Brooks Foundry, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 581 (N.L.R.B. 1967)

BROOKS FOUNDRY, INC. 581
Brooks Foundry, Inc. and Romes McMiller and
John Hunter and International Molders and Al-
lied Workers , Union, AFL-CIO. Cases
7-CA-5577(1), 5577(2), and 5616
June 30, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On March 17, 1967, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom. and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter,
the General Counsel and Respondent filed excep-
tions to the Decision and supporting briefs. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following
modifications:
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) and (3) by
discharging employees Romes McMiller and
John Hunter for engaging in the union activity of
presenting and processing a grievance. However,
contrary to the Trial Examiner, we believe that the
evidence requires the conclusion that when em-
ployees Cleveland Edmond, Jake Jones, Paul
Neeley, and L. C. Harris left work they were mak-
ing common cause with, and concertedly protesting
the unlawful discharges of, McMiller and Hunter.
Thus, the record reveals that when Respondent's
President Brooks fired Union Officials McMiller
and Hunter while they were processing grievances
with Vice President Torrey, an employee called
out, "If you're going to fire these men for nothing,
you might just as well fire us all." This comment
brought about the hasty discharge of the employees
which Respondent subsequently reconsidered.
Without processing the discharges, Foreman Gam-
ble returned their timecards to the rack and told the
employees that, except for McMiller and Hunter,
Respondent decided not to fire them, and that "he
wanted them to go back to work, or either get their
timecards and punch out and go home, or else he
would fire them." The four employees responded to
this instruction by punching out, waiting in the plant
until McMiller and Hunter received their
paychecks, and then all six taking showers and leav-
ing the plant together. The following day the four
employees returned to the plant for their paychecks
and were told to leave because they were no longer
employed by Respondent. The unity of purpose of
these employees and the cause therefor was further
demonstrated at a union meeting held subsequent
to the discharges, when a majority of the employees
voted to go on strike in protest of the discharge of
all six employees.2
Because the dischargees -failed to give testimony
that their purpose in punching out on their
timecards was to strike in protest of the unlawful
discharges of their union leaders, the Trial Ex-
aminer viewed their conduct as "ambiguous" and
susceptible to inferring a motive which would not
be protected. Therefore, he concluded that the
General Counsel did not prove the violation. How-
ever, oral pronouncements of the subjective state of
mind are not the only means by which the purpose
for particular conduct is ascertained. Actions often
speak louder than words. Thus, here it is clear that
immediately upon the discharge of the union offi-
cials the employees voiced their protest of such ac-
tion directly to management by the statement "If
you're going to fire these men for nothing, you
might just as well fire us all," and that Respondent
reacted to this protest as coming from the group.
The sequence of events which followed leaves no
doubt but that the protest of Respondent's unlawful
action was the reason for the choice of the four not
to return to work. Respondent never relented in its
decision or rescinded its terminations of McMiller
and Hunter and there is nothing in the subsequent
conduct of Edmond, Jones, Neeley, and Harris
which would suggest that they had changed their
purpose.
Based on the circumstances herein, we conclude
that a preponderance of the evidence establishes
that employees Cleveland Edmond, Jake Jones,
Paul Neeley, and L. C. Harris were discharged by
Respondent in violation of Section 8(a)(1) and (3)
for protesting the unlawful discharge of employees
I
The Respondent's request for oral argument is hereby denied, as the sued. In view of the indication that the four were reinstated to their former
record, exceptions, and briefs adequately present the issues and positions positions, it is necessary to include a remedy requiring that Respondent
of the parties. make such an offer to them All other provisions of the Remedy are ap-
2 As noted in the Trial Examiner's Decision, Edmond, Jones, Neeley, plicable to all unlawfully discharged employees, and the Conclusion of
and Harris were subsequently returned to work and therefore no strike en- Law numbered 3 is similarly amended.
166 NLRB No. 57
308-926 0-70-38
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Romes McMiller and John Hunter.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Brooks Foundry, Inc.,
Albion, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
Add the following as paragraph 2(b) to the Trial
Examiner's Recommended Order, the present para-
graph 2(b) and those subsequent thereto being con-
secutively relettered:
"(b) Make whole Cleveland Edmond, Jake Jones,
Paul Neeley, and L. C. Harris for any loss of pay
they may have suffered as a result of the discrimina-
tion against them, in the manner set forth by the
Board in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB
716."
In the original paragraph 2(d) of the Trial Ex-
aminer's Recommended Order substitute for the
words "Copies of said notice, to be furnished by the
Regional Director for Region 7" the words "Copies
of said notice, on forms provided by the Regional
Director for Region 7."
Add the following as the fourth indented para-
graph of the notice attached to the Trial Examiner's
Decision:
WE WILL make whole Cleveland Edmond,
Jake Jones, Paul Neeley, and L. C. Harris for
any loss of pay they may have suffered as a
result of the discrimination against them.
3 Mastro Plastics Corporation v N L R B, 350 U S. 70
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner : Upon charges filed on
May 27, 1966, by Romes McMiller and John Hunter, and
on July 5, 1966, by International Molders and Allied
Workers Union, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board
issued a consolidated complaint on August 19, 1966, al-
leging that Brooks Foundry, Inc., herein called the
Respondent or the Company , engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act by discharging two employees , Romes McMiller
and John Hunter , for engaging in the union activities of
presenting and processing a grievance , and four others'
for making "common cause" with , and protesting the
discharge of, McMiller and Hunter. The Respondent filed
an answer which denies the substantive allegations of the
I Cleveland Edmond, Jake Jones , Paul Neeley, and L. C Harris
complaint, and more specifically alleges that McMiller
and Hunter were discharged for "gross insubordination"
in refusing "to go back to work," and that the other four
employees were not discharged, but "walked off the job
of their own free will."
Pursuant to due notice, a hearing was held in Albion,
Michigan, on October 12 and 13, 1966, before Trial Ex-
aminer Samuel Ross Upon the entire record in the case
and my observation of the witnesses and their demeanor,
and after due consideration of the briefs filed on behalf of
the General Counsel and the Respondent, I make the fol-
lowing:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Michigan corporation whose prin-
cipal office and place of business is located in Albion,
Michigan, is engaged in the operation of a grey casting
iron foundry. During 1965, a representative period, the
Respondent admittedly sold and shipped products valued
in excess of $1,000,000 from its foundry in Michigan to
customers located outside the State of Michigan. Ac-
cordingly, I find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
11. THE LABOR ORGANIZATIONS INVOLVED
The Union and its Local 413 are, and at all times
material have been , labor organizations within the mean-
ing of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
Local 413 of the Charging Union is, and for many
years has been, the collective-bargaining representative
of Respondent's employees at its Albion, Michigan,
plant. On April 7, 1966, when the events in issue in this
case occurred, employees Romes McMiller and John
Hunter were vice president and shop committeeman,
respectively, of Local 413. There was then in effect a col-
lective-bargaining agreement between Respondent and
Local 4132 which provided, inter aka, as follows:
The Employer ... agrees to meet and deal with
the chosen representatives of the Union in handling
any matters affecting labor relations at the plant.
This contract also contained the following grievance
provisions
ARTICLE III
OPERATIVE CONDITIONS
A. In the event of any grievance, complaint or
dispute that may arise, the employee will first report
it to the foreman to whom he is directly responsible.
2 The agreement was executed on May 22, 1964, effective as of July 1,
1964, for a term of 2 years
BROOKS FOUNDRY, INC. 583
He shall be required to reply to the employee within
four (4) hours.
B. If no agreement is reached by the above stated
parties the duly elected shop committee and the
management shall meet and attempt to reach an
agreement within three (3) days.
C. Should the foregoing procedure fail to satisfac-
torily adjust the grievance, it shall then be arbitrated
by the management of the Company and an officer of
the International Union and the Union Committee.
A date for such arbitration shall be established within
five (5) days after expiration of the time provided for
in Section B of this Article.
D. Pending settlement of any grievance it is
agreed that any work, directly or indirectly involved
shall continue in a regular manner.
E. It is agreed that any adjustments of a grievance
affecting wages shall be retroactive to the date of fil-
ing of the grievance with the Company.
B. Paul Neeley's Grievance
Employee Paul Neeley worked for Respondent as a
grinder in the grinding department on the first shift. His
rate of pay, according to his foreman, Henry Gamble,
was $2.20 per hour. About 2 weeks before April 7,3
Respondent initiated the payment of piecework rates for
its grinders. Under the new piece rate system, grinders
like Neeley received a specified sum for each casting
which they completed, the amount of which varied ac-
cording to the size of the casting and the difficulty in-
volved in grinding it.4 After this change in the compensa-
tion of grinders was initiated by Respondent, Neeley al-
ways worked at piece rates.
On April 6 about 2 p.m., Neeley commenced grinding
a large casting known as a #450 hyster, for which the
piecework rate was $3.40. The time normally required for
grinding such a casting varied from one-half hour to I
hour, depending on the condition of the casting. Earlier
that day, Neeley had ground another such #450 casting
and completed it in .46 of an hour, or about 28 minutes.5
About 2:15 p.m., Neeley notified Foreman Gamble that
he would be unable to finish the casting before quitting
time,6 and asked permission to set it aside for completion
the next day.7 Neeley also told Gamble that his "ride was
getting ready to go home," and that therefore he could not
stay over to complete the casting." Gamble replied that
Neeley would either "take the time and stay there and
finish it or [he] wouldn't get paid for it." Faced with the
prospect of being stranded without a ride home, Neeley
did not stay over beyond the regular quitting time. When
he left, the casting on which he was working admittedly
was three-quarters completed.
The next day (April 7), Neeley found the casting on
which he had worked the day before still unfinished on
the tracks outside his grinding booth. He asked Gamble
to let him finish the casting so that he could be paid the
piece rate for it, but Gamble refused. Neeley then com-
plained about Gamble's action to Union Steward
DeWayne Loveless, Union Committeeman John Hunter,
and Union Vice President Romes McMiller. Accom-
panied by Neeley, these union officials sought out Gam-
ble and attempted to persuade him to let Neeley finish the
casting. However, Gamble persisted in his refusal, and
finally suggested that "if you [the union representatives]
want to argue any more, write up a grievance." Loveless,
Hunter, and McMiller then decided to present a written
grievance to Respondent to protest Gamble's action.
C. The Work Stoppage and the Events Which Followed
About 8:55 a.m., McMiller, Hunter, Union Commit-
teeman Willie Hollie, and Neeley went to the shower
room to write up the grievance.' While the grievance was
being prepared, a regular 10-minute work break ensued
at 9 a. m.
During the work break, a number of Respondent's
other grinders came into the shower room and, within
earshot of the union representatives and Neeley,
discussed among themselves Gamble's action in respect
to Neeley, their dissatisfaction therewith, and the possi-
bility that Gamble might take the same action in respect
to their work. These other grinders then decided that they
would not return to work until Respondent agreed to pay
Neeley for the casting. There is no evidence either that
Hunter or McMiller participated in this discussion by the
other grinders in the shower room, or that they induced or
encouraged the griders to engage in a work stoppage.
At 9:10 a.m. when the break period ended, the other
grinders left the shower room, but Hunter, McMiller,
Hollie, and Neeley remained behind and completed the
preparation and signing of the grievance. About 9:15
a.m., they went back to the grinding department where
they observed that many of the grinders were not work-
ing, but instead were standing around outside their
booths, and some were "picking at their work" and pre-
tending to be working. Vice President Edwin Torrey was
summoned from the office, and McMiller handed Torrey
the written grievance.
A conversation then ensued for about 5 minutes
between Vice President Torrey and the union representa-
tives before Respondent President Ralph Brooks arrived
at the scene. Shortly after Brooks' arrival in the grinding
department, he ordered the discharge of Union Vice Pres-
ident McMiller, Union Committeeman Hunter, and all
the nonworking grinders. A short time later, the decision
to discharge these employees was rescinded as to all ex-
cept McMiller and Hunter. There is considerable conflict
and inconsistency in the testimony regarding what was
said and by whom both before Brooks came to the grind-
ing department and thereafter. These conflicts and incon-
sistencies were not limited to differences between the
3 All dates hereafter refer to 1966 unless otherwise noted
4 Gamble , the only witness who testified regarding the manner in which
pay was computed under the new system , testified that grinders some-
times were paid by the hour instead of by the piece , but his testimony re-
garding when the hourly rate was utilized was most confusing and, in some
respects , self-contradictory . As best I understand his testimony , the gnn-
ders apparently received pay on an hourly basis when their total produc-
tion at piece rates amounted to less than what they would have earned at
their hourly rate.
5 See Neeley 's timecard for April 6, Trial Examiner 's Exh 1.
6 The first shift , on which Neeley worked , commences at 6 a.m. and
ends at 2 : 30 p in Work actually stops 5 minutes before quitting time so
that employees may wash up
7 Unless such permission was granted and the second shift notified, the
casting might have been completed by a second- shift grinder.
8 Neeley lived in Jackson, Michigan, which is about 30 miles from the
Respondent's plant in Albion , and he rode to and from work in the au-
tomobile of a fellow employee.
9 Loveless did not accompany them.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony presented by the General Counsel and by the
Respondent, but included also some differences between
the testimony of witnesses for each side. The task of at-
tempting to resolve the credibility issues, and of recon-
structing from the testimony just what was said and
happened, is not an easy one. However,"after comparing
the testimony of the witnesses and weighing their relative
reliability (from my observance of their demeanor at the
hearing as well as from consideration of their testimony
as a whole), it is my best judgment and I find that conver-
sations and events substantially as follows took place:10
When Vice President Torrey received the grievance
from Union Vice President McMiller, he stated that he
knew that the grievance referred to Paul Neeley's work
on the #450 hyster casting, that Vice President Richard
Rabakonll was not in the shop, and that when Rabakon
returned later that day, he would take up the grievance
with him. Torrey also stated that "he believed that they
would pay Paul Neeley for his piecework [on] the hyster
he had worked on" (testimony of Hunter, Neeley, and
Jones). Union Steward Loveless then asked the grinders
whether this disposition of the grievance was "all right"
with them, and they replied in the affirmative (testimony
of Loveless). Jerry Williams, one of the grinders, then
asked Torrey when the Respondent expected to pay the
men the quarter annual profit-sharing bonus generally
paid at that time, and whether the grinders would be paid
their wages that day (Thursday) instead of the next day,
the regular payday, which also was Good Friday. In
respect to the regular payday, Torrey replied that
Respondent was short of help in the office, but that he
was sure that "he could get the men paid that afternoon"
(testimony of Hunter, McMiller, Loveless, and Neeley).
At this juncture, President Brooks arrived at the scene.
Prior to Brooks' arrival, Torrey neither asked nor ordered
the grinders to return to work (testimony of Hunter, Mc-
Miller, Neeley, Jones, Edmond, and Hollie).12
Just as Torrey concluded telling the employees that
they probably would get their pay that day, President
Brooks, who uncontrovertedly is hot tempered, arrived
at the scene and angrily asked Torrey what was going on.
Torrey replied that the "committee was presenting him
with a grievance on a piecework, they weren't getting
paid for it" (testimony of Brooks).13 Brooks then in-
structed Torrey to get the grinders back to work or they
would be fired, but before Torrey could comply, Brooks
himself ordered the men in a loud voice to go back to
work or be fired (testimony of Hollie, Jones, and Gam-
ble). Union Vice President McMiller thereupon walked
over to Brooks "to explain why the men were there"
(testimony of McMiller), but before McMiller could say
anything, Brooks said to him, "You go back-make the
mens [sic] go back to work, or I'll fire you all." McMiller
replied, "I can't make the mens [sic] go back to work"
(testimony of Hollie and Gamble).14 Thereupon Brooks
told McMiller that he was fired. Hunter then started
toward Brooks and called out his name, and Brooks,
pointing to Hunter, told him that he also was fired
(testimony of Hunter, McMiller, Hollie, Neeley, and Ed-
mond). One of the grinders (unidentified) then yelled, "If
you're going to fire these men for nothing, you might just
as well fire us all" (testimony of Hunter). Brooks shouted
back that all the grinders were fired (testimony of Hunter,
Neeley, and Loveless), and he instructed Gamble to
remove their timecards from the card rack, at the same
time saying that he would "get McMiller's and Hunter's"
(testimony of Hunter, Edmond, and Gamble).
Brooks, Gamble, and Torrey then proceeded toward
the timeclock and the office, followed closely by Hunter,
McMiller, Loveless, Neeley, and 15 to 20 other grinders.
Hunter, who was right behind Brooks, again called to
Brooks by name, and Brooks turned around and said, "I
said you're fired." Hunter replied, "So, I'm fired, I don't
give a damn." Brooks then threw a punch at Hunter
which grazed his forehead and almost tore off his goggles.
Before anything more could happen, one of the grinders
"grabbed" and restrained Brooks, and another did
likewise to Hunter. Then, at the suggestion of Loveless,
Brooks and Torrey went into the office (testimony of
Hunter, Hollie, and Loveless).
Pursuant to Brooks' instruction, Gamble removed from
the time rack the cards of all the grinders (about 15 to 20)
whom he "recognized [as] standing there," as well as
Hunter's and McMiller's (testimony of Gamble). He then
also went into the office where he remained for about 45
minutes. While Gamble and the Respondent's officers
were in the office, the grinders waited at the timeclock for
their final paychecks. Inside the office, Brooks caused
checks to be made out for Hunter and McMiller, and
eventually instructed Gamble to "take the cards back out
there to the mens [sic], and tell them if they go back to
work they're not fired" (testimony of Gamble). Admit-
tedly, this offer did not apply to either Hunter or Mc-
Miller.
When Gamble came out of the office after 45 minutes,
he had a batch of timecards in his hands, and he told the
waiting grinders that, except for Hunter and McMiller,
Respondent "had decided not to fire them; that he was
going to put the time cards back in the rack, and [that] he
wanted them to go back to work, or either get their time
cards and punch out and go home, or else he would fire
them" (testimony of Hunter, Neeley, Edmond, McMiller,
and Hollie). Gamble then put the grinders' timecards (ex-
cept Hunter's and McMiller's) back into the rack and
most of them returned to work (testimony of Hunter and
Gamble).
10 To the extent that any witness , including those upon whose
testimony these findings are based, also testified inconsistently or contra-
ry to any finding , his testimony in the latter respect is not credited. As
Chief Judge Learned Hand aptly said in N.L.R.B v. Universal Camera
Corporation , 179 F.2d 749 , 754 (C A. 2), reversed on other grounds 340
U.S. 474.
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more common in all
kinds ofjudicial decisions than to believe some and not all
31 Vice Presidents Torrey and Rabakon are sons-in-law of Respondent
President Ralph Brooks
12 Loveless , a witness for the General Counsel , first testified that Tor-
rey did not tell the men to return to work , but he later contradicted this
testimony when he again was asked the same question by Respondent's
counsel . Loveless' testimony was that of an employee who quite ap-
parently was trying to avoid antagonizing the Respondent while at the
same time attempting to assist the Charging Parties . I do not credit his
later testimony in this regard.
11 On later cross-examination , Brooks testified , contrary to the above,
that he could not recall whether Torrey told him what the grievance was
about, and that he "knew nothing" about the nature of the grievance when
he later fired McMiller and Hunter . I do not credit this later testimony
14 Contrary to this finding , Vice President Torrey testified that Mc-
Miller replied, "I'm sorry . We're not going back," but on cross-examina-
tion, Torrey testified that he "didn't hear what he [McMiller ] said." I do
not credit Torrey' s initial testimony in this regard.
BROOKS FOUNDRY,INC. 585
Brooks first testified that his reason for not giving Mc-
Miller and Hunter the same option (of returning to work)
was that they had refused not only to comply with his
request that they order the other grinders to go back to
work, but also his order that they personally return to
work. On cross-examination, however, when Brooks' at-
tention was directed to the fact that the other grinders
also had refused to comply with Brooks' order to return
to work, he admitted that his disparate treatment of Mc-
Miller and Hunter was motivated by the fact that they
were members of the union committee, "they were offi-
cials of the Union," they had presented a grievance, and
"it was their duty to uphold our contract and negotiate any
grievance through the proper manner." Brooks also finally
admitted that Hunter and McMiller remained discharged
"because they were the leaders," and because he felt they
were "responsible" for the work stoppage. 15
When Gamble put the timecards back in the rack, four
of the grinders, Paul Neeley, Cleveland Edmond, Jake
Jones, and L. C. Harris, punched out,16 waited in the
plant until McMiller and Hunter received their
paychecks, and then all took showers, left the plant
together, and went home. On the following morning
(Good Friday), these four grinders returned to the plant
for their paychecks and were told to leave because they
were no longer employed by Respondent.
About 3 or 4 weeks later, as a result of a private settle-
ment between Respondent and the Union, Neeley, Ed-
mond, Jones, and Harris (but not McMiller or Hunter)
were reinstated by Respondent without backpay. The
precise terms of this settlement, and the means by which
it was effected, are not disclosed by the record.
D. Analysis of the Record and Concluding Findings
1. The issue of whether the language of the collective-
bargaining agreement constitutes a no-strike clause
As noted above , the collective -bargaining agreement
between Respondent and Local 413 of the Union con-
tains provisions for the processing of grievances. Under
the heading "Article III, Operative Conditions ," subpara-
graph D of the agreement provides:
Pending settlement of any grievance it is agreed
that any work, directly or indirectly involved shall
continue in a regular manner
The General Counsel contends that this provision is
"vague and ambiguous ," and that it does not constitute a
no-strike clause as that term is generally understood.
The Respondent , on the other hand , contends that the
contract is "clear and unambiguous ," and that by its
terms "the union agreed to limit its statutory rights [to
strike] ... until after the grievance procedure provided
in the contract had been exhausted."
I regard the Respondent 's contention in this regard as
meritorious. Granting that a broader and more limiting
no-strike provision could have been written by the
parties, the meaning of the clause as written is plain, and
it clearly proscribed any interruption or stoppage of the
work which was "directly or indirectly involved" in the
grievance presented by the Union to the Respondent.
The grievance in the instant case involved the refusal
by Respondent to pay Neeley, a grinder, a piecework rate
for his work on a casting. Albeit of short duration and (as
hereinafter found) later condoned by Respondent, the
April 7 work stoppage by the grinders pending the
disposition of this grievance clearly was a refusal to "con-
tinue in a regular manner" work which was "directly or
indirectly involved," and therefore was in violation of the
contract between the Union and Respondent.
2. Conclusions in respect to the discharge of McMiller
and Hunter
The complaint in this case alleges that McMiller and
Hunter were fired by Respondent for engaging in union,
or protected concerted, activities. In respect to this al-
legation, the uncontroverted record discloses and I have
found that , on the morning of April 7, Hunter and Mc-
Miller, as officials of Local 413 of the Union, presented
to Vice President Torrey a grievance which protested
Foreman Gamble's refusal to pay Neeley for the grinding
work which he had performed on a casting. Nothing in the
collective-bargaining agreement between Respondent
and Local 413 prohibited McMiller and Hunter from
presenting the grievance during working hours, and in
doing so, McMiller and Hunter engaged in a protected
union and concerted activity.
The Respondent concedes in its brief that McMiller
and Hunter had the right "to take up" Neeley's grievance
with management, "and in so doing to be protected under
the law." However, it contends that the protected activity
of McMiller and Hunter "ceased" before they were
discharged, and that their dismissal was lawful under the
collective-bargaining contract because they refused "to
go back to work and put an end to their role, at least, in
the illegal work-stoppage . . . and an end to the work
stoppage of the rest [of the grinders]." For the reasons
hereinafter stated, I reject these contentions of Respon-
dent.
In respect to the Respondent's contention that the pro-
tected activity of McMiller and Hunter ceased before
they were summarily discharged, I have found above
that: (a) Until the intervention of President Brooks, Mc-
Miller and Hunter were engaged in the peaceful and am-
icable presentation of Neeley's grievance to Vice Pre-
sident Torrey. (b) Although the Respondent's other
grinders were then supposed to be, but were not, working,
Torrey did not order them to return to work. (c) Instead
he explained that the grievance would be processed,
probably favorably to Neeley, as soon as Vice President
Rabakon returned to the plant. (d) This promised speedy
's President Brooks and Vice President Torrey testified that Gamble
was instructed to "bull" only the timecards of McMiller and Hunter, and
that Gamble drought only their two timecards into the office However,
contrary to Brooks and Torrey, Gamble testified that he was instructed by
Brooks to pull the cards of all the grinders who were not working "to dock
them for the time they stand around here ," that he complied with those in-
structions, and that he brought into the office the timecards of about 15 to
20 grinders In addition, Brooks, Torrey, and Gamble all testified that be-
fore they went into the office , Brooks had told only McMiller and Hunter,
and not any of the other ganders, that they were fired However, in the
light of Gamble's testimony that he was instructed by Brooks in the office
to "take the cards back out there to the mens [sic], and tell them if they go
hack to work they're not fired," it is quite obvious that all of the grinders
had been told that they were fired, as the employees credibly testified
[Emphasis supplied ] Because of these and other contradictions , I regard
Brooks, Torrey, and Gamble as generally unreliable witnesses
16 Vice President Rabakon credibly testified that Edmond, Jones, and
Hams punched out at 9 58 or 9:59 a.m Neeley 's timecard shows that he
punched out at 10 15 a in.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disposition of Neeley's grievance was acceptable to the
grinders. (e) However, before the grinders returned to
work, one of them asked Torrey when they would receive
their bonus and whether they would get their regular pay
that day instead of the following day, a holiday. (f) Tor-
rey, in reply, assured the grinders that every effort was
being made to pay them that day.
Undoubtedly the entire matter would have ended am-
icably then and there if President Brooks had not then ar-
rived at the scene, angrily threatened to fire all the em-
ployees if they did not return to work, and then, without
affording McMiller and Hunter an opportunity to explain
"why the men were there," ordered their discharge.
Under all the circumstances, I find, contrary to Respon-
dent's contention, that the protected union and concerted
activity in which McMiller and Hunter were engaged
until the moment of Brooks' arrival did not abruptly
"cease" with his provocative intervention, and that it also
included a protected right, denied them by Brooks, to ex-
plain what was transpiring.
We come then to the Respondent's contention that the
discharge of McMiller and Hunter was lawful under the
collective-bargaining contract because they refused "to
go back to work and put an end to their role, at least, in
the illegal work stoppage . . . and end to the work stop-
page of the rest [of the grinders]." In regard to this con-
tention , I have found above that: (a) When Brooks ar-
rived, McMiller and Hunter, unlike the other grinders,
were not engaged in a work stoppage, but in a lawful pro-
tected union and concerted activity." (b) Brooks was im-
mediately advised by Vice President Torrey that a
grievance had just been presented to him, but he
nevertheless, angrily, and in a loud tone, ordered all the
employees, including McMiller and Hunter, to return to
work at once or be fired. (c) When the stunned employees
did not immediately comply, Brooks ordered McMiller
(who futilely was attempting to explain to him what had
transpired) to "make the men" go back to work or they all
would be discharged. (d) McMiller replied that he could
not force the men to return to work. Brooks then in rapid
succession first told McMiller, then Hunter, and finally
all the grinders that they were fired. (e) The 15 to 20 em-
ployees thus fired waited near the timeclock for 45
minutes for their final paychecks. (f) At the conclusion of
this waiting period, the Respondent rescinded its
discharge of all the employees (except McMiller and
Hunter) and gave them the option of returning to work,
punching out and going home, or being fired. (g) The
discharge of McMiller and Hunter was not rescinded, and
they were not given the same option as the other em-
ployees, for the admitted reason that Brooks believed
them to be the "leaders" and "responsible" for the work
stoppage, and because Brooks regarded it as their duty,
"as officials of the Union," to "uphold the contract" and
order a termination of the work stoppage.
Viewed in the light of these findings, the contention of
the Respondent in sum appears to be that it had a lawful
right to discharge McMiller and Hunter, not only because
of their alleged participation in the unprotected work
stoppage of April 7, but also because they were the
': Foreman Gamble admitted on cross-examination that McMiller and
Hunter were "trying to" resolve "the interruption and disturbance created
by the other men in the department."
'" N L.R B. v. Sands Manufacturing Co , 306 U.S 332, 343; N L R B.
v. Rockaway News Supply Company, Inc., 345 U.S 71, 80; American
Gilsonite Company, 121 NLRB 1514, 1515
"' N L R.B v Wallick and Schwalm Company, 198 F.2d 477, 484
"leaders" and "responsible" therefor, and because, under
the union contract, they had an obligation as union offi-
cials to order its termination.
The legal principles applicable to these contentions are
well established. Employees who participate in a work
stoppage in violation of a no-strike provision of a collec-
tive-bargaining agreement, thereby engage in an activity,
unprotected by the Act, for which they may lawfully be
discharged by their employer.'' Such employees do not,
however, automatically lose their status as employees, for
an employer, by permitting them to return to work, may
condone their unprotected conduct and waive his right to
discharge them.19 The Supreme Court has also held:20
. Section 8(a)(1) [of the Act] is violated if it is
shown that the discharged employee was at the time
engaged in a protected activity, that the employer
knew it was such, that the basis of the discharge was
an alleged act of misconduct in the course of that ac-
tivity, and that the employee was not, in fact, guilty
of that misconduct.
Viewed in the light of the foregoing principles and
findings, it is quite evident that at the time of their
discharge, McMiller and Hunter were engaged in the
presentation of a grievance on behalf of a fellow em-
ployee, that this was a union and concerted activity pro-
tected by the Act, that the Respondent, through Vice Pre-
sident Torrey and President Brooks, knew of their par-
ticipation in that activity, and that the basis of their
discharge was their alleged misconduct of participating in,
and in being the leaders of, the unprotected work stop-
page of the other grinders, and their failure to order its
termination. The Respondent clearly condoned mere par-
ticipation in the unprotected work stoppage, since it
rescinded the discharge of all the other grinders who en-
gaged therein .L1 There is, moreover, no evidence that Mc-
Miller or Hunter either participated in, instigated, were
"responsible" for, or were "the leaders" of the work stop-
page. Finally, the collective-bargaining agreement
between Respondent and the Union contains no provi-
sions which, reasonably interpreted, created any obliga-
tion on the part of McMiller and Hunter, as union offi-
cials, to order the nonworking grinders to terminate their
work stoppage. Their failure to do so did not subject them
to discipline "arising solely out of their union stewardship
as distinguished from their conduct as an employee."22
Accordingly, I conclude that by discharging McMiller
and Hunter for engaging in a union and concerted activity
protected by the Act, because of alleged misconduct in
the course of that activity of which they were not, in fact,
guilty, the Respondent engaged in unfair labor practices
within the meaning of both Section 8(a)(1) and (3) of the
Act .2.1
3. Conclusions in respect to the discharge of Cleveland
Edmond, Paul Neeley, Jake Jones, and L. C. Harris
As found above, out of the 15 to 20 grinders who par-
ticipated in the work stoppage on April 7, only Jones,
(C A. 3)
211 N L R B v . Burnup and Sims , Inc , 379 U.S 21,23
21 N L R B v Wallic k& Schwalm Co , supra.
ll Pontiac Motors Division , General Motors Coip, 132 NLRB 413,
415, cf. Aetna Bearing Company, etc, 152 NLRB 845, 850
21 N L R .B v Burnup and Sims, Inc, supra.
BROOKS FOUNDRY , INC. 587
Neeley, Edmond , and Harris punched out and went home
when all the grinders were told by Foreman Gamble that
the Respondent had decided not to fire them , and that
they could either go back to work , punch out and go
home, or be fired. All of the rest went back to work. On
the following day, when these four employees returned to
the plant for their paychecks , they were told to leave
because they were no longer employed by Respondent.24
The complaint alleges and General Counsel contends
that when these four employees punched out and went
home in response to Foreman Gamble's ultimatum, they
in effect engaged in a strike to protest the Respondent's
unlawful discharge of McMiller and Hunter , that such a
strike was a protected activity which had not been waived
by the no-strike clause in the collective -bargaining con-
trart, and that, therefore , the termination of their employ-
ment by Respondent for engaging in such strike was an
unfair labor practice within the meaning of the Act.25
Only three of the four named employees testified in this
proceeding , and none of them, nor any other witness,
gave testimony that the purpose of these four employees,
or any of them , in punching out and going home was
either to engage in a strike , to make common cause with
McMiller and Hunter , or to protest their unlawful
discharge . There is, in fact , no testimony in the record
that these four employees intended by punching out and
going home to go on strike for any purpose.
Obviously , the possibility exists that Neeley, Edmond,
Jones, and Harris intended by their conduct in punching
out and going home with McMiller and Hunter to go on
strike to protest the unlawful discharge of the latter.
However, the conduct of these four employees at best
was ambiguous and is also capable of other inferences;
e.g., they did not fully comprehend the alternatives of-
fered to them by Foreman Gamble , their departure was
motivated by Neeley 's grievance which had not yet been
fully resolved , or they intended to quit their jobs because
of McMiller' s and Hunter's discharge. None of these
latter possible inferences supports the General Counsel's
theory of violation in respect to these four employees.
In this case , as in every case , the burden was on the
General Counsel to prove the violation of the Act by a
preponderance of the evidence . 26 In view of the foregoing
considerations , I find that the General Counsel has failed
to establish by a preponderance of the evidence that
either Neeley, Edmond, Jones, or Harris was discharged
by Respondent for engaging in a strike to protest the
unlawful discharge of McMiller and Hunter , and I will
therefore recommend that the complaint in this respect
be dismissed.
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I will recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having further found that the Respondent dis-
criminated against Romes McMiller and John Hunter by
terminating their employment on April 7, 1966, and by
thereafter refusing to reinstate them , because they en-
gaged in union and concerted activities protected by the
Act, I will recommend that the Respondent be ordered to
offer them immediate and full reinstatement to their
former or substantially equivalent positions , without
prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination by the pay-
ment to each of them of a sum of money equal to the
amount he normally would have earned as wages from the
date of his discharge to the date of his reinstatement, less
his net earnings during said period , with backpay com-
puted on a quarterly basis in the manner established by
the Board. L7
I will also recommend that the Respondent make
available to the Board or its agents , upon request, all
payroll and other records necessary to facilitate the deter-
mination of the amounts due under this recommended
remedy.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Brooks Foundry, Inc., is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Molders and Allied Workers Union,
AFL-CIO, and its Local 413, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By discriminating against Romes McMiller and
John Hunter by terminating their employment and refus-
ing to reinstate them because they engaged in union and
concerted activities protected by the Act, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
4. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above , occurring in connection with the operations of
the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead
2' As previously noted , these four employees were reinstated without
backpay about 3 or 4 weeks later pursuant to a private settlement between
Respondent and the Union
1n support of this contention , the General Counsel cites and relies on
Mastro Plastics Corporation v. N L.R B., 350 U S. 70, and Foid Motor
Company, 131 NLRB 1462.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, I recommend that the Respondent , Brooks
Foundry, Inc., its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
21 Glen Raven Knitting Mills, inc ., 101 NLRB 239 , 240, Falstaff
Brewing Corp , 128 N LRB 294, fin 2.
27 F W Woolworth Company , 90 NLRB 289 Backpay shall include
the payment of interest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co , 138 N LRB 716.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in, and activities on be-
half of, International Molders and Allied Workers Union,
AFL-CIO, its Local 413, or in other concerted activities
protected by Section 7 of the Act, by discharging, or
refusing to reinstate, any employee, or in any other
manner discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to join or assist International Molders and Allied
Workers Union, AFL-CIO, its Local 413, or any other
labor organization, and to engage in other concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid or protection, and to refrain from any and all
such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Romes McMiller and John Hunter im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay they may
have suffered as a result of the discrimination against
them in the manner provided in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records as set forth in the section of this Decision entitled
"The Remedy."
(c) Notify Romes McMiller and John Hunter if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its plant in Albion, Michigan, copies of the
attached notice marked "Appendix."28 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 7, after being duly signed by Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith .29
28 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
2' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respon-
dent has taken to comply herewith "
I ALSO RECOMMEND that the complaint be dismissed in-
sofar as it alleges that the Respondent violated the Act by
conduct other than that found to be violative in this Deci-
sion.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in, or activi-
ties on behalf of, International Molders and Allied
Workers Union, AFL-CIO, its Local 413, or any
other labor organization, or in other concerted activi-
ties protected by Section 7 of the Act, by discharg-
ing, or refusing to reinstate, any of our employees, or
in any other manner discriminating against our em-
ployees in regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their right to join or assist International
Molders and Allied Workers Union, AFL-CIO, its
Local 413, or any other labor organization, and to en-
gage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, and to refrain from any and all such activities,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
WE WILL offer to Romes McMiller and John
Hunter immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings they may have suffered as a result of the dis-
crimination against them.
WE WILL notify Romes McMiller and John Hunter
if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
BROOKS FOUNDRY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.