Victor Products Corp.

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VICTOR, PRODUCTS, CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO VICTOR PRODUCTS CORPORATION and AMALGAMATED LOCAL 842, INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT' AND AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA, CIO. Cases Nos. 5-CA- ,319 and 5-CA-321. June 5,1952 Decision and Order On October 4, 1951, Trial Examiner Ralph Winkler issuedk his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner found further that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that the com- plaint be dismissed in that respect. Thereafter the Respondent, the General Counsel, and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner' and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. The complaint alleged that the Respondent had failed to bargain in good faith with the Union in violation of Section 8 (a) (5) and (1) of the Act. The Trial Examiner found that the record did not support this allegation and recommended its dismissal. As no excep- tions to this recommendation have been filed, we will dismiss the complaint insofar as it alleges that the Respondent unlawfully re- fused to bargain with the Union. 2. The complaint alleged further that on April 11, 1950, the Re- spondent had discriminatorily discharged 31 employees in violation of Section 8 (a) (3) and (1) of the Act. As found by the Trial Examiner, these employees were discharged solely because of 'their alleged participation in the so-called "Steeley" incident, detailed in the Intermediate Report. This incident occurred on the first day of the strike, April 10, 1950, at the main entrance to the plant, where the pickets maintained a moving, circular, line of 25 men a few feet ' Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 99 NLRB No. 83. VICTOR PRODUCTS. CORPORATION 517 from the plant door. When Steeley, Respondent's official, approached the picket line about 9, a. m. that day to enter the plant, the pickets, in, response to orders from their leader, Union Representative Bray- ton, voluntarily massed-themselves against the door. Steeley was told by,Brayton that "nobody was going in ,to work." A general melee ensued,' with the result that Steeley withdrew. It is clear from the, entire record, and we find, that Steeley was effectively barred from entering the plant either by going through or around the picket line .2 We therefore agree with the Trial Examiner, and find, that the 13 employees who participated in the "Steeley" incident and whose names appear in Appendix A of the Intermediate Report were engaging in unprotected activity and that their 'dis- charge for said activity was not violative of the Act. 3. With respect to the remaining 18 employees listed in Appendix B of the Intermediate Report, the evidence is in conflict as to whether they were in fact on the picket line at the time of the "Steeley" inci- dent for which they were also discharged. After a careful appraisal of the conflicting testimony, we find upon the record as a whole, in agreement with the Trial Examiner, that they were not in fact on the picket line during the "Steeley" incident. Accordingly, their discharge for engaging in strike activity was violative of the Act, as the Trial Examiner found. The discharge of employees for engaging in protected concerted activity violates Section 8 (a) (1) of the Act. Because such dis- charge amounts to a discrimination in hire' and tenure of employ- ment, thereby discouraging membership in the Union, it also violates Section 8 (a) (3). Moreover, whether the discharges be regarded as a violation of Section 8 (a) (1) or of Section 8 (a) (3), we find that the same remedy of reinstatement with back pay is necessary in order to effectuate the policies of the Act, and that the employees listed in Appendix Bof the Intermediate Report did not engage in any conduct which would warrant our withholding of this remedy. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Victor Products Corporation, Hagerstown, Maryland, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Au- tomobile, Aircraft and Agricultural Implement Workers of America, CIO, and its Amalgamated Local 842 or in any other labor organiza- 2 Under these circumstances we, unlike the Trial Examiner , need not and do not pass upon the effect of the Board's decision in Standard Oil Co. of California, 91 NLRB 1540. 215233-53-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of its employees, by discharging or refusing to reinstate any of them because they have engaged in union or concerted activity, or by discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. (b) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforesaid, or any other labor organization, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of 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) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to the employees listed on Appendix B, attached to the Intermediate Report, immediate and full reinstatement to their for- mer or substantially equivalent positions without prejudice to their . seniority or other rights and privileges and make them whole for any loss of pay suffered by them as a result of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy."" (b) Upon request, make available to the Board or its agents, for ex- amination and copying; all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of back pay due and the right of reinstatement under the terms of this recommended order. (c) Post at is plants at Hagerstown, Maryland, and Berkeley Springs, West Virginia, copies of the notice attached to the Inter- mediate Report as Appendix C.4 Copies of said notice, to be fur- nished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof and he maintained by it for sixty (60) consecutive days thereafter in conspicious places including all places where notices to employees are customarily posted. The Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. 8 However, contrary to the recommendations of the Trial Examiner, back pay for each employee will be computed from the date of his unconditional request for reinstatement after the strike, and not from the date of his discharge on April 11, 1950. See Kallaher and Mee, Inc., 87 NLRB 410. 4 This notice shall be amended by substituting the words "A Decision and Order" for the words ' The Recommendation of a Trial Examiner " in the caption therf of if this Order is enforced by a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." VICTOR PRODUCTS ' CORPORATION 519, (d) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dis- missed in all other respects. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, (herein separately referred to as the UAW-CIO), and upon charges and amended charges duly filed by Amalgamated Local 842, UAW-CIO, (both charging parties are referred to as the Union unless otherwise indicated), the General Counsel for the National Labor Relations Board by the Regional Director for the Fifth Region (Baltimore, Maryland), conjoined both proceedings and issued a con- solidated complaint dated November 13,'1950, against Victor Products Corpora- tion, herein called the Respondent. The complaint alleges that the Respondent discriminatorily discharged certain named employees in violation of Section 8 (a) (3) and (1) of the Act (Labor Management Relations Act, 1947, 61 Stat. 136), failed to bargain as required under Section 8 (a) (5) and (1) of the Act, and by other specified conduct violated' Section 8 (a) (1) of the Act. Copies of the complaint and charges were duly served upon the Respondent. The Re- spondent filed an answer denying that it had committed the described unfair labor practices. Pursuant to notice, a hearing was held from January 15 until April 24, 1951, at II4gerstown, Maryland, before, the undersigned Trial Examiner. The General Counsel was represented by counsel and the Respondent by counsel and another representative and both parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Respondent preliminarily moved to dismiss the proceeding for lack of showing that the Union is in compliance with Section 9 (f), (g), and th) of the Act. This motion was denied. See McComb Manufacturing, Compqznp et at., 95 NLRB 596; Joseph J. Michalik, d/b/a Service Metal Industries, 96 NLRB 10. Another preliminary motion of the Respondent would have dismissed the pro- ceeding on the ground that the complaint included unfair labor practices antedat- ing the filing and service of the charges by more than 6 months. This motion was denied as it does not appear that the complaint included such ' unfair labor practices. In any event, I make no finding of unfair labor practices beyond the statutory 6-month period. The undersigned reserved ruling on other motions of the Respondent to dismiss the complaint on the merits in its entirety and as toeach separate allegation of unfair labor practices, and disposes of such motions in accordance with the findings and conclusions to follow. An unopposed motion of the Respondent to dismiss an allegation of discrimination as to Merle L. Michael was granted. The usual motion to conform the pleadings to the proof -was made and granted as to immaterial matters. The parties were granted opportunity to present oral argument before the 'Trial Examiner, which they waived, and they were also granted permission to file briefs and proposed findings of fact and conclusions of law. The General Counsel and the Respondent have filed briefs which I have carefully considered. Upon the entire record in the case, and from his observation of the demeanor of witnesses, the Trial Examiner makes the following : 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT - The Respondent is a Maryland corporation with two plants in Hagerstown, Maryland, and single plants at Ranson, West Virginia, and Berkeley Springs, West Virginia, where it is engaged in the manufacture, sale, and distribution of refrigeration equipment. The yearly purchases and sales at each of these plants exceeds $100,000, more than half of which, respectively, involves interstate ship- ments. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED The charging Unions are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The principal questions involved in this case are whether the Respondent bargained in good faith with the Union for separate units of employees at the Respondent's Hagerstown and Berkeley Springs plants, respectively, and whether the Respondent discharged the named employees discriminatorily or for engaging in unlawful picketing conduct at the Respondent's Pope Avenue plant at Hagerstown. A. Alleged refusal to bargain-8 (a) (5) The Respondent has recognized the Union as the exclusive bargaining repre- sentative for a unit of its Hagerstown employees, at least since October 1947, and for another unit of its Berkeley Springs employees, at least since 1948. No question is raised respecting the appropriateness of these units, which are par- ticularized in the record, or concerning the majority status of the Union to re- present them. Accordingly, I find that the Union is the statutory representative of such appropriate units within the meaning of Section 9 (a) and (b) of the Act.' The Respondent and the Union were parties to signed collective bargaining agreements from October 1947 until October 1949, covering the Hagerstown unit. These agreements included comprehensive and detailed provisions dealing, among other things, with exclusive recognition of the Union, checkoff of union dues, seniority in personnel matters, grievance procedure, hours of work and overtime, vacations, wages, etc. Pursuant to the provisions of the last such agree- ment (1948-49), the Union on August 17, 1949, notified the Respondent of its de- sire to modify the terms of the contract in certain specified respects for the following contract term. Meanwhile the Respondent gave the Union a notice of contract termination as provided in the contract ; and it advised the Union that the Respondent is "ready to enter into agreement with the Union at any time suggested by the Union, and we look forward to a speedy settlement of our negotiations for the forthcoming year." Both parties were apparently eager to negotiate a contract to follow the then operative agreement which was due to expire on October 17, 1949. 1 See Victor Products Corporation, Cases Nos. 5-RD-36 (Certification of Representa- tives, dated January 13, 1950 ) and 5--R-1436 (Report on Consent Election , dated Decem- ber 2, 1943). VICTOR PRODUCTS CORPORATION 521 The Negotiations Bargaining meetings began on September 15, 1949, with each party repre- sented by a negotiating committee, and approximately 10 meetings were held over the following months until negotiations broke down in April 1950. A Com- missioner of the United States Conciliation Service early entered the negotiating scene when the parties did not seem able to resolve their differences 2 Meanwhile, the parties had also been conducting separate negotiations in be- half of the Berkeley Springs unit-there had not been a contract covering this unit-and on October 31, 1949, the Respondent accepted the Union's request that Hagerstown and Berkeley Springs negotiations be consolidated in subsequent meetings. Roy S. Steeley, assistant to the chairman of the board of directors of the Respondent, was the Respondent's principal witness concerning the negotiations. Ernest L. Stine, head of the Union's Hagerstown unit, was the General Counsel's principal witness in this respect. Testifying from notes which each of them had made contemporaneously with the meetings, both witnesses gave an account of each session, in addition to which there was received in evidence all relevant -correspondence between the parties. Rather than set forth the details of each meeting and thus approximate the length of the transcript, I believe the record of the negotiations can be boiled down considerably without loss of essence. At the outset of negotiations, the Respondent proposed that the new Hagers- town contract be the same as the agreement then in effect except for the deletion of the checkoff provision. The Union, on the other hand, desired various revi- sions and additional monetary benefits in the new contract (e. g., paid vacations, pensions and revised social security benefits, etc.) as well as a union-shop pro- vision; and when the Berkeley Springs and Hagerstown negotiations were con- solidated, the Union proposed identical contracts for both units. The Respondent later acceded to the Union's request that the checkoff be retained and thus it proposed a Hagerstown agreement identical to the terms of the old contract ; the Respondent rejected, purportedly on principle, the union-shop proposals of the Union and it also opposed all proposals exceeding the Respondent's financial undertakings in the old contract. The Respondent, while opposing identical contracts for Berkeley Springs and Hagerstown on the ground of alleged differ- ence in operations and employee skills involved, submitted on October 3, 1949, a proposed contract to the Union for the Berkeley Springs unit covering various terms and conditions of employment, and on January 12, 1950, the Company increased its wage proposals for Berkeley Springs which the Union rejected. The principal issue in the negotiations was a monetary one. Throughout the negotiations the Respondent stated that it was unable to grant the increased financial demands of the Union and that it believed agreement on other issues could be reached if the Union would withdraw these additional monetary pro- posals. The parties discussed their financial differences many times and at 2 At a later phase in the negotiations the Union sought to arbitrate the matters in dis- pute, but the Respondent was unwilling to accept this procedure. 8 A "union authorization" election in the Hagerstown unit was conducted by the Board under Section 9 (e) (1) of the Act and won by the Union in October 1948 (Case No. 5-UA-683 ). Such election , however, was then ineffective to satisfy the statutory require- ments for execution of a union-shop agreement, as the CIO, with which the Union is affiliated , was not then in compliance with the filing and affidavit requirements of Sec- tion 9 of the Act. See N. L. R. B. v. Highland . Park Manufacturing Company, 71 S. Ct. 758. In the Berkeley Springs unit, moreover, no such election has ever been conducted. Accordingly„ I shall not further consider this aspect of the negotiations . There is no obligation to grant a union-shop provision even to a union which is authorized by law to enter into such an agreement , and 4n any, event I• do not consider , the Respondent's refusal to grant such provision as evidence of bad faith bargaining in the present case. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one point during the negotiations the Respondent stated its willingness to turn, over to its employees all yearly profits in excess of 8 percent. In-connection with the Respondent's financial condition as it relates to the rejection of the additional monetary proposals, the record shows that one of the Respondent's two Hagerstown plants had suspended all operations in the fall of 1949, that the workweek at the other Hagerstown plant had been curtailed from July 1949 until spring 1950, and that there also had been additional layoffs during that period. Stine admitted that there never was a time, for example, with respect to negotiations on October 5, October 13, November 21, 1949, and April 5, 1950,. when the Respondent refused to discuss any item under negotiation. The Union went out on strike on April 10, 1950, in support of its contract demands, and the Respondent called off a bargaining meeting scheduled that day because plant operations were discommoded. However, on April 12,'1950, the Respondent advised the Conciliation Commissioner (who had been attending the bargaining sessions) that it was "agreeable to attend any meeting that is set up either by you or requested by the Union" and it several times advised the Commissioner to a similar effect during the following weeks. The General Counsel offered no substantial credible evidence that the Union was unaware of the Respondent's continuing offer to resume negotiations. On September 7, 1950, the Respondent advised the Union of its intention to increase wage rates at Hagerstown and Berkeley Springs, to which the Union responded, among other things, that it "has no objection " And on February 28, 1951, during the pendency of the hearings in this matter, the Respondent again advised the Union of its intention to grant another increase in accordance with a Wage Stabilization Board formula. The Union again replied that it did not object to the increase, but it requested a meeting to discuss the afore-mentioned formula and "other conditions of employment," following which a meeting be- tween the parties was held on March 23, 1951. This was the Union's first step at resuming negotiations since the April 1950 strike, more than 10 months before. Further Findings and Conclusions The statutory obligation to bargain toward the end that agreement be reached requires that each party sincerely explore the avenues leading toward that goal. In the negotiations under consideration, it was not a case of the Respondent's unwillingness to reach an agreement. It was, rather, a situation where the Union wanted substantially greater financial benefits than the Respondent was willing to grant it. The Act does not compel an employer to accede to a union's increased financial demands as a condition of good faith bargaining, as it corre- spondingly does not require a union to withdraw or reduce such demands, and I cannot say that the Respondent indulged in bad faith bargaining by refusing to grant financial proposals of the Union in excess of the provisions of the parties' last preceding contract. The negotiations covered a long period of time during which the Respondent negotiated on all disputed issues and submitted its own proposals. And, as far as this record is concerned, the Respondent was ever available and, I believe, desirous to resolve the negotiations by agreement.` 4 On March 24, 1950, the Respondent advised the Union that It "is reserving unto itself the right to determine the hourly rates of pay. ... ' Taken alone, this is the language of unilateral determination, which is not the bargaining required by the Act. However, considering the statement in the context of the protracted course of bargaining, Including theRespondent's,willingness to adopt,the,terms of the old Hagerstown agreement, I believe the fair purport of the statement is that the Respondent was unwilling to permit the Union alone to determine what the wage scale should be. VICTOR PRODUCTS CORPORATION 523 Under all the circumstances, I am unable to find a preponderance of evidence to the effect that the Respondent failed to bargain in good faith with the Union. Accdrdingly, I shall recommend dismissing the pertinent allegations of the com- plaint. B. Alleged dcserimtnation-8 (a) (3) The Union instituted a strike at the Respondent's Pope Avenue plant in Ha- gerstown on April 10, 1950, and continued the strike until April 17, 1950. Its purpose was, as already indicated, to enforce the Union's bargaining demands. Picket lines were maintained by the Union at various plant entrances during the strike, beginning on April 10 at about 5: 30 a. in. On April 11, 1950, the Respondent advised each of the employees involved in this proceeding that he was discharged "for forcibly blocking entrance to the plant," and the Respondent stated at the hearing that the conduct in question occurred at the so-called Pope Avenue or main entrance of the plant on the morning of April 10. The burden of proof in this case, as in all unfair labor practice proceedings, is the General Counsel's ; this burden does not extend, however, to matters recognized as affirmative defenses in this field. In cases like the present one, for example, the General Counsel makes out his prima facie case upon proof that an employer discharged employees for engaging or because the employer thought the employees were engaging in strike activities ; the employer is then obliged to show, as the Respondent must in this case in order to prevail, that it actually predicated these discharges on conduct, albeit in connection with strike action, beyond the protection afforded under the Act to union or concerted activities Respondent Official Steeley, Plant Manager W. D. Paxson, and Personnel Manager C. L. Hartsock testified concerning the Respondent's reason for the discharges. Steeley and Paxson testified in substance that written and oral statements were obtained under Steeley's direction from supervisory and cler- ical employees respecting the picket line activities of April 10; that on Tuesday morning (April 11) Steeley and Paxson prepared a list of the employees to be discharged, based upon a compilation of the information received as of that time ; that this list of names or any other list did not specify particular inci- dents of April 10 upon which the discharges were individually founded ; and that the discharge notices, dated April 11, were prepared in Paxson's office and then turned over to Hartsock for distribution to the affected employees. Paxson and Steeley further testified that, while they discharged the employees for debarring plant entry on April 10, they did not know at the hearing date what particular incidents of April 10 caused them to terminate each of the individuals in question. The testimony of Hartsock, a Respondent witness, does not square entirely with that of Steeley and Paxson. Thus Hartsock testified that, while he did,, not participate in deciding which employees were to be discharged, as personnel manager he was in a position to know, and that he did know "specifically" and "definitely," why the men were terminated. He explained without substantial credible contradiction that he had been "in consultation" with Paxson, Steeley, and R. J. Bowers (the Respondent's vice president) at the time and that one of' these named members of top management informed him when the list of dis- 5 Mid-Continent Petroleum Corporation, 54 NLRB 912, 933 ; Montgomery Ward cb Co.,. ,Inc.,, et at, 90 NLRB 1244, 1245; Standard Oil Company of California, 91 NLRB 783;. Jefferson Standard Broadcasting Company, 94 NLRB 1507. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chargees was given him for processing on April 11 that the only reason for the discharges was the debarment of Steeley ° Hartsock was a trustworthy witness in respect to his aforestated testimony and I accordingly find that the Respondent discharged the employees in question Solely because they allegedly debarred Steeley on April 10, 1950.7 The ultimate discrimination issue framed by the evidence, is therefore, whether Steeley was debarred and by whom.' This does not mean, of course, that other picket line incidents which were not the reason for the discharges are not material to this issue of discrimination. They may be material, and I shall so consider them, insofar as they relate to determining the nature of the picket line when Steeley was allegedly debarred. Approximately 100 witnesses testified in this matter, most of them giving their accounts of the comparatively few happenings at the main entrance on the morn- ing of April 10. It is quite understandable that even honest witnesses would give varying testimony of events more than 9 months before.9 It is also a fact that some individuals are endowed with powers of memory enabling them to testify respecting minute details of events long past without need for even the normal methods of refreshing memory. However, this case produced many conflicts of testimony which I cannot attribute either to mistaken, though honest, recollection or to unusual memory ; and, considering all the circumstances under which some testimony was uttered, this case would be singularly note- worthy if for no other reason than the feats of recollection of a surprisingly large number of individuals, that is, if I were to credit their testimony. Then, also, this case had witnesses whose testimony was demonstrably false because of inherent inconsistencies and impossibilities; such as the witness who testified in February 1951 that two indivduals named "Tiny" and "Burner" were on the picket line about 6: 45 on April 10, 1950, and that "Tiny" weighed nearly 400 pounds but that "Burner" was about the size of the witness, who weighed approxi- mately 162 pounds. The record shows, however, that "Tiny Burner" is' one and the same individual. The faulty, though honest, recollection of some witnesses and the dishonest testimony (sometimes only in part) of other witnesses com- pound the difficulties of making fact findings in this matter, particularly in view of the length of the record and the great number of witnesses involved. 'I shall attempt to reconstruct the material historical facts as the record reveals them to me, based, of course, upon a full consideration of all 'testimony and the demeanor of the witnesses, the latter factor having no little significance in this particular case. The Picket Line The Pope Avenue entrance where the events in question occurred is 8 feet wide ; it borders as a sidewalk with a single doorstep leading from the sidewalk 8 Bowers testified that he did not recall having any conversation with Hartsock con- cerning the employees to be discharged and he denied giving a list of dischargees to Hart- sock. Neither Paxson nor Steeley credibly denied having the afore-mentioned conversation with Hartsock. In evaluating the credibility of these respective witnesses in ascertaining the reason for the discharges, I have also considered, among other factors, the circumstance that Hartsock's testimony was given comparatively early in the proceeding at a time when, in my opinion, his testimony in this respect was much more entitled to belief, than that of Paxson and Steeley who testified later. 7I must therefore reject the Respondent's contention, as unsupported by substantial credible evidence, that it discharged the employees involved for various other incidents as well. $ The General Counsel withdrew a condonation contention which he had earlier made respecting the discrimination phase of this case. 9 There were material discrepancies even in the testimony of the three police officers as to whom, as the Respondent asserts, there was no showing of bias or prejudice. VICTOR PRODUCTS CORPORATION 525 up to the entrance. This entrance consists of three panels, the middle panel being the actual door and also being slightly wider than the two end panels. (I estimate this door to be about 3 feet wide.) An arch covers an area 201/2 feet by 14 feet immediately in front of this entrance and extends from the build- ing to two supporting columns located at the point where the sidewalk meets the street. There are thus three approaches to the entranceway, one on each side of the arch and the third (which I shall call the center arch and is 8 feet wide) fronting on the street. That portion of the building where the entranceway is located is somewhat recessed and gradually widens out at a point beyond the archway to permit normal sidewalk width.1° This particular entrance is prin- cipally used by clerical and managerial personnel. The strike and its related activities at the main entrance were under the prin- cipal direction of Ernest Stine, one of the dischargees and head of the Union at Hagerstown, and Glen R. Brayton, an international representative of the UAW- 010. The picket line at the main entrance formed a moving circle, oval in shape, of approximately 25 pickets with a constantly changing picket complement. Some of the pickets carried picket signs and a few others carried hickory or dogwood sticks which "they would use . . . as a cane." 11 There were members of the local police force in attendance at all times. The Respondent contends in effect that ingress was completely blocked at the main entrance during the entire morning of April 10, even to those individuals who may have desired to enter by going around the picket line, and it also asserts that there was a definite plan to such effect. The General Counsel denies the existence of such a plan and claims, moreover, that "There was room for persons who so desired to enter the plant by walking around the picket line." Many witnesses testified that it was possible for an individual to enter the plant by going around the picket line, whereas many other witnesses testified that the picket line was too close to the building to prevent such manner of entry, particularly when individuals approached the line to enter the plant. I find it impossible to state with certainty how closely the inner portion of the picket line circle approached the door or exactly what distance there was between the re- spective pickets in the line. However, the consensus of trustworthy testimony would estimate, and I find, that the inner portion of the picket line was generally about 3 feet from the doorstep as it moved at that point and that there was an approximate 3-feet distance between the pickets in the line. I also find that as the moving circular picket line was maintained on the morning of April 10, no individual could go through (as distinguished from around) the picket line with- out humping or being bumped by pickets in their normal progress in the line. The Respondent adduced evidence concerning incidents on the picket line that Monday morning which shows, according to the Respondent, the debarring character of the line. Sometime that morning Police Chief Jesse Brown asked Brayton in the vicinity of the picket line, whether Brayton had any plans for the admission of supervisors and maintenance men into the plant. Brayton replied, according to the uncontradicted testimony of Brown, that "there is nobody going in the plant until we get a contract." Brown thereupon advised Brayton that he, Brayton, could not "legally restrain anyone from going into the plant." About 8: 15 that morning while some office girls were congregated across the street from the main entrance, W. L. Currie, the Respondent's chief sales engineer, asked Brayton whether "there was any chance of the office help going. 10 The reader is referred to those exhibits containing pictures and a diagram of this entranceway for a better understanding of the premises. 11 Testimony of Police Chief Jesse Brown , a Respondent witness. A 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In." Brayton replied that "nobody is entering this plant today" and that Currie should send the girls home. J. K. Wheeler, another company official, made a similar request of Brayton, whereupon Brayton replied in substance that "no one would be permitted to enter the plant or the office until the meeting." (A negotiating meeting had been scheduled to be held later that morning.) Neither the office help nor these company officials entered the plant. Also that morning, the Respondent's general counsel, James E. Ingram, (not the counsel of record in this case) approached within several feet of the en- tranceway and stated his desire to enter the plant. Brayton declared that "no one is going to go into this plant today" ; and when Ingram, a slightly built individual of 76, announced that his business in the plant was of a personal legal nature, Brayton replied that Ingram could not enter either in a "private law capacity" or in "the capacity of counsel of the Company." Stine also told Ingram something to the effect that Ingram "need[s] a week's holiday, anyhow, and this is just about as good a time as any for you to take it." Ingram did not enter. About 2 or 3 minutes later, Brayton walked across the street from the archway and told Ingram, according to Ingram's undenied testimony, that "We will let you and Mr. Wheeler go in, but no one else," whereupon Ingram re- plied that this was "not satisfactory" and that "if one went in, all of them went in." " Personnel Manager Hartsock approached the entranceway with a pouch of mail about 7:30 that Monday morning. Either Brayton or dischargee Gardner Myers, or both, told Hartsock, in substance, that "you can't get into the plant" ; and being then advised that Hartsock was bearing mail, Brayton said, "Well, you have got Uncle Sam's mail, and let Uncle Sam's mailman carry it." One of the police officers in attendance, Christian Bickle,u then offered to escort Hartsock into the plant, but Hartsock rejected the offer and shortly afterward gave the mail to a United States mail carrier who went through the line, which opened up for him, and entered the plant without incident. Employee Frank Beyard also approached the picket line that morning, to be advised by Stine, in substance, that "nobody is going to be allowed to enter the plant this morning." Beyard did not enter the plant. The record shows that other employees and company officials individually ap- proached the archway to enter the plant, but left without entering upon being told, in substance, either by Stine or Brayton that "no one was going into the plant today" or that "no one-is going to be •allo4ved'to enter the' plant;" "wi`th'the phrase also occasionally added to the effect that "you might as well -go home."'" Other employees 15 gave general testimony to a similar effect, but which under " This Ingram event occurred shortly after the Steeley Incident. "Sickle and another police officer , Kiser , testified that the line tightened up closer to the wall as Hartsock approached, which other witnesses deny. I cannot, in good con- science , resolve this particular conflict. 14 Superintendent Harry L. Hull, Charles Hutzell , Foreman Clyde Ingram, Kenneth Stig- berg (a plant manager ), John Minnich , James Rose ( assistant to Respondent's president), Irving Taber, Charles Miller , Foreman Harry Mason, Preston Daley. Another striker, Thomas Kunkleman , also made a similar remark to employee Cecile (or Estelle ) Gardner, stating, as well, that "We are keeping them out until later ." Gard- ner testified that she "was afraid to go in." I do not credit that portion of Harry Mason's testimony , denied by Gardner Myers, that Myers told Brayton that they would "clean away" the bystanders across the street. Nor do I credit that portion of the testimony of Charles Miller , whom I regard as evasive and to be believed only with credible corroboration , that when Brayton or Stine told Mason and Miller that "no one was entering the plant" Brayton also said that "he didn't want anybody to try to enter, because he didn't want anybody to get hurt " 15 Reuben Darby (a director of the Respondent ), Ralph Ford , Foreman H. E. Wharton, William Doflemyer, Virginia Hook. VICTOR PRODUCTS CORPORATION 527 the circumstances of this case, I cannot accept for the reason, among others, of lack of identification of the individuals making the alleged statement (but which is cumulative in any event), or as to which I cannot base findings for an inability to resolve a conflict of testimony10 (also cumulative), or because I consider the witnesses 14 wholly unworthy of belief on critical issues. Also that morning Brayton addressed the group of office personnel which had gathered across the street from the archway. Employee William Bonner testi- fied without credible contradiction that Brayton stated in effect that "we are trying to run a peaceful picket line here. If you all would care to join it, you may do so. What we gain or win by this you all also will benefit by it, but if you don't want to join the picket line, you may as well go on home, because nobody is going to get in here this morning." 16 The record also shows that some office girls "' had been conversing with several pickets in the vicinity of the archway. One of the strikers, Harold Aycoth, re- plied to a question from Helen Bowman, that if she tried to enter the plant, "he would very politely or gently pick me up and toss me into the street." Another office girl, Betty Johnson, asked Aycoth "Why can't we go in," whereupon Ay- coth replied that "We don't get paid by letting you in." The record shows, how- ever, that the afore-mentioned girls were making no attempt to enter the plant at the time and that the Bowman conversation was carried on in a jocular vein. I therefore attach no significance to these incidents insofar as the debarment issue is concerned. The Respondent also adverts to the testimony of one of the strikers, Harry Hammond, that "I guess we tried to keep them all out the best we could .. . kept going around in a ring to keep them out." David Myers, another striker, also testified that the purpose of the picket line was "to keep people from getting into the plant that day [but not by] forc[ing] nobody from going through." Only three employees entered the plant that morning and the General Counsel contends that the circumstances under which they did so shows that the picket line was not conducted in a fashion to restrain entry into the plant. Thus, Michael Maley and Plant Manager Paxson individually entered the plant by going around the picket line about 6: 30 that morning. According to the testi- mony of Maley, Stine stepped out of the line and told the approaching Maley that "no one is going to be allowed in here today." Maley further testified that he nevertheless "walked by him [Stine] and around the picket line" and that Stine "made no move whatsoever." 10 Clarence Smeek, one of the;Respandent's 'engiiieers,, testified that as he ap- proached the archway carrying some mail, someone under the archway said he could not take anything into the plant. Smeek then spoke to Police Officer Bickle who in turn asked Brayton, "How about letting this fellow in with this mail?" According to Bickle's credible testimony Brayton thereupon said, "Okay, fellows, open up and let him in," and Smeek entered. 16 Hollis Barnes, James Leffier. 17 Louis S. Daugherty , Nelson Weaver, Merle Poffenberger, Albert Scott. Another summary of Brayton's remarks, according to the testimony of Police Officer Harold Riser, was that "they might as well go home ; that there was nobody going to enter this plant ; that what they were striking for was for their benefit as well as those that were on strike " 16 Helen Bowman, Ellen Reed, Virginia Hook. 10I do not credit that portion of the testimony of Paxson and Maley to the effect that E. C Michael , president of the Local Union , attempted to close the door as each of them entered the plant ; and I do not credit Paxson's testimony that Stine shouted to Michael, on the occasion of Paxson's entry, "Why did you let him in?" Stine and Michael credibly denied this testimony. Nor do I credit that portion of Maley's testimony that Stine stepped out of the line during the incident recounted in the text. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel refers to other circumstances , in addition to the entry of the three afore-mentioned employees, as negating the inference of debarment which the Respondent would ascribe to the picket line. Thus the record shows that during a strike by this same Union at the Respondent's plant in 1948 the Union maintained a circular picket line similar to the line operated on April 10, that the Respondent and the Union had agreed that firemen and watchmen would enter the plant during the 1948 strike, and that whoever else desired to enter the plant did so by going around the picket line without obstruction by the Union. The Respondent refused to enter into such arrangement either be- fore or during the strike under consideration here. Stine testified that the reason for such arrangement from the Union's point of view was not to keep em- ployees not covered by the arrangement from entering the plant but merely to enable the covered classifications to enter the plant without being considered as scabs by the picket line. The General Counsel also adverts to the fact that, upon being questioned at this hearing, the employees uniformly disclaimed knowledge of any plans or instruc- tions to them to restrain entry into the plant. So far as the record shows, the only union instruction to the pickets was to keep the line moving. And in further support of the General Counsel's contention respecting the alleged peace- able nature of picketing activities, the General Counsel also refers to the fact, supported by the record, that Police Chief Brown only once issued instructions to the pickets concerning their conduct 23 Brown (a Respondent witness) testified in this connection that on an occasion when individuals were gathered across the street from the entranceway, the picket line stopped "momentarily" while Bray- ton requested Brown to move these persons. Brown advised Brayton that he, Brown, would. take care of the matter and that he didn't feel the mentioned individuals were going to molest the picket line, and he instructed Brayton to resume operation of the picket line. Brayton complied promptly, and Brown dispersed the crowd across the street. Brown epitomized the situation to the effect that "He [Brayton] cooperated with me, and I did with him." Brown also testified that he heard shouts from underneath the archway addressed to the people across the street to the effect that they should "go back home ; you are not going to go to work today." Brown testified that he didn't "construe" the shouts as a "direct order" from those who were shouting. Brown further testified that "there was nobody molested, or anything of that kind, that morning," and he saw no pickets "threaten anybody," and that none of his officers present at the plant that day had reported to him that on April 10 "any individuals approached the picket line and could not get into the plant." The Steeley Incident Thus we have the setting for Steeley 's appearance at about 9 a. m. At that time there was a sizeable number of office and supervisory personnel (non- strikers) congregated on the sidewalk directly across the street from the arch- way in addition to onlookers, including nonstrikers, at all sides of the entrance- way. After speaking privately with some of these individuals, Steeley came across the street, advancing toward the center arch with "quite a few people [supervisors and office staff]" following "directly in back of him."" Someone in the picket line shouted "Here comes Steeley." Steeley approached the center 21 Brown testified that he was in the plant vicinity from about 6: 30 a . in. until about 1 p. m. and that during this period he was in the vicinity of the main entrance except for visits "at different intervals" to picket lines at other entrances of the plant. 22 Testimony of Police Officer Kiser, a Respondent witness. VICTOR PRODUCTS CORPORATION 529 arch "walking rapidly and with long strides" 2' and with sufficient momentum to bump one of the striking onlookers, David Myers, who was standing at one of the columns, and to propel Myers, staggering and injured , into the picket line. The line was operating in its normal circular fashion, with its inner portion about 3 feet from the doorway at the time. As Steeley stepped over the curb at the street side of the archway 2 police officers fell in beside him, 1 on each side, and "all three went under the archway beside one another." 24 The situation under the archway then became "just one big congestion" as "office people . . . started to come in on all sides [of the archway]" and such male personnel as had followed Steeley were "push[ing] and crow[ing] under the archway in back of [Steeley]." 25 Steeley, with the office personnel thus pushing behind him,2° reached and "made contact" with the outer portion of the picket circle and tried "to break ... through the line." 27 And "that is when they all ganged up," Bowman credibly testified further. "Everybody behind him [Steeley] pushed through, too." Brayton shouted something to the effect that the pickets should "close up the line. Don't let him through," and, as Bowman further testified, the pickets "that were closest to the, door got right up to the door, and they went up the stairs and lined up against the door." About this time Steeley told the pickets either that they were discharged or subject to discharge if they didn't let him in. (I estimate there were no less than 40 individuals including pickets, milling about in the archway at the time.) Brayton forced himself through the crowd to Steeley-this was the "only way" he could have gotten to Steeley in view of the "awful crowd of people there at that particular time" "-and Brayton told Steeley, according to Steeley's uncontradicted testimony,28 that "nobody is going in to work." 70 During the short period of congested movement under the archway, Steeley and Stine came face to face, separated by a few inches, with Steeley standing in the direction of the door. At this point pickets were lodged on the doorstep leading into the plant with other pickets, several men deep, back up against them as well as against the plant wall on each side of the doorway. (The Respondent asserts that the pickets purposely placed themselves in such posi- tion," while the General Counsel claims that they were forced there and that some pickets drew back instinctively in self-protection.) Stine was in this mass of pickets in front of the doorway when Steeley told Stine he would like to enter the plant. Stine replied that he couldn't move, that he was pinned in, 28 Testimony of Police Officer Bickle, a Respondent witness. 24 Testimony of Police Officer Kiser. 28 Testimony of Helen Bowman , a Respondent witness. 20 Hollis Barnes, one of the individuals following Steeley, had told Harold Angle and Daniel Phillips earlier that morning that they were "going through . . . whenever they got the word." 27 Testimony of Helen Bowman. 28 Testimony of Officer Bickle. 29 Uncontradicted at least by Brayton who did not testify at the hearing. 8° Officer Bickle took hold of Brayton at about the time Brayton forced his way to Steeley ; Bickle testified that he did not arrest Brayton because he "did not know what Brayton intended to do." 81 The Respondent refers in this connection to the testimony of Chester Jones, a striker who was in the vicinity of the archway but not on the picket line during the Steeley incident, Jones testified in effect that the pickets "pushed up" against the door in order to keep Mr. Steeley from "going through the outer side of , the line." It appears from Jones' further testimony that Jones did not see what happened under the archway until the pickets were already massed against the door and that his opinion that the pickets intended to keep Steeley out was based on the statement which Bowers had allegedly made to Steeley , •as recounted below, that "they had all the evidence they needed." 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Steeley testified that Stine was "pinned in from the side, but he [Stine] could have stepped forward, because there was a space between Stine and myself." (The General Counsel states in this connection that Stine was well advised not to have stepped toward Steeley lest such move "be considered a threatening gesture" ; the Respondent on the other hand, asserts that Stine should have stepped forward to get out of Steeley's way.) Stine had no sooner answered Steeley, as stated above, when Bowers sug- gested to Steeley that he withdraw from the archway, which Steeley promptly did.32 The picket line re-formed in its normal fashion and immediately after this Steeley incident-which I estimate to have lasted no longer than a minute or two-Brayton and Stine requested Police Officer Kiser to advise Steeley that he could enter the plant if he wanted to do so and that the Union still desired an arrangement under which certain employees would enter the plant, as described above, in connection with the 1948 strike. Kiser commented to Bray- ton • and. Stine that their proposal, was a "fair" one, referring at least to the admittance of Steeley, and then crossed the street and delivered the message to Steeley. Steeley's answer to Kiser was "indefinite,"" according to Kiser. Steeley testified that he would have entered the plant "if it had not been for what Mr. Brayton and the other pickets said to [him] . . . in the presence of the pickets that morning." He did not testify that he was unable to enter the plant by going around instead of through the picket line. Ingram, the Respondent's attorney, testified that later that morning the Con- ciliator advised him that he, the Conciliator, was authorized and requested by Brayton to inform the Respondent that the picket line "would open up and per- mit all of the office help to enter and go to work, but that . . . no production employee should be permitted to enter the plant." The Respondent declined the offer, stating that "if any went in all must go in." The following morning employees entered the main entrance when a large number of policemen broke up 34 the picket line. The line re-formed, however, and during the rest of the week it continued to operate in the same moving circle, except for fewer pickets, and the employees entered the plant without further incident by going around the picket line under the Respondent's in- structions. The Respondent issued its discharge notices on April 11, as already stated. It did not, however, discharge all the strikers who were on the picket line at the office entrance on April 10 or even all the strikers who were in the vicinity of the picket line during the Steeley incident. 32 The General Counsel adduced testimony to the effect that Bowers also told Steeley on this occasion , "Roy, we have all the evidence we need" ; whereas Steeley and Bowers deny such testimony and their own testimony concerning Bowers' statement is to the effect that he said "it was apparent that we could not get in." 3a Kiser was unable to recall exactly when he delivered the message to Steeley, although he did remember going across the street to do so ; Stine credibly testified that Kiser "went across the street to contact [Steeley]" after receiving the proposal. Steeley did not testify at all concerning the incident As stated in the text, I accordingly find that the message to Steeley was delivered immediately upon its receipt by Kiser which in turn followed right after the Steeley incident. 94 The General Counsel contends that the Respondent violated Section 8 (a) (1) of the Act by this action against the picket line. However, I am unable to find on the basis of this record , that the conduct of the police officers is attributable to the Respondent. This particular phase of the case was insufficiently developed , even assuming arguendo the Respondent's responsibility for the police 'officers' action , to permit me to determine why the police officers took such action on April 11 and whether such action was justified under the 'circumstances. VICTOR PRODUCTS CORPORATION -531 Concluding Findings The principal disputants in the controversy under consideration here are the Respondent, with its right of access to its plant , and the striking employees, with their right to engage in picketing activities . Neither of these rights, even that of peaceful picketing with its free speech aspects , is absolute under all circumstances ; for conflicts do arise between them, as happened in the present case, and ordinarily are to be resolved on the basis of their reasonable accommodation one to the other.' Debarment arises where striking employees block entry into a plant, and the obstruction is no less real when individuals are deterred from attempting in- gress by "an effective implied threat of bodily harm . . . should they risk entering the plant." a7 Mass picketing, however, does not itself necessarily constitute debarment although the circumstance of such mass is relevant to determining the "potential or calculated restraining or coercive effect" of the pickets on nonstriking employees desiring entry 38 And a plan to debar also will not itself validly support a discharge , in the absence of overt conduct on the picket line effectuating such plan; 39 similarly , the "motives (or good in- tentions )" of pickets not to debar also are not controlling where their "words and acts" on the picket line otherwise justifies the employer 's belief that he could not enter "save through a fight." N. L. R. B. v. Perfect Circle Company, 162 F. 2d 566, 573 (C. A. 7). In the main , these are the established principles generally governing alleged debarment situations . The Respondent contends , however, that Steeley had a right to enter the plant by going through as distinguished from around the picket line, and in this connection it cites Standard Oil Company of California (El Segundo Refinery ), 91 NLRB 1540. In that recent case one Leslie became in- volved in a picket line altercation with one of the pickets when Leslie went through the picket line in question . Members Houston and Styles found in their dissent that "Leslie invited whatever `bumping or jostling' he received when, instead of walking around the picket line, he deliberately went through it and provoked Rice [the picket whose discharge was in issue] to strike him by his obscene remark to him." In concluding that Rice's conduct was unprotected, the majority observed that "we cannot agree with the theory apparently suggested by our dissenting colleagues that Leslie was under some obligation to walk around the picket line and not through it." The General Counsel claims that the Standard Oil case does not support the proposition advanced by the Respondent and that the facts of that case are in as Hughes v. Superior Court, 339 U S. 460, 464-465 ; Building Service Union v. Gazzan, 339 U. S. 532, 536-537; Teamsters Union v. Hanke, 339 U. S. 470, 474-475 as Teamsters Union v. Hanke, 339 U. S 470, 474-478; Niemotko v. Maryland, 390 U. S. 268 (see particularly the concurring opinion of Justice Frankfuzter, pp. 273-289) ; Local #1150, United Electrical, Radio & Machine Workers of America (Cory Corporation), 84 NLRB 972, 977. 37 Socony Vacuum Oil Company, 78 NLRB 1185, 1186. See also, The International Nickel Company, Inc., 77 NLRB 286, 287 (where the Board spoke in terms of a "clear and present danger of bodily harm if they [the nonstrikers] had elected to enter the plant") ; N L. R B v. Perfect Circle Company, 162 F. 2d 566, 573 (C. A. 7), 38 Local #1150, United Electrical, Radio & Machine Workers of America, et at., (Cory Corporation), 84 NLRB 972, 977. See also Standard Oil Company of California, 91 NLRB 783; Hughes v. Superior Court, 399 U. S. 460, 466. Compare Dearborn G14ss Company, 78 NLRB 891, 892, and Socony Vacuum Oil Company, 78 NLRB 11$5, 1186. 3e Standard Oil Company of California, 91 NLRB 783 (page 5, footnote 11) ; cf. Socony Vacuum Oil Company, 78 NLRB 1185, 1186. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any event distinguishable from the situation under consideration 40 The basic position of the General Counsel is that "the pickets had a right to picket in an orderly, peaceable fashion, so long as the Respondent was provided with a rea- sonable means of ingress and egress" and he also asserts that "the proper accommodation of the rights of the parties in this situation required that the Respondent not insist upon an alleged right to interfere with the picket line." Thus the General Counsel contends that the right of an employer is to enter its plant but that it does not have a right to break through a picket line where another convenient mode of ingress, by going around the line, is available at the same plant entrance. I would accept this argument were it not for the Standard Oil case, which I consider as representing a departure from the other established principles set forth above. However, the Board Members in that case joined issue on the proposition of law now advanced by the Respondent and I conclude that the majority opinion sustains that proposition. Steeley was therefore entitled to go through the picket line free of jostling, which I do not believe he could have done.41 Accordingly, I conclude that the employees on the picket line at the time of the Steeley incident were engaging in activity unprotected within the meaning of the Act as interpreted by the Standard Oil case and that their discharge by the Respondent was not dis- criminatory. I shall recommend that the complaint be dismissed as to these individuals, whose names are set forth in Appendix A. However, I am unable to find substantial trustworthy evidence that the other employees (see Ap. pendix B) named in the complaint, who also were discharged solely because of their alleged picketing activity during the Steeley incident, were on the picket line at that time 42 By discharging these employees, therefore, the Respondent violated Section 8 (a) (1) and 8 (a) (3) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in Section III, above, occurring in connection with the Respondent's operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. 90 The General Counsel also mentions the fact that the Standard Oil case was decided by a divided Board. This lack of unanimous Board action does not make the majority opinion any the less binding. 91 Stine had testified as follows at a hearing In May 1950 before the Department of Employment Security, Division of Unemployment Compensation, Baltimore, Maryland: "Sure we closed up [ranks] when he [Steeley] forced through with the rest of his gang following him. What else could happen when the picket line was revolving and some- body with a group of employees bust through the picket line. What are you going to do?" 49 The testimony placing various of these individuals on the line during the Steeley Incident was particularly unreliable ( see my observations on this matter earlier in the Report) and was otherwise lacking in the circumstantial guarantee of trustworthiness which I have attempted to apply to my findings respecting all phases of this case. 42 Montgomery Ward h Co. Inc., 90 NLRB 1244, 1245, and other cases cited in footnote 5, supra. VICTOR PRODUCTS CORPORATION 533 I shall recommend that the Respondent offer to the employees listed on Appendix B immediate and full reinstatement to their former or substantially equivalent positions" without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered by them as a result of the discrimination by payment to them of a sum of money equal to the amount they would have earned from the date of their discharge to the date of offer of reinstatement less their net earnings40 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due 48 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] J. Lawson Burner Robert S. Desmond Harry D. Hammond Charles E. Hardy Edward M. Miller Paul D. Miller Gardner L. Myers Harold N. Aycoth Howard I. Bitner Leo Bober R. C. Douglas Charles W. Fraley Marvin Gay Laurel J. Griffith Ray Holland Jesse A. Ingram Appendix A Daniel W. Phillips Edgar Rhoe Albert W. Row Daniel C Shank Ernest L. Stine Bruce O. Woodring Appendix B John T. Ingram Chester C. Jones James E. Kline Thomas B. Kunkleman George A. Kyne Oliver W. Mowen David A. Myers Joseph P. Rogers Samuel J. Rowland Appendix C NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 4' The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 05 NLRB 827. 41 Crossett Lumber Company, 8 NLRB 440, 497-8. 46 F. W. Woolworth Company, supra. 215233-53-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in, or activities on behalf of, INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS' OF AMERICA, CIO, and its AMALGAMATED LOCAL 842, or in any , other labor organization , by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT interfere with, restrain, or coerce our employees in • the exercise of their right to self-organization, to form labor organizations,. to loin or assist any labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or 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 organiza tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the following named employees immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges enjoyed and make them whole for any loss of pay suffered as a result of the discrimination against them : Harold N . Aycoth John T. Ingram Howard I. Bitner Chester C. Jones Leo Bober ( Berkeley Springs ) James E. Kline R. C. Douglas Thomas B. I!Cunkleman Charles W. Fraley George A. Kyne Marvin Gay Oliver W. Mowen Laurel J. Griffith David A. Myers Ray Holland Joseph P . Rogers Jesse A. Ingram Samuel J. Rowland VICTOR PRODUCTS CORPORATION, Employer. Dated ---------- ---------- By ---------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. CHARMAN SERVICE CORPORATION and FRANCIS X. FL ORIO. Case No. 2-CA-941. June 6,1950 Decision and Order On December 6, 1951 Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. 99 NLRB No. 95.