Davis Wholesale Co., Inc.

DAVIS WHOLESALE CO. Davis Wholesale Co., Inc. and Food Store Employees Union Local #347, Amalga- mated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Case 9-CA- 3839. June 12, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 3, 1967, Trial Examiner Robert E. Mullin issued his Decision in this proceeding, finding that 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 attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices, and recommended that allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, which included supporting arguments, and the Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions, the cross- exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Davis Wholesale Co., Inc., Culloden, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: Upon a charge filed on February 9, 1966, by the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9 (Cincinnati, Ohio), issued a complaint dated March 31, 1966, and an amended complaint and notice of hearing dated April 25, 1966. On motion of the General Counsel, the latter complaint was further amended after the hearing opened. The amended complaint, with its amendments, alleged that the 165 No. 40 297 Respondent violated Section 8(a)(1) and (3) of the Act. The Respondent duly filed an answer and an amended answer to the aforesaid amended complaint. In these answers the Respondent conceded certain facts with respect to its business operations but denied the commission of any unfair labor practices. Pursuant to due notice, a hearing was held in Huntington, West Virginia, before me which extended from June 13 to July 7, 1966. All parties appeared at the hearing with counsel and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally after presenting their evidence, and to file briefs. The parties waived oral argument. Various motions to dismiss, made by the Respondent, are disposed of as appears hereinafter in this Decision. On October 17, 1966, the final date set for the submission of briefs, the General Counsel and the Charging Party filed comprehensive briefs which have been fully considered. On October 26, 1966, the Respondent submitted a "Memorandum on behalf of Davis Wholesale Co., Inc." Although filed belatedly, this memorandum has also been considered by me.' At the outset of the hearing and at various times throughout the trial of this matter, the General Counsel and the Respondent moved to consolidate the instant case with Case 9-CB-1281, in which the Employer is the Charging Party and the Union herein is the Respondent. This motion was consistently and with great force and vigor opposed by counsel for the Union. Numerous arguments in support of this opposition were advanced. Most compelling was the contention of counsel for the Union that a consolidated proceeding would impose an intolerable burden on the Union since this would require that its counsel simultaneously represent a client that in the same proceeding was both the accused and the accuser, on the one hand compelled to cooperate fully with the General Counsel in the presentation of the CA case and, on the other hand, in fairness to the client, compelled, as to issues in the CB matter, to maintain an arms-length attitude in relation to that same General Counsel.Upon a consideration of these issues, as well as the commitment of the Union that it would be ready for trial in the CB matter immediately upon the conclusion of the CA hearing, I denied the motion to consolidate.2 Upon the entire record in the case, including the briefs and memoranda of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a West Virginia corporation, has been engaged at all times material herein at Huntington and Culloden, West Virginia, in the sale of wholesale grocery items. During the 12 months preceding the original hearing, a representative period, it had a direct outflow of products , in interstate commerce, valued in excess of ' Other issues raised in connection with the filing of this memorandum have been discussed in fn 3, of the Trial Examiner's Decision in Davis Wholesale Co , Inc , Cases 9-CA-3599 and 3742, issued this date 2 On October 17, 1966, the General Counsel filed a motion to correct the transcript in certain particulars On November 3, 1966, 1 issued an order correcting the transcript, copies of which were served on all the parties and one copy of which was placed in the exhibit file of this case 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 which were sold and shipped directly from its warehouses in West Virginia, to points outside the State. Upon the foregoing facts, the Respondent concedes, and 1 find, that Davis Wholesale Co., Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Food Store Employees Union Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called Union or Charging Party, is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events In Davis Wholesale Co., Inc., Cases 9-CA-3599 and 3742, both of which were heard before me, and the Trial Examiner's Decision in which is issued this date, it was found, inter alga, that: (1) All employees employed by the Respondent at its place of business in Culloden, West Virginia, excluding salesmen, office clericals, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. (2) At all times since May 17, 1965, the Union has been the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. (3) By failing and refusing at all times since May 19, 1965, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. In that same Decision I further found that the Respondent, during the period from May through November 1965, had discriminated in regard to the hire and tenure of various named employees, in violation of Section 8(a)(3) of the Act, and had engaged in additional conduct which interfered with, restrained, and coerced the employees within the meaning of Section 8(a)(1) of the Act. The issues in Case 9-CA-3839, the instant matter, cover the period from November 1965 to the date of the hearing in mid-summer 1966. It is alleged by the General Counsel that, as a result of the Respondent's continuing refusal to recognize the Union as the majority representative of the employees, a strike called in December 1965 was an unfair labor practice strike, and that the Respondent's refusal to reinstate the strikers upon its termination in April 1966 was in violation of Section 8(a)(3) of the Act. B. The Union's Renewed Request for Recognition Prior to the Strike The Respondent has consistently refused to recognize or bargain with the Union on the ground that until the i All dates during the months of November and December are in 1965 unless otherwise indicated , all dates during the months of January through July are in 1966 unless otherwise indicated ' Gunnoe testified that on several occasions when he extended the invitation for such a meeting, Respondent's president told Gunnoe "you'll never get a damn union contract out of me " Lewis Davis denied having made this comment His denial of the profanity which Gunnoe attributed to him was convincing On the other hand, Davis readily conceded that he had consistently rejected all proffers to meet with Gunnoe or any of the other union representatives Moreover , on cross-examination , when asked latter won an election, the Company was under no obligation to treat with it as the majority representative. On November 14, 1965,•; the Union held a meeting of its membership at the Davis plant The leadership discussed the unsuccessful efforts which the Union had made to get recognition from the Company and sought a vote on the question of whether a strike should be authorized. Of approximately 32 members present, all except 1 voted to authorize a strike. Thereafter, Sherwood M. Spencer, secretary-treasurer of Local#347, renewed his efforts to secure a conference with the Respondent. About November 29, in a telephone conversation with Lewis Davis, president of the Company, Spencer suggested that they meet and discuss recognition and bargaining so that a strike could be avoided. Davis told him that this would be useless, that all such discussion would have to be had with Attorney John E. Jenkins, Jr., counsel for the Respondent. About December 6, Spencer telephoned Davis to renew his request for a conference. The latter declined to engage in any discussion and once more referred him to Attorney Jenkins. The following day, Spencer telephoned Jenkins to request a meeting. The latter informed him that the Respondent would meet with the Union only after it had won an election. On December 8, 1965, the strike began. At various times during the ensuing weeks, Woodrow Gunnoe , a business agent for the Union , suggested to Davis that they meet for a discussion of the differences between the employer and the employees . In each instance this proffer was declined.4 In a letter dated December 21, 1965, Commissioner Lawrence Barker, of the Department of Labor for the State of West Virginia, wrote the Respondent to offer the services of that department in mediating the dispute between the Company and the Union. This letter was never answered. At the hearing, Davis testified that he never made any response to the letter "because we didn't consider we had a Union. We have never had an election." C. The Strike As noted earlier, the strike began on December 8, 1965. It continued until the following April. On April 4, 1966, Spencer sent a telegram to the Respondent wherein the strikers made an unconditional offer to return to work and the Union renewed its request for recognition and bargaining on behalf of all the employees in the appropriate unit. On the morning of April 7, 28 strikers," accompanied by Business Agent Gunnoe, appeared at the warehouse entrance and sought reinstatement. They were met by Thurman Johnson, vice president of the Respondent and superintendent of the warehouse. The latter told the strikers to write their names and addresses on a sheet of paper and stated that all those for whom the Company had jobs would be contacted. Gunnoe testified that when asked whether the Respondent would take the strikers back in the order of seniority, whether, notwithstanding the fact that there had been no election, the Respondent would acknowledge the Union's majority, bargain with it, and sign a contract , Davis replied with an emphatic, "No, sir Gunnoe testified that three additional strikers not present were Alfred Maynor and Lindsey Finley, both of whom were ill that day, and Harold Duffer, whom the Union had been unable to contact on the morning in question Gunnoe testified that, in addition to the last named , there were also other striking employees whom the Union had not been able to reach However, he never specified the names of any strikers in that category DAVIS WHOLESALE CO. Johnson replied, "Gunnoe, I'm not going to take them back today. In fact, they don't have jobs any more here, but if we need any of them we'll notify them by mail." Johnson denied that he ever stated that the Company would never take the strikers back, but in other respects there was no substantial conflict between his account and that of the General Counsel's witnesses as to what occurred on the morning that the returning strikers sought reinstatement. In fact, none of the striking employees has ever been reemployed. In a letter, dated April 7 and sent to each of the strikers, the Respondent stated: Your offer to return to work today is acknowledged. You left work voluntarily about December 8, 1965, and in order to carry on and preserve the company's operation, you have been permanently replaced. Because of the violence, threats and other unlawful acts committed and/or conspired to, you will not be reinstated. Johnson testified that the decision to discharge all of the strikers was reached on April 7 during a conference which he had with President Davis and Attorney Jenkins. He testified that at this meeting there was little or no discussion of each individual striker, but instead only a general discussion of the violence which had occurred during the walkout. Johnson testified that the returning strikers were treated as "a group and discharged as a group." Whereas the Respondent contended that the strikers were not reinstated at the termination of the strike because of alleged misconduct and picket line violence, the General Council alleged that the strikers were in fact discharged at the outset of the work stoppage for having exercised the right to strike. To the evidence in connection with this issue we will now turn. It is apparent from the record that from the time the walkout began the strikers were no longer kept on the rolls of the Company as employees. As to this issue, Johnson testified, "When they went on strike they walked off their job and quit . .. I think we referred to them as employees that had quit Lewis Davis testified that by December 30 he took the position that all those persons who were on strike were no longer working for the Company and had quit their employment.' It was equally apparent from other evidence that the Company took this attitude from the very outset of the strike. Prior to the walkout all of the employees were covered by a group hospitalization insurance plan. Monthly premiums for this insurance were deducted from the pay of each employee at the beginning of each month. On December 8, and on the very afternoon that the strike began, the wife of Lindsey Finley, one of the strikers, was hospitalized for emergency treatment and remained in a Huntington hospital for several days. Pearl Atkins, medical records supervisor for the Cabell-Huntington Hospital, testified that although the hospital bill for this patient was sent to Davis Wholesale for transmittal to the insurance company, it has never been paid . Maxine McGinnis, secretary to Lewis Davis, conceded that the premium for hospitalization insurance through the month of December had been withheld from Finley's pay, as well as that of all other strikers , at the beginning of that month. " Later Johnson stated, "As far as I am concerned when a man walks off and leaves his job when there is plenty of work there for him they have quit " 7 The Respondent 's payroll records were regularly kept on a 2- 299 Notwithstanding this fact, Mrs. McGinnis, who was responsible for handling all hospital claims for the Respondent, testified that when the bill for Mrs. Finley arrived at the Company, she never forwarded it to the insurance carrier. Mrs. McGinnis conceded that she did not do so because she took for granted that the patient's husband had quit the employ of Davis Wholesale as soon as he went out on strike. She also testified that in the latter part of December a letter was sent to all the strikers notifying them that they would have to make their own arrangements for the continuance of any hospitalization insurance coverage they had previously had as employees of the Company prior to the strike. Keith Tomblin, one of the employees who subsequently went on strike, testified that about November 23, 1965, he had a conversation with Thurman Johnson during which the impending strike was discussed. According to Tomblin, Johnson told him that if he went on strike "with the boys ... I was fired and that I would never work again for Davis Wholesale...." Johnson testified that he had had a conversation with the employee on the day in question, that it had occurred after Tomblin had asked that he give him a ride home from the warehouse and that the strike issue had been mentioned. According to Johnson, however, he had refused to be drawn into the discussion and in response to the employee 's questions on the matter he had urged that Tomblin, who was a young man, solicit the advice of his own father, rather than Johnson. Tomblin and Johnson were related, through marriage, to one another. Later in this Decision, it will appear that, as to various incidents which occurred during the strike, I place little credence in the testimony of the employee Tomblin. On the other hand, as to this particular incident I conclude that it occurred substantially as the employee testified, and that Johnson did predict that those who went on strike would be discharged and never again work for the Company. Several of the strikers testified as to conversations which they allegedly had with Lewis Davis after the strike began. James Belcher testified that about 5 p.m. on December 8, while he and the other strikers were gathered near the warehouse entrance, Davis appeared and started to take down the names of those who had on picket signs. According to Belcher, when he jestingly asked Davis if he wanted his name, the plant president replied, "I know your name quite well, Belcher, and you are all fired." This same witness testified that on the evening of the next day, he and several other strikers were again on the picket line when Davis came out to where they were. According to Belcher, there was an exchange of conversation during the course of which he suggested that the plant president was responsible for the employee walkout. Belcher testified that after he had said this, Davis told him "you no longer work for me, you are all fired." According to Belcher, he then stated that at the conclusion of the strike he wanted to return to work at the warehouse, but Davis told him "you will not come back to work here for me or for no one." Three other strikers, Gary Bias, Thomas Templeton, and Dennis Holley, testified as to another conversation had with the plant president about December 10. According to Holley, Davis told them that they "were fired the day we walked out the gate on strike." Bias testified that Davis week basis , with the first pay period in December 1965 extending from December 5 to 18 For the strikers who walked out on December 8, however, a special payroll record was prepared which ended with the date the strike began 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him how long he had worked at the warehouse and when he replied, the Respondent's president commented, "Well, if I knew then what I know now you never would have worked for me ... none of you ... will ever work for me again." Templeton corroborated the testimony of his fellow strikers. Leonard Cremeans, another striker, testified that about December 11, Davis had spoken to several of the pickets and referred to all the bonus money that they would lose by not working. According to Cremeans, when one of the other pickets said "that's all right we will make it up when we get our union in," Davis replied, "You will never work for me. I fired you the day you all left." Ronald Skaggs, one of the union business agents, testified that about December 13, while in the vicinity of the picket line near the warehouse gate, he had a conversation with Lewis Davis, during the course of which he urged that the company management sit down at the bargaining table and ask the men then on strike what they wanted. According to Skaggs, Davis' reply to this suggestion was the remark ". . . these men have had their last with Davis Wholesale Company ... I have told you once and I will tell you all again that you are all fired...." Thomas Templeton testified as to another incident which occurred about December 21. This was at the Valley Food Discount Service, a store in Charleston, West Virginia, that was one of the Company's customers. Templeton and several other strikers arrived at this site during the course of their ambulatory picketing on the day in question. According to Templeton, while he and the other pickets were engaged in conversation with the store manager, Mr. Davis and several others arrived. Templeton testified that on entering the store, Davis declared to the store manager "don't pay ... attention to these boys, they are no longer my employees. They were fired when they went out on strike." Victor Howard, operator and manager of the Valley Food Discount Service, testified that he could not recall having heard Davis say anything about having fired any of the employees. President Davis generally denied that he had ever told any of the strikers that he was fired and he specifically denied many of the comments to that effect which the strikers attributed to him." On the other hand, Skaggs' testimony related above, was never denied. Whereas, as will appear later herein, I found much of Davis' testimony credible, as to this particular series of incidents, all of which occured early in the strike, I conclude that the testimony of employees Belcher, Bias, Templeton, Holley, Cremeans, and Business Agent Skaggs is the more convincing. For this reason, I conclude and find that, on or about the dates mentioned above, Lewis Davis did tell the strikers that all of them were fired at the time they went on strike. D. The Allegations of Interference, Restraint, and Coercion , Findings and Conclusions With Respect Thereto The General Counsel alleged that the Respondent engaged in extensive 8(a)(1) violations during the early days of the strike . Much of the testimony offered in this connection involved the alleged action and conduct of Lewis Davis. Subparagraph 5(a) of the complaint alleged that about December 9, 1965, and at various times thereafter President Davis interfered with peaceful picketing by harassing the pickets with vile and abusive language and also by using his automobile to block the picket area at the warehouse entrance. Subparagraph 5(c) of the complaint alleged that about December 21, 1965, Lewis Davis and Donald Davis, the latter being secretary-treasurer of the Respondent, threatened a business agent of the Union and that Donald Davis urged the nonstrikers to knock a camera out of the hand of the business agent and assault him. Business Agent Gunnoe testified that during the month of December, Davis frequently called the pickets "damned Communists," "bastards," "sons-of-bitches," and used various other profane epithets to characterize them. Paul Christian, one of the strikers testified that early in the strike he was with a group of pickets whom Davis berated with several of the foregoing expletives. Keith Tomblin testified that while he was picketing at the warehouse entrance during mid-December, Davis used similar language in upbraiding the pickets. John Valentine testified as to several incidents when, as a picket, he was the alleged object of profane taunts from the company president. Wellington Breed, another striker, testified that Davis was constantly cursing and maligning the pickets with a stream of profanity. Lewis Davis denied that he had ever called any of the strikers a Communist, and further denied that he had ever called any man a "son-of-a-bitch" or that he had ever used any of the other profanity which the above-named employees attributed to him. This denial was completely convincing to me, whereas the testimony of the strikers in this connection was not, Valentine and Breed being the two most incredible of all those who testified on this subject. The testimony with respect to the alleged blockage of the picket line concerned an incident which occurred about December 21 at the Huntington warehouse. The Respondent's Huntington warehouse, scene of most of the incidents which figure in this case,`' is a large brick structure, over 300 feet long and somewhat narrower in width. The office entrance to the building is at one corner and overlooks a rather narrow street which extends along that side of the building. There is no curb or sidewalk on this street. Prior to the strike the employees customarily parked along this street and parallel to the building. Some also parked in front of the office door and around the corner of the warehouse along which side a railroad track extends for the use of railcars that serve the warehouse receiving department. During the period in question, there was a large parking area at the rear of the building where the Company kept its numerous trucks when they were not in use. This lot was enclosed by a high chain fence. For several weeks after the strike began, the nonstriking employees, supervisors, and company officials kept their cars on the fenced-in truck parking lot at the rear of the wherehouse. On December 20, the Circuit Court for Cabell County, West Virginia, issued an injunctive decree which banned violence of all kinds in the dispute between the Respondent and the Charging Party, severely limited the number of pickets who could be on the picket line at " In addition to those incidents which have been outlined above, a number of other strikers testified as to similar incidents in which Davis allegedly stated that they had been fired as soon as they went on strike Among these strikers were Wellington Breed, Keith Tomblin, John Valentine, and Clifford Sword Although the testimony of these employees was generally corroborative of the testimony of other strikers that is set forth above, it is not relied on here ' In the fall and winter of 1965-1966 the Respondent had under construction a new warehouse in Culloden , West Virginia, some 25 miles from Huntington In April 1966 the Company moved all of its operations to the site of this new facility DAVIS WHOLESALE CO. any one time, defined the area that could be used for this purpose, and established numerous other strictures on the Union's picketing activities in and around the strike-bound warehouse. After the entry of the aforesaid injunction, the nonstriking employees of Davis resumed parking outside the fenced-in lot and Lewis Davis resumed the practice of parking his car in front of the office door. The General Counsel and the Union endeavored to establish that the manner in which President Davis parked his car, in the period subsequent to December 20, constituted a deliberate effort on his part to block the patrolling of the pickets who, by the injunctive decree, were confined to the public street . Business Agent Gunnoe testified that on December 21, Davis parked his car near the office entrance and at such an angle that it protruded into the street and blocked the pickets from getting by without moving further into the street . He testified that when he asked Lewis Davis to move his car, the company president refused to do so. According to Gunnoe, the following sequence of events thereupon ensued: After having failed to induce Lewis Davis to move his car, Gunnoe telephoned the Huntington police. Gunnoe thereafter proceeded to take motion pictures of the scene and, as he was doing so, Lewis Davis, Donald Davis, and several others emerged from the company office. Donald Davis and a number of those with him advanced on Gunnoe and Donald Davis stated, "Let's knock the . . camera out of his hand" at which instant Donald Davis made a swinging motion at Gunnoe. At this point, Gunnoe retreated across the street to escape being assaulted. From the testimony of the General Counsel' s witnesses, it is apparent that Davis ' car was parked within only a few feet of the office entrance to the building, and extended no more than a short distance into the street . Leonard Cremeans, one of the strikers, testified that Davis' car was within 5 to 6 feet of the office door to the building and John Valentine testified that it was within 3 feet of the wall of the warehouse. Clifford Sword, another striker, testified that the rear of the car did not extend more than 3 or 4 feet into the street . From the pictures received in evidence and from the view of the premises which I had at the conclusion of the hearing, it is difficult to understand how the car could have been parked much closer to the building. Lewis Davis testified , credibly and without contradiction , that the manner in which he parked on the day in question was the same as he had been doing for over 6 years prior to the strike. His testimony in this regard was corroborated by Estil Loftis, one of the strikers and an employee of several years' standing, who conceded on cross-examination that prior to the strike Davis had consistently parked his car in this same position in front of the office door. Harold Damron, the patrolman who responded to Gunnoe's call to the Huntington Police Department, was a witness for the Respondent . Officer Damron testified that Gunnoe requested that he order the removal of the car which Gunnoe asserted was blocking the street and the picket line. According to Damron , after he examined the location of the car with respect to the street, he told Gunnoe that the car was not blocking the street and that no ordinance was being violated. Damron testified that while he was present at the scene , Lewis Davis and several others came out of the company office and that Gunnoe began taking pictures of them . He further testified that 301 thereafter he did not see anyone make a move or a threatening gesture toward Gunnoe and that the latter left the scene before he did. Lewis Davis and Donald Davis denied that any threats were made to Gunnoe at this time and that no assault or attempted assault was made upon him by Donald Davis or anyone else . Donald Davis , in particular, was a credible witness as to the incident . His account was completely convincing to me, whereas that of Gunnoe was not. Furthermore , the account of the latter was not confirmed or corroborated by the motion pictures which he took and the film which was received in evidence . In view of the foregoing conclusions as to the testimony offered on this incident , I find that neither Donald Davis nor any other representative of the Respondent engaged in any assault or attempted assault on Business Agent Gunnoe in the manner that he testified. Further, in view of the uncontradicted testimony that for many years prior to the strike Lewis Davis had parked his car in the same position in front of the office door as he did on the day in question, I conclude that there is no substance to the charge that his resumption of that practice after December 20 constituted interference or restraint of the pickets. Finally, I conclude that Lewis Davis did not harass the pickets with vile, profane , and abusive language. Therefore, I shall recommend that subparagraphs 5(a) and (c) of the complaint he dismissed. The complaint also alleged in subparagraphs 5(d) and (e) that about December 21, Lewis Davis drove his automobile so recklessly as to endanger the lives of two business agents who were with union pickets then engaged in picketing a grocery store in Culloden, a nearby town, and that about December 28, Davis drove his automobile in such a manner as to endanger the lives of two strikers then engaged in picketing the warehouse in Huntington. Business Agent Gunnoe testified that about December 21 "' he and Business Agent Jack Brooks were with a group of strikers who had established a picket line at the entrance to Sovine Brothers Grocery in Culloden. According to Gunnoe, he and Brooks were in charge of a group of strikers who were then engaged in what he described as "informational picketing" of the Sovine Grocery, while a Davis truck was unloading merchandise. Gunnoe testified that as he and Brooks were standing near the store , Lewis Davis came in off the highway and at great speed drove his automobile between them so that both he (Gunnoe) and Brooks had to leap in order to avoid being struck . According to Gunnoe , as soon as Davis parked his car he turned to them and declared , "You sons-of-bitches, if you don't get out of my way, I am going to kill you." James Gibson, one of the pickets, testified as to this incident and gave some testimony which partially corroborated that of Gunnoe as to the manner in which Davis' car entered the parking lot. He also testified that neither Gunnoe nor Brooks was grazed or touched by Davis' car. Moreover, Gibson did not testify that he heard the threatening statement which Gunnoe attributed to Davis. Business Agent Brooks was never called as a witness and no explanation was ever offered for his absence from the hearing. Lewis Davis testified that the only occasion that he was at Sovine 's when there were pickets in the vicinity was on December 23, that on that occasion Gunnoe, Brooks, and several other pickets were around the store as he drove on to the parking lot, but that at no time did he ever come "' In one pretrial affidavit , however, he had averred that the date in questi on was December 23 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close to either Gunnoe or Brooks with his automobile. Davis denied that he had ever attempted to hit either of the business agents and he denied the threats which Gunnoe attributed to him. Davis' testimony was corroborated by that of Bernard C. McGinnis who was a passenger in Davis' car at the time. Gunnoe's testimony as to the incident was not persuasive. It was in partial conflict with an affidavit he had given prior to the hearing and no element of the account which he gave as to the manner in which both he and Brooks were allegedly endangered had any air of conviction about it. The testimony of both Davis and McGinnis, on the other hand, was credible. Accordingly, I shall recommend that subparagraph 5(d) of the complaint be dismissed. In support of subparagraph 5(e) of the complaint, the General Counsel called Roy Lewis and John Valentine. Both of these witnesses were strikers. According to Lewis, at a date shortly after the injunction was entered,'' he and Valentine were on picket duty outside the warehouse entrance when Lewis Davis was about to get into his car and called out to Lewis ". . . get the hell out of the road or he would run over me." Lewis testified that the Respondent's president then entered his car, and, as Davis drove off, the car came within a foot of hitting him. Lewis conceded, however, that the car did not touch him in any way. Valentine testified in partial corroboration of Lewis' account as to the proximity of the car to Lewis when Davis was leaving the area, but he gave no testimony in corroboration of the threat which Lewis attributed to the plant president. Davis testified that he could recall no such incident as that related by Lewis and he denied ever having made any threat to run down Lewis or any other picket during the course of the strike. I conclude, based on my observation of the witnesses and an examination of their testimony, that the account of Lewis and Valentine was totally unreliable and incredible. For that reason, I conclude and find that there is no substantial evidence to support the allegation in subparagraph 5(e) in the complaint and that said allegation should be dismissed. Subparagraph 5(f) of the complaint alleged that about December 28, Lewis Davis kicked the automobile of a striking employee and damaged "the fender, paint, and grill." The car involved was that of Clifford Sword, one of the strikers. Although the tenor of this allegation attributes nothing less than an attempt at malicious destruction to the company president, even the testimony of Sword, the General Counsel's sole witness on this issue, does not bear this out. According to the latter, on or about the aforesaid date, and when his car was at a parking lot near the warehouse, he saw Davis and Johnson examining his car and that at one point Davis kicked the side of the car and then the license plate. Both the company president and the warehouse superintendent testified as to the visit which they made to the parking lot on this date. According to Johnson, he and Davis went there on this occasion for the express purpose of inspecting Sword's car because they suspected that it had been used earlier that week to run one of the nonstrikers off the road. Both Johnson and " The injunctive decree was entered on December 20 Valentine fixed the date of the incident as about December 23 12 This employee is also known in the record as Eura Delano Keenan " At the conclusion of the hearing, counsel for the Respondent stated that he would seek leave to secure a deposition from Davis denied that the car was kicked or damaged in any way during the course of their examination. Here, again, I conclude that there is no substantial evidence to support the allegation in paragraph 5(f) of the complaint, assuming arguendo that, if true, the aforesaid allegation sets forth an unfair labor practice. There remains for disposition, only subparagraph 5(b) of the complaint, wherein it is alleged that Thurman Johnson told an employee that if he went out on strike with the rest of the employees, he would be fired and never again work for the Respondent. As found earlier, herein, Superintendent Johnson did make such a statement to Keith Tomblin about November 23. That statement was, of course, coercive and its utterance by the warehouse superintendent constituted a violation of Section 8(a)(1) of the Act. E The Allegations as to Delano Keenan and Paul Christian; Findings and Conclusions With Respect Thereto 1. Delano Keenan' ' On December 8, 1965, Keenan, an employee in the warehouse, was suspended, allegedly for making threats against a fellow employee, one Robert Peterson. Lewis Davis testified that Peterson reported to him that in a conversation with Keenan in which Peterson expressed his opposition to a strike, Keenan told the latter that he would not be able to work if he went through a union picket line. Davis testified that he and Thurman Johnson thereupon called both Peterson and Keenan to the company office, where they interrogated them as to the circumstances in which the alleged threat had been uttered. According to Davis, during this conference, Keenan conceded that he told Peterson that the latter would not be able to work if he came through the picket line. Johnson testified that at this confrontation Peterson told them that Keenan had stated that if he attempted to cross the picket line he would never be able to work. According to Johnson, Keenan at first denied having made any such remarks, but when Peterson repeated the substance of the alleged conversation, Keenan said nothing. At the hearing Keenan testified that, during the conference in the warehouse office, Peterson accused him of having threatened to beat him up if he crossed the picket line. According to Keenan, he denied having said this to Peterson and told Davis that all he had actually said was that "it was a sorry thing for him (Peterson) to cross the picket line." Peterson did not testify at the hearing. On December 9, the day after the above-described meeting in the company office, he left the Respondent's employ for military service. At the time of the hearing he was reportedly on duty with the American Armed Forces in Germany. '•t At the end of the meeting with Keenan and Peterson, Davis announced that Keenan would be suspended for 1 week, effective immediately.14 Keenan was not a persuasive witness on his own behalf at the present hearing. It is likely that his denials at the meeting in the plant office were no more convincing to the Peterson However, no such motion was ever submitted to me " Both Davis and Johnson testified that the suspension was for 1 week, and that Keenan was to remain off work until 7 a in on December 16 Although Keenan testified that lie was notified that the suspension was for 2 weeks, his testimony in this connection was obviously in error DAVIS WHOLESALE CO. company officials . In any event , I conclude that during the conference with Davis and Johnson , Keenan did not effectively deny the accusation by his coworker that he had threatened to beat him up or render him unable to work if Peterson crossed the picket line. Such conduct as that attributed by Peterson to Keenan is not protected concerted activity. Continental Woven Label Company, Incorporated, 160 NLRB 1430 ; Burns Garage , Inc., 148 NLRB 363,368 ; cf. N.L.R.B. v. Tennessee Coach Company, 191 F.2d 546, 548, 550 (C.A. 6). The real question, however, is whether the discipline meted out to Keenan was motivated by his union activity , or represented, instead, no more than a normal exercise of managerial supervision designed to maintain harmony in the warehouse . Elsewhere in this Decision , it is found that the Respondent had a strong antiunion animus. It is likely that this had some bearing on the Respondent 's disposition of the matter. On the other hand , Keenan was not a distinguished leader of the organizational movement in the Respondent's warehouse . In the original cases (Davis Wholesale Co., Inc., Cases 9-CA-3599 and 3742), he was identified only as a union card signer, but not in any other way, and he was never called to the stand as a witness. Nor was any evidence offered in the record of this case to establish that , as of the morning of December 8, the management had reason to identify him as one of the union leaders. Had President Davis, in this instance , discharged Keenan for the conduct in question , an antiunion motivation might be more discernible . Here, in contrast with dismissal , the employee received a comparatively mild punishment. Consequently , I conclude that the General Counsel failed to sustain his burden in this matter. Having found that the General Counsel has not proved by a preponderance of the evidence that Keenan's suspension was discriminatorily motivated , I shall recommend that the allegation to this effect in paragraph 6 of the complaint be dismissed. 2. Paul Christian Christian was a truckdriver in the Respondent's employ. When the strike began he did not join in the walkout immediately . Instead he remained on the job until the weekend after the strike started. On December 13, however, he joined his fellow employees who were on strike and appeared out in front of the plant with a picket sign. According to Christian, about 8 a.m. that morning, Lewis Davis was near the parking lot entrance and, on seeing him, stated, "Paul, I didn't think you would do it . You know you are fired along with the rest of them." Christian's testimony was corroborated by that of James Belcher and Delano Keenan. Whereas Keenan was at no time an impressive witness, the account of both Christian and Belcher as to this incident was credible. Lewis Davis, on the other hand, denied ever having had the alleged conversation with Christian and averred that he did not even know the employee by sight, much less on such terms that would have led him to address Christian by his first name as the employee himself testified. Davis also denied that Christian was ever, in fact, discharged Earlier in this Decision I found that Lewis Davis had declared to many of the strikers during the early days of the walkout that they had all been fired by the 15 Templeton testified that he was called into Davis' office on November 9 Cremeans testified that his conversation with the Respondent's president occurred about that same day or November B Davis did not fix a date with respect to any 303 Respondent. Whereas Davis denied that he had any recollection of ever having recognized Christian at the time of the walkout, this testimony was somewhat implausible. Throughout the record there is evidence that Davis made a practice of getting to know the employees in the warehouse and that he knew and addressed many of them by their first names. Christian had been an employee from September 1965. Immediately after the strike began he undoubtedly received some attention from the management for having stayed on the job rather than immediately joining the strikers. Consequently, I conclude that by December 13, when Christian appeared on the picket line, his identity was known to the company president and that the conversation in question occurred substantially as Christian testified. It is evident, and I find, that the statement by Davis to Christian could only be construed to mean that the employee had been discharged for striking. Since a dismissal for this reason is plainly a violation of the Act, I further conclude that by this conduct on the part of the company president as to Christian, the Respondent violated Section 8(a)(3) of the Act N.L.R.B. v. Greensboro Coca Cola Bottling Company, 180 F.2d 840, 844 (C.A. 4); Home Beneficial Life Insurance Company v. N.L.R.B., 159 F.2d 280, 285 (C.A. 4), cert. denied 332 U.S. 758. F. The Issues With Respect to the Strike, Discharge of the Strikers and Refusal to Reinstate Them, Conclusions With Respect Thereto Leonard Cremeans and Thomas Templeton testified that during the early part of November each was called into the office of Lewis Davis and while there the company president presented their bonus checks. This was in keeping with a practice which Davis followed in his annual distribution of employee bonuses from the company profit- sharing plan. As these employees met separately with the company president in November, however, according to Cremeans and Templeton, Davis warned each of them as to what would happen if he joined the other employees in taking what Davis described as a "vacation." Cremeans testified that when Davis handed him his check, the Respondent's president told him, "Leonard, I hear you are going to take a vacation and ... I want to give you a little money to take it on ... I got the feeling it's going to be a long one." According to Cremeans, when he protested that he had no plans for any vacation, Davis concluded the conversation with the admonition, "Well, you got a job as long as you know how to take care of it. If you no longer know how to take care of it I will get somebody out on the street that can." Templeton testified that when Davis presented the bonus check to him, the Respondent's president stated that he had heard that Templeton planned to take a vacation and then went on to say, "I want to tell you that you have a job as long as you take care of it, but if you plan on taking a vacation with the rest of the boys you have just lost your job ... we plan on operating Davis Wholesale regardless of what the employees [do]." Lewis Davis conceded that he had spoken to these employees at the time he presented their bonus checks, but he denied that he had engaged in any such discussion about vacations as they attributed to him.'' This denial, conversation with Templeton, but lie testified that his discussion with Cremeans took place on November 30 As to the date of the meeting between Cremeans and Davis, the recollection of the latter was probably the more accurate 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, was not as credible as the completely frank testimony of the employees recited above. I conclude that the conversations occurred substantially as Cremeans and Templeton testified. As found earlier, on November 14 the Union held a meeting of its membership at the Davis Wholesale Company and those present voted overwhelmingly to authorize a strike. The knowledge of this action probably became common knowledge soon thereafter. In any event, on December 8, Davis sent a letter to all employees and their families in which he stated that the Union had insisted that the Company recognize it. Then, after a discussion of the Respondent's position with respect to this demand, he concluded with the statement "We expect a strike shortly and we are ready for it." In his conversations with Cremeans and Templeton during the month of November, Davis raised the prospect of their going on a "vacation" which might "be a long one" and admonished them that if they planned on taking such a "vacation with the rest of the boys you have just lost your job...." This was in keeping with the prediction that Vice President Johnson made to employee Tomblin on November 23 when Tomblin was warned that if he "went out on strike with the boys ... [he] was fired and ... would never work again for Davis Wholesale...." When the strike began on December 8, President Davis promptly informed the strikers "you are all fired" and declared that none of them "will ever work for me again." Later when Paul Christian belatedly joined the strikers on December 13, after having remained on the job for several days after the walkout began, Davis told him "you know you are fired along with the rest of them." Thus was fulfilled the prophecy voiced earlier by both Davis and Johnson that those who went on strike would be discharged. It is apparent from this background, the statements of President Davis to the pickets, the refusal of Mrs. McGinnis to process Finley's hospitalization claim, and the disposition of the payroll as to those who went on strike, that the Respondent terminated all those who joined in the walkout on December 8, 1965, and thereafter, for having gone on strike. This was a manifest violation of Section 8(a)(3) of the Act and I so find. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345, 347; N.L.R.B. v. Clearfield Cheese Co., 213 F.2d 70, 74-75 (C.A. 3); Great Southern Trucking Co. v. N.L.R.B., 127 F.2d 180, 186-187 (C.A. 4), cert. denied 317 U.S. 652; Editorial "El Imparcial" Inc. v. N.L.R.B., 278 F.2d 184, 187 (C.A. 1).16 The General Counsel and the Union alleged that the walkout, which began on the afternoon of December 8 and lasted until April 7, was caused and prolonged by the Respondent's unfair labor practices and that, for this reason , it was an unfair labor practice strike. This is denied by the Respondent, according to whom the strike was purely economic in character. As noted above, in my earlier Decision, it was found that the Respondent unlawfully refused to bargain with the Union on May 19, 1965, and that this unlawful refusal to recognize and bargain with the employees' majority representative was never remedied in the months thereafter. Early in December 1965, and on the eve of the strike, when Spencer, on behalf of the Union, endeavored to secure a meeting with the management he was referred by Lewis Davis to the Respondent's attorney. The latter declined to meet for any purpose other than to discuss an election. This offer, of course, in no manner satisfied the Employer's duty to bargain under Section 8(a)(5) of the Act. 17 By December, and over 6 months after the Union had achieved the status of majority representative, the Company was still rejecting all overtures for recognition and bargaining. This course of conduct frequently precipitates such employee unrest that a strike ensues. When this happens, it is well settled that the resulting walkout is an unfair labor practice strike and that, on its termination, the strikers are entitled to reinstatement regardless of whether replacements have been hired to take their jobs. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. American Aggregate Company, 305 F.2d 559, 562-563 (C.A. 5). On the record in this case, I conclude and find that the strike here involved resulted from the Respondent's rejection of the principles of collective bargaining, as manifested by its continuing unlawful refusal to recognize the Union's majority representative status and by the campaign of interference, restraint, and coercion, which characterized its conduct in the period immediately prior to the walkout. Accordingly, the work stoppage here in issue must be and is found to have been an unfair labor practice strike from its inception. Moreover, since the Respondent's officials spurned every attefnpt which the union representatives made to meet with them from the outset of the strike and President Davis told many of the strikers that they had been discharged from the time they walked out of the warehouse, it is equally clear that the Company's continuing refusal to fulfill its statutory obligation to meet with the employees' bargaining agent , coupled with the discharges and threats of discharge voiced by President Davis to the strikers, caused a prolongation of the work stoppage. For these reasons, the employees who joined in the walkout were unfair labor practice strikers, entitled, upon application, to reinstatement regardless of whether they had been replaced. The Respondent's refusal to reemploy the strikers on and after April 7, 1966, when they unconditionally sought reinstatement, or even to discuss this matter with the Union, was a violation of Section 8(a)(3) of the Act. I so find. 16 The parties stipulated that the 29 following named employees joined in the strike on December 8, 1965, Norris Adkins, O'Neal Adkins, Ottie Adkins, James Belcher, Gary Bias, Larry Blankenship , Jarrell Bowyer, Wellington Breed , Leonard Cremeans, Kelsey Elkins, Lindsey Finley, James Gibson, Dennis Holley, William Huffman, Dave Johnson, Delano Keenan, Roy Lewis, Emil Loftis, Estil Loftis, John Lucas, Alfred Maynor, Ronnie Napier, William Pack, Clifford Sword, Thomas Templeton, Keith Tomblin, John Valentine, Homer Ward, and Donald Watts To this list must be added the name of Harold Duffer. Whereas, the Respondent would not stipulate that Duffer was one of the strikers, counsel for the Company conceded that Duffer quit working on December 8 and was later seen on the picket line Duffer himself credibly testified that he joined in the walkout on that date along with the rest of the strikers I conclude that Duffer was one of the strikers from the outset of the walkout Later in this Decision, it is also found that the names of Lowell Damron and Fred Rood must be added to the list of those on whose behalf the Union sought reinstatement II N L.R.B v Loren A Decker d/b/a Decker Truck Lines, 296 F 2d 338, 341 (C.A 8), N.L.R B v Trtmfit of California, 211 F 2d 206, 209 (C.A 9), N.L R B. v Dahlstrom Metallic Door Company, 112 F 2d 756, 757 (C.A 2), Snow & Sons, 134 NLRB 709, 710-711, enfd 308 F 2d 687 (C A 9) DAVIS WHOLESALE CO. 305 G. The Alleged Misconduct of the Strikers; Findings and Gallimore's testimony was credible and it was in no way Conclusions With Respect Thereto denied or contradicted. 1. The strikers as to whom specific charges were asserted a. James Belcher Thomas Ball and Thurman Green, two of the nonstrikers,ia testified that about December 9, when driving a company truck and about a block from the warehouse, they were accosted by two pickets, James Belcher and Thomas Templeton. According to Ball, Belcher castigated the two of them with various epithets and concluded his remarks with the statement ". . . if we don't get you all we will get your wives." Green testified that during this meeting Belcher pointed out to him that whereas Ball was with him then, ". . . He won't be with you all the time ... If we don't get you, we will get your wives." The testimony of Ball and Green was not denied or contradicted by Belcher. Although the latter testified at the outset of the hearing, he was not recalled in rebuttal. Ball and Green were credible witnesses as to the above incident. I S William Jones, a nonstriker, testified that during the week of December 12 he was working near the warehouse platform when Belcher and several other strikers were on picket duty outside the entrance, and Business Agent Gunnoe was nearby. According to Jones, in an obvious reference to the location of Jones' home which was some distance away and out in the country, Belcher called out to him on this occasion, "Jones ... You know you have only one way in on that ridge and one way out.... It looks to me like I am going to have to come out there and stomp you in the mud of that ridge." Jones' testimony was credible and in no way denied or contradicted by Belcher.L° Belcher was involved in another incident shortly before the end of December. Several of the nonstrikers lived at a rooming house some distance from the plant. Melvin Gallimore, one of these employees, testified that about 6:30 p.m. on December 29 or 30, he and three other nonstrikers'' were about to leave for work on their shift. Pursuant to a practice which they were following during that period, one of them telephoned the warehouse to ask that some of the company officials provide them transportation to the plant. President Lewis Davis, Foreman Ed Frazier, and several others arrived to bring Gallimore and the others to work. As the latter were about to leave their rooming house, a group of strikers, which included Belcher and John Valentine, gathered outside on the sidewalk. When the nonstrikers began to leave the house, the strikers closed in on them and, according to Gallimore, Belcher struck him with his fist severely enough to cause him to stumble and fall. No further blows were struck, however, and the nonstrikers reached the waiting cars without being assaulted any further. b. James Gibson Frank Meehling, a nonstriker, testified concerning an incident which occurred about the middle of January at Brotherton's Super Market in Charleston, West Virginia, when Meehling was engaged in making a delivery at that store. According to the employee, several pickets, including James Gibson, had followed his truck and surrounded the vehicle when he began to unload. Meehling testified that Gibson asked him ". . . how I would like to go home and find my mother in a wooden box or not to make it home and stuff like that or the truck could be wrecked and he kept wanting to know where the next stop was and I told him I couldn't tell him." Meehling further testified that later that same day at Swann's Grocery, another market, Gibson, in the company of several other pickets, asked him how would he like to get beaten up. Gibson testified that he was at Brotherton's Market on only one occasion, and that he could not recall ever having been at Swann's. He denied that he had ever at anytime threatened, or abused, the driver with any of the taunts which Meehling attributed to him. In connection with this incident Meehling was not as persuasive a witness as Gibson. Under the circumstances here present, I conclude that Gibson's denial is more credible than the testimony of Meehling recited above. c. John Valentine James Stanley and Edward Layman, two nonstrikers, testified to an incident which occurred about December 10. According to these witnesses , when they left the warehouse in their separate automobiles , shortly after 10 p.m. that evening, they were pursued by a car which Clifford Sword was driving. According to Stanley and Layman, Sword cut around ahead of them and halted abruptly. After this occurred, they managed to get around Sword again, but the latter thereupon drove up behind Stanley's car and collided with it from the rear. The accident occurred about two blocks from the warehouse and after it happened, Sword drove off. Thereafter, however, a group of pickets gathered around the cars. Included in this group were Business Agent Gunnoe and John Valentine. While Stanley and Layman were stopped at the scene, Gunnoe spoke to them and endeavored to persuade them to join the strikers on the picket line. In the meantime, however, Valentine, who was nearby, used a knife to puncture the right rear tire on Stanley's car. Gunnoe conceded that he had been at the scene, but testified that he had seen no tires cut or punctured. Valentine did not appear to rebut the testimony of Layman and Stanley. In his testimony, Gunnoe endeavored to establish that the "As this term is used herein, it refers only to nonstriking employees of the Respondent. is Green's father operated a grocery store and was one of the Respondent's customers. According to Green, during the above conversation, Templeton said to him, " I am going to get your Dad " Templeton denied ever having talked with Green and denied making any threats about doing anything either to Green's father or to his wife Green's testimony as to this last issue was not as convincing as that which he gave in corroboration of Ball In addition, the statement which he attributed to Templeton did not appear in a pretrial affidavit which he gave concerning this incident For this reason , I conclude that Templeton's denial that he ever made this statement , as set out above, should be credited "Jones testified that after this incident he started carrying a rifle in his car on the way to and from work According to Jones, on one occasion during this period , he stored his weapon in the IBM room at the warehouse , where it was visible to many of the employees and supervisors, but that none of the latter ever spoke to him about carrying a firearm into the building 21 Viz, James Gallimore, Charles Gallimore, and Keith Porter 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individual whom the strikers had identified as Valentine was, in fact, another picket who had never been a Davis employee. His testimony in this connection, however, was transparent and evasive for, notwithstanding the great particularity with which he described the alleged counterpart of Valentine, Gunnoe asserted that he could not recall the names of other strikers who were at the scene. Since Layman and Stanley were credible witnesses and their testimony as to Valentine stands unrefuted in the record, I conclude that this incident occurred substantially as they described it." Thomas Ball and Melvin Holstein, truckdriver and helper, respectively, and both nonstrikers, testified as to another incident which occurred about January 28 at Paul's Grocery in Coal Mountain, West Virginia. According to these witnesses, on making deliveries that day their truck was followed by a car of pickets which included Valentine, Ottie Adkins, Paul Christian, James Gibson, and John Lucas. On arriving at Paul's Grocery, the pickets surrounded the truck as Ball and Holstein began to unload the customer's order. Ball, the driver, had the order invoices and cash receipts from earlier customers at which they had stopped that day in a back pocket of his clothing. As Ball was starting to carry some merchandise into the store, Valentine put his hand in Ball's rear pocket and asked where his money was. Ball pushed Valentine's hand away, demanded that he be left alone, and turned back to his work. It was undenied that Valentine thereupon struck Ball in the back with a blow of such severity that the latter fell to the ground. Ball testified that when he regained his feet, Valentine threatened that if Ball swore out a warrant for him "the next time ... he [Valentine] would take a piece of wood to [him]." The testimony of Ball and Holstein as to this incident was credible, uncontradicted, and undenied. Holstein also testified that on the morning of February 3, while he and two other nonstrikers were approaching the plant on their way to work, Valentine, in the company of six to seven other pickets, announced that "they wasn't going to let us go in to work." When Holstein and his coworkers began to run, Valentine and several others pursued them. At that point, according to Holstein, Lewis Davis happened to be driving by and stopped to let them in his car and thereafter take them into the warehouse. Holstein's testimony as to this incident was credible and undenied. On February 12, there occurred another incident which two witnesses attributed to Valentine. Paul Morrison, a truckdriver, and Larry Hill, his helper, testified that on this occasion they were in their truck and stopped at an 22 Layman also testified that on this occasion Thomas Templeton was one of the pickets at the scene and that Templeton told him that "if I went back out on the truck they might not know me when I got back home . you are liable to have a bad accident . I might not be able to be home for Christmas . " Templeton denied that he had been present on the occasion in question and he denied that he ever had a conversation with Layman It is my conclusion that in this instance Templeton was more credible than Layman '3 Thomas Gray also testified to another incident involving John Valentine and Thomas Templeton, as well as a number of other pickets and Business Agent Ronald Skaggs. According to Gray, this occurred on January 27, 1966, and dunng the course of it Templeton yelled a threat at him and Valentine struck him in the face In its rebuttal , the Charging Union made an offer of proof in intersection less than two blocks from the warehouse, when John Valentine appeared. According to Morrison and Hill, Valentine complained to them that the nonstrikers on the night shift had vandalized his father's car. At this point he was on the left side of the truck, but then he walked to the rear and a few seconds later reappeared on the other side of the Davis vehicle. An instant before he was seen on the right side, a brick was hurled from the rear of the truck and broke through the right window on the cab. Both Morrison and Hill conceded that they had not actually seen Valentine throw the brick. Hill, however, testified that as Valentine reappeared on the right side of the truck, he saw Valentine's arm come down in a motion such as it would make after throwing something. Morrison likewise testified that he witnessed this same sight through the right rear view mirror on the cab. The only witness produced by the Charging Party on this issue was one Helen Gheen. The latter operated a small restaurant near the warehouse and Valentine was one of her frequent patrons. She testified that on the morning in question he was near the Davis truck when she called to him and he waved back to her just as he came around the back of the vehicle. Whereas she testified as to the details of this particular matter with great specificity on direct examination, on cross-examination it was obvious that most of her account was contrived and totally lacking in any credibility. On the other hand, both Morrison and Hill were credible and from their testimony and the present state of the record I infer that Valentine was the one who hurled the brick through their truck window 2" d Clifford Sword Witnesses for the Respondent testified to several incidents involving the activities of Clifford Sword during the course of the strike. Herman McCallister and William Jones, two of the nonstrikers, testified that as they were driving away from the warehouse on the afternoon of December 11, Sword, who was then on the picket line, had a brick in his hand. A few seconds later a brick was thrown at the car. Whereas Jones conceded that he did not see Sword throw the brick, McCallister credibly testified that he witnessed Sword's actual hurling of the brick at their car. Donald Cummings testified that while going to work about 6:30 a.m. on a morning in the latter part of December, he identified Sword among the pickets. According to Cummings, as he neared the warehouse entrance, Sword swung a club at him and warned Cummings as the latter sought to avoid being struck that he "better not look up." question -and-answer form through witnesses Templeton and Skaggs Upon reconsideration of the original ruling made in this connection I conclude that the testimony of both Templeton and Skaggs in this regard should be, and it hereby is, received Both testified that the incident to which Gray testified had occurred on May 27 , rather than January 27 In this connection, the testimony of both Templeton and Skaggs as to the date in question was more persuasive It is my conclusion that Gray was confused as to the date and that the incident about which he testified actually occurred on May 27 Since at that point the strike had been terminated and both Valentine and Templeton had already been denied reinstatement , allegedly for misconduct dunng the strike, I deem irrelevant and will not consider testimony as to events which occurred subsequent to April 7, 1966, when the strikers sought reinstatement DAVIS WHOLESALE CO. Thomas Gray and Larry Hill testified to an incident which occurred about 2 weeks after the strike began'24 while they were working as truckdriver and helper, respectively, on one of the Davis delivery trucks. According to these witnesses, as they were proceeding along a highway near Milton, West Virginia, a car driven by James Gibson, in which Clifford Sword and Keith Tomblin were passengers, pulled off to the side and parked on the berm. Both Gray and Hill testified that, as they drove by this parked vehicle, Sword held a pistol in his hand and pointed it at them. Gibson and Tomblin were called as rebuttal witnesses and both testified that Sword did not have a gun while in the car with them. Sword himself, although a witness early in the case, did not appear as a rebuttal witness. Thus, the testimony as to the first two incidents described above is uncontradicted and undenied. As to the third and last occurrence, the denials of Gibson and Tomblin on the question as to whether Sword had a gun in the car were not persuasive. Neither one was completely frank in his testimony on this matter. On the other hand, Gray and Hill were credible. On the basis of their testimony, and because of the lack of credence in the testimony of Gibson and Tomblin, as well as the failure of Sword to appear and testify on this matter, I conclude that, as Gray and Hill testified, on the day in question Sword did point a pistol at them, or what clearly appeared to be a pistol, and that he did this while engaged in what was generally described throughout the case as ambulatory picketing. e. Delano Keenan and Wellington Breed John Merritt and Ernest Ferguson were two nonstrikers who, during the early part of the dispute, made deliveries in one of the company trucks. They testified as to an incident which occurred about 8:30 p.m. on December 13. Merritt was driving the truck and Ferguson was accompanying him in the right-hand seat of the cab. According to these witnesses, as they were about 1-1/2 miles from the warehouse and proceeding along a street that is a busy one-way thoroughfare in the city of Huntington, an automobile pulled up along the left side of the truck. Merritt testified that when he first noticed the car he saw that Delano Keenan was sitting in the right front seat and that Keenan was rolling down the right front window. According to Merritt, while doing this, Keenan leaned backward in the seat and the hand of the driver reached across in front of Keenan. Merritt testified that at that point he heard a sharp report which sounded like a pistol shot, whereupon a small hole appeared in the left front window of the Davis truck and splinters of glass flew about the interior of the cab. Immediately after this occurred, the car in which Keenan was riding sped past Merritt's truck but a short distance down the street it 24 Although Hill testified that this incident occurred early in February, three other witnesses involved (Gray, Tomblin, and Gibson) testified that it took place in December and about 2 weeks after the onset of the strike 25 Mrs Green did not know Keenan at the time he appeared at her door She identified him, however, at the hearing, unmistakably and beyond question At the outset of the hearing I granted a motion that all witnesses be exluded from the hearing room Certain exceptions were made as to particular witnesses, one of those being Keenan , on the ground that he was named in the complaint as a dischargee For some time thereafter Keenan appeared at the hearing each day and dutifully remained throughout the proceedings Mrs Green appeared as a witness on the morning of the eighth day She testified that she arrived at the 307 became congested in the traffic. Thereupon, the driver backed up for a distance of half a block and then disappeared from view, via a side street, at the nearest intersection. Merritt's wrist was cut by the flying glass, but not seriously. Ferguson, on the other hand, had a splinter of glass in his eye and had to proceed to a nearby hospital for emergency treatment and to have it removed. Ferguson corroborated Merritt's testimony about Keenan. According to Ferguson, he first noticed Keenan as the latter was in the act of rolling down the car window. Ferguson also witnessed the arm of what appeared to be the driver reach across in front of Keenan an instant before he (Ferguson) heard a sound like that of a pistol, followed immediately by the shower of glass splinters that filled the cab of the truck. Neither Merritt nor Ferguson could identify the driver of the automobile, and both of them frankly conceded that they did not see a gun in that car. Wellington Breed appeared as a rebuttal witness and admitted that he was the driver of the car involved in this incident. Keenan was not called in rebuttal. On direct examination Breed denied that he had participated in the shooting of any gun or other weapon from his automobile on that occasion. Even on direct examination this witness was arrogant and incredible. On cross-examination, however, his testimony was totally lacking in any semblance of plausibility. Most particularly was this true of his attempts to explain his conduct immediately after the Davis truck window was shattered, when his bizarre driving behavior plainly gave the impression that as the driver of the car in question he was attempting to make a fast getaway from the scene. Both Merritt and Ferguson were credible witnesses. On the basis of their testimony, I conclude that this incident occurred substantially as they testified. Furthermore, it is my conclusion that the damage to the glass in the Davis truck and the resulting injuries, minor in the case of Merritt, but considerably more serious in the case of Ferguson, resulted when an object was thrown, hurled, or shot from the car in which Keenan was riding and Breed was driving. f. Delano Keenan The wife of one of the nonstrikers testified that early in the strike Keenan came to her home and there voiced a threat about her husband's safety. Thus, Connie Green, the wife of Thurman Green, one of the nonstrikers, testified that on December 9, Keenan,'' accompanied by an individual whom she did not know, arrived at her apartment. According to Mrs. Green, Keenan told her that he did not want to see her husband get hurt by continuing to work. She testified that when she suggested that her courthouse in the company of Thurman Johnson and Mrs Ethel Davis, wife of Lewis Davis According to Mrs Green, as she awaited the opening of the hearing, she noticed in the corridor outside the courtroom the same individual who had called at her apartment on December 9 She testified that Thurman Johnson identified this individual to her as Delano Keenan Mrs Davis, when called to the stand, also testified that while with Mrs Green, she, too, had seen this individual and had identified him as Delano Keenan However , when the hearing opened a few minutes later that morning, Keenan was not present Counsel for the Respondent asked, properly, that the record note the absence of Keenan from the proceedings at that particular and significant juncture 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD husband was a big man and he would be able to defend himself, Keenan warned, "Well, there won't be just one." Mrs. Green was a credible witness and her testimony was in no way refuted or denied. I conclude that Keenan's visitation occurred substantially as she testified. Paul E. Bias, a nonstriker employed on the night shift as a shipping clerk, testified that about 1 a.m. on February 19 or 20, he heard a noise outside the warehouse. When he and the others investigated they found Business Agent Gunnoe, Paul Christian, and several others outside the fence. A short while later, according to Bias, he went to the rear of the warehouse where he discovered Keenan near the top of the guard fence, around the parking area using a sling shot to fire objects at the glass windows in the Davis trucks that were parked on the lot. Bias testified that at this point he called out to Keenan, whom he knew well, "Delano, you having fun?" According to Bias, Keenan's only words were "You haven't got a camera, have you?" and that thereafter Keenan made a hurried departure from the scene. Bias' account of this incident was completely credible and stands undenied in the record. Keenan told him that he "had better watch out if I thought anything about my wife," and that Sword engaged in obscene taunts about McCaw's wife. None of the three last named strikers appeared at the hearing to contradict or deny McCaw's testimony.26 g. Alfred Maynor Thomas Gray, a nonstriker, testified that in the latter part of December, while making deliveries with a Davis truck, he was stalled for lack of gas along the side of a highway several miles from Gallipolis, Ohio. According to Gray, he did not leave his vehicle but remained in the cab while awaiting the arrival of an emergency road service truck he had seen in the vicinity. While he was so engaged, an automobile filled with roving pickets arrived at the scene. The car was driven by Lindsey Finley, and along with him were Ronnie Napier, Gary Bias, Larry Blankenship, and Alfred Maynor, all of whom were striking employees of the Company. Gray testified that while Finley stayed in the car, Bias, Blankenship, and Napier came over to his truck. According to Gray, Napier demanded that he get out and uttered a vulgarism which plainly inferred that Gray would be beaten if he left the truck. Gray replied that he would remain where he was. For a few minutes thereafter the three above named engaged in a tense conversation about Gray's working during the strike and their desire that he join the Union. According to Gray, while the pickets were talking to him, Maynor got out of Finley's car and thereafter he noticed that Blankenship, who was beside the truck cab, "was looking back toward the back of [the] truck with a sneaking grin on his face." Almost immediately thereafter all of the strikers returned to Finley's car and departed. After the pickets had gone, Gray discovered that three 2s McCaw was a truckdriver However, in addition to his regular duties as driver, for a period of several days from December 8 to 13, he spent about 1 hour a day as an armed guard at the warehouse parking lot . He testified that the foregoing incident occurred while he was so engaged as a guard. Whereas McCaw's status as a, part -time guard might be relevant to the question as to whether he would be included within a unit of production and maintenance employees, it does not of the four tires on the rear of his truck were rapidly going flat, having been punctured with an object that made a small round hole. Blankenship, Finley, and Maynor were called in rebuttal. They testified that all in the car had been engaged in roving picket duties on the day in question. Blankenship denied all wrongdoing and testified that the pickets had stopped merely to offer good samaritan-type assistance to their stranded, but nonstriking, former colleague. Finley testified that Maynor had been out of his car for only a short while, and that while at the scene, "I seen there was no tires flat." The accounts of both Blankenship and Finley were not plausible. Maynor, who took the stand to deny that he had punctured any tires on Gray's truck, impressed me as being equally incredible on this issue. Both Finley and Maynor conceded that shortly after leaving the scene of this incident they were stopped by the Ohio State police and that a tool which they described as a scratchall, and which resembled an ice pick, was found in the trunk of Finley's car. Upon the foregoing findings I conclude that whereas Blankenship and Finley may have engaged in no more than an attempt to persuade Gray that he should join them in their strike, Maynor took advantage of the opportunity to immobilize Gray's truck by inflicting the property damage described above. h. Thomas Templeton William W. Baker, a nonstriker, testified that on December 9 Gary Bias and Thomas Templeton came to his home and that Bias told him "there was going to be violence at the plant and he didn't want to see me or my family get hurt." According to Baker, Templeton said very little during the visit. On cross-examination, Baker described the discussion on this occasion as "a friendly conversation, no ... hard feelings on my side, I don't know about their side." He conceded that the only purpose of the visit seemed to be an attempt by Bias and Templeton to persuade him to come out on strike. Bias did not testify on rebuttal, but Templeton was called. He denied having told Baker or Baker's wife that there might be violence and he further denied having made any of the other threats about which Baker testified. Templeton's denial in this connection was credible. Throughout the colder days during the early part of the strike the pickets kept a fire going in a gas drum or barrel near the warehouse entrances. James Myers, one of the nonstrikers, testified that as he was driving away from the warehouse one evening about the middle of December, Templeton, who was standing near the fire barrel, came at him with a flaming stick, 4- to 5-feet long. According to Myers, he had a shotgun in his car, a weapon which he had been carrying for several days, and at this point he raised up the gun and looked at Templeton, whereupon the latter backed away from his car and put the stick in the fire barrel. Myers testified that he continued to carry the gun in his car for several more days, but that, at the request of appear material in any way to the issue as to whether the threats voiced to him were protected concerted activity Whether McCaw was a guard at the time in question or a member of the - appropriate bargaining unit, the threats made by the pickets in this instance were uttered "under such circumstances as to insure that the employees would hear " of them N.L R B v Local 140, United Furniture Workers of America, 233 F.2d 539, 541 (C.A. 2). DAVIS WHOLESALE CO. 309 Thurman Johnson, he discontinued this practice sometime before the issuance of the injunction by the circuit court for Cabell County. Templeton denied having waved a stick at Myers. According to Templeton, he and John Lucas were standing near the warehouse exit, when Myers stopped his car nearby, held up a double barrel shotgun and called out, "This is what I'll do to you if you get in my way." Templeton testified that at this point he and Lucas fled across the street and that Myers then opened his car door, stepped out, and brought the gun to a firing position. According to Templeton, when this occurred he picked up a stick and threw it at the gun barrel, whereupon Myers got back in his car and left. The account of neither Myers nor Templeton was completely credible. John Lucas, a picket who, so far as the record indicates, was the only other person present, testified that he did not recall seeing Templeton with a stick but that he did see Myers point the gun at him and Templeton. Lucas also testified that Myers never took the gun out of the car before he drove away. Lucas was a credible witness and from, his account, as well as that portion of the testimony by the others present at the scene which was not in conflict, I conclude that whereas Templeton may have held in his hand a burning faggot from the fire barrel, Myers was very quick to presume that Templeton was threatening him and resorted to the use of his own very substantial weapon to engage in a far more menacing gesture. On the other hand, from Lucas' testimony I conclude that while Myers did point his shotgun at both Templeton and Lucas from the car he did not thereafter actually leave the automobile and bring the gun to a firing position. i. Keith Tomblin Frank Meehling, a nonstriker, testified as to an incident which occurred in late January or early February, while making deliveries at the Nellie Jay Grocery, a Davis customer located some distance from Huntington. According to Meehling, while he and his helper were engaged in unloading the customer's order, two cars stopped at the parking lot near the grocery. A moment later, one of the passengers, whom Meehling identified as Keith Tomblin, rushed out and stooped down beside the right front tire on Meehling's truck and punctured it with a sharp instrument. The tire immediately went flat and had to be replaced before the Davis truck could be moved. Meehling's account of this incident was credible. Tomblin was called in rebuttal and denied ever having been in the area at the time in question. Reference has already been made to Tomblin as a generally implausible witness. In connection with this particular incident, Tomblin, when called in rebuttal, was totally incredible and his attitude while on the stand bordered on the contemptuous. I conclude that the incident here involved occurred substantially as Meehling testified. j. Paul Christian Donald Cummings, a nonstriker, testified that about December 12, while in a service station some distance from the warehouse, he was approached by Paul Christian and another individual whom he did not know. According to Cummings, Christian initiated the conversation by asking whether Cummings intended to return to work at the Davis warehouse the next day. When Cummings answered this question in the affirmative, Christian then asked him if he liked his car. According to Cummings, after replying to the effect that he did, indeed, like his car, Christian told him: . . . if you go back to work you are liable not to have any car or nothing on it, . . . its liable to go over the hill before you get home tommorrow ... your dad and mom they've got an upholstery shop ... there could be damage to their property by your being a scab ... would you hate to hurt your family by keeping on being a scab? ... Christian conceded that he had had a conversation about the strike with Cummings at the time and place in question. He denied, however, that it was anymore than an attempt to induce Cummings to join forces with^the rest of the strikers. He conceded that he knew of a "Cummings Upholstery Shop," but he denied having any knowledge that this was operated by Cummings' father and he denied having made any threats regarding the shop or Cummings' parents. Christian's denials were not impressive. At the same time, Cummings was a witness whose background did not suggest any degree of stability or integrity. He was a young man of 24 who, by his own admission, had had a longstanding problem with alcoholism. More damaging still, at the time of the hearing he was on probation after having been convicted as an accessory to armed robbery. Counsel for the Charging Union subjected him to an extended and grueling cross-examination which served only to highlight Cummings' poor recollection as to dates, and his numerous admissions as to his aversion for alcohol, and the troubles it had brought upon him. Notwithstanding all of Cummings' admissions as to his personal failings, it was apparent to me that while on the witness stand Cummings was completely frank and honest. Moreover, as to the conversation with Christian, I conclude that it was Cummings, and not Christian, who gave the more credible version of what had actually transpired. k. Ronnie Napier Larry Hill, a nonstriker, testified to an occasion in mid- February when he and one Jones, a truckdriver, were delivering merchandise in a Davis vehicle. According to Hill, a car in which Ronnie Napier was riding and which had been following them for some time moved out ahead of them and after a short while turned around and came back towards them. Hill testified that as the car approached their truck, Napier extended his arm from a window and threw a pop bottle at them which struck and cracked the window on the driver's side of the Davis vehicle. Hill's testimony was credible and totally undenied, for Napier did not appear as a rebuttal witness. Earlier herein, as found above, Thomas Gray credibly testified that late in December, while by himself and driving a Davis truck, he was stalled on a deserted section of highway. According to Gray, on this occasion, Napier and four other pickets accosted him and Napier threatened to beat him up if Gray would get out his truck. Gray's testimony as to this latter incident was likewise undenied. 1. Ottie Adkins At some time in January or February, Charles McCaw and Donald Cummings were making a delivery to a Davis customer known as Maynard's Grocery in Genoa, West 299-352 0-70-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Virginia.' Cummings testified that while he and McCaw were engaged in unloading the truck, several pickets appeared on the scene, among them being Ottie Adkins, John Valentine, and Clifford Sword. According to Cummings, Adkins told him that he would beat him up for having sworn out a warrant against certain strikers a short time before. Cummings further testified that Adkins told him "If we ever catch you in the plant again ... you've had it." According to Cummings, he told the strikers, that if they would not bother McCaw, the driver of the truck, he himself would quit and return to Huntington with them. Cummings testified that Adkins told him that he "was the only one they were after." Thereafter, with Adkins standing at his side, Cummings telephoned Thurman Johnson and told him that he was quitting. Johnson closed the conversation with Cummings with the request that he immediately put McCaw on the telephone. It was undenied that at this point Adkins pushed down the receiver and severed the telephonic connection so that Johnson was prevented from talking with McCaw. Cummings then departed with the strikers and returned to his home.. Later, however, he returned to duty at the warehouse. When called as a rebuttal witness Adkins denied all of the threats which Cummings attributed to him. He endeavored to establish that Cummings joined the group of pickets of his own volition. Adkins' denial of the threats about which Cummings testified completely lacked the air of conviction necessary to tend them any credence. I conclude that Adkins did make the threats which Cummings ascribed to him, that they were made in substantially the language quoted above and that, as a consequence of these threats Cummings left the truck that day and returned to his home. Cummings' background, his criminal record, and his addiction to alcoholism have been set out earlier. Nevertheless, in connection with this incident I conclude that he clearly was the more credible witness and that the type of coercion practiced on him by Adkins passed the bounds of free speech and was threatening in the extreme.28 m. Additional incidents as to which thct as would compel denial of their right to reinstatement. Clinton Bledsoe, a nonstriker, testified that about 2 weeks after the strike began, Gary Bias, while picketing, blocked the roadway near the plant with his car so that Bledsoe's path was barred. On cross-examination, however, it developed that Bledsoe was testifying about an incident when Bias had backed his automobile out of the roadway while in the process of moving it. Bledsoe conceded that Bias did not stay in the roadway for more than a minute or two and that he then moved off the street. From the testimony of Bledsoe himself it is apparent that Bias was engaged in nothing more than moving his car from one parking space to another. This conclusion as to 2' Donald Cummings testified that this incident occurred about 4 months before the hearing. Ottie Adkins conceded that such an incident as Cummings described had occurred at Maynard's Grocery during the latter part of January. 28 Cummings testified about another occasion early in February when , early in the morning , while walking to work at the warehouse, two of the pickets whom he identified as Ottie Adkins and O 'Neal Adkins sought to accost him as he proceeded along the sidewalk. According to Cummings, O'Neal Adkins said, "Let's get that scab." Cummings testified that thereafter, and to elude their pursuit , he stopped at a machine shop in the immediate vicinity, telephoned the warehouse for assistance, and this particular testimony is reinforced by the fact that there is no evidence in the lengthy record of this case to establish that the pickets ever had a practice of using automobiles to block the entrances to the warehouse or the nearby streets in that vicinity. Larry Hill, a nonstriker, testified to an incident in February when he and Wilferd Plumly, one of the truckdrivers, were making a delivery to a grocery store in St. Albans, West Virginia. According to Hill, while he and Plumly were unloading the groceries, they left the motor on the truck running. For a short while, although the precise amount of time is not clear, Business Agent Ronald Skaggs and three pickets were in the vicinity of the truck. As they were leaving, Hill noticed that the motor of the truck had stopped and the ignition key was missing. Hill conceded, however, that he did not see Skaggs or any of the pickets take the key. While the circumstances present here certainly give rise to a suspicion that the departure of Skaggs and the pickets and the disappearance of the key were more than coincidental, obviously more evidence was needed to establish such a conclusion. No such evidence was forthcoming. Charles McCaw, a nonstriker, testified that about January 10, while making a delivery to a Davis customer known as Henderson's Grocery, at Gallipolis Ferry, West Virginia, a union representative whom he did not know, and several pickets, including John Valentine and James Gibson, gathered about his truck. According to McCaw, while he and Garry Gallimore, his helper, unloaded the truck, several of the pickets, including Valentine and Gibson, interfered with them. According to McCaw, this interference consisted of the pickets kicking merchandise back in the truck and placing obstacles in their path as they walked toward the store, thereby delaying him and Gallimore in unloading the truck. Notwithstanding the interference, in due course, McCaw and Gallimore completed their delivery. Valentine never testified with respect to this incident. Gibson was called to the stand in rebuttal and testified that he had never been at Henderson's Grocery and that, in any event, he had never kicked merchandise back into a Davis truck at any location during the course of the strike. McCaw had been an employee at Davis for some time prior to the strike and his recollection as to the identity of Valentine and Gibson was probably accurate. However, in connection with this incident, I conclude that whereas this conduct by the pickets constituted an annoying harassment, it was not of such an aggravated character that, standing by itself, it would justify denial of reinstatement to a striker otherwise qualified for reemployment. Herman McCallister, a salesman for the Respondent and one of the nonstrikers, testified that late on the afternoon of December 10, while he was driving back to the warehouse, a rock was thrown at his car. The rock hit a window and caused some damage, although the window waited there until Thurman Johnson arrived to give him a ride to work. Insofar as this incident was concerned, O'Neal Adkins denied that he had made the threat ascribed to him, although he conceded having been on picket duty on such an occasion as Cummings described . In connection with this incident, Cummings' identification of O'Neal Adkins was not convincing. He was also somewhat confused as to whether the threat was uttered by Ottie or O'Neal Adkins, For this reason, I conclude that the proof here is insufficient to support a finding that the threat in question was, in fact , uttered by O 'Neal Adkins as Cummings testified. DAVIS WHOLESALE CO. was not broken. At that moment, Leonard Cremeans and two other unidentified pickets were in the vicinity. McCallister stopped, spoke briefly to the pickets, and then drove on. He frankly conceded that although he had, rather profanely, accused Cremeans and the other pickets of having thrown the rock, he never really knew who it was that had done so."' For this reason I conclude that on this record, the evidence is clearly insufficient to ascribe responsibility for the rock throwing to Cremeans. Finally, there is other testimony, which the Respondent offered, obviously to establish that certain strikers were thereby disqualified for reinstatement, that I have not considered as having any relevant bearing on this issue. Included within this category is all testimony as to occasions when pickets called nonstrikers "scabs" and other appellations such as "dirty trash." 30 There was likewise testimony by some of the Respondent's witnesses as to other incidents that were trivial in the extreme.31 In another category were attempts by the Respondent to establish evidence as to the number of broken windows in the warehouse and the number of flat tires which had to be repaired during the course of the strike. The Respondent was permitted to make offers of proof in this connection. Evidence of this general nature, however, was not received. Since it was of a general character and unrelated to specific strikers, I concluded that it had no relevance to the question as to whether specific, individual strikers were eligible for reinstatement. 2. The issue as to the Respondent's condonation of violence on the part of nonstrikers Both the General Counsel and the Charging Union contend that whereas the Respondent discharged all of the strikers for alleged misconduct, the Respondent allowed violence of a more aggravated character by some of the nonstrikers to go unpunished. The facts relevant to this issue will now be considered. The Union charged that the Respondent resorted to the use of strikebreakers which Lewis Davis and Thurman Johnson brought to the Huntington warehouse from Ohio. Business Agent Gunnoe testified that he followed Davis and Johnson to Chesapeake, Ohio, on two occasions and that in each instance, the Respondent's officials picked up four different individuals who were brought back by them to the Huntington warehouse and thereafter employed. 29 At the time McCallister had a shotgun in the car According to the latter , the gun was in a case and in the same position in the car where lie frequently kept it during the hunting season because he occasionally hunted while traveling on his sales route. He further testified that at the moment he stopped to speak to the pickets, the sudden application of his automobile brakes caused the gun to slide off the seat where it was laying According to McCallister, thereafter he picked it up to return it to the seat. He denied on this occasion the gun was ever out of its case On the other hand , Dave Johnson, one of the strikers , testified that he was present during this incident and that McCallister had stepped outside the car with an automatic shotgun and declared to all those present "If another one of you throw a rock I will blow you to kingdom come " Johnson so testified as a rebuttal witness However, in this connection he was not convincing I conclude that McCallister was the more credible 30 Larry Hill testified that on an occasion in January while he and Thomas Gray were making deliveries, James Gibson referred to him and Gray with this epithet Gibson denied that he had ever used this term. 3i E g , William Jones , a nonstriker, testified as to an incident in February, when, according to Jones, Dueird Pennington, one of the pickets, kicked snow and slush at him 311 Both Davis and Johnson emphatically denied that they had ever been to Chesapeake, Ohio, as Gunnoe testified. Their denials were credible and are accepted as persuasive by me. There was testimony to the effect that Thurman Johnson instructed the drivers to run down any of the pickets who got in the way of any Davis' trucks. Thus, Paul Christian, who did not join the strikers until several days after the walkout began, testified that on December 9, he heard Johnson tell Thomas Gray, one of the truckdrivers, . if any of these suckers got in the way run over the top of them." James Gibson, one of the strikers, testified that later that month, in a conversation with Gray, the latter told him that he had been instructed that "if any of the strikers laid in front" of him he was "to run them down." About December 29, Gray was involved in a collision with an automobile driven by Kelsey Elkins when the latter and his passengers were engaged in ambulatory picketing. Although Gray testified that Elkins had been responsible for the accident, Gray had a rear-end collision with Elkins for which he was at least partially, if not completely, responsible.3' Estil Loftis, one of the strikers, testified that shortly after this accident Elkins' car was parked near the warehouse and that Lewis Davis came out to inspect the damage." According to Loftis, as the company president surveyed the automobile he remarked "Any damn one of you guys that got his car in front of my trucks will ... get hit like Kelsey's car got hit." Davis freely conceded that he had gone out to inspect the damage to Elkins' car, but he denied that he had made any such observation as that which Loftis attributed to him He further testified that while at the scene he had commented to the strikers present, "Boys, I hate to see an accident. I don't care who's involved because they're bad." Davis' version of this encounter was completely credible to me. Loftis, on the other hand, was very confused on cross-examination as to various aspects of the alleged conversation. Throughout his recitation of what purportedly occurred he did not impress me as having either an accurate recollection of the event, or of even trying to recall what actually was said. For this reason, I conclude that the testimony of Lewis Davis is the more accurate and reliable in connection with this particular matter. Thurman Johnson denied that he had ever instructed the Davis truckdrivers to run down anyone, and Thomas 32 From the testimony of Gray, Elkins, and Larry Blankenship, the latter being one of the passengers in Elkins' car, it appears that for some while on the day in question Elkins had been following Gray's truck After a time, Gray slowed down and Elkins passed the truck. Thereafter, according to Elkins' credible testimony , notwithstanding the fact that lie maintained a steady speed of about 50 miles per hour , his passenger car was struck from the rear by Gray's truck Gray testified that the accident occurred solely because Elkins suddenly applied his brakes several hundred feet ahead of the Davis truck, so that Gray had no alternative but to hit him Elkins denied that he had done so and his denial was credible It is inconceivable to me that Elkins, as the driver of a passenger car, would deliberately apply his brakes so as to cause a collision when being followed by the large ten- wheel truck that Gray was driving Similarly, it seems equally unlikely that Gray would have courted disaster by deliberately ramming the vehicle ahead of him Gray conceded that he was subsequently charged with a traffic violation in connection with this accident and fined $35 33The damage was considerable Elkins testified that it cost $584 to repair the car 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray denied that he had ever reported to Gibson that he had received such instructions from Johnson. Whereas, it is my conclusion that Johnson did not, in fact, urge any of the drivers to engage in the type of mayhem which the Charging Union would attribute to the Respondent, I conclude that Christian's testimony as to what he heard Johnson say was substantially accurate. On the other hand, it is also my conclusion that the subsequent collision which Gray had with Elkins, while quite plainly the result of Gray's own negligence, cannot, inferentially or otherwise, be attributed to any alleged company policy that strikers were to be "run ... down." Another incident was offered by the Charging Party as a dempnstration of the Respondent's tolerance of violence on the part of nonstrikers. Thus, Keith Tomblin testified that about a week after the strike began, when he and other pickets were outside the plant, Thomas Gray, a nonstriker then at work in the warehouse, came out to the street and threatened to beat him up. Gray, however, testified that on this occasion Tomblin was standing outside the gate, cursing him and challenging him to come out and fight. According to Gray, after this had gone on for sometime, he called out to Tomblin that he would accept his challenge, if the other pickets would stand back. Gray testified that at that point, he started out to meet Tomblin, but that Thurman Johnson intervened and ordered him back in the warehouse with the declaration that Tomblin was "just trying to cause trouble." Whereas neither Tomblin nor Gray was completely credible, Johnson's testimony as to this matter corroborated that of Gray. Since Johnson's testimony was credible, I conclude that the provocateur in this instance was Tomblin and that only the warehouse manager's intervention prevented a fist fight between Gray and the picket.34 The Charging Party offered a substantial amount of testimony about an incident which occurred on February 12 at Culloden, West Virginia. This was at the site of the Respondent's new warehouse which was still under construction at the time. Wellington Breed, James Gibson, Thomas Templeton, and John Lucas testified that on this occasion when they approached the Culloden warehouse area, Lewis Davis and James Morrison came out to s4here they were, that one, or both, of the latter had long pieces of pipe or wooden clubs; they cursed the strikers; and Lewis Davis declared that if any striker set foot on his property he would "knock [their] G-D-heads off." Lewis Davis testified that on this particular day he was at the Culloden warehouse when James Morrison arrived with a truckload of merchandise and reported to him that he had been followed for some distance by a group of about 15 pickets. Davis testified that at the time he had been measuring space for shelving in the new building with a piece of reinforcing steel that was several feet long. According to Davis, while still carrying that piece of steel in his hand, he and Morrison went to the outskirts of the warehouse area where the pickets were still gathered and reminded them that they were to stay off the Respondent's grounds. Davis testified that he told the strikers, "Boys, when you cross the railroad you're on private property ... I don't want to catch you over here." According to Davis, at this point, Belcher, one of the pickets, yelled out "You come over here, you s-o-b-, I've been waiting to get ahold of you for a long time." Davis denied that either he, or Morrison, waved any steel at the pickets or threatened them in any way. The testimony of the strikers as to this incident was confused and contradictory and most of it, at the time it was given at the hearing, impressed me as being grossly exaggerated. On the other hand, I conclude that the account of the incident by Lewis Davis was completely credible. Whereas the foregoing incidents provide no support for the contention of the General ounsel and the Union that the Respondent applied a double standard as to misconduct during the strike, there is other evidence which must be considered. On the evening of December 30, Ralph Porter, one of the nonstrikers, arrived in a taxicab at the warehouse entrance, presumptively, to report for work. All witnesses concurred that at this time Porter was in a very drunken condition. As he stepped out of the cab at a point only a few feet from the pickets then on duty in the area, Porter drew a pistol and fired at the ground. He then turned and endeavored to walk toward the warehouse entrance. Paul Christian and Dave Johnson, two of the pickets in the vicinity, immediately called the police. In the meantime, Lewis Davis came upon the scene and the pickets called Porter's condition and performance to his attention. When the police arrived, Porter had no weapon on his person. A search resulted and Davis located the gun along the warehouse wall where Porter had endeavored to conceal it. Johnson conceded that Davis, along with the pickets, urged the police to get Porter out of the area and to jail. The following day, Donald L. Davis, secretary-treasurer of the Respondent, signed a $500 bond which Porter was obliged to post while awaiting a hearing on the charges that had been brought against him. Lewis Davis testified that he never authorized Donald Davis to sign such a bond and that shortly after this incident he advised Attorney Jenkins, as counsel for the Company, to take no part in the defense of Porter in connection with any criminal charges on which he might be tried. It was conceded by the Respondent that Porter was an employee at the time of the incident and that he remained on the company payroll after its occurrence. Lewis Davis further conceded that the State court injunction, then in effect, enjoined the carrying of firearms by the employees, as well as the strikers. Nevertheless, it does not appear that Porter was ever disciplined, much less discharged, for his performance at the plant entrance on the evening of December 30. It is also of some significance that a corporate officer, such as Donald Davis, posted bond for Porter. Although Lewis Davis testified that this had been done without his knowledge, he also conceded that, as the secretary-treasurer, Donald Davis had considerable latitude to act on his own.35 3' William Huffman, a striker, testified that about the first week in January, he heard Thurman Johnson state "that boy surprised me because he come out we'll get Bill's house tonight " Johnson denied ever having made such a remark at any time His denial was credible. 35 In another case involving the alleged misuse of firearms, bond for the defendant was posted by Ethel Davis, wife of the company president. This was after the incident in December involving Templeton and Myers , when the latter was charged with misuse of the shotgun which he had pointed at Templeton and Lucas, when the latter two were picketing the warehouse exit The bond for Myers, bearing Mrs Davis' signature , was offered in evidence by the General Counsel as G.C. Exh 14 1 rejected the exhibit and directed that it be placed in the rejected exhibit file Upon reconsideration , I conclude that this exhibit should be, and it hereby is, received in evidence. DAVIS WHOLESALE CO. 313 About February 12, an incident occurred outside the Huntington warehouse in which a number of the nonstrikers gathered about a small group of pickets and voiced a series of threats. William Pack, one of the strikers, testified that he and three or four other pickets were near the warehouse entrance about 8 p.m. on the above date. According to Pack, Thomas Gray and several other nonstrikers came out of the warehouse at that point. Soon thereafter, about 12 or 13 nonstrikers who were at work emerged from the building and gathered around the pickets. In addition to Gray, William Jones, Charles McCaw, James Stanley, R.A. Blankenship, Paul Bias, Ralph Porter, Keith Porter, James Myers, Edward Burgess, B.G. Perry, Mac Perry, and Foreman Ed Frazier were in this group. According to Roy Lewis, Stanley, one of the nonstrikers, urged the rest of the nonstrikers to assault the pickets with comments such as "let's get them ... this is about the odds they like...." Two of the pickets, Pack and Dale Barnett, were in an automobile parked in the area. According to Pack, Gray yelled out at him and Barnett, "Come on out . . . we want to give you some of your own medicine." Estil Loftis, another striker in the area, testified that Stanley challenged Homer Ward, one of the strikers present, to step out where he could beat him up. Loftis further testified that Burgess, one of the nonstrikers present, had a steel bar in his hand throughout the confrontation. Loftis conceded, however, that Burgess did not hit anyone with this bar. The large group of nonstrikers remained outside the warehouse entrance for about 30 minutes and until at the urging of Mac Perry, the warehouse guard, they returned to their duties. It was undenied that Foreman Ed Frazier was present during most of this occasion and that he did nothing to get the employees back into the plant or quell what could have developed into a melee. From the timecards offered in evidence by the Charging Party it further appears that, notwithstanding the uncontradicted evidence that about 12 of the employees were outside the gate on this occasion, they were not docked for any time and were paid for a full shift. 36 3. Concluding findings When the Respondent denied reinstatement to all of the strikers, as Johnson testified, the Respondent considered them "as a group and discharged [them] as a group." This was, in effect, a mass refusal of reinstatement. In taking this position, however, the Respondent erred, for it is well settled that the unlawful acts of individual strikers are not chargeable to other strikers without proof that they participated in the acts. N.L.R.B. v. Cambria Clay Products Company, 215 F.2d 48, 53 (C.A. 6); N.L.R.B. v. Wichita Television Corporation, d/b/a KARD-TV, 277 F.2d 579,585 (C.A. 10), cert. denied 364 U.S. 871; N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645, 650 (C.A. 6); N.L.R.B. v. Wallick and Schwalm Company, 198 F.2d 477, 485 (C.A. 3). Nor does the failure of any strikers to abandon picketing or disassociate themselves from any alleged violence justify a finding that such strikers ratified any misconduct by their costrikers. N.L.R.B. v. B.Y.D. Company, 237 F.2d 545,549-551 (C.A.D.C.). Moreover, it is true, as the General Counsel and the Charging Party urge in their respective briefs, that the conduct of the Respondent throughout the strike, insofar as that constituted condonation of misconduct by nonstrikers, must be considered in evaluating the validity of the Respondent's contention that the strikers engaged in such misconduct as to free the Respondent of any duty to reinstate them. N.L.R.B. v. Thayer Company, 213 F.2d 748, 752-753, 755-756 (C.A. 1), cert. denied 348 U.S. 833; Kohler Co., 148 NLRB 1434, 1447; Quality Limestone Products, Inc., 153 NLRB 1009, 1013-14. Foremost among those considerations must be the action of the Respondent, as found above, in immediately discharging all those who joined in the walkout for having gone on strike. Likewise, there was the incident at the Huntington warehouse, on February 12, when some dozen or more employees, in the presence of at least one foreman, spent approximately a half hour outside the premises engaged in an angry exchange with the pickets which the nonstrikers had precipitated. Also, there is the incident involving Ralph Porter, the nonstriker, who appeared for work in a drunken condition and brandished a gun which he fired in the presence of the pickets. Notwithstanding this blatant violence, Porter was not discharged or disciplined and the secretary-treasurer of the Respondent posted bond for his appearance on the criminal charges arising out of the incident.There is in the record also the testimony of William Jones, another nonstriker, who testified that for somewhile after the strike began he carried a shotgun to work everyday and that, while on duty, in at least one instance, he stored his weapon in the IBM room at the warehouse where it was within plain view of many of the employees at work. On the other hand, it is equally clear that whereas the unlawful practices of the Respondent may have excused certain incidents in which the strikers engaged, some of the misconduct of the strikers cannot be excused or rationalized on any ground consonant with the purpose of the Act. Consequently, I conclude, on the basis of the findings set forth earlier herein, that the following named strikers engaged in such unprotected concerted activity during the strike as would free the Company of any obligation to reinstate them: Ottie Adkins, because of this threat to Donald Cummings to beat him up for having sworn out certain warrants and his further threat to Cummings that if the pickets ever caught him at work after that day the Cummings had "had it"; James Belcher, because of his threat to nonstrikers Ball and Green that "if we don't get you all we will get your wives," his threat to go to the home of William Jones "and stomp you in the mud of that ridge," and his assualt on Melvin Gallimore near the rooming house where Gallimore lived; Wellington Breed, because of his participation with Delano Keenan about December 13, in the incident which resulted in the personal injury of nonstrikers John Merritt and Ernest Ferguson; Paul Christian, because of the threat voiced to Donald Cummings, a nonstriker, that if he continued to work during the strike Cummings himself might be injured and that the upholstery shop operated by Cummings' father and mother might be damaged; Delano Keenan, because of his role, along with Wellington Breed, in the incident involving Merritt and Ferguson, his visit to the home of nonstriker Thurman Green and his prediction to Green's wife that her husband might be hurt unless he joined the strikers, his threat during the same period to Charles McCaw, another nonstriker, that he "had better watch out if [he] thought anything about [his] wife," and his vandalism on the night of February 19 when he used a slingshot to destroy the glass windows on several Davis 36 These timecards, marked Charging Party's Exhibit 25 (a-1) were rejected at the hearing and placed in the rejected exhibit rile Upon reconsideration of this ruling, I conclude that they should be, and they hereby are, received in evidence 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trucks; Alfred Maynor, because of the role he played in the incident, late in December, when three tires were punctured on a Davis truck that was driven by Thomas Gray, a nonstriker; Ronnie Napier, because of his threat to beat up Thomas Gray, and for having hurled a pop bottle from a speeding car at the Davis truck driven by nonstriker William Jones; Clifford Sword, for having thrown a brick, while on the picket line about December 11, at the car in which Herman McCallister and William Jones were riding, for having threatened nonstriker Donald Cummings with a club while the latter was attempting to report for work, and for having brandished a pistol at nonstrikers Thomas Gray and Larry Hill; Keith Tomblin, because of his having punctured a tire on the truck driven by Frank Meehling; John Valentine, because of his vandalism in puncturing a tire on the car of nonstriker Stanley, his assault on nonstriker Thomas Ball at Paul's Grocery, his threat to beat up Charles McCaw if he caught him outside the warehouse gate, his threat to, and pursuit of, nonstriker Melvin Holstein when the latter was attempting to report for work, and his participation in the rock-throwing episode involving the Davis truck driven by Paul Morrison. Of the remaining employees named in the complaint, I conclude that none of them was either identified with any of the acts of misconduct found herein, or chargeable with such misconduct as would justify the denial of reinstatement. Whereas all of them were identified as having participated in the strike and having, at various times, been on the picket line, there was no testimony, insofar as I could ascertain, of overt conduct on their part that was unprotected, or of such character, under the circumstances present here, as would result in the forfeiture of the right to reinstatement. "Unauthorized acts of violence on the part of individual strikers are not chargeable to other union members in the absence of proof that identifies them as participating in such violence." N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645, 652 (C.A. 6). Consequently, I conclude and find that on the present record, the following strikers did nothing to disqualify themselves for reinstatement: Norris Adkins, O'Neal Adkins, Gary Bias, Larry Blankenship, Jarrell Bowyer, Leonard Cremeans, Harold Duffer, Kelsey Elkins, Lindsey Finley, James Gibson, Dennis Holley, William Huffman, Dave Johnson, Roy Lewis, Emil Loftis, Estil Loftis, John Lucas, William Pack, Thomas Templeton, Homer Ward, and Donald Watts. There remains for disposition only one other issue. The amended complaint specified 31 employees as having gone on strike and added to that listing the phrase "and other employees whose names are unknown to the Regional Director." This catchall phrase was never particularized by the General Counsel, but the Charging Party devoted a substantial amount of time to exploration of the question as to how many employees, in addition to the 31 above mentioned, had gone on strike. From the Respondent's payroll records the Charging Party secured the names of seven additional employees who were listed as having been terminated in the period immediately following the outset of the strike. These were Lowell Damron, Paul Morrison, Dale Butcher, Robert Peterson, Tony Ashworth, Fred Rood, and Alan Sadler. Thurman Johnson was called by the Charging Party as an adverse witness and cross- examined as to his knowledge of these terminations and the extent to which any or all of them had resulted from the strike. Johnson testified, in substance, as follows: Damron telephoned Johnson immediately after the strike began to tell him he had quit because he did not care to cross the picket line. Morrison quit for a few days after the strike began, but returned to work and was still employed at the time of the hearing. Butcher quit on December 8, after the picket line was established but thereafter Butcher never appeared on the picket line himself. Johnson testified that Butcher applied for reemployment about February, but that he was not rehired because the Respondent did not need anyone at the time. Robert Peterson left the Company's employ on December 9 to join the military service. Ashworth quit on December 11, after telling Johnson that he was doing so because the strikers had destroyed the roof on his car. He subsequently returned to work at the warehouse and remained at his job until joining the Army sometime before the hearing. Rood did not report for work after the strike began and later told Johnson that he quit because of the strike. Sometime later, however, he sought reemployment. When Johnson subsequently had a job opening for Rood he was unable to contact him. Sadler rode to work with Paul Christian. When the latter went on strike, Sadler notified Johnson that he would be unable to report for work because he had no means of getting to the warehouse. Johnson never saw Sadler participate in any of the strike activities. Whereas the Charging Union would appear to have been in possession of any information that would establish more concretely the participation of the seven above-named employees in the strike, it offered no such evidence. Nor was any of these seven individuals called as a witness on this issue. Johnson's testimony, given under cross- examination, thus constitutes the only evidence in the record on this matter. In its brief the Charging Party concedes that it is not contending that reinstatement should be ordered for those who quit work, on or after December 8, for reasons unrelated to the strike, or who, after being off duty for a short while, subsequently returned to their jobs. Included in this category are Peterson, who went into military service, and Morrison and Ashworth, both of whom went back to work before the termination of the strike. Whereas both Butcher and Sadler did not report for work after December 8, they never notified the Respondent that their failure to do so was because of their desire to join common cause with the strikers. The Respondent was not required to speculate as to whether that had been the reason. Ekco Products Company, 117 NLRB 137,146, 218. On the other hand, both Damron and Rood are in a different category, for both specifically apprised Johnson that they had quit because of the strike. Later, when Rood sought reemployment Johnson told him that there was nothing available for him. Damron and Rood had, indeed, "made common cause with the strikers" (Mrs. Fay's Pies, Inc., 145 NLRB 495, 498, enfd. 341 F.2d 489 (C.A. 9)) by their open avowal to Superintendent Johnson of this decision. For this reason they must be, and are, found to have been unfair labor practice strikers along with the other 31 employees whose strike status is not in dispute. Accordingly, I conclude that Damron and Rood are entitled to the same reinstatement rights as are accorded the other unfair labor practice strikers. 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 Respondent's DAVIS WHOLESALE CO. 315 operations described in section I, above, have a close, intimate, and substantial relationship 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. - CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees who went on strike on December 8, 1965, and thereafter, and of those strikers who sought reinstatement , thereby discouraging membership in the Union, 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. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel and the Charging Party have not proved by a preponderance of the evidence that the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights safeguarded by the Act, except by the specific acts and conduct found herein to have been violative. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the strike which began on December 8, 1965, was caused and prolonged by the Respondent's unlawful refusal to bargain with the Union and by the Respondent's discharge of all those employees who went out on strike, under normal circumstances all the strikers would be entitled to reinstatement whenever they unconditionally applied for reemployment, irrespective of whether or not their positions had been filled by the Respondent. Here, however, it has been found that certain strikers, by acts of violence and misconduct during the course of the picketing, forfeited this right. The names of this group are listed in Appendix A. All of the other strikers, however, listed in Appendix B, having engaged in no such misconduct, are entitled to full reinstatement . Accordingly, in order to effectuate the policies of the Act by restoring the status quo that existed prior to the time when the Respondent engaged in the unfair labor practices, I shall recommend that the Respondent be ordered to offer reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, to all employees listed in the aforesaid Appendix B, dismissing , if necessary, any person hired on or after December 8, 1965, when the strike began. I shall also recommend that the Respondent be ordered to make whole said employees listed in Appendix B, for any loss of pay they have suffered, or may suffer, by reason of the Respondent's refusal to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as-wages during the period from the date of his unconditional offer to return to work on April 7, 1966, to the date of the Respondent's offer of reinstatement.37 With respect to the employees listed in Appendix A it will be recommended that reinstatement and backpay be denied for the reasons hereinabove stated. It will also be recommended that the Respondent be required to preserve and make available to the Board or its agents, upon request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of employees' right guaranteed by the Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Davis Wholesale Co., Inc., its officers, agents, sucessors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with discharge, with terminating their employment, with refusal to reinstate them, and with other reprisals for engaging in concerted activities. (b) Discouraging membership in Food Store Employees Union Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization , to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes 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. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, of all those employees listed in Appendix B, dismissing, if necessary, any person hired by the Respondent on or after 37 Backpay for the foregoing employees shall be computed in accordance with the formula approved in F W Woolworth Company, 90 NLRB 289, with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co , 138 NLRB 716, 717-721 316 DECISIONS OF NATIONAL LABOR RELATIONS December 8, 1965, and make whole the aforesaid employees, in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its warehouse at Culloden, West Virginia, copies of the attached notice marked "Appendix C."311 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.39 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practices, other than as herein specifically found. 381n the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 39 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A Ottie Adkins Alfred Maynor James Belcher Ronnie Napier Wellington Breed Clifford Sword Paul Christian Keith Tomblin Delano Keenan John Valentine APPENDIX B List of Striking Employees Entitled to Reinstatement and Backpay Norris Adkins Gary Bias O'Neal Adkins Larry Blankenship Jerrell Bowyer Leonard Cremeans Lowell Damron Harold Duffer Kelsey Elkins Lindsey Finley James Gibson Dennis Holley William Huffman Dave Johnson BOARD Roy Lewis Emil Loftis Estil Loftis John Lucas William Pack Fred Rood Thomas Templeton Homer Ward Donald Watts APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Food Store Employees Union Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Food Store Employees Union Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, 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 by the Act. WE WILL offer to the employees listed below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them: Norris Adkins O'Neal Adkins Gary Bias Larry Blankenship Jarrel Bowyer Leonard Cremeans Lowell Damron Harold Duffer Kelsey Elkins Lindsey Finley James Gibson Dennis Holley William Huffman Dave Johnson Roy Lewis Emil Loftis Estil Loftis John Lucas DAVIS WHOLESALE CO. 317 William Pack Homer Ward of their right to full reinstatement upon application in Fred Rood Donald Watts accordance with the Selective Service Act and the Thomas Templeton Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. DAVIS WHOLESALE CO., INC. This notice must remain posted for 60 consecutive days (Employer) from the date of posting and must not be altered , defaced, or covered by any other material. Dated By If employees have any question concerning this notice (Representative) (Title) or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 2407, Note: We will notify the above-mentioned employees if Federal Office Building, 550 Main Street, Cincinnati, Ohio presently serving in the Armed Forces of the United States 45202 , Telephone 684-3663.