Silver State Disposal Service

National Labor Relations Board - Board Decisions

Aug 19, 1998

326 N.L.R.B. 84 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84
Silver State Disposal Service, Inc. and Howard
Clemons, and Caesar Adamson, and Bernard
Peter Williams, and Albert Crockett. Cases 28–
CA–12361, 28–CA–12365, 28–CA–12365–2, and 28–
CA–12595
August 19, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
HURTGEN, AND BRAME
On August 9, 1995, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the Respondent filed a brief in
opposition to the General Counsel’s exceptions.
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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(3) and (1) by terminating 71 employ-
ees for engaging in a work stoppage on January 5, 1994.
We adopt the judge’s finding that the terminations were
unlawful for the reasons that follow.
The Respondent is engaged in the business of waste
hauling and disposal in Las Vegas, Nevada. Its employ-
ees are represented by Teamsters Local 631 and are cov-
ered by a collective-bargaining agreement between the
Respondent and the Union. The agreement includes,
inter alia, a no-strike clause which provides, in pertinent
part:

The Union shall neither call, encourage nor condone
any work stoppage, work slowdown, or picketing of the
Employer’s several premises or its trucks; and the Em-
ployer will not lockout the employees covered by this
Agreement.

The Employer agrees that he shall not compel any em-
ployee covered by this Agreement to cross any primary
picket lines established against other employers and
sanctioned by Teamsters Local # 631 [the Union].
However, the Union and the Company, realizing the
Company’s obligation to maintain uninterrupted ser-
vice in the interest of public health and safety, will at-
tempt to obtain permission from the striking Union for
safe passage through said primary picket line wherever
necessary. The Union shall give the Employer twenty-
four (24) hours written notice of any sanctioned pri-
mary picket line. It shall not be a violation of this
Agreement and it shall not be cause of discharge or dis-
ciplinary action in the event an employee refuses to
cross the primary picket line.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings.
2 Contrary to the judge, we find that a narrow cease-and-desist Order
is appropriate because the Respondent has not been shown to have a
proclivity to violate the Act or a general disregard for employees’ fun-
damental statutory rights. See Hickmott Foods, 242 NLRB 1357
(1979). Accordingly, we shall modify the recommended Order and
substitute a new notice.
We shall also modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996);
and Excel Container, Inc., 325 NLRB 17 (1997).

In the summer of 1993, some unit employees met to
discuss their dissatisfaction with their treatment by the
Respondent and their representation by the Union. In
time, the employees formed a committee, with Charging
Party Albert Crockett, a garbage truckdriver, as its presi-
dent. The committee decided to picket the Respondent’s
corporate headquarters on December 23, 1993, to dem-
onstrate publicly their dissatisfaction.3 Having learned of
the planned picketing, the Respondent’s vice president,
Ritchie Isola, initiated a meeting with the committee on
December 22, 1993. Isola listened to the employees’
grievances and advised the employees to resolve their
problems through the Union. The picketing took place
without incident on December 23.
On January 1, 1994,4 the Respondent terminated
Crockett and the pitcher on his truck for salvaging during
their run the previous day.5 The two employees filed
grievances concerning their termination, and the Union
immediately met with the Respondent to press for the
employees’ reinstatement. On January 5, pursuant to the
Respondent’s instructions, Crockett arrived at the Re-
spondent’s facility, a waste transfer station, to drop off
his overalls and pick up his last paycheck (January 5 was
a regular payday for the Respondent’s unit employees).
Crockett arrived shortly after 12:15 p.m., and began
speaking to employees about his termination. A crowd
of employees gathered around Crockett on company
property near the entrance to the facility, and began to
discuss the circumstances of Crockett’s termination and
his then-pending grievance.
After noticing that employees were congregating
around Crockett rather than entering the facility, Super-
visor Elmo Walker told employees about 12:30 p.m.,
one-half hour before their paid workday began, that they
3 When informed of the employees’ plans, the Union sent a letter to
the Respondent, dated December 20, 1993, advising that the Union did
not support or condone, and was not involved with “the demonstration
scheduled for December 23, 1993.” The Respondent’s corporate head-
quarters is located some distance from the transfer station where the
employees worked, and no employees were dispatched from the head-
quarters site to collect garbage.
4 All dates are in 1994 unless otherwise noted.
5 A pitcher is assigned to a garbage truck to load the garbage into the
truck. The Respondent’s rules specifically prohibit “salvaging,” i.e.,
the retention by an employee of an item placed out for removal as gar-
bage.
326 NLRB No. 25
SILVER STATE DISPOSAL SERVICE 85
did not know what they were doing, that they needed to
come in and go to work, and that they were not doing the
right thing.6 Subsequently, Supervisor Oliver Williams
made several similar appeals to the employees between
12:30 and 12:45 p.m. With only a few exceptions, the
employees disregarded these pleas. At 12:45 p.m., the
buzzer sounded with the majority of the shift still out-
side.
A few moments later, Williams announced to the men
waiting outside that the police had been called, and that
they had to either come to work or get off the Respon-
dent’s property. At approximately 12:58 p.m., the police
arrived and directed the employees to either go to work
or leave the Respondent’s property.
The employees left the Respondent’s property and
milled about in a vacant lot across the street. At about
1:15 p.m., the Respondent’s supervisor, Hilton, spoke to
the employees at the vacant lot; Hilton again appealed to
them to report for work. Although the employees imme-
diately attempted to comply, they were turned away by
the Respondent’s security men and later told that they
were terminated.7
The judge found, inter alia, that the employees’ actions
amounted to an unprotected work stoppage in light of the
contractual no-strike clause.8 In this regard, the judge
found that the employees had refused to commence work
for the first 35–40 minutes of their shift, and that at least
one purpose of their conduct was to pressure the Re-
spondent to be more generous in its handling of Crock-
ett’s grievance. The judge found that the employees’
conduct fell within the statutory definition of a strike,
citing, inter alia, Empire Steel Mfg. Co., 234 NLRB 530
(1978), and was unprotected under the contractual no-
strike clause. The judge found, however, that the em-
ployee activity had been condoned when the Respondent
solicited the employees to return to work.
We agree with the judge that the employees’ conduct
constituted a strike, but, for the reasons that follow, we
find that the Respondent has not established that the
work stoppage violated the no-strike clause. We, accord-

6 Under the Respondent’s long-standing practice, afternoon shift
employees were required to enter the Respondent’s building by 12:45
p.m., when a buzzer sounded and the entrance door was locked. Em-
ployees attempting to enter after 12:45 p.m. were turned away, sent
home without pay for the day, and subjected to progressive discipline
for failing to report to work. Once employees entered the facility, they
would clock in and receive their truck and route assignment. Accord-
ing to Foreman Oliver Williams, it took 30–45 minutes to assign an
entire shift. The Respondent, however, only began paying employees
at 1 p.m. despite requiring that they spend 15 minutes beforehand
locked inside its premises. Employees would leave after 1 p.m. to pick
up the trash on their routes, returning to the transfer site as necessary to
empty their trucks.
7 The judge specifically found that the decision to terminate the em-
ployees was made after they had been turned away.
8 The judge found no merit to the Respondent’s contention that the
January 5 work stoppage was unprotected under Emporium Capwell
Co. v. Western Addition Community Organization, 420 U.S. 50 (1975).
We adopt this finding for the reasons stated by the judge.
ingly, conclude that the employees did not lose the pro-
tection of the Act, and, thus, need not reach the judge’s
finding of condonation.
Consistent with the complaint allegations, the evidence
presented in this case establishes that the Respondent
discharged the 71 alleged discriminatees because they
engaged in a work stoppage on January 5, and that a pur-
pose of the work stoppage was to protest the Respon-
dent’s termination of employee Crockett.9 In general, the
right of employees to engage in concerted activities of
this type is protected by Sections 7 and 13 of the Act.10
In light of this showing, the burden shifted to the Re-
spondent to demonstrate that the work stoppage was un-
protected, in this case to show that the work stoppage
violated the contractual no-strike clause. See Mastro
Plastics Corp. v. NLRB, 350 U.S. 270, 277 (1956)
(whether a work stoppage is unprotected because it vio-
lates a no-strike clause is an affirmative defense); Heavy
Lift Services, 234 NLRB 1078, 1079 (1978) (“the initial
burden of proceeding with proof of an affirmative de-
fense rests with Respondent), enfd. 607 F.2d 1121 (5th
Cir. 1979). For the reasons that follow, we find that the
Respondent has not met its burden.11
The Supreme Court has consistently refused to “infer
from a general contractual provision that the parties in-
tended to waive a statutorily protected right unless the
undertaking is ‘explicitly stated’” and has held instead
that “the waiver must be clear and unmistakable.”12 The
Board has recapitulated the pertinent law in these terms:

Section 7 of the National Labor Relations Act gives
employees the right to engage in concerted activities
for the purpose of collective bargaining or for other
mutual aid or protection. Unions, in their representa-
tional capacity, may bargain away certain Section 7
9 The complaint alleged that the Respondent discharged the dis-
criminatees on or about January 5 because of their union and/or other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
10 Sec. 7 provides:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall
also have the right to refrain from any or all such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3)
[section 158(a)(3) of this title].
Sec. 13 of the Act provides:
Nothing in this the Act [subchapter], except as specifically
provided for herein, shall be construed so as either to interfere
with or impede or diminish in any way the right to strike or to
affect the limitations or qualifications on that right.
11 Contrary to the implication of our dissenting colleague, the burden
was not on the General Counsel to disprove the applicability of the
contract’s no-strike clause.
12 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)
(citing Mastro Plastics Corp., supra at 283).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 86
rights such as the right to engage in strikes during the
contract term . . . and the right to sanction or encourage
strikes. . . . Such waivers of employee rights must,
however, be explicitly stated, clear and unmistakable.

Lear Siegler, Inc., 293 NLRB 446, 447 (1989) (citations
omitted).

The “clear and unmistakable” standard for finding
waiver of a statutory right, however, does not “[require]
more elaborate evidentiary support than simply placing
an objective construction on a contract.” Electrical
Workers IBEW Local 1395 v. NLRB, 797 F.2d 1027,
1031 (D.C. Cir. 1986), supplemental decision 291 NLRB
1039 (1988), enfd. 898 F.2d 524 (7th Cir. 1990), relying
on NLRB v. Rockaway News Supply Co., 345 U.S. 71, 79
(1953) (interpretation of no-strike clause involves “no
determination of rights or duties respecting picket lines
broader than this contract itself prescribes”). In interpret-
ing contractual language, words must be given their “or-
dinary and reasonable meaning,” Pacemaker Yacht Co. v.
NLRB, 663 F.2d 455, 459 (3d Cir. 1981), and enforced
“[a]bsent a contractual provision in irreconcilable con-
flict with federal labor policy [since] neither courts nor
the Board may modify or nullify substantive contractual
provisions.” Id. at 460. In short, the parties’ actual in-
tent governs, “whether that intent is established by the
language of the clause itself, by inferences drawn from
the contract as a whole, or by extrinsic evidence.” Elec-
trical Workers IBEW Local 1395, supra at 1036; accord:
Indianapolis Power Co., supra at 1041 (supplemental
decision).
The question presented here is whether the Union, by
the contractual no-strike clause, waived the Section 7
right of the Respondent’s employees to engage in the
January 5 work stoppage, in support of Crockett’s griev-
ance.
The language of the clause does not purport to prohibit
employees from engaging in unauthorized or “wildcat”
work stoppages; rather, the clause merely forbids the
Union from “call[ing], encourag[ing], or condon[ing]
strikes, and it carves out of that prohibition the right of
individual employees to honor primary picket lines else-
where if sanctioned by the Union. Given this careful
drafting, it is reasonable to expect that if the parties in-
tended to reach concerted employee activities which
were not sanctioned by the “Union,” they would have
inserted explicit language.13 Compare Metropolitan Edi-

13 3 Corbin On Contracts § 552 (1960) (where a specific example
is listed “it may reasonably be inferred that the subjects not specifically
named were intended to be excluded”).
We find no merit to the Respondents contention that the provi-
sion, quoted above, which limits the applicability of the no-strike clause
to union-sanctioned sympathy strikes, establishes that the no-strike
clause should be read more broadly than its plain language indicates to
encompass work stoppages not sanctioned by the Union. In addition, if
the no-strike clause applied to the unauthorized January 5 work stop-
page, then the Respondents termination of the employees involved
son Co., supra at 695 (“The Brotherhood and its mem-
bers agree that during the term of this agreement there
shall be no strikes or walkouts by the Brotherhood or its
members . . . it being the desire of both parties to provide
uninterrupted and continuous service to the public.”);
Pacemaker Yacht Co., supra at 458 (“[t]he Union agrees
that there will be no strikes, picketing, slowdowns, delib-
erate curtailment of production, work stoppages of any
kind or other interruption of the Company’s operations.
In the event one or more employees fail to abide by the
provisions of this Article, the Company retains full right
to take any disciplinary action it deems necessary, in-
cluding discharge”); Food Fair Stores v. NLRB, 491 F.2d
388 (3d Cir. 1974) (after the first 24 hours of any unau-
thorized work stoppage, “the Employer shall have the
sole and complete right to immediately discharge any
Union member participating in any unauthorized strike,
slowdown, walk out, or any cessation of work”).
The Respondent has adduced no extrinsic evidence to
show that the parties intended the clause to be read more
broadly. To the contrary, the only record evidence con-
cerning the parties’ application of the clause is the pick-
eting incident in December 1993 discussed above.
There, following the Unions disavowal of any role in the
employees picketing, the Respondent took no action
against the employees who engaged in the picketing.
While not determinative, the parties conduct in Decem-
ber 1993 is consistent with interpreting the clause to ap-
ply only to picketing or work stoppages that are author-
ized, encouraged, or condoned by the Union. And there
is no evidence or contention in this case that the Union
played any role whatsoever in the events of January 5.
To the contrary, there is abundant evidence that the em-
ployee’s actions were a spontaneous response to Crock-
ett’s discharge, and were at least as much of a surprise to
the Union as they were to the Respondent.
Furthermore, unlike our dissenting colleague, we find
that the no-strike clause’s applicability to work stoppages
not sanctioned by the Union was litigated in fact. At the
beginning of the hearing the Respondent’s counsel stated
his understanding of the issues in this case: “I think this
is a very clear-cut case, it’s a win or lose on whether the
activities were protected, and whether the contract was or
was not violated. The collective-bargaining agreement
was introduced into evidence at the hearing, and the Re-
spondent, in its brief, to the judge contended that the no-
strike clause should be read broadly to proscribe individ-
ual employee conduct because it expressly permits em-
ployees to observe sanctioned picket lines at other em-

would appear to be cognizable under the contractual grievance-
arbitration clause. The Respondent, however, has taken the position
that the terminations are not arbitrable. The inconsistent positions
taken by the Respondent undercut its contention that the no-strike
clause should be read to encompass the January 5 unauthorized work
stoppage.
SILVER STATE DISPOSAL SERVICE 87
ployers.14 As noted above, the judge found that the
January 5 work stoppage was prohibited by the contrac-
tual no-strike clause. The General Counsel excepted to
this overall finding, in addition to his exceptions to the
judge’s subsidiary finding that the employees had en-
gaged in a work stoppage. Under these circumstances,
we find that the applicability of the no-strike clause to
unauthorized strikes is properly before us and our con-
sideration of this issue is neither unfair to the Respondent
nor a denial of due process.15
Our colleague additionally asserts that the work stop-
page may be unprotected because it concerned a mat-
ter—Crockett’s termination—that was covered by the
contracts grievance-arbitration clause, citing Teamsters
Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962). In
Lucas Flour, a Section 301 case, the Supreme Court held
that a unions contractual commitment to submit disputes
to binding grievance arbitration gives rise to an implied
obligation on the part of the union not to call a strike
over such disputes. In Lucas Flour, the union called a
strike to force the employer to rehire a terminated em-
ployee, instead of submitting the termination grievance
to binding arbitration under the procedure established by
the parties collective-bargaining agreement. Because
“[t]he grievance over which the union struck was, as it
concedes, one which it had expressly agreed to settle by
submission to final and binding arbitration proceedings,”
the Court held that “[t]he strike which it called was a
violation of that contractual obligation.”16
The implied no-strike obligation recognized in Lucas
Flour is inapplicable where, as here, the parties have
agreed on an express no-strike clause. Absent any ex-
pression of intent by the parties in the agreement, the
Lucas Court inferred a no-strike agreement coextensive
with the arbitration clause, so that the union could not
strike, nor the employer lock out with respect to issues
which they had agreed to resolve by arbitration. How-
ever, where the parties have negotiated an explicit no-
strike clause, it is improper to infer a different one. The
issue is the intention of the parties, and where the parties
have explicitly addressed an issue it is generally im-

14 Since the Respondent made this argument in its brief to the judge,
it is obvious—contrary to our dissenting colleagues contention—that
the Respondent was aware that it needed to show more than just that a
work stoppage had occurred in order to establish its contractual de-
fense.
15 See Jones Dairy Farm, 295 NLRB 113 (1989), enfd. 909 F.2d
1021, 1028–1029 (7th Cir. 1990) (no denial of due process where
Board decided case on basis of an interpretation of no-strike clause not
advanced at hearing).
16 Lucas Flour Co., supra at 106. In this regard, we note that, while
the parties collective-bargaining agreement allows individual employ-
ees to file grievances, the agreement also authorizes the Union and the
Respondent to resolve any grievance by mutual consent and further
provides that “such adjudication . . . shall be final and binding upon the
parties. Thus, it does not appear that an individual employee could
obtain arbitration of any dispute without the support of at least one of
the parties.”
proper to impose on the parties a contrary intent, whether
broader or more limited.17 Thus, the issue here is not an
inferred no-strike obligation, but the scope of the no-
strike clause to which the parties agreed. And because
the parties have explicitly negotiated separate arbitration
and no-strike clauses, the wording of each clause must be
examined separately. Electrical Workers IBEW Local
1395 v. NLRB (Indianapolis Power), supra at 1034.18 In
sum, the language of the express no-strike clause “is
plainly the only proper guide for determining whether the
employer and the union intended to forbid” the unauthor-
ized January 5 work stoppage, and “[t]he arbitration
clause of the contract is not relevant.” Operating Engi-
neers Local 18 (Davis-McKee, Inc.), 238 NLRB 652, 659
fn. 41 (1978) (Member Penello concurring).19
In view of the foregoing, we find that the Respondent
has not sustained its burden of showing that the Union
“clearly and unmistakably” waived the employee’s right
to engage in concerted activities of the character of the
events of January 5. Accordingly, we further find that
the employees brief and spontaneous, concerted work
stoppage was protected by Section 7 of the Act, and we
conclude that the Respondent’s discharge of the employ-
ees who engaged in the work stoppage violated Section
8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Silver State Disposal Service, Inc., Las Ve-
gas, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted and union activities in support of
employee grievances.
(b) Discharging employees because they engage in
protected concerted and union activities as unfair labor
practice strikers.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
17 3 Corbin, On Contracts § 64 (1960) (“where the parties have made
an express contract, the court should not find a different one by ‘impli-
cation’”).
18 While “an arbitration agreement is usually linked with a concur-
rent no-strike obligation . . . the two issues remain analytically distinct.
Ultimately, each depends on the intent of the contracting parties.”
Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 382 (1974); accord:
NLRB v. Rockaway News Supply Co., supra at 79.
19 The Board adopted Member Penello’s Davis-McKee concurrence
as “a sound and straightforward guide to construing no-strike provi-
sions in Indianapolis Power Co., 273 NLRB 1715 (1985), remanded on
other grounds sub nom. Electrical Workers IBEW Local 1395 v. NLRB,
supra. The now-abandoned majority position in Davis-McKee has been
characterized as “something of a sport among the corpus of the law of
collective bargaining agreements viewed as a whole.” Electrical Work-
ers IBEW Local 1395, supra at 1035.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88
(a) Within 14 days from the date of this Order, offer
the following employees full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judges decision:

Michael Adams Caesar Adamson
Max Allen Willie Allen
Romeo Andaya Tony Andrews
Willie Bell Jr. Cary Besse
Robert Bradley III Michael Broughton
Thaddeus Brown Thomas Campbell
Wally Carter Howard Clemons
Bernal Cortez Albert Crockett
Avant Danjou Renoid Davis
Roscoe Davis Sanford Davis
Theodus Davis John Dickson
Frank Dix George Doyle
Austin Fox Anthony Gantt
Anthony Gray Virgil Green
Gary Hall Ronald Sanders
Kevin Hamler Mark Anthony Harris
Clyde Harris Kirby Hayes
Darrell Herrin Lamzo Hymea
Spencer Hymen Marvin Jackson
Reginald Johnson Samuel Jefferson
Otis Leggett Howard Lewis
James Long James Lucas
Anthony Lucious Gerald Marlowe
Randy Marshall Jamie J. McCollum
Eric T. McMurray Charles Meunerlyn
Samuel Moore Earnest Phillips
Darrick Philson Henry Plain Jr.
Michael J. Powell Joe Louis Preston
James O. Pullum Gerald A. Reed
Anthony Regan Duane Ross
Curtis Schuler Jerry Smith
David Utt Joe Valdez
Lee Washington Larry Williams
Charlie Smith Joe Stafford
Howard Utt Harold Walker
Chris Wheeler

(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”20 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed any of the
facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since January 5,
1994.

CHAIRMAN GOULD, concurring.
I write separately to address issues left unaddressed by
the administrative law judge, to state my agreement with
his findings that the activities in question rose to the level
of a strike, and to affirm his finding that the conduct at
issue “was designed in part to put pressure on Respon-
dent to be more generous in its handling of the Crockett
grievance than it might otherwise have done, if it did not
know of the employees willingness to refrain from com-
mencing work as scheduled in solidarity with Crockett
and his grievance.” I would affirm his reliance on his
two criteria, i.e., “sufficient duration and coercive pur-
pose” to approve his finding that “the employees action
qualify as a strike.”
I am of the view that an issue which the judge did not
discuss is a prerequisite to consideration of either the no-
strike or condonation matters. In Emporium Capwell Co.
v. Western Addition Community Organization, 420 U.S.
50 (1975), a decision alluded to by the judge in a differ-
ent context, the Court held that consistent with the prin-
ciples of both exclusivity and majority rule1 employees,
who sought to bargain with the employer independent of
their certified representative and used picketing as a
method to accomplish this objective, engaged in unpro-
tected activity under the Act. While I had previously
expressed disagreement with some of the conclusions at
which the Court ultimately arrived in Emporium2 it is

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 J. I. Case Co. v. NLRB, 321 U.S. 332 (1944).
2 W. Gould, Black Power in the Unions: The Impact Upon Collective
Bargaining Relationships, 79 Yale L.J. 46 (1969). See also A. Cox,
The Right to Engage in Concerted Activities, 26 Ind. L.J. 319 (1951);
SILVER STATE DISPOSAL SERVICE 89
important to note that the majority opinion expressed
considerable concern at the prospect of fragmentation of
the bargaining unit, and rejected the Court of Appeals
conclusion that the impact upon the union and the princi-
ple of exclusivity were minimal because the union in that
case “was not working at cross purposes with the dissi-
dents.”3 Even the attempt to implement the right to be
free from discrimination under Title VII of the Civil
Rights Act of 1964, said the Court in Emporium, could
not be “pursued at the expense of the orderly collective
bargaining process contemplated by the NLRA.” Id.
As the Court said in Emporium, the union “has a le-
gitimate interest in presenting a united front on this as on
other issues and in not seeing its strength dissipated and
its statute denigrated by subgroups within the unit sepa-
rately pursuing what they see as separate interests . . . in
the face of such fragmentation . . . the bargaining process
that the principle of exclusive representation is meant to
lubricate could not endure unhampered.” Id. at 70.
For a number of years prior to Emporium, I had been
of the view that the Court of Appeals for the Fourth Cir-
cuit was correct in its interpretation of our Act in NLRB
v. Draper Corp.4 when it adopted the view that unauthor-
ized stoppages undertaken once an exclusive bargaining
representative has been selected by a majority of the em-
ployees inherently derogates the union and the exclusive
bargaining representative concept since the employer is
obliged to bargain with the union and not individual em-
ployees. See W. Gould, The Status of Unauthorized and
“Wildcat” Strikes under the National Labor Relations
Act, 52 Cornell L.Q. 672 (1967) (Wildcat Strikes). I am
of the view that the errors in the Board thinking and its
failure to take into account accurately the implications of
Draper flow from decisions like the Boards in Sunbeam
Lighting Co.5 and the Fifth Circuits opinion in NLRB v.
R.C. Can Co.6
These decisions proceed on the assumption that, if
there is an identity or similarity of objectives between the
union and individual employees, an unauthorized stop-
page is protected under the Act because the majority rep-

N. Cantor, Dissident Worker Action, After The Emporium, 29 Rutgers
L. Rev. 35 (1976); and C. Craver, Minority Action versus Union Exclu-
sivity: The Need to Harmonize NLRA and Title VII Policies, 26 Hast-
ings L.J. 1 (1975).
3 Emporium Capwell, supra at 69.
4 145 F.2d 199 (4th Cir. 1944). While the Fourth Circuit did not ap-
pear to rely on the fact that only a minority, i.e., 25 percent of the unit
employees participated in the walkout, it nonetheless alluded to this
factor. I would not consider the amount of employee support in resolv-
ing the protected status issue. W. Gould, Wildcat Strikes, supra at 698–
700. Cf. Simmons Inc. v. NLRB, 315 F.2d 143, 147 (1st Cir. 1963);
Western Contracting Corp. v. NLRB, 322 F.2d 893 (10th Cir. 1963);
and Harnischfeger Corp. v. NLRB, 207 F.2d 576 (7th Cir. 1953).
5 136 NLRB 1248 (1962), enf. denied 318 F.2d 661 (7th Cir. 1963).
Accordingly, to the extent that the Boards decisions in Sunbeam and
R.C. Can and subsequent decisions that rely on the same theory are
inconsistent with this opinion, I would overrule them.
6 328 F.2d 974 (5th Cir. 1964).
resentative and exclusive bargaining concepts cannot be
usurped or derogated under such circumstances. This
approach, which seems to constitute the overriding theme
in determining whether the conduct is protected or un-
protected under our statute, is both naive and misguided.

Because the Board and courts have examined this issue
so as to determine whether the striking workers and the
union have similar goals, if there is dissatisfaction with
the bargaining process, sometimes this has been rational-
ized as frustration with the employer rather than the un-
ion.7 This, of course, is not consistent with the real
world and, in any event, highly unsatisfactory because
the actual object of employee grievance, i.e., union or
employer, may be a difficult inquiry to answer inasmuch
as the workers may be dissatisfied with both parties in
some or most instances. Moreover, the major deficiency
of this approach and the R..C. Can doctrine itself is its
focus upon the substantive goals being determined by the
union and the striking employees to see whether those
goals are identical.
Again, if they are identical, the action will be pro-
tected. Representative of this approach is Judge Posner’s
comment in East Chicago Rehabilitation Center v.
NLRB,8 when he said:

By demonstrating to the union the passions that had
been aroused by the new lunch rule, the strike led the
union to demand that the employer rescind the rule, and
in effect he did . . . and there is no evidence that in de-
manding rescission the union was merely yielding to
pressure from a vocal minority and giving up alterna-
tive demands more important to the bargaining unit as a
whole. [Id. at 401.]

But the fact of the matter is that, generally speaking, un-
ion and employee goals, at least as they are known to the
public, both before and during negotiations and indeed
right through the 11th hour, are going to be nearly identi-
cal if not synonymous. Both the employees and the un-
ion generally want to improve the living standards and
protect the job security of the employees. This is as it
should be.9
Even when dissatisfaction and disagreements actually
emerge, generally that can be only observed by a tribunal
like ours or a reviewing court when the bargaining proc-
ess is at or near completion and, even at that stage, only
with great difficulty. The same holds true of the attempts
by the Board and the courts to determine whether the
employee initiative is a demand for separate bargaining
or not. Compare, for instance, NLRB v. Bridgeport Am-
bulance Service, 966 F.2d 725 (2d Cir. 1992), with
NLRB v. Owners Maintenance Corp., 581 F.2d 444 (2d
7 W. Gould, Wildcat Strikes, supra at 684–685.
8 710 F.2d 397 (7th Cir. 1983) (enfd).
9 Novotel New York, 322 NLRB No. 121 (1996) (not reported in
Board volumes).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90
Cir. 1978). See also, for instance, East Chicago Reha-
bilitation Center v. NLRB, supra; NLRB v. A. Lasaponara
& Sons, Inc., 541 F.2d 992 (2d Cir. 1976).10
I am of the view that the Board should discard the the-
sis that disagreement or agreement about the substantive
goals of the strike is relevant to the protected status of
the workers conduct. The key consideration in determin-
ing whether the worker’s conduct undermines or dero-
gates the exclusive bargaining representative concept is
whether there is some consistency or accord between the
union and the strikers on the question of strategy and
timing. It may be that a limited no-strike clause such as
that contained in the instant case which allows the em-
ployees and not the union to call the stoppage is of some
relevance and supportive of protected status in that it
may reflect prior union endorsement or authorization of
spontaneous stoppages11—though my sense is that more
evidence is required.
Some evidence of union support, endorsement, or au-
thorization of the strikers’ strategy is appropriate though
neither the National Labor Relations Act or the Labor
Management Reporting and Disclosure Act of 1959
mandate a strike vote or any internal union vote on
strikes or ratification.12 The employer, which may be
subjected to competing pressures from different employ-
ees, ought to have some form of notification if the walk-
out is to be regarded by the Board as protected. Thus,
union support should be manifested through notification
of the employer through collective bargaining or some
other forum.
Second, a vote to strike prior to the strike itself con-
ducted through internal union procedures would be rele-
vant to the question of endorsement. For here the proce-
dure would endorse or be relevant to the timing of the
strike.13 I have expressed some concern about the impact
of employer inquiries about internal union procedures.14
But the vote or expression of support through some un-

10 If, of course, the separate bargaining issue is really a finding of
fact but the Supreme Court treated it as a conclusion of law in Empo-
rium, supra at 60–61.
11 Cf. Complete Auto Transit v. Reis, 451 U.S. 401 (1981).
12 In my view, the statute should be altered so that strike votes are
mandated. See W. Gould, Agenda for Reform: The Future of Employ-
ment Relationships and the Law (MIT Press 1993) at 198–202. But this
opinion is not predicated upon such an amendment or the need for its
enactment.
13 In Draper, supra, while the Fourth Circuit viewed the strike as un-
protected, in fact the striking department had voted to strike.
14 W. Gould, Wildcat Strikes, supra at 689. In the context of the duty
to bargain, the Board has consistently held that a union’s internal pro-
cedures and requirements for ratification are not the proper concern of
the employer. Thus, an employer may not lawfully refuse to sign a
contract on the basis that (1) the union’s ratification procedures were
not in accordance with the requirements of its bylaws and constitution,
Newtown Corp., 280 NLRB 350, 351 (1986), enfd. 819 F.2d 677 (6th
Cir. 1987); (2) the ratification vote was tainted by procedural defects,
Martin J. Barry Co., 241 NLRB 1011 (1979); or (3) the union coerced
its members into voting for ratification, Utility Tree Service, 218 NLRB
784 (1975), enfd. mem. 539 F.2d 718 (9th Cir. 1976).
ion mechanism—a vote or support which was transmit-
ted to the employer—would be indicative of consensus
on the critical issue of timing and strategy and should
therefore weigh in favor of protected status.
Again, it is consensus about strategy that the Board
should look to, not identity of substantive goals as it has
in the past. I have written previously about the impor-
tance of timing and the use of economic weaponry as has
the Supreme Court in the context of its discussion of the
right to lock out.15 If, for instance, a union wants to de-
lay use of the strike weapon to a time that it deems to be
more propitious, it is hard to imagine something that is
more inconsistent with the exclusivity concept than a
strike at another time. Yet, under the Board’s present
approach, so long as identity of substantive goals is
found to exist, the activity is protected. This approach
creates havoc with union policy, good industrial rela-
tions, and the sound administration of our Act which is
designed to produce industrial peace and to promote the
concepts of exclusivity and majority rule.16 And it pro-
motes the balkanization with which Emporium is at war.
I agree with the Administrative Law Judge that the
strike here has been condoned and that therefore the em-
ployee conduct in question is protected. Thus, a remand
to determine the facts relevant to the issues discussed in
this opinion is unnecessary. Accordingly, I am of the
view that the complaint should be sustained and I concur
with my colleagues to support this result.

MEMBER HURTGEN, dissenting.
My colleagues do not quarrel with the judge’s conclu-
sion that the employees’ conduct was a “work stoppage
within the meaning of the relevant contractual clause.
However, they have taken the position that the clause
covered only conduct in which the Union is involved,
and that it therefore did not cover the conduct of the em-
ployees involved here.
My difficulty with the position of my colleagues is that
the aforementioned issue of contract coverage was not
the litigated issue. Rather, the General Counsel’s posi-
tion was that the conduct of the employees did not
amount to a “work stoppage.” As a consequence, the
Respondent was not called upon to present evidence or
argument on the separate issue of whether the parties
intended for their clause to cover allegedly “nonunion”
15 W. Gould Wildcat Strikes, supra at 687. See also my concurring
opinion in Telescope Casual Furniture, 326 NLRB No. 60 (1998);
which relies on American Ship Building Co. v. NLRB, 380 U.S. 300
(1965); and NLRB v. Brown Food Store, 380 U.S. 278 (1965).
16 The Board must repress its excessively protective approach to un-
authorized stoppages, an approach which both encourages involve-
ment in the unions internal affairs and, at the same time, makes un-
ion statesmanship more unlikely. A shift in Board decisions, which
alters the latter consideration, may produce a difficult period of get-
ting tough with unreasonable dissident elements. Whatever the re-
sult, a vehicle in support of membership revolts as well as union li-
ability for the same conduct is not to be found in the Labor Man-
agement Relations Act. (W. Gould, Wildcat Strikes, supra at 704.)
SILVER STATE DISPOSAL SERVICE 91
mass employee action. Nor have the parties briefed to
the Board the issue of whether the relevant clause has a
“plain meaning,” and whether extrinsic evidence should
be considered. In these circumstances, I would not re-
solve these questions against the Respondent without
giving it a full opportunity to be heard. I believe that
considerations of fairness and due process preclude the
result reached by my colleagues.
The majority argues that it was the Respondent’s obli-
gation to raise the aforementioned issue at trial. In this
regard, my colleagues contend that the coverage of a no-
strike clause is an affirmative defense. That may be true
as a general proposition, but it ignores the manner in
which the issues in this case were presented. At trial, the
General Counsel himself adverted to the contract. He
argued that the contract did not cover the conduct at issue
here because the conduct was not a strike. The Respon-
dent took the contrary position, and the issue was joined.
The Respondent was not placed on notice as to the sepa-
rate issue of whether the clause covered nonunion
strikes. And that turns out to be the issue on which my
colleagues have decided this case.1
Similarly, the judge found that the employees conduct
was a strike, and was thus proscribed by the no-strike
clause. The General Counsel’s exceptions contend that
the conduct was not a strike and thus the no-strike clause
was inapplicable. However, the General Counsel’s ex-
ceptions did not contend that the no-strike clause was
rendered inapplicable by reason of the “nonunion” char-
acter of the strike. But, again, that is the basis on which
my colleagues have decided this case.
My colleagues also argue that the Respondent did liti-
gate the issue of whether the clause covers “nonunion”
strikes. In this regard, they rely on the fact that the Re-
spondent made an argument in its posthearing brief (to
the judge) concerning the no-strike clause. However,
this is no substitute for litigation at the hearing. That is
the place at which General Counsel should state his posi-
tion, so that the Respondent will have an opportunity to
present evidence in rebuttal. Similarly, if the General
Counsel wishes to place an issue before the Board, the
exceptions are the vehicle for doing so.2
Further, even if the matter were properly litigated, and
even if the “work stoppage clause were found to pertain

1 My colleagues note that Respondent asserted at trial that if it pre-
vailed on the contractual issue, it would prevail in the case. The clear
reference was to the contractual issue of whether the employees con-
duct was a “work stoppage.” Little did Respondent realize that it could
prevail on that issue and yet lose the case on a different contractual
issue, viz., the one now raised and resolved by my colleagues.
2 My colleagues rely on Jones Dairy Farm, 295 NLRB 113 (1989),
enfd. 909 F.2d 1021, 1028–1029 (7th Cir. 1990). The case is clearly
distinguishable. In that case, respondent itself raised the contractual
language, and then complained that the ALJ and Board had misinter-
preted that very language. By contrast, in the instant case, the General
Counsel adverted to certain language in the contractual clause, and the
Board now relies on other language in that clause to find a violation.
only to union work stoppages, that would not end the
matter. In this regard, I note that the contract also con-
tained a grievance-arbitration clause which covered the
dispute that led to the work stoppage. Indeed, a griev-
ance concerning the matter was being processed at the
time of the work stoppage, and it was the purpose of the
work stoppage to influence treatment of that grievance.
In these circumstances, there is at least an issue as to
whether the grievance-arbitration provision of the con-
tract required employees to await the outcome of griev-
ance-arbitration, rather than engage in a work stoppage.3
My colleagues seek to distinguish Lucas Flour on the
ground that the contract there did not contain an explicit
no-strike clause. In their view, where the contract does
contain such a clause, that clause is to be the only one
that governs. I disagree. Lucas Flour held that a no-
strike obligation could be inferred from an arbitration
clause, even in the absence of an express no-strike
clause. But the obverse does not necessarily follow.
That is, it does not necessarily follow that a no-strike
obligation can never be inferred from an arbitration
clause if there is an express no-strike clause. It may well
be, for example, that the parties wish to have one rule
with respect to disputes in general, and another rule for
disputes that are subject to the grievance-arbitration pro-
cedures. And, they may wish to be more restrictive with
respect to strikes in the latter category. At bottom, as my
colleagues concede, the issue is one of ferreting out the
intention of the parties. And that is precisely my point.
If the parties had focused their litigation on this issue,
they could have elucidated the matter of intent. Instead,
without such litigation, my colleagues have summarily
resolved the issue.
Finally, my colleagues note that the Respondent takes
the position that the terminations arising as a result of the
strike are not arbitrable. Contrary to my colleagues, this
is not inconsistent with the proposition that the discharge
leading to the strike is arbitrable.
On a separate point, the judge found that the evidence
established that the Respondent condoned the conduct of
the employees. I disagree. In order to establish condo-
nation, there must be “clear and convincing evidence that
the employer has agreed to forgive the misconduct, ‘to
wipe the slate clean’ and to resume or continue the em-
ployment relationship as though no misconduct had oc-
curred.”4 The evidence here falls far short of that stan-
dard. Two low level supervisors told the employees to
either come back to work or leave the property. There is
no evidence that they expressed a willingness to forgive
the conduct and to “wipe the slate clean.”

3 See Lucas Flour v. Teamsters Local 174, 369 U.S. 95 (1962); Sub-
urban Transit v. NLRB, 536 F.2d 1018.
4 White Oak Coal, 295 NLRB 567, 570 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
Rather, the supervisors were simply trying to persuade
the employees to return to work. There is no suggestion
that they were communicating a corporate decision to
wipe the slate clean.
In addition, the evidence affirmatively indicates that
Respondent did not intend to wipe the slate clean. In this
regard, I note that when the employees sought to return,
they were met with the Respondent’s definitive re-
sponse—they were turned away. Finally, the Respon-
dent’s position became even clearer when, later that day,
it terminated the strikers.
In sum, the supervisors’ mere invitation to return to
work, unaccompanied by an indication of forgiveness, is
far outweighed by the definitive and immediate actions
by the Respondent. The judge apparently believed that
an effort to persuade employees to return to work is nec-
essarily an act of forgiveness. Such a principle would
foreclose a company from taking the sensible step of
seeking to achieve a return to work, and later (at a more
dispassionate moment) reaching decisions about whom
(if anyone) to discipline. The view of the judge is con-
trary to reasonable industrial practice. It would require
an employer to finally decide all disciplinary issues in
the heat of the moment, in a parking lot, while the strike
is ongoing. I do not endorse such a requirement.
Accordingly, I would not find condonation.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in a work stoppage that
is prohibited by the collective-bargaining agreement after
we have condoned such conduct.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in an unfair labor prac-
tice strike in protest of our unfair labor practices.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL , within 14 days from the date of the Board’s
Order, offer the following employees immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make them
whole for any loss or earnings and other benefits result-
ing from their discharge, less any net interim earnings,
plus interest:

Michael Adams Caesar Adamson
Max Allen Willie Allen
Romeo Andaya Tony Andrews
Willie Bell Jr. Cary Besse
Robert Bradley III Michael Broughton
Thaddeus Brown Thomas Campbell
Wally Carter Howard Clemons
Bernal Cortez Albert Crockett
Avant Danjou Renoid Davis
Roscoe Davis Sanford Davis
Theodus Davis John Dickson
Frank Dix George Doyle
Austin Fox Anthony Gantt
Anthony Gray Virgil Green
Gary Hall Ronald Sanders
Kevin Hamler Mark Anthony Harris
Clyde Harris Kirby Hayes
Darrell Herrin Lamzo Hymea
Spencer Hymen Marvin Jackson
Reginald Johnson Samuel Jefferson
Otis Leggett Howard Lewis
James Long James Lucas
Anthony Lucious Gerald Marlowe
Randy Marshall Jamie J. McCollum
Eric T. McMurray Charles Meunerlyn
Samuel Moore Earnest Phillips
Darrick Philson Henry Plain Jr.
Michael J. Powell Joe Louis Preston
James O. Pullum Gerald A. Reed
Anthony Regan Duane Ross
Curtis Schuler Jerry Smith
David Utt Joe Valdez
Lee Washington Larry Williams
Charlie Smith Joe Stafford
Howard Utt Harold Walker
Chris Wheeler

WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to these dis-
charges and WE WILL notify each employee that this has
been done and that we will not use the discharge against
them in any way.

SILVER STATE DISPOSAL SERVICE, INC.

Richard C. Auslander, Esq., for the General Counsel.
Norman H. Kirshman, Esq. (Kirshman & Harris), of Las Ve-
gas, Nevada, for the Respondent.
SILVER STATE DISPOSAL SERVICE 93
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
this matter in trial in Las Vegas, Nevada, from March 14
through 29, 1995. The matter arose as follows. Howard
Clemons, an individual, filed a charge with Region 28 of the
National Labor Relations Board (the Board) docketed as Case
28–CA–12361 on January 11, 1994, against Silver State Dis-
posal Service, Inc. (the Respondent). Caesar D. Adamson, an
individual, filed a charge docketed as Case 28–CA–12365 on
January 13, 1994, against the Respondent. Bernard Peter Wil-
liams, an individual, filed a charge docketed as Case 28–CA–
12365–2 on the same day against the Respondent. Albert
Crockett, an individual, filed a charge docketed as Case 28–
CA–12595 on June 21, 1994, against the Respondent.
On July 1, 1994, following an investigation the Regional Di-
rector for Region 28 of the Board (the Regional Director) is-
sued an order consolidating cases, consolidated complaint and
notice of hearing respecting the former three cases. The Re-
spondent filed an answer to the consolidated complaint dated
July 26, 1994. On August 5, 1994, the Regional Director is-
sued a complaint and notice of hearing in Case 28–CA–12595.
On August 10, 1994, the Regional Director issued an order
consolidating cases consolidating all the above-captioned cases.
The Respondent filed an answer to the complaint in Case 28–
CA–12595 dated August 15, 1994. The pleadings were further
amended at the hearing.
The amended complaints allege and the amended answers
admit that the Respondent terminated 68 of its employees on
January 5, 1994. The complaints further allege and the answers
admit that the Respondent terminated Bernard Williams, on
January 6, 1994, and Albert Crockett on January 14, 1994. The
complaints further allege that the Respondent terminated the
employees because of the employees’ protected concerted ac-
tivity and in so doing violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act). The Respondent de-
nies that the employees were engaged in protected activities on
January 5, 1994, and rather contends that the employees, other
than Williams and Crockett, were terminated because they
struck in contravention of a no-strike clause in a current collec-
tive-bargaining agreement and because they were engaged in an
unprotected attempt to deal directly with their employer in con-
travention of the exclusive bargaining status of their recognized
agent for collective bargaining. The Respondent further con-
tends Williams and Crockett were discharged for violation of
company rules and not for improper or illegal reasons. The
Respondent also contends that the allegations respecting Wil-
liams should be deferred to an arbitration decision rendered in a
grievance brought by the Union respecting his discharge.
On the entire record,1 including my observation of the wit-
nesses and their demeanor, a physical inspection of the Re-

1 The Respondent’s unopposed motion to correct transcript of April
26, 1995, is granted as to all matters not discussed hereinafter. The
Respondents motion to delete the record assertion of an administration
of oaths to Crockett at pp. 709 and 1298 of the transcript: “after first
having been duly sworn is granted as to the entry on p. 709 and denied
as to p. 1298. The record at p. 709 of the transcript is further corrected
to substitute the following for the deleted assertions noted above: “after
first having been asked to raise his right hand and swear that the testi-
mony he was about to give was the truth, the whole truth and nothing
spondent’s premises, and helpful briefs from the General Coun-
sel and the Respondent,2 I make the following
FINDINGS OF FACT
I. JURISDICTION3
The Respondent is, and has been at all times material, a State
of Nevada corporation which maintains an office and places of
business in Las Vegas, Nevada, where it is engaged in the busi-
ness of waste disposal. The Respondent annually enjoys gross
revenues in excess of $500,000 and purchases and receives in
interstate commerce at its Las Vegas, Nevada facility goods
and materials valued in excess of $50,000 directly from points
outside the State.
The complaint alleges, the answer admits, and I find that the
Respondent is and has been at all times material an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 631, affiliated with the International Brotherhood of
Teamsters, AFL–CIO (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent at all relevant times has maintained offices
and places of business in Clark County, Nevada, including its
North Las Vegas Transfer Station (the facility), the location of
the events in controversy, and its corporate offices located in
Las Vegas. The Respondent is in the business of collecting,
processing, and disposing of waste in Clark County, Nevada.
The Respondent has in essence been a family business. Al-
fred Isola, the Respondent’s founder and principal, was corpo-
rate president and the director until his death on January 2,
1994. Joseph Anstett is a principal, corporate director and,
prior to Alfred Isola’s death, executive vice president succeed-
ing to corporate president thereafter. Other principals and vice
presidents at relevant times were Al Lippetti, Tom Isola, son of
Alfred Isola, and Richard (Ritchie or Ritch) Isola, nephew of
Alfred Isola. All of these officials worked at the Respondent’s
corporate offices in Las Vegas, Nevada, except Richard Isola
and Al Lippetti. These latter individuals worked at the facility
with Lippetti in charge of maintenance of equipment and Alfred
Isola in charge of operations with final authority respecting
facility personnel and labor relations matters.
At all times material, the Respondent has recognized and en-
tered into a series of collective-bargaining agreements with the
Union covering a bargaining unit of its employees, which in
early 1994 numbered approximately 760. The great bulk of the
unit was comprised of the Respondent’s garbage truckdrivers

but the truth so help, him God. See further discussion of this matter,
infra at sec. C,1,a,(1).
2 The Respondent’s May 4, 1995 errata to its brief was also received
and considered.
3 Where not otherwise noted, the findings here are based on the ad-
mitted portions of the amended complaints, the stipulations, or admis-
sions of counsel and uncontested, credible testimonial or documentary
evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
and pitchers,4 all of whom are assigned to the facility. The
relevant collective-bargaining agreement between the Respon-
dent and the Union was in effect from June 1993 to June 1994
and contained, as article 12, no strike-no lockout, the following
language:

[T]he Union shall neither call, encourage nor condone any
work stoppage, work slowdown, or picketing of the Employ-
ers several premises on its trucks; and the Employer will not
lockout the employees covered by this agreement.

The Union’s secretary-treasurer at all relevant times has been
Bob McClone. The union president is Earl Saulter, who also
serves as a business agent. Saulter, who prior to his service as a
union official was an employee of the Respondent and a mem-
ber of the bargaining unit at issue here, was the main union
official involved in dealing with the Respondent and its unit
employees until February 1994 at which time he was replaced
by David Deitrich, a union business agent and the Union’ rep-
resentative in the instant matter.
The Respondent’s facility garbage truckdrivers and pitchers
(the employees) report to work, are assigned trucks and routes,
depart from and return to the facility. At relevant times there
were two shifts: the a.m. shift extending from 3 to 11 a.m. and
the p.m. shift extending from 1 to 9 p.m. Employees were ex-
pected to report to work 15 minutes before their shift com-
menced and those employees who failed to timely enter the
building were not allowed to work that day and certain aspects
of a progressive discipline system were invoked.
B. Events
1. The activities of the committee
Beginning in the summer of 1993 certain of the Respon-
dent’s bargaining unit employees had occasion to meet at a
local park on Sundays. Over time the number of employees
meeting in this fashion grew and the feelings and opinions of
the employees respecting their working conditions and their
union representation were increasingly discussed. In time a
committee of some half dozen employees was formed with
Charging Party Crockett as its president. Ultimately committee
members were formally elected by the employees attending a
meeting.
Attendance at the meetings grew over time from perhaps 15
employees to 100 or more and the location was moved from the
public park to the union hall.5 A wide range of employee con-
cerns were discussed. Grievances and concerns respecting the
Respondent’s conduct toward employees were aired. Unhappi-
ness with the Union’s representation of unit employees was
discussed. Ideas for improvement of the current contract and
proposals for the then upcoming negotiations for a new contract
were solicited and recorded.
Earl Saulter, the Union’s president and business agent who
was during this period the union official primarily involved
with the bargaining unit, was aware of the meetings—indeed it
was he who regularly furnished the employees with the key to
the union hall—and was at least on some occasions invited to
attend, but did not.

4 A pitcher works in association with a garbage truckdriver and as-
sists in loading materials onto the truck.
5 The meetings at the hall were not official union meetings, but took
place with the knowledge and permission of the Union.
By late fall 1993, the expressions of employee unhappiness
with current circumstances coalesced in the idea of picketing in
order to demonstrate employee dissatisfaction with the status
quo. This action was discussed in the early and middle De-
cember 1993 meetings and the committee determined to picket
the Respondent at its corporate offices in Las Vegas on De-
cember 23, 1993. The Union was made aware of the general
plans of the committee and McClone, the Union’s secretary-
treasurer, attended the Sunday union hall meeting preceding the
planned picketing at the invitation of the committee.
At the meeting preceding December 23, 1993, likely on Sun-
day, December 19, 1993, the gathered employees expressed to
McClone their unhappiness with perceived inadequacies of
Saulter’s efforts on their behalf as well as their unhappiness and
sense of grievance resulting from the Respondent’s treatment of
them. The planned informational picketing of the Respondent’s
corporate offices in Las Vegas by off-duty employees on De-
cember 23, 1993, was also announced. McClone told the gath-
ering that he thought Union President Saulter was doing a satis-
factory job in representing employees. He also told the group
that the Union could not support their picketing. The group’s
decision to picket on December 23, 1993, was not changed.
The Union sent a letter to the Respondent dated Monday,
December 20, 1993, over Secretary-Treasurer McClone’s sig-
nature on union letterhead stating:

Please be advised Teamsters #631 is in no way affiliated with
the demonstration scheduled for Thursday, December 23,
1993. We do not support or condone these actions. Should
you have any questions please advise.

Soon after its receipt, the union letter was read aloud by the
Respondent’s officials to bargaining unit employees.
2. The Respondent’s meeting with committee members and the
December 23, 1994 picketing
On learning of the intended picketing, the Respondent’s vice
president, Richard Isola, the corporate official in charge of the
transfer station as well as the bargaining unit employees associ-
ated therewith, initiated a meeting with members of the com-
mittee which was held on the morning of December 22, 1993.
The meeting was attended by six to eight committee members,6
Ritchie Isola, and management colleagues and extended over
perhaps 2 hours.
Various committee members expressed complaints concern-
ing their perceptions that the Respondent’s supervisory staff
was arrogant and arbitrary respecting unit employees, that pro-
motional opportunities for the primarily black bargaining unit
into the primarily white managerial hierarchy were not suffi-
cient, and that the Union and its agents were insufficiently vig-
orous in championing the employees cause to management.
Richard Isola listened to the committee’s complaints and es-
sentially expressed the view that the employees’ problems were
largely with the Union. He advised the employees to, in effect,
use the strength of their numbers to influence the Union to their
point of view emphasizing the substantial size of the bargaining
unit as a proportion of the Union’s membership.
The intended picketing was discussed with committee mem-
bers expressing the view that it was necessary to get the Un-
ion’s and the public’s attention to better address their griev-
ances. Isola warned the committee members that they should
6 Committee President and Charging Party Albert Crockett was un-
able to attend.
SILVER STATE DISPOSAL SERVICE 95
avoid getting “caught in a cross fire,” that their jobs provided
good pay and benefits and should not be risked lightly. Soon
thereafter the meeting ended. The committee members con-
cluded that the meeting had insufficiently addressed their prob-
lems and that the picketing should go forward as planned.
On December 23, 1994, approximately 40 off-duty unit em-
ployees, including the committee members, picketed the Re-
spondent’s corporate offices for several hours with signs bear-
ing the legends, inter alia: “No Code of Ethics,” “Unfair Labor
Practices,” “No Union Support,” and “We Are Human Beings
Not Animals.”
3. The initial termination of Charging Party Albert Crockett and
events to January 5, 1995
Albert Crockett worked as a driver on Friday, December 31,
1993, with Duane Guerth7 as his pitcher. Sometime that day
Guerth salvaged a radio which he placed inside the garbage
truck. The men ended their shift that day without incident.
That evening the radio was found in the truck by a member of
management. The following day, Saturday, January 1, 1994,
Guerth was terminated for salvaging8 and Crockett was termi-
nated for being aware of and failing to file a report concerning
Guerth’s salvaging.
The following day, Sunday, January 2, 1994, Crockett and
Guerth went to the union hall with Union Steward Ron Gibson.
They met with Union Agent Saulter, reported the circumstances
surrounding their discharges, and expressed a desire to file a
grievance. Saulter instructed the two to meet with him at the
facility the following day. The next day, Monday, January 3,
1994, the four met with the Respondent’s operations manager,
Paul LaBruzzo, who refused to reinstate the two men asserting
that the Respondent was sticking to the discharges. After the
meeting ended, Saulter told the two that he would get back to
them respecting the matter. Saulter continued to press the
grievance with the Respondent with no success. He met with
Guerth and Crockett again on Tuesday, January 4 and told them
he had spoken to Rich Isola, but that he had declined to rein-
state the two men. Saulter told the two however that another
meeting was to be set up with the Respondent on the grievance.
Parallel to the events discussed above, at the turn of the year
Corporate President and Principal Alfred Isola was taken unex-
pectedly ill and died on January 2, 1995. His funeral was held
on January 5, 1995, in Las Vegas. Ritchie Isola who was out of
town for the holidays, returned, and with his family members
dealt with the unhappy circumstances presented by the death of
Alfred Isola. During the course of these events, he apparently
had tangential dealings with the Crockett grievance after the
discharged had been consummated, but was essentially dedi-
cated to family and transitional matters.

7 Guerth’s name was spelled variously both in the transcript and in
the briefs.
8 The Respondent maintained and enforced a longstanding rule
against retention or salvaging of items by drivers or pitchers. Neither
the rule nor its application is under challenge by the General Counsel.
4. Wednesday, January 5, 19959
a. The events in and around the entry door
The funeral and related gatherings honoring deceased Presi-
dent Alfred Isola on Wednesday, January 5, 1994, were at-
tended by the Respondent’s higher management. The Com-
pany continued its operations, however, and unit employees
and line supervision prepared for work as normal. Coinciden-
tally, that Wednesday was the regular payday for unit employ-
ees.
As usual, the p.m. shift was scheduled to commence at 1
p.m. The longstanding practice was to require the employees to
be physically inside the building by the sounding of a warning
buzzer at 12:45 p.m. Unit employees who were late were at risk
of physical exclusion because the single entrance door into the
unit employee staging area was regularly locked at 12:45 p.m.
Employees who were excluded from the facility in these cir-
cumstances suffered both the loss of the day’s work and wages
as well as the accrual of a no-show discipline with eventual
consequences under the progressive discipline system. Again
consistent with regular practice and human variation, some
employees arrived on site quite early, others somewhat early
and others close to the last possible time sufficient to timely
enter the building. Some employees entered the building im-
mediately on arrival and awaited the commencement of the
shift there, others tended to remain outside talking with fellow
employees until the entrance deadline approached. Until the
events in question discussed below and apart from the unhappy
circumstances respecting Alfred Isola, January 5 was appar-
ently a typical day at the facility from the perspective of unit
employees.
Consistent with the instructions he received from the Re-
spondent’s agent, Haywood Carter, at the time of his discharge,
Albert Crockett arrived at the facility on Wednesday January 5
sometime soon after 12:15 p.m. to drop off his company over-
alls and to pick up his final paycheck. Crockett did not enter the
facility, but rather stayed outside the facility talking to employ-
ees and, after a few minutes, approached to within the general
area of the unit employee doorway entrance and talked with
other employees in the area.10 The conversation dealt with
9 The disputed events of January 5, 1994, occurring in and around
the facility entrance door from on or soon after noon and subsequently
involved a significant number of people. The specifics of the crowds
conduct as well as what was said and done by various individuals in
that context, both by employees and the Respondents agents, was testi-
fied to by numerous witnesses called by both the General Counsel and
the Respondent. As to general events and timing, while testimony dif-
fered, I find that all the witnesses were attempting to honestly relate
what they did, saw and heard and the times various events occurred.
The fact that witnesses each experienced the rather complicated events
from a personal perspective different from others in the crowd or inside
the building, necessarily set their perspective of events somewhat apart.
So, too, human variation in perception, recollection, and reporting of
events in my view added to the variation of the witnesses testimony
concerning various circumstances. Where it is not necessary to resolve
noncritical aspects of the testimony concerning events, those events
have been described generally relying on an amalgam of the witness
testimony as well as the probabilities applicable to such events.
10 Crockett testified that the procedure for a unit employee who
wanted to pick up his paycheck on a payday when the employee was
not scheduled to work required the employee to wait until the unit
employees had commenced work and the trucks had been assigned
before picking up the paycheck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
Crockett’s discharge and grievance and matters relating to
those two circumstances.
From a small gathering of one or two unit employees talking
with Crockett, in time a large group gathered with Crockett
explaining and answering questions respecting his discharge,
grievance, and the larger context of events. He testified how-
ever, and no witness contradicted him, that he did not refer to
the events of December 23, 1994, in talking with his fellow
employees. There is no question that Crockett’s termination
and his description of the progress made on his grievance con-
cerned many employees and, among at least those employees,
indignation grew. As the group grew, the crowd itself also
became a novelty and attracted attention in its own right. By
about 12:30, or soon thereafter, a very large group of unit em-
ployees was gathered around Crockett with others somewhat
further distant discussing the Crockett discharge and their fears
and suspicions regarding it. So, too, yet other employees were
only peripherally involved at best, were no more than curious
about the crowd or remained in the area simply because others
were there. During this period some unit employees entered the
facility, some employees who were already inside the building,
on learning of the gathering outside, exited the facility and
joined the crowd. Generally however the employees remained
outside and came to number about 100.
The Respondent’s supervisory staff inside the building be-
came aware of the unit employees gathered outside and their
failure to enter the building and prepare for the commencement
of the shift. The Respondent’s long-time foreman, Oliver Wil-
liams, noticed Crockett standing outside near the employee
entrance with this overalls over his arm. Overtime employees
arrived and gathered around Crockett. Williams testified he
was immediately concerned the men were going to walk off the
job because of the existence of strike rumors and his conversa-
tion with Lucas the night before.11 By 12:30 p.m. Oliver Wil-
liams and fellow foremen Jessie Williams and Elmo Walker
noticed that the crown was growing larger about Crockett and
few of the employees were entering the building. Oliver Wil-
liams, Elmo Walker, and security guard Bob Brice went outside
through the employees entrance door and Elmo Walker told the
men they did not know what they were doing, they needed to
come in and go to work and that they were not doing the right
thing.
Thereafter Oliver Williams went outside on several occa-
sions, told the men what they were doing was wrong, and ex-
horted them to come into work. During this process the milling
men generated their own noise and it was difficult to hear all
that Williams said. On each occasion Williams was unsuccess-
ful in persuading the employees to enter the building, Williams
recalled that Crockett responded to his remarks on only one
occasion: “I told [Crockett] that he was wrong when he—by
holding the men up. He said, ‘Im not holding them up.’ He
said, ‘You guys go to work, at that time.’”
The events occurring at the time the buzzer sounded and
thereafter were in dispute. Oliver Williams and security agent
Robert Brice testified that Williams was outside attempting to
get the employees to enter the building when the buzzer
sounded at which time he turned and entered the building leav-

11 Oliver Williams testified that he had a conversation with Howard
Lucas after the end of the p.m. shift on January 4, 1994, in which Lucas
voiced various complaints respecting working circumstances and indi-
cated that the employees were going to get their problems “straightened
out” by striking.
ing the door unlocked. Employee Michael Broughton testified
that he thereafter tried to open the door and found it was locked
and, looking through the glass light in the door, saw a guard on
the inside motioning him to cease his attempts to open the door.
Employee Caesar Adamson testified that after the buzzer went
off, Williams and others returned inside and thereafter an em-
ployee known only to him as Mike tried the door and said it
was locked. Other employees testified they assumed the door
was locked consistent with practice.
Employee Steven Ellerman testified he heard Oliver Wil-
liams tell the employees “You can come in to work, or you’re
off and start looking for another job.” He further testified that
after the buzzer went off, he entered the building through the
door in contest without difficulty. Employee Ronald Leaks
testified he heard Oliver Williams tell the employees: “If you
want to work, you can come in now.” Thereafter, he followed
Williams into the building with fellow employee Willie Wil-
liamson right behind him. Employee Willie Williams testified
that he heard Oliver Williams come out and tell the men: “I just
got the word. Either come in now or your [sic] fired, and the
police is on the way. You know, you can get your checks when
the police come.” At that point Williams followed Ronald
Leaks into the building. Employee Calvin Clark testified he
was inside the building and saw Oliver Williams, Willie Wil-
liams, and Ronald Leaks, and perhaps others enter the building
through the door at issue without let or hindrance.
Oliver Williams testified that he had a radio call placed to
Route Supervisor Jimmy Hilton who was offsite. He also had a
call placed and finally reached Ritchie Isola by cellular phone.
Williams testified:

[Richie Isola] asked me what was going on and I told him that
the men didn’t want to go to work I said its a thing that
Crockett had got fired. I said, “Crockett is on the property
now.” And his words, “Get the hell off of the property.” And
he said, “I’m headed out, Ill be there.” And he sa[id], “Call
the police.”

Oliver Williams testified that Ritchie Isola also allowed him in
the telephone call to speak to the men one more time. Richard
Isola did not recall that aspect of the call.
In all events, the Respondent caused the North Las Vegas
police department to be called and Williams again went outside
where the crowd remained. What Williams said in this post-
buzzer address of the employees was disputed. Oliver Wil-
liams testified he told the men:

Gentlemen, come in close to where you can hear me. I just
got off the phone with Isola. I asked him to give me the
chance to come out and try to get you to come to work. I said,
“You got a chance to come to work or he wants you off his
property.”

Williams testified that there was a lot of noise at the time he
made this address. Others testified that there was confusion
and difficulty hearing throughout the events occurring outside
the facility that day. Numerous witnesses testified to Williams’
address to employees. There seems little doubt that Williams
told the men that the police were on their way and, in response
to shouted questions about paychecks on that payday, said that
the men would be paid offsite. The critical difference in what
were essentially two versions of this event was whether Wil-
liams said the employees were to leave the Respondent’s prop-
SILVER STATE DISPOSAL SERVICE 97
erty or, rather, told the employees they were to go to work or
leave the property.
North Las Vegas Police officer Christopher Gandy testified,
after refreshing his recollection with police time reports of the
events of January 5, 1994, that he was contacted by radio re-
specting the events at the facility at 12:50 or 12:51 p.m. and
arrived at the facility at 12:57 or 12:58 p.m. He testified that he
and his fellow officers came on the employees gathered outside
the building and, after talking to the Respondent’s security
staff, spoke to an unspecified number of employees, including
Crockett, and asked the employees to go to work or leave the
Respondent’s property.
b. The events in the adjacent vacant lot
The employees either walked or drove their cars out of the
facility parking lot and parked in and around a vacant corner lot
adjacent to the facility where they gathered awaiting events.
James Andrews testified that “not too long after the employees
had moved to the vacant lot Route Supervisor Jimmy Hilton
and Foreman Mid Jackson came to the lot. Andrews testified:

Well, Jimmy [Hilton]—he said that “I know what you
guys are doing, but you’re going about it the wrong way. I
need you to go back to work.” . . . and then he turned to
Reverend Crockett and said, “I need you to help me tell
the guys, so Al stood up on a rock and told people that we
should go back to work.” At that point—actually, even
before he stood up, I was telling the guys, “Lets go. Guys
need to come on and go back in.” And I was leaving. I
got in my car and attempted to go inside the gate, and I
met a co-worker who had already made it there—
apparently about 30 seconds before me. He said, “They’re
not letting us in there—not letting us in.” Then I pro-
ceeded to backup—put my car in reverse and park—
actually, the wrong way. I should have been parked this
way. I turned around.

Andrews further testified that soon after returning to the lot,
after attempting unsuccessfully to go to work, he saw a limou-
sine with Isola inside enter the facility after passing by the
crowd of employees. Hilton entered the facility and returned
some 20 to 30 minutes later. At that point Hilton told the men
they had all been terminated. Andrews recalled that Hilton
came to the lot a third time that day to summon certain employ-
ees to a meeting inside the facility.
Caesar Adamson essentially corroborated this version of
events save that he also recalled Hilton told the employees on
his second trip out that paychecks would be distributed outside
the gate. Crockett also corroborated the other two men al-
though he also recalled that Hilton in his initial remarks told the
employees that he had heard of the problems over his radio.
Crockett placed Hilton’s arrival at from 10 to 15 minutes after
the employees went to the lot. He also placed the arrival of
Isola’s limousine at just after the security guards had refused to
let the employees onto the facility premises after Hilton had
successfully solicited their return to work. Finally, he esti-
mated that Hilton returned to the lot after his first visit in about
10 minutes or less. Eric McMurray described the events simi-
larly save that he recalled that Hilton reported on coming out
the second time that he had met with somebody in the facility
and that all the employees were terminated.
Neither Hilton nor Mid Jackson testified.
Richard Isola testified that he returned to the facility in a
limousine, which had been provided for funeral proceedings
that day, and observed the employees in the area of the lot, the
police on the premises, and the general confusion. Counsel for
the Respondent characterized Isola’s actions thereafter in his
opening statement:

[Richard Isola] went in and he talked to the foremen briefly,
he got their reports, and included in the reports were concerns
expressed by some of the foremen and the mechanics that—
that there had been comments about damaging the equipment.
And he made a decision at that point—he made a decision
that he was not going to bring these people back and put them
on 23,000-pound trucks that pick up trash at schools and hos-
pitals and hotels, and that—that he felt that they were out of
control, that he couldn’t trust them, and he would have no
ability to do anything once they exited the transfer station, so
he made a decision right there and then—it might have been
hasty, it might have been unfair, but it was a decision he made
with certain objective evidence at hand.
c. The meeting at the facility
Soon thereafter the Union Secretary-treasurer Robert
McClone, arrived with other union staff. A meeting was held,
attended by Richard Isola, McClone, Crockett, James Lucas,
and others. The meeting was videotaped and the videotape was
introduced into evidence. The meeting addressed the merits of
the discharge of Crockett and Isola’s unhappiness that matters
ripened during his uncle’s funeral and required he leave the
ceremonies. Isola reiterated that the employees, encouraged by
Crockett and Lucas, had done the wrong thing and would not
be allowed back. He asserted that the men had walked out. He
asked McClone if he had told the men that if they walked out
they were out of a job. McClone said he had.12 Isola stated,
“[T]hey made their decision.” Crockett asserted, “They agreed
to go to work and they couldn’t get on the yard.” Isola an-
swered, “They agreed after 1 p.m. after the buzzer.” No ques-
tion, this is a right to work state. McClone indicated he would
continue to process the Crockett grievance and would take and
process grievances from the discharged employees. Settlement
proved impossible and the meeting ended with Isola restating,
“My head foreman said: ‘If you walk off you are out of a job.’
They walked off, they are out of a job. The ones that stayed,
they went to work.” McClone asserted that, “A lot of those
people they dont realize the consequences. He sought the Re-
spondent’s reconsideration in a few days. Isola asserted, “They
will never work here again and the meeting ended.”
5. The Respondent’s termination of employees
Over the period of January 5 and 6, 1994, at the behest of
Richard Isola, the Respondent’s staff perused videotape of the
later events of January 5 as well as the Respondent’s records of
which employees were due to work on January 5 and talked
with the Respondent’s personnel—all with the purpose of de-
termining who failed to report to work on the January 5 p.m.
shift as a result of the events described above. A list was gener-
ated and individuals on the list were not allowed on the prem-
ises thereafter.

12 The record does not suggest that McClone had any conversations
with employees during the events or that any union official was aware
of what was transpiring until the employees had been terminated. Pre-
sumably McClone was referring to the earlier disclaimers made by the
Union respecting December 1993 events.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 98
The Union and the terminated employees13 were sent letters
dated January 7, 1994, announcing that the named employee
had “resigned his position by refusing to work and participating
in a “mass walk out despite direct orders to begin work on
January 5 in violation of the collective-bargaining agreement.
The letters asserted further, “The wrongful conduct of the em-
ployee severs his employment relationship with this company.
Some of the employees responded with letters contesting the
Respondent’s view of events.
The Union filed grievances respecting terminated employees
and has attempted to take the grievances to arbitration. Respon-
dent has refused.
6. Events respecting Bernard Williams
Bernard Williams had been employed by the Respondent
since 1991. In the last third of 1993 he filed three grievances
against the Respondent contending he had improperly been
denied certain driving opportunities. He also participated in the
picketing on December 23, 1993.
On January 5, 1994, Williams worked the morning shift fin-
ishing at about 11 a.m. Although he did not participate in the
refusal to work on January 5, he was in the crowd at various
times that day and into the early morning of the following day.
Bernard Williams testified he was scheduled to commence
work at 3 a.m. on January 6, 1994. Williams determined he
would not work that day because he wanted to “stand with the
men. He went to bed and after arising later in the morning
called the office about 10 a.m. to speak to his supervisor. When
told his supervisor was not available, Williams left a message
with an individual named Craig that he was not coming in that
morning. He testified that he tried to visit the facility to talk to
his supervisor later that morning, but was denied entry by secu-
rity personnel.
The Respondent’s human resources director, Musgrove, tes-
tified that he was involved in checking who had not reported to
work on January 6 in light of the ongoing problems. He deter-
mined that Bernard Williams had not worked that day and that
the Respondent’s timekeeper at that time, Craig Laub, had re-
ported that Williams had called in after 11 a.m. to report he was
not coming in. He testified that the practice was to regard an
after 11 call for the a.m. shift as a “no call no show.” Deter-
mining that Williams had received his third no call no show in
a 6-month period, Musgrove decided to terminate him without
consultation with other officials. Bernard Williams was not
scheduled to work on January 7 and received his termination
notice as he reported for work on Saturday, January 8, 1994.
7. Subsequent events respecting Albert Crockett
Crockett, Guerth, union official Saulter, and the Respon-
dent’s agents met on January 6 to discuss the Crockett and
Guerth discharge grievances. The Union took the position that
Guerths actions were not known to Crockett and that, accord-
ingly, Crockett was improperly discharged. The Respondent
asked for time to consider this position. The meeting ended.
The Respondent ultimately determined it would not prevail and
on January 10, 1995, gave union official Saulter, who was at

13 The parties, by stipulating to an amended consolidated complaint
par. 5(a) and admitted answer admitting par. 5(a), agreed on a list of 71
names of employees who were both discharged as a result of the Janu-
ary 5 events and whose discharges the General Counsel alleges are
violations of the Act. That agreed-on list of named employees is set
forth in appendix I of this decision, infra.
the facility, a letter agreeing to reinstate Crockett with full
backpay and seniority.
Saulter went outside where the terminated employees and
Crockett were and informed Crockett of the event and gave him
a copy of the letter. Crockett asked Saulter to obtain for him a
30-day leave of absence because he did not want to back go
work until the other discharged employees were reinstated.
Saulter had Crockett sign a written request for a 30-day leave
of absence14 and returned into the facility with it and the fol-
lowing day, January 11, 1994, submitted it to Richard Isola and
another agent of the Respondent. Saulter testified he told the
two that Crockett wanted the leave because he did not want to
come back to work until the other discharged men were rein-
stated. The Respondent’s agents told Saulter they would get
back to him on the request. Later the same day the Respondent
sent to the Union by facsimile transmission a letter denying
Crockett’s request for leave because the Respondent needed
drivers and an insufficient number were available.15 Saulter
testified that he attempted to but was unable to initially reach
Crockett with this information. He testified that he eventually
reached Crockett on January 12, 1994, and told him that his
request for a leave of absence had been denied by the Respon-
dent. He also told Crockett he would file a grievance over the
Respondent’s denial of the leave.
Crockett and the discharged employees undertook various
activities during the next few days to protest the discharges at
least some of which took place on or outside the Respondent’s
premises. Crockett was outside the facility and the Respon-
dent’s agents knew he was there during this period. He did not
however attempt to go to work nor otherwise communicate
with the Respondent.
On January 14, 1994, Crockett was terminated for not calling
in or showing up for 3 consecutive days. The Union filed a
grievance respecting this discharge and has attempted to take
the matter to arbitration. The Respondent has refused.
C. Analysis and Conclusions
1. Preliminary matters
a. Issues respecting the “Swearing In of Albert Crockett
(1) The Respondent’s argument
The Respondent in its motion to correct transcript proposed,
without discussion, to delete the transcripts assertions that
Albert Crockett on the two occasions of his testimony was ad-
ministered an oath. See footnote 1, supra, at page 1 of this deci-
sion.
14 The contract asserts at art. 2, sec. 2., Leaves of Absence:

Regular employees, upon written request to the Em-
ployer, shall be entitled to a maximum of thirty (30) days
leave of absence without pay, without loss of seniority;
provided, however, that the employee does not accept em-
ployment elsewhere during such leaves of absence.

The Employer shall be permitted to refuse leave of
absence if replacement of the employee is impossible, but
the Employer shall first notify the Union as prescribed in
Article 1 of the need for replacements before denying the
leave of absence on this ground.

15 There is no dispute that the Respondent had by this time put the
Union on notice of the need for replacement employees and that the
Union was not able to supply replacements.
SILVER STATE DISPOSAL SERVICE 99
The corrected transcript at page 709, with the deletion urged
by the Respondent in its motion and my further correction,
reads as follows:

Whereupon,
ALBERT CROCKETT
was called as a witness herein and, after first having been
asked to raise his right hand and swear that the testimony he
was about to give was the truth, the whole truth and nothing
but the truth, so help him God, was examined and testified as
follows:

THE WITNESS: No disrespect to the Court, your Honor,
my testimony will be true, but I cant swear.
JUDGE ANDERSON: Do you affirm?

THE WITNESS: Excuse me?
JUDGE ANDERSON: Do you affirm?

THE WITNESS: Whats that?
JUDGE ANDERSON: Please give us your full name and
spell your last name, sir.
THE WITNESS 1: Albert T. Crockett, C-R-O-C-K-E-T-T.
JUDGE ANDERSON: General Counsel?

At this point the examination of the witness commenced with-
out comment by any party on the above-quoted events until the
receipt of the Respondent’s motion to correct transcript and
brief. On brief, at note 10 at page 14, the Respondent argues
that the record, corrected by the granting of the Respondent’s
motion to correct, shows that:

Albert Crockett declined to either take the oath or affirm that
he would tell the truth. He gave no reason for his stance, and
was simply permitted to offer what can only be characterized
as testimony which has neither the solemnity of an oath nor
affirmation. (See Sec. 102.30, Boards Rules and Regulations.)

The Respondent further argues that this asserted failure should
cause his testimony to be disregarded or, at least, to render
Crockett’s testimony relevant only to the extent it contains
admissions against interest. In the alternative the Respondent
argues that these circumstances should be a factor to “be taken
into account in “assessing credibility as to disputed issues.” The
General Counsel did not respond to the motion to correct tran-
script nor address the argument on brief quoted above.
(2) Applicable statutory and decisional provisions
The Boards Rules and Regulations, Section 102.30, provide
in part: “Witnesses shall be examined orally under oath.
Fed.R.Evid.603 states:

Before testifying, every witness shall be required to
declare that he will testify truthfully, by oath or affirma-
tion administered in a form calculated to awaken his con-
science and impress his mind with his duty to do so.

Cannon 36 of the Judicial Code of Ethics is similar.
The advisory committees note to Rule 603 of the Federal
Rules of Evidence states:

The rule is designed to afford the flexibility required in
dealing with religious adults . . . . Affirmation is simply a
solemn undertaking to tell the truth; no special verbal for-
mula is required. As is true generally, affirmation is rec-
ognized by federal law. Oath, includes affirmation, 1
U.S.C. Sec. 1; judges and clerks may administer oaths and
affirmations, 28 U.S.C. Secs. 459, 953; and affirmations
are acceptable in lieu of oaths under Rule 43(d) of the
Federal Rules of Civil Procedure. Perjury by a witness is a
crime, 18 U.S.C. Sec. 1621.

Dealing with the issue of religious beliefs as a factor in evaluat-
ing credibility, Fed.R.Evid. 610 asserts:

Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by
reason of their nature his credibility is impaired or enhanced.
(3) Events concerning the judges administration of the oath to
Crockett
By the time Charging Party Crockett was first called as a
witness on the 4th day of the trial, March 17, 1995, it was in-
disputably established that he was a religious leader and was
referred to by unit employees and others in earlier testimony as
“Reverend Crockett” and as a preacher.
On being called, Crockett came to the witness stand and I at-
tempted to administer a traditional oath. Compare the language
of the oath recited to Crockett with that contained in paragraph
17008: Oath in the Boards Administrative Law Judges Manual.
Crockett’s response is set forth above. In the corrected record I
have inserted the fact that an oath was recited to Crockett16
before his quoted comments.
Following the quoted portion of the transcript, the General
Counsels examination of the witness commenced. No party
raised any questions regarding the matter until the Respon-
dent’s motion to correct transcript and brief with the argument
quoted above were received.17
Consistent with my practice respecting all witnesses in this
trial who testified a second time following a substantial passage
of time from their first testimony, I administered an oath to
Crockett before he commenced his testimony on March 29,
1995, adjusting its language to meet his earlier objections.18
Crockett adopted the oath without comment. Crockett was
thereafter examined by counsel. No comment or objection of
any kind was raised by any party.
(4) Analysis and conclusions respecting the administration and
acceptance of the oath
(a) Was an oath properly administered to and taken
by Crockett?
The statement Crockett made immediately preceding his ini-
tial testimony, as quoted in full supra, meets the requirements
of the Boards Rules and Regulations Section 102.30 and
Fed.R.Evid. 603. Based on all the events and circumstances
discussed above, I find that on each occasion of his testifying in
this proceeding Crockett solemnly promised to testify truth-
fully. Further, I assert that I came to that conclusion, as I had

16 This transcript correction is in my view implicitly part of the Re-
spondents motion. I did not take the Respondents motion and argument
to be that no attempt was made to administer an oath, but rather that
following a recitation of the language of the oath by the judge, Crock-
ett’s words did not rise to an acceptance of or a “taking” of the oath.
17 The Respondent on brief argues that its “inadvertent failure to ob-
ject cannot be deemed a waiver.”
18 The Respondent on brief argues that its “inadvertent failure to ob-
ject cannot be deemed a waiver.
For this reason the Respondents motion to correct the transcript to
delete the assertion that an oath had been administered to Crockett at
transcript p. 1298 was denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
with all witnesses in this case, before I permitted Crockett to be
examined by counsel on each occasion of his testimony.
I further find, based on the above, the record as a whole and
the demeanor of the witness during these events, that neither
Crockett nor any other witness in these proceedings had his or
her credibility enhanced or impaired as a result of the circum-
stances of the witness solemn promise to testify truthfully. I,
therefore, reject the Respondent’s arguments that Crockett’s
testimony should be in anyway diminished or adversely
weighed as a result of these circumstances.
(b) The conduct of the judge
With the perspective of hindsight, I recognize that the por-
tions of the Respondent’s motion to correct transcript and ar-
gument on brief noted above devolved from my failure as the
judge administering the oath to Crockett to insure, not only that
the oath was administered in a form calculated to awaken the
witness conscience and impress his mind with his duty to tes-
tify truthfully, but also to insure that there was no reasonable
question or doubt in the minds of the parties that this was so.
Given the admonitions of Fed.R.Evid 610 that religious
views are not relevant to issues of credibility and my knowl-
edge at the time of the administrations of the oath that the wit-
ness was a religious adult, I perhaps subconsciously avoided
emphasizing this aspect of Crockett’s views by making any
statement or engaging in subsequent record discussion with the
parties respecting Crockett’s assertion after my recitation of the
words of the oath: “my testimony will be true, but I cant swear.
When my brief attempt to substitute the word “affirm for the
word “swear appeared unlikely to be immediately accepted by
the witness, I concluded his assertion was sufficient and called
on the General Counsel to commence his examination without
any statement or explanation of my conclusion that Crockett’s
assertion was, in my view, sufficient under controlling rule and
precedent. Simply put, I failed to make an affirmative statement
on the record that I believed Crockett fully acknowledged his
solemn obligation to tell the truth as a witness. Thus, I find my
adjustment of the oath in the case of Crockett on the first occa-
sion of his testifying—as discussed in the advisory note to
Fed.R.Evid. 603, quoted supra, which permits a certain flexibil-
ity in the administration of the oath to religious individuals—
was apparently insufficiently well communicated to the Re-
spondent.
Assuming for purposes of the Respondent’s argument in this
context that a judicial failure to insure the parties fully under-
stood the witness full compliance with the requirements of the
oath occurred, such circumstances are regrettable. Further, the
existence of possible judicial error always raises the question of
harm or prejudice to one or another partys rights. Here the
question is whether the possibility of judicial error in the com-
munication of the circumstances of the administration of the
oath to Crockett has prejudiced the Respondent in a way that
needs be addressed in this proceeding. I have reviewed the
record with this issue in mind. I do not find that the Respondent
has been prejudiced in any way material to the resolution of the
unfair labor practice allegations at issue here by the events in
question.19 Accordingly, I shall not further address the poten-
tial judicial error aspect of this issue.

19 The Respondents counsel cross-examined Crockett respecting his
testimony.
(c) The conduct of the witness and the effect on credibility of
the events in issue
I reaffirm the belief, which I formed on each occasion of my
administration of the oath to Crockett and which I specifically
make as a finding of fact here, that Crockett recognized and
objectively affirmed, on each occasion he was called as a wit-
ness and had the oath administered to him, that he was making
“a solemn undertaking to tell the truth. I further find that there
was no conduct by Crockett which was inconsistent with this
finding. As noted, supra, if error occurred, it was judicial error
in failing to insure that the Respondent understood what oc-
curred during the administration of the oath. Crockett’s conduct
was entirely appropriate.
For these reasons, I reject the Respondent’s argument on this
record, that the administration of the oath to Crockett and
Crockett’s actions in undertaking to tell the truth in response
thereto should in any way diminish his credibility as a witness
or require that the use of his testimony be in some fashion cir-
cumscribed as a result thereof. Crockett along with all other
witnesses at the trial took the oath and no witness at the trial, in
my view on this record, had his credibility enhanced or im-
paired by the manner of oath taking as compared to other wit-
nesses at this trial. My credibility resolutions in this matter have
not been influenced by the form or manner in which any wit-
ness, Crockett included, obligated himself to tell the truth.
b. Issues respecting the disclosure of witness Dietrichs Board
affidavit to the Respondent
David Deitrich testified on behalf of the General Counsel as
to certain limited matters. On the conclusion of his testimony
on direct, the Respondent requested the General Counsel turn
over “any affidavit or writing signed or adopted by the witness.
Counsel for the General stated he had such an affidavit but
requested the judge “review it in cameraT1 to make the deter-
mination as to whether I should turn it over at this time or not.
Counsel for the General Counsel took the position that there
was nothing in the affidavit relevant for purposes of cross-
examination of the witness testimony and that he should there-
fore not be obligated to turn over the affidavit to the Respon-
dent.
While expressing a certain incredulity regarding whether the
General Counsel could successfully withhold all or part of the
affidavit from the Respondent, I agreed to inspect it in camera.
Counsel for the Respondent Kirshman objected:

I’ve never heard or seen an administrative law judge
looking at a pretrial affidavit of a witness who has testi-
fied, whether there is an affidavit that exists—to determine
whether there is anything in that affidavit that—that is use-
ful to a respondent. I don’t—see anything in the rule—in
the Jencks Rule that gives any—and I may be wrong—but
gives any limitations on my accessibility to anything that a
witness who has testified on behalf of the General Coun-
sel has signed or adopted.

A discussion of the provisions of the Boards Rules and Regula-
tions Section 102.118 occurred. I held: “[M]y job is to look at
the affidavit and give [Respondent] anything which is even
arguably relevant for the purposes of cross-examination and
thats what I intend to do.”
Counsel for the Respondent Kirshman further objected that
perusal of the affidavit in cameraT1 by the trier of fact could
result in prejudice to the Respondent in that the judge could be
SILVER STATE DISPOSAL SERVICE 101
exposed to matters which were not received into evidence. I
agreed that such a risk was arguable, but that such a risk was
inherent in the nature of any in camera process and, more par-
ticularly, was the process provided for in the Boards Rule and
Regulations Section 102.11820 I ruled that the Respondent must
elect one of two choices: counsel could simply do without the
affidavit and thereby obviate my in cameraT1 inspection or, in
the alternative, counsel could have me inspect the affidavit in
camera and would be provided with those portions of the affi-
davit that I considered disclosable under Rule 102.118 after
such inspection. Given the choice, counsel for the Respondent
elected that I not inspect the affidavit. I therefore allowed the
General Counsel to retain the affidavit without an in camera
inspection. Counsel for the Respondent cross-examined the
witness without the affidavit.
On brief counsel for the Respondent addresses the issue. At
note 19, p. 22, the Respondent argues, in part:

The ALJs ruling is not consistent with Section 102.118
of the Boards Rules and Regulations in that the basis for
the in cameraT1 request was not “privilege, but “relevance
and the ALJs insistence upon an “in cameraT1 look as a
condition precedent to providing the affidavit to the Re-
spondent was an abuse of discretion, in violation of Sec-
tion 102.118.

I have considered the Respondent’s argument on brief and
reaffirm my ruling here. The General Counsel stated on the
record he had in his possession an affidavit of the witness. The
General Counsel then asserted there was nothing relevant in the
affidavit which could be used by the Respondent for purposes
of cross-examination of the testimony of the witness. To estab-
lish that fact and avoid disclosing the affidavit of the witness,
the General Counsel sought to shelter the affidavit from disclo-
sure by invoking the procedure set forth in the quoted portions
of the Boards Rules Section 102.118. That procedure provides
for an in cameraT1 inspection of the affidavit by the judge
whenever there are claims by the General Counsel that the affi-
davit contains “matter which does not relate to the subject mat-
ter of the testimony of the witness The procedure undertaken at
the trial was therefore provided in Rule 102.118(b)(2). While
the Respondent took the only action it could under the rule to
avoid judicial inspection of the affidavit, it cannot now com-
plain of the consequences of the election it took.
2. The three categories of employees alleged to have been
illegally discharged
In order to make the analysis and conclusions as intelligible
as possible, the allegations of the complaints have been divided
into three categories and dealt with separately below. The first
category addresses the employees terminated on January 5,
1994, admittedly because of their conduct on that date. The
second category covers the termination of Bernard Peter Wil-
liams. The third category deals with the termination of Albert
Crockett.

20 The Boards Rules and Regulations Sec. 102.118(b)(2) provides in
part:
If the General Counsel claims that any statement ordered
to be produced under this section contains matter which does
not relate to the subject matter of the testimony of the witness,
the Administrative Law Judge shall order the General Counsel
to deliver such statement for the inspection of the Administra-
tive Law Judge in camera
a. The employees discharged because of the events of
January 5, 1994
(1) Credibility resolutions
The events relevant to resolution of the discharge allegations
centered on January 5 events are generally set forth in the
“Events portion of this decision, above. Several areas of con-
flict remain to be resolved. Generally, as indicated supra, I did
not find any employee to be deliberately fabricating his testi-
mony. The events in issue involved a large noisy crowd and
much confusion. It is clear that not all employees heard all of
the various remarks or saw all the activities occurring near the
entrance door or thereafter in their exit from the premises to the
vacant lot and in their subsequent attempts to return to the
premises and go to work.
There was considerable testimonial conflict respecting
whether or not the entry door was locked after the buzzer
sounded. Having considered the testimony of the witnesses on
this aspect of events, I find that is most probable that the door
was briefly locked or seemed to be locked at the time Brough-
ton tried the door—thus I credit his testimony as well as the
corroborating testimony, but that on Williams return outside
and thereafter the door was unlocked. Thus, I also credit those
employees who testified that they were able to enter the build-
ing through the unlocked door at those times. This resolution
also explains, at least in part, certain discrepancies in prior
written statements of witnesses respecting whether or not the
door was locked.
Substantial dispute and difference existed as to whether or
not Oliver Williams at various times during his remarks told the
employees: (1) that they simply had to leave the premises or (2)
that the employees had to either go to work or leave the prem-
ises. I find that Williams, as he testified, gave the employees a
choice. This is consistent with the testimony of many witnesses
including Charging Party Adamson. Further it is the more
probable action given that Williams had told Isola he would try
to get the men inside. Finally it is also consistent with the tes-
timony of officer Gandy that the police told employees they
had to leave or go to work. Again I do not believe the witnesses
who did not hear these remarks were fabricating their testi-
mony. The noise and confusion of the crowd made it virtually
certain that all that was said and done would not completely be
heard or seen by some and the rush and complexity of events
also made it likely that not all recollections would be accurate
or complete.
While there was no contrary testimony respecting Hiltons
conduct in the vacant lot, counsel for the Respondent made the
following arguments in his opening statement:

Jimmy Hilton, clearly a supervisor, he got a call on his
radio telling him that there was a problem. Now, Hilton
got back well before Isola got back, and as he came in he
saw police escorting employees out of the companys yard
across the street to what appeared to be an empty lot, and
he saw a congregation of people there.
Hilton has worked at the company for many, many
years, and I would venture to say that he probably knows
virtually every one of those people by sight. He went over
to a group that included Albert Crockett, and in sum and
substance Hilton said, “You—whatever you guys are do-
ing, youre doing it the wrong way. I dont think your Un-
ion is supporting you, go back—come—come on in. Rit-
chie is not here, and he said that when they said, “Al has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102
has got to go back to work now, and he said, “Ritchie is
the only one who can make that decision. I promise you I
will deal with that first thing tomorrow. Meanwhile, come
on back, Ritchie is not here, Ill get you in.
He turned—and then he turned to Crockett and said,
“Al, tell these guys to go to work, and Crockett’s response
is very significant, and it—and we have testimony not
from just Hilton about this—Crockett’s response was,
“Theyre grown men, theyll do what they think is right, or
words to that effect.
Hilton turned, went back in, nobody followed him. He
stayed in there for—
JUDGE ANDERSON: What time is this, roughly, counsel?
KIRSHMAN:: Well, this has to be after 1:05 because the
police were already there, but before 1:30 because Isola
was not there.
JUDGE ANDERSON: Very well. Im sorry I interrupted.
KIRSHMAN: Thats okay. Im sorry to take so long, but I
really feel that you need this background. When Hilton
walked in and nobody followed him, Hilton will testify
that the door was not locked, he just walked through the
door.

Further, Andrews testified regarding Hiltons second conversa-
tion with employees:

Q. Now, did Hilton return to you later that afternoon?
A. Uh-huh.
Q. And what did he tell you at that time, if anything?
A. Well, when he came—after the owner went in, he—
Jimmy Hilton went behind him shortly after that for—I
dont know, 20 or 30 minutes, and then he came back out
and informed us as of—he said, “I tried to tell you guys
what you were doing, but you wouldnt listen. I want you
to go back to work. You just wouldnt listen. And, as of
right now, all of you have been terminated.

An opening statement is not evidence, but rather is only the
hope and expectation of counsel as to the evidence that will be
offered. As noted, supra, Hilton did not testify. It is clear how-
ever that the Respondent does not acquiesce in the testimony of
the others respecting these events. Further, as noted, Andrews
testimony about Hiltons remarks raises, at least, issues of inter-
nal inconsistency respecting what Hilton told employees. Given
this state of affairs, I have reviewed the record and the testi-
mony of the various witnesses in particular to determine what
Hilton did and said.
Based first on demeanor and second on the lack of direct
challenge, I credit the mutually corroborative testimony of An-
drews, McMurray, Crockett, and Adamson respecting what
Hilton said to employees. Thus, I find that Hilton solicited
Crockett to assist him in getting the men back to work, that
Crockett did so, that the men attempted to go back to work in
response to his offer and, finally, that the employees were de-
nied entrance onto the Respondent’s property by the Respon-
dent’s security staff. Having considered all the evidence includ-
ing the demeanor of the witnesses and the positions of the par-
ties, I specifically reject the proposition that Hiltons solicitation
of the employees was not actively supported by Crockett or that
the employees did not in fact accept Hiltons offer and attempt
to go to work. Thus I find that, while it may be true that when
Hilton returned from the lot to the facility the employees did
not join him, this was because the employees were prevented
from doing so by the Respondent’s agents who denied the em-
ployees entrance to the premises.
(2) The General Counsels prima facie case
The General Counsel argues that the employees discharged
on January 5, 1994, were engaged in protected concerted activ-
ity in listening to Albert Crockett’s recitation of events con-
cerning his discharge and grievance and in discussing Albert
Crockett’s discharge and union grievance among themselves.
The Board has long held that such activity, without more, is
protected and that any discharge of employees for such reasons
violates Section 8(a)(3) and (1) of the Act. Indeed, the Respon-
dent does not seriously contest such an assertion.
Further in Ideal Dyeing & Finishing Co., 300 NLRB 303
(1990), the Board held that an employers mistaken belief that
an employee has engaged in unprotected activity in the context
of union or protected concerted activity is a violation of the Act
as held by the Supreme Court in Burnup & Sims, 379 U.S. 21
(1964), even if the employees protected activities were un-
known to the employer. The Board characterized the Courts
Burnup & Sims, holding supra at 303:

Rather, [the Courts reasoning in Burnup & Sims] it ex-
tends to all cases in which employees are erroneously dis-
ciplined or discharged because of alleged misconduct
arising out of protected activities that are known to the
employer, whether or not the affected employees actually
took part in the protected activities.

Thus, on the facts of this case, the entire group of employees
discharged because of the January 5 events may be regarded as
having either: (1) engaged in protected activities or (2) were
believed by the Respondent to have engaged in protected activi-
ties. There is therefore no real issue in the case that the employ-
ees admittedly terminated by the Respondent as a result of their
conduct on January 5 were improperly terminated absent some
valid defense which would justify such a discharge even in the
context of protected activities.21 Thus the General Counsel, in
essence by the admission of the Respondent, has sustained his
prima facie case. Having found that the
(3) The Respondent’s defenses
The heart of the unfair labor practice litigation of these alle-
gations was the disputed contentions of the Respondent that the
employees discharged as a result of their activities on January 5
were engaged in two independent forms of unprotected conduct
for which discharge by an employer is permissible.
The first type of conduct alleged to have occurred may be
characterized as attempts by union-represented employees to
deal directly with the employer in contravention of their exclu-
sive collective-bargaining representative. the Respondent cites
as controlling precedents: Emporium Capwell Co. v. Western
Addition Community Organization, 420 U.S. 50 (1975), and
Certified Grocers of Illinois, 273 NLRB 1608 (1985). See also
Energy Coal Income Partnership 1981-1, 269 NLRB 770
(1984), and River Oaks Nursing Home, 275 NLRB 84, 86
(1985).

21 General Counsel has sustained his prima facie case, it is appropri-
ate to turn to the Respondents defenses.
Indeed, the respondent counsels willingness to so frame the issues at
trial resulted in a more efficient and narrowly focused litigation and is
to be commended.
SILVER STATE DISPOSAL SERVICE 103
The second class of unprotected conduct alleged to have oc-
curred is conduct inconsistent with the collective-bargaining
agreements no-strike no-lockout provisions quoted in part su-
pra. The Respondent argues, citing the lead cases: Teamsters
Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962), and Gate-
way Coal Co. v. Mine Workers Local 633T1, 414 U.S. 368
(1974), that engaging in a strike in contravention of a valid no-
strike clause is unprotected activity.
The General Counsel does not challenge the black letter law
invoked by the Respondent, but rather seeks to distinguish both
doctrines legally and factually from the situation at hand. The
parties argued the relevant factual and legal distinctions ably
and at length.
(a) The Respondent’s Emporium Capwell defense
(i) The parties arguments
The Board in Certified GrocersT1, supra, characterized the
Courts decision in Emporium CapwellT1, as holding that “the
exclusivity principle of Section 9(a) of the Act proscribes at-
tempts by a minority of employees to engage in separate bar-
gaining with their employer. The Respondent argues that the
committee in its December 22, 1993 meeting with Isola and in
picketing on December 23, 1993, was attempting to separately
bargain with the Respondent in a manner inconsistent with and
not supported or condoned by the Union which represented the
employees bargaining unit. The Respondent argues further that
Lucas remarks to Oliver Williams and others the evening of
January 4, 1994, the conduct of the employees on the afternoon
of January 5 and the statements of Crockett and Lucas in the
meeting between Isola, McClone, and the employees later on
January 5, all demonstrate that the events of January 5, 1994,
were a seamless continuation of the events of December 22 and
23, 1994, and were therefore unprotected as violative of the
exclusivity principle described above.
The Respondent’s view as advanced at trial and on brief is
that Crockett and Lucas and others of the committee entered the
new year determined to advance their own agenda by forcing
the Respondent to acquiesce in the committees demands re-
specting working conditions. The Respondent argues that
Crockett’s discharge was simply a wedge issue used by those
individuals to gain support for the committees broader agenda.
Thus, the Respondent argues that Crockett chose the January 5
time for his inciting the employees because he well knew that
Richard Isola was the only agent of the Respondent who could
address his grievance at that time and, more critically, because
he knew that Richard Isola and other high officials of the Re-
spondent were at the funeral and related gatherings respecting
the interment of Alfred Isola. Thus, argues the Respondent,
Crockett rather than waiting for the scheduled grievance meet-
ing to be held the following day came to the work place on
January 5 and, concealing the fact of the upcoming grievance
meeting with the Union and the Respondent the following day,
agitated the employees respecting his discharge to exert pres-
sure on the Respondent to acquiesce in the committees de-
mands. The Respondent argues that the January 5 meeting sus-
tains this view.
The General Counsel perceives the events of January 5 alto-
gether differently. Initially counsel for the General Counsel
argues that the January 5, 1994 events were independent of and
legally separate from the actions of the committee in December
1993. Thus, the General Counsel argues that, while the termina-
tion of Crockett could certainly be viewed as retaliation for the
efforts of the committee, the termination issue as perceived by
Crockett and discussed by him with the employees in the area
outside the Respondent’s facility on January 5 dealt not with
the committees agenda, but rather the unfairness of Crockett’s
termination in that he was being told he should have reported
his pitchers salvaging and was discharged for that reason.
(ii) Analysis and conclusions
The hallmarks of Emporium CapwellT1 unprotected activity
are: (1) the efforts of employees to bargain directly with the
employer and (2) the fundamental independence of and incon-
sistency between the employees position compared and con-
trasted with that of the union that represents them. The Board in
Certified GrocersT1, supra, found employee picketing of the
company headquarters in support of their grievances unpro-
tected where the employees were seeking to engage in direct
bargaining with the employer separate and apart from the union
that represented them.
The actions of the committee on December 23, 1993, are
similar to the situation presented in Emporium CapwellT1 and
Certified GrocersT1. In each case a group of employees, not
supported by nor supportive of the union that represented them,
sought to deal directly with their employer in a manner inde-
pendent of and inconsistent with the existing collective-
bargaining agreement and their exclusive representative. Al-
though the Respondent does not assert that any employee was
discharged or discriminated against primarily as a result of the
activities of December 23, 1993, the Respondent argues that
those activities were unprotected under Emporium CapwellT1.
An examination of the events of January 5, in isolation from
the earlier circumstances in December does not present a di-
chotomy between Crockett and the employees position and that
of the Union. First, Crockett’s discharge and the grievance
based on it was being maintained and supported by the Union
and was being processed under the collective-bargaining dis-
pute resolution process. Indeed a grievance meeting to be at-
tended by Crockett, the Union, and the Respondent was sched-
uled for the next day. At the meeting held on January 5, 1994,
between agents of the Union, the Respondent, and Crockett, the
Union and Crockett were not in disagreement respecting the
matter. Further, at no time did Crockett or employees seek to
deal directly with the Respondent bypassing the Union. Thus,
Crockett made absolutely no demands on the Respondent and
repeatedly turned down Oliver Williams solicitation to come in
and discuss his discharge and grievance. The Board and the
Seventh Circuit Court of Appeals in Dreis & Krump MfgT1.,
221 NLRB 309 (1975), enfd. 544 F.2d 320 (7th Cir. 1976), held
that an employee who was discharged for handbilling employ-
ees at the start of his work shift with materials supportive of his
grievance then in the grievance process was not engaged in
unprotected activity of the type described in Emporium Cap-
well.
The Respondent argues however that the events of January 5
were but a continuation of the events of December 22 and 23
and January 4 and were simply another unprotected attempt by
the committee members, Lucas, Crockett, and the employees
who were drawn into their web to pressure the Respondent into
meeting the committees demands. The General Counsel chal-
lenges these factual contentions of the Respondent arguing that
the events of January 5 stand independent of all aspects of the
committee and its December 1993 conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104
It is no doubt true, as Oliver Williams and others testified,
that the Respondent’s agents suspected that Crockett was seiz-
ing on his discharge as an event to be used to kindle employee
support for the larger issues of the committee. Williams and
others noted the remarks of Lucas on the evening of January 4
that the employees still had a broad range of grievances and
that a strike might be contemplated. There is no doubt that
Richard Isola felt that Crockett had knowingly timed his actions
to coincide with the Respondent’s managements absence from
the facility during the funeral ceremonies and gatherings re-
specting Alfred Isola. The feelings of the Respondent’s agents
at the time and the arguments of counsel for the Respondent at
trial and on brief are not frivolous and have been carefully con-
sidered.
Based on all the record as a whole as well as the demeanor of
the witnesses, I find insufficient evidence to establish that the
events of January 5 were other than exclusively related to the
termination of Crockett and the processing of his grievance in
regard thereto. I credit the testimony of Crockett that he voiced
only complaints respecting his discharge and the processing of
his subsequent grievance to gain the support of his fellow em-
ployees and did not refer to the events of December 23, 1993,
nor related matters. I further find that the response of those
employees who were supportive of Crockett sounded on that
narrow issue22 and that the larger “Committee grievances as
discussed in committee Sunday meetings and as discussed with
Richard Isola on December 22 were not underlying factors in
the January 5 events.23
Further, I find it significant that Albert Crockett made no
demands on the Respondent’s agents during the events in con-
troversy. He specifically denied to Oliver Williams that he was
asking the men not to go to work. He made no response to the
repeated invitations of Oliver Williams that he come into the
building and discuss his grievance. Thus, no attempt to deal
directly with the Respondent occurred respecting the January 5,
1994 events. While Crockett participated with Lucas in the
January 5 meeting with Richard Isola and McClone, the record
suggests that they were invited to do so by Hilton and that the
Union either sought or did not oppose their presence.
Relevant to this analysis is the Board decision in Bridgeport
Ambulance ServiceT1, 302 NLRB 358 (1991), enfd. 966 F.2d
725 (2d Cir. 1992). In that case the employer was seeking to
establish that certain employees conduct was unprotected under
Emporium CapwellT1. The Board affirmed the administrative
law judge who found the conduct at issue did not lose the pro-
tections of the Act under Emporium CapwellT1. It noted id. at
358 fn. 2:

We affirm the judges determination as to the relevancy
of testimony concerning employee sentiments about the
Union prior to the April 18, 1989 walkout. The issue be-
fore the judge was the motivation for the employees walk-

22 There is no evidence that any of those employees were consider-
ing any matter save Crocketts discharge in taking the actions they did
on January 5, 1994. Since I have found that Crockett was not exhorting
them on behalf of the committee or its agenda, there is no credible
indirect evidence that they were acting in furtherance of that agenda.
23 To the extent that Committee President Albert Crocketts discharge
was regarded as unfair by employees, there was doubtless some suspi-
cion that retaliation for Crocketts activities on behalf of the committee
was involved. Importantly however this was never a subject of Crock-
etts remarks on January 5 and was not, on this record, a subject of
discussion that day.
out, and the judges ruling did not prevent the Respondent
from eliciting testimony on that issue. In any event, the
termination of employee Leill was the primary precipitat-
ing factor in the walkout, and evidence of generalized dis-
satisfaction with the Union would not establish the em-
ployees actions were unprotected.

Applying that factual analysis here, I find that Crockett’s
discharge was the primary precipitating factor in the events of
January 5, 1994. Given that finding coupled with my finding
that the employees did not attempt to deal directly with the
Respondent respecting the Unions grievance respecting the
discharge, I reject the Respondent’s assertion that the employ-
ees activities were rendered unprotected by application of the
doctrine enunciated in Emporium Capwell.
(b) The Respondent’s defense that the employees were engaged
in an unprotected strike
(i) The parties arguments
The Respondent argues that the employees actions on Janu-
ary 5 rose to the level of a concerted withholding of their labor,
i.e., a strike, through their refusal to enter the building and
commence work despite the repeated pleadings of the Respon-
dent’s agents and despite the employees repeatedly being told
that what they were doing was wrong and would lead to their
discharge. The Respondent argues that, faced with a refusal of
its employees to come to work, it took the reasonable and pru-
dent decision to expel them from the property and thereafter
discharged those employees who refused to work as scheduled.
As noted above, the Respondent correctly points out that the
then current collective-bargaining contract contains a no-strike
clause. Further, the Respondent notes that longstanding Board
and court law make it clear that employees who act in contra-
vention of the no-strike provisions of a valid agreement may be
terminated.
The General Counsel challenges the Respondent’s conten-
tion that the employees consciously withheld their services
from the Respondent, refused to report to work, or that the Re-
spondent had any reasonable basis for believing such was the
case. Rather the General Counsel argues that the employees
simply initially declined to acquiesce in Oliver Williams exhor-
tations that they discontinue listening to Albert Crockett’s re-
port concerning his discharge and grievance and enter the facil-
ity ahead of time. Thereafter, in the confusion of the moment
and the press of the crowd, without any organized plan or strat-
egy and without any action to pressure the Respondent to grant
any concessions or to protest any of its policies, the employees
failed to enter the building timely and the 12:45 p.m. buzzer
went off. Thereafter, the General Counsel argues, the employ-
ees were simply acting to avoid difficulties with the police and
continued to make it clear they wished to work.
The General Counsel notes that following some confusion
respecting whether the door was thereafter locked as is consis-
tent with the Respondent’s practice of a least several years
employees were told they had to leave the premises and that the
police had been called. In leaving the premises the employees
were simply avoiding conflict with law enforcement. Thus the
General Counsel argues on brief at 26:

[T]he 70 drivers were locked out on January 5 and subse-
quently discharged for engaging in protected activity and
nothing more, especially when the lock out occurred 15 min-
utes before these employees were to start work.
SILVER STATE DISPOSAL SERVICE 105

The General Counsel argues further:

The Employer may well have feared an employee
strike because employees had picketed the Employer two
weeks earlier. However, the employees failure to enter the
Employers door by 12:45 p.m. appears to have been a re-
sult of the confusion of the moment, and the Employers
own conduct,\14\ and not as a result of any strike purpose.

______________________
\14\ One must consider the fervor of the Respondent in
the actions that it took that day. Richie Isola had just re-
turned from the funeral of his uncle (who was the founder
of the Company) and he was quite upset when he arrived
at the facility after 1 p.m. and apparently told Jimmy Hil-
ton that he wanted the men terminated. Then there is
Oliver Williams fuming over the protected concerted ac-
tivities of the day shift employees. (On Br. at 25.)
(ii) Analysis and conclusions
(aa) Initial findings and chronology
Initially, based on the credibility resolutions noted above and
my further findings, I reject the General Counsels argument
that the employees at no time withheld their services, but were
rather simply victims of the Respondent’s overreaction. As
noted above, the Respondent’s agents repeatedly communicated
their desire that the employees come into work prior to the
12:45 p.m. buzzer. While there was no obligation on the part of
employees to enter the building early under the Respondent’s
rules, the employees were clearly made aware of the need to
enter and remained outside to engage in the protected concerted
activity of listening to and discussing with Albert Crockett the
circumstances of his discharge and grievance.
At and past the sounding of the buzzer, as found, supra, Wil-
liams made it clear he wanted employees in the building and
that, if they did not come to work, they had to leave. I have
found that, if the door was briefly locked, it was not locked or
barred at critical periods and that there was no impediment to
employees going to work essentially throughout all relevant
times. I further found that the police, after talking to Respon-
dent’s security, told employees they were either to go to work
or leave the property. I do not accept the argument of the Gen-
eral Counsel that employees left the premises simply to avoid
trouble with the police. I do not doubt the assertions of Crockett
that African-American men have reason to avoid conflicts with
police in America—that is one of the tragedies of our nation.
The testimony of officer Gandy was uncontradicted, however,
that officers gave the men a choice: they were being told to
leave onlyT1 if they would not go to work. That same choice
had been regularly put to the men up to that time by Respon-
dent’s foremen and I specifically credit the officers testimony
that the employees were presented with the choice yet again.
I have credited Crockett’s testimony that he intended no
strike on January 5 and I have further found that there is simply
no evidence that employees came to work with any thought of
other than simply working that day. I also find however that the
employees listening to Crockett and discussing the matter with
him and among themselves became indignant respecting the
discharge. The employees were in fact impassioned to a greater
or lesser degree. No large group of employees in such circum-
stances holds a single common passion or purpose. I have
found above that there were a variety of motives causing the
employees to stay outside rather than enter the building and go
to work as was customary. The simple fact, however, is that on
listening to Crockett at least the main motive of the employees
to remain in the area and not enter work was a desire to hear
out Crockett and not acquiesce in the exhortations of the Re-
spondent.
Contrary to the Respondent’s opening statement however, I
specifically find that the Respondent’s agent Hilton in the va-
cant lot solicited employees, yet again, to return to work and at
that time, under Crockett’s urging, the employees agreed to
return to work and attempted to return to the facility to com-
mence work only to be physically denied access by security
guards of the Respondent. Only after this sequence of events
occurred was the decision made by Richard Isola to terminate
the individuals.
It is appropriate to place my findings respecting January 5,
1994 events in a simple and necessarily approximate chronol-
ogy.24
The timing of events the afternoon of January 5, 1994, at the
Respondent’s facility
to 12:45 p.m.—Employees are not obligated to be within the
building under the Respondent’s rules. Crockett ad-
dresses employees in the area outside the building re-
specting his termination and grievance. The Respon-
dent’s agents repeatedly address the group telling them:
(1) what they are doing is wrong, (2) that they must come
inside, (3) that they risked being locked out and termi-
nated.
12:45 buzzer—The Respondent’s normal rule is that employees
must be through doorway by 12:45 or they are excluded
for the day and disciplined for tardiness is invoked. The
Respondent’s agent again exhorts employees to enter
building under threat of termination. Some few employ-
ees enter unlocked door. Most remain outside.
12:45–12:50—The Respondent’s facility staff calls police,
notifies the Respondent’s agents Richard Isola and Hilton
of the problems at facility.
12:50–12:57—The Respondent’s agent Williams announces to
employees he has talked to Richard Isola and that Isola
wants them at work or off the property. He also tells the
employees that the police have been called and that they
will receive their paychecks off the property.
12:58–1:10—Police arrive and inform employees they must go
to work or leave property. Employees who enter the

24 The description of events contained in this summary are not inde-
pendent findings of fact, but are rather an abbreviated summary of
specific findings made else where in this decision to facilitate the loca-
tion of events in time. The particular times noted were in part located
based on certain seemingly accurate basing points. Thus, there is no
doubt that the buzzer rang 12:45 p.m. and witnesses were able to use
that fact as a reference point. Police timekeeping records established
that Officer Gandy was called at 12:50 or 12:51 p.m. and arrived at the
facility at 12:57 or 12:58 p.m. Respondent of necessity had to notify
the police at least a minute or two before Officer Gandy was notified.
Respondent’s agent’s, Williams, address to employees that the police
were coming had to occur before they arrived. Williams’ telephone
conversation with Isola occurred before the police arrived and before
his warning to the employees that the police had been called and that
Isola wanted them to go to work or get off the property. Respecting the
Hilton conversation, unchallenged witnesses placed his arrival at the
vacant lot as occurring very soon after the employees congregated
there.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106
building by 12:45 and punch in, are paid as of 1:00. Em-
ployees leave property and gather on adjacent vacant lot.
1:15–1:30—The Respondent’s agent Hilton arrives at lot, ex-
horts men to return to work and asks Crockett’s assis-
tance to that end. Crockett also urges the men to return to
work. The employees attempt to return to the Respon-
dent’s premises, but are denied access by security guards.
During the process Richard Isola returns to facility and
observes events as he enters. Hilton returns to facility.
1:30 and after—Isola is informed of events and determines all
employees outside are to be terminated. Hilton returns to
lot and informs employees they are fired. Meeting is
held with Union, the Respondent, Charging Party Crock-
ett and others.
(bb) Did the employees conduct fall within the definition
of a strike?
The threshold question in this aspect of the case is: What is a
strike for purposes of evaluating an employer’s right to take
action against those who violate the terms of a no-strike clause?
The General Counsel relies on the Board’s decision in Em-
pire Steel Mfg. Co., 234 NLRB 530 (1978). In that case a un-
ion official called an employee meeting at the end of a lunch-
eon period and extended the meeting some 10 minutes into the
work shift. The union official was fired for calling a work stop-
page in violation of a no-strike clause. Addressing the strike
and no-strike clause issues which formed the basis for the em-
ployers defense to the discharge, the Board adopted the deci-
sion of the administrative law judge who held:

Also rejected is the Respondent’s argument that the in-
trusion into working time vitiated the meetings protected
status because the attendant interference with production
or because it thereby became a work stoppage in breech of
the no-strike clause. There was no evidence of the extent,
if any, that production was impaired. Without such a
showing, and remembering the expansive reading to be
given Section 7 [of the Act], it cannot be said that the brief
interruption occasioned by the meeting bore sufficiently
upon production to destroy the meetings Section 7 stand-
ing. Shelly & Anderson Furniture Mfg. Co. v. NLRB, [497
F.2d 1200 (9th Cir. 1974)]. See also Hospital Employees
District 1199-E (CHC Corp.), 229 NLRB 1010 (1977);
Trustees of Boston University, 224 NLRB 1385 (1976);
Masoneilan International, Inc., 223 NLRB 965 (1976);
Serv-Air, Inc., 162 NLRB 1369 (1967).
Michigan Lumber Fabricators, Inc., 111 NLRB 579
(1955), and Terri Lee, Inc., 107 NLRB 560 (1953), cited
by the Respondent, are distinguishable from the present
case in both degree and kind. They involved employee
meetings away from the plant cutting far more into pro-
duction time—1-1/2 hours in one and a full day in the
other.
Nor is there any evidence that the no-strike clause in
speaking of “strikes, slow-downs or work stoppages, con-
templated interruptions of this sort. Therefore, since those
terms normally envisage conduct intended to bring pres-
sure upon an employer to change his ways (Hospital Em-
ployees District 1199-E (CHC Corp.), supra, Eagle Inter-
national, Inc., 221 NLRB 1291 (1975); Terri Lee, Inc., su-
pra at 562); since the meeting in question had no such pur-
port, instead being informational; [footnote omitted] and
since Section 7 rights are not to be casually dealt away, it
would be overreaching to treat this interruption as cov-
ered by the no-strike proscription. [Empire Steel, supra at
532.]

In Asbestos Removal, 293 NLRB 352 (1989), a judge with
Board approval held that a refusal to commence work lasting
about 1 hour was a strike within the meaning of the contracts
no-strike clause.
The General Counsel also advances and the Respondent at-
tempts to distinguish the Boards decision in Anheuser-Bush,
Inc., 239 NLRB 207 (1978), in which the Board again empha-
sized, in finding certain conduct by employees not to be a
strike, that there was no evidence that the employee intended
his action either to pressure the employer to grant any conces-
sions or to protest any of its policies. In addressing this doctrine
the General Counsel asserts that in the instant case, the employ-
ees actions were not intended to bring pressure on the Respon-
dent to change its ways while the Respondent asserts to the
contrary that they clearly were.
Empire Steel is now cited by the Board as “defining a strike
as conduct intended `to bring pressure upon an employer to
change his ways, BMC America, Inc., 304 NLRB 362, 364
(1991). Helpful in establishing just what the Board means by
this is the Boards decision in Hospital Employees District
1199-E (CHC Corp.), supra, which was cited by the judge in
Empire Steel as quoted supra. In District 1199-E the employees
involved had left their workstations for a total of 5 to 15 min-
utes each in order to track down a management representative
to demand to hold a grievance meeting. In holding the actions
were not a strike the Board held, 229 NLRB at 1011:

Furthermore, the employees conduct herein was not in-
tended to bring pressure on the [employer] through inter-
ruption or stoppage of work and cannot, therefore be re-
garded as a “strike within the meaning of Section 8(g) of
the Act. Instead, the employees engaged in a spontaneous
reaction to the [employers] flouting of its statutory obliga-
tion to them. Their purpose was simply to confront the
[employer] with its disruptive conduct and to communi-
cate in person their sense of outrage and frustration. The
interruption of work did not exceed the time required to
satisfy this objective.

Applying these standards to the facts at hand, I find that the
employees January 5 activities rises to the level of a strike as
defined in the cases. First, in disagreement with the General
Counsel, I find the conduct at issue, at least after 12:45 p.m.
was designed in part to put pressure on the Respondent to be
more generous in its handling of the Crockett grievance than it
might otherwise have done, if it did not know of the employees
willingness to refrain from commencing work as scheduled in
solidarity with Crockett and his grievance. The spontaneous
activities and reactions to confusing circumstances discussed in
the cited cases as not being designed to put pressure on an em-
ployer to change its ways are distinguishable from the situation
presented here because any confusion or indignation was in-
duced by Crockett as part of the employee gathering itself and
did not directly arise out of either the Respondent’s handling of
Crockett’s discharge or its handling of the grievance. Thus, it
was not the events or circumstances of Crockett’s discharge or
the Respondent’s conduct in processing the grievance—beyond
and apart from the fact that the employees did not think the
Respondent’s discharge of Crockett just or proper—that caused
excitement, confusion, or spontaneous protest.
SILVER STATE DISPOSAL SERVICE 107
Second, I find the duration of the employees refusal to com-
mence work, lasting from 12:45 to about 1:20 or 1:25 p.m., a
period of some 35 to 40 minutes, given all the circumstances
including the election to leave the premises rather than go to
work, is of sufficient duration to qualify as a strike. This latter
finding is a close question indeed given the gap between the
shorter 15 minutes or so in duration events held not strikes, as
noted supra, and the longer duration stoppages of an hour or
longer held to be strikes, supra. I am so persuaded here because
even had the employees after accepting Hiltons offer to return
to work been allowed to do so by security, it would surely have
taken at least 10 minutes to organize an orderly entrance into
the facility and thus the ultimate delay involved would have
likely been closer to a full hour.
These two criteria, sufficient duration and coercive purpose,
having been satisfied, I find the employees actions qualify as a
strike. I further find that the no-strike clause in place between
the Union and the Respondent at relevant times prohibited such
conduct. Accordingly, I find the conduct of the employees,
while protected generally, was rendered unprotected by
application of the no-strike clause. Therefore the employees
were subject to discipline including discharge unless their
conduct was condoned by the Respondent.

(4) Did the Respondent condone employee misconduct
I have found that the Respondent’s employees were not en-
gaged in unprotected activities within the meaning of Empo-
rium Capwell, but that they were engaged in conduct in viola-
tion of the no-strike clause in the contract between the Respon-
dent and the Union. The latter finding as well as the possibility
that reviewing authority may reverse the former finding each
raise the issue of condonation25.
The Board with court approval has established the principle
that:

[W}here employees engage in concerted activity which, al-
though otherwise lawful and protected, is rendered unpro-
tected by some improper aspect of the employees conduct,
such as a breach of a no-strike clause, but the employer for-
gives or condones the strike, he will thereafter be estopped
from asserting the unlawful nature of the strike as grounds for
discharge. Jones & McKnight, Inc. v. NLRB, 445 F.2d 97,
102 (7th Cir. 1971).

25 During the trial substantial colloquy occurred on the opening day
respecting a narrowing of the issues in the case. While the question of
the argued unprotected nature of the employees activities was well
understood, the issue of condonation was acknowledged only as a po-
tential issue in unprotected activity cases and never discussed in detail.
The General Counsel generally took the position that no unprotected
activity had occurred so that discussion of condonation was unneces-
sary. The Respondent also argued that condonation was not an issue on
the facts of the case. In part this may have been because counsel for the
Respondent in his opening statement specifically denied that Hiltons
offer to the employees at the vacant lot to return to work was accepted
by any employees so that, in the Respondents view, the strike continued
past any arguable condoning statements by Hilton rendering the condo-
nation doctrine irrelevant. As discussed supra, Hilton, however, did not
testify and I credited the employees testimony, noted supra, that Hiltons
offer of an immediate return to work was accepted by the employees.
I find the credited remarks attributed to Hilton fairly raise the issue
of condonation, that condonation remained at all times a potential issue
in the case which had never been waived by the General Counsel, even
if not fully addressed by him, and that resolution of the condonation
issues presented thereby are a necessary part of this decision.
In Davis & Burton Contractors, 261 NLRB 728 (1982), the
Board held that, when an employer satisfied a picketing em-
ployees demands so that the employee ceased picketing and
returned to work without incident for a period of days or weeks
until an economic layoff, the employer had condoned the pick-
eting and it could not then assert the unprotected conduct as a
basis for refusing to reemploy the employee.
The Board and the courts have differed from time to time re-
specting what constitutes condonation in given situations. The
Board reviewed its condonation doctrine in General Electric
Co., 292 NLRB 843 (1989). In White Oak Coal Co., 295 NLRB
567 (1989), the Board in a scholarly analysis of the history and
development of the cases to date held, in conformity with vari-
ous circuit courts of appeals decisions, that where an employees
relationship with an employer has not been terminated by the
employer at the time of condonation, the employers simple
offer of reemployment may be sufficient to condone the con-
duct at issue.
In Asbestos Removal, 293 NLRB 352 (1989), a group of em-
ployees unhappy with the absence of shower facilities on the
job told their supervisors to summon the superintendent and
delayed commencing work until his arrival about 1 hour later.
The supervisor on his arrival told the men to either go to work
or get off the job. This admonition did not produce results so
soon thereafter the superintendent sent his foreman to reassert
the employers order that the men should go to work or leave.
The employees answered that the problem had not as yet been
solved. The superintendent again told the men to go to work or
get off the job. Following further conversation the foreman
instructed security guards to remove the employees. At that
point a second foreman, Middleton, arrived and announced that
the job had been shut down. When asked by a spokesman for
the employees whether they would be called to resume work
when the job opened again, the foreman said he would call the
employees back to work. The employees were then escorted of
the site. The employees were never contacted to work again and
were thereafter terminated.
The Board approved the decision of the administrative law
judge who held that, although the employees had been engag-
ing in an unprotected strike in violation of a no-strike clause in
the collective-bargaining agreement, the employer had con-
doned their conduct. The judge stated at 293 NLRB at 356:

I have credited testimony to the effect that Middleton told
employees that there was going to be a meeting on Thursday
and that they would probably be work on Friday, and that the
Company would get in touch with the employees who were
then escorted from the premises . . . . Middleton’s words also
amounted to condonation of the refusal of the employees to
work on March 23 because a shower had not been installed.
His directions also disclosed that as of the moment the em-
ployees in question were leaving the jobsite the Respondent
had not decided their fate.

Having found the employer had excused the fact that their
walkout had taken place in violation of the contract, their activ-
ity was held protected and the employers discharge of the em-
ployees a violation of Section 8(a)(1) of the Act.
Turning to the situation presented here, I find that at the time
Hilton first spoke to the employees in the vacant lot, they had
not been terminated by the Respondent. While the men had
been told numerous times they were to go to work or they were
going to be fired, locked out, or kicked off the property, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108
very repetition of the conditional threat indicated that no actual
termination had yet occurred. I find this was still the case when
the men, then on strike and physically removed from the prem-
ises, were offered their jobs back by Hilton, who told them he
had been notified by radio of the situation, had come to deal
with the problem, that he knew what the men were doing was
wrong and that he “needed them to come to work.26 I have
found the employees accepted this offer.
It was not disputed that Hilton, a route supervisor, was a su-
pervisor within the meaning of Section 2(11) of the Act and an
agent of the Respondent. Indeed Hilton had been associated
with the hire of virtually all the employees involved and had
scheduled and participated in the great bulk of the events in-
volving management described here. While it is clear that Hil-
ton did not tell the employees he was conveying a message
from Isola, he made it clear he would “on his own get the em-
ployees in to the facility to go to work and there is no reason on
this record for the employees to have reasonably doubted Hil-
tons authority “on his own to put them to work.27 Indeed, Hil-
ton had been the first management official called by onsite
supervision when they perceived difficulties ahead. Hilton
made that fact clear to the employees in his initial conversation
with them. I specifically find he had at least apparent authority
during these events to have made the statements he did includ-
ing his unconditional offer that if they agreed to go to work, he
would get them into the facility to do so. His solicitation of the
employees to go to work and his promise to get them back onto
the premises and into the facility are attributable to the Respon-
dent.
I find therefore that in the instant case the Respondent made
an unconditional offer of an immediate return to work for all
employees through Hilton, an important and knowledgeable
agent of the Respondent who had long been connected to the
Respondent’s hiring process and was well aware of the larger
issues and disputes involved here, to employees who had not
been terminated. Coupled with the offer of an immediate return
to work, Hilton acknowledged to the employees that he knew
what the employees had been doing and thought it wrong, but
that he needed them to come to work. Hiltons offer was com-
pletely accepted by the employees in the sense that they agreed
to go to work and attempted to enter the property to do so, only
to be excluded by the Respondent’s security personnel. The
statements of Hilton in the circumstances presented above and
in light of the cases cited and the record as a whole convince
me that Hiltons actions constitute a clear condonation of the
employees conduct up to that time. Since the employees in
accepting Hiltons solicitation that they go to work abandoned
any unprotected activity from that point on, all unprotected
employee activity found here was condoned or forgiven by
Hilton.

26 The respondent counsel characterized Hiltons offer in his opening
statement:
[I]n sum and substance Hilton said, “You—whatever you guys are
doing, youre doing it the wrong way. I dont think your Union is sup-
porting you, go back—come—come on in. Ritchie [Isola] is not here,
and he said that when they said, “Al [Crockett] has got to go back to
work now, and he said, “Ritchie is the only one who can make that
decision. I promise you I will deal with that first thing tomorrow.
Meanwhile, come on back, Ritchie is not here, I’ll get you in.
27 In contrast to the “go to work exhortation he could make to em-
ployees on his own, Hilton took care to tell the employees that only
Isola could deal with Crocketts personal situation.
It is true that the Respondent’s security did not let the em-
ployees on the premises so that they never were allowed to start
work. It is also true that Richard Isola soon thereafter deter-
mined to terminate the employees and that fact was communi-
cated to them within the hour by Hilton. The cases seem clear
however that once made and communicated to the employees,
and after the employees had acted on the offer—in this case by
making the thwarted attempt to return to work, the Respondent
was simply not free to reconsider or rescind its earlier condona-
tion. I find no special circumstances present in this case which
distinguishes it from the cases cited.

In summary, I have found that the employees were engaged
in a strike which was prohibited by the no-strike language of
the applicable collective-bargaining agreement. I have further
found that the Respondent through Hilton condoned the con-
duct of the employees to the time of their attempted return to
work from the vacant lot adjacent to the Respondent’s facility
at which time the employees ceased all unprotected conduct
and that the Respondent was thereafter “stopped from asserting
the unlawful nature of the strike as grounds for discharge.28
(5) The situation as to employee Howard Clemons
One of the employees terminated for failing to enter the
premises and start work on January 5, 1994, was employee
Howard Clemons. He testified to a unique set of circumstances
which, if credited, establishes that he was not in a position to
work on January 5 and was seen about the premises only after
having arrived well after the fact and was therefore a spectator
rather than a protesting employee refusing to go to work that
day. Clemons was a believable witness and the Respondent did
not rebut any of his assertions. Rather the Respondent relies on
the proposition that it carefully reviewed each individuals ex-
cuses respecting the January 5 events and found Clemons
“story was not credible. (R. Br. at 25 fn. 21.) I find that
Clemons did not in fact refuse to go to work during the events
in contest on January 5 being otherwise engaged. I also find the
Respondent’s determination that Clemons excuse was not valid
was mistaken. I find his excuse was valid and that he engaged
in no unprotected withholding of his services that day.
Having found, supra, that the events of January 5 could not
be the basis for the discharge of employees, Clemons, as part of
the class of employees whose discharges were at issue, is in-
cluded in the group of employees improperly terminated in
violation of Section 8(a)(1) of the Act. Were these findings to
be reversed by reviewing authority and the conduct of employ-
ees found to be a valid basis for discharge, however, I would
still find that Clemons was not properly discharged because he
did not in fact engage in the conduct at issue, i.e., either the
protected concerted act of listening to Crockett or the subse-
quent unprotected activity of withholding his labor in the face
of a no-strike clause. As noted supra, the Respondent’s mis-
taken notion that an employee was engaged in unprotected
conduct in the context of protected activity may not be the basis
for termination. Ideal Dyeing & Finishing CoT1., 300 NLRB
303 (1990). Accordingly, I find Clemons was improperly dis-
charged for conduct that he did not in fact engage in.29
28 Jones & McKnight, Inc. v. NLRB, 445 F.2d 97, 103 (7th Cir.
1971). Were I to have found the employees conduct unprotected under
Emporium Capwell, I would have found that conduct equally pardoned
and condoned.
29 There was never any doubt that the Respondent felt it was the fail-
ure of scheduled employees to enter the facility and commence work
SILVER STATE DISPOSAL SERVICE 109
(6) Summary and conclusions respecting the employees dis-
charged—based on January 5 events
I have found that the employees terminated by the Respon-
dent because of their actions in refusing to enter the facility and
report for work for their scheduled p.m. shift on January 5,
1995, were all either engaged in protected concerted and union
activity in support of Crockett’s union grievance or, in the al-
ternative, were believed by the employer to have been engaged
in protected concerted activity—in each case that activity being
the listening to and discussing with Albert Crockett the circum-
stances of his discharge and the state of his grievance respect-
ing it. Inasmuch as the Respondent admitted discharging them
for their activities on that day, I found that the General Counsel
had established his prima facie case of a violation of Section
8(a)(3) and (1) of the Act.
Turning to the Respondent’s defenses, I further found that
the actions of the employees on January 5, including their re-
fusal to enter the facility as described supra, did not fall within
the scope of the Supreme Courts decision in Emporium Cap-
well as unprotected activities for which employees could be
discharged.
I also found however that the refusal to enter the facility and
commence work constituted activity prohibited by the no-strike
language contained in the Respondent’s collective-bargaining
agreement with the Union. I therefore found that this activity
was unprotected. I further found, however, that the Respon-
dent’s agent, Hilton, condoned the employees refusal to enter
the facility and commence work by, inter alia, asking them to
come to work and abandon their refusal. Further, when the
employees accepted Hiltons offer and attempted to return to
work—being thwarted only as a result of the Respondent’s
security agents denying employees access to the facility—they
abandoned the unprotected conduct they had previously been
engaged in. Thus, as a result of Hiltons statements and the em-
ployees actions, all unprotected refusals to work to that point
were condoned and no further refusals occurred. I found that as
a result of these actions the Respondent was estopped from
asserting the unlawful nature of the strike as grounds for the
employees discharge.
Having found: (1) that the employees were engaged in pro-
tected concerted activity on January 5 and had not engaged in
any unprotected activity that had not been condoned, (2) that
the Respondent had discharged the employees because of that
conduct and, (3) that the Respondent had no valid basis for
taking such action, I find and conclude that the Respondent in
so doing violated Section 8(a)(1) of the Act. Further, I find that
while Howard Clemons was fired on the same basis he did not
in fact engage in any of the conduct described above and was
therefore also terminated because the Respondent had a mis-
taken belief that he had engaged in protected activity as de-
scribed above. I therefore make the additional finding that the
Respondent in so doing further violated Section 8(a)(3) and (1)
of the Act as to Clemons.
b. The discharge of Bernard Peter Williams
The General Counsels consolidated complaint in Cases 28–
CA–12361, 28–CA–12365, and 28–CA–12365–2 alleges at
paragraphs 5(b) and (c), 6, and 7 that Bernard Peter Williams

that was wrong and the basis for termination. Thus, Crockett and oth-
ers who were not scheduled to work that day were not disciplined for
their conduct.
was discharged on January 6, 1994, because of his support for
the Union and other protected concerted activities in violation
of Section 8(a)(3) and (1) of the Act. The Respondent argues
that Williams was terminated because of violations of the Re-
spondent’s rules and not for any reason prohibited under the
Act and, further, argues that the Bernard Williams matter was
resolved under the parties contractual dispute resolution process
and should be deferred to that resolution.
The issue of deferral to the arbitral process is a threshold is-
sue to be decided before any consideration of the merits of the
underlying unfair labor practice allegation. Accordingly, it is
appropriate to address that issue at the onset.
(1) Is Bernard Williams discharge properly deferrable
(a) Circumstances respecting the dispute resolution process
Bernard Williams received a termination notice on Saturday,
January 8, 1994, on arrival at work for an “Attendance Viola-
tion—No, Show, No Call for an alleged failure to timely call in
on January 6, 1994. The Respondent amended the termination
notice by letter dated February 11, 1994. A grievance was filed
by the Union and was processed up to arbitration. The Union
sought to arbitrate this discharge but was initially told by the
Respondent that Williams discharge would not be arbitrated
because he had been part of the January 5 events. Thereafter the
Respondent agreed to arbitrate and the parties did so.
A hearing was held on September 14, 1994, before Arbitrator
Eugenia B. Maxwell. On December 15, 1994, the arbitrator
issued her award finding in favor of the grievant and directing,
inter alia, that the “penalty of termination should be reduced to
a three day suspension for the incident of January 6, 1994.
On December 27, 1994, union counsel wrote the arbitrator
with copy to the respondent counsel: “requesting a clarification
of the intent of your award.” The letter asserted that the Union
and the Respondent differed on the question of whether the
award included backpay. On January 5, 1995, counsel for the
Respondent also wrote the arbitrator with copy to union counsel
opposing the request of the Union and asserting the arbitrator
had no jurisdiction in the matter and the award was clear that it
did not include backpay or any other form of a make-whole
remedy. Counsel for the Union responded opposing the Re-
spondent.
On January 5, 1995,30 the arbitrator mailed a book letter to
each party which asserted in part:

I am sorry that my award was not clear in regard to the rein-
statement of Grievant. Please substitute page 15 for the prior
page 15. In my award, I intended for Grievant to receive back
pay from the date of termination until the date of reinstate-
ment except for the period of the three day suspension. I in-
tended for his other benefits, seniority, etc. to remain in effect
as if he had not been terminated.

The enclosed new page 15 of the original arbitration award
provided, inter alia, the following additional language:

Grievant should be reinstated with full back pay for the date
of termination until the date of reinstatement except for the
period of suspension during which he should not receive
back pay but his seniority, health and other contractual bene-
fits excluding back pay should remain in full force and effect
30 It is evident that a certain amount of the correspondence involved
here crossed in the mail.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
during the period of suspension as well as the period of ter-
mination.

Respondent complied with the terms of the original arbitra-
tion award, but has not complied with the “substitute page”
aspects of the amended award. A Federal lawsuit contesting the
validity of that portion of the award with its direction that the
Respondent undertake make whole provisions as to Williams is
currently pending in the United States District Court for the
District of Nevada.
(b) Analysis and conclusions respecting deferral
The Respondent argues the allegations as to Bernard Wil-
liams should be deferred. The General Counsel opposed such
deferral.
The Board in Spielberg Mfg. Co., 112 NLRB 1080 (1955),
established specific criteria for deferral to arbitration awards:
(1) that the proceedings were fair and regular; (2) that all par-
ties agreed to be bound; and (3) that the decision not be repug-
nant to the purpose and policies of the Act. The Board also
requires that the issue involved in the unfair labor practice have
been adequately considered by the arbitrator. Olin Corp., 268
NLRB 557 (1984). The Board in Dubo Mfg. Corp., 142 NLRB
431 (1963), determined it would defer any action on cases until
the completion of the grievance-arbitration process, if the mat-
ter were already within that process.
An initially important issue is the Respondent’s refusal to
comply with the “substitute page award now in litigation in the
Federal court. Is such a refusal and ongoing litigation fatal to
the deferral motion? The Board in Malrite of Wisconsin, Inc.,
198 NLRB 241 (1972), enfd. sub nom. Electrical Workers
IBEW Local 1715 v. NLRB, 494 F.2d 1136 (D.C. Cir. 1974),
deferred under Spielberg and dismissed a complaint where an
arbitrator had issued an appropriate award, but the employer
refused to comply and the union was seeking court enforcement
of the award. The Board held that court enforcement of arbitra-
tion awards was preferable to invocation of the Boards
multistep unfair labor practice litigation process and deferred to
the arbitrators award.31 Given this decision, the Federal court
litigation is irrelevant to the issue of deferral.
There is no contention or evidence to suggest that the pro-
ceedings underlying the arbitration were other than fair and
regular. While the parties continue to dispute what arbitration
award, i.e., the original or the “substituted page award, is the
final and binding award, there is no contention that the final
award, once judicially identified, binds all parties.
The Board in Olin Corp, supra, held that an arbitrator ade-
quately considers the unfair labor practice issue, if the contrac-
tual issue is factually parallel to the unfair labor practice issue
and if the arbitrator is presented generally with the facts rele-
vant to resolving the unfair labor practice. The Board also held

31 Malrite was modified in Electronic Reproduction Service Corp.,
213 NLRB 758 (1974), in circumstances involving total repudiation of
the contract, a situation not present here. Although Electronic Repro-
duction was overturned by the Board in Suburban Motor Freight, Inc.,
247 NLRB 146 (1980), this portion of the decision was presumably not
affected. Suburban was itself overruled in Olin, supra.
Malrite was modified in Electronic Reproduction Service Corp., 213
NLRB 758 (1974), in circumstances involving total repudiation of the
contract, a situation not present here. Although Electronic Reproduc-
tion was overturned by the Board in Suburban Motor Freight, Inc., 247
NLRB 146 (1980), this portion of the decision was presumably not
affected. Suburban was itself overruled in Olin, supra.
that, once it is shown the unfair labor practice case concerns a
matter already arbitrated, the burden of demonstrating defects
in the arbitral process shifts to the party seeking to overturn the
arbitral process or award. That burden is on the General Coun-
sel. It is clear from the results of the arbitration that the Union
convinced the arbitrator that there was no just cause for Wil-
liams termination. It appears that the evidence submitted dealt
with the discipline history of the grievant and the applicable
rules and practices relevant to the asserted reason for the Re-
spondent’s termination as well as the grievants conduct at rele-
vant times.
Given the burden placed on the General Counsel and the
General Counsels failure to address any aspect of the arbitration
process save in the briefest of argument at trial, I find that the
General Counsel has not proved that sufficient parallelism did
not exist between the unfair labor practice allegations and the
grievance or proved that important facts were not presented to
the arbitrator. Accordingly, I find that the award is not flawed
or rendered unsusceptable to deferral on that ground.
The issue of whether or not the arbitration award is repug-
nant to the purpose and policies of the Act requires considera-
tion. In a sense there are two potential awards: the original
“Arbitral Award which was complied with by the Respondent
and the “substituted page award which has not been complied
with and remains under judicial consideration in the Federal
court. The difference between the two however, is one of rem-
edy only. In essence each award finds the Respondent violated
the contract and directs Bernard William’s reinstatement. The
two differ only respecting whether the Respondent is further
obligated to undertake certain “make whole remedies including
backpay. The Board has long held the absence of these reme-
dial elements in an arbitrators award do not, per se, render the
award repugnant to the Act. Olin reasserts the Boards view that
it will not require an arbitrators award to be totally consistent
with Board precedent. Applying that Board standard here, I find
the arbitrators award, under either alternative resolution of the
collateral dispute respecting which of the two versions is the
true and binding decision of the arbitrator, is not repugnant to
the policies and purposes of the Act.
I find therefore that the arbitration decision of the arbitrator
respecting Bernard Williams meets the Boards standards for
deferral and that the allegations respecting Williams should be
deferred to it.
(2) Summary and conclusion respecting Bernard Williams
Given all of the above and having found that the arbitration
decision meets the Boards standards for deferral under Spiel-
berg and Olin, I shall defer the Bernard Williams allegation in
the complaint to the arbitration decision. Accordingly, consis-
tent with the Boards procedures in such deferral situations, I
shall dismiss the allegation and not consider its underlying
merits.
c. The second discharge of Albert Crockett
The General Counsel alleges in the complaint in Case 28–
CA–12595 at paragraphs 6, 7, and 8 that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by denying Albert
Crockett leave on January 11 and terminating him on January
14, 1994, because of his solidarity and support for the other
employees, because of his other union and protected concerted
activities and in order to discourage employees from engaging
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection. Complaint subparagraphs 6(e)
SILVER STATE DISPOSAL SERVICE 111
and (f) further assert that Crockett’s request for leave was de-
nied:
[B}ased upon an asserted reason (i.e., shortage of replace-
ment workers) brought about as a direct result of the the Re-
spondent’s having unlawfully discharged the employees [ter-
minated on January 5 as discussed here]. These acts are inher-
ently destructive of the rights guaranteed employees by Sec-
tion 7 of the Act.

The Respondent admits the conduct alleged but denies both the
ascribed motivations and that its conduct violated the Act. It is
appropriate to deal with the two alleged adverse actions sepa-
rately below.
(1) The denial of Crockett’s request for leave
The General Counsel has two theories underlying his claim
that Crockett was wrongfully denied his request for leave of
absence. The first is a classical theory of adverse action based
on animus against Crockett for his protected activities to that
date. Assuming that the General Counsel has sustained a prima
facie case as to this theory under the Boards Wright Line32
analysis, it is incumbent on the Respondent to meet its burden
of proof that the denial would have taken place, even if Crock-
ett had never engaged in any union or other protected activities.
For the reasons appearing below, I find that the Respondent has
done so.
Initially, I accept the proposition that the Respondent would
not under any circumstances have granted a leave of absence to
any driver at a time when it was desperate for and could not
obtain sufficient drivers. While the Respondent had not denied
leaves of absence on this basis in times past, the contract ex-
plicitly provided for such denials and, as the Respondent argues
and the record amply demonstrates, the situation was extraordi-
nary and the shortage of drivers extreme. This finding under
Wright Line sustains a dismissal of the General Counsels theory
of a violation irrespective of whether or not the General Coun-
sel has, in fact, sustained his prima facie case.
While it is not necessary to go further in dismissing the the-
ory presented, the propriety of the Respondent’s action in deny-
ing the leave request must be judged based on what it knew at
the time it denied it. The Respondent’s decisionmaking agents
were completely aware at the time the leave was denied that
Crockett’s leave was requested because of his “wishes to show
solidarity with the group of discharged employees. (R. Br. at
44.) It seems to me it would be an incongruous result to require
the Respondent to grant leaves of absence to employees who, it
well knew, would then use the leave, in effect, to engage in
sympathy strikes in support of fellow employees discharged by
it.
The General Counsel has also pled the unusual theory of a
violation quoted above from complaint subparagraphs 6(e) and
(f). There the General Counsel asserts that, since the shortage
of drivers, on which the Respondent relies as a contractual basis
for denying the leave of absence, was caused by the Respon-
dent’s wrongful discharge of those drivers, the Respondent
should be estopped from using its own wrong doing as a justifi-
cation or excuse for further improper actions. Thus the General
Counsel is arguing that the shortage of drivers caused by the
terminations—found violative of the Act supra—may not be
invoked by the Respondent in defense of its denial of the leave
of absence.

32 Wright Line, 251 NLRB 1083 (1980).
The General Counsels estoppel argument is novel and is
supported by no citations of authority. While it has a certain
attractive logical aspect, I am unwilling to find the secondary or
consequent events caused by an employers unfair labor prac-
tices to be so tainted by the original unfair labor practice ac-
tions that they may not constitute business reasons for that em-
ployers subsequent actions. Were such consequences intended,
planned or part of a scheme or devise to terminate employees,
they might be considered as tainted or invalid. Here where the
wrongful mass terminations were consummated before Crock-
ett was even offered reinstatement and without Board precedent
for such an analysis, I decline to accept the theory propounded.
Given all the above, and on the basis of the record as a
whole, I find that the General Counsel has not sustained his
allegation that Crockett was wrongfully denied his request for
leave. This allegation of the complaint will therefore be dis-
missed.
(2) The termination of Crockett on January 14
The General Counsel again has two theories respecting the
allegation that the Respondent improperly terminated Crockett
on January 14, 1994. As with the allegation respecting denial
of leave, the General Counsels first theory is that the Respon-
dent took action based on animus against Crockett because of
his protected activities up to that time. The Respondent strenu-
ously opposes this contention. There is no doubt that Crock-
ett’s activities included protected activities galore and that the
Respondent surely had very substantial hostility towards him as
a result of those activities. I further find however that the Re-
spondent was attempting to be cautious and “by the book in its
approach to Crockett and terminated Crockett solely for the
reason it asserts in its defense: i.e., that he did not call or show
up for 3 consecutive working days when he was obligated to
work given the denial of his leave. The Respondent viewed
such a failure as a basis for discharge consistent with past prac-
tice and the contract and accordingly terminated Crockett. I
explicitly reject the broader animus contentions of the General
Counsel. To this extent the primary theory of the General
Counsel is rejected.
There is a secondary theory discussed by both the General
Counsel and the Respondent at trial and on brief. Thus the
General Counsel argues on brief at 29:

Finally, it is submitted that Crockett . . . was dis-
charged for becoming an unfair labor practice striker
which is protected activity despite a no strike clause be-
cause [of] the serious nature of the Respondent’s unfair la-
bor practices makes the unfair labor practice strike an ex-
emption to the no-strike clause and should be so found by
the Administrative Law Judge.\16\

_____________________
\16\ Mastro Plastics Corp. v. NLRB, 214 F.2d 462 (2d Cir. 1954), af-
firmed 350 U.S. 270 (1956); Studio 44, 284 NLRB 597, 599 (1987);
Goodie Brand Packing Corp., 283 NLRB 673, 674 (1987).

The Respondent points out in the opening portion of its brief
at 2:

Resolution of the Crockett case is inextricably tied to the facts
and law applicable to all of the other alleged discriminatees,
except Bernard Williams. The legal nexus, as articulated by
the General Counsel, is hat if the 70 were unlawfully dis-
charged, Crockett’s refusal to return to work after being in-
formed on January 11, 1994, that his grievances had been
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
sustained and he had been reinstated, was protected by his
right to engage in an unfair labor practice strike, protesting
the discharge of his colleagues.

I have found, supra, that the 70 employees terminated be-
cause of their activities on January 5 were illegally discharged.
The discharge of so many employees in the circumstances pre-
sented here is, I find, a serious unfair labor practice. There is no
dispute and I find that Crockett declined to return to work after
January 11, 1994, in solidarity with the discharged employees
and that the Respondent knew this was the reason for his refus-
ing to come to work at the time the Respondent fired him.
Crockett was therefore engaged in an unfair labor practice
strike during the period January 6 through at least the date of
his discharge33 and the Respondent knew or well should have
known that fact.
As an unfair labor practice striker Crockett was not restricted
by the no-strike provisions of the contract.34 His refusal to go
to work was therefore a strike and protected activity for which
he could not be discharged.35 Nor could the Respondent,
knowing as it did that Crockett was not at work due to his un-
fair labor practice striker withholding of his services, properly
invoke the “no call, no show provisions of the contract to dis-
charge him because he failed to either show up for work or call
in.
The Respondent’s termination of Crockett, an unfair labor
practice striker, for failing to call in or report to work violated
Section 8(a)(1) of the Act and I so find. This portion of the
General Counsels complaint is sustained.
d. Summary and conclusions respecting the alleged unfair
labor practices
Summarizing the findings made above, I have found as fol-
lows. I have found the employees listed in the amended com-
plaint paragraph 5(a), as set forth in Appendix I of this deci-
sion, were terminated because of their January 5, 1995 activi-
ties. I found those activities to be protected concerted activities
which evolved into a strike on and after 12:15 p.m. I found the
strike was not unprotected under the doctrine affirmed by the
Court in Emporium Capwell.
I further found that the strike was prohibited under the terms
of the no-strike clause of the collective-bargaining agreement
between the Union and the Respondent. I therefore found the
activities of the striking employees was unprotected. Further,
however, I found the strike of the employees was abandoned
and the Employer condoned the unprotected activities of the
employees by the conduct of the Respondent’s agent, Hilton ,in
the vacant lot before the Respondent’s agent, Richard Isola,
terminated the employees for their activities that day. I found
therefore that the Respondent was estopped from relying on the
condoned or forgiven conduct of the employees to justify its
discharge of them.
Having found the employees had engaged in protected con-
certed activity and that all unprotected activities engaged in by
them had been forgiven and could not be the basis for their
discharge, I found that the Respondent’s termination of them

33 There is no question that “serious unfair labor practice circum-
stances continued through the period. At no relevant time were any
employees reinstated nor were any of the grievances processed by the
Respondent.
34 Mastro Plastics v. NLRB, 350 U.S. 270 (1956).
35 Abilities & Goodwill, 241 NLRB 27 (1979).
violated Section 8(a)(1) of the Act as alleged in the complaint.
Moreover, I found that employee Harold Clemons, an em-
ployee included in the group of 70 employees described here,
did not engage in any refusal to work or strike activity of any
kind and, for this reason, the Respondent’s termination of him
violates the Act irrespective of the analysis of the refusal to
work described above.
I have found that the complaint allegation respecting Bernard
Peter Williams is parallel to a grievance and arbitration award
which meets the Boards standards for deferral. Accordingly, I
have deferred the Williams allegations to that award and will
therefore dismiss the allegation.
I have found that the General Counsel has failed to prove the
allegation of the complaint that Crockett was improperly denied
a leave of absence by the Respondent on January 11, 1994. I
shall therefore dismiss this allegation.
I have found that the Respondent did not terminate Albert
Crockett on January 14, 1994, because of animus directed to his
protected activities on and before January 11, 1994. Rather I
found that the Respondent terminated Crockett on January 14,
1994, because he had failed to call in or show up for work for
the three proceeding workdays.
I further found that during the period after January 5 and
through the time of his termination Albert Crockett was an
unfair labor practice striker who was known by the Respondent
to be withholding his services from the Respondent in solidarity
with the employees terminated for their conduct on January 5,
1994. I found that Crockett’s conduct was not limited or pro-
hibited by the no-strike language of the contract and was there-
fore protected activity. I found therefore that the Respondent
discharged Crockett because of his protected activity in viola-
tion of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
purposes and policies of the Act.
I shall order the Respondent to offer the employees termi-
nated as a result of their activities on January 5 as set forth in
appendix I of this decision and Albert Crockett, in writing,
immediate, full, and unconditional reinstatement to the posi-
tions they occupied until discharged, if such positions no longer
exist, they shall be offered substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
leges they would have enjoyed if they had not been discharged,
and to make them whole for any loss of earnings and benefits in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987); see also Isis Plumbing Co., 138 NLRB 716 (1962).
I shall further order the Respondent to delete and expunge
from its records all references to the termination of these em-
ployees and notify each of them in writing that this has been
done and further assure them that the fact of their discharge will
not be used against them in future.
The Respondent shall determine all payments it owes to em-
ployee benefit funds in the manner set forth in Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1970). Further, the
Respondent shall reimburse its employees in the manner set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), for any expenses
SILVER STATE DISPOSAL SERVICE 113
resulting from the Respondent’s failure to make these pay-
ments.
In view of the widespread and egregious nature of the Re-
spondent’s violations of the Act, I shall also include a broad
cease-and-desist order. See Hickmont Foods, 242 NLRB 1357
(1979).
Because a notice should inform employees of their rights un-
der the Act in the context of the violations found and, further,
because of the fact that the significant portion of the violations
of the Act found here deal with discrimination which was im-
proper only because unprotected conduct by employees was
condoned, there is a significant danger that a normal notice will
mislead employees respecting their rights under the Act. In this
highly unusual situation, I have substantially expanded the
explanatory portions of the notice in an attempt to insure that
those who read it realize that the actions of the employees at
relevant times were protected only because of the condonation
of the Respondent.
On the basis of the above findings of fact and the record as a
whole, I make the following
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act by terminating the employees set forth in Appendix I of
this decision because of their protected concerted and union
activities and/or because the Respondent believed they had
engaged in protected concerted and union activities at the Re-
spondent’s premises on January 5, 1994.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by terminating employee Albert Crockett on January 14,
1994, because of his protected concerted and union activities as
an unfair labor practice striker.
5. The allegation of the consolidated complaint respecting
employee Bernard Peter Williams’ will be deferred to the arbi-
tration award respecting the Union’s grievance and the com-
plaint allegation as to him will be dismissed without considera-
tion of its merits.
6. The allegation of the complaint that the Respondent
wrongfully denied Albert Crockett a leave of absence is without
merit and will be dismissed.
7. The above unfair labor practices constitute unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
.