox River Valley District Council of Carpenters, Local
Union 2497, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO (Union), is a labor organization
within the meaning of Section 2(5) of the Act.
III. INTRODUCTION
Briefly, this case is concerned with the failure by Re-
spondent to reinstate three individuals upon the termina-
tion of a strike in which they participated, its discharge of
4 Set forth below are the provisions of this section.
Sec. 2 . When used in this Act-
(11) The term "supervisor" means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign , reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Obvious inadvertent errors in the stenographic transcript of this pro-
ceeding have been noted and corrected.
6 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the trial , may not
be discussed in this Decision, each has been carefully weighed and consid-
ered.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
five employees , and its denial of overtime work to one em-
ployee, David Lee. All of the foregoing, the complaint al-
leges, and the General Counsel and the Union contend,?
was violative of Section 8(a)(3) of the Act.
Respondent admits that it did not reinstate three strik-
ers; that it discharged five employees ; and that Lee was
deprived of overtime work. It contends, however, that in
none of these cases did it trench upon Section 8 (a)(3) of the
Act.
To justify its refusal to reinstate the three strikers Re-
spondent asserts in its brief that it "entertained an honest
belief that these individuals had engaged in misconduct
during the strike ." In addition , Respondent argues that
Darlene Romenesko , one of the strikers denied reinstate-
ment, was a supervisor and, as such , not entitled to the
protection of the Act.
The discharges , Respondent contends , were occasioned
by the refusal of the employees concerned to leave its plant
at the end of their shift . Finally, Respondent takes the posi-
tion that it did not discriminatorily deprive Lee of overtime
work.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS 8
A. The Prior Proceedings
1. The representation proceeding
On December 18, 1972, the Union filed a petition for
certification as the collective -bargaining representative of
Respondent 's employees . During the hearing on this peti-
tion Respondent took the position that the heads of its
several departments, including Darlene Romenesko,9 were
supervisors and should not be included in the unit pro-
posed by the Union.
Upon the evidence adduced at the hearing on the
Union 's petition the Board 's Regional Director rejected
Respondent's contention . In his Decision and Direction of
Election (Direction of Election) issued on March 19,
1973,10 the Regional Director ruled that the department
heads were not supervisors ; that they would be included in
the unit he found appropriate for collective bargaining;
and that they were eligible to vote in the representation
election to be subsequently held.
Maintaining its position that department heads , includ-
r As the contentions of the General Counsel and the Union are similar,
thesy will be referred to hereinafter as the General Counsel 's contentions.
The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent 's alleged unfair labor
practices and the conclusions to which they may give rise. To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they , as well as the findings , may again
be considered in other contexts.
9 Among the unfair labor practices charged against Respondent in the
instant proceeding is its failure to reinstate Romenesko upon the termina-
tion of a strike in which she participated . As noted above , Respondent
contends that its denial of reinstatement to Romenesko was privileged for
two reasons , one being that she was a supervisor before the strike. In view of
this contention , Romenesko 's status, which was litigated in the representa-
tion case , was, in accordance with well settled principles , again litigated in
this proceeding . As appears below , it is my conclusion that Romenesko was
not a supervisor.
10 All dates hereinafter mentioned without stating a year fall within 1973.
ing Romenesko , were supervisors and that their inclusion
in the unit was improper, Respondent filed with the Board
a request for review of the Direction of Election . Conclud-
ing that Respondent's request "raise[d] no substantial is-
sues warranting review" it was denied by the Board on
April 18.11
On April 19 a representation election was conducted
among Respondent's employees in the unit found appro-
priate by the Regional Director which the Union won. Re-
spondent filed objections to conduct affecting the results of
the election . In its objections Respondent again raised the
issue of the supervisory status of its department heads. In
addition, Respondent urged that the election be set aside
because , among other things, "the Union . . . advised em-
ployees that if they joined the Union prior to the election
and the Union was successful their membership fee and/or
initiation fee would be $1.00 otherwise it would be $25.00
or more." 12
On May 25 the Regional Director issued his Supplemen-
tal Decision and Certification of Representative (Supple-
mental Decision) overruling Respondent's objections and
certifying the Union as the exclusive collective -bargaining
representative of the employees in the unit earlier found to
be appropriate.
Reiterating its position concerning the supervisory status
of department heads and raising , among other issues, the
question of the Union's offer to reduce the dues and fees of
employees who became members before the election, Re-
spondent asserted that the Union's certification was invalid
and requested Board review of the Supplemental Decision.
On June 19 the Board declined to do so stating that
Respondent 's request "raise[d] no substantial issues war-
ranting review."
2. The unfair labor practice proceeding
Shortly after its certification the Union requested Re-
spondent to bargain with it. Standing by its contention that
the Union's certification was invalid, Respondent declined
to do so. The Union, thereupon, filed an unfair labor prac-
tice charge against Respondent, upon which a complaint
issued, alleging that by its refusal to bargain Respondent
had violated Section 8(a)(5) of the Act.14
In the proceeding thus instituted the General Counsel
moved for summary judgment. Respondent argued, in op-
position, that the Union's certification had been improvi-
dently issued, raising once again the supervisory status of
its department heads and again bringing to the fore its
objections to the conduct of the election.
Because Respondent's argument dealt with matters that
had been litigated in the representation proceeding, as to
which Respondent offered no new evidence, the Board
G.C. Exh. 6.
i2 G.C. Exh. 7.
G.C. Exh. 9.
14 Insofar as material , Sec. 8(a)(5) is as follows:
Sec. 8(a) It shall be an unfair labor practice for an employer-
(5) to refuse to bargain collectively with the representatives of his
employees . . . .
ADVANCE INDUSTRIES DIVISION
granted the General Counsel's motion for summary judg-
ment and on November 26, 1973, handed down its Deci-
sion and Order upholding the validity of the certification,
finding Respondent in violation of Section 8(a)(5) and (1)
of the Act, and requiring it to bargain with the Union.
Advance Industries Division-Overhead Door Corporation,
207 NLRB 548 (1973) (Advance Industries I).
On November 27 Respondent filed in the United States
Court of Appeals for the Seventh Circuit a petition for
review of the Board 's Decision and Order in Advance In-
dustries I. On December 17, during the pendency of
Respondent's petition for review , the Supreme Court is-
sued its decision in N.L. R.B. v. Savair Manufacturing Co.,
414 U.S. 270 (1973), which bears upon Respondent's con-
tention that the election should be set aside and the
Union's certification held for naught because of the
Union's offer of reduced fees and dues to employees who
became members before the election.
On January 14, 1974, Respondent requested the Board
to reconsider its Decision and Order in Advance Industries I
in the light of the Supreme Court's decision in Savair. In
view of this, the Board moved the court of appeals to hold
in abeyance the proceedings on Respondent 's petition for
review in Advance Industries I pending resolution of
Respondent's request for its reconsideration by the Board.
This motion was granted.
Being of the opinion that the matters raised by Respon-
dent with respect to the Savair issue could best be resolved
at a hearing, the Board , on April 22, 1974, granted
Respondent's request for reconsideration of Advance Indus-
tries I and ordered that a hearing be held before an Admin-
istrative Law Judge for the purpose of receiving evidence
on that issue and preparing a decision based on the evi-
dence received . I am administratively advised that such a
hearing has not yet been held.
B. The Strike
On July 20, 1973, the Union struck Respondent in order
to compel it to bargain , which, as noted above, Respondent
had refused to do. Picketing in support of the strike start-
ed on July 23.
The strike continued until August 28. Upon its termina-
tion all strikers , except four, were reinstated to their former
jobs with Respondent 16 and pursuant to its instructions
returned to work on August 31.
During the strike nails were sprinkled on plant drive-
ways, plant windows were smashed , and lights affixed to
poles located on Respondent 's property were damaged.
These acts of vandalism prompted Respondent to offer
cash rewards for information leading to the arrest and con-
15 The General Counsel urges me to find that the strike was an unfair
labor practice strike because it was caused by Respondent's refusal to bar-
gain with the Union, which, in Advance Industries I, the Board found to
have been violative of Sec . 8(aX5) of the Act. However, in view of the
present posture of Advance Industries I such a finding would be premature
at this time.
16 The complaint alleges that Respondent 's refusal to reinstate three strik-
ers, Darlene Romenesko , Betty Koester, and Vicki Marheme, constituted
violations of Sec . 8(aX3) of the Act. As appears below, it is my conclusion
that these allegations are well founded.
437
viction of their perpetrators.
One of the damaged lights was referred to at the trial as
the center light and will be referred to in that fashion in
this decision." This light was damaged, I find, before 7:30
p.m. on July 27 and did not operate that night.I8
C. Some Working Conditions in Respondent's Plant
1. Work shifts
Respondent operates two shifts. Before the strike the
second shift 19 started at 4 p.m. and ended at midnight.
Employees working on this shift were permitted a 10-min-
ute rest break at 10 o'clock.
Toward the latter part of the strike Respondent altered
the schedule of the second shift. Pursuant to the change
employees on the second shift worked more than 8 hours
on each of the first 4 days of the week and less than 8 hours
on Fridays.
Operating on this schedule during the week of August
27, the week in which the strike ended, nonstriking second-
shift employees had worked 34 hours at the close of their
shift on Thursday. Accordingly, on Friday, August 31, the
day on which the strikers returned to work, the second shift
was slated to begin at 4 o'clock and end at 10, by which
time employees working on the shift who had not partici-
pated in the strike would have completed 40 hours of work
that week.
2. Respondent's rules
Respondent publishes, and makes available to employ-
ees, a book entitled "YOU AND YOUR COMPANY" (Guide-
book),20 containing rules for the guidance of employees
concerning such matters as hours of work, tardiness, de-
portment, etc. It also contains a simple two -step grievance
procedure, the provisions of which appear below:
L. GRIEVANCE PROCEDURE
Employee has right to appear personally (accompa-
nied by a representative if he wishes) at any of the
following steps:
Step 1. Employee will present his or her grievance to
their immediate supervisor and a grievance report may
be filled out. The supervisor has three days to make a
17 In evidence as G.C. Exh. 16 is a diagram of Respondent 's property
showing three buildings . The light in question appears in this exhibit as
being positioned in front of the middle building.
18 My finding concerning this matter, made necessary by Respondent's
contention that it did not reinstate Romenesko because it honestly believed
that she was involved in damaging the light, is based upon credible and
uncontroverted testimony given by Jerry Jahnke, the Union's business man-
ager, and his wife , which is substantially as follows-
Upon their arrival at respondent 's premises at about 7 : 30 p.m. on
July 27 they were informed by a group of pickets gathered at the center
light pole that the light had been damaged. Both looked up at the light
fixture but could see no bulb. Mrs. Jahnke then looked at the ground
under the light and saw fragments of a glass. Thinking that the pickets
had broken the light, Jahnke scolded them for having done so. Jahnke,
who remained at respondent's premises until sometime after midnight,
further testified that the center light "did not go on that evening."
19 The five employees whose discharge is alleged in the complaint as hav-
ing been violative of Sec. 8(a)(3) of the Act worked on the second shift.
° G.C. Exh. 26
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision and give the employee a reply.
Step 2. If the grievance is not settled at the first step,
the employee may request action at the Executive level
and the grievance will be presented to the President or
his Designee . A grievance report will be used to state
the facts to the Executive level, and contain the
employee's grievance and the decision of the supervi-
sor at the first level. A reply will be given to the em-
ployee after the facts have been reviewed, and a deci-
sion made.
Although not set forth in the guidebook Respondent
maintains a policy, well known to its employees , concern-
ing the payment of wages for holidays. In this regard, an
employee will receive holiday pay if he works the day be-
fore, and the day after, a holiday.
As noted above, the strike terminated on August 28,
1973, and the striking employees, pursuant to
Respondent's instructions , returned to work on August 31,
the last workday before Labor Day. Respondent specifical-
ly chose August 31 as the day for the strikers to return to
work to permit them to qualify for holiday pay for Labor
Day and to avoid complaints from the strikers concerning
their being deprived of an opportunity to earn such wages
had a later day been selected."
D. Romenesko 's Status
As already noted, Respondent asserts that Darlene Ro-
menesko was a supervisor before the strike . For this rea-
son, as well as another to be discussed in a later section of
this Decision , Respondent argues that its refusal to rein-
state Romenesko , who participated in the strike , was privi-
leged.
During the trial, the General Counsel objected to my
consideration of Romenesko 's status in this proceeding be-
cause it had "previously been litigated extensively" in the
representation case , in which the Regional Director de-
termined that she was not a supervisor 22 In accordance
with what is now a well settled principle, I overruled the
General Counsel's objection.23
Although I permitted the litigation in this proceeding of
the question of Romenesko's status , the General Counsel
adduced no evidence on this issue and the only evidence
2i Because of the preparations entailed in accommodating the returning
strikers following the strike 's termination on August 28 it was not feasible to
have them come back earlier than August 31. The problems encountered by
Respondent, in this connection , included rearranging production schedules;
finding places for the returning strikers, as well as employees hired during
the strike , to work ; and making intershift transfers of employees who had
notjoined the strike so that the strikers could return to the shifts on which
worked before the strike.the
It should be remembered that in the representation proceeding Respon-
dent twice requested the Board to review the Regional Director 's ruling that
Romenesko was not a supervisor, once after the issuance of the Direction of
Election by the Regional Director , and again after the issuance of his Sup-
plemental Decision following the representation election . Each time the
Board denied these requests, concluding that they "raise[d] no substantial
issues warranting review" (G.C. Exhs. 6 and 9).
23 See , for example , Amalgamated Clothing Workers of America, AFL-CIO
v. N.L.R.B., 365 F.2d 898 , 904-905 (C.A.D.C.); Abitibi Corporation, 198
NLRB 1249 (1972); and Lawson-United Feldspar & Mineral Co, 189 NLRB
350, 354 (1971).
offered by Respondent was the record made in the repre-
sentation case . I have carefully considered this record as
well as the Direction of Election in which the Regional
Director found that Romenesko was not a supervisor and
the briefs submitted to the Board by Respondent in sup-
port of its requests for review.25
Having considered the foregoing material , I am of the
opinion, and I conclude, for the reasons set forth by the
Regional Director in the Direction of Election 26 that Ro-
menesko was not a supervisor before the strike. 7
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts, Contentions, and Conclusions Concerning
Respondent's Alleged Violations of Section 8(a)(3) of the
Act by Refusing to Reinstate Strikers
Respondent's denial of reinstatement to three strikers,
Darlene Romenesko, Betty Koester, and Vickie Marheine,
is alleged in the complaint as having been violative of Sec-
tion 8(a)(3) of the Act. Respondent contends that in refus-
ing to reinstate these strikers it did not transgress Section
8(a)(3) because it honestly believed, based on reports re-
ceived from nonstriking employees and, in one case, the
personal observation of Victor Sumnicht, its general man-
ager, that the three employees had misconducted them-
selves during the strike. Before discussing the facts upon
which this contention is based it would be well, I think, to
set forth some basic principles dealing with an employer's
duty to reinstate striking employees.
The starting point for discussion would seem to be the
Supreme Court's comments on this point in N.L.R.B. v.
Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967), where
the following appears:
If, after conclusion of the strike, the employer refused
to reinstate striking employees, the effect is to discour-
age employees from exercising their rights to organize
and to strike guaranteed by Sections 7 and 13 of the
Act . . . . Under Sections 8(a)(1) and (3) . . . it is an
unfair labor practice to interfere with the exercise of
these rights. Accordingly, unless the employer who re-
fused to reinstate strikers can show that his action was
due to "legitimate and substantial business justifica-
tions," he is guilty of an unfair labor practice.
N.L.R.B. v. Great Dane Trailers, 288 U.S. 26, 34
(1967). The burden of proving justification is on the
employer.
An employer may point to a striker's actual serious mis-
conduct during a strike as constituting the "legitimate and
substantial business justifications" warranting a refusal to
reinstate the striking employee. Firestone Tire & Rubber
24 Resp . Exhs. 5A and 5B.
25 G.C. Exhs. 5 and 8.
26 G.C. Exh. 3.
27 The sole evidence adduced as to Romenesko 's status having been the
record made in the representation proceeding upon which the Regional
Director 's decision was based , "the [finding] of the Regional Director [that
Romenesko was not a supervisor was] accorded 'persuasive relevance,' " as
suggested by the court in Amalgamated Clothing Workers, etc. v. N L.R.B.,
365 F .2d 898 , 905 (C . A.D C.). To the same effect , see Abitibi Corporation,
198 NLRB 1249; and Lawson-United, etc., 189 NLRB 350, 354.
ADVANCE INDUSTRIES DIVISION
Company, 187 NLRB 54, 55, reversed in other respects 449
F.2d 511 (C.A. 5, 1971). An employer may also escape lia-
bility for refusing to reinstate strikers by establishing an
honest belief that they misconducted themselves while the
strike was in progress unless it develops that they did not
do so . As the Board held in this regard in Rubin Bros.
Footwear Inc., et al. , 99 NLRB 610, 611, "the honest belief
of an employer that striking employees have engaged in
misconduct provides an adequate defense to a charge of
discrimination in refusing to reinstate such employee, un-
less it affirmatively appears that such misconduct did not in
fact occur." 28
Finally, even where a striker actually misconducted him-
self he may not be denied reinstatement absent a showing
that "the misconduct is so violent or of such serious char-
acter as to render the employee unfit for future service."
N. L. R. B. v. Illinois Tool Works, 153 F.2d 811, 816 (C.A. 7).
Although strike misconduct was not involved in Illinois
Tool Works, the rule there laid down has been followed by
the Board in strike situations . See, for example , Firestone
Tire & Rubber Company, 187 NLRB 54, 56; and Terry
Coach Industries, Inc., 166 NLRB 560, 563, enfd . 411 F.2d
612 (C.A. 9, 1969).
With the foregoing precepts in mind , the acts of alleged
misconduct engaged in by the strikers who were refused
reinstatement will be discussed.
1. Darlene Romenesko
Darlene Romenesko is the Union's treasurer. Before the
strike she was actively engaged in the Union's affairs. Dur-
ing the strike she was a picket captain and prepared sched-
ules pursuant to which picketing was carried on.
Romenesko was refused reinstatement because, as Re-
spondent asserts, of its honest belief that during the strike,
specifically on July 27, 1973, she was involved in miscon-
duct in connection with the damage done to the center
light on Respondent's premises . Respondent's belief, in this
regard, is based on reports made to Victor Sumnicht,
Respondent's general manager , by three employees who
abandoned the strike shortly before its termination, that
they witnessed Romenesko aim a hand gun at the light.
The facts concerning this incident, as I find them, follow.
Romenesko, accompanied by her husband and son, ar-
rived at Respondent's premises in a vehicle of the camper
type at or about 8:30 p.m. on July 27. At the time of her
arrival it was not yet dark and the center light was not in
operation.
The driver of the camper parked it in a space opposite
Respondent's buildings. Romenesko crossed the road sepa-
rating her camper from the plant and walked toward the
center light. When she came to the center light pole Ro-
menesko drew a hand gun, which until that time had been
concealed under her jacket, crouched down and aimed the
gun at the light. After maintaining her position for a min-
ute or two she replaced the gun under her jacket, recrossed
the road, and handed the gun to her son. Throughout the
28 Although Rubin Bros . was reversed on review by the Court of Appeals
for the Fifth Circuit, 203 F.2d 486 , it was cited with approval by the Su-
preme Court in N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 23 (1964).
439
entire episode just recounted no sounds were heard of a
gun being fired or of glass being broken.29
It is reasonable to assume that had Romenesko actually
fired the gun the sound of its firing would have been heard.
It is likewise reasonable to assume that had Romenesko
fired the gun and had its projectile found its mark the
sound of glass breaking would have been heard.
This being so, I find that although Romenesko aimed a
hand gun at the light, she did not actually fire it 30 I further
find that the evidence does not affirmatively establish that
Romenesko was in any way involved in the light's break-
age, which I have earlier found occurred before 7:30 p.m.
on the day in question.
Accordingly, the honest belief held by Respondent that
Romenesko had engaged in misconduct in connection with
the damage to its center light does not provide Respondent
with "an adequate defense to [the] charge of discrimination
in refusing to reinstate [Romenesko because] it affirma-
tively appears that such misconduct did not in fact occur."
Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, 611. I
conclude, therefore, that Respondent violated Section
8(a)(3) of the Act by failing to reinstate Romenesko upon
the termination of the strike.
2. Betty Koester and Vickie Marheine
Betty Koester and Vicki Marheine became members of
the Union in the spring of 1973. They both joined the strike
and picketed Respondent's plant.
Like Darlene Romenesko, Koester and Marheine were
refused reinstatement upon the strike's termination be-
cause of Respondent's asserted honest belief that they en-
gaged in misconduct during the strike. Respondent's belief
that they had done so is based upon reports received by
Respondent from nonstriking employees and upon the per-
sonal observation of Victor Sumnicht, Respondent 's gener-
al manager, that Koester and Marheine jointly threw grav-
el at a nonstriker's car; that Koester threw gravel at an
employee while he was performing security guard duty;
that she pounded on a car as it was being driven out of
Respondent's parking lot; and that she shook a post in-
29 My findings as to this matter are based on testimony given by Nancy
Felton , Joanne Conradt , and Carla Planert , the three employees who report-
ed this incident to Victor Sumnicht, Respondent 's general manager. Had
Felton been the only witness to give evidence concerning this event I would
not have believed her because of her obvious resentment and hostility to-
ward Romenesko and her admitted desire "to cause trouble" for Romenes-
ko. However, Felton's testimony was corroborated by Conradt and Planert,
who did not similarly discredit themselves . Although evincing no great love
for Romenesko , Conradt and Planert did not seem to be testifying out of
hatred or vindictiveness toward her , as was the situation regarding Felton.
On the contrary, by their demeanor Conradt and Planert impressed me as
witnesses who were telling the truth notwithstanding the unpleasantness of
the matter concerning which they were called upon to give evidence. In view
of this, I do not credit Romenesko 's testimony that she did not aim a hand
gun at the center light.
30 Why Romenesko aimed a gun at the light but did not actually fire it
furnishes thought for interesting speculation. Regardless of the reason for
her having engaged in this antic ; whether it was done in "a moment of
animal exuberance" (Milk Wagon Drivers Union v. Meadowmoor Dairies,
Inc., 312 U.S. 287, 293), or whether it was motivated by mischievousness or
an intent to harass Respondent , it was not, in my opinion, "so violent or of
such a serious character as to render [Romeneskol unfit for further service."
N.L R B v. Illinois Tool Works, 153 F.2d 811, 816 (C.A. 7).
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stalled on Respondent's premises as a guide to snow plow
operators.
The incidents involving Koester and Marheine jointly
and Koester individually will be separately considered be-
low.
a. Alleged misconduct by Koester and Marheine jointly
On the morning of August 6, 1973, Elaine Chamness, a
nonstriking employee, came to work in a car driven by her
husband in which Chamness sat on the right side of the
front seat . As the car neared a driveway, surfaced with
small sized gravel , leading to Respondent 's plant Koester
and Marheine, who had earlier picketed across the drive-
way, were standing to its right. No other pickets or strikers
were with Koester and Marheine at the time.
When the car turned into the driveway Chamness saw
"stones come flying at the car" and within "seconds" heard
them "striking the automobile ." Chamness did not see
Koester or Marheine throw the stones , which were , in fact,
small pieces of gravel.
Chamness' car was then driven to Respondent 's parking
lot. Upon its coming to rest there Chamness examined the
vehicle and noticed that "flicks of paint" had been chipped
off its right rear panel 31
Before starting to work on August 6, Chamness in-
formed her supervisor of the foregoing incident. This re-
port formed the basis for Respondent 's belief that Koester
and Marheine, jointly, had engaged in misconduct during
the strike.
Koester and Marheine deny that they threw gravel at
Chamness' car. Their denial, however, is belied by the cir-
cumstances . Thus, both were picketing at the driveway in
question when Chamness ' car arrived . Both were standing
on the right side of the driveway when the car was driven
through it and no one else was with them . That gravel
struck, and chipped paint off, the right rear panel of Cham-
ness' car is attested to by uncontroverted evidence 32 Ac-
cordingly, in view of the foregoing, I find that either Koes-
ter or Marheine, or both, threw gravel at Chamness' car.
However, I am of the opinion that their having thrown
the gravel was not misconduct of such serious nature as to
warrant Respondent 's refusal to reinstate Koester and
Marheine . Under somewhat similar circumstances the
Board stated, "nor do we think that [a striker's] throwing
one handful of small gravel at [a supervisor ] is misconduct
so grave as to justify the refusal to reinstate [the striker]."
W. J. Ruscoe Company, 166 NLRB 618, 620 (1967).33
31 My findings concerning this matter are based on, and the quotations
appearing in the text are taken from , testimony given by Chamness
2 On brief the General Counsel theorizes that the paint could have been
chipped off Chattiness' car before it entered the driveway and that the
sound of gravel hitting the car could have been made by "loose stones on
the gravel driveway [being ] kicked up by the car tires and [striking] the
bottom of the car." Although the General Counsel presents a possible hy-
pothesis, I think the probability of the car's having been damaged in the
manner he suggests is, under the circumstances , too slight to be acceptable.
33 Although the Board 's order in Ruscoe was denied enforcement in the
respect here under consideration (406 F .2d 725 (C.A. 6, 1969) ), I am bound
by what the Board decided . Insurance Agents' International Union, AFL_
CIO (Prudential Ins Co J, 119 NLRB 768, 773, reversed in other respects
361 U.S. 477 (1960).
b. Alleged misconduct by Koester alone
While the strike was in progress Respondent employed
security guards to patrol its premises. To augment the se-
curity guard force Respondent , from time to time , assigned
nonstriking employees , including Eugene Schabo , to per-
form security guard duty.
During the night of August 14, 1973, shortly before the
end of the second shift , while Schabo , as he testified, "was
on security guard ... some stones came flying at [him]"
from the direction in which a group of eight strikers includ-
ing Koester, were standing . Not having seen who threw the
stones, none of which hit him, and the group of strikers
being some 20 to 25 feet distant from him, Schabo, as he
further testified, "yelled, who did that?"
Immediately after Schabo shouted out his question
Koester detached herself from the group of strikers and
walked to one of the plant driveways through which auto-
mobiles carrying nonstriking employees were beginning to
emerge from Respondent's parking lot, the second shift
having just ended. As the last car approached the spot at
which she had stationed herself Koester pounded on it with
her hand.
Schabo reported both incidents to Victor Sumnicht. The
events set forth in this report, as well as another to be
discussed below , formed the basis for Respondent 's belief
that Koester, individually, had misconducted herself dur-
ing the strike. In his report Schabo identified Koester as
having thrown stones at him "because," as he testified,
"she immediately turned and started walking [toward the
driveway, whereas] the other [people in the group] just sat
there."
Koester denied throwing stones and pounding on the
car. Insofar as it relates to the former , I credit her denial.
Schabo's identification of Koester as having thrown the
stones is not founded on personal observation , but on con-
jecture based on the fact that after the stones were thrown
she left a group of strikers standing in the direction from
which the stones came . Such a basis is too speculative to
support an affirmative finding that Koester in fact threw
the stones. This being the case, Respondent's "honest be-
lief [that she did so ] provides [no] defense to [the] charge of
discrimination in refusing to reinstate" Koester. Rubin
Bros. Footwear Inc., et al., 99 NLRB 610, 611.
I come to a different conclusion concerning Koester's
denial that she pounded on an automobile as it left
Respondent 's premises . In view of Schabo's assertive and
believable testimony, unshaken on cross-examination, that
he "saw [Koester] hit the side of a car [as it] was coming
out of one of the driveways," Koester's denial that she did
not do so is not credited.
The last item of strike misconduct attributed to Koester,
forming one of the bases for Respondent 's refusal to rein-
state her, consists of her having shaken a post installed on
Respondent's property for the guidance of snow plow op-
erators.
I find, as to this, despite Koester's testimony that she
was merely "leaning on the pole," that twice on August 24,
Koester and another striker did rock the post, which ex-
tended some 4 feet above the ground; that in doing so they
shook the post from side to side, moving it, as Victor Sum-
ADVANCE INDUSTRIES DIVISION 441
nicht testified, about an "inch and a half." I further find
that the post was not damaged in the process.
Having found that Koester pounded on an automobile
as it departed from Respondent 's premises and that she
rocked the snow plow post , the question remains as to
whether these acts justified Respondent 's refusal to rein-
state her. Whether taken singly or together, or even when
considered in connection with Koester 's having thrown
gravel at Chamness ' car, they were not , in my opinoon
"misconduct . . . of such serious character as to render
[Koester] unfit for further service." N.L.R.B. v. Illinois Tool
Works, 153 F.2d 811, 816 (C.A. 7).
Accordingly, I conclude that Respondent violated Sec-
tion 8(a)(3) of the Act by failing to reinstate Koester and
Marheine upon the strike 's termination.
B. Facts and Conclusions Concerning Respondent's Alleged
Violations of Section 8(a)(3) of the Act by Depriving an
Employee of Overtime Work
David Lee, who, the complaint alleges, was deprived of
overtime work in violation of Section 8(a)(3) of the Act,
became a member of the Union in November 1972. He
joined the strike and picketed Respondent's plant.
For about the last 2 years Lee and another employee,
Richard Hoffman, who did not participate in the strike,
have been the only full time employees in Respondent's
sheet metal department. Before the strike each worked 45
hours a week, 5 hours of which constituted overtime work.
Upon the termination of the strike Lee was reinstated,
but told by his supervisor, Howard Linstad, that he would
be working only 40 hours a week because, as Linstad testi-
fied, it was Respondent's "aim . . . to keep all employees
at forty hours." Nevertheless, Hoffman, who had not
joined the strike continued to work 45 hours a week.
Some 3 weeks after his reinstatement Lee complained to
Victor Sumnicht about his being deprived of overtime
work, pointed to the fact that Hoffman was performing
such work, and suggested to Sumnicht, as Lee testified,
that "if anyone else is working . . . overtime in [sheet met-
al] department [he] ought to be allowed to do so." Sum-
nicht agreed. Since then Lee has worked the same number
of hours each week as he had worked before the strike.
The foregoing findings, based on evidence adduced by
the General Counsel, establish, prima facie, that Respon-
dent discriminated against Lee because of his participation
in the strike. Duncan Foundry and Machine Works, Inc., 176
NLRB 263, 264, enfd. 435 F.2d 612 (C.A. 7, 1970).
At the trial Respondent indicated that although it did
not agree with the complaint's allegation that Lee was de-
prived of overtime work in violation of Section 8(a)(3) of
the Act, it would not litigate the issue . And Respondent did
not do so, not even by cross-examining Lee or Linstad, his
supervisor.
By not presenting counterevidence to rebut the prima
facie case developed by the General Counsel Respondent
took "the risk of an adverse finding." Avon Convalescent
Center, 209 NLRB 937 (1974). I now make such a finding.
Accordingly, I conclude on the evidence adduced on this
matter by the General Counsel that by depriving Lee of
overtime work upon his reinstatement after the strike Re-
spondent violated Section 8(a)(3) of the Act.
C. Facts Concerning Respondent's Alleged Violation of
Section 8(a)(3) of the Act by Discharging Employees
Mary Blaese , Verlee Freimuth, Peggy Bennett, Bonnie
Tullberg, and Rita Weber (collectively referred to as the
Five) were discharged on September 7, 1973.34 Each joined
the Union before the strike, and each, except Tullberg,
picketed Respondent's plant. Tullberg was the Union's
steward and served as the Union's observer at the represen-
tation election.
Before the strike the Five worked in Respondent's as-
sembly plant on the second shift 35 Upon the conclusion of
the strike the Five were reinstated and notified by Respon-
dent to "report at the start of [their regular] shift on Friday,
August 31, 1973." 36 They reported as directed and worked
without incident until about 8:30 p.m.
At that time, it occurred to Linda Kersten, their supervi-
sor,37 that the Five, who were at work for the first time`
since the strike's termination, might not be aware that the
shift would end, and that the plant would be closed, at 10
o'clock. Accordingly, she decided to advise them of the
early ending of the shift and of the plant's early closing.
Upon being so advised, Tullberg, the second of the Five to
whom Kersten spoke, stated, as Kersten testified, that "she
wasn't leaving at ten o'clock, she wanted to work to twelve
o'clock."
Anticipating a problem because of what Tullberg had
said, Kersten consulted with David Vyse, the supervisor of
another department. Vyse told her that if, in fact, the Five
refused to leave the plant when it closed at 10 o'clock, he
would call the police.
Kersten then telephoned Victor Sumnicht and apprised
him of the anticipated difficulty. Sumnicht approved of the
manner in which Vyse intended to handle the problem,
should it actually arise.
Following her conversations with Vyse and Sumnicht,
Kersten returned to the assembly department and in-
formed each of the Five that the plant would close at 10
o'clock. Several replied that they would not depart at that
time. None indicated an intention of doing so.
Although the Five never explained to Kersten or Vyse
why they were reluctant to leave the plant at 10 o'clock,
they were concerned about the possibility of their losing
holiday pay for Labor Day unless they worked 8 hours on
August 31, the last working day before the holiday.38 They
34 The complaint alleges that these discharges were violative of Sec.
8(aX3) of the Act.
3 As will be recalled , I have found that before the strike the hours of the
second shift were from 4 p.m to midnight and that on August 31 the shift
was scheduled to begin at its normal time , but was slated to end at 10 p.m.
36 G.C Exh. 11.
37 My reference to Kersten as the Five's supervisor is made for conve-
nience only and should not be construed as a finding that she is a supervisor
within the meaning of the Act. In the representation proceeding she, like
Romenesko, was found not to have that status.
38 As I have earlier found , under Respondent's policy an employee is not
paid for a holiday unless he works the day before , and the day after, the
holiday.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were also troubled about the prospect of losing wages for 2
hours 39
Being bothered by these matters, Freimuth , after consul-
tation with Tullberg, the Union's steward, telephoned Jerry
Jahnke , the Union 's business manager, at about 8:45 p.m.
and informed him of the situation . Jahnke instructed her,
as she testified , "to stay working [beyond ten o'clock] even
though they turned the lights out," and that in the mean-
while "he would come over to the plant and try to get
[their] questions answered ." Freimuth informed her four
colleagues of Jahnke 's instructions.
At 10 o'clock the Five made no move to leave the plant.
Instead, they prepared for the 10-minute rest break they
usually took at this hour.
When it became apparent that the Five would remain in
the plant after 10 o'clock , Kersten their supervisor, and
Vyse, who supervised another department, told them that
the plant was closing and that if they did not leave their
timecards would be punched out. The Five, however, per-
sisted in remaining in the plant . Kersten, therefore,
punched their cards 40 and Vyse called the police.
Approximately at this time, Freimuth, as she testified,
sought advice from Jahnke , the Union's business manager,
who, by then , was at Respondent 's premises, as to what the
Five should "now . . . do." Jahnke instructed them to "go
back and work." Accordingly, at the end of what would
normally have been their rest period the Five returned to
their benches and resumed their work.
The police arrived at the plant at about 10:10 p.m. After
conferring with Vyse and Kersten for about 10 minutes,
the police entered the assembly department where the Five
were still working . For the next 25 minutes , as Respondent
aptly states in its brief, "the police officers requested, in-
structed, ordered, and in every conceivable way attempted
to cause the individuals to leave the premises ," but to no
avail.
While the police were importuning the Five to leave the
plant , Freimuth , accompanied by a policeman and some
members of the group , once more sought Jahnke's advice.
Jahnke told them , as Freimuth related "that he couldn't get
any answers to the questions that he wanted ," and again
instructed them to "go back to work."
Being thus stiffened in their resolve not to leave the
premises before midnight , the Five refused to depart volun-
tarily. In view of this, at or about 10:45 p.m. they were
arrested and removed from the plant.
On September 4 Respondent placed the Five "on indefi-
nite suspension . . . for incidents [of] Friday night, August
31st." 4 On September 7 they were discharged. Each was
informed by letter that "the events and surrounding cir-
cumstances of the Friday, August 31 incident . . . left
[Respondent] with no alternative." 42
39 In this regard , Sumnicht testified he "did [not] intend to pay the .. .
five . . . for the hours of ten to twelve."
40 As Vyse explained , "when [an employee 's] timecard is punched out [the
employee is] no longer being paid."
G.C. Exh. 14.
42 G.C. Exh. 13.
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Violation of Section 8(a)(3) of the Act
by Discharging Employees
The parties assure me that no case decided by the Board
or the courts deals squarely with the issue presented by the
Five's refusal to leave Respondent 's premises at the end of
their shift. However, in view of the in-plant nature of the
incidents they have analogized the situation to an in-plant
strike even though the Five continued to work while they
remained in the plant after 10 p.m., when it was to have
been closed. The analogy is apt and I will accept it.
In some cases in-plant strikes have been held to fall with-
in the protection afforded concerted activity by Section 7
of the Act and in some cases different results have been
reached. The leading authority in the latter line is, as is well
known, N.L.R.B. v. Fansteel Metallurgical Corporation, 306
U.S. 240, 256-257.
There, the Supreme Court had for decision the question
of whether an unfair labor practice was committed by the
discharge of employees who, in order to compel their em-
ployer to bargain with their union, stopped work, seized
their employer's buildings and held them until ousted by
police. In finding this conduct to have been unprotected by
the Act and, consequently, the discharges privileged the
Court stated:
This was not the exercise of "the right to strike" to
which the Act referred. It was not a mere quitting of
work and statement of grievances in the exercise of
pressure recognized as lawful. It was an illegal seizure
of the buildings in order to prevent their use by the
employer in a lawful manner and thus by acts of force
and violence to compel the employer to submit. When
the employees resorted to that sort of compulsion they
took a position outside the protection of the statute
and accepted the risk of the termination of their em-
ployment upon grounds aside from the exercise of the
legal rights which the statute was designed to con-
serve.
A different point of view is presented in Pepsi-Cola Bot-
tling Company of Miami, Inc., 186 NLRB 477, 478, enfd.
449 F .2d 824 (C.A. 5, 1971). 43 There , the Board held, with
subsequent court approval , that an in-plant work stoppage
undertaken to protest the discharges of employees not in-
volved in the "sitin," which did not extend beyond the
termination of the protesters ' shift , and which ended when
the strikers complied with a request by police to leave the
plant was not "an illegal sitdown strike ." Accordingly, the
discharge of the employees who engaged in the "sitin" was
found to have contravened Section 8(a)(3) and (1) of the
Act.
As noted, the Board's Order in Pepsi-Cola was enforced
by the Court of Appeals for the Fifth Circuit 44 In doing so
the court was careful to point out that there were "no facts
43 Although in his brief the General Counsel cites many authorities in
addition to Pepsi-Cola to support the position he advocates ; i.e., that the
discharges here were violative of Sec. 8(a)(3) of the Act, he states that Pepsi-
Cola is the "lead case."
14 N.L. R.B. v Pepsi-Cola Bottling Company of Miami, Inc., 449 F.2d 824,
829-830 , cert . denied 407 U.S. 910 ( 1972).
ADVANCE INDUSTRIES DIVISION
... tending to show that the employees were [holding] the
premises in defiance of the owner's right of possession";
that the "sit-down did not, nor did it threaten to carry over
into the next shift"; that "the employees left immediately
when requested to do so by the police"; that their
employer's earlier disobeyed order that they leave the plant
"serve[d] no immediate employer interest"; and, finally,
that there was "no . . . established, regular procedure by
which employees were to present their grievances." Under
the foregoing "circumstances," the court went on to say,
"we cannot find that the employees had no interest in pre-
senting their grievance [concerning the discharge of other
employees] in the manner chosen."
The General Counsel urges me to decide the issue pre-
sented by the discharge of the Five as the Board did in
Pepsi-Cola; that is, by finding it violative of Section 8(a)(3)
and (1) of the Act. Respondent urges me to decide that the
discharge did not trench upon either section, as the Su-
preme Court did in Fansteel. Although the question is
close, I think Respondent has the better of the argument.
The facts upon which the discharge of the Five was
based do not fall completely within the different patterns
presented by Fansteel on the one hand, and Pepsi-Cola on
the other. However, the differences between the facts in the
instant case from those in Pepsi-Cola and their general re-
semblance to the facts in Fansteel lead me to the conclu-
sion that dispositive precedent is Fansteel, not Pepsi-Cola.
The first item for consideration is that in this case, unlike
Pepsi-Cola there is an "established, regular procedure by
which employees [are] to present their grievances." The en-
forcing court in Pepsi-Cola laid great stress upon the ab-
sence of such a procedure, which, although present here,
was not followed by the Five.
On brief the General Counsel states that "respondent's
grievance procedure is not of [an] 'established' nature." I
do not agree.
As I have found, Respondent publishes, and makes
available to employees, a guidebook 45 in which a grievance
procedure is set forth. There having been no union with
which Respondent was obligated to bargain when the
grievance procedure was adopted, nor is there even now a
union entitled to recognition by Respondent,46 it was not
required to do more in establishing a grievance procedure.
Cf. Lawson-United Feldspar & Mineral Co., 189 NLRB 350,
362.
Next to be considered is the Five's refusal to comply
voluntarily with requests and orders to leave the plant
made by Respondent's agents and policemen. These re-
quests and orders were not akin to the order to leave given
to the in-plant strikers in Pepsi-Cola which, the court stated
in enforcing the Board's Orders, "served[d] no immediate
employer interest." Here, the "immediate employer inter-
est" to be served in having the Five leave Respondent's
building was the necessity for it to be closed and secured at
the end of the scheduled working day.
By remaining in the plant until ousted by police, despite
requests and orders to leave serving an "immediate em-
4s G.C. Exh. 26.
46 It will be remembered , in this connection , that the validity of the
Union's certification is under reconsideration.
443
ployer interest," the Five, in effect if not in fact, illegally
seized the plant 47 In this respect what the Five did more
closely resembles the conduct of the sit-down strikers in
Fansteel, who also seized a plant and refused to leave until
evicted by police, than it does that of the employees in
Pepsi-Cola, who, as noted by the court in its opinion en-
forcing the Board's Order, did not, like the Five, "hold the
premises in defiance of the owner's right of possession."
Nor did the employees in Pepsi-Cola, like the Five, refuse
to leave the plant voluntarily when the police requested
them to do so.48
The final act distinguishing this case from Pepsi-Cola is
that there, as the Court of Appeals for the Fifth Circuit
stated when it enforced the Board's Order, "the sit-down
did not, nor did it threaten to carry over into the next
shift." Here, there was both a threat by the Five not to
leave Respondent's plant at the end of their shift and an
effectuation of the threat. The foregoing not only differen-
tiates this case from Pepsi-Cola, but, to an extent, also
marks its resemblance to Fansteel, where too, the "sit-
down" carried over beyond the striker's shift.
Accordingly, I find, as the Supreme Court did in Fa -
steel, that the conduct of the Five in refusing to le e
Respondent's plant in compliance with orders and requ sts
to depart and in remaining there after the end of their hift
did not fall within the protection afforded to employes by
Section 7 of the Act. I conclude, therefore, that b dis-
charging them for having done so Respondent did not vio-
late Section 8(a)(3) and (1). Consequently, I will recom-
mend that paragraph 7 and the relating portion of
paragraph 9 of the complaint be dismissed.
VI. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's unfair labor practices, as found above, oc-
curring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
VII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act my recommended Order will require Respondent
to cease and desist therefrom and to take such affirmative
action as will effectuate the policies of the Act. In this
connection, my Order will require Respondent to offer im-
mediate and full reinstatement to Darlene Romenesko,
Betty Koester, and Vicki Marheine, and that Respondent
make them and David Lee whole for any losses they may
have suffered by reason of the discrimination practiced
07 In KDI Precision Products, Inc., 176 NLRB 135, 137, enfd. 436 F 2d 385
(C.A. 6, 1971), it was stated that "the gravamen of a plant seizure involves a
refusal by employees to yield possession of a plant when ordered to do so."
"Although the Five held Respondent's premises only about an hour, a
relatively short period of time when compared with the length of time
Fansteel 's buildings were occupied by sit-down strikers, the important fact
is that there was here, as in Fansteel, an illegal plant seizure . This fact, the
Court held in Fansteel, deprived the strikers of the Act's protection.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against them . Any backpay found to be due to the fore-
going employees shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and shall include interest in the amount and
manner provided for in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Darlene Romenesko , while in Respondent 's employ,
was not a supervisor within the meaning of the Act.
4. By failing and refusing to reinstate Darlene Romenes-
ko, Betty Koester , and Vicki Marheine upon the termina-
tion of the Union's strike against Respondent, thereby dis-
couraging membership in the Union, Respondent has
engaged , and is engaging, in unfair labor practices within
the meaning of Section 8(aX3) and (1) of the Act.
5. By depriving David Lee of overtime work upon his
reinstatement after the Union's strike against Respondent,
thereby discouraging membership in the Union, Respon-
dent has engaged, and is engaging , in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
6. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) or (1) of the Act by
discharging Mary Blaese, Verlee Freimuth , Peggy Bennett,
Bonnie Tullberg, and Rita Weber.
7. The unfair labor practices engaged in by Respondent,
as set forth in Conclusions of Law 4 and 5, above, affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 49
Respondent , Advance Industries Division-Overhead
Door Corporation , its officers , agents , successors , and as-
signs shall:
1. Cease and desist from:
(a) Discouraging membership in Fox River Valley Dis-
trict Council of Carpenters, Local Union 2497, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, or any other labor organization , by discharging or
refusing to reinstate employees , or by discriminating in any
49 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
manner against employees in regard to hire or tenure of
employment or any term or condition of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization , to form, join , or assist labor orga-
nizations , to bargain collectively through representatives of
their own choosing, or to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutu-
al aid or protection as guaranteed in Section 7 of the Na-
tional Labor Relations Act, as amended , or to refrain from
any or all such activities, except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
in conformity with Section 8 (a)(3) of said Act.
2. Take the following affirmative action which, it is
found , will effectuate the policies of the National Labor
Relations Act, as amended.
(a) Offer to Darlene Romenesko , Betty Koester, and
Vicki Marheine immediate and full reinstatement to their
former jobs , or, if those jobs no longer exist, to substantial-
ly equivalent positions , without prejudice to their seniority
or other rights or privileges and make them whole, in the
manner set forth in the section of this Decision entitled
"The Remedy," for any loss of earnings they may have
suffered by reason of the discrimination practiced against
them.
(b) Make David Lee whole, in the manner set forth in
this Decision entitled "The Remedy," for any loss of earn-
ings he may have suffered by reason of the discrimination
practiced against him.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at its premises, in Appleton , Wisconsin , copies
of the attached notice marked "Appendix." 50 Copies of
said notice , on forms provided by the Regional Director
for Region 30, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that paragraph 7 and the relating
portion of paragraph 9 of the complaint be, and they here-
by are, dismissed.
30 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National 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"