*1 conform the instructions simply ruling that view of the law. Ante plaintiff’s reluc- an understandable
587. There is straight-jacket in a placed not to be
tance all time embracing one definition for However, I be- all circumstances.
and for court’s instructions the district
lieve law, they matter of
were correct as a applicable standards as
comported with States, v. United Montoya forth in
set
U.S.
(1901), duty have a to find the and that we or incorrect and legally correct
instructions merely they whether harmonized appropriate legal view of the party’s
one Both the district court’s deline-
standards. “tribe” as well as of what constitutes
ation should, explication court’s extensive as a firm foundation for
my opinion, serve dealing with this sensitive and cases
future away from shy issue. I would not
difficult and our com- on these instructions
reliance in future cases.
ments thereon INSURANCE
LIBERTY MUTUAL
COMPANY, Petitioner,
NATIONAL LABOR RELATIONS
BOARD, Respondent.
No. 78-1215. Appeals,
United States Court of
First Circuit.
Argued Oct. 1978.
Decided Feb.
Company cease and desist from the unfair found; practices labor reparation offer reinstatement and to dis- Jr.; charged employee Martin J. and that the reimburse *3 legal in expenses defending for all incurred brought by suit the Compa- the state court discharge. In ny subsequent action, successfully Mutual Liberty sought enjoin Agacinski selling from insurance competition with it.2 The adopted Board findings of the administrative law (ALJ), judge concluding Company 8(a)(3) (1) violated section and of the Labor Act, 8(a)(3) (1), Relations U.S.C. § discharged representative when it account 8(a)(1) it violated section Act, 8(a)(1), when Liberty U.S.C. § threatened with dis- charge because of his union activities. Company alleges The the Board’s findings 8(a)(3) 8(a)(1) violations are supported record considered as a and that the attorney’s whole award of fees Grove, Ill., Chicago, Kalvin M. with whom proceeding in the state court was contrary Chicago, Reiter, Grove, and Fox & Burton L. to law. ll., brief, petitioner. for I This case does not fit into the traditional Katzenbach, Christopher Atty., W. Wash- employee performance mold work subpar C., Irving, with whom John ington, D. S. being Company tolerated until Counsel, Jr., Higgins, Deputy John E. Gen. organizational with union activity. coincides Counsel, Allen, Acting Robert E. Asso- Gen. There was no established labor union in- Counsel, Moore, Deputy Elliott ciate Gen. directly indirectly. here or The dis- volved Counsel, Fergu- and John H. Associate Gen. attempting re- charged employee was C., son, Washington, D. were on Atty., personal grievances at the same time solve brief, respondent. for engaged organizing that he was in an effort reason, For of insurance salesmen. this it is COFFIN, Judge, ALDRICH Before Chief necessary develop the facts in detail. BOWNES, Judges. Circuit headquarters has its BOWNES, Judge. Circuit Boston, Massachusetts, engaged and is casualty, property, life in- Liberty Mutual Insurance sale discharged employ- brings petition to set aside surance. (Company) centers, controversy ee whom this the National Labor Relations around an order of NLRB) Company continuously (Board May issued on worked for from Board cross-applica- 1962 until his termination in March of 1976. 1978.1 The Board has filed Mutual, During years Liberty of its order: that the tion for enforcement Agacin- proximate nexus with the Addition- Mutual Ins. Co. and Martin J. ski, Jr., Individual, ally, No. 197 235 N.L.R.B. suit was the ALJ noted that the state still (1978). pending Agacinski’s and that counterclaim for conceivably granted. legal expenses could judge 2. The administrative law award disagreed, legal The Board and awarded fees. attorney’s he determined fees because Agacinski’s direct or state court suit had no representa- personal sales reduction in expenses, advanced from reimbursed such as Morristown, Jersey, New to business tive in mileage. With the distribution of this when representative sales memorandum. career as a Lib- Orange, Jersey. East New transferred to erty began Mutual salesman hurtling to- “outstanding sales He was lauded ward its end. Our primari- factual focus is in a from efforts” in 1973 letter the Boston ly on the brief span time March 1975, Agacinski Compa- In was the office. when status as a ny’s highest earner for State New shooting star in Liberty Mutual’s galaxy Jersey, example by and was cited as an abruptly ended discharge. Agacin- manager fledgling January salesmen. ski realized before he distributed the memo- brought promotion repre- to account employment randum that his would be in sentative. jeopardy and during his vacation though he appeared Even to be beginning of inquiries March made and de- *4 world, Aga- to in the road success insurance that, termined position if he lost his with happy way cinski Liberty, would have opportunity an to Company treated him and its treatment of represent other competing insurance com- general. salesmen in He set insurance panies agent. as an memorandum, grievances his forth a dat- morning Late Monday, on March 11,1976, superior, ed March addressed his 15, Agacinski met with Anthony at lat- Manager Anthony. Joseph District bidding ter’s to discuss the memorandum. composed during memorandum was After requesting the names of individuals Agacinski first two weeks of March while to whom the sent, memorandum had been Agacinski vacation. distributed the Agacinski, commented “you page four memorandum on 15 to March all know, Marty, superi- associations don’t help managers salesmen and Orange East or salesmen. What they tend to isdo force through- office and to insurance salesmen a company keep qualified lesser people as out the Middle-Atlantic Division on his re- opposed letting go. from them They turn his vacation. He detailed have to complaints proposed the formation allocate those funds for people those lesser an you association salesmen. up end more or less receiving less money.” They Agacinski’s griev- discussed representatives, myself, including
Our are ances, resolution, came propose distrustful and disheartened. I a but to no with accu- sponsored party’s Association of sations each irrationality bandied Representatives; Middle-Atlantic an as- back and forth. representatives sociation in which are ap- Anthony phoned Walker, L. James pointed by peers of their to voice ballot manager division sales for the Middle-At- grievances management. lantic Division after his lengthy session grievances general per- His were both to discuss the memorandum. general complaints sonal. The included dis- Anthony also spoke with Spauld- Kenneth assignment satisfaction with the of sales ing, vice-president the assistant and mana-
territories, accounts, reassignment of low ger relations, of employee level, corporate percentages, renewal conflicts between in Boston about the memorandum. managers, salesmen and sales and distor- Tuesday afternoon, On Agacin- March reports. Agacinski’s personal in sales tions ski met with representatives three account complaints prefaced were with his state- Orange the East office to discuss his “I, others, ment, personal griev- like have memorandum, a suggesting follow- second that, reprisal, fear ances cannot be up memorandum. He wanted “to further support without an aired Association.” the Association” so he proposed to the trio was irked what he viewed as “the idea of a formula, Thursday.” Agacin- no-show inequitable salary maintenance ski secrecy concerning memorandum, the tabulation of then wrote second career credits, office, inner strife in and a which he addressed and sent to all divisional Aga- Friday, March 17. Walker met with Wednesday, salesmen reactions he the mixed 11:00 2:00 summarized from about a. m. until cinski memorandum: first m., received time p. during they which addressed sympathet- “at were best senior salesmen contents of both memoranda and their dis- ic”; “are salesmen enthusiastic- the newer surprise tribution. Walker When noted change”; organization and ally behind at dissatisfaction with the Com- Aga- are bewildered.” “newest salesmen pany attempt form an associa- noted: cinski tion, Agacinski responded that, due to has been sim- Managements attitude [sic] salesman, high visibility as a successful “I attempts past As in ilarly predictable. logical person pursue am the most this.” has dictated a organization, Home Office questioned Agacinski When if he Walker let them make mistake profile; low writing memoranda, keep Aga- intended to Our Executive Vice-Presidents attitude. cinski responded that did. He then attempted close to our Association are as “disruptive an adminis- threatened to most would be to the critical they meetings,” explaining trative sense at responsibilities. their he could notice salesmen post a that no junior comment of one of Citing the meetings prior ap- attend unless written to the effect that must salesmen proval obtained from the association. he composed intoxicated when have been this, hearing On Walker warned memo, continued, “This the first know, “you you keep up you could *5 effrontery no choice but to left me level of Agacinski that the your job.” lose retorted they explain Anthony to Joe that because job was and he any good not that wanted trusted, literally at war I could not changed. testified that he under- Walker fight would with all management with and Agacinski’s primary stood motive in creat- an of salesmen.” my for Association effort ing a to satisfy personal ruckus was noting, “I Agacinski by concluded am for grievances. action,” proposed “the and decision ‘no indefinite number of show of an first Anthony Walker with after met any Thursday I will work Thursdays.’ not meeting, journey on his to Penn- then back accomplishing we are till am satisfied that I sylvania he dictated a to Di- memorandum grievances.” our the resolution some of Manager Hytha, summarizing vision what memorandum, reading second After transpired meeting. at the Walker recalled Spauld- both Walker Anthony phoned Agacinski presented ing concerning Spaulding its di- contents. (1) major three alternatives: correct his Anthony gather to the divisional rected e., maintenance, grievances (i. salary renew- managers meeting, for which was sales service, (2) aspects), al career and territorial Thursday, March following day, on the held association, permit or the formation Spaulding Attorney Penny, $25,000. (3) pay Agacinski rejected Walker Company, for the attendance.3 counsel first two alternatives and he noted that meeting, purpose of the accord- express third, Agacinski promptly dismissed the was “for Mr. ing Spaulding’s testimony to press “he to did not continue it as a viable managers me to discuss with the Penny and alternative.” Walker concluded the memo- they could not do could and their —what opinion: randum with this attempt organize the East during any to I he am convinced that will continue to by Anthony depo- testified Orange office.” pursue type this of course of action to meeting he was directed sition that at management continuing problems cause termination, any threats of but not to make objec- until he achieves his concern Agacinski insist function that he could tives, employ- or until we terminate his of a Mutual accepted manner ment. salesman. Publishing NLRB Sun the Board we attach no sinister v. Lowell Unlike legal improper to “watch.” See 842 n.* motive this appropriate Agacinski
I we find the cir- recommend did report not to work on to properly cumstances terminate his em- Wednesday, March keep nor did he at ployment oppor- and do so the earliest appointments. He testified that he was tunity. physically morning sick 24th. anyone Neither Neville nor else from the Agacinski with a failed to meet business Company phoned Agacinski to check on his Friday, at m. client March 11:00 a. health and ability to meet with clients. he because conference with Walker. direction, At Anthony’s assistant, phoned Neville He Dorothy directed his Ne- sales customers Agacinski whom ville, was scheduled ap- to reschedule his two afternoon to see pointments 24th to determine Wednesday, for March 24. if he kept his appointments. Upon learning 22, Monday, On did not not, Anthony did called Spaulding and told meeting. attend the 8:30 a. m. His sales him that Agacinski returning was not testimony compelled was that he was not calls, phone keeping appointments, and meetings since the were attend not manda- was not servicing policyholders. In re- tory, and he had appointment a business sponse information, Spaulding called m., morning scheduled for that at 11:00 a. meeting p. in Boston at during 3:00 m. requiring him leave the office at a. 9:30 which a conditional decision was made to m. two policies sold that morn- discharge Agacinski if did not meet with ing at the appointment. 11:00 a. m. Antho- Anthony day the next and behave as a ny meetings testified that these sales were Liberty Mutual salesman. Counsel for the mandatory, but prior conceded that Anthony instructed they phone at weeks had been solely conducted p. 4:00 m. to direct junior report Anthony salesmen. try his office on Thursday, contact to demand March 25. presence meeting, nor told warn question did he him he was to subsequently concerning as Liberty salesman; He behave absence. explained that he did not do he would be discharged so because if appear he did not *6 Agacinski avoiding office; management Anthony’s discharge to Aga- his schedule Agacinski’s cinski because did not if he not did meet with him. did, Anthony however, mesh. call both Anthony Agacinski called at 6:00 p. m. at Spaulding and Walker that afternoon to the latter’s home. There is a conflict in report Agacinski’s absence. testimony as to what was Anthony said. 22, Monday, Agacinski, On March accord- testified that he Agacinski told that the ing testimony, impending to his sensed his Company had problems some with him: one fate, and he removed from his office his was he that failed to attend the sales meet- significance, two items of a personal two, ing; that he was to going miss certain photograph of his seven children and work; days three, that it had come “Liberty pen. explained leader” He that he Anthony’s to attention that he not de- did gather- avoid the humiliation of livering policyholders. services to the An- ing belongings in disgrace before his thony told that he was to meet coworkers, which he had witnessed when with him at Anthony’s office at 8:30 the were discharged. others following morning. Anthony said, further you if Agacinski reported “Marty, don’t come Tuesday, to work in and meet 23, m., you me and March but left at discuss these will p. about 4:00 be terminat- Neville, Agacinski’s was, ed.” explaining assistant, reply “Liberty his sales can’t that, I that he was sick. do my He left his briefcase in have sources. You wouldn’t cubicle, and as Anthony Neville had rescheduled that cavalier.” responded, appointments previous I Friday “Marty, spoke from the a you manager to that Wednesday, he that he Liberty testified Mutual. Now let you me tell aas expected friend, her cancel them for him. This you will be terminated you if don’t she did not do. my meet with me in office tomorrow morn-
0Q1
was,
going
plot
“I’m not
After a
reply
summary, the
ALJ concluded
ing.”
in,
Liberty changes
call me when
come
in his decision that
according
Agacinski,
to Antho-
its mind.”
Respondent
discharged Agacinski
hung
phone. Agacinski
ny,
up the
then
24,1976,
March
not because he
in any
had
him
that
told
we wanted
testified:
way
upon
embarked
series of “intermit-
he
following morning,
the
that
him
see
strikes,”
partial
tent and
solely
but
be-
impression
the
the call
was under
he had engaged
cause
in concerted activi-
of the Board
message
from the Chairman
protected
ties
under the Act by soliciting
Anthony said,
come
“The word has
and that
and encouraging his fellow employees to
office, Marty.
the
This
down from
home
join
form and
in an Association to better
directly
the chairman of
comes
from
working
their
conditions.
your
are
You
to cease
desist
board.
Company argues
the Board
Liberty
and behave as a
activities
failed to shoulder its burden here for it
you
Ac-
will be terminated.”
salesman
merely introduced evidence of
protect-
both
“Joe, I
replied,
he
cording to
unprotected
ed and
activity,
prov-
without
Liberty
Mutual can be
don’t think
that,
ing
but for
activity,
union
cavalier,”
“Mar-
Anthony replied,
to which
he would
have been discharged, citing
friend,
acting
I
like
ty,
you
advise
start
as a
Furniture,
Coletti’s
Inc. v.
Liberty
Mutual salesman.”
(1st
1977).
1293-94
meeting
not attend
this conversa-
Thursday because he believed
The Board counters that there is substan-
to a
He testified
amounted
tion
tial evidence in the record considered as a
that,
hung up
telephone,
after
support
finding
whole
of the Board
stated,
to his wife and
“that’s
turned
business reasons
offered
over, we lose.”
game, it’s all
The Com-
ball
were
pretextual.
final
pany maintains that
out did
Our role in these cases
a limited
it sent
Friday,
until
when
occur
findings
one and
Board’s
of fact are
letter of
his formal
termination.
conclusive if we find
substantial evidence
discharged,
formed
Once
record as a
support
whole to
them. 29
and, in
agency
own insurance
violation
160(e); NLRB v.
U.S.C.
Matouk Indus
§
Mutual,
Liberty
he solic-
agreement
tries, Inc.,
(1st
competitor
ited insurance contracts
NLRB v. Universal Packaging Corp., 361
companies.4
growing
Due to his
insurance
F.2d
In NLRB
Mutual,
at dissatisfaction
Manufacturing
Walton
369 U.S.
changing
explored
possibility
had
853, 854,
*7
(1962),
82 S.Ct.
enees drawn
the ALJ
heard
effectuate the discharge does not mean
proper.
the witnesses is
P.S.C.
that this
observed
was his primary motive.
NLRB,
380,
Resources,
576 F.2d
382
Inc. v.
NLRB v.
801,
Billen Shoe
397 F.2d
803
(1st
1978).
Cir.
(1st
1968).
Cir.
We
guide-
reiterated these
determining
lines for
whether
there had
findings
to the
Due deference
of
illegal
been an
discharge in NLRB v. South
the
the ALJ does
mean
Board and
Hospital,
677,
(1st
Shore
571 F.2d
682
Cir.
judicial
duty
of our
review.
abdication
1978).
NLRB, supra,
v.
Corp.
Universal Camera
is required
Board
to show that
456;
at
340
71
Stone &
U.S.
S.Ct.
discharge
the
improperly
motivated
NLRB,
Engineering Corp. v.
Webster
and, if,
here,
the Company
legiti
offers a
(1st
1976);
F.2d
464-65
Cir.
Frattaroli
justification
mate business
conduct,
for its
NLRB,
1189, 1193(1st
1975).
v.
F.2d
Cir.
the Board has the burden of establishing by
ignore
We
the business
cannot
constraints
substantial
evidence an affirmative
employer operates.
under
an
which
We
persuasive
why
reason
the employer reject
agree
the
Circuit’s
with
Second
observation
good
ed the
cause and
chose
bad one.
Waterbury Community Antenna,
Inc. v.
The Company’s “good cause” for discharg
NLRB,
(2d
1978),
F.2d
98-99
Cir.
ing Agacinski was his insubordination,
re
encourage
was not
passed
Act
fusal to
meetings,
attend
failure to properly
pro-union activity,
is
which what would re
accounts,
service
the threat of refusal
sult
an
place
employee
should
courts
on Thursdays,
work
and his refusal to meet
organiz
position
better
as a result of his
on March 25. The “bad
ing activity
occupied
than he would have
cause” was Agacinski’s attempts to form an
nothing.
had he done
association of salesmen.
diligent
requiring
We have been
We recognize that
telescoped
fully
its
justify
finding
Board to
that an
chain of events here and the blurred line
employee
discharged
violation
between
organizational efforts
Act.
Regional
See Hubbard
Hospital
his performance
and attitude as an
NLRB,
(1st
1978);
579 F.2d
employee
application
make the
of our “but
Inc.,
NLRB
Plymouth,
v. Rich’s of
for” test difficult. But it cannot be dis
(1st
886-87
Furni-
Coletti’s
pensed
incantation
the rubric
ture,
NLRB,
Inc. v.
supra,
randum, yet actually had not differentiating Agacinski’s pro- between threats, he concluded carried out unprotected pur- tected and activities. It only have reference to “this notation could posely discharge did not him when he circu- organ- attempts unconcealed Agacinski’s memoranda, only lated the two resort- salesmen into Associa- Respondent’s ize discharge ed to the when after given Mindful of the deference tion.” servicing skipping clients and a sales ALJ, we never- by inferences drawn meeting, refused to meet with in this instance to compelled requested. theless are the ALJ’s review of Walker’s suggest denigrates Compa The Board a dis-
testimony
incomplete, presenting
ny’s
justifications
business
the dis
After conced-
position.
view of his
torted
charge,
touting Agacinski’s sterling sales
Agacinski’s threats had as
ing that none of
Company’s
record as an indication of the
time the memo-
been carried out at the
yet
we
illegal motive
As
have
dictated,
staunchly
Walker
randum
decisions,
emphasized
past
in our
it is nei
reference to
ambiguous
that his
maintained
function,
ours,
the Board’s
nor indeed
ther
“
“objectives” meant
the resolu-
second-guess business decisions.
‘The
and that he
personal grievances
tion of
guarantee
Act was not
intended to
sound,
was sincere in
was convinced that
business decisions be
that they
asked,
product
not be the
of antiunion motivation
disruptive.
to be
When
his threats
”
v.
[emphasis
original].’
NLRB Rich’s of
blank,
referring
he was
whether
point
Inc.,
n.9,
Plymouth,
supra,
received formal termination. whole shows that Company proba was test whether or not an employee “The of bly by motivated two reasons to discharge discharged depends upon the has been rea- Agacinski: organizational activity and employees inference that the could sonable personal against Company. rebellion language by from used draw em- It is difficult to determine where one ends Co., Inc., Mfg. ployer.” NLRB v. Hale and the begins. other bright line de (8th 1978). F.2d This test has marcation which both the Board and Com generally accepted. been NLRB v. Central pany upon insist simply present. is One Ass’n., Oklahoma Milk Producers of the difficulties inherent is facts (10th NLRB v. Cement that it is grievances not clear whose Aga Local No. Masons redress, cinski was to seeking his own or (9th those of the salesmen as a group. Given facts, these especially was important Anthony’s were instructions the Board follow the standard of this circuit Agacinski to report Anthony's tell office and determine whether would 25, and, if Thursday, March he failed to discharged Agacinski have “but for” his so, discharge Agacinski’s do him. own activity. union remand, Rather than how phone call acknowledged version of ever, we carefully have him, examined the rec I “Marty, told want to see ord, and conclude that Company’s you morning.” moti Agacinski’s tomorrow inter vating firing Agacinski factor for pretation the phone call as a was his dismissal personal was, rebellion and his opinion, perform in our unreasonable. He failure fired, assigned he told that duties. be if he did would not “behave as a Liberty is This not the end our analysis. Mutual salesman.” The Company, of While the Act clearly organizing insulates course, right had to insist that activity from retribution by employer, it fulfill his duties as Agacinski’s a salesman. does not authorize carte blanche action subjective reaction the phone call is not an employee pursuit of the lawful end the test. The test one reasonable organization. union inference to be drawn it. It must be borne mind that had been an alone, Standing Agacinski’s distri ticipating discharge since March 22 bution of the two memoranda and the solic personal when he moved his items out of his itation of his co-workers protected ac The only office. reasonable inference that tivity Act, under section 7 of the 29 U.S.C. can be made based on testimony However, § when he threatened to be call, as phone to the which is what the ALJ disruptive, management, declared war on credited, is that he would be fired if he did appointments, missed refused meet activities, not cease and desist his behave as with his superior requested, he cast salesman, off and meet with the protective mantle the Act and Anthony the next ex day. us, It seems clear posed himself to the disciplinary rigors testimony, quit own phone employer. on March 24 Partial after the call. strikes or The fact intermit tent work stoppages protected took the are not its ac-
605
unlawful,8
logic
We are aware
no law or
are activities that are
nor
tivity,7
employee
right
the
to work
insubordinate,11
gives
the
or
violent,9 disloyal,10
prescribed solely by
terms
him.
upon
behavior,
of contract.12
breach
plainly
sought
That
what was
to be
above, was
all of the
typifying
while not
this instance.
situation
done in
It is not a
fairly
cat
may be
clearly insubordinate
employees
pro-
in which
ceased work in
strike, or
constituting
partial
a
egorized as
against
imposed by
conditions
the
test
C. G.
plan.”
the installment
“a strike on
employees
but one
the
employer,
which
NLRB,
(7th
Conn,
108
390
Cir.
Ltd. v.
F.2d
sought and
to continue work
intended
1939).
upon their own notion of the terms which
that of
behavior
akin to
right
If
a
to fix
prevail.
they
should
had
Beneficial
agents
Home
the insurance
their
it would
employment,
the hours of
NLRB,
280
Co. v.
159 F.2d
Life Insurance
right
existed
follow that
similar
denied,
758, 68
(4th Cir.), cert.
332
S.Ct.
U.S.
they
prescribe
could
all conditions
which
(1947).
58,
employees
The
L.Ed. 344
92
regulations affecting
employ-
their
daily
as
report
their offices
refused
ment.
instead,
required, and
rules
Co.,
Montgomery
NLRB v.
Ward &
In
among
report
themselves to
agreed
(8th
1946),
employees
Cir.
job, i. “behave as a Mutual sales- Thursday,
man” and meet with Agaeinski’s
March 25. We find that behav- Act, protected under the
ior was not therefore, was, Liberty Mutual free to employment.
terminate his We proprie- do not reach the issue of the LUDWIN, etc., Plaintiff, Isadore ty attorney’s of the award of fees because Appellant, is no there substantial evidence on which to 8(a)(3) 8(a)(1) finding base an viola- v.
tion. al., CITY OF et CAMBRIDGE petition Defendants, Appellees. to set aside the order the National Labor Rela- No. 78-1258. is granted. tions Board The Board’s cross- Appeals, United States Court of application for enforcement its order is First Circuit. denied and we order dismissal of the unfair practice charges. labor Submitted Nov. 1978. Decided Feb. ALDRICH, (concur- Judge Circuit Senior ring). fully
While I concur in the opin- court’s
ion, and admire its compilation careful
authorities, I expenditure fear that time is
our wasted on the Board. As these
authorities, case, reveal, present and the recognize seems
Board unable to aas judgment
matter of business there can be open one to management course when employee persists giving it the finger.
Equally, ignored the Board has our rule cases, now,
applicable to double motive even pointed Furniture,
after we out in Coletti’s NLRB, Cir., 1977,
Inc. Supreme Court had con
firmed its Healthy City correctness Mt. Doyle, 1977,
Board of Education v. 429 U.S.
274, 285-87,
97 S.Ct.
In Coletti’s we Furniture said Tire, rejected employer’s department, 13. In General we tion employ- but then refused the argument discharged employee that the awas er’s command that she do the work of the partial There, striking employee production employees. striker. the clerical picket striking produc- crossed the line of the