* The Honorab le Ann Aldrich, United States District Judge for the

Northern District of Ohio, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2003 FED App . 0439P (6th C ir.) File Name: 03a04 39p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
V ENCARE ANCILLARY S ERVICES , I

NC ., Petitione r/Cross-Re

spondent,

v.

N ATION AL L ABOR R ELATI ONS B OARD , Responde nt/Cross-P

etitioner

. X - - - -
> , - - - - - N Nos. 01-2165/2300

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Nos. 25-CA-26096; 25-CA-26096-2 Argued: October 23, 2003 Decided and Filed: December 11, 2003

Before: KENNEDY

and GI BBONS, Circuit Judg es; ALDRI CH, District Judge. * 2 Vencare Ancillary Serv., Inc. v. NLRB Nos. 01-2165/2300

1 After the trial in thi s cas e, Venc or, I nc. fi led f or Chapt er 11 ban krup tcy. It ha s si nce emerged wi th a new name, Kindred Healt hcare, Inc. _________________

COUNSEL
ARGUED: John V. Nord lun d, Fairfax, California, for Petitioner. M ere dith L. Jason, NATIONA L L ABOR RELATI ONS BOARD, Wa shington , D.C., for Respond ent. ON BRIE F: John V. Nor dlund, Fairfax, California, for Petitioner. Me redith

L. Jaso n, Ail een A. A rmst rong, Kira Vol, NATIONAL

LABOR REL

AT I ONS BOARD, Washingt on, D.C., f

or Respon

dent.

_________________ OPINION

_________________ KENNEDY, Circuit Judge. This case presents an appea l fromthe Board’s order finding th at Petitioner--Cr

ossRespondent

Ve nc are unlawfully

discharged five employ

ees for engaging in a

protected activity unde

r the National Labor Relations Act

(“Act”). Petitioner argues that the B oard erred insevera l respects, including its holding that the employe es’ conduct did not con stituteanunpr otected p arti al str

ike. We deny the enf

orcement of the Board’s order

. BACKGROUND
Petitioner was a subs idiary of Ve ncor, Inc., a na

tional health care provid er based in Louisville, Kentucky that
o perated hospitals, skilled nursing facilities and nu rsin g homes, including Hermitage Nursing a nd Rehabilitation Center (“Hermitage”). 1 Petitioner contracted reha

bilit atio n services to Vencor. At all relevant times , Brya

n Stuart wasNos. 01-2165/2300 Vencare Ancillary Serv., Inc. v. NLRB 3

2 Norman deC aussin w as the o nly employ ee not aff ecte d by the wage cut.

3 They elect ed the name “ Vencare Five” s ince Kanth -Bohre dropped out because of

concer ns over h is immigrat ion status . Traci O’Rourke signe d the letter un awar e that it co ntain ed the threat t o stop seeing patients. Upon lea rni ng of tha t “ detai l” a t t

he Jun e 23 mee ting wit h Stuart, she went bac k to seeing the patients.

4 The employees test ifi ed at the heari ng before the administr ative law judge that t

he group only wanted to reve rse the w age a djustm ent; it

mere ly raised the issues su ch as wor k load and scheduling, to support their cl aim t

hat the wage a djust

ment was u nwarr ante d. the on-site supervisor of Petitioner’s employees at Hermitage, including physical thera

pists, phy si cal therapy

aides, speech and language th erapists, and rehabilitation technicians. The Hermi tage therapists were paid hourly wages rathe r than a sal ar y, but did not punch a time clock. Instead, they each filled out a daily activity

report (“DAR”) each e vening , describingthat day’s work. Petitioner c alculated t h e therapi sts’ pay ac cording to the number of hours they claimed on their DARs.
On Ma y 29, 1998, Petitioner announced wage reductions for its rehab ilitation e

mploy ees, ef fective July 1 . On the sa

me da y, St uart met with his employees to explain the wag e chang es. The employee s, upset by the new s, began discussing among themselve s in early June what a

ctions to take to reverse the decision. On Friday, June 19, a group of the rehabil it atio n employees met af ter work at Moreland Park,
near Hermitage. This group included Norman deCaussin, 2 Evonne Higdon, Barbara Thomas, Lisa Winkler, Nil KanthBohre, and Martha Severs (“Vencar e Five.”) 3 At the meeti ng, the group d

rafted a letter containi ng their demands r

elated to the wage reductions and

raising other issu

es, including work load and sc hedul ing. 4 The gr oup sele cted de Caussin to represent them at the meeting with Stuart on June 23

. 4 Vencare Ancillary Serv., Inc. v. NLRB Nos. 01-2165/2300

5 DeCa ussin, Higdon and T homas ackno wledg ed that the group inf ormed Stuart tha t they were going to stop seeing p atie nts bu t di d not testi fy that

the group would continue to do other work.

6 The employ ees t old St uart tha t t he therapi sts who w e re refusin g to
see patients di d not expect to be paid t

hat day , and none of

the f ive f ill ed out a D AR for that T uesd ay.

7 On ly Th oma s actua lly told Stuart tha t she wo uld q uit. Thom as and H igdontesti fied, however, t hat they not only int ended to resign, but considere d the msel ves a s hav ing alr eady resigned before being inf ormed of their t ermination. DeCaussi ntold Stuart that the employees wer e goi ng to refuse to se e p at ie nt s t ha t d ay u nti l someone from upper management

met with the

m to discuss the ir issues. DeCaussi nalso said

that the g roup would remain on the premises

. Severs testified that the group informed Stuart that they “were going to . . . do other work such as paper work untilcorporate agreed to talk to [them].” 5 No one said t hey
were on strike, nor were the terms “strike” and “work stoppage” ever

used. Stuart told them he would fax the letter to Kevin Mack, his superior. He also asked the Vencare Five to continue

seeing patients until he re ceived a

response from the upper management. The g roup refused

and returned to the therapy office to do pape

rwork a nd other projects. 6 At some pointtha t morn ing, Thomas told Stuart that if the issue was not addre ssed, she

would quit. 7

Over the course of the morning of June 2 3, Stuart met individua lly with eac h employee who was refusing to see patients. He explained that their refusal to see patients was an entirely different matter from their grieva nce letter, and t hat refusing to see patients could have serious consequences for their jobs. Around noon, deCaussin told Stuart that he was notfeeling well and was going to go home. He also said that if Stuart needed any

thing, he should call deCaussin at home. The other four emp loyees told St

uart abo ut the same

time thatNos. 01-2165/2300 Vencare Ancillary Serv., Inc. v. NLRB 5

8 The ALJ found that Petitioner did not vi olate the Act because the emplo yees’ work st oppag e wa s unprotected. The ALJ found that the employee group w as a “ labor organ ization” wit

hinthe meani ng of

Sect ion 2( 5) of the Act, and had fai led to comply with Secti on 8 (g), whic h require s tha t a l abor organiz ation give 10 days notic e befo re eng aging in

a work s topp age a t a healt hcare i nsti tut ion. However, the ALJ rej ected Petitio ner’s alt ernati ve arg ume nt t hat t he employees had engaged i n an unprotect ed parti al st

rike. they were taking “their designa ted lunch,” b ut that the y would return. When they returne d from their lunch break, Stuart t old th em that he heard from manageme nt, and had been instructed to tell the

m to go hom

e until fur ther noti ce. The grou p met at 2:30 p.m. i

n the par k to discus s whethe

r to picket the Hermitage facility . They dec ided not to do so.
OnJune 24, they met ag ain and drafted letters which were faxed to corporate management, in which they requested a meetingto address t

heir grievances. On June 24, Petitioner dec ide d to terminate the employee s who refused to see patients for insubordination. Stuart called all five employees onJune 24 to sch edule in dividual meetings with them the following morning. The employ ees telephoned each other and ag re ed to me et wi th th e m an ag em en t o nl y as a group. Whenthey arr

ived at Hermitage the nex t morning, they informed Stuartthey

would only

meet as a group. Stuart then told all of them at once that they were be ing te rminated for insubordinationdue to their refusal to see patients on June 23. Nearly eight months later, on February 12, 1999, Petitione r sent each of the five discharge d therap ists a p ayche ck for Tuesday, June 23.
This case originated with an unfair labor practi ce charge, filed against Petitioner by

Severs o n September 24, 1998. The General Counsel issued a complaint onOctober 30, 1998. Followinga heari

ng, an a dministra tive law j udge di smis s ed the complaint onMay

28, 1999. 8 Petitioner and the General Counsel both excepted to the judge’ s decision before th e 6 Vencare Ancillary Serv., Inc. v. NLRB Nos. 01-2165/2300

Board. On August 6, 2001, the Board issued a Decision and Ord er reinstating the complaint, finding that Petitioner ha d violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1))

.

STANDARDOF REVIEW
Under the Act, the scope of this Cour t’s rev iew of the Board’s findings is limited. First Heal thcare Corp. v. NLRB , 344 F .3 d 5 23 , 5 28 (6 th Ci r. 20 03 ). Mo re sp ec if ic al ly, “th e findi ngs of th e Boar d with res pect to qu

estions of fact if supported by substantial evidence

on the record considered as
a whole sha

ll be conclusive.” 29 U.S.C. § 160(e). “Evidence is cons id ered sub stantial i f it is ade quate, in a reasonable mind, to uphold the decision.” Turnbull Cone Baking Co. of Tennesseev. NLRB , 778 F.2d 292, 295 ( 6th Ci r. 1985) (per curiam)(citing Universa l Camera Corp. v. NLRB , 340 U.S. 474, 477 (1951)). Although this Court “should consider the evidence contrary

to the Board’s conclusions,” it “may not
co nducta de novo review of the record.” Id. (citi ng Union Carbide Corp. v. NLRB , 714 F.2d 657, 600 (6th Cir. 1983)).

“ When t here is a conflict in the testimony , ‘it is the Board’s functionto resolve questions of fact and credibility,’ a

nd thus this court ordinarily will not disturb credibility evaluations by
anALJ who observed thewitnesses’ demeanor.” Id. (quoting NLRB v. Baja’s Place , 733 F. 2d 416, 421 (6th Cir. 1984)). “The Board’s application of the law to

particu lar facts is also reviewed under the

substantia

l evidenc e sta

ndard. . .” Id. (cit ations omitted). Howeve r, “[i]f the

Board e

rrs i n determiningthe proper legal standard, the appellate court may refuse enforc ement on t

he gro unds that t

he order has ‘no
reasona ble basis in law.’” Id. (quot ing Ford M oto r Co. v. NLRB , 441 U.S. 488, 497 (1979)).

ANALYSIS
Onappeal, Petitioner argues that the refusa l by the Venca

re Five to see pa

tients wa s unprote cte d by the Act for two
reasons : (1) it was a partia l strike; a nd (2) the group f ailed toNos. 01-2165/2300 Vencare Ancillary Serv., Inc. v. NLRB 7

9 We accordin gly

do not address the iss ue of reinstat ement and back pay, in cluding the que stion of whether two o f the five employees qui t before theywere tol d the y wer e fi red. We also do not ad dress Petitio ner’s argument that i t was never advi sed that the Vencare Five engaged in a strike. give advance notice of the work stoppage , as req uir ed of employees

at a hea lth care institu tion by Section 8(g) of the Act. Petitioner

further argue s that s ince t he work stop page was unprotec

ted, it wa s lawful for it to terminate the empl o yees

for their refusal to see patients. Respondent argues that substantial evidence supports the Board’s finding that the work

sto ppage was protected. We find that the employees

engaged in an unprotec

ted partial strike and that their dischar ge was lawful. 9 Therefore, we do n ot reach the question of whether the Vencare F ive constituted a labor organization

that was r

equired to give a 10 day notice be fore striking a health care employ er. Section7 of the Act protect s “ not only concer ted activ ity under the sanction of a la

bor union, but also c oncerte d activity of the same nature engag ed in by unorg an iz ed employee s.” VicTanny Int’l, Inc. v. NLRB , 622 F.2d 2 37, 241 (6th Cir. 1980). However, “ not... all work stoppag es are f ederal ly protected concerted activities.” Auto Workers Local 232 v. Wisc onsin E

mploym ent Relations Bd. , 336 U.S. 245, 255 (1949), overruled on other grounds by Lodge 76, Int’l Ass’n of Mechani sts & Aerospace Wo rkers , 4 27 U.S. 132 (1976). While em pl oye es ma

y strike t o “pro test a nd see k to ch ange any term or condition of their employment,” thus assuming the risk of los ing thei

r jobs, they may

not strike and retain the benefit s of working at

the sametime. First Nat’l Bank of Omaha , 171 N.L.R.B. 1145, 1151 (1968), enforced, 413 F.2d 921 (8th Cir. 1969). Partial strikes, where employ ees con tin ue working on their own terms, are theref ore unprotected

by Section 7 of the Act. Id. at 1149-5 1; Vall ey City Furniture , 110 N.L .R.B. 1589, 1594 (1954), enforced, 8 Vencare Ancillary Serv., Inc. v. NLRB Nos. 01-2165/2300

230 F.2d 947 (6t

h C ir. 1956). Employees, thus, may not “refus e to work

oncertain assigned tasks while acce pting pay
or while remaining on the employer’s pre mises.” Audubon Health Care

Ctr. , 268 N.L.R.B. 135, 136 (1983) (finding that
nurses engaged in a partial strike w hen they refuse d to perform some of their

job functions while performing others). They may, ho wever, engage

in a single walkout. Daniel Constr. , 277 N.L.R.B. 795 (1985).
The ALJ con

cluded that the Ve

ncare F ive did not

engage in a partial strike. In its opinion,
The General Counsel correctly characterize[d] the “ol d patient” paperwork performed after the group’s announcement

to Stuart as incidental wind-up work done inprepar ation for their wor

k st oppa ge regarding

new pat ien ts. Moreover, the Vencare F ive told Stuart that they did not expec t to be paid for this paperwork and immediate ly

left the premises w

hen Stuar t told them t

o do so after lu

nch on June

23...L astly , the empl oye es did not“pick an

d choose ” when they

would per

form thei r work duties by announcing either

a 24-hou r or few day s’ delay in seeing patients. . .Rather

their action was si

mply
a short-te rm, sin g le work stoppage-the first of its kindw h ose only

goal wa s to obtain

a meeting

with manage ment.
Vencare Ancillary Servs

. , Inc. , 334 N.L.R.B. No. 119, 2001 WL 9107 67 , at *17 (Aug. 6, 2001) (decision of the AL J). The Board agreed with the AL J and found that “any work done after the group announced that they were re fusing t

o see patients, was done in preparation for, and in con

junction w

ith the work stoppage.” Vencare , 2001 W L910767, at *9. The Bo ar d c on ti nu ed to sa y:
Inreaching this conclusion, we find it unnecessa ry to determine the p e rcenta

ge of ti me the emp loyees norm

ally
s pent performing paperwork, or the pe rcent age of billabl eNos. 01-2165/2300 Vencare Ancillary Serv., Inc. v. NLRB 9

time attributable to paperwork. The judge found that the employee s’ paperwork function took up to 10 to 20 percent of their time and approximately 40 per cent of their billable time. However, the testimony in this regard
was ambiguous, (particularly with respect to th e 40 percent figure ), or was given in response to leading questions , and the exhibits do not cl early support the te st im on y. For the reasons discussed below, we find that

, regardle ss of the per

centage of ti me the employees normally spent on or billed for paperwork, the fact that they performed paperwork while waiting to hear back from upper management did not render their wor k stoppage an unprotected partial strike.
Id. at *9 n. 14 (emphasis added).

We find that t

h e A LJ and the Board erre d in concluding that the actions of the Vencare Five did not constitute a partial strike. Unlike the Board, wefind that it is significant that the V encare Five did some work after making their demands known. As the Board noted in an earlier ca se, “the Board and the courts ha

ve repe atedly

condemne d employ

ees’ re fusal to work on the terms lawfully pre scribed by the employ er while remainingon their jobs.” Highland Hosp. Corp. , 2 7 8 N.L.R.B. 1097 (1986) (finding that the security guards engaged ina partia

l strike w hen they failed to perfor m some of their functions during a strike by the hospital employees); Seealso N.L.R.B. v. Local Union No. 1229 , 346 U.S. 464, 476
n. 12 (1953) (“An employ ee can not work

an d strike at the
same time. He can not continue in his employment a nd openly or secretly

refuse to do his work.”) (citations omitted). It is true that had the Vencare Five simply remained on the premises and waited

to hear back from the manage ment, they 10 Vencare Ancillary Serv., Inc. v. NLRB Nos. 01-2165/2300

10 Resp ond ent’ s dis cussio n of ca ses invo lving sit-do wn strike s is therefore mispla ced. Allthe cases ci ted in it s brief i nvolved situati ons where the striking workers remained on the prem i ses without working. See, e.g., City Dodge Ctr. , Inc. , 289 N.L.R.B . 194, 196-97 (1 988) , enforce d su b no m. , Rose vi ll e Dodg e, Inc . v . NL RB , 882 F.2d 135 5 (8 th Cir. 1989) (c omplet e work st oppa ge prot ected even though empl oyees remained on employer’ s premis es). Their f ailure t o wo rk therefore provided the ir e mploy ers wit h a cl ear i ndicati on of

a strike. T he issue in those cases wa s not wh ether or not employ ees engage d in a part ial strike, but rather, assumi ng that a strike was a c omp lete one, whet her or not their conduct shoul d be p rotec ted b y the Ac t. See, e.g. , Yale Univ. , 330 N.L .R .B. 246 , 257 (19 99) (“No t every w ork s top page is pr otected activity, howe ver; at some point , an em ploye r is entitled to assert its private property ri ghts and demand its prem ises ba ck.”). By citing these cases, Respondent merely confuses the is sue by ignori ng the c lear diff erence between partial st rikes and sit -down strikes. Altho ugh both types of stri kes constit ute an unprotected activi ty, t hey raise dif

ferent

concerns and shoul d not be ev aluated similarly. Firs t Nat ’l Bank of O ma ha , 171 N .L.R.B. at 1149 (“There are cases which hold that the concertedactivit

y of employees in ref

using to work onass ign ed ta sks [1] while accepting pay or [2] whi le remai ning on t he employer ’s pre mises is unprotected.”) (emphasis added). might have been protected under the current

law. 10 They

did not, however, do that. See, e.g., High land H osp. , 278 N.L.R.B. at 1097 (drawing a distinction between

the secu rity guards who stated they would not per formcertain

duties and “the office clerical and other nonunit employ ees who joined the strike [,] ceased working complet ely [, ] and ref used to
cros s t he picke

t line.”) ; Audubon , 268 N.L.R.B. at 136 (“Havin g con cluded that covering open sections was par t of the nurses a

ides’ job duties, we fi nd that the aides were engaged in a partial stri ke when they re fused to work in the ope n sec tion. Thus, they did not completely walk off the job.”) The Bo ard’s opinion tha t their conduct is commenda

ble sinc e they

actually behave d respons ibly

is legall y i rrelevant. See, e.g., Audubon , 268 N.L.R.B. at 137 (“While employees may

prote st and ulti matel y seek to ch ange any term or c ondition of

their emp loy

ment by strikin g or engaging in a work

stoppag e, the str

ike or sto ppage must b eNos. 01-2165/2300 Vencare Ancillary Serv., Inc. v. NLRB 11

complete, that is, the employees must withhold all their servic es from thei

r employ

er.”); Yale Univer

sity , 330 N.L.R.B. at 247 (finding that the graduate tea ching fellows engaged in a part ial strike when the y r efused t o submit their students’ final grades for the s em ester to the University but continued writing letters of evaluation and rec ommendation for th ei r s tu de nt s) . T he un de rl yi n g rationale of the prohibition on partial stri k es is that the employer ha s a right to know whether or n ot his e mployees are striking. See Vic Koenig Chevrolet , 263 N.L .R.B . 646, 650 (1982) (finding that “a struck e mploy er is enti tle d to a clearcut decision from employees

either to join the strike or to work in accordance with the instructions of the employer, including performance of struck work, so long as theemployer does not discriminate
a gainst employees unwilling to pe rform the work of

th e strikers.”). The conduct exhibited by the Vencare Five does notmeet the clear definition of a protected

strike. Yale Univ. , 330 N.L.R.B . at 24 7 (affi rming t he A LJ ’s finding that the teachingfellows who refused to submit grades while writing
recomm endat ionletters “sought to bring about a condition that would be neither strike nor work.”) (quot ing ValleyCity , 110 N.L.R.B. at 1595). The B oard h a d clearly a rticulated a long time ag o why

the Venc are Five’s dec ision to stop seeing patients while performing other duties is an unprotected
ac ti vi ty:
Em pl oye es may

protest a nd seek to

chang e any

term o r conditionof

th ei r e mp lo ym ent , and thei r ultimate sanctionis the strike. . .Whatmay ma ke such a work stop page un protected is exactly wha t makes any wor

k stop page unprotected, that is, the refusal or failure of the employees

to assume

th e statu s of strike

rs, with its
conse quent

loss of pay and risk of be ing replac ed

. E mp loyees

who choose to withhold their services because of a dispute over scheduled hours may properl y be required to do so by

striking unequivocally . They may not simulta

neously walk off their jobs but reta inthe benefi ts of w orkin g. 12 Vencare Ancillary Serv., Inc. v. NLRB Nos. 01-2165/2300

11 Petit ionerand Respondent ar gue about t he legal relev ance of the Vencare Fiv e’s exp ectatio n that they w ould not be paid for Jun e 23

. I n li ght of th e Fair Labor St andards Act’ s requi rement t hat employ ees b e paid for any ti me th ey ar e “s uff ered or permi tt ed to w ork, ” reg ardl ess of whether the employees ask or expect to be paid, we agree with Petit ioner that employ ees’ expect ati ons abou t bei ng pa id are not relevant t o the quest ion of wh ethe r th ere wa s a par ti al s tri ke. 29 CFR § 78 5.11 (“F or example, an employee may voluntarily continue to work at t

he end of the shift. He may be a piecewo rker, he may d esire to finish an assigned task

or he may wish to corre ct erro rs, paste work tickets, pr epa re time r epo rts or other r ecords. The rea son is immater ial. ”)

12 See, e.g., NLRB v. Reynol ds & Manley Lumber Co. , 212 F. 2d 155 (5th Cir. 1954) ( emp loyee w alked off the jo b and left a po tentially exp losive b oiler un attend ed); U.S. St eel Co. v. NLRB , 196 F.2d 459 (7th Cir. 195 2) (superv isors refused to assist thei r employer in maintai ning and protecting the steel p lant from immin ent da nger a nd d estructio n dur ing strike p eri od ); Marshall Car Wheel

& Foundry Co. , 107 N.L. R.B. 314 (1943), enf. deni ed , 218 F.2d 409 , 413 (5th C ir. 195 5), sup plem ented

, 115 N.L .R .B. 7 (1956) ( employ ee wal kouthapp ene d at th e moment molt en iron was ready to be poured). Fi rst Nat’l Bank of Omaha , 171 N.L.R.B. at 115 1. 11 W e under standt hat the Vencare Five wer e upset over the impending wage cuts. Th ey de cided to “ flex their muscles” by withholding patient

care, the major function of their jobs

. The Board i

mplies tha

t the y were

doing work necessary

for the prot ecti on of patients. However, there was no evidenc e that any of the pe

rformed work fel l into the category of protect ing th e patients. Furthermore, there wer e no other exigent circumstances that required the striking employ ees to continue some work to avoid irrep arableharm. 12 The employees

testified that they mere ly caug ht up on back paperwork

which, in some cases, was several wee ks old, as well as helped the clerical staff with filing.

We reitera

te that em ploy ees must complete ly

stop working
or risk b eing di scharge d for en gagi n g in an unprotected
ac ti vi ty. There w

ill alway s be conf licts betw e en employers and employees, and the

employees wi ll often re sort toNos. 01-2165/2300 Vencare Ancillary Serv., Inc. v. NLRB 13

withholding their work as means of applying pressure on the employ ers. Th e employers w

ill often respond by re

placing the striking workers. Although we are sympathetic to the plight of the Vencare Five, who appe ar to have no knowl edge of the labor law, we are cons t rained t o find tha

t the harsh result inthis case is a consequence of a Cong ressional policy designed to protect both the employer and the employee. See, e.g. , Vic Koenig Chevrolet , 263 N.L.R.B. at 650 (finding that
a “young , inexperienced, very likely unknowledg eable about l abor r elations” lot boy never theless engaged in an unprotec ted part ial strike when he f

ailed toperform some of his duties).
CONCLUSION

Insum, we c onclude t

h at the employees e

ngaged in an unprotected

strike an d were therefor

e lawful ly discharged

by Petitioner. Enforcement of the Board’s orde r is denied.