*2 to discuss their directions and continued WINTER, Circuit Judge: actions. The decided to future discharges cross-petition designate for review Garcia to petition On decision, remedying Beska reaffirmed his enforce an order Beska. with Wron- of fifteen agreed represent- to a ployees, must substan- ski. Wronski to talk consider whether findings supports tial evidence the Board’s ative of the and Garcia was was in Wronski’s of- because chosen. While Garcia fice, continued to tell the protected in a walkout Beska engaged work, majority refus- preceded that a brief work which but continued. activi- concerted and the work walkout ed Meanwhile, Garcia, who was Wronski’s walked out were carried on office, told him that felt so which payroll prepared the follow- about the there badly might month, and no termination notices upheld be a walkout. Wronski ever to them though sent even it was the discharges. office, While Garcia was employer’s practice do so. entered the Beska office and informed record, concluded, The Board on this *3 continued, that the work stoppage Wronski stoppage preceding the walkout whereupon Wronski told him “take the was concerted 7 of activity protected § those who walk out and terminate cards the Act and that the employer had violated them.” 8(a)(1) of the terminating § group then Garcia returned to the fifteen employees protect- in engaging and informed them Wronski’s employees alia, ed immedi- walkout. Inter it ordered decision. The work lasted ate pay. reinstatement and back Beska, twenty-five minutes at in this time. Garcia, to a response request gave from II. for the to take a permission employees A concerted work to discuss their The employ- break action. by unrepresented walkout employees agreed to one night ees walk out for protection their 'mutual aid and and return the next the Act. Washington 7 of NLRB v. § As the night. meeting, left Co., 9, 370 14-17, Aluminum U.S. 82 S.Ct. repeatedly told leave Beska them “[i]f 1099, (1962); 8 L.Ed.2d 298 v. NLRB Hanes tonight, you will be terminated —so don’t Division, Hosiery 457, (4 413 F.2d 458 Cir. back anymore.” Only employ- come fifteen 1969); v. NLRB Greensboro Coca Cola Bot ees walked out. Co., 840, tling 180 F.2d (4 1950). 843 Cir. night That a number of fifteen com- Irrespective employer’s right dis other, municated each and was de- charge the two for the time-card Dungca, cided Anita who had an exem- infraction, the employees right had a record, plary would seek reinstate- of their em fellow day ment at the start of the next as appropriate means, ployee by including a representative for that The others group. Electrosystems, NLRB, strike. LTV would meet her there apply and would if 1122, (4 1969); 408 F.2d 1127 NLRB Cir. she went to Dungca were reinstated. Bes- Co., Greensboro Coca Cola 180 F.2d Bottling

ka’s office at 4:15 m. p. day the next 840, 1950). 843 denied sought reinstatement. Beska rein- statement, telling her that Wronski had or- see no to argue We need the facts. the employees dered out who walked termi- There was substantial support evidence to Dungca employ- nated. went the other findings the Board’s point ees and told them there no discharged solely were walk because of the returning since Beska had repeatedly out. Beska them her a list shown of names of those who had they left would be “terminated” and out, and they walked were also terminated. back.” Irrespective “don’t come of Beska’s on the walkout night Work general authority discharge employees, completed did not the record shows that had instruct Wronski out, and employees walk recruited from ed Beska to “take the cards those other sections. The day company next them”; walk out terminate obtained fifteen an em- replacements from next when reinstate day, Dungca agency ployment and utilized part-time ment, Beska told her that she had been to do the work of the fifteen. terminated “an order Mr. Wronski.”

In weeks labor prac- give after an unfair no credence to the ar employer’s filed, gument tice four that Beska’s choice of the word accepted. reemployment offered an merely inappropriate “terminate” was

1279 rehired, and another thought indicated he convey of words choice as not replaced be so would have be evicted order to be would employer’s to leave. disruption forced to create case, Redw instant unlike business. is inapposite We think that Cone here. Carriers, (1962), Inc., N.L.R.B. 1545 137 Cone, employ Unlike nom., Local 79 v. Teamsters sub enforced occupying in the instant case ees 84, 1011 325 F.2d U.S.App.D.C. 117 premises defiance 905, denied, 84 377 U.S. S.Ct. cert. (1963), evincing rights, nor were a “defiant (1964), on which 1165, 12 L.Ed.2d 176 Cone, rebellious 413 F.2d at attitude.” relies, employer principally 454; Co., v. Pepsi Bottling Cola opportu an four, given were not except 824, denied, 1971), cert. F.2d to return to work nity 92 S.Ct. L.Ed.2d 683 U.S. Indeed, when return. solicit Cone). (1972) (interpreting *4 work, to return to Dungca initially unrepresented employees were who here did was she told that refused and she was grievance procedure not have a to utilize. walked out had been who therefore They only had resort to other terminated. grievance. means to communicate their was one. Appealing supervisors their III. conduct time only during Their lasted the the were employer that substantial that discussions with Having concluded on, they attempting carried were finding being Board’s that supports the evidence There discharged solely agree be their future actions. the the walkout, never of violence we still deter were threats of their must cause employees attempt nor the stoppage prior work did mine whether the job performance remove interfere the as to with flagrant walkout was so the the workers. thus cannot deem of the other protection from stoppage prior minute work Metallurgical twenty-five Fansteel v. disregard reckless being the break as 83 L.Ed. Corp., 306 U.S. 59 S.Ct. when Co., employer’s rights N.L.R.B. (1939); Elk Lumber 91 with a confrontation attempting not (1950). attempting to deter only but employer NLRB, F.2d 445 In Mills v. Cone proceed. how to mine 1969), eight employees that Cir. held Cone, signif we think it distinguishing In stopped work stoppage the work that after icant also employee engage of a fellow did not “fur employees a break and, gave protected consequence, employer as activity employ problem.” The department shop discuss the discharged. could be ther [to] employees’ view not apparently work knew stoppage steward led the er preclude as to outrageous so grievance was available to to be procedure acts go decided employment was advised the as- continued break, and the manager procedure. sistant utilize that to work after employer preclude The assistant did not manager requested the workers who did get steward to the men back to work. not shop discharging from refused back to walk out. Cf. Confection go subsequently When steward work, Local 805 plant, he was either to leave the and Warehouseman’s ary Drivers 108, 112-13 1963); work, NLRB, discharged. back to or he would be 312 F.2d two, 445 F.2d Declining to the first he was dis- McKnight, do Jones & 97, 103 (7 1971) (condonation employ charged. given Other who were part who followed the stew- a similar choice and ees’ acts is intent employ and resume example discharged. were also Some overlook misconduct ard’s Therefore, we think relationship). stated would ment shop justified concluding Board to work until the steward return protected was also section in their protest were activity proper and not a basis permissibly discharged. The na protected discharges, these conclusions have and that from ture of a derives primarily evidentiary support. substantial However, purpose. employee misconduct —suc t ENFORCEMENT GRANTED. e s ALBERT V. of its de Senior status t Judge, dissenting: originally merit spite purpose. National La- me the decision of the For The facts here reveal an unwarranted unacceptable as Relations Board is bor refus- disruption defiants. Mendoza it and as wanting uphold in evidence to recognize lay-off, ed to her laid down abrogative principles remove her things sor had to from her desk. refus- this court in like instances of strikers’ When the others in the section heard area. leave the al to Mendoza, Supervisor Beska release some I By way preface, mention them congregated 40-45 of in the area and discharge of itself concluded that the Board decided to her but disemployment, the two Valbue- awaited the result of Mendoza’ssubmission —Mendoza time card signing out the other’s na—for Manager. confer- Replying not an practice. unfair labor her, ence he the Supervisor’s sustained a violation to Mendoza’s Upon learning Manager’s order. re- *5 NLRA, 8, of section U.S.C. action, coding of the clerks stopped 158, termination, Regional in her Di- the § in that gathered space discussing and the wrote her that proceedings rector “further two dismissals. With this hindrance none warranted” and is insuf- are [not] “[T]here desiring of those do so could resume their evidence ... to controvert ficient work. assertion and Ze- the that was a The effect hurtful significantly discharged naida Valbuena were for cause retardation the Company’s operations. rather than for concerted any ac- The consisted of the preparation tivity.” General Counsel reviewed his ac- 26,000 average day an per forms tion, and denied her for the same use those computer with whom the Com- now reasons. These facts are not noticed contracts to do had pany had so. The forms Judge Administrative or Law the night, o’clock to be finished 11:45 each Board. delay during and the from 5:00 shift his letter the Director observed delivery seriously o’clock until hour his decision did not her that affect addition- and cre- hampered production the scheduled “that who al Compa- impact upon ated a substantial evening out of of April walked work on the ny’s economy. 1975, 8, yourself mind, in re- Supervisor With this Valbuena were illegally and themselves dis- quested that their employees resume charged 8(a)(1) in violation of section refused, They persisted work. and . . ..” protesting Thus all the standing talking Ag- and with each other. were protesting discharge. a lawful ployees the confusion circum- gravating was the against action taken in protest Concerted Filipinos 35 of stance that them were lawful fellow speaking tongue. their native protected activity nonetheless under section NLRA, Next, Manager Super- a instructed the general and as U.S.C. § to work again em- visor to tell them rule of such sign is an unfair under or else to out and leave. The practice labor 8 of that Be as it may, relayed message employees. section that sor time, found the Board to me they ignored the facts disclose For the second instructions, discussions, to leave that who declined with unremitting “. . of the group of the tasks of . Some then re- dispatch impeded and so turned to work while others remained their num- They one of named the section. standing corridor between in the ma- and Supervisor ask for approach the ber to chines, stopped of which were and some Their Manager. desire hearing by a running.” (Em- some which were still honored, stipulation with that he phasis supplied.) representative. a Meanwhile the talk Eight in all were terminated told the employ- for a third time Supervisor at their way; in' this had remained leave, yet their resume work or com- ees to approximately locations in the prevailed throughout assem- motion half-hour. parallel the situation continued. stood their blage Some squarely here and law applicable desks, others sat on them. laid out Boreman: opinion Judge in the representative conferred with While “The that a number of record is clear Manager, she intimated there the protesting employees returned to would be a walkout. At time the their to do so. requested machines when Supervisor entered the office participat- They were not protesters congregating Those who remained protest. coding space. Repeated directions away from their work exhibited a defiant posts return to did not end defiant attitude. Substantial evi- rebellious idle of the section. The occupancy dence were told to indicates return or leave the premises area had taken over and to work been occu- either. think man- they refused to do non-workers, suspension of all pied distinction agement made reasonable of work for 25 minutes. possibility protesters between abandoned blockage functioning of all ma- and returned to their unjustified warranted defiantly insisted chines and those Company discharging them. Their pro- upon prolonging on and carrying received, been tests deliberately company property dur- answered. weighed promptly It was hours. ing working *6 duty then to leave the area. The including right “Few to rights, conceded, right cannot corre- protest, strike in exist without disrupt the work area demonstration of obligations to those sponding duties and protestations. This canon of conduct being asserted. against right whom the here, was violated the strikers a claimed When to exercise attempts one fairness, cannot, disregard right leave the until the he in all section duty obligation his corresponding go sor let them into the cafeteria. We conclude that impunity. analogue An almost case identical this was not in violation of Company Corp. Mills is Cone F.2d 8(a)(1) eight discharging the Act in 1969). 450-51 There 15 20 em- deny enforcement called a ployees to reinstate them.” board’s order fellow-worker., discharge of a A typical (Emphasis supplied.) F.2d at 454. experience manager, Wright, with principle presently Nor this waived one of the workers was recounted in the Company failure of in this opinion way: omis- protesters. This the remainder of ‘Noah, asked, “Wright you then are dictated a business doubtlessly sion strike, If you you strike? are on have to produc- meet the deadlines of judgment plant leave the and if don't leave the can hard- tion. any event job, or then I’ll your back to Actually, ly complain of the tolerance. again have to Lewis you.’ stat- for its Company Board’s decision faults men ed that the the dis- obstructive discharging restraint Lewis was thereupon Johnson. Company as soon as the discharged by Wright. right do so. Co., 213 v. Clearfield Cheese

In NLRB 1954), a Board order

F.2d 70 striking employees

reinstate reinstate- compulsory to exclude'

modified line guilty picket

ment of 21 ruled that vol- The Board had

misconduct. guilty of some of the

untary reinstatement rein- right deny company’s

waived the Court, group. in that

statement

overturning ruling held: fit waive sees

“[ W]here of miscon terminate because rights em employment particular

duct can assumed to have hardly be rejecting any other

foreclosed itself from category.” in the same

F.2d at 75. offending reinstatement

Compulsory

21 was denied. akin, Mills are case and Cone present our is controlled the outcome here not now be aban- decision. It should

earlier

doned. America, Appellee, STATES

UNITED Richmond, Va., for Geary, ap- P. Robert pellant. RILEY, Appellant. Harold Scott D. Asst. Hodges, Sp. Ronald U.S. Jr., Roanoke, Thomson, (Paul Va. R. U.S. *7 No. 75-2262. Roanoke, Va., brief), appellee. Appeals, Court of States Fourth Circuit. BRYAN, Judge, Circuit Before Senior BUTZNER, and CRAVEN* 14, 1977. Argued March Judges. 10, 1977. May Decided Judge: Senior Circuit his conviction Riley appeals Harold Scott charging use of the on indictment by jury and to execute a hashish mails to distribute 841(a) and scheme. 21 U.S.C. §§ fraudulent 843(b); 18 1341. U.S.C. § * Judge participated and concurred in of this case the decision and Craven printed. opinion, it was before but died