Swygert, Chief Judge, Castle, Senior Circuit Judge, and Cummings, Circuit Judge.
This case is before the Court on the petition of Jones & McKnight, Inc.*fn1 to review and set aside, and the cross-application of the National Labor Relations Board to enforce, an order of the Board issued against the Company on June 8, 1970. The Board's decision and order are reported at 183 NLRB No. 10.
The Board found and concluded that the Company violated Section 8(a)(1) of the National Labor Relations Act, as amended, by discharging six employees and refusing to reinstate four employees on July 17, 1969, and by discharging twenty-three employees on July 23, 1969, because they engaged in protected strike activity. The Board's order directs the Company to cease and desist from such unfair labor practices and to reinstate with back pay nine of the employees*fn2 discharged on July 17, and to reinstate upon application the twenty-three employees discharged on July 23. The order also requires the Company to post designated notices.
The Board's findings and conclusions*fn3 that the Company violated Section 8(a)(1) of the Act*fn4 by the ten July 17 discharges and failures to reinstate, and by its subsequent July 23 discharge of an additional twenty-three employees for participation in a strike in protest of the July 17 discharges, is premised on the Board's conclusion that the Company condoned the July 17 strike activities engaged in by the ten employees in violation of the no-strike provisions of the collective bargaining agreement.
The Company contends that the record considered as a whole does not reveal substantial evidence to support a finding and conclusion that the Company condoned the admittedly unlawful July 17 conduct of the affected employees; that the Company was therefore within its rights in discharging the ten employees it discharged on July 17; and that, consequently, the subsequent strike was an unprotected activity which justified the July 23 discharges. The Company additionally contends that the failure of the discharged employees to follow the grievance procedure of the collective bargaining agreement precludes assertion of the discharges as an unfair labor practice and also makes the strike which followed the July 17 discharges an unprotected activity. It is further contended that the strike activity, both on July 17 and subsequently, was in derogation of the position of the union representing the employees;*fn5 was therefore unprotected activity; constituted a "wildcat" strike; and that to penalize the Company for the disciplinary discharges made because of such employee conduct is contrary to the purposes and objectives of the National Labor Relations Act.
The record discloses that the Company is engaged in the business of manufacturing steel mats and related products. The mats are used in road construction, being placed in the roadbed and then covered with concrete. The Union, the exclusive bargaining agent for the Company employees here involved, had a collective bargaining agreement with the Company which included an express no-strike clause, and a grievance and arbitration procedure culminating in final and binding arbitration. The grievance and arbitration procedure included employee discharges within its scope.
In mid-July, 1969, the women employees here involved were engaged in the tieing of both 12-foot and 6-foot mats at the Company's North Plant.*fn6 This work was done inside the plant on a three shift basis, with restroom facilities and drinking water nearby. On July 15, near the end of the first shift, the women mat-tiers were advised by the foreman that all of them would be tieing 12-foot mats in the future. The following morning the employees were further advised that some of the 12-foot mats would have to be tied outside but, due to the heat, crews would be rotated so each would work outside for only two hours at a time. No outside work was done that day, however, because no 12-foot mats were ready for tieing. On July 17, the foreman again assembled the first shift employees and apprised them of a further change in work plans -- that all the 12-foot mats would now be tied outside. When one employee inquired if she could utilize her seniority to transfer to a different department she was advised that "seniority did not count" in the matter and that "if she wanted a job she would be tieing the 12-foot mats" on the outside with the others. The employees then proceeded to work in the plant yard tieing the 12-foot mats. It was a humid day, and by noon the temperature was in the mid to upper 90's.
During the lunch break several of the employees discussed the new working conditions and decided to examine the bargaining contract to see if it contained anything about tieing mats outside in the sun. Three of the employees asked Wayne E. Isaacs, the plant superintendent, if they could see the contract. He was unwilling to let them examine the contract on company time, but this was seemingly resolved when one of the three employees, Joan Gray, suggested that they wait until their 1:30 p. m. break to examine the contract. The employees started moving from the lunchroom to their work stations outside the plant, but, when they reached the door, they stopped and refused to spend another one and one-half hours in the sun before seeing the contract. At this juncture, Eugene Keeler, the dayshift union steward took employees Alice Steele and Luvenia Johnson with him to Isaacs' office where Isaacs gave them the contract, which they took to the lunchroom to read.
Isaacs then approached the women workers still assembled at the west door of the plant and asked several of them if they were going back to work. Each replied that she would abide by the decision of the group. Four male employees, James Goldsberry, Leslie Harshberger, Roger Kilman, and Fred Harrawood, all yardmen, who had stopped working in support of the women mat-tiers, were also standing near the door with the women employees. Isaacs asked each of the men if he was going to resume work. They responded that they were "thinking about it". Isaacs insisted on a "yes or no" answer and when they refused, Isaacs discharged them. Isaacs then informed the women employees to either resume their work or get off the property. Most of those in the group left the building and assembled on the road near the plant's west gate. Isaacs then returned to the lunchroom where employees Steele, Johnson, Gray and Keeler were examining the contract. He told them that the contract contained nothing about the tieing of mats outside. He added that the 12-foot mats would be tied outside, and that they should so inform the rest of the employees. He then took the contract and left. The four employees then joined those assembled on the road at the west gate and Steele reported what Isaacs had said concerning the contract and the continuation of the outside work. Isaacs then appeared at the gate and again asked the four male employees if they were going back to work. Upon receiving the same answers as before, he informed them for the second time that they were discharged. He told the women in the group that if they wanted to go back to work they could. None of them did.
Some of the employees remained outside the plant on the county road while Gray telephoned Vernon Morris, the Union representative servicing the plant's local (Local No. 15429) to enlist his aid. At about 3:00 p.m. Steele, Gray and International Representative Morris met with Isaacs and Donald J. Rasor, the manager of all three Company plants in the area. Morris questioned Rasor about the Company's requirement that the women employees tie mats in the hot sun for eight hours. In addition the matter of incentive pay was raised,*fn7 and Morris asked to see certain of the Company's records. The records were not available at the North plant, and the meeting adjourned to resume later in the day at the Company's West Lawn Street plant.
Many of the striking employees remained at the plant gates, and their picketing was so successful that only two employees out of the forty-five to fifty-five second shift employees worked the second shift. The second shift's hours were from 3:30 p.m. to 12 midnight.
The meeting at the West Lawn Street plant lasted from about 4:45 p.m. to about 6:45 p.m. It included an additional two employees representing the second-shift workers. Following a discussion of the matters, Rasor agreed to lower the quota for the 12-foot mats; increase the incentive rate on the 12-foot mats from 58 cents to $1.16, retroactive to July 14; and to give the mat tiers a 10 minute break in the shade each hour, if the picketing at the plant gates ceased. Rasor stated that the increase to be made in the incentive rate would be subject to the approval of the Company's president, but that Rasor wanted the pickets removed from the gates by the time the third shift reported for work that evening.*fn8 Morris told Rasor that he thought it advisable that the discharged employees be taken back because they had "got up to that point of settling the trouble". Rasor reluctantly agreed that Goldsberry, Harshberger and Harrawood would be put back on the job, if the pickets were taken off the gates.
Employees Gray, Johnson, Glenn and Milton (the latter two were from the second shift workers) returned to the North plant and spoke to the employees on their respective shifts, advising them of the results of the meeting, and that if the employees went home and the third shift was permitted to come to work Rasor would take all the employees, including the discharged men, back to work the following day. All of the employees were satisfied and were ready to go home, except the yardmen, who preferred to have the agreement in writing. Gray telephoned Rasor with respect to the request made by the discharged yardmen. He told her to call Morris. Morris, when advised of this development, promised to see what he could ...