United States Gypsum

National Labor Relations Board - Board Decisions

May 29, 1987

284 N.L.R.B. 4 (N.L.R.B. 1987)

4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United States Gypsum and International Union of
Electrical Radio and Machine Workers, AFL-
CIO-CLC and its Local 727. Cases 8-CA-
14365, 8-CA-14578, 8-CA-14869, 8-CA-
15043, 8-CA-15043-2, 8-CA-15043-3, 8-CA-
15043-4, and 8-CA-15502
29 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 22 May 1984 Administrative Law Judge
Richard L. Denison issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs and the Respond-
ent tiled briefs in opposition.
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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, 2 subject to the following qualifica-
tions, and to adopt the recommended Order as
modified.
In adopting the judge's reinstatement of the set-
tlement agreement in Cases 8-CA-14365, 8-CA-
14578, 8-CA-14869, 8-CA-15043, and 8-CA-
15043-2, we do not rely on his conclusion that the
concept of sua sponte reconsideration is completely
outside the scope of Section 102.19(c) of the
Board's Rules and Regulations. Our decision here
only affirms the judge's finding that the General
Counsel acted inappropriately in the circumstances
of this case. More specifically, for reasons the
judge sets out, we agree that the various grounds
urged for setting aside the agreement (i.e., the al-
leged mistake in entering the agreement and the al-
leged unfair labor practices after the agreement)
The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive 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 Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings.
The Charging Party contends that the judge's conduct at the hearing,
interpretation of the evidence, and credibility findings showed bias and
prejudice against the Charging Party. Upon examination of the judge's
decision and the entire record, we are satisfied that the contentions of the
Charging Party in this regard are without merit
2 In agreeing with the judge, however, Members Babson and Stephens
specifically disavow reliance on the judge's comments at sec VI, pars. 2
and 3, and the accompanying fn. 19, in which he criticizes the General
Counsel's alleging these discharges to be unlawful in light of the position
the General Counsel took on these dischargees in certain settled unfair
labor practice cases against the Union. See Markle Mfg., 239 NLRB 1142,
1151-1152 (1979), which is contrary to the judge's comments on the
effect of these settled cases on the later unfair labor practice allegations
in this case
have no merit on the particular facts of this case.
In so concluding, we add the following comments.
The amended consolidated complaint alleges,
inter alia, that the Respondent violated Section
8(a)(5) and (1) of the Act in that about 1 July 1981
it unilaterally changed the lunch and break periods
of its unit employees. In his decision the judge con-
cluded that the Respondent had fulfilled its bar-
gaining obligation on this issue and was thus enti-
tled to act as it did by instituting the lunch and
break period change. Contrary to the judge, we
find that this issue is squarely governed by Holly-
wood Roosevelt Hotel Co., 235 NLRB 1397 (1978),
and that the General Counsel should never have
permitted this charge to survive.
In Hollywood Roosevelt Hotel, the Board held that
a settlement agreement disposes of all issues involv-
ing presettlement conduct unless prior violations of
the Act were unknown to the General Counsel, not
readily discoverable by investigation, or specifical-
ly reserved from the settlement by the mutual un-
derstanding of the parties. The Board further held
that the mere fact that a charge is filed after a set-
tlement agreement has been negotiated does not
ipso facto establish that the General Counsel was
unaware of the alleged misconduct. In this case the
charge alleging that the Respondent unilaterally
changed lunch and break periods was filed on 23
October 1981. The settlement agreement was exe-
cuted on 27 November 1981. Thus, although this
charge was not specifically addressed by the settle-
ment agreement, it is clear that both the General
Counsel and the Charging Party had knowledge of
these allegations at the time the agreement was ex-
ecuted. In addition, there is no evidence that the
change in lunch and break periods comes within
any of the exceptions to the general rule that a set-
tlement agreement with which the parties have
complied bars subsequent litigation of presettlement
conduct alleged to constitute unfair labor practices.
In these circumstances, we conclude that Case 8-
CA-15043-3 was encompassed by the settlement,
and therefore we do not reach the merits of this al-
legation. 'This conclusion, however, does not affect
the ultimate disposition of this case.
The judge further found that the General Coun-
sel failed to establish a prima facie case of discrimi-
nation with regard to the discharges of employees
Bankston, Crews, Everett, and McConnell. The
Charging Party has excepted to this finding. As-
suming that the General Counsel did establish a
prima facie case, we agree with the judge, that at
the time of the discharges, and at all times material,
the Respondent had an honest belief that each of
these employees engaged in serious strike miscon-
duct. We also agree with the judge that the Charg-
284 NLRB No. 2
U. S GYPSUM 5
ing Party and the General Counsel failed to carry
the burden that then shifted back to them-the
burden of showing that the employees did not in
fact engage in such misconduct. Accordingly, we
adopt the judge's finding that the Respondent did
not violate Section 8(a)(3) and (1) by discharging
these employees. Rubin Bras Footwear, 99 NLRB
610, 611 (1952).
ORDER
The recommended Order of the administrative
law judge is adopted, the complaint in Cases 8-
CA-15043--3, 8-CA-15043-4, and 8-CA-15502 is
dismissed and the settlement agreement in Cases 8-
CA-14365, 8-CA-14578, 8-CA-14869, 8-CA-
15043, and 8-CA-15043-2 is reinstated.
Kathy A. Wireman and Frank D. Motil Esqs., for the
General Counsel.
John A. McDonald and Thomas G. Cline, Esqs. (Keck,
Mahin & Cate), of Chicago, Illinois, for the Respond-
ent.
Richard F. Rice, Esq., of Kettering, Ohio, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This case was heard at Youngstown, Ohio, on July 26,
August 31, September 1, and November 15-18, 1982; and
January 10-13, 1983. The initial charge in the series com-
prising this matter, Case 8-CA-14365, filed November 5,
1980, alleged violations of Section 8(a)(1) and (5) of the
Act. Subsequent charges alleged further violations of
Section 8(a)(1), (3), and (5) of the Act.' The amended
consolidated complaint, as further amended at the hear-
ing, basically alleges that the Respondent engaged in sur-
face bargaining with the Charging Party, including a
number of specific acts of interrogation and alleged bad-
faith bargaining, which conduct allegedly caused and/or
prolonged an unfair labor practice strike of Respondent's
bargaining unit employees. At the conclusion of the
strike the Respondent allegedly unlawfully declined to
reinstate a large number of replaced strikers, and dis-
charged four striking employees, allegedly for strike mis-
conduct.
The Respondent's answer, as amended, denies the alle-
gations of unfair labor practices alleged in the complaint.
On the record in the case, including my consideration of
the briefs and observation of the witnesses, I make the
following
1 The filing dates and substance of these charges are detailed in sec IV
of this decision.
FINDINGS OF FACT
I. JURISDICTION
Based on the allegations of paragraphs 2 and 3 of the
amended consolidated complaint, as amended, admitted
by paragraphs 2 and 3 of the answer, I find that the Re-
spondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
IL LABOR ORGANIZATION
Based on the allegations of paragraph 4 of the amend-
ed consolidated complaint, as amended, admitted by
paragraph 4 of the answer, I fmd that the Charging
Party Uni9ns are each labor organizations within the
meaning of Section 2(5) of the Act.
III. INTRODUCTION
The Respondent is a large Delaware corporation with
plants in various States of the United States. At Warren,
Ohio, the only plant involved in this proceeding, the
Company is engaged in the manufacture and distribution
of building materials and expanded metal products. The
Respondent and the Charging Party have had a continu-
ous collective-bargaining relationship covering the
Warren production and maintenance employees since the
Unions' certification on November 16, 1964. 2 The most
recent contract was in effect from November 1, 1978,
until October 31, 1980. By letter dated August 1, 1980,
addressed to Works Manager John H. Daugherty, Pat-
rick Kearney, the Unions' International representative
for servicing the Warren contract, notified the Company,
as required by Section 8(d), of the Unions' intent to ne-
gotiate a new labor agreement. Kearney requested the
commencement of negotiations at any time after August
31, 1980. Likewise on August 1, 1980, the Unions sent
the required 60-day notice to the Federal Mediation and
Conciliation Service. Negotiations began on September
24, 1980. Kearney and Daugherty were the principal
spokesmen for their respective sides. Kearney testified
that his prior relationship with the Company had been
fairly smooth, and that the 1978 negotiations had taken
only five meetings to arrive at an agreement. The 1980
negotiations, however, continued for 17 bargaining ses-
sions between September 24, 1980, and January 21, 1982.
Twelve of those meetings occurred before the strike that
began at 11:30 a.m., June 3, 1981. During the strike the
Company replaced the striking employees. The strike
ended when the Unions made an unconditional offer to
return to work December 8, 1981.
2 The collective-bargaining unit is
All production and mamtenance employees at the Warren, Ohio
plant, excluding all office clerical employees, guards, professional
employees, the Works Manager, superintendents, foremen, head ma-
chinist, head mechanics and all other supervisors as defined in the
Act.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IV. THE GENERAL COUNSEL'S RECISION OF THE
SETTLEMENT AGREEMENT
It is necessary to the proper analysis of the events sur-
rounding the General Counsel's action with respect to
the unilateral settlement agreement approved by Region-
al Director Bernard Levine on November 22, 1981, and
the proper application of the law to these events, that
the relevant circumstances be set forth chronologically in
considerable detail.
Thus, as early as November 5, 1980, the Unions filed
the initial charge in this series, Case 8-CA-14365, alleg-
ing violations of Section 8(a)(1) and (5) of the Act, in
that "since on or about October 6, 1980, and at all times
thereafter [the Company] has refused to bargain collec-
tively with [the Union] in respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment by refusing to supply upon. . . request. . .
job descriptions of all classifications covered by the col-
lective-bargaining agreement." This charge also con-
tained a specific 8(a)(1) allegation relating to alleged con-
duct by the Employer's representatives in October 1980.
On January 29, 1981, the Unions filed a charge in Case
8-CA-14578, another 8(a)(1) and (5) charge, alleging
that on and after December 5, 1980, the Company re-
fused to bargain with the Unions by "changing the pro-
cedure of permitting a representative of the local union
to collect union dues in the plant, by altering the griev-
ance procedure, by refusing to permit the Unions to post
notices on its bulletin board, and by refusing to permit a
representative of Local 727 to collect dues from mem-
bers of the Union in a non-working area of the plant."
On February 27, 1981, the Regional Director issued a
complaint in Cases 8-CA-14365 and 8-CA-14578, alleg-
ing violations of Section 8(a)(1) and (5) of the Act. The
complaint alleged that during October 1980, Supervisor
Edward Booth interrogated employees, solicited griev-
ances from them, and/or impliedly promised them un-
specified benefits in violation of Section 8(a)(1); and that
since about December 11, 1980, the Company had made
the unilateral changes referred to by the Unions in Case
8-CA-14578, as set forth above.
On March 6, 1981, the Regional Director dismissed
Case 8-RM-832, in which the Company had pursued its
expressed doubt of the Unions' majority status, and, as a
result of that action, beginning about March 8, 1981,
dues collection, bulletin board use, and grievance proc-
essing was once again resumed in accordance with the
provisions of the expired contract. These procedures re-
sumed while the Employer's request for review of Case
8-RM-832, denied by the Board on April 27, 1981, was
still pending.
On May 21, 1981, the Unions filed a charge in Case 8-
CA-l4869, another 8(a)(1) and (5) charge, alleging that
since about May 12, 1981, the Company refused to bar-
gain with the Unions by failing and refusing to agree to
unconditionally recognize the Unions, and by failing and
refusing to agree to an unconditional recognition clause.
On July 24, 1981, the Union filed a charge in Case 8-
CA-l5043, an 8(a)(1) charge, alleging that, since about
July 17, 1981, company supervisors solicited employees
to return to work from the strike by promising them ben-
efits and by photographing employees engaged in lawful
picketing.
On September 14, 1981, the Unions filed a charge in
Case 8-CA-15043-2, a further 8(a)(1) and (5) charge, al-
leging "At all times material and particularly, since June
3, 1981 [the Company] has refused to bargain collective-
ly with the Unions. . . in that it has refused to confer in
good faith with the above-named labor organizations for
a new collective-bargaining agreement." Thus, as early
as September 14, 1981, the Regional Office had before it
an overall bad-faith bargaining charge, which specifically
required it, as a part of the Regional Office's investiga-
tive process, to inquire in detail into every aspect of the
bargaining between the Company and the Unions. Nev-
ertheless, although an extensive investigation of this and
all other charges filed by the Unions was conducted, no
complaint alleging a lack of intention to reach an agree-
ment in bargaining, otherwise known as overall bad-faith
bargaining or "surface" bargaining, was issued prior to
the settlement of this matter, as discussed hereafter.
On September 22, 1981, the Regional Director issued
an order consolidating cases, second amended consolidat-
ed complaint, and notice of consolidated hearing in Cases
8-CA-14365, 8-CA-14578, 8-CA-14869, and 8-CA-
15043. In addition to reiterating the allegations of the
previous complaint, this document added, additional
8(a)(1) allegations concerning alleged conduct by Super-
visors James Sylvester and Donald C. Eschler in June,
July, and August 1981, by allegedly soliciting striking
employees to return to work by promises of benefits and
threats of loss of employment. The complaint also added
a specific 8(a)(5) allegation to the effect that the Compa-
ny unlawfully bargained to impasse about May 20, 1981,
concerning its proposed recognition clause conditioned
on the continued certification of the Unions as collective-
bargaining agent, notwithstanding the fact that on March
6, 1981, the Regional Director had dismissed Case 8-
RM-832.
On October 23, 1981, the Unions filed a charge in
Case 8-CA-15043-3, an 8(a)(1), (3), and (5) charge, al-
leging that since about July 1, 1981, the Company re-
fused to bargain with the Unions by unilaterally chang-
ing the lunch period and break periods of its employees.
The charge also contained the specific allegation that
"since on or 'about June 3, 1981 . . . the employees have
engaged in a strike . . . caused and prolonged by the
employer's commission of unfair labor practices." Thus,
it is clear that, at least by this point, the Unions were
claiming that the June 3 strike was an unfair labor prac-
tice strike.
Meanwhile, during the period June through October
1981, the Company had filed a series of charges against
the Unions claiming strike misconduct by agents of the
Unions. On November 13, 1981, the Regional Director
issued a second amended consolidated complaint in Cases
8-CB-4497, 8-CB-4547, and 8-CB-4497-4, which con-
tamed 31 separate allegations of alleged strike miscon-
duct by agents of the Unions, including Local 727 Vice
President David Everett and striking employee-pickets
Walter McConnell, John Bankston, and Wally Crews.
U.S. GYPSUM 7
These cases were subsequently settled unilaterally despite
the Company's objection.
On November 27, 1981, Regional Director Levine ap-
proved a unilateral settlement agreement in Cases 8-CA-
14365, 8-CA-14578, 8-CA-14869, 8-CA-15043, and 8-
CA.-15043-2 (the overall bad-faith bargaining charge),
over the Unions' objections. The parties were notified of
his action by a letter dated November 30, 1981. The
Unions appealed the Regional Director's approval of the
settlement agreement to the General Counsel as provided
in Sections 101.9(c)(2) and 102.19(c) of the National
Labor Relations Board's Rules and Regulations.
On December 7, 1981, picketing ceased, and on De-
cember 8, 1981, by letter, the Unions unconditionally of-
fered to return to work immediately
On December 9, 1981, the Company sent a telegram to
the Unions and the affected employees stating that David
Everett, Walter McConnell, John Bankston, and Wally
Crews had been discharged for strike misconduct. On
December 16, 1981, the Unions filed a charge in Case 8-
CA-15043-4, alleging that the Company violated Section
8(a)(1) and (3) of the Act by refusing to reinstate imme-
diately the alleged unfair labor practice strikers, and by
discharging Everett, McConnell, Bankston, and Crews.
On December 23, 1981, the Unions appealed the approv-
al of the settlement.
On December 31, 1981, the Regional Director issued a
separate complaint and notice of hearing in Case 8-CA-
15043-3, alleging that the Employer violated Section
8(a)(1) and (5) of the Act in July 1981, by extending the
shift hours of employees who were working during the
strike without prior notice to or bargaining with the
Unions.
On January 20, 1982, the Unions' appeal of the settle-
ment was denied on behalf of the General Counsel in a
letter from the Acting Director of the Office of Appeals,
which states, in relevant part, "Under all the circum-
stances and noting that the Regional Director has not, at
this time, determined that the strike engaged in by the
employees prior to the approval of the settlement agree-
ment was an unfair labor practice strike, it was conclud-
ed that the settlement agreement and notice provides a
complete remedy for the violations for which relief
could be achieved by going to trial; thus, the undertak-
ings contained therein effectuate the purposes and poli-
cies of the Act." Thus, the Office of the General Counsel
was fully aware of the existence of the strike issue at the
time the appeal was denied, and acted in the light of that
knowledge.
Over a month later, on February 22, 1982, the General
Counsel, by letter signed by the Acting Director of the
Office of Appeals, rescinded his decision of January 20.
The letter stated, "We have reconsidered sua sponte our
January 20, 1982, decision denying your appeal in the
above matters and have concluded that our decision was
erroneous, since there had been no determination made
prior to the Regional Director's approval of the settle-
ment agreement resolving the status of the employees
who allegedly struck in protest of the unfair labor prac-
tices that were settled. Accordingly, our prior decision is
rescinded, your appeal is sustained, and the case is re-
manded to the Regional Director for such determination
and inclusion in any settlement agreement for provisions
for reinstatement of the strikers if it is determined they
are ULP strikers."
On February 4, 1982, the Unions filed a charge in Case
8-CA-15502, an 8(a)(1) and (3) charge, alleging that
since about November 27, 1981, the Respondent refused
to return Virgil Galbincea to work from sick leave be-
cause of his membership in and activities on behalf of the
Unions.
On March 26, 1982, the Acting Regional Director
issued an order consolidating cases, amended consolidat-
ed complaint, and notice of consolidated hearing in Cases
8-CA-14365, 8-CA-14578, 8-CA-14869, 8-CA-15043,
8-CA-15043-2, 8-CA-15043-3, 8-CA-15043-4, and 8-
CA-15502, alleging violations of Section 8(a)(1), (3), and
(5) of the Act. In addition to repeating the unfair labor
practice allegations in previous complaints, this docu-
ment alleges limited specific violations of Section 8(a)(1)
and (5), which allegedly occurred at the bargaining table
during the period covered by the settlement agreement.
Thus, the complaint alleged that the Respondent's chief
negotiator impliedly threatened employees to refuse to
bargain with the Unions about April 21, 1981, and on
August 5, 1981, rejected the Unions' written proposal
without either reading or reviewing it. The amended
consolidated complaint also recites certain circumstances
surrounding Regional Director Levine's approval of the
settlement, its appeal by the Unions, the denial of that
appeal by the General Counsel, and his subsequent sua
sponte abrogation of the settlement commitment. Finally,
the amended consolidated complaint alleges for the first
time that the strike of Respondent's unit employees was
caused by and/or prolonged by the unfair labor practices
of the Respondent, recites the names of the replaced
strikers who allegedly unconditionally offered to return
to work, together with those who allegedly were refused
reinstatement about December 9, 1981, and alleges that
John Bankston, Wally Crews, David Everett, and Walter
McConnell were discriminatorily discharged about De-
cember 9, 1981, in violation of Section 8(a)(1) and (3) of
the Act.
At the outset of the trial of this matter on July 26,
1982, approximately a year and a half after the issuance
of the first of a series of 8(a)(5) complaints, the General
Counsel revealed for the first time an intention to add a
specific surface bargaining allegation to the complaint,
and amended the complaint accordingly. Counsel for Re-
spondent, having strenuously objected to the amendment,
moved for a continuance on the grounds that the amend-
ment greatly increased the scope of his necessary trial
preparation, which was further exacerbated by the Gen-
eral Counsel's having withdrawn, immediately before the
hearing, from 10 stipulations that would have rendered
certain additional trial preparation unnecessary. The
General Counsel objected to the granting of a continu-
ance. The General Counsel conceded that the charge in
Case 8-CA-15043-2, a charge filed September 14, 1981,
and included within the scope of the settlement agree-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment, was a surface bargaining charge. 3 Against this
backdrop, the General Counsel then made the rather re-
markable statement that it was not until July 23, 1982,
the Friday afternoon before the commencement of the
hearing, that he first discovered the Respondent had
been engaging in surface bargaining. The Respondent's
motion for a continuance was granted.
During the interim period, on August 10, 1982, coun-
sel for the Respondent filed a written motion to dismiss
paragraph 23(d) of the amended consolidated complaint,
the surface bargaining amendment. The ground advanced
for this motion was that the charge in Case 8-CA-
15043-2, as the only charge that specifically alleges sur-
face bargaining, was filed on September 14, 1981, and
the General Counsel's amendment, counsel for Respond-
ent argued, accuses the Company of bad-faith bargaining
beyond the 6-month statute of limitations period pre-
scribed in Section 10(b) of the Act by including bargain-
ing conduct approximately 6 months beyond March 14,
1981.
On the resumption of the hearing on August 31, 1982,
I heard opening statements from each of the parties. The
General Counsel's opening statement chronologically
outlined most of the significant events that had occurred
in this consolidated proceeding, including those de-
scribed above. In his presentation, the General Counsel
discussed at length the circumstances leading to the ac-
ceptance of the settlement agreement, which she stated
covered all cases up through the surface bargaining
charge, Case 8-CA-15043-2. 4 Accordingly, the remain-
ing postsettlement issues are contained in Cases 8-CA-
15043-3, 8-CA-15043-4, and 8-CA-15502 (i.e„ the al-
leged change in the lunch period and breaks, the dis-
charge of the four striking employees for alleged strike
misconduct, and the subsidiary issue of whether the Re-
spondent unlawfully refused to return the replaced strik-
ers to work as unfair labor practice strikers following the
strike. 5 Following the Charging Party's opening state-
ment in support of the General Counsel's position, the
Respondent moved to dismiss all complaint allegations
preceding the settlement. I then heard oral argument on
this motion and the Respondent's August 10 written
motion to dismiss the surface bargaining amendment. At
the conclusion of oral argument, I deferred ruling on
these motions until all the evidence had been heard on
the alleged change in the lunch period and breaks and
the discharge of the four employee strikers, because the
outcome of those issues would determine whether post-
settlement unfair labor practices existed that would justi-
fy the setting aside of the settlement agreement, and the
dependent issue of whether the replaced strikers should
have been returned to work as unfair labor practice strik-
ers.
3 Indeed, Union Representative Patrick Kearney testified that when he
filed the charge in Case 8-CA-15043-2 he understood he was filing a
surface bargaining charge
4 Tr 57-58
5 The charge in Case 8-CA-15502 concerning Virgil Galbincea, al-
though filed separately, falls within the last of these three categories. The
only reference to Galbincea in the complaint is that his name appears
among the list of replaced strikers who were not returned to work No
evidence concerning Galbmcea's particular circumstances was presented
during the entire course of the hearing
In a response to a question by counsel for the Charg-
ing Party, I stated that following the presentation of all
the evidence on the two alleged postsettlement unfair
labor practices, I would consider the likelihood of the
existence of postsettlement violations, and rule concern-
ing whether the posture of the case warranted proceed-
ing to hearing the vast amount of evidence remaining on
the presettlement issues, or whether to adjourn the hear-
ing for briefs before ruling on the postsettlement portion
or issuing a decision on that portion, thereby possibly
rendering further proceedings unnecessary. 6 The Gener-
al Counsel objected to this proposed procedure and
moved to be permitted to make a witness-by-witness
offer of proof detailing the entire presettlement case. I
denied the motion as an effort to circumvent the proce-
dure I had announced I intended to follow in order to
economically and expeditiously determine the probable
merit of the threshold issues. Subsequently, before the
taking of testimony concerning all the presettlement
issues could be completed, on September 23, 1982, the
General Counsel filed with the Board a request for spe-
cial permission to appeal, interim appeal, and memoran-
dum in support of interim appeal. In that document the
General Counsel represented to the Board, inter alia, that
I had refused to hear the General Counsel's evidence
concerning the issues covered by the settlement agree-
ment. The General Counsel asked the Board to reverse
the ruling she claimed that I had made, and to direct me
to hear and admit all evidence pertaining to both presett-
lenient and postsettlement conduct or, in the alternative,
direct me to accept "any offers of proof as to the evi-
6 The procedure that I invoked is a commonly utilized method, ap-
proved by the Board, of eliminating possible unnecessary costs and delay
by first determining the probable merit of the essential elements of the
case One such example is to be found in Tappan Co, 254 NLRB 656,
657-658 at fn 5 (1981), in which the Board adopted the administrative
law judge's rulings, among which was a ruling that precluded the parties
from litigating those allegations covered by a settlement agreement until
such time and only if It was determined that a basis existed to warrant
vacating and setting aside the settlement agreement. The judge, with
Board approval, proceeded to find that the respondent did not violate
Sec. 8(a)(1) of the Act regarding those allegations pertaining to conduct
subsequent to the settlement, and therefore found no basis had been
shown or existed to warrant setting aside the settlement agreement, and
consequently found that the allegations contained in the amended consoli-
dated complaint covered by the terms of the settlement were precluded
from being litigated
See also Ann 's-Schneider Bakery, 259 NLRB 1151, 1152, 1160 (1982) In
this case an initial series of charges that had been settled were set aside
by the Regional Director following the filing of postsettlement charges,
and a consolidated complaint was issued alleging violations of Sec.
8(a)(1), (3), (4), and (5). In her decision, the administrative law judge spe-
cifically stated, "I will consider first the General Counsel's allegations
that Respondent engaged in unfair labor practices after the execution of
the settlement agreement, since a Finding of failure to comply with the
settlement agreement or of postsettlement violation is a prerequisite to a
finding of violation based on presettlement conduct Interstate Paper
Supply Company, 251 NLRB 1423 (1980) " At the conclusion of her deci-
sion the judge concluded that since no unfair labor practices were com-
mitted by the respondent after the execution of the settlement agreement,
the Regional Director had no grounds for setting the settlement agree-
ment aside. She then recommended that the settlement agreement be rein-
stated, and found that it was "therefore unnecessary to make any findings
concerning the alleged unfair labor practices predating the settlement
agreement." Delver Concentrator Ca, 253 NLRB 358 (1980), The Board
adopted her recommendation and agreed that there was no remainmg
basis for a violation of Sec. 8(a)(5) in the issuance of a bargaining order
U.S. GYPSUM 9
dence in said cases." Counsel for the Charging Party
filed a memorandum in support of the General Counsel's
interim appeal, and counsel for the Respondent filed a
reply in opposition. On November 4, 1982, the Board
granted the General Counsel's request for special permis-
sion to appeal "to the extent consistent herewith." I was
directed to permit the introduction of all evidence relat-
ing to all the consolidated cases set for hearing. The
Board emphasized, however, that this ruling was without
prejudice to the right of any party to contest the validity
of the determination to set aside the settlement agree-
ment. Member Hunter dissented. Following the conclu-
sion of the hearing, all parties filed briefs. In their brief
counsel for the Respondent, inter alia, renewed the mo-
tions to dismiss, including those relating to Respondent's
position that the settlement agreement was improperly
set aside by the General Counsel, and should be reinstat-
ed and enforced.
Respondent moves to dismiss paragraph 23(d) of the
amended consolidated complaint, the surface bargaining
amendment. Respondent argues that because the charge
in Case 8-CA-15043-2, the only surface bargaining
charge, was filed September 14, 1981, there is no charge
to support any claim that Respondent's bargaining before
March 14, 1981 is part of an unlawful course of conduct.
The General Counsel argues, however, that the bargain-
ing between September 24, 1980, and the 10(b) date of
March 14, 1981 in Case 8-CA-15043-2 is covered by the
previous 8(a)(5) charges, the first of which was Case 8-
CA-14365, filed on November 5, 1980. I agree. The
Board has long held that the requirement that an unfair
labor practice proceeding be based on a charge filed
within the 10(b) period is satisfied where the subject of
the inquiry sufficiently related to a charge filed within
that period. The cases cited by the Respondent in sup-
port of its position are instances where the allegations
compared were completely different and unrelated. The
circumstances in this area of the instant case are other-
wise. The charge in Case 8-CA-14365 concerns an al-
leged refusal to furnish information concerning job de-
scriptions. Likewise, the charge in Case 8-CA-14869,
filed May 21, 1981, is an 8(a)(5) charge concerning the
bargaining over the conditional recognition clause. Both
of these charges antedate Case 8-CA-15043-2 and are
directly related to the surface bargaining allegation,
indeed, they are an integral part of that allegation and, as
such, bring the Respondent's pre-March 14, 1981 bar-
gaining within the limitations period of Section 10(b) of
the Act. Respondent's motion to dismiss paragraph 23(d)
of the amended consolidated complaint on the ground
that it includes alleged unfair labor practices outside the
10(b) period is denied.
Respondent also renews its oral motion to dismiss all
the complaint allegations preceding the settlement, which
according to the General Counsel included Cases 8-CA-
14365, 8-CA-14578, 8-CA-14869, 8-CA-15043, and 8-
CA-15043-2. Counsel for Respondent contends that the
General Counsel acted improperly in abrogating the set-
tlement agreement, which Respondent maintains should
be reinstated and processed. Respondent further argues
that the settlement agreement may be set aside and unfair
labor practices found based on presettlement conduct
only if there has been a breach of the settlement agree-
ment either by a failure of the Respondent to comply or
subsequent unfair labor practices. Logic and the weight
of authority support the Respondent's position.
Section 3(d) of the Act provides, in pertinent part:
The General Counsel of the Board shall exercise
general supervision over all attorneys employed by
the Board (other than Trial Examiners and legal as-
sistants to Board Members) and over the officers
and employees in the Regional Offices. He shall
have final authority, on behalf of the Board, in re-
spect of the investigation of charges and issuance of
complaints under Section 10, and in respect of the
prosecution of such complaints before the Board,
and shall have such other duties as the Board may
prescribe or as may be provided by law.
Accordingly, the Board has held that by reason of Sec-
tion 3(d), "The General Counsel has virtual unlimited
discretion to proceed in such timely filed charges as he
deems fit and, in the absence of a showing of abuse of
discretion the Board will not interfere with the General
Counsel's exercise thereof." California Pacific Signs, 233
NLRB 450, 451 (1977). 7 I find that the General Counsel
abused his discretion by abrogating the settlement con-
trary to the clear intent of Section 102.19(c) of the Rules
and Regulations of the Board.
The informal settlement agreement contained, inter
alia, provisions requiring the posting of an attached
notice, the charged party to comply with its terms, and
the following clauses:
REFUSAL TO ISSUE COMPLAINT-Ill the event the
Charging Party fails or refuses to become a party to
this Agreement, and if in the Regional Director's
discretion it will effectuate the policies of the Na-
tional Labor Relations Act, the Regional Director
shall decline to issue a Complaint herein (or a new
Complaint if one has been withdrawn pursuant to
the terms of this Agreement), and this Agreement
shall be between the Charged Party and the under-
signed Regional Director. A review of such action
may be obtained pursuant to Section 102.19 of the
Rules and Regulations of the Board if a request for
7 The following cases cited by the Charging Party are inapplicable for
the reasons set forth below Silver Bakery, 150 NLRB 421 (1964), was
overruled by the Board in Winer Motors, 265 NLRB 1457 (1982) Harowe
Servo Controls, 250 NLRB 958, 963 (1980), concerns the General Coun-
sel's refusal to proceed on charges he deems not to have merit In Central
Enterprises, 239 NLRB 1270, 1271 (1979), the General Counsel extended
the time period for filing an appeal from the Regional Director's refusal
to issue a complaint Russell Coal & Clay Co, 165 NLRB 978 (1967), is a
situation in which the union's appeal of the Regional Director's dismissal
of a charge was reinstated when the appeal was timely sent but not
timely received In Baltimore Transit Co, 140 F 2d 51 (4th Cir. 1944), the
Board decided it had no jurisdiction over the transit industry, and when
the Supreme Court decided otherwise in other cases the circuit court
held that the Board was not estopped in reactivating the charge and issu-
ing complaint In Sehg Mfg. Co., 79 NLRB 1144 (1948), the settlement
agreement specifically provided that it was null and void if the Board
faded to approve it, and the Board never at any time gave its approval.
Central Enterprises, 239 NLRB 1270 (1979), deals with the Regional Di-
rector's revocation of his earlier decision not to issue a complaint, based
on the General Counsels consideration of an appeal not timely filed
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same is filed within 10 days thereof. This Agree-
ment is contingent upon the General Counsel sus-
taining the Regional Director's action in the event
of a review. Approval of this Agreement by the Re-
gional Director shall constitute withdrawal of any
Complaint(s) and Notice of Hearing heretofore
issued in this case.
PERFoRmANCE—Performance by the Charged
Party with the terms and provisions of this Agree-
ment shall commence immediately after the Agree-
ment is approved by the Regional Director, or, if
the Charging Party does not enter into this Agree-
ment, performance shall commence immediately
upon receipt by the Charged Party of advice that
no review has been requested or that the General
Counsel has sustained the Regional Director.
NOTIFICATION OF COMPLIANCE—The undersigned
parties to this Agreement will each notify the Re-
gional Director in writing what steps the Charged
Party has taken to comply herewith. Such notifica-
tion shall be given within 5 days, and again after 60
days, from the date of the approval of this Agree-
ment In the event the Charging Party does not
enter into this Agreement, initial notice shall be
given within 5 days after notification from the Re-
gional Director that no review has been requested
or that the General Counsel has sustained the Re-
gional Director. Contingent upon compliance with
the terms and provisions hereof, no further action
shall be taken in this case.
The execution of this Agreement does not consti-
tute an admission that the Charged Party has vio-
lated the Act, as amended.
On November 16 the Region sent the proposed settle-
ment to the parties. On November 20, 1981, the Charg-
ing Party objected to the settlement not containing pro-
visions dealing with the strike, and did not join in the
settlement. The Regional Director nevertheless approved
the agreement unilaterally on November 27, 1981. The
Unions appealed pursuant to the provisions of the agree-
ment and Section 101.9(c)(2) and 102.19 of the Board's
Rules and Regulations. By letter dated January 20, the
General Counsel sustained the Regional Director's ap-
proval of the settlement, and acknowledging the Unions'
claim that the strike was not provided for, nevertheless
stated:
. • . it was concluded that the settlement agreement
and notice provides a complete remedy for which a
relief could be achieved by going to trial; thus the
undertakings contained therein effectuate the pur-
poses and policies of the Act.
Section 102.19(c) provides:
(c) The General Counsel may sustain the Region-
al Director's refusal to issue or reissue a complaint,
stating the grounds of his affirmance, or may direct
the Regional Director to take further action; the
General Counsel's decision shall be served on all
the parties. A motion for reconsideration of the de-
cision must be filed within 10 days of service of the
decision, except as hereinafter provided, and shall
state with particularity the error requiring reconsid-
eration. A motion for reconsideration based upon
newly discovered evidence which has become avail-
able only since the decision on appeal shall be filed
promptly on discovery of such evidence Motions
for reconsideration of a decision previously recon-
sidered will not be entertained, except in unusual
situations where the moving party can establish that
new evidence has been discovered which could not
have been discovered by diligent inquiry prior to
the first reconsideration.
The Unions did not file any motion for reconsideration
under the Board's rules, within the 10-day limit or at any
other time. Meanwhile, the sustaining of the Regional
Director's approval of the agreement was, under the
wording of the performance clause, supposed to "imme-
diately" trigger performance of the agreement's terms by
the charged party. This never occurred because, as the
General Counsel specifically conceded, the notices and
other materials Respondent needed to comply with its
settlement obligation were withheld and were "sitting on
a table in my office." They remained there for over a
month, and thus the Respondent was actively prevented
from complying with the terms of the agreement. Then
on February 22, by letter, the General Counsel "recon-
sidered sua sponte" the denial of the Unions' appeal and
reneged on what was by this time a binding settlement
commitment. I find that the General Counsel's sun
sponte reconsideration and his representatives' subse-
quent action denied the Respondent due process of law
and prejudiced the Respondent by wrongfully compel-
ling Respondent to pursue protracted and expensive liti-
gation that, by entering into the settlement, it sought to
avoid. Section 102.19(c) specifically provides a 10-day
period in which an aggrieved party may seek reconsider-
ation of the General Counsel's action. No such relief was
sought. The clear intent of this provision is to bring the
matter under review to an end, after allowing the party
denied relief one last chance to convince the General
Counsel. Any other interpretation of the reconsideration
clause of Section 102.19(c) renders it a nullity, including
the concept of sun sponte reconsideration, which is com-
pletely outside the scope of the rule. I am persuaded that
the Board did not intend this portion of the rule to be so
construed. Cf. Forrest Industries, 168 NLRB 732 (1967).
Otherwise the clause would have been either omitted al-
together, or provisions for further reconsideration would
have been specifically included. Thus, by acting outside
the scope of Section 102.19(c) of the Board's Rules, and
in direct contravention of its wording and intent, the
General Counsel committed an abuse of discretion. 8 His
8 The Board has often observed, particularly in recent years in the
light of its ever-mcreasing caseload, that the Agency's extensive program
to encourage settlements has become not only highly desirable, but also
essential to the effective administration of the Act Thus, the Board's
most recently printed annual report, 1981, shows that 82 2 percent of the
unfair labor practice cases, determined to have merit by the General
Counsel and his representatives, were settled by the Regional Offices.
Continued
U.S, - GYPSUM — 11
action in abrogating the settlement is, therefore, a nullity,
and the settlement must be reinstated to stand unless viti-
ated by failure to comply or by subsequent unfair labor
practices that warrant setting it aside. Cf. United Dairy
Co., 146 NLRB 187 (1964); Hollywood Roosevelt Hotel
Co., 235 NLRB 1397 (1978).
Attendant to my finding that the General Counsel im-
properly abrogated the settlement agreement in this
matter is a consideration of the effect of that settlement
on this proceeding. The law is clearly stated in the fol-
lowing leading cases.9
Roadway Express, 254 NLRB 668 (1981), was a con-
solidated CA-CB proceeding against both the respondent
company and the union. An all-party settlement was
reached after issuance of complaint, but prior to the
hearing. Then the union announced its intention not to
comply with the settlement agreement. The respondent
company, however, never refused to comply with the
agreement and maintained its position that at all times it
Was willing to comply fully. Nevertheless, the Regional
Director set aside the settlement and proceeded to hear-
ing. The administrative law judge found violations
against both respondents. The Board reversed the judge
insofar as violations were found against the respondent
company. In noting that the settlement agreement was
set aside through no fault of respondent Roadway and
that no subsequent unfair labor practices were alleged,
the Board stated:
Absent an effective settlement program the Agency's processes would
soon drown in a sea of litigation. It is, therefore, imperative that the
public have confidence that the settlement commitments made by the
General Counsel and his agents, the Regional Directors. Such confidence
is built on fairness in the administration of the settlement program, not
only toward individuals and labor organizations, but to employers large
and small as well Moreover, it is just as important to be perceived to be
fair as it is to practice fairness. Central to this critical perception is a
party's ability to rely, absent violation of the agreements' terms, on the
steadfastness of settlement agreements, albeit unilateral, once the appeal
process spelled out in the Board's Rules and Regulations is at an end In
this respect, to say the least, the ambivalent conduct of the General
Counsel and his subordinates throughout this matter leaves something to
be desired, and should not serve as a model for future emulation. Those
who might be prone to criticize this conclusion would do well to objec-
tively consider how they would have viewed the dependability of the
Agency's settlement process (and assessed their future willingness to
enter into Board settlements) if what has happened to the Respondent
during the course of this proceeding had instead happened to them. Be-
cause no inference of guilt attaches from a charged party's entering into a
settlement agreement (which in this instance, in addition, contained a
nonadmission clause), the Respondent has been greatly prejudiced by the
risk it was forced to assume by the settlement's abrogation under the cir-
cumstances presented, not to mention the time and expense of litigation.
9 Fn 17 of the General Counsel's brief cites the case of Fox River Pat-
tern, 199 NLRB 68 (1972). However, Fox River is distinguishable in at
least two significant respects First, neither the General Counsel nor the
Board ever passed on the settlement agreement therein Second, the cen-
tral issue in the case was the existence or absence of a question concern-
ing representation, which remained unresolved by reason of the Board's
action Thus, the settlement agreement failed of its purpose. In the instant
case the purpose of the settlement agreement is to resolve the unfair labor
practice charges within its scope. It achieves this purpose. A resolution
of the status of the strike is not the purpose of the agreement because the
status of the strike is not itself an unfair labor practice, but merely a re-
sulting conclusion entirely dependent on a finding concerning the unfair
labor practices Moreover, in his letter denying the Unions' appeal, the
General Counsel specifically fonnd that the Regional Director's approval
of the settlement effectuated the purposes of the Act.
"It is well-established that an unfair labor practice
will not be found based on presettlement conduct
unless there has been a failure to comply with the
settlement agreement, or subsequent unfair labor
practices have been committed." [Citing Interstate
Paper Supply Co., 251 NLRB 1423 fn. 8 (1980).]
Indeed, "[T]here is no question that a Regional Di-
rector may not set aside a settlement agreement and
issue a formal complaint unless the charged party
has failed to comply with its terms or committed
further unfair labor practices." [Citing Bingham-Wil-
liamette Co., 199 NLRB 1280, 1281 (1972).] In the
instant case, the General Counsel neither contends
that Respondent Roadway has refused to comply
with the settlement agreement nor alleges any sub-
sequent unfair labor practices. Accordingly, we
shall dismiss the complaint in Case 15-CA-6974,
and reinstate settlement agreement approved by the
Acting Regional Director for Region 15 on Febru-
ary 7, 1979.
In Jackson Mfg. Co., 129 NLRB 460 (1960), the com-
plaint alleged violations of Section 8(a)(1), (3), and (5).
Involved were allegations of a refusal to bargain during
negotiations and an alleged unfair labor practice strike.
The initial unfair labor practices occurred in 1957. The
strike began September 26, 1957, and ended in June 1958.
Thereafter, the Regional Director approved a settlement
agreement on June 13, 1958, which was signed by the re-
spondent but rejected by the union. The union did not
appeal the settlement under Section 102.19 of the Board's
Rules and Regulations. The Regional Director approved
the settlement with knowledge of the end of the strike.
On June 20 the respondent refused to bargain with the
union on the basis of a lack of a majority because the
union's support had been replaced as economic strikers.
The respondent complied with the settlement, and on
October 14, 1958, the Regional Director gave written
notice to the parties of the effectuation of compliance
and the closing of the case based on continued observ-
ance of the terms of the settlement. About 2 weeks later
the union filed further charges alleging violations of Sec-
tion 8(a)(1) and (3) based on the respondent's failure to
reinstate the replaced strikers and recognize and bargain
with the union, the same events to which the union had
referred in its letter of June 20, 1958, to the Regional Di-
rector. On July 28, 1959, the General Counsel issued a
complaint based on these charges. The complaint alleged
incidents of interference, restraint, and coercion of em-
ployees prior to June 10, 1958, but did not allege viola-
tions of Section 8(a)(3) and (5) during this same period,
as originally charged.
The trial examiner found that the settlement agree-
ments should not be set aside because none of their
terms, which dealt exclusively with the respondent's ob-
ligation to refrain from violations of Section 8(a)(1) of
the Act, were violated by the respondent's subsequent
conduct. The trial examiner noted:
"It is well established that where, after the execu-
tion of a settlement agreement, unfair labor prac-
tices occur which violate that agreement, the Board
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
will go behind the agreement and litigate the pre-
settlement as well as the postsettlement violations."
[Citing Courier Post Publishing Co., 102 NLRB 26,
28 (1953).] Explicit in this settled rule is the require-
ment that the agreement itself must be violated by sub-
sequent unfair labor practices before it would be abro-
gated. Consequently, with particular reference to
the agreement here, it must be demonstrated that at
some period following its execution . . . the Regional
Director . . . uncovered subsequent unfair labor
practices which specifically violate the terms of the
agreement. [Emphasis added.]
The trial examiner found that because the unfair labor
practices, which were the subject of the settlement
agreement, all were specific violations of Section 8(a)(1),
the subsequent charges alleging violations of Section
8(a)(5), based on a refusal to bargain for lack of a majori-
ty, and violations of Section 8(a)(3) for refusing to rein-
state the economic strikers, did not violate the settlement
agreement. In the words of the trial examiner, "Wholly
independent of my conclusion stated above that the
terms of the agreement were not violated by subsequent
unfair labor practices, simple justice would seem to dic-
tate that parties to a bargain should be required to live
with it."
The majority of a three-member panel of the Board
adopted the trial examiner's decision. Members Leedom
and Rogers wrote:
As we agree with the Trial Examiner that the
Respondent did not commit any independent unfair
labor practices after the execution of the settlement
agreements, we find, as did the Trial Examiner, that
the settlement agreements were not breached and
the complaints herein should be dismissed. . . .
We cannot agree with our dissenting colleague
that "these are cases where it is necessary to look
behind the settlements" because of the Respondent's
undisclosed conduct "on the very eve of affixing
their signatures to these settlements." The undis-
closed conduct on which the dissent relies consisted
of the Respondent's refusal on June 10 to reinstate
the strikers, and its failure on that date to recognize
the Union. This conduct, however, did not in itself
constitute an independent unfair labor practice. In-
stead, inasmuch as all the strikers had been replaced
prior to their application for reinstatement, such
conduct could be characterized as an unfair labor
practice only if the strike were found to be an
unfair labor practice strike. Such a finding would, in
turn, require consideration of events which oc-
curred during the preceding August, September,
and October; and these events are the very ones
that were encompassed in the Union's initial charges
which the Regional Director obviously considered
when he concluded that the remedial provisions of
the settlement agreements, sounding in 8(a)(1) and
not in 8(a)(5), were sufficient to effectuate the poli-
cies of the Act. Thus, the operative facts which
would determine whether the Respondent engaged
in unfair labor practices at the time the settlement
agreements were signed were the very facts of
which the Regional Director was necessarily aware,
and which he necessarily had considered and evalu-
ated.
Whether the Regional Director was right or
wrong in his evaluation of these facts is, in our
opinion, immaterial in the present posture of these
cases. What is material and controlling is that a duly
executed settlement agreement must be honored, if the
Board's settlement procedures have any meaning,
unless the respondent's conduct demonstrates that the
agreement has failed of its purpose. The Respondent's
conduct here does not so demonstrate. [Emphasis
added.]
Sundstrand Castings Co., 209 NLRB 414 (1974), was a
case in which the union filed a charge alleging that the
respondent company violated Section 8(a)(5) and 8(d) by
instituting an incentive plan, and concerning the discipli-
nary action and layoffs arising out of the implementation
of the plan. As a result of these events, and allegedly
over unfair labor practices, the employees struck on
March 27. On May 4, 1972, the case was settled unilater-
ally between the Regional Director and the respondent
company. The union did not appeal the settlement.1°
The settlement specifically covered the complaint allega-
tions concerning the installment of the incentive plan, all
disciplinary action taken pursuant to it, the recall of em-
ployees laid off in anticipation of the plan, and the sus-
pension of one other employee. At a bargaining session
on May 19 the company informed the union of its deci-
sion to close the plant. At the final company-union meet-
ing on June 29 the union made an unconditional offer to
return the strikers to work. The employees reported for
work on July 3 and 5, but were not reinstated. The com-
pany ceased operations on July 21. On July 27 the union
filed another charge alleging that the company refused to
bargain concerning its decision to close the plant and its
failure to reinstate the strikers. On September 20 the Re-
gional Director issued a complaint on these allegations,
and on January 8, 1973, he withdrew his approval of the
prior settlement agreement, and issued an amended con-
solidated complaint covering all allegations.
The trial examiner denied the respondent's motion at
the outset of the hearing to dismiss the complaint based
on the argument that the original case had been settled.
The trial examiner heard all the evidence, including that
with respect to respondent's presettlement conduct, and
made findings thereon. In dismissing the consolidated
complaint and reinstating the settlement the Board stated
(209 NLRB at 414):
1 ° In the instant case, although the Union appealed, the appeal was
denied and no motion for reconsideration was filed.
The General Counsel also cites the Jackson Mfg. and Sundstrand Cast-
ings cases, also discussed above, and distmgmshes them on the basis that
in those cases the respondents had complied with the settlements before
the approvals of the settlements were withdrawn. In the present case this
distinction Is a Catch 22, since Respondent was prevented from the imme-
diate compliance required by the settlement's terms by the Regional Of-
fice's month-long failure to send Respondent the necessary documents.
U.S. GYPSUM 13
We have long followed a policy that settlement
agreements will not be set aside absent a breach of
their provisions or the commission of subsequent
unfair labor practices. It is undisputed that Re-
spondent fully complied with the terms and condi-
tions of the settlement agreement in Case 13-CA-
11299. Furthermore, the Administrative Law Judge
found, and we agree, that the Respondent committed
no additional unfair labor practices. In these circum-
stances the policies of the Act are best effectuated
by reinstatement of the settlement agreement in
Case 13-CA-11299. Unlike the Administrative Law
Judge, therefore, we find it unnecessary to consider
the matters covered by that settlement agreement and,
consequently, we do not adopt his findings with respect
to such matters. [Emphasis added.]
The General Counsel asserts that by abrogating the
settlement he was simply correcting a mistake. 11 This ar-
gument has no merit because it is completely contrary to
the undisputed evidence concerning the events that tran-
spired at the time of the approval of the settlement and
during the appeal process. There were no circumstances
of which either the Regional Director or the General
Counsel were unaware at the time the settlement was ap-
proved and the appeal was denied. The Charging Party
candidly acknowledges that, during the period when the
Regional Director's approval was pending but not final,
it filed its objections to the settlement, which included a
specific objection referring to the alleged unfair labor
practice strike. The Unions had already filed charges
with the Regional Office, which claimed that the strike
was an unfair labor practice strike. During the period in
question it filed additional charges reiterating the Unions'
contention. Every participant in the settlement was fully
aware of everything that was happening and the implica-
tions involved, as the General Counsel's January 20, 1982
letter denying the Charging Party's appeal clearly
proves. The decision by the Regional Director and the
General Counsel to accept the unilateral settlement was a
conscious one from which the General Counsel cannot
now renege simply because it has proved unpopular.
The General Counsel's final and alternative argument
is that even if the settlement is upheld all the evidence
concerning all the presettlement conduct is background
evidence of the Respondent's motive for allegedly com-
mitting the postsettlement unfair labor practices and, as
such, must be considered in conjunction with the evi-
dence specifically relating to these alleged violations.
The General Counsel's contention is based on the well-
established general principle enunciated in Laborers Local
185 (Joseph's Landscaping), 154 NLRB 1384 (1965), that
presettletnent conduct is admissible to show the motive
" The General Counsel cites Stage Employees IATSE Local 659
(MPO-TV of Califirilia), 197 NLRB 1187 (1972), in support of his "mis-
take theory." However, that case is inapposite because it involved a mis-
take in the computation of backpay of which the parties were unaware at
the time the settlement agreement was approved, and therefore the Board
found there was no meeting of the minds at the time of execution.
The Charging Party cites Universal Building Services, 234 NLRB 362
(1978), also inapplicable because it concerned a settlement set aside on
the basis of misconduct of which the Regional Director was unaware at
the time he approved the agreement
or object of postsettlement conduct. The fallacy in the
General Counsel's argument is it ignores the fact that
motive and object are immaterial to the two postsettle-
ment allegations in this case. With respect to four strik-
ing employees the issue is simple. It is undisputed that
the alleged misconduct for which these employees were
terminated immediately after the end of the strike oc-
curred in the context of their strike activities. If the four
strikers committed misconduct sufficient to bar their re-
instatement, or if the Respondent had an honest belief
that they did and acted on that belief, there is no viola-
tion of the Act with respect to their discharges. If the
converse is borne out by the record evidence then the
four employees were discharged for protected union and
concerted activity and are entitled to reinstatement in ac-
cordance with their rights as economic or unfair labor
practice strikers, whichever may prove to be the case.
Therefore, unlike most 8(a)(1) and (3) discharge cases
brought before the Board, motive is totally immaterial to
this particular situation.
Concerning the issue of the alleged unilateral change
of breaks and lunch period beginning during the strike,
allegedly without advance notice to, or bargaining with,
the Unions, the question of the importance of motive has
long since been disposed of as a matter of law. The ap-
plicable cases hold that an employer's motive is not an
element essential to a finding that a unilateral change is
violative of Section 8(a)(5). NLRB v. Katz, 369 U.S. 736
(1962). Since Katz, the Board and the courts have uni-
formly followed this viewpoint. Seafarers Atlantic District
Local 777 (Yellow Cab) v. NLRB, 603 Fid 862, 889
(D.C. Cir. 1978); Gulf Coast Automotive Warehouse, 256
NLRB 486, 488-489 (1981); Merrill & Ring, Inc., 262
NLRB 392 (1982). Lastly, the General Counsel cites
George Banta Co., 256 NLRB 1197 (1981), to support his
claim that evidence concerning the settled unfair labor
practices should be considered as background evidence
to establish the nature of the strike. The portion of the
Banta case on which the General Counsel relies is an un-
reported ruling of the Board in that case that, conse-
quently, is not properly precedent because it is not an of-
ficial published Board decision. I take no official notice
of that portion of the Banta case. Furthermore, the re-
ported decision reveals significant distinctions. First, the
settlement agreement specifically included a statement of
the striking employees' reinstatement rights that coincid-
ed precisely with those of unfair labor practice strikers.
Second, as appears from General Counsel's Exhibit 2(b),
in Banta all parties, including the respondent, sought to
withdraw from the settlement, and agreed it was not in
effect.
I therefore find that in these circumstances the law
enunciated in the Roadway, Jackson, and Sundstrand
cases, supra, is controlling. Accordingly, consistent with
the procedure approved in Tappan, supra, and Chassen
Bros., supra, I shall first consider the issues that were
first included in the complaint after the settlement.
v, THE ALLEGED UNILATERAL CHANGE IN LUNCH
PERIOD AND BREAKS AFTER BEGINNING OF STRIKE
The contract that expired October 31, 1980, provided:
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ARTICLE IV—HOURS OF WORK
Section I. The normal work schedule will consist of
forty (40) hours per week and eight (8) hours per
day; but this shall not be construed as any guarantee
of hours of work; nor any limitation upon assign-
ment of hours of work.
Section 2. The regular work day for the first shift
shall begin at 11:00 P.M. and end at 7:00 A.M., for
the second shift the regular work day shall begin at
7:00 A.M. and end at 3:00 P.M., and for the third
shift the regular work day shall begin at 3:00 P.M.,
and end at 11:00 P.M. The employees work sched-
ule within the regular shift periods or other as-
signed shifts will include three 10-minute breaks.
For the purpose only of computing overtime pay,
the standard seven (7) day work week shall begin at
11:00 P M Sunday, and each standard work day of
twenty-four (24) hours, including Sunday and holi-
days, shall begin at 11:00 P.M.
It is undisputed that as of the beginning of the strike
on June 3, 1981, article IV operated as follows with re-
spect to lunch periods and breaks. There were 30 min-
utes of paid nonworktime per day in the form of three
10-minute breaks per shift. Thus, first shift lasted from 7
a.m. to 3 p.m. with three 10-minute breaks at 9 a.m., 11
a.m , and 1 p.m. Second shift ran from 3 p.m. to 11 p.m.
with three 10-minute breaks at 5 p.m., 7 p.m., and 9 p.m.
Third shift hours were 11 p.m. to 7 a.m. with three 10-
minute breaks at 1 a.m., 3 a.m., and 5 a.m. There was no
separate lunch period.
Patrick Kearney, the I.U.E.'s staff representative re-
sponsible for servicing the contract at U.S. Gypsum's
Warren, Ohio plant, served as the Unions' chief negotia-
tor throughout the long series of meetings that com-
prised the 1980 negotiations. At the outset of his testimo-
ny, concerning the issue of the alleged unilateral change
of shifts and breaks, he insisted that neither the Company
nor the Unions ever made a proposal during the negotia-
tions to change the shift hours. According to Kearney,
he first learned that a change had been made at the Oc-
tober 13, 1981 bargaining session. Present for the Unions
at that meeting, in addition to Kearney, were Walter
Phillips (from the International Union) and the Local
Union committee composed of Local 727 President Ray
Davis, Financial Secretary Patricia Leonard, Vice Presi-
dent David Everett, and Bob Brainard. Various unnamed
employees from the Unions' membership were also
present in an unofficial capacity, but did not participate.
The Company was represented by Works Manager John
Daugherty and Personnel Superintendent Timothy M.
Ryan. Federal Mediator Sieski was also in attendance.
According to Kearney, the Company had promised to
give the Unions a new proposal at this meeting. The pro-
posal was presented and certain features were discussed,
after which the Unions said they would review the pro-
posal and make a future response. Then, Kearney testi-
fied, Daugherty said, "By the way, we changed the shift
change in the plant." Kearney answered by asking, "Is
this a new proposal?" to which Daugherty responded,
"No, we have already changed it. We have been operat-
ing like that for months." Kearney retorted, "Well, you
know you just don't unilaterally change the shift changes
without negotiating," to which Daugherty replied,
"Well, it is into effect and were going to keep it that
way. If you don't like it, go ahead and file an NLRB
charge." Kearney testified that their discussion of this
topic at this meeting ended when he said, "We'll go over
the proposal, and ask the membership about it," to which
Daugherty stated, "Well, we don't care whether you ask
the membership or not. We plan on keeping it."
It is undisputed that the change to which Kearney re-
ferred in his testimony involved adding a one-half hour
unpaid lunch period at midshift and redistributing the
former 30 minutes of paid nonworktime per shift to pro-
vide for a 15-minute break in the middle of the first half
of the shift, a 10-minute break at the middle of the
second half of the shift, and a 5-minute washup period at
the end of the shift. One result, he observed, was that
each work shift was extended one-half hour. In accord-
ance with the stipulation of the parties, this change was
effective July 1, 1981, approximately 1 month after the
beginning of the strike.
Kearney further testified that this change was dis-
cussed again at the following meeting on October 19,
1981, attended by the same persons except that Phillips
was absent. At this time, according to Kearney, after a
discussion of the Company's contract proposal, he stated
that the Unions were not interested in changing, the
shifts. He testified that Daugherty answered that it made
no difference because they had put it into effect and that
was the way they were going to keep it. Kearney reiter-
ated that the Unions never had been notified of the
change prior to the meeting of October 12, nor had they
been afforded an opportunity to bargain about it. He in-
sisted that the Company had never given them any
reason for the change.12
Local 727 President Ray Davis was the only other
witness to testify about the changes on behalf of either
the General Counsel or the Charging Parties." Davis'
testimony differed somewhat from that of Kearney. Con-
cerning the October 13 meeting, he testified that after
some preliminary discussion about the charges the Union
had filed with the NLRB, the Company asked for a
recess and returned with a proposal that the Union re-
viewed and the parties discussed. Toward the end of the
meeting, Daugherty announced that there had been a
shift change that had been in operation several months,
that it had worked well, and that they planned to contin-
ue. Daugherty described the change as consisting of a
15-minute break after 2 hours of work, a half-hour
unpaid lunchbreak after the next 2 hours, a 10-minute
break after 2 more hours of work, and a 5-minute clean-
up period before the end of the shift. He said this would
extend the shift one-half hour. He also stated that the
third shift had been eliminated after the strike began
12 Throughout this proceeding It was never definitely established
whether the October 12 meeting took place on October 12 or 13 The
witnesses used the two dates interchangeably However, the parties agree
that there was only one session at this time.
13 Everett and Leonard were present dunng most of the hearing and
testified on other issues
U.S. GYPSUM 15
cause business did not require one at that time. Then
someone from the Unions asked if this was a new pro-
posal, to which Daugherty answered that it was a
change that had been implemented and they intended to
keep it that way. Davis did "not recall" Kearney leaving
the room with the mediator during the course of the
meeting, but, Davis stated, he was not absolutely certain
that Kearney was present when the shift change was dis-
cussed, or if Kearney was present during the whole
meeting.
Concerning the October 19 session (which Davis re-
ferred to as having taken place on October 18), Davis
testified that at the first of the meetings Kearney rejected
the Company's new proposal, going through the propos-
al item by item. Then Kearney stated that the member-
ship had considered and rejected the shift change and
wanted to maintain the shifts and breaks the way they
had been prior to the strike. Daugherty answered that
the change was not a part of the proposal. He said it had
been implemented, was working fine, and would be
maintained indefinitely. Kearney protested that it was a
violation of the contract and that he would file charges
with the NLRB. Daugherty told him to go ahead if he
wished.
Following his description of these two meetings, con-
cerning which Kearney testified, Davis stated, in re-
sponse to a question by counsel for Respondent, that
Daugherty might have made the remarks about the
lunchroom at the meeting of May 20, 1981, also attended
by Kearney and the union committee on behalf of the
Unions. He then testified that he could not recall any
mention by Daugherty at this meeting of a proposed
one-half hour unpaid lunch period or the building of a
nice lunchroom. He stated that to his knowledge the
Unions were never notified prior to October 13 about
the change or ever given an opportunity to bargain
about it. However, he also testified that the Unions did
learn about the change in shift hours from the pickets in
early hily, discussed it with the membership at the July
19 union meeting, but never raised the matter with the
Company.
Timothy M. Ryan, personnel superintendent at the
Warren plant, testified in considerable detail concerning
the circumstances surrounding the shift and break
change. Ryan is responsible for employee labor rela-
tions, contract negotiations, grievance handling, and em-
ployee benefit administration. Thus, he attended every
session of the negotiations. Ryan testified that at the May
20, 1981 bargaining session at the plant, attended on
behalf Of the Unions by Kearney, Davis, Everett, Leon-
ard, Brainard, and a number of employee observers,
" I draw no adverse Inference from the fact that Works Manager
John Daugherty did not testify in this proceeding Counsel for Respond-
ent explained and offered into evidence a letter from Daugherty's doctor,
dated August 27, 1982, explaining that Daugherty was in no position to
testify because of his recent heart attack His incapacity was reconfirmed
on January 10, 1983, R. Exh. 28 In addition, the parties stipulated that
Daugherty did not testify because of his physical condition, and by Joint
motion of the parties, dated September 3, 1982, I admitted Daugherty's
November 20, 1981 affidavit into evidence because of his unavailability.
Consistent with this ruling, later in the hearing, I likewise admitted into
evidence other of Daugherty's affidavits, which he has also fully consid-
ered.
Daugherty proposed that the plant return to a one-half
hour lunch schedule such as they had had prior to 1969.
He said he would like to construct a nice lunchroom,
and was willing to spend. up to $50,000, if need be, to
construct one. However, he said that he could not justify
that expenditure to the Company although they main-
tained the plant's present break schedule of three 10-
minute breaks, because that did not permit the employees
time to sit down and enjoy the facility. Therefore, he
proposed that they change the break schedule to have,
under the new contract, a 15-minute morning break after
2 hours of work, a one-half hour unpaid lunch hour, a
10-minute break in the midafternoon, and a 5-minute
washup time at the end of the shift. Ryan further testi-
fied that as a part of Daugherty's effort to sell the pro-
posal to the Unions, Daugherty talked about the lunch-
rooms in other plants, and how some plants even had
tennis courts for their employees. Daugherty said that
before 1969 the Warren employees had a one-half hour
unpaid lunch period in which they went outside and
played horseshoes. Daugherty then invited the Unions to
join in the proposal so that an employee lunchroom
could be obtained. Daugherty also referred to Packard
Electric, a company that had moved to Mexico because
of a productivity drop that caused them not to be able to
compete in the Warren area. Daugherty said the loss of
productivity was due to the break setup, whereby people
were taking advantage of their breaks and taking 15 to
20 minutes requiring the foremen to police it all the time.
Kearney said that Packard Electric had much better
labor relations than U.S. Gypsum at Warren, and com-
mented that the Alcan plant had tripled their productivi-
ty by removing their timeclock altogether. Daugherty
again said he would like to see the one-half hour lunch
period he proposed installed, and would be willing to
talk about the timeclock. According to Ryan, the Unions
never made any response to Daugherty's detailed pro-
posal.
Ryan further testified that after the employees went on
strike on June 3, 1981, the Company ran a limited pro-
duction schedule using about 25 supervisory, engineer-
ing, and office employees. Then, early in July, about 10
replacements were hired. There were 40 to 50 replace-
ments by the end of July. At this time the Company in-
stituted the one-half hour unpaid lunch period in order
to enable the salaried personnel, who normally had a
one-half hour unpaid lunch period, to better work side-
by-side with the new employees they were training.
Ryan testified further that at the October 13 meeting,
Daugherty gave the Unions a company proposal point
by point. When he arrived at the lunch money allowance
feature of the proposal, Daugherty told the Unions that
he planned using the one-half hour lunch period the
Company had been using during the strike for the last 4
or 5 monthS. The Unions made no response until after
lunch, when Kearney stated he would have to discuss
the subject of the one-half hour lunch period with the
membership. Later during the meeting, David Everett
asked how the one-half hour lunch period and the al-
tered break system were working in the plant, and
Daugherty replied that they were having a 15-minute
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
break in the morning, a one-half hour unpaid lunch
period, a 10-minute afternoon break, and a 5-minute
cleanup time. The Unions did not protest, nor did they
ask Daugherty what the Company planned to do about
the lunch period after the strike.
Ryan testified that at the outset of the October 19 ses-
sion, Kearney announced that they had had a union
meeting and discussed the Company's one-half hour
lunch period proposal and the membership had rejected
it. Daugherty asked Kearney why the Unions were re-
jecting the proposal, and Kearney answered that the
Company was doing something for "the scabs." Kearney
did not ask what the Company intended to do about the
lunch period after the strike. Ryan denies that Daugherty
told the Unions to file a charge if they did not like the
change, but remembered that Phillips said that the
Unions intended to file a charge on the matter, and
Daugherty answered that it was his prerogative to do so.
No one at the October 19 meeting asked the Company to
return to the prestrike system.
Timothy Ryan testified in a precise, confident, and
consistent manner. His testimony was detailed. He did
not contradict himself, and he displayed an excellent
memory. These characteristics of his testimony were not
shaken on cross-examination. On the other hand, Kear-
ney's memory failed him on cross-examination. He testi-
fied that he could not recall what was discussed at the
May 12 or 20 bargaining sessions. He at first said that he
did not recall anything being said by Daugherty about
lunchrooms at the May 20 meeting, and then immediate-
ly thereafter stated that he was "absolutely sure" that no
such statement was made. He admitted, however, that at
sometime around May 12 or 20 he did accuse Daugherty
of not being interested in correcting working conditions.
Furthermore, when asked whether Daugherty mentioned
Packard Electric moving to Mexico from Warren be-
cause it could not compete (a portion of the total context
of Daugherty's alleged remarks in which he made the
lunchroom offer), Kearney testified that he would not
say that Daugherty did not make this statement. In his
direct testimony Davis likewise displayed uncertainty in
answering the General Counsel's questions about wheth-
er there was any discussion about a lunchroom or an ad-
ditional one-half hour of unpaid lunchtime for employees
during the May 20, 1981 meeting. His answers to the
questions in this area were "not particularly at that meet-
ing." And "not that I can recall." On cross-examination,
however, Davis made significant admissions, which, to-
gether with the gaps in his and Keaniey's memory in
crucial areas and the conflicts between his and Kearney's
testimony, persuades me that Ryan, and not Kearney and
Davis, was telling the complete truth. Davis admitted
that the Union learned of the shift change prior to July
16, but did not raise the topic with the Company at all.
The reason for this, he said, was that the Unions did not
care about the shift change while the strike was going on
because they had no intention of returning to work and,
in their view, the shift change and change of breaks did
not affect them. He said that after the strike ended then
the Unions wanted to resume the old schedule, but
agreed that they had not raised the matter with the Com-
pany since the strike ended. Furthermore, when Davis'
memory was prodded on cross-examination by counsel
for Respondent, he suddenly remembered that Daugh-
erty did raise the subject of a lunchroom and a one-half
hour unpaid lunch period at one of the bargaining ses-
sions, which Davis remembered as May 12. Thus, Davis
corroborated the testimony of Ryan. According to
Davis, Daugherty said that U.S. Gypsum had another
plant with a $50,000 lunchroom and a one-half hour
unpaid lunch period, which U.S. Gypsum at Warren did
not have. Davis said the subject arose when committee-
man Bob Brainard complained that vending machine
prices were going up in the plant and the lunch money
provision of the contract had not been increased. 16 It
was then that Daugherty observed that there were nice
lunchrooms at other plants and tennis courts for the em-
ployees' use. Davis' memory failed again, however,
when he was asked if Daugherty said he would like to
have that arrangement at the Warren plant or if Daugh-
erty proposed that the Unions join in a proposal to
obtain a lunchroom and lunch period at Warren. Instead,
Davis answered indirectly, "If he did, I don't know
about it."
Having weighed all the testimony on this issue, I am
convinced that Timothy Ryan was telling the truth when
he testified that during formal bargaining in May,
Daugherty orally proposed the acquisition of a lunch-
room and the alteration of the lunch period and break
period system as Ryan described it.16
The General Counsel contends that the Unions had no
advance notice or opportunity to bargain about these
changes in their working conditions, and that instead the
Unions were presented with a fait accompli. The cred-
ited evidence, corroborated by the admissions of Davis,
does not support this theory. There is no prohibition
against formal proposals in bargaining being made orally,
even when other proposals in the same negotiations have
been customarily submitted in writing. Indeed, such an
allowance is necessary in order to further the exchange
of ideas and alternatives among the participants, thereby
facilitating the reaching of agreement, which then must
be reduced to writing. Considering Kearney's accusation
that Daugherty was not interested in correcting the em-
ployees' working conditions, it is not surprising that
Daugherty countered with a proposal designed to refute
that accusation in a way that employees in industry not
infrequently view as a significant benefit. Having made
this specific proposal, and having spoken in favor of it at
length, good-faith bargaining required that the Unions
discuss the proposal, question it if necessary, and either
accept or reject it. Instead, the Unions said nothing. The
subject was changed, and the topic was never raised by
the Union again, even though it originated in response to
Kearney's accusation and Brainard's complaints about
the vending machines. There is no evidence that the
Company ever took the lunchroom, lunch period, and
15 Brainard was not called to testify by either the General Counsel or
the Unions.
16 I have also considered the affidavit of John Daugherty, introduced
into evidence as G C Exh. 4 This affidavit does nothing to rebut Ryan's
testimony since its scope is only the October 13 and 19, 1981 meetings,
and is consistent with Ryan's testimony in these respects
U.S. GYPSUM 17
break proposal off the bargaining table, nor is there any
evidence that the Company ever raised the subject again.
Having observed the Unions' lack of interest in the pro-
posal by virtue of their failure to respond, the Company
was not obliged to do so. The reason for this curious
lapse on the Unions' part in bargaining was made crystal
clear by Davis in his testimony on cross-examination. It
was simply that before the strike the Unions were not in-
terested in changing the breaks and having a lunch
period and lunchroom, and after the strike began they
did not care because the change, in their view, affected
only the replacements. Thus, it said nothing until long
after the strike had begun, the change had been made,
and the Unions had gained specific knowledge that the
change had been put into effect. Under these circum-
stances, I find that because the Respondent had fulfilled
its bargaining obligation on this issue and the Unions had
not, the Company was entitled to act as it did by institut-
ing the change in lunch period and breaks on July 1,
1981."
VI. THE DISCHARGES OF THE FOUR STRIKING
EMPLOYEES FOR ALLEGED STRIKE MISCONDUCT
Just as the General Counsel's handling of the settle-
ment, discussed earlier, was fraught with procedural ir-
regularity, the position in which the General Counsel's
representatives have placed themselves with respect to
the discharges of McConnell, Bankston, Everett, and
Crews is likewise bizarre and untenable. To thoroughly
appreciate the impact of these circumstances on the Re-
spondent's right to due process and its ability to defend
against these particular allegations of the amended con-
solidated complaint, it is necessary to accesS events
chronologically. Thus, in the context of a myriad of
charges filed by the Unions, during the 'period June 11 to
October 13, 1981, the Respondent filed charges with the
Regional Office of the Board against the Unions in Cases
8-CB-4497, 8-CB-4547, and 8-CB-4497-4 alleging
strike misconduct by the Unions' agents. The Regional
Office conducted an investigation of those charges and
found them meritorious, resulting in a complaint issued
by the Regional Director on November 13, 1981. The
complaint contained 31 separate allegations of violations
of Section 8(b)(1)(A) of the Act by agents of the Unions,
including employees David Everett, Walter McConnell,
John Bankston, and Wally Crews. With respect to these
individuals the Government's complaint alleged in para-
graph 7:
Since on or about June 3, 1981, and continuously
to date, in the course and conduct of the picketing
described above in Paragraph 6, Respondent Unions
have restrained and coerced, and are restraining and
57 Consistent with my earlier rulings, I have fully considered the issue
of the alleged unilateral change of lunch periods and breaks and decided
that issue on the merits, because this issue was postsettlement in the sense
that it became a part of the complaint after the settlement was abrogated
by the General Counsel Respondent contends, however, that this issue
was included within the scope of the settlement, which disposed of all
8(a)(5) issues then existent, since the events involved occurred within the
period covered by the settlement See Ventura Coastal Corp, 264 NLRB
291 (1982)
coercing, employees in the exercise of their rights
guaranteed in Section 7 of the Act by the following
acts and conduct:
7(F) On or about June 11, 1981, Respondent
Unions, acting through Walter McConnell and
Douglass Hofmeister, obstructed the passage of
three Harshman-Industrial trucks at the intersection
of Phoenix and Larchmont Roads.
. . . .
(I) On or about June 11, 1981, Respondent
Unions, acting through John Bankston, attempted to
damage an employer's truck by firing a projectile at
It.
(J) On or about June 15, 1981, Respondent
Unions, through David Everett, attempted to
damage an employer's truck by throwing a spike
under its wheels.
(K) On or about June 15, 1981, Respondent
Unions, through John Bankston, attempted to
damage an employer's truck by throwing a spike
under its wheels.
(L) On or about June 17, 1981, Respondent
Unions, through John Bankston, attempted to
damage an employer's truck by striking it with a
picket sign.
(P) On or about June 19, 1981, Respondent
Unions, through John Bankston, attempted to force
Gypsum's Works Manager John Daugherty's vehi-
cle off the road on the State Route 5 and 82 by-
pass.
(Q) On or about August 10, 1981, Respondent
Unions, through Wally Crews, threw a rock
through the windshield of a truck entering Gyp-
sum's Warren, Ohio facility.
(R) On or about August 6, 1981, Respondent
Unions, through Wally Crews, threatened a job ap-
plicant with damage to his truck.
. . . .
(V) On or about July 31, 1981, Respondent
Unions, by Walter McConnell, threatened an em-
ployee entering Gypsum's Warren, Ohio facility
with unspecified harm and attempted to strike said
employee.
Subsequently, prior to the end of the strike, the CB
cases containing these allegations were settled by the Re-
gional Office unilaterally, over the objection of the Re-
spondent. Immediately following the end of the strike,
on December 9 the Company notified the Unions, and
later the individuals, that Everett, Bankston, McConnell,
and Crews had been discharged for strike violence. On
February 4, 1982, the Unions filed charges alleging that
these individuals were unlawfully discharged. Despite its
earlier position in Cases 8-CB-4497, 8-CB-4497-4, and
8-CB-4547, the Regional Director proceeded to include
the four dischargees as part of his March 26, 1982
amended consolidated complaint following the General
Counsel's abrogation of the settlement agreement. The
complaint alleged in paragraph 29:
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(A) On or about December 9, 1981, Respondent
discharged the employees set forth below, and has
failed and refused, and continues to fail and refuse
to reinstate said employees to their former positions
of employment, or if said positions no longer exist,
to a substantially equivalent position of employ-
ment.
John Bankston
Wally Crews
David Everett
Walter McConnell
(B) Respondent engaged in the conduct described
above in Paragraph 29(A) because the employees
named therein joined, supported, or assisted the
Union, and engaged in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, including the strike described above
in Paragraphs 10 and 27, and/or in order to discour-
age employees from engaging in such activities or
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
Thus, the General Counsel committed his representatives
to prove at the hearing in this matter precisely the oppo-
site of what the Regional Office's investigation had re-
vealed, and the CB case complaint had alleged. This
action placed both the General Counsel and the Re-
spondent in an impossible position at the hearing. There
the General Counsel's representatives sought to explain
the issuance of two diametrically opposed sets of com-
plaint allegations concerning the same employees by re-
ferring to the General Counsel's well-publicized standard
policy that the existence of credibility issues requires the
issuance of complaint. I find this explanation unaccept-
able, since nothing in the history of that policy suggests
that it was ever intended to justify the General Counsel's
prosecuting a case in two opposite directions. Conceding
that this unfortunate situation created "an ethical prob-
lem," counsel for the General Counsel then made the as-
tonishing announcement on instructions from her superi-
ors, impliedly in Washington, that the General Counsel
took "no position" with respect to the dischargees, de-
spite the existence of the above-quoted allegations of the
General Counsel's complaint claiming Respondent violat-
ed the Act by terminating the four employees. The Gen-
eral Counsel also refused Respondent's request, based on
these unique circumstances, for an advanced opportunity
to see the affidavits and other relevant materials concern-
ing these individuals in the Government's files in the CB
cases, on which the General Counsel decided to issue
complaint accusing them of strike misconduct. The
grounds asserted for this refusal were those regularly ad-
vanced in conventional situations (i.e., the inapplicability
of discovery to Board proceedings, and the rule that affi-
davits may be reviewed only after the witness has testi-
fied for the General Counsel concerning the events in
question). The General Counsel then proceeded to call
the four discharged employees as the General Counsel's
witnesses and established only that each had been em-
ployed by the Company prior to the strike; had partici-
pated in the strike, including picketing, beginning June 3,
1981; and, following the end of the strike on December
8, 1981, were discharged on December 9 for strike mis-
conduct. 18 Then, in order to maintain consistency with
the General Counsel's previously announced intention to
take no position on the merits of the discharges alleged
as violations of the Act in the Government's complaint,
the General Counsel left all other phases of the examina-
tion of the four alleged discriminatees to the Charging
Party during rebuttal, thereby delegating the General
Counsel's prosecutorial function as a convenient device
for extricating the Government from an embarrassing sit-
uation.
In my view, this backdoor approach placed an unwar-
ranted burden on the Charging Party and severe stresses
on the Respondent's ability to defend against the dis-
criminatory discharge allegations, and raises serious con-
cerns in the area of due process." If the circumstances
presented were those in which the Respondent had
merely failed or refused to reinstate alleged unfair labor
practice strikers because of alleged strike violence, Re-
spondent would be required to go forward with evidence
of strike misconduct as an affirmative defense, or else
accept the risk that the General Counsel might prevail if
the strike were found to be an unfair labor practice
strike. Here, however, the Respondent discharged the
four employees shortly following the end of the strike
and the complaint alleges that they were discharged for
their union and/or concerted activities. Thus, the Gener-
al Counsel has, in addition to the overall burden of proof
that never shifts from the General Counsel, the added
burden of initially going forward with evidence to estab-
lish a prima facie case of discrimination sufficient to shift
the duty to present evidence to the Respondent. This the
General Counsel never did because of the perceived ne-
cessity of circumventing the "ethical problem" of pros-
ecuting allegations in the instant complaint directly con-
trary to those in the CB case. As a result, the Respond-
ent was placed in the position of defending against a case
in which evidence, that normally would have been the
General Counsel's, had not been heard. Therefore, I af-
forded the Respondent considerable latitude in present-
ing its defense to the discharges in question.
18 Crews and Everett also testified concerning other Issues within the
scope of the settlement agreement.
19 The trial of a lawsuit is not a game of chess in which the players
attempt to outmaneuver each other by subtle diversions masking clever
moves. Indeed, a trial of a case is not a game at all, because its purpose is
the peaceful resolution of actual disputes m the real world, and not to
provide amusement for the gratification of the participants' intellectual
powers in a fantasy context In a society dedicated to equal justice under
law the representatives charged with the difficult task of prosecuting
cases on behalf of the Government need always to bear in mind that their
responsibilities extend far beyond mere advocacy. Although it is their
duty to attempt to wm their case, they have, in my view, a higher duty
to exercise restraint and to pursue that aim in a straightforward manner,
avoiding tactics occasionally indulged in by others, in order to set an ex-
ample worthy of public trust Thus, they should not attempt to do indi-
rectly that which it is improper to do directly As I see it, these precepts
were not followed in this instance This observation is not intended as a
personal criticism of counsel for the General Counsel m this action,
whose career development depends to a considerable degree on the abili-
ty to carry out the instructions of superiors, or any other specific individ-
ual who participated in the trial of this action, but it does reflect on the
judgment and sensitivity toward fairness of the public officials who actu-
ally make the decisions that result in casehandhng in such a manner
U.S. GYPSUM 19
The General Counsel rested following the token pres-
entation of evidence described above, which in the ver-
nacular might be described as limited to "name, rank,
and serial number." The Respondent began its presenta-
tion on the issue of the discharges by introducing testi-
mony to prove that the four employees were selected for
termination, from among those reported to have engaged
in strike-related incidents, based on Respondent's honest
belief that they had engaged in serious misconduct war-
ranting dismissal. Bruce Ralph, a labor relations analyst
at Respondent's corporate headquarters, testified that
during the course of the Warren strike he maintained a
file of reported strike related incidents, which he for-
warded to Respondent's labor counsel in October 1981
together with a summary of only those reported events,
considered to involve possible serious misconduct, cata-
logued by the name of the employee involved. In mid-
November 1981 Ralph asked John McDonald, counsel
for the Respondent in this proceeding, to review the for-
warded materials for the purpose of deciding which, if
any, of the strikers merited disciplinary action for strike
misconduct. About December 1, 1981, McDonald report-
ed to Ralph that Wally Crews, Walter McConnell, John
Bankston, and David Everett should be discharged for
serious strike misconduct. Ralph notified Warren Works
Manager Daugherty of this decision on December 7 or
8, 1981.
McDonald testified concerning his role in the four dis-
charges pursuant to questioning by Respondent's co-
counsel, Thomas Cline, Esq. McDonald testified that be
had been chief outside labor counsel for U.S. Gypsum
for approximately 8 to 10 years. He first became in-
volved with the strike situation at the Warren, Ohio
plant in late September or early October 1981, pursuant
to a request from those in the Company's labor relations
department that he begin direct participation because of
the increasing complexity of the situation. Concerning
the specific issue of misconduct by the striking employ-
ees, McDonald began a detailed consideration of this
problem beginning sometime around mid-November
1981, when Ralph asked him to evaluate the file of inci-
dents and decide which, if any, of the strikers should be
discharged. McDonald reviewed the file of strike-related
incidents, Respondent's Exhibit 22, and Ralph's summa-
ry, Respondent's Exhibit 23. He then had one of the law-
yers working under his supervision prepare a memoran-
dum of law on the subject of what type of strike miscon-
duct did or did not justify discharge. McDonald then
personally evaluated these materials, utilizing two select-
ed criteria. Accordingly, to be terminated, he decided, an
individual would have to have been engaged in some
type of property damage or serious threat or injury to a
person that was provable, in McDonald's judgment, and
there would have had to have been more than one act of
misconduct per individual. Having applied these criteria
to the documentary materials he reviewed, McDonald
decided that Crews, McConnell, Bankston, and Everett
would be discharged. 2 ° McDonald testified that he alone
20 The docnmentary materials utilized by McDonald were received
into evidence as R. labs 22 through 27 for the limited purpose of show-
ing that McDonald's decision was based on reports that gave nse to a
made the decision to discharge these four employees, and
drafted the discharge telegram and, by telephone, gave
Daugherty the wording for the letter to be sent to each.
The undisputed testimony of Ralph and McDonald,
summarized above, is credited. Consequently, I find that,
at all times material, the Respondent maintained an
honest belief that the four employees in question engaged
in the serious strike misconduct attributed to them in the
reports and other documentary materials reviewed by
McDonald. Therefore, I likewise find that their selection
for discharge was made solely on the basis of that honest
belief, reinforced by the Regional Director's issuance of
the complaint in the CB cases on November 13, 1981,
which likewise accused these four employees of serious
strike misconduct in violation of Section 8(b)(1)(A) of
the Act.
The November 13 complaint, issued by the Regional
Director, accused Crews of throwing a rock through the
windshield of a truck entering the plant about August 10,
1981, and threatening a job applicant with damage to his
truck about August 6, 1981. These same incidents, relied
on by the Regional Director, are also included in the re-
ports reviewed by McDonald. The rock throwing inci-
dent was observed by James Cherry, a plant guard, who
stated that at approximately 210 p.m. on August 10,
1981, he saw Crews throw a rock at the cab of a Road-
way truck approaching the plant gate, and heard a loud
crash. According to Cherry, employees Cox, Brend-
linger, Zimmerman, Chapman, Fowler, and Crank were
also present at the time Crews threw the rock. At the
time of the trial in this matter, Officer Cherry was un-
available to testify because he was comatose in the hospi-
tal. Consequently, as in the case of John Daugherty,
whose affidavit the General Counsel sought to have ad-
mined into evidence because on his doctor's advice he
was unavailable to testify due to his heart condition, and
which I received into evidence as a joint exhibit, I also
received Cherry's affidavit into evidence. Because the
General Counsel did not furnish Respondent with any of
the materials from the Regional Office files in the CB
cases, it cannot be ascertained whether the Regional
Office relied on Cherry's August 11, 1981, notarized affi-
davit, or, as is customary, obtained a separate Board affi-
davit from Cherry. In any event, the Regional Director
deemed Cherry's account sufficiently reliable for inclu-
sion of an allegation in the November 13, 1981 complaint
based on that incident.
In his testimony, Crews remembered being present
with other striking employees when the Roadway truck
crossed tbe picket line. He denied that he threw the rock
at the truck, but admitted that he saw it stop thereafter
at the guard shack. Crews claimed that he and Officer
Cherry were friends, and that Cherry later told him that
he did not know who threw the rock. None of the other
striking employees present at the time, some of whom at-
tended the hearing, were called to corroborate Crews'
denial. Lawrence Tyran, the Roadway truckdriver, now
a terminal manager for Roadway in Jamestown, New
good-faith belief that the selected employees had engaged in misconduct,
and not for the truth of what the reports contained
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
York, since June 1982, confirmed that a rock shattered
the window of his truck on the driver's side on August
10, 1981, as he was entering the Warren plant. Tyran did
not see the person who threw the rock. He reported the
incident to Personnel Superintendent Timothy Ryan,
who took the photographs of the damage in evidence as
Respondent's Exhibits 35 A and B, and made the written
report that appears at page 84 of Respondent's Exhibit
22.
According to John Daugherty, as set forth as a part of
the affidavit he gave to the Board in the investigation in
Case 8-CB-4497, on August 6, 1981, Daugherty heard
Wally Crews shout at a job applicant, as he drove
through the gate in his dark green pickup truck, "Hey,
buddy, you don't want to go in there. There was another
guy last week who drove his nice shiny truck in there,
and you ought to see it now. He didn't come back."
Daugherty then proceeded to the gate and reminded
Crews that his remarks were an implied threat to the ap-
plicant. Crews remembered that about a month after the
strike started, while he was picketing with Charlie Engle
and Ralph Trafan, a green Ford Explorer pickup truck
with chrome handrails on the bed passed through the
gate. Crews testified that he remarked to the other pick-
ets, "That's sure a beautiful truck." According to Crews,
he said nothing to the driver. Nevertheless, about 15
minutes later, Daugherty came out of the plant and told
him, "Wally, I'm tired of hearing you threaten and
harass prospective employees of this company or people
crossing this picket line." Daugherty said that his office
window had been open, and that he heard Crews threat-
en the driver. Crews agreed that Daugherty's window
was open, but denied making the threat. Crews testified
that Engle was standing right next to him when Daugh-
erty came out and was in a position to hear everything.
Engle testified that he remembered Crews saying to the
driver, "That's a nice truck you have." He did not recall
anything else that Crews had said, and did not remember
Crews making any threat.
Shortly thereafter, John Daugherty came out to the
gate and told Crews, "Wally, you're going to have to
quit threatening these people when they come through
the picket line." On cross-examination Engle conceded
that he did not remember Crews' response to this accusa-
tion, nor did he remember everything about the conver-
sation. He did, however, remember Daugherty accusing
Crews of threatening the driver of the truck, which
Crews denied occurred. When pressed further on cross-
examination, Engle retreated further. He finally conced-
ed that he could not remember whether Crews had sug-
gested that the driver not enter the premises because of
what had happened earlier to another truck. Thus,
Engle's account and that of Crews do not match in sig-
nificant respects. Finally, on his cross-examination,
Crews testified that he said nothing to the driver except
that, "This is a nice pickup truck." However, when re-
minded that on direct examination he had testified he
had said nothing to the driver but instead had made
these remarks to the pickets, Crews changed his testimo-
ny again, and asserted that he had made this remark to
his friends and did not know how the driver had heard
it. The other witness to the incident, Ralph Trafan, did
not testify. Based on all the considerations described
above, I do not credit Crews' testimony, which, on close
examination, is not corroborated by that of Engle.
I therefore find that Crews' uncorroborated denial of
the rock throwing incident and the deficiencies in his tes-
timony with respect to the alleged threat to the driver of
the green pickup truck provide an insufficient basis,
under all the circumstances presented, for satisfying the
General Counsel's burden of proving that the Respond-
ent discharged Crews because of his union or concerted
activities, when balanced against the Respondent's good-
faith belief that Crews engaged in the serious strike mis-
conduct attributed to him by the results of both the Re-
spondent's and the Regional Director's investigation.
With respect to Walter McConnell, John H. Daugher-
ty's affidavit to the Board, dated July 28, 1981, in evi-
dence as Respondent's Exhibit 31, was necessarily among
the materials considered by the Regional Director in is-
suing the November 13, 1981 complaint. In it Daugherty
described how McConnell and another employee, in Mc-
Connell's car, blocked a truck convoy of three Harsh-
man Industrial Cartage trucks from proceeding into the
plant by using McConnell's car as a roadblock. Accord-
ing to Daugherty, they continued to do so after Daugh-
erty arrived on the scene and insisted that they stop
blocking the road. They persisted with this activity until
one of the drivers called the police on his citizens band
radio. Also, in a Board affidavit dated September 9,
1981, Daugherty stated that on August 31, 1981, he ob-
served McConnell, while picketing, swing at an employ-
ee entering the plant gate on a motorcycle. A third inci-
dent was described in testimony by plant guard Charles
Piatt. According to Piatt, on June 14, 1981, he observed
an unidentified man wearing dark clothes and a cap
throw a rock that broke the guard house window in
front of where he was standing. Piatt immediately called
the police who arrived about 5 minutes later.
McConnell testified that he remembered having a con-
versation with a police officer about the rock throwing
incident in which the guard shack window had been
broken. He stated that he was probably wearing a brown
jacket and hat on that occasion, and that the conversa-
tion with the police officer took place in the picket trail-
er where he was playing chess about an hour after his
picket shift began. The policeman asked for and received
McConnell's identification, whereupon the policeman
asked if McConnell knew anything about the broken
window in the guard shack. McConnell told him that he
did not. McConnell further testified concerning the
roadblocking incident. He stated that on one occasion
early in the strike he left the plant with John Daugherty
following in the car behind. He claimed that Daugherty
blew his horn at him when McConnell stopped at a stop
sign, but denied that he blocked any trucks. Striking em-
ployee Doug Hofmeister was in the car with McConnell,
but was not called as a witness to corroborate McCon-
nell's denial. With regard to the incident involving the
motorcyclist, McConnell remembered standing by the
plant gate with Ed Davis when the motorcyclist entered.
McConnell claimed that on the previous day the same
motorcyclist had kicked him as he entered. However, on
U.S. GYPSUM 21
this occasion, according to McConnell, as the motorcy-
cle passed by McConnell put his hand out and stepped
back, after which, he said, Daugherty came out to the
guard shack and accused McConnell of yelling "scab" at
the motorcyclist, which McConnell admits he did. He
denied swinging or attempting to hit the motorcyclist,
however. Ed Davis was not called as a witness to cor-
roborate McConnelPs denial. McConnell was an evasive
and hostile witness. I am persuaded that this testimony
concerning the motorcyclist incident was contrived. He
is not credited. I therefore find that, as in the case of
Crews, his uncorroborated denial, coupled with the im-
probability of portions of his testimony, is incapable of
sustaining the General Counsel's burden of proving that
McConnell was in fact discharged because of his union
or concerted activities, when considered in the face of
the Respondent's established good-faith belief that Crews
engaged in the serious strike misconduct attributed to
him. I therefore find that the General Counsel has not
sustained his burden of proof on the allegations of the
complaint relating to Crews and McConnell, and there-
fore the Respondent did not violate Section 8(a)(1) and
(3) of the Act in discharging these employees. Cf.
Schreiber Mfg. Co., 262 NLRB 1196 (1982), enf. denied
725 F.2d 413 (6th Cir. 1984); Clear Pine Mouldings, 268
NLRB 1044 (1984).
Paragraphs (I), (K), (L), and (P) of the CB-case com-
plaint, issued by the Regional Director on November 13,
1981, allege serious strike misconduct by John Bankston,
including three separate efforts to damage trucks at-
tempting to enter the plant premises, and one instance of
attempting to force Works Manager Daugherty's vehicle
off the road. These reported incidents are also contained
in the summary, Respondent's Exhibit 23, reviewed by
McDonald.
Donald Vandermyde, transportation manager for U.S.
Gypsum at their corporate headquarters, testified that on
June 11, 1981, while in Warren for the purpose of per-
suading various trucking companies to continue service
to the Warren plant despite the strike, he observed an
employee firing metal pellets. Vandermyde identified this
employee in the courtroom as John Bankston, who was
firing metal pellets from a slingshot-type device called a
"wrist rocket" at a Harshman Industrial Cartage truck,
which was following Vandermyde's car out of the plant.
Timothy Ryan testified that on June 15, 1981, about
1:55 p.m, he escorted a Kennedy truck down Phoenix
Road to the plant. As he followed the truck, while it
began its turn into the plant, Ryan saw John Bankston
throw two devices known as "spiders" in front of the
truck's left rear tires. 21 After the truck passed through
the gate, Ryan stopped the car and attempted to pick up
the spiders, whereupon John Bankston advanced on
Ryan with a 4-foot long board, which he swung at
Ryan's hand, missing, but hitting the spider across the
ii Spiders are multapronged pieces of steel welded together in such a
manner that, regardless of how the device is placed, some of the prongs
will be pointing upward The parties stipulated that there were two sizes
of spiders The larger size is made of one-quarter-inch diameter steel, and
the prongs are approximately 1-1/4 inches in length The smaller size is
made of one-eighth-inch steel with prongs approximately 1 inch in
length A photograph of a spider is in evidence as R Exh 34.
street. Ryan reported the incident, which appears as alle-
gation 7(K) of the Regional Director's complaint in the
CB case.
John Daugherty's July '28, 1981 Board affidavit, a por-
tion of the evidence he considered in issuing the Novem-
ber 13 CB-case complaint, contains Daugherty's descrip-
tion of an attempt by John Bankston to run Daugherty's
car off Larchmont Road while escorting a Kennedy
truck from the plant to Highway 82. Daugherty further
stated that Bankston made two further attempts to force
Daugherty off the road on the return trip to the plant
after leaving the truck. This incident appears as allega-
tion 7(P) of the Regional Director's complaint of No-
vember 13, 1981.
Bankston denied being present at the gate about 4 p.m.
on June 11, 1981, at which time Vandermyde testified
Bankston fired the pellets at the truck from the slingshot.
Then, pursuant to extremely leading questions by counsel
for the Charging Party, Bankston denied both having a
slingshot on the picket line that day and firing the pro-
jectiles at the truck. He also denied placing spiders under
a truck's tires on June 15, 1981, although he was "pretty
sure" he was picketing that day. However, Bankston did
not deny swinging a board at Timothy Ryan on that date
as he attempted to pick a spider up from off the pave-
ment. Bankston further denied attempting to run John
Daugherty off the road on June 19, 1981. Finally, pursu-
ant to questions by , counsel for the Charging Party,
Bankston volunteered testimony concerning an incident
on June 17, 1981, referred to in paragraph (L) of the No-
vember 13, 1981 CB-case complaint, in which Bankston
allegedly swung a board in an effort to damage a Harsh-
man truck crossing the picket line. According to Bank-
ston, the driver swerved the truck at him as he exited the
plant gate and yelled "some kind of racial slur," where-
upon, according to Bankston, "If he said I swung at the
truck, all I'm doing is really getting out of the way."
Bankston testified that the only thing he had in his hands
was a picket sign attached to a piece of board about 4
feet long.
Bankston displayed a hostile demeanor while testify-
ing. A significant portion of his denials were in response
to grossly leading questions. He did not deny swinging a
board at Ryan on June 15, and evaded making any spe-
cific answer to the question of whether he swung his
picket sign at the Harshman truck on June 17. I do not
credit his testimony. Instead, I credit the very positive
and specific testimony of Vandermyde and Ryan con-
cerning their eyewitness accounts of Bankston's serious
strike misconduct. I therefore find that John Bankston
was discharged for cause, and not because of his union
or concerted activities, as alleged in the amended con-
solidated complaint. Clear Pine Mouldings, supra.
In paragraph (J) of the Regional Director's November
13, 1981 complaint, David Everett was alleged to have
attempted to damage an employer's truck by placing a
spike under its wheels. A report of this incident was con-
tained in the materials reviewed by McDonald, along
with another incident involving nails reported by John
Daugherty as a part of his Board affidavit of July 28,
1981. According to Daugherty, on June 15, 1981, at 8:45
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a.m., at the west entrance to the truck marshalling area
of the plant, Daugherty observed David Everett and
John Edwards picketing at that entrance while a plank
with 20 to 30 upright nails was positioned in the middle
of the entrance. Daugherty approached and asked Ed-
wards to remove the plank. Edwards began to do so but
replaced the plank on instructions from Everett. Daugh-
erty then picked up the plank and removed it.
In testimony Everett remembered the incident and
agreed that when he was on the picket line, as a union
officer, he was responsible for the behavior of the pick-
ets. His version of the incident was substantially the same
as that of Daugherty. Everett remarked that, "If John
Daugherty wanted his parking lot cleaned up he could
do it himself," and described how Daugherty then
picked up the plank and put it in his car. Timothy Ryan
testified that shortly after 2 p.m. on June 15, 1981, as he
was escorting a Harshman truck out of the plant, he ob-
served David Everett throw two "spiders" in front of
the truck's right rear tire. The truck passed over the spi-
ders, which thereafter were no longer on the road. Ryan
made a written report of the incident, which appears
among the materials reviewed by McDonald at page 79
of Respondent's Exhibit 22, and is also a basis for allega-
tion 7(J) of the complaint of November 13, 1981. Everett
denied throwing spiders under the wheels of any vehicle.
I do not credit Everett. I credit Ryan's version, and find
that David Everett engaged in serious strike misconduct
and was therefore discharged by the Respondent for
cause, and not because of his union or concerted activi-
ties as alleged in the amended consolidated complaint.
Concluding Findings
I have found that the Respondent did not commit any
unfair labor practices following the approval of the set-
tlement agreement with the Regional Director. 22 There-
fore, the settlement agreement was, in any event, im-
properly set aside, and will be reinstated. A valid settle-
ment agreement bars the finding of violations of the Act
based on conduct that occurred before the parties en-
tered into the settlement agreement. Hollywood Roosevelt
Hotel Co., 235 NLRB 1397 (1978). Therefore, it is unnec-
essary for me to address the presettlement allegations of
the amended consolidated complaint. Because it is well
established that a finding of unfair labor practices is a
prerequisite foundation for a finding that a strike is an
unfair labor practice strike, I find that the strike of Re-
spondent's Warren plant employees, from June 3, 1981,
to December 8, 1981, was at all times material herein an
economic strike and not an unfair labor practice strike.
Alternatively, in any event, I would not find Respond-
ent's action with respect to the lunch periods and breaks
change, discussed in section V of this Decision, or its dis-
22 At the end of the General Counsel's case, I granted the General
Counsel's motion to dismiss pars. 11 and 13 of the amended consolidated
complaint, as amended, for an acknowledged lack of evidence.
charge of the four strikers, discussed in section VI of this
Decision, a basis for either setting the settlement aside or
for finding the strike to have been an unfair labor prac-
tice strike. The change in lunch periods and breaks was,
at most, an isolated adjustment to facilitate operations
under strike conditions. As earlier described, the Unions
said they did not care about the change because they felt
it did not concern them. Consequently, the change can in
no way have caused or prolonged the strike. Further-
more, under Hollywood Roosevelt Hotel Co., supra, the
change actually falls within the time period covered by
the settlement agreement, as events that were known or
reasonably should have been known to the Regional Di-
rector. Likewise, the discharges of the four strikers are
unrelated to the presettlement events, both in substance
and in timing, and could not have caused or prolonged
the strike since the discharges occurred after the strike
ended. Therefore, these allegations are insufficiently re-
lated to the other allegations of the ameuded consolidat-
ed complaint to warrant setting aside the settlement
agreement. Hatfield Trucking Service, 270 NLRB 136
(1984).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Unions are each labor organizations within the
meaning of Section 2(5) of the Act.
3. In accordance with the findings in this Decision, the
Respondent has not engaged in unfair labor practices.
4. The settlement agreement in Cases 8-CA-14365, 8-
CA-l4578, 8-CA-14869, 8-CA-15043, and 8-CA-
15043-2, approved by the Regional Director on Novem-
ber 27, 1981, should be reinstated.
5. The strike of Respondent's employees, from June 3
to December 8, 1981, was not and is not an unfair labor
practice strike.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
1. The settlement agreement in Cases 8-CA-14365, 8-
CA-l4578, 8-CA-14869, 8-CA-15043, and 8-CA-
15043-2 is reinstated.
2. Respondent's motions to dismiss the amended con-
solidated complaint, as amended, are granted consistent
with the findings and conclusions of this decision.
3. The amended consolidated complaint, as amended,
is dismissed.
23 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.