Bonnar-Vawter, Inc.

BONNAR-VAWTER, INC. 127 in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act, as amended. 4. By failing and refusing at all times since May 29, 1958, to bargain in good faith with Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, as amended. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.] Bonnar-Vawter, Inc. and Rockland Printing Specialties & Paper Products Union, Local 643, a/w International Printing Press- men & Assistants Union of North America and S. Pearce Holton II. Cases Nos. 1-CA-9896 and 1-CA-2926. September 29, 1960 DECISION AND ORDER On February 25, 1960, Trial Examiner John F. Funke issued 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. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Bonar-Vawter, Inc., its officers, agents, successors, and assigns, shall : i Respondent excepted only to the remedy recommended by the Trial Examiner . There- fore, in the absence of other exceptions , we adopt, pro forma, the Trial Examiner's find- ings of fact, his analysis of applicable legal precedents, as well as his legal conclusions with respect to the substantive issues of this case. We find without merit the Respond- ent's exceptions to the remedy recommended by the Trial Examiner. 129 NLRB No. 20. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in Rockland Printing Specialties & Paper Products Union, Local 643, a/w International Printing Press- men & Assistants Union of North America, or in any other labor or- ganization, by terminating or discharging any of its employees, or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment, except as permitted by the proviso to Section 8 (a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Rockland Printing Specialties & Paper Products Union, Local 643, a/w International Printing Pressmen & Assistants Union of North America, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Eleanor Robinson, Richard St. Clair, Christy Alex, and Mary Kalloch immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired by the Respondent on or after the date when the above-named employees were discharged, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary in anlyzing the amount of backpay due and the right of reinstatement under the preceding provision. (c) Post at its place of business at Rockland, Maine, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's authorized represent- ative, be posted by the Respondent immediately upon receipt thereof, 2In the event that this Order is enforced by a decree of 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." BONNAR-VAWTER, INC. 129 and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership in Rockland Printing Specialties & Paper Products Union, Local 643, a/w International Printing Pressmen & Assistants Union of North America, or any labor organization, by discriminating in respect to the hire, tenure, or other conditions of employment of any employee, except as authorized by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other 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 organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Eleanor Robinson, Richard St. Clair, Christy Alex, and Mary Kalloch immediate 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 as a result of the discrimination against them. All of our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization except 586439-61-vol. 129-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the extent that this right may be affected by an agreement in con- formity with Section 8(a) (3) of the Act. BONNAR-VAWTER, INC., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with the General Counsel, Bonnar-Vawter, Inc., herein called the Respondent or the Company, and Rockland Printing Specialties & Paper Products Union, Local 643, herein called the Union, represented, was heard before the duly designated Trial Examiner on November 9 through 13, 1959, at Rockland, Maine, upon the consolidated amended complaint of the General Counsel and the answer ,of the Respondent. Prior to the close of the hearing an informal settlement agreement was signed by the parties removing from litigation those allegations of the consolidated amended complaint relating to violations of Section 8(a)(5) and derivative violations of Section 8 (a) (1) .i On February 5, 1960, compliance with the terms of the settle- ment agreement having been effected, the parties moved for a dismissal of the afore- said sections of the complaint. This motion was granted by order of the Trial Examiner dated February 10, 1960.2 The only issues which were litigated before the Trial Examiner were whether or not Respondent violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate four employees (Case No. 1-ICA-2896), and violated Section ,8(a)(4) and (1) of the Act by discharging and refusing to reinstate another em- ployee (Case No. 1-CA-2926). Briefs were received from the Respondent and The General Counsel. Upon the basis of the entire record, and from my observation of the witness, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is,a Delaware corporation maintaining its principal office and place of business at Keene, New Hampshire . It also maintains a plant at Rockland , Maine, which is the plant involved in this proceeding. It is engaged in printing, selling, and distributing business forms and related products. In the course and conduct of its business Respondent has caused large quantities of paper and ink to be transported from points outside the State of Maine to its plant at Rockland. Re- spondent has sold and shipped from its Rockland plant to places outside the State of Maine business forms in a value in excess of $50,000 annually. I find Respondent is engaged in commerce within the meaning of the Act. 1 Counsel for the General Counsel and counsel for the Respondent are to be commended for reaching agreement on this issue. The settlement required the exercise of high professional skill and resourcefulness and is a tribute to the integrity and good faith of counsel. The result, apart from such benefit as it may have conferred on the parties, was a substantial saving in time, effort, and money to the National Labor Relations Board. 2 These dates are set forth in view of public lamentations regarding the delay between close of hearing and issuance of Intermediate Reports. The current General Counsel has joined in these lamentations See Stuart Rothman, "Time and Tide in Taft-Hartley," an address before the Industrial Relations Center and Twin City Personnel Managers Associa- tion, University of Minnesota, January 8, 1960. For a constructive analysis and study of the problem see "Report of the Advisory Panel on Labor Management Relations" sub- mitted to the Senate Committee on Labor and Public Welfare, 44 LRR 355. Caveat; precipitate baste in reaching determination is not in itself a criterion of the efficiency of the "adjudicatory function " (The proper word is "adjudicative" but literacy, too, is presumably a sacrifice to speed.) BONNAR-VAWTER, INC. II. LABOR ORGANIZATION INVOLVED 131 Rockland Printing Specialties & Paper Products Union, Local 643, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts 1. The discharge of Eleanor Robinson Eleanor Robinson was employed by the Company as an inspector on December 27, 1957. She was a member of the Union and testified that she did picket duty every day during the strike which commenced April 11, 1959. On May 21 she was doing picket duty in the road in front of the plant together with Stanley Demuth and Donna Mitchell. While they were picketing they noticed that they were being observed by Henry Bonnar, Respondent's president, from an office window. Ac- cording to Robinson's testimony they decided to have "some fun" so they buried some matchsticks in the ground with their hands. No sooner had they finished than Bonnar appeared in the doorway of the building and shouted, "That does it, that does it, you're fired." He then went back into the office (to get their names, as he testified), returned to the doorway, and shouted, "Demuth, you're fired; Mitchell, you're fired; Robinson, you're fired." On the same day the Company sent Robinson a letter advising her that she was discharged for placing nails in the company driveway.3 On cross-examination Robinson admitted that after Bonnar discharged them James W. Cartner, assistant general manager at the Keene plant, came out and picked something up and showed it to a policeman on duty at the premises. Graham Rush, Eileen Bonnar, Henry Bonnar, and James Cartner all testified to their observation of this incident. Rush, office manager and assistant to the plant manager, stated that on the morning of May 21 he was watching the picketing strikers through field glasses from his office window. He detected that the three pickets in question (the record does not indicate whether or not these were the only pickets on duty at this time but it suggests they were) were manipulating some kind of object with their toes. He focused his glasses on their toes and testified that he saw Eleanor Robinson straighten up ^a nail with her toe. The nail was in the plant driveway and would, of course, constitute a hazard to cars using the driveway. Eileen Bonnar testified that she was in Rush's office at this time and that she first saw Robinson straighten up a nail and that she called Rush's attention to it. Ac- cording to Mrs. Bonnar, Rush then looked through his glasses and verified her observation. Henry Bonnar testified that he was in Plant Manager Shrenk's office on the morn- ing of May 21 when Rush came in and told him Robinson was setting up nails in the driveway. Bonnar then took the binoculars which were in Shrenk's office and spotted some nails in the driveway where Demuth, Mitchell, and Robinson were patrolling. He then gave the binoculars to Cartner and while both were watching they saw Demuth, Mitchell, and Robinson bend over and stand nails upright with their hands. It was then that Bonnar went to the doorway of the plant and told the three that they were fired. He returned to the plant, got their names, and fired them by name Cartner testified that he was given the binoculars by Bonnar after-they had been advised by Rush as to what was taking place in the driveway. Carter corroborated Bonnar and stated that he saw Demuth, Mitchell, and Robinson placing, nails in the driveway. After Bonnar discharged them Cartner went out into the driveway and picked up some nails. Cary Thyng, a State trooper, testified that he was on duty at the Bonnar-Vawter plant on May 21. He observed Demuth, Mitchell, and Robinson picketing on that day. He testified that he saw a redheaded girl (identified at the hearing by Thyng as Mitchell) hold up a match and that then the three of them (Demuth, Mitchell, and Robinson) went over and set the match upright in a small mound of earth. At the same time he observed Bonnar watching them through the windows with binoculars and testified that Bonnar shortly came out and fired them. Mitchell then came over to him and showed him either a match or several matches and remarked, "That's pretty good." 8 General Counsel's Exhibit No. 8. Neither Demuth nor Mitchell received notification of discharge because the Company's records indicated they had been permanently replaced when this Incident occurred. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This concludes the testimony with respect to Robinson's discharge. Neither Demuth nor Mitchell was called as a witness. In resolving the conflict in credibility it should be stated that none of the witnesses to this incident gave any appearance of being untruthful nor of deliberately giving false testimony at the hearing.4 Not without some apprehension that I may be in error, I find as a fact that the objects placed in the driveway by Robinson, either with her feet or her hands, were matches and not nails. This conclusion is reached because Robinson appeared to be fully as credible as Respondent's witnesses and yet Robinson was the one person who actually knew what objects she placed in the driveway. There is certainly some margin for error in the testimony of Respondent's witnesses as to what they observed, even through glasses. These witnesses would naturally assume that the objects the pickets were so carefully arranging were nails (the record suggests that this form of harassment had been practiced during the strike) and such assumption, amounting perhaps to conviction, may well have led them into error. To say that this involves speculation on the part of the Trial Examiner is quite true but any resolution of credibility where contrary testimony is given by apparently credible witnesses and the facts cannot be determined by in- dependent evidence involves speculation. All the hearing officer can do is give his best guess based on his appraisal of the witnesses and the circumstances. To find otherwise in this instance would require a finding that Robinson deliberately lied on the stand and I am not convinced that she did. I am also influenced by the testimony of State Trooper Thyng, the only disinterested witness. Thyng was not only a credible witness but an intelligent one and I credit his testimony that he saw the pickets set up matches in the driveway. In reaching a determination of this issue I have considered the fact that neither Demuth nor Mitchell was called by the General Counsel and I accept the inference that Mitchell's testimony would not have been favorable. (Mitchell was present at the hearing.) However, whatever Mitchell may have done, I am confining my find- ing to what Robinson did and I do not find that she placed any nails in the driveway. In so finding it is not necessary to discredit the testimony of Cartner that he found nails in the driveway immediately after the discharges were effected. I simply find that Robinson did not place them there. 2. The discharges of St. Clair, Alex, and Kalloch Richard St. Clair, Christy Alex, and Mary Kalloch were all discharged on May 27, 1959. All were union members who participated in the strike. All were discharged for the same alleged offense-parking their cars so that a portion of or all of their cars intruded on company property at its rear property line. At the rear of the Company's plant and adjacent on one side to its loading plat- form is a sizable lot or field. (It was estimated that the distance from the Railroad Avenue border of this lot to the loading platform was approximately 90 yards. The distance laterally, from the railroad tracks on one side to the adjacent but not clearly defined property line on the other, would not be substantially less.) This field or lot is not manicured. Grass and weeds have been allowed to grow, the ground is uneven, and the lot is neither fenced nor marked by other fixed and discernible boundaries.5 While the field is bordered on three sides by physical properties, i.e., the company plant, the railroad tracks, and Railroad Avenue,6 there is no clear indication exactly where the company property line meets either the railroad tracks or Railroad Avenue. Railroad Avenue itself is not a clearly defined roadway and the only property markings which indicated the street line are two stakes in the ground, one near the railroad tracks and one near the adjacent property. According to Henry Bonnar these stakes were difficult to see during May because 4I specifically reject the contention of the General Counsel that the testimony of Eileen Bonnar was incredible. This contention was advanced because, although Mrs. Bonnar testified that she observed Robinson manipulating a nail with her toes, she could not identify the type of shoes Robinson was wearing. Obviously Mrs. Bonnar's attention was concentrated on what Robinson was doing with her foot and not on what she was wearing on it. Mrs. Bonnar was an exceptionally forthright and willing witness, imbued with a natural ardor for the Company's cause. 6 At the request of the General Counsel and in the presence of the parties or their repre- sentatives, the Trial Examiner visited the field and his descriptions, observations, and findings, where related, are based on this personal inspection. 6 There Is some confusion as to whether the roadway, which runs parallel to the rear lot line and toward the railroad tracks, is Railroad Avenue or Luce Avenue. For identifi- cation it will be called Railroad Avenue in this report. BONNAR-VAWTER, INC. 133 the grass and weeds had grown high and the stakes were covered with excrement. (Bonnar did not define what he meant by excrement .) From Railroad Avenue to the rear loading platform of the Company ran what Bonnar referred to as a pur- ported driveway which was used as a means of access to the platform by delivery vehicles. (It does not appear that this use was more than sporadic in view of the railroad access ) This is the area in which the trespass took place. St. Clair and Alex both engaged in picketing at Railroad Avenue during the strike. It was their regular assignment and they regularly parked their cars on Railroad Avenue adjacent to the Respondent's property. St. Clair, a voluble wit- ness, testified that about 9:30 a.m. on May 27 he was standing behind his car when he noticed that Henry Bonnar had approached to within 10 feet of him. Bonnar was accompanied by a maintenance employee identified as Kelley. Neither spoke to St. Clair but Bonnar went to the stake at the railroad side of the field and Kelley went to the opposite stake. The men then took a "sight" on St. Clair's car. Bonnar then walked up to St. Clair and asked him if that was his car. St. Clair admitted it was, whereupon Bonnar stated, "You're on my property, you are fired, you yellow- bellied son-of-a-gun." St. Clair testified that he then made his own check and determined his car was not on company property . Then Cartner came up and Bonnar asked Cartner to verify the check. St. Clair went with Cartner and stated that Cartner was pleasant to him and told him to forget the (picket ) lines and all would be forgotten. St. Clair did not testify whether or not the check made with Cartner showed who was in error. Henry Bonnar, also a credible witness, testified that prior to the discharge of St. Clair and Alex he had on numerous occasions loaded and unloaded freight cars at the loading platform at the rear of the company plant. On these occasions he had observed both St. Clair and Alex picketing on company property at the Railroad Avenue end of the field. He had ordered them to stay off company property but testified they had not obeyed. He also testified that they had directed derogatory remarks to him and that these remarks included profanity and obscenity and that he replied with equal vehemence? On the morning of May 27 Bonnar was engaged in loading on the platform when he saw St. Clair at the end of the field. (This would be at Railroad Avenue.) He took Walter Kelley and went to the positions of the property stakes where he and Kelley took the sight on St Clair's car. Bonnar testified that the front fender of the car was over the line "cockeyed like" so that a good deal of the car was over. ( Bonnar amplified this statement and said that not only the fender but the wheel under it was over the line. ) 8 He then went to St. Clair and told him he was discharged. Admittedly no request was made by Bonnar to St. Clair to have the car moved prior to his discharge . St. Clair and Bonnar exchanged some words and then, according to Bonnar , Cartner came out and made a second check and verified Bonnar's observation that the car was over the line. Gartner told St. Clair to move his car and St. Clair obeyed without argu- ment. This was the discharge of St. Clair. Over the objection of the General Counsel testimony was admitted concerning previous conduct on the part of St. Clair during the strike . It was admitted because counsel for the Respondent contended that the "trespass " by St. Clair was merely a last act of provocation culminating prior misconduct which justified the discharge. George Robinson, Ralph Robinson, and Police Officer Manseau of the Rockland City police force all testified that on April 17 when George was driving Ralph to work the car was stopped at the picket line. St. Clair , according to these witnesses, called the occupants some names including "scab" and then spat in George Robinson's face. Manseau then seized St . Clair, took him in custody, and brought him to the police station where he was released without any charge having been filed against him. Ralph Robinson reported this incident to Henry Bonnar. Robinson could not recall what comment, if any, Bonnar made but on April 18 Plant Manager A. J. Shrenk addressed a letter to Albert Severson , president of Local 643 , advising him that St. Clair had spat in the face of a newly hired employee and that "any 7 Bonnar was a well-built man of obvious physical strength and vigor. He gave no impression that he would be intimidated by threats or that he would be reluctant to engage in physical combat. He did state that no threats of physical violence were directed to him. I find that the exchange of epithets between Bonnar and the pickets was char- acteristic of strike situations and no more . No finding of misconduct on the part of either St. Clair or Alex can be made on this testimony by Bonnar. 6 On the basis of Bonnar's own testimony I can find that no more than one wheel of the car was on company property. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD similar action on the part of any striking employee will result in his or her immedi- ate discharge and removed [sic] from the seniority list." 9 St. Clair denied spitting at the Robinsons or at their car and testified that the only time he was escorted to the police station by Manseau was when he was struck by a car crossing the picket line and protested so loudly that Manseau took him down for loud talking . He was released by Police Chief Benner after Benner, according to St. Clair, admonished Manseau. St . Clair's testimony with respect to his visit to the police station is in direct conflict with that of Manseau since St. Clair stated that it took place after he had been struck by a car while doing picket duty and had protested so vigorously that Manseau took him to the police station for "loud talking." This conflict in testimony , while totally irrelevant to the issue of discharge, I resolve in favor of St. Clair. Manseau was an uncertain witness and did not im- press me as having a clear recollection of the circumstances under which he took St. Clair into custody . The issue between the Robinsons and St. Clair I resolve in favor of the Robinsons but, in view of the Company 's letter of warning and subse- quent testimony, I find it, too, irrelevant to the issue of discharge. Two other incidents were introduced by Respondent in its effort to disqualify St. Clair from employment. Roy Bickford and Kenneth Spear , hired as replace- ments during the strike, testified that on a morning when they were about to enter the explosion room at the rear loading platform a stone was thrown on the platform. Neither saw the stone thrown but they did see St. Clair and Alex in the area of the railroad tracks and saw no one else in the area of the platform. Since neither saw the stone thrown it is impossible to credit their speculation , however reasonable, against the credited denials of Alex and St. Clair that either threw the stone. (It is not unlikely that the thrower took to cover after throwing it.) There is nothing to indicate that this incident was called to the attention of management prior to the discharge of St. Clair and Alex. Spears testified to a second incident involving St. Clair and Alex and stone- throwing . He stated that one morning as he was driving his own truck from Railroad Avenue to the plant he saw St. Clair and Alex pick up stones and later heard a stone hit his truck. He did not see who threw the stone . There is nothing in the record to show that this incident, if it occurred, was called to the attention of management until after the discharges were effected . Respondent did not at any time prior to the hearing, so far as this record shows , assert that these stone-throwing incidents motivated , even in part, the discharge of St. Clair or Alex. Again, as to this incident, I do not accept the inferential and speculative testimony of Spear against the denials of St. Clair and Alex. Lest this be insufficiently clear,10 I make an affirmative finding that neither St . Clair nor Alex participated in the stone throwing incidents as alleged by Respondent. In evaluating the allegations of past misconduct made by Respondent against St. Clair, I accept the testimony of St. Clair that after the alleged spitting incident Waters, a striker who returned to work more than 1 week after the strike , called upon him at his (St . Clair's) home and asked him to go back to work and said that Shrenk wanted him back. The next night , after talking to Shrenk, Waters returned and told St. Clair that the Company was not going to settle and that it would hold out until there were enough employees to vote the Union out. The time when these overtures were made by Waters to St. Clair is conclusively fixed as after the spitting incident since the Company 's letter to Severson fixes this date as April 17. The strike commenced April 11. St. Clair stated that Waiters was "very strong" the first week and later returned and that it was after he returned that he visited St. Clair with the message that Shrenk wanted him back." Waters, available to the Respondent at the time of the hearing, was not called as a witness and I indulge in the usual presumption that this testimony would not have been favorable to Respond- ent. I find that after the spitting incident the Respondent was not only willing but anxious to reemploy St . Clair and that it made him an offer of reemployment. Apart from the suspicion that either he or St. Clair was involved in stone-throwing incidents , no allegation of any kind of misconduct was directed to Alex.12 His 'Respondent's Exhibit No 1. Respondent appears to have adopted the common law rule that each dog is entitled to its first bite and to have allowed the pickets their first spit. io In a recent case, Thayer, Inc of Virginia, 125 NLRB 222, a Board m^•ority found that the Trial Examiner made a finding of misconduct on the part of a striker ; Member Fanning held that no such finding was made. That case will be discussed further, snfra. 11 On the basis of St. Clair 's testimony and the testimony of Holton , infra, I find that Waters was an agent for the Respondent in its efforts to break the strike 12 The statement in the Respondent's brief that Alex was discharged only after he had compiled a record nearly as bad as St. Clair finds no support in the record unless it be BONNAR-VAWTER, INC. 135 own testimony with respect to his discharge is that he drove his car down Railroad Avenue as usual on May 27. He parked it on the side of Railroad Avenue. He and St. Clair, so he testified, customarily sat in their cars and got out to picket only when persons or vehicles approached the rear entrance to the plant. About 11 o'clock Bonnar and Carter came out to his car and Bonnar told him he was on company property. Alex denied that he was and Bonnar repeated the charge and told him he was fired. Alex then moved his car. Alex credibly testified that he regularly parked his car at a similar position on Railroad Avenue or its adjacent area and had never previously been warned that he was on company property or told to get off. Subsequently he received a letter notifying him that he had been discharged for this trespass. No other reason was assigned.13 Alex did admit that he knew that St. Clair had been discharged earlier the same morning for allegedly parking over the company's property line. He did testify that his car was not closer to the company line than was St. Clair's although at this time St. Clair had moved his own car to get off, or perhaps further off, company property. Bonnar's testimony is that after discharging St. Clair he went to town and upon his return saw two cars parked on what he believed to be his property. These cars belonged to Harkins, another striker, and Alex. Both were ordered to move their cars and Alex was discharged for trespassing. (Harkins was not discharged because he had been permanently replaced.) It is clear from Bonnar's testimony that Alex was discharged without warning for parking his car so that (according to Bonnar's observation) some portion of it extended over the intangible and unmarked property line and for no other reason. About 10:15 that same morning Mary Kalloch, another striker, parked her car in the area. Kalloch was not assigned to picket duty at the rear of the plant and usually parked in front of the plant. On the 27th, however, she testified that she parked on Railroad Avenue next to St. Clair. She had been there for awhile (St. Clair and Harkins were in the car with her) when Bonnar and Cartner drove up and Bonnar got out and checked the stakes and then came over to her and told her she was discharged for trespassing. She likewise had never been warned against parking near or over the company line. She received her discharge letter the next day. Although there was testimony that she had been reprimanded by Shrenk while on picket duty and had been accused of placing nails on company property, there is no evidence that she did in fact place any nails on company property or even that such suspicion or the reprimand was justified. In view of her denial, I find that she never did place nails on company property. Bonnar's testimony is that when he heard another car was on his property that morning he drove out with Cartner, saw Kalloch in her car, estimated that it was on his property by a full length, asked her her name, and discharged her. She then drove off. While there is some confusion in the record as to the time sequence in which these employees were discharged the sequence is immaterial. Summarizing the facts with respect to these discharges, I find no substantial discrepancy except as to the fact or extent of trespass between the witnesses for Respondent and those of the General Counsel. These three employees were dis- charged for allegedly parking their cars over the company's property line. In view of the nature and condition of the property, the lack of a fixed or discernible boundary line, the fact that the parked cars did not impede access to the plant, and the established fact that St. Clair and Alex had been parking on the Railroad Avenue line for some weeks, I find that the extent to which they may have trespassed on the company line on that particular morning not too material to the issue. I accept as fact that a portion of their cars may have been over the property line but, as the record establishes, it was necesstary to take a sight between two not easily found stakes to determine that fact. That the employees were admittedly discharged without warning and without any prior request to remove their cars from company property is a fact of significance in evaluating the discharges. 3. The story of "Golden Boy" The General Counsel alleged that Samuel Pearce Holton H was discharged by Respondent on July 15, 1959, for giving testimony to two Board agents the preceding day. Holton testified that he was employed by Respondent on April 13, 2 days after the strike began. At the time of his employment Holton advised the Bonnars that assumed that all strikers and pickets had, in the eyes of Respondent, earned a bad record from the simple fact of striking and picketing. 13 General Counsel's Exhibit No. 4. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had a personal grievance against unions, presumably to convince them that he was not strikebreaking merely for pay but also as a dedicated opponent of labor organizations. (His grievance originated in denial of employment with a union orchestra as a result of playing in nonunion orchestras.) At the same time he advised a friend of his, who was a member of the Union, that he was not taking the job to help break the Union and he kept the friend advised of the efforts the Company was making, and in which he was a participant, to break the strike and the Union. From the beginning he sought to make himself valuable to both sides. Holton had become friendly with the Bonnars prior to his employment through meetings with them at the Rockland Hotel, where the Bonnars stayed while in town. Holton and a friend visited the bar and coffee shop of the hotel 5 nights a week, from 7 until 9, while they waited for a waitress friend of Holton's to finish work. Holton's meetings with the Bonnars continued after his employment and he cultivated and promoted their friendship. During conversations at the hotel Mrs. Bonnar told Holton that they (the Bonnars) would never give in to the Union and that Mr. Bonnar could close the plant and lease the space to the railroad. Holton became a confidant of the Bonnars in their dispute with the Union, his friendship with them was observed and noted by other employees early in his employment, and he acquired the nickname "Golden Boy" because of his favored status within the plant. According to Holton, he had been employed about 1 month when Mrs. Bonnar spoke to him at his bench in the bindery. She explained to him a method for getting rid of the Union which required the employees to file a petition for a decertification election with the National Labor Relations Board. She asked Holton to draft such a petition and have it signed by the employees and, knowing that he was seeking funds with which to continue his college education,14 assured him that if the Company could rid itself of the Union he "need not worry about college." On the strength of this rather ambiguous offer of assistance Holton agreed to draft and circulate such a petition. For the purposes of indoctrination and practical guidance Mrs. Bonnar gave him a copy of the May 14, 1959, issue of "The Reporter" which con- tained an article entitled "Three Years of the O'Sullivan Formula." 15 That weekend Holton prepared a decertification petition, brought it to the plant on Monday, and had it signed by the other employees.16 According to Holton it was circulated openly during working hours and signed by four supervisors. The foreword of the petition falsely stated that it originated and was formulated exclusively within the group of employees. It was delivered by Holton to Mrs. Bonnar who returned it to him later that day. About 1 week later Mrs. Bonnar told Holton that she had been advised that it sounded too legalistic and that he was to draft another petition which "should sound like the average John Q Public factory employee." This he did, then circulated it and placed it in his desk for 14 At the time of the hearing Holton was 24 years of age. He had attended Hebron Academy, St. Paul's School, Tabor Academy, and had taken a prelaw course at Notre Dame He had transferred to Northeastern University and, after Interruption, had re- entered Northeastern and was attending there at the time of the hearing 15 The O'Sullivan formula, as described In the article, is a simple and familiar strike- breaking technique which utilizes the election provisions of the Act and the Board's Curtis decision (Drivers, Chauffeurs, and Helpers Local Union 639, etc (Curtis Brothers, Inc ), 119 NLRB 232, reversed 274 F 2d 551 (C A.D C.), affd 362 U S 274) to terminate all bargaining obligations and strike activity. Briefly, as soon as the struck employer can hire a representative group of permanent replacements for the economic strikers he peti- tions for an election under Section 9(c) (1) (B) of the Act. Prior to the amendments which became effective November 13, 1959, employees on strike who were not entitled to reinstatement were not eligible to vote in such an election With the replacements voting and the replaced strikers ineligible to vote the employer who had mastered sixth grade arithmetic could estimate the proper time for filing the petition. Defeat for the Union at such an election would then be assured, the employer's obligation to bargain would be terminated, and he could, under Curtis, apply for a cease-and-desist order against all furthor picketing and boycott activity This is the strategy outlined in the article and followed by the employer so successfully in the O'Sullivan case See United Rubber, Cork, Linoleum and Plastic Workers of America. AFL-CIO, et al. (0'Sullia,an Rubber Corporation), 121 NLRB 1439, enfd. 269 F 2d 694 (CA. 4). The effect of the amend- ment to the Act which provides that "employees engaged in an economic strike who are not entitled to reinstatement are eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of the Act in any election conducted within 12 months after the commencement of the strike" will not be known until the Board determines those regulations. 11 General Counsel's Exhibit No. 10. BONNAR-VAWTER, INC. 137 safekeeping On June 25 he was again approached by Mrs. Bonnar who told him that the petition should be forwarded posthaste to Boston. (The Regional Office of the National Labor Relations Board is located in Boston.) Holton could not find the second petition so he drafted a third one and had it signed. He had by this time been told that it should not be signed by supervisors so their names no longer appeared. The petition was then given to two employees, Wesley Waters 17 and Douglas Blodgett, to take to Boston. According to Holton, Waters was fully aware of the Respondent's interest in and instigation of the petition since he and Waters had discussed it many times, but Blodgett appears to have been innocent of such knowledge. Holton assured both Waters and Blodgett that they would be paid for their expenses and their time and testified that he was so authorized by Mrs. Bonnar. Holton, who needed little guidance by this time, prepared a box bearing the legend "Send the Petition to Boston" and took it from bench to bench soliciting contributions from the other employees. (Between $10 and $12 was collected.) Holton then placed the box at .the rear door of the plant as a mute applicant for further contributions. Later Plant Manager Shrenk told him to remove the box since no collections were permitted in the plant. About 4 p.m. the next day Holton was called to the office where Waters was speaking to Bonnar and telling him that the petition had been rejected by the Board's Regional Office because it was not dated. The indefatigable Holton then drafted another petition, had it signed by the employees and dated and sent it by registered mail to Boston 18 Holton now took the "mission" money and gave it to Waters and Blodgett for their traveling expenses. About 1 week later Waters asked him for reimburse- ment for the time lost and Holton gave each of them his personal check, one to Waters for $23.60 and one to Blodgett for $24. He then went to Mrs . Bonnar to seek reimbursement for himself but first prepared a bill to himself on the billing of "Bill's Texaco Service" for repairs to Mrs. Bonnar's car. The purpose of this legerdemain was to establish, in the event of a Board investigation, that Mrs. Bonnar was merely reimbursing Holton for repairs to her car. The ingenious Holton suggested to her that the "repairs" be attributed to damage caused by sugar placed in the gas tank by the strikers. Mrs. Bonnar, for reasons not disclosed on the record, did not reimburse him or agree to participate in this chicanery. A day or two later Blodgett came to Holton and returned the check for $24 and stated that he did not want any record of reimbursement from Holton, but accepted $24 in cash for the check. The next day both Waters and Blodgett gave him back cash for the money received from him for time lost and Waters told him that Bonnar had given him "hell" for taking the money.19 This concludes the history of the decertification petition and Holton's part in it. On July 14 Board agents investigating the unfair labor practice charges filed in Case No. 1-CA-2896 requested permission of Bonnar to talk to Holton. Per- mission was granted and he was interviewed in the afternoon at a cafeteria and did not return to work. When he reported to work the next day he was given a written notice by George Kacic, his foreman, stating that he was displeased at Holton's attendance and reprimanding him for his absence the preceding afternoon 20 Holton told Kacic he had been given permission to take off and this was checked and verified by Kacic. Later that day a load of carbon came in which Holton checked and stacked. Another load came in which he unloaded and then resumed reading 17 Waters Is the employee who solicited the return to work of St. Clair. 18 This petition was ultimately dismissed by the Regional Director 10 Waters had cashed his check , however, and it was introduced as General Counsel's Exhibit No. 12. ° General Counsel's Exhibit No 15. Holton's attendance record for the term of his employment was introduced by the General Counsel to show the privileges he enjoyed until he testified before the Board agents. (General Counsel's Exhibit No 14.) Sum- marizing, the record shows 11/. days' absence in May and 3 days of tardiness, unexcused. In June he had 21/2 days of absence which were excused and 2 days which were not He was tardy five times and left 1 hour before quitting time on another occasion In July he was absent for one-half day which was excused because he called In to say his mother was sick, yet he testified at the hearing that he had not spoken to his mother for 14 months and that she had Issued legal process against him. He was absent another one-half day to go sailing and another one-half day to acquire a suntan. He was late on four occasions during July although employed only until July 15. In addition he ad- mitted that on one occasion he was reprimanded by Shrenk for sleeping in the paper bin and was caught sleeping on the job twice after that. Such privileges as he thought he enjoyed by reason of his favored status appear to have been exercised to the full. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a magazine, a pursuit which appears to have been interrupted only by the arrival of the two loads of carbon . Kacic and Martin, a supervisor, came upon him while reading and asked him if he had any work to do. Holton truthfully replied that he had the second load of carbon to stack, was told to do it ,,and replied that he would "in a second." He then resumed reading. Kacic came back while he was still reading and told him he was fired . He went to the front office and before leaving the plant saw Mr. Bonnar who asked him why he had tried to get fired . He replied that he "didn't try to get fired" and there was no further conversation. Josephine Robbins, a credible witness, was employed during the strike. She testified that on the afternoon when Holton was being questioned by Board agents her forelady, Bernice Redman,21 told her that she did not want her (Robbins) to speak to Holton because "he was the rat that sold us out to the union ." When asked what Holton had done Redman replied that he had "squealed" about the petition. Redman also told Robbins that the Company would get rid of Holton at the first opportunity. That night Robbins met Holton downtown (the fact of meeting is corroborated by Holton ) and told him what she had heard. Later she talked to Waters who told her that he was sure it was Holton who had given the Board agents information about the petition since only Holton, Waters, and the Bonnars knew the facts and neither he nor the Bonnars had revealed them. Neither Redman nor Waters was called as a witness so the testimony of Robbins is uncontradicted. Robbins also testified that Holton enjoyed a special status in the plant and that he did no work. She stated he was popular with the other employees , testimony which casts grave doubt upon the merit in the reputation New Englanders have enjoyed as shrewd judges of character. Holton admitted that from the start of his employment he tried to be familiar with the actions of both the Company and the Union in the course of the dispute. He stated that his purpose in paying Waters and Blodgett by check was to have a record of these payments for such profit or use as he might make of it. He fore- saw the day when a possible investigation might take place and such evidence might have substantial cash value for him. After his discharge by the Respondent he concluded that he could no longer do business with the Bonnars. A. Alan Grossman, attorney for the Union , credibly testified that Holton called at his house one night and in the course of general conversation mentioned that he had some information which would be of value to the Union. He added that he was interested in studying law 22 and needed tuition money. Before he could advise Grossman what the information was Grossman told him that the Union was not interested in purchasing evidence but in getting the facts . Holton then stated that he had in his possession a check drawn on a Philadelphia bank which could be very important 23 Grossman gave Holton a brief lecture on the ethics of the legal profession and made no offer on behalf of the Union for such information as Holton was offering for sale. Holton's initial venture in labor-management relations concluded with the filing of the charge herein and his appearance as a witness. B. Conclusions 1. The discharge of Robinson Having found that Eleanor Robinson was guilty of no more serious offense than placing matchsticks in her Employer's driveway, it would appear that her dis- charge was not for misconduct but for engaging in concerted activity protected by Section 7 of the Act . As such it violated Section 8(a)(3) of the Act 24 This is true despite the fact that the Employer had an honest belief that Robinson had placed nails in the driveway since it is affirmatively established on the record in this case that Robinson did not engage in such misconduct 25 Counsel for the Respondent asserts in his brief that even if the objects were matchsticks her actions "were intended to arouse suspicion and fear in management 2Tt was stimilated that Redman was a supervisor within the meaning of Section 2(11). Holton testified that as a result of the experience gained during the strike he had started a treatise on labor law. 21 This was the check for $23 60 which he had given to Waters and which was drawn on a Philadelphia bank, a circumstance not explained in the record. 24 N L R. B v. Remington Rand, Inc. 130 F. 2d 919, 927 , 928 (CA. 2) ; Home Beneficial Life Insurance Company, Inc. v N L R B , 159 F 2d 280, 284, 285 (C A 4) 25 See Rubin Bros Footwear, Inc , 99 NLRB 610; N L.R B. v Industrial Cotton Mills, 208 F 2d 87 (C.A 4), cert. denied 347 U.S 935. The latter case bears close resemblance to the instant case since the misconduct alleged was due to the employer 's mistaken belief that the dischargee had placed tacks in the street. BONNAR-VAWTER, INC. 139 that her conduct would have harmful consequences" and that it "was in utter disregard of her duty to her employer and fully warranted her discharge." Implicit in this argument, which is unaccompanied by a citation of authority, is the theory that employees on strike owe a primary duty to management to shield it from harassment and to serve its interests . This is not the law. The mere acts of striking and picketing are intended to arouse fear in management that the conse- quences may be harmful and are in derogation of the duties employees owe their employer. Circumscribed though they have been by legislation and decision, strik- ing and picketing are not in themselves unlawful . A study of Board and court de- cisions has been made in search of support for Respondent 's contention. Since the work has been done some of the leading cases will be reviewed for such clarification or confusion as they may provide for future litigants and Trial Examiners confronted with the problems related to discharge and reinstatement of strikers. The leading case in the First Circuit Court of Appeals ( wherein the instant strike took place), is H. N. Thayer Company 26 The Board therein held that an employer: is justified in discharging or refusing to reinstate employees who use force, violence and physical obstruction or threats thereof in an attempt to prevent employees desiring to do so from entering or leaving the employer's premises. The Board then reviewed the specific allegations of misconduct offered as grounds for denial of reinstatement and affirmed the Trial Examiner in holding that the following conduct did not warrant denial : ( 1) Swearing at an employee's husband in the presence of the employee; ( 2) threatening to "get" an employee, to "fix" an employee, telling a supervisory employee that it would be "too bad" if he took out a truck, telling an employee "this is the last time, keep the hell way from there [the plant]," telling an employee "you have heard unpleasant things that happened to some of the fellows that wouldn't join [the union] and wouldn't want anything like that to happen to you," shaking a fist at an employee, threatening to "get" a female employee (the threat was made by a male employee ); ( 3) spitting in the face of an employee passing in a car; (4) offering to fight an employee ; ( 5) making obscene gestures and comments and directing vile remarks to female employees ; ( 6) cursing and jostling an employee as he entered the plant (the physical restraint was found to be only temporary); (7) burying a stick with an upright nail in the street gutter; (8) banging on the windows of cars entering the plant and threatening to punch an employee in the nose if he did not close the window; and (9 ) throwing a broken bottle into a driveway (reversing the Trial Examiner on this point ). All of these findings were affirmed by the First Circuit Court of Appeals which remanded for consideration eight other incidents which it found coercive in nature and calculated to instill fear of physical harm in nonstrikers.27 Neither the Trial Examiner (except as to the bottle-throwing), the Board, nor the court found the threats or conduct set forth above constituted coercion or misconduct sufficient to justify denial of reinstatement. In Kansas Milling 28 the Board held the following six specific instances of alleged unlawful or improper conduct did not justify denial of reinstatement : (1) Delib- erately ramming and damaging the car of a nonstriker , an action for which the local court imposed a $50 fine; (2) throwing a rock at a company truck; ( 3) indulg- ing in violent language; (4) engaging in a fight with a nonstriker ; (5) inducing train- men not to take a train on company property; and (6 ) hanging an unfair sign on a car and driving through Wichita. The courts have been in agreement with the Board's realistic approach to picket line conduct. In Republic Steel Corporation v. N.L.R.B., 107 F. 2d 472 (C.A. 3), the court stated: We think it must be conceded, however, that some disorder is unfortunately quite usual in any extensive or long drawn out strike . A strike is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are stirred to the depths. Rising passions call forth hot words. Hot words lead to blows on the picket line. The transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when 2e 99 NLRB 1122, enfd. In part and remanded in part 213 F. 2d 748, cert denied 348 U S. 883 21 The Board accepted the remand and, with Members Murdock and Peterson dissenting, concluded that the reinstatement of the strikers involved in the eight incidents specified by the court would not effectuate the purposes of the Act (115 NLRB 1591.) 28 Kansas Milling Company , 86 NLRB 925 , remanded on other grounds but specifically affirmed as to reinstatement 185 F. 2d 413 (CA 10). 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cool heads direct the fight. Violence of this nature, however much it is to be regretted, must have been in the contemplation of the Congress when it provided in Section 13 of the Act . . . that nothing therein be construed so as to interfere with or impede or diminish in any way the right to strike. If this were not so, the rights to be afforded to employees by the Act would indeed be illusory. In N.L.R.B. v. Stackpole Carbon Company, 105, F. 2d 167 (C.A. 3), the court stated: We cannot conclude that rights given to employees under the National Labor Relations Act are destroyed because of violence of a type as common to labor disputes as a fistfight on the picket line. In N.L.R B. v. Illinois Tool Works, 153 F. 2d 811, the Court of Appeals of the Seventh Circuit stated: courts have recognized that a distinction is to be drawn between cases where employees engaged in concerted activities exceed the bounds of lawful conduct in "a moment of animal exuberance" (Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293, . . .), or in a manner not activated by improper motives, and those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service, cf. N.L.R.B., v. Fansteel Metallurgical Corp., supra [306 U.S. 240], and Southern Steamship Co. V. N.L.R.B., 316, U.S. 31, . . . and that it is only in the latter type of cases that the courts find that the protection of the right of employees to full freedom in self-organizational activity should be subordinated to the vindication of the interests of society as a whole. The Board and the courts have been in clear agreement that strike activity protected by Section 7, although it may involve threats, name calling, profanity, and fisticuffs, will not subject the striker to discharge or disqualify him from rein- statement. Even where the action of the strikers involves coercion and restraint and therefore is removed from the shield of Section 7, the Board has been enjoined to consider whether or not reinstatement would effectuate the policies of the Act. In its remand of the Thayer case, supra, the court stated, page 756: Certain strikers, however, participated in activities which we find were co- ercive, and therefore not within the scope of Section 7. The trial examiner, in recommending the reinstatement of such strikers, took into consideration the fact that "the strike resulted from the flagrant unfair labor practices of Re- spondent Companies." This seems perfectly proper-not in justifying the employees' conduct or in concluding that their action was protected under Section 7-but in deciding whether or not their discharge was "for cause" and whether their reinstatement would effectuate the policies of the Act. The Board, as we have noted, made reinstatement turn exclusively on whether the employees' conduct was within Section 7. It therefore apparently dis- regarded, and properly, under its approach, the fact that the strike was touched off by an unfair labor practice. Since we disagree with the Board on some of these individual incidents, we shall remand when we disagree, with instructions that the Board decide whether under the circumstances there was cause for the respondents' refusal to rehire particular strikers involved in the non-Section 7 activity, and if not whether reinstatement of these employees would effectuate the policies of the Act. Thus, although the strikers were found guilty of participation in an unfair labor practice, it was left for the Board to determine whether their discharge was for this activity or for discriminatory reasons. If the latter the Board was to find whether or not reinstatement, in spite of the unlawful conduct, would effectuate the purposes of the Act. (The Board denied reinstatement, see footnote 27.) The Fourth Circuit Court of Appeals, however, has imposed a limitation upon what it conceded to be a justifiable tolerance for name calling extended by the Board to strike situations. In modifying the Board's order in Longview Furniture 29 it stated this exception and its reasons for denying reinstatement to certain strikers in the following language, pages 275, 276: We agree with the Board that reinstatement is not to be denied striking employees because of ordinary incidents of the maintenance of a picket line or the use of rude language arising out of the feelings thereby aroused. We do not think, however, that anything in the act requires or contemplates the re- instatement of employees who have banded together in hurling profane, obscene 21 N.L.R.B. v. Longview Furniture Company, 206 F. 2d 274, enfg. as mod. 100 NLRB 301. BONNAR-VAWTBR, INC. 141 and insulting epithets at employees who are attempting to work, in an effort to degrade and humiliate them publicly and prevent their working. To get into a quarrel in the course of an argument on the picket line and use unseemly language is not ordinarily a matter which would justify discharge or the denial of reinstatement; but to combine with others to use profane and indecent language in an attempt to humiliate those who are attempting to work and thus to prevent their working is a very different thing and falls, we think, within the principle laid down by this court in N.L.R.B. v. Kelco Corporation, 4 Cir., 178 F. 2d 578, and by the Supreme Court in N.L.R.B. v. Fansteel Metallurgical Corp., 306 U,S. 240, . . . and Southern Steamship Co. v. N.L.R.B., 316 U.S. 31. . . . [Emphasis supplied.] In accepting the remand the Board applied "the principle laid down by the Court in its decision as the rule of law for this case only." It emphasized that the remand showed unmistakably that the court adhered to the Board's long-established prin- ciple that unseemly language on the picket line does not deprive a striker of the right to reinstatement. (110 NLRB 1734, 1738.) Allowing for the distinction between concerted and individual name calling made by the Fourth Circuit Court of Appeals, the law at this point seems both settled and sound. An early cleavage was provided by the Board itself in Efco Manu- facturing.30 In that case it sustained the Trial Examiner's finding that the calling of a name so foul as to be unmentionable 31 disqualified a striker from reinstatement. Member Murdock dissented on the ground that he would not draw a distinction be- tween profanity which was permissible and which was not permissible. In the same case, however, the Board affirmed the Trial Examiner in holding that another em- ployee should not be disqualified because he called a nonstriker a "wop bastard" and later invited a supervisor to go behind a garage and threatened to "beat him up" as a means of settling the strike . When the challenge was not accepted he called the supervisor "yellow." In Ekco Products Company 32 reinstatement was denied to strikers who (1) visited nonstrikers at their homes and threatened them with bodily harm if they continued to work; (2) threw tomatoes at employees who were going to work; (3) told a foreman they would blow him off the top of a hill and visited his home at night and pounded on the window; (4) asked a nonstriker how he would like to have a couple of broken arms and some more flat tires ; (5) grabbed a nonstriker by the arms as she was going to work; (6) threatened to shoot at a nonstriker if she went into the plant; and (7 ) threatened to break every bone in the body of a nonstriker if he got out of his car. Conduct which did not warrant denial of reinstatement included : ( 1) Telling an employee , just prior to the strike, that a girl who had crossed a picket line at another plant had had her clothes torn off her back and "that was just what they were going to do here"; ( 2) threatening economic reprisals against nonstrikers and their relatives ; ( 3) giving erroneous but not deliberately false testimony during the, hearing; and (4) name calling, including such epithets as "dirty son -of-a-bitch," "God damn scab," "one-eyed son-of-a-bitch," "God damn yellow-bellied son-of-a- bitch," "yellow-bellied scab," etc. With respect to blocking ingress and egress the Board , in Puerto Rico Rayon Mills, Inc.,33 reversed the Trial Examiner 's holding that the action of 16 employees in blocking egress of a truck from the struck plant forfeited their right to reinstate- ment. The 16 employees in question formed part of a group of 10 to 15 women who stood in front of the truck and 10 to 12 men who lay in the road in front of the truck and an additional group of men who encircled the truck . This maneuver prevented the truck from departing that night and again the next day until the police drove the truck, unloaded, out of the area. The Board restated the principle govern- ing strike misconduct as follows: If these employees are to be denied reinstatement, it must be on the ground that their misconduct was so flagrant as to render them unfit for further service. We find that the conduct of the employees , although objectionable , was not so, extreme as to render them unfit for further service, particularly as the Respond- n Efco Manufacturing, Inc., 108 NLRB 245. "As anyone who has worked in a plant or served in the United States Navy would testify, names so foul as to be unmentionable are employed as casual and friendly saluta- tion among employees and sailors. 117 NLRB 137 117 NLRB 1355. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's refusal to reemploy these 16 employees, as found by the Trial Examiner, was not based on their misconduct but on their unwillingness to abandon the strike earlier. In Talladega Foundry & Machine Company,34 the Trial Examiner found that the strikers engaged in peaceful picketing although the strike continued for more than a year. He refused to disqualify strikers from reinstatement because they spoke to truckdrivers as they approached Respondent's loading platform, finding such con- duct not improper as long as neither coercion nor intimidation was used. The Board reversed the Trial Examiner, holding that the strikers physically "restrained trucks and their occupants from loading and unloading merchandise, and in other respects by `ganging' around the trucks." The Board made no finding of coercion or intimidation in the so-called ganging but stated that "such obstructions (to de- liveries) are likewise of a serious nature and the Board and the courts have regarded the conduct as sufficiently reprehensible to disqualify those engaging in it from reinstatement." 35 In the same case the Board disqualified strikers for the following conduct: (1) Threat of harm to an employee and threats of forceful interference if they tried to enter; (2) shouting threats of harm to workers in the plant and to em- ployees coming to work, and shouting warning to truckdrivers; and (3) burning a scab in effigy in front of the plant. In Talladega the Board cited with approval its decision in David G. Leach, et al., d/b/a Brookville Glove Company,36 in which it disqualified four strikers because they brandished their fists on the picket line, shouted to employees inside the plant that they would kill them, and later told nonstrikers entering the plant that they would have help the next day and would enter the plant and throw the nonstrikers out. In Thayer, Inc. of Virginia, 125 NLRB 222, Perkins, a striker, was denied rein- statement, Member Fanning dissenting, because he allegedly invited two non- strikers to "come on outside . . . if either of you think you can whip us." 37 The invitation to fight took place away from the picket line and was unrelated to the picketing. It could not be construed as a threat since it left the option of fighting or not fighting to the nonstrikers. It is not only difficult to see how such an invitation to fight involves conduct so improper as to render the inviter unfit for further service but it is melancholy to reflect that this country has no accepted conformity and cowardice as norms of behavior that the expression of a willingness to fight should be regarded as misconduct at all. Further, as Member Fanning pointed out, the Board made no effort to balance the misconduct, if such it was, of the employee against the flagrant violations of the Act on the part of the employer, a duty specifically imposed upon the Board by the court in H. N. Thayer, supra, and accepted by the Board in that case. The foregoing decisions indicate that the law on reinstatement of strikers is in disarray in the following areas: (1) Obscenity. Strikers will not be disqualified for making obscene gestures and directing obscene remarks to nonstriking females (H. N. Thayer, supra); they may be disqualified for calling a male nonstriker a name so foul as to be un- mentionable (Efco, supra). (2) Fighting or offering to fight. Strikers will not be disqualified for engaging in a fight (Kansas Milling, supra), offering to fight nonstrikers "one at a time" (H. N. Thayer), or inviting a supervisor to go behind a garage and fight and threatening to "beat him up" and calling him "yellow" when he refused (Efco); they may be dis- qualified for inviting nonstrikers to fight (Thayer, Inc. of Virginia, supra). s+ 122 NLRB 125. The cases cited by the Board to support this proposition (Perfect Circle Company v. N.L.R B., 162 F. 2d 566 (C.A. 7) ; The W. T. Rawleigh Company v. N L R.B., 190 F. 2d 832 (CA. 7) ; and The American Tool Works Company, 116 NLRB 1681, 1682) all In- volve a physical blocking of egress to the plant. All the Trial Examiner found in Talladega and all that appears in the published decision is that the strikers spoke to the truckdrivers. 36114 NLRB 213. 94 On the basis of the record the Trial Examiner did not find that Perkins made this challenge nor was any striker identified as having said that somebody might get hurt If the employees went back to work As to this incident the testimony established that the conclusion of the conversation was friendly. BONNAR-VAWTER, INC. 143 (3) Threats of physical violence. Strikers will not be disqualified for threats of physical violence directed to nonstrikers (H. N. Thayer); they may be disqualified for threats made during visits to nonstrikers at their homes (Efco, supra), and for shouting threats to workers inside plants or to employees coming to work (Talladega Foundry, supra). (4) Blocking ingress and egress. Strikers will not be disqualified for blocking egress to a truck by standing in front of it and lying down in front of it in groups (Puerto Rico Rayon, supra); they may be disqualified for "ganging" around a truck to speak to the driver even though neither coercion nor intimidation is involved (Talladega Foundry, supra). Although the above cases are squarely in conflict, the Board and the courts are in agreement of the principles which govern the right to discharge or to deny rein- statement. These principles are: (1) Name calling, profanity, threats, and fisti- cuffs will not warrant discharge; (2) the blocking of ingress or egress to a plant by physical force or obstruction or threats of physical harm will justify discharge, (but see H. N. Thayer, supra, for the distinction between threats which justify dis- charges and those which do not); (3) conduct so violent and improper as to render the employee unfit for further service will justify discharge; (4) the above principles must not be applied in a manner so unrealistic as to make the right to strike illusory; and (5) if the employees have been unlawfully discharged then their subsequent misconduct is to be balanced against the unfair labor practices of the employer in determining whether or not reinstatement would effectuate the policies of the Act.38 Since the amendment to Section 9(c)(3) of the Act39 may make this phase of the law of vital import to the parties it would appear incumbent to resolve the present contradictions in decisions. None of the foregoing cases supports the Respondent's contention that the placing of matchsticks in the driveway constituted an act of harassment sufficient to justify the discharge. Applying the Board's accepted test, it was not conduct so flagrantly improper as to render Robinson unfit for further service 40 Granting that the Re- spondent had an honest but mistaken belief that the objects placed in the driveway by Robinson were nails, she was discharged for her participation in protected con- certed activity in violation of Section 8(a) (3) of the Act.41 2. The discharge of St. Clair, Alex, and Kalloch St. Clair, Alex, and Kalloch were allegedly discharged for trespass upon company property.42 The alleged trespass took the form of parking cars so that the cars, or a portion of them, intruded upon the Respondent's property. From the nature of the property the trespass could not constitute damage to the property, it admittedly did not impede access to or from the property, nor did it interfere in any way with the conduct of the Employer's business. The trespass, if it occurred, was not delib- erate, it did not follow prior warnings (the only prior warnings were directed to the position of the pickets), and it ceased immediately upon request. There is ground for valid doubt that any trespass took place since it was necessary for a sight" to be taken to satisfy the Employer in his own mind that the line had been 39 Certain of the foregoing decisions appear to be inconsistent with these accepted principles of law. In Puerto Rico Rayon there was a physical blocking of egress but the wrong test, flagrant misconduct was applied ; in Talladega Foundry there appears, at least in the decision as published, to have been no physical blocking of ingress or threats of physical harm ; in Brookville Glove the threats do not appear to exceed in violence those which the Board and the court condoned in H. N. Thayer; In Thayer, Inc. of Virginia, assuming there was misconduct, it was not so flagrant as to hold the striker unfit for further service and the Board made no effort to balance the misconduct against the employer's unfair labor practices. 31 See footnote 15. 40 The present era is propagandized as one of unparalleled prosperity. Despite this, the Bureau of Labor Statistics reveals that there are large areas of depressed economic con- ditions and of scant employment opportunity. The denial of reinstatement in such areas may impose a sentence of destitution and privation upon the striker and his family It should not be imposed because his conduct on the picket line may not meet the standards of decorum expected of divinity students. 41 N L.R.B. v. Industrial Cotton Mills, 208 F. 2d 87, supra. Prior conduct on the part of St. Clair and Alex has been discounted, supra, as play- ing any factor in the discharge of either. This finding of fact is based on uncontradicted documentary evidence and credited testimony. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transgressed. This doubt cannot be resolved by the Trial Examiner from his ob- servation of the property some months later when no cars were there. The best the Trial Examiner can do is conclude that the Employer had a reasonable belief that the cars trespassed upon his property and that the strikers believed they did not. In any event the consequences to the Respondent were negligible since the condi- tion of the lot, which received no upkeep or maintenance, could not be damaged or worsened and Respondent had erected no visible property line. The precipitate discharge of the pickets under these circumstances could only have been motivated by the desire to punish the strikers for harassment suffered from the picketing. Again, it may be said that the actions of the strikers in placing their cars so close to the property Ime that a portion of the cars may have crossed the line is not conduct so flagrantly improper as to render them unfit for further service with the Respondent. I find the discharges of St. Clair, Alex, and Kalloch in violation of Section 8(a) (3) of the Act. 3. The discharge of Holton I find that the discharge of Samuel Pearce Holton II on July 15, 1959, was provoked by his conduct on that day and that it was not in violation of Section 8(a) (4) of the Act. In making this finding I am not unmindful of the evidence in the record which indicates that Waters, following his interview with the Board agents, informed the Respondent that Holton must have made a full disclosure of Respondent's instigation of the decertification petition to the Board's agents.43 In view of the precipitate discharge of Holton the following day a strong suspicion is created that the discharge was in reprisal for the giving of testimony adverse to Respondent's interests and that Respondent was actively seeking a reason, however pretextuous, to discharge him. Even so, I find that the conduct of Holton on the day of discharge, embracing both insolence and insubordination, provided ample justification. To hold the contrary implies that an employee may disregard an order to perform work or to postpone the performance to suit his own convenience because he has given testimony in a Board proceeding. Section 8(a)(4) was intended to confer no such immunity against discharge for cause. I agree that Holton, prior to July 14, occupied a privileged status with the Company, that dis- cipline was not imposed upon him, that he was not required to meet normal standards of performance, and that a change was effected the day after his interro- gation by Board agents. When he was discharged the strike had terminated, his assistance in breaking the strike was no longer needed, and he was suspected of treachery. Under these circumstances a strong inference of unlawful motivation may properly be drawn and I do not doubt that reprisal was a factor in the dis- charge. But a line must be drawn somewhere between the protection afforded by the Act and plenary exemption from discharge. To acknowledge no such distinction is to grant an employee a franchise of employment by reason of his appearance as a witness. While I am in full agreement with the Board policy to extend full protection to employees who testify before it,44 I do not believe that the employer's obligation, in order to be consonant with the statute and with policy, requires for- bearance in the face of misfeasance. When an employee who has engaged in protected activity subsequently engages in conduct for which any employee could or should be discharged then the protection of the Act is lost. When Holton con- tinued to read his magazine after having been directed to stack the carbon he forfeited the security of Section 8(a)(4). Anxious as the Respondent may have been to rid itself of Holton, he himself provided that welcome opportunity. At the hearing the Trial Examiner stated that if he were to find the discharge of Holten to be in violation of Section 8(a)(4) of the Act he would not recommend reinstatement. My reason was and is that Holton's admitted participation in the Respondent's instigation, circulation, and submission of the decertification petition u Incredulity was expressed at the hearing by the Trial Examiner that Waters could have so informed the Respondent since Holton did not testify before the Board agents until after Waters testified. Evidence dehors the record indicates that the Board agents had evidence, when they interrogated Waters, of Respondent's participation from other sources and that Waters assumed that they obtained this evidence from Holton, No finding or inference herein, however, is based on this extrinsic evidence It is offered only as explanation of otherwise anomalous testimony. ss The Trial Examiner has had occasion to pass on this issue in Petroleum Carriers of 'Pampa, Inc, 126 NLRB 1031. BONNAR-VAWTER, INC. 145 foreclosed him from all claim to benefit from the Board's remedial powers 45 He partook actively, willingly, and knowingly in a scheme to frustrate the rights of his fellow employees and to defeat the purposes of the Act. It would be anomalous to grant his claim to redress under that same Act. Further, his display of duplicity and deceit, his disclaimer of any motive other than calculated self-interest, and his manifest willingness to dispose of his Employer's interest for personal gain offer serious embarrassment to continued employer-employee relationship with the Re- spondent. I grant that the Respondent was happy to make use of these qualities while they served its purpose and that it is therefore in part delictu with Holton. Were my finding such, however, that it were necessary to recommend a remedy, I would apply the usual rule and leave the parties as found.46 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and 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 and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the purposes of the Act. Having found that the Respondent discharged Eleanor Robinson, Richard St. Clair, Christy Alex, and Mary Kalloch in violation of Section 8(a)(3) of the Act, I find all the above-named employees entitled to reinstatement and to be made whole for any loss of earnings from the date when each made an unconditional application for reinstatement. This date I fix as July 2, 1959, when these employees, together with other employees on strike, made application at the Company's offices for their former employment.47 In view of the fact that the record herein affirma- tively establishes that none of the above-named employees had been replaced at the time of their unlawful discharge, I shall recommend that the Respondent offer full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any persons hired by the Respondent on or after the dates when the above-named employees were unlawfully discharged. Loss of earnings shall be computed from July 2, 1959, or as soon thereafter as the Regional Director may find that the above-named employees could have been reinstated were it not for Respondent's discrimination, in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. "This is so whether the testimony of Holton Is true or false. If true, his conduct was designed to frustrate the purpose of the statute and if false it constituted an abuse of the Board's process and perjury under the criminal code. Although Holton's testimony Is largely uncontradicted this Is due in part to the fact that a large area of his testimony related to issues removed from litigation by the subsequent informal settlement. To the extent that his testimony is supported by independent evidence or by the testimony of other credited witnesses it is credited. 'e Holton may take consolation from the fact that the testimony taken in recent months before various congressional Investigatory committees and before regulatory agencies of the Government indicates that the attributes which he so patently possesses are highly marketable in the upper echelons of American industry. From the state of public and corporate morality now exposed it appears that the only occupations from which Holton has disqualified himself are professional baseball, where the scrutiny is strict and con- tinuous and the penalty for transgression forbidding, and bookmaking, where personal integrity is the sine qua non of continued patronage. 47 Although two of these employees made further written application after July 2, 1959, I find such application futile in the circumstances of the instant case and date the re- instatement rights of all from July 2. I find that by joining the mass application for reemployment made by the strikers on that date each of the above-named employee, made effective personal application for reinstatement. The futility of further applications is demonstrated by the rejection of the applications of Alex and St. Glair 586439-61 vol. 129-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. Rockland Printing Specialties & Paper Products Union, Local 643, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to hire and tenure of employment of employees, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The Respondent did not violate Section 8 (a) (4) of the Act. 5. The aforesaid labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Mine Workers of America ; United Mine Workers of America, District 31; and United Mine Workers of America, Local 2311 and Blue Ridge Coal Corporation ; Louis Marra, d/b/a M & T Coal Company; Louis, Sammie, and Robert Marra, Partners, d/b/a Marra Bros. Coal Co.; James W. Thompson, d/b/a Thompson Coal and Construction; and Chester Sinsel , d/b/a Sinsel Coal Co. Cases Nos. 6-CB-466, 6-CB-467, 6-CB-168, 6-CB-469, and 6-CB-482. September 29, 1960 DECISION AND ORDER On July 14, 1959, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents, United Mine Workers of America, and United Mine Workers of America, District 31, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report, attached hereto. The Trial Examiner also found that the Respondent, United Mine Workers of America, Local 2311, had not engaged in any unfair labor practices and recommended dismissal of the complaint with respect to it. Thereafter, the Respondents filed exceptions to the Intermediate Report together with supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the cases and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications. 1. We agree with the Trial Examiner's conclusions that the 6-month limitation period of Section 10(b) began to run against the Interna- tional from the time the original charge was filed and served against 129 NLRB No. 19.