W. C. McQuaide, Inc.

W. C. McQUAIDE, INC. W. C. McQuaide, Inc. and Robert V. Lesnak and In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 110. Cases 6-CA-7509 and 6-CA-7770 September 24, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 31 , 1975, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and counsel for General Counsel filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings , findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. 1. Our major disagreement with the Administra- tive Law Judge relates to his resolution of the 8(a)(1) and (3) violation issues posed by Respondent's dis- charge of certain striking employees on May 19, 1974.3 As set forth more fully in the Administrative Law Judge's Decision, Respondent issued the dis- charge notices on May 19 4 to seven individual em- ployees while the strike was in progress. The reason asserted for the dismissal in each case was that the striker had engaged in picket line misconduct. The Administrative Law Judge found merit in the assert- ed reason for the discharge as to one of the strikers only, namely Lawrence Gindelsperger , and therefore recommended dismissal of the complaint as to Gin- Respondent contended in its brief to the Board that the Administrative Law Judge exhibited bias, prejudice, and hostility at the hearing and that his Decision should therefore be set aside. We have carefully reviewed the re- cord in this case and we find that Respondent 's contention is without merit. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 Although we adopt the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8 (aXl) of the Act by its coercive interrogation of strikers during the September interviews, in so doing we find it unnecessary to rely on L. McQuaide's comment that the Teamsters are Mafia dominat- ed. 4 Unless otherwise noted, all dates refer to 1974. 593 deisperger. As no exceptions were taken to this find- ing, it is hereby adopted pro forma. With respect to the remaining six strikers, the Ad- ministrative Law Judge recited the acts of miscon- duct which he found each had committed during the strike. While acknowledging that the acts "arguably or in fact exceeded the permissible bounds of strike conduct" under Board law, he found that the resolu- tion of the 8(a)(3) issues posed by their discharge turned upon an issue independent of the character of the strikers' conduct. Noting that the misconduct oc- curred as long as 1 month prior to the discharges, he found that this hiatus raised a substantial question "as to whether the events in question actually moti- vated the discharges, or whether they served merely as the pretexts therefor." The Administrative Law Judge resolved that question against Respondent, and sustained the alleged 8(a)(3) violations based on the May 19 discharge of Dennis J. Patterson, John W. Geisel, Jr., Harry C. Lavely, Robert Lesnak, Frank Petrosky, and Dennis Albert. We believe that the Administrative Law Judge er- red in his finding that the Respondent's discharge of these six individuals was prompted by reason other than acts of strike misconduct. As noted in the Ad- ministrative Law Judge's Decision, their misconduct formed the basis of a contempt citation issued by the Pennsylvania Court of Common Pleas on May 7. That court, pursuant to Respondent's petition, found that the strikers engaged in certain acts of strike mis- conduct and by so doing violated the court's injunc- tion against illegal picket line activity. Certainly Respondent's awaiting of the determination of the merits of its contempt petition before making a deci- sion affecting the employment status of the strikers cannot be faulted. And, in the context of an intense labor dispute as was here involved, we do not view a 12-day hiatus, standing alone, as being so unreason- ably long as to warrant the inference that Respondent's decision to discharge was not, in fact, prompted by the reasons it asserted. Accordingly, we conclude that Respondent discharged the above- named individuals because they committed acts of picket line misconduct. However, our finding that Respondent's discharge action was prompted by the strikers' picketing ex- cesses does not necessarily operate to relieve Respon- dent of unfair labor practice liability. Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage in other concerted activity for their mutual aid or protection. It is well established, however, that not all conduct which.occurs in the course of a labor dispute is within the purview of Sections 7 and 13. A striking employee who engages in serious acts of misconduct may lose the protection 220 NLRB No. 80 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act and subject himself to discharge. But, as has long been recognized by Board and court deci- sions, undue strictures on the exercise of Sections 7 and 13 rights could be imposed if every act of impro- priety committed by a striking employee is deemed sufficient to place that employee outside the protec- tion of the Act. In a situation such as that here in- volved, the Board has therefore evaluated the charac- ter of the improper acts committed by striking employees and has drawn certain distinctions. Thus, the Board has differentiated between those cases in which employees have arguably exceeded the bounds of lawful conduct during a strike in a "moment of animal exuberance" 5 from those cases in which the misconduct is so flagrant or egregious as to require subordination of the employee's protected rights in order to vindicate the broader interests of society as a whole. In so evaluating the conduct by strikers, the Board will not abdicate its statutory responsibility to weigh the aforementioned considerations to another tribu- nal whose decision may be predicated on different considerations from those pertinent to our inquiry. For this reason, we place no reliance on the finding by the Pennsylvania Court of Common Pleas that the six individuals here in issue were in contempt of its injunction against unlawful picket line activity.6 That finding, broad as it was, is for our purposes as best an indication that another tribunal has found that the conduct in question occurred? It does not relate, however, to the aforementioned issue of whether the conduct was sufficiently egregious in character to strip an individual of the protection of the Act. With these principles in mind, we proceed to an evaluation of the conduct engaged in by the six individuals in question. We agree with the Administrative Law Judge, but for the reasons set forth above, that the discharge of John W. Geisel, Harry C. Lavely, and Frank Petro- sky was in violation of Section 8(a)(3) and (1) of the Act, and that these strikers should be reinstated. The conduct attributed to these individuals, as set forth in the Decision of the Administrative Law Judge, was not such as to remove them from the protection of the Act. Although there are indications of certain in- stances in which they verbally abused or threatened replacements, this language was not accompanied by any physical acts or gestures that would provide add- ed emphasis or meaning to their words sufficient to S Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S 287, 293 (1941). 6 See N.L.R.B. v. Cambria Clay Products Company, 215 F.2d 48, 54 (C.A. 6, 1954). 7 The court's order made no findings of fact , but rather merely provided that the respondents therein "are adjudged to be in contempt of court." warrant finding that they should not be reinstated to their jobs at the strike's conclusion.' Accordingly, we find that these employees were discharged in viola- tion of Section 8(a)(1) and (3) of the Act, and we shall order their reinstatement. We reach a different conclusion, however, with re- spect to strikers Lesnak, Patterson, and Albert. Each of these strikers engaged in conduct which, in our view, exceeded permissible or protected bounds. We discuss their cases seriatim. With respect to Robert Lesnak, replacement em- ployee Instone credibly testified that Lesnak elbowed him and threatened to knock his block off. Replace- ment Odgers, who was also credited by the Adminis- trative Law Judge, testified that Lesnak, with a group of three other strikers, put his hands on the truck Odgers was driving and threatened to beat his head in. Thus, Lesnak not only threatened replacements, he actually physically assaulted one individual and so conducted himself with respect to another that his threats were given a sense of immediacy and cre- dence. Clearly this conduct went beyond the normal give and take of a labor dispute and extended into the area of unprotected misconduct .9 With respect to strikers Dennis Patterson and Dennis Albert, credited testimony established that Patterson and Albert pounded on the window of the truck which replacement Rice was driving, and threatened to beat him up. As with the conduct attri- buted to Lesnak, this conduct combined threats of personal physical injury with actions that would tend to give import to the expressions of violence and was thereby sufficiently egregious to remove them from the protective mantle of the Act. We therefore find that Respondent was justified in discharging Lesnak, Albert, and Patterson for strike misconduct, and we shall accordingly dismiss the complaint as to them. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, W. C. McQuaide, Inc., Johnstown, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: $ See Valley Oil Co, Inc., 210 NLRB 370 (1974); Federal Prescription Service, Inc., 203 NLRB 975 (1973); Capital Rubber and Specialty Co., Inc., 201 NLRB 715 (1973). 9 Compare Ohio Power Company, 216 NLRB No. 70 (1975); Pepsi Cola Bottling Company of Lumberton, Inc., 203 NLRB 183 (1973); Alabaster Lime Company, Inc., 194 NLRB 1116 (1972); Alkahn Silk Label Company, 193 NLRB 167 (1971). W. C. McQUAIDE, INC. 595 1. Substitute the following for paragraph 1(e): "(e) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer to the following named employees, and to all employees who concertedly engaged in a work stoppage on or after April 17, 1974, full reinstate- ment to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make said employees whole in the manner described above in the section entitled "The Remedy": John W. Geisel, Jr., Harry C. Lavely, R. C. McNulty, R. J. Kessler, J. M. Swinger, K. J. Fuska, J. P. Maderia, D. E. Yeckley, R. E. Joseph- son, T. Prudhoe, N. V. Barefoot, J. A. Maderia, A. B. Carr, Stephen L. Edwards, Homer Allison, Frank Petrosky, G. S. Marion, J. M. Dikum, G. J. Ferrante, T. N. Spisak, K. C. Huntzinger, and G. K. Saylor." 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed to the extent that it alleges violations of Section 8(a)(1) and (3) of the Act for the May 19 discharge of Robert Lesnak, Dennis Albert, and Dennis Patterson. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees or fail promptly to reinstate them upon unconditional request, and WE WILL NOT otherwise discriminate against employees in regard to hire or tenure of employment, in order to discourage membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 110, or any other labor organi- zation. All of our employees are free to become or remain members of that Union or any other union. WE WILL NOT interrogate employees concern- ing their union activities and sentiments. WE WILL NOT condition the reinstatement of employees upon their abandonment of support for the above-named Union, or upon their sup- plying us with information concerning the union activities of other employees. WE WILL NOT threaten employees with reprisal if they engage in union activities or in concerted, protected activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed them by the National Labor Relations Act. Those rights include the right to form, join, or assist labor organizations, 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 and protection. WE WILL offer full and immediate reinstate- ment to the following named employees to their former or substantially equivalent positions, and WE WILL make them whole for any loss which they have suffered by reason of the discrimina- tion which they have suffered, with interest at 6 percent per annum. John W. Geisel, Jr. T. N. Spisak Harry C. Lavely K. C. Huntzinger Frank Petrosky G . K. Saylor G. Marion K. J. Fuska J. M. Dikum J. P. Maderia R. C. McNulty D. E. Yeckley R. J. Kessler R. E. Josephson J. M. Swinger T. Prudhoe G. J. Ferrante N. V. Barefoot Stephen L. Edwards J. A. Maderia Homer Allison A. B. Carr WE WILL offer the same reinstatement and backpay to all employees who went on strike on or after April 17, 1974. W. C. MCQUAIDE, INC. DECISION FINDINGS OF FACT A. Statement of the Case WALTER H. MALONEY, JR., Administrative Law Judge. This case I came on for hearing before me at Johnstown, Pennsylvania, upon a consolidated complaint,2 amended at 1 Respondent was originally represented in this case by Thomas F. Walsh, Esq., of Washington, D.C. Mr. Walsh withdrew from the case before the hearing began and took no part in the proceeding. 2 The principal docket entries in this case are as follows: Charge in Case 6-CA-7509, filed on May 22, 1974, by Robert V. Lesnak, and amended charge filed by Lesnak on September 25, 1974 ; charge in Case 6-CA-7770 filed by International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Local 110 (herein called Local 110 or Union), on September 18, 1974; complaint issued in Case 6-CA-7509 on September 27, 1974; Respondent's answer to said complaint filed October 10, 1974; consolidated amended complaint in both cases issued October 25, 1974; answer to consolidated amended complaint filed November 7, 1974; hear- ing held in Johnstown, Pennsylvania , on November 18, 19, 26, and 27, and Continued 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing, issued by the Regional Director for Region 6, which alleges that the Respondent, W. C. McQuaide, Inc .3 (sometimes referred to herein as McQuaide), violated Sec- tion 8(a)(1) and (3) of the Act. More particularly the con- solidated amended complaint alleges that , on May 17, 1974, Respondent terminated 20 named dockworkers be- cause they had gone out on strike; that on May 19 the Respondent terminated 7 named truckdrivers because they had gone out on strike; that since August 8, 1974, the Re- spondent unlawfully failed and refused to honor a request for reinstatement made by or on behalf of all of Respondent's striking employees , including, but not limit- ed to, the 27 employees named in the complaint; that the discharges and refusal to reinstate employees, noted above, converted an economic strike then in progress into an un- fair labor practice strike; that the Respondent threatened to deny reinstatement to striking employees because they supported the Union; that the Respondent unlawfully and coercively interrogated applicants for reinstatement con- cerning their union sympathies and activities; and that the Respondent interfered with Section 7 rights of employees by telling them that the Teamsters is dominated or con- trolled by the Mafia. For its part, the Respondent asserts any dockworkers removed from its payroll on May 17, 1974, were replaced by permanent employees and that, as economic strikers, they were legally subject to replacement; that the seven truckdrivers terminated on May 19 were discharged for en- gaging in acts of strike misconduct; that Respondent made an unconditional offer to reinstate all striking employees, except for the seven discharged truckdrivers, and that any who have not been reinstated have either waived reinstate- ment by not requesting it, or by obtaining permanent em- ployment elsewhere , or have not yet been reinstated be- cause business conditions have not permitted an immediate reinstatement of all applicants . Respondent denies that the strike was ever anything but an economic strike designed to support a demand for recognition made upon it by the Union before the strike began. It denies any unlawful in- terrogation or threats to deny employees reinstatement be- cause of the union activities of striking employees , and as- serts that any comments made by its officers concerning a connection between the Teamsters and the Mafia are privi- leged by Section 8(c) of the Act. Upon these and subsidiary contentions, the issues herein were drawn. December 2, 3, 4, and 5, 1974; briefs filed by the General Counsel and the Respondent on January 27, 1975. 3 Respondent admits, and I find, that it is a Pennsylvania corporation which maintains its principal place of business in Johnstown, Pennsylvania, where it is engaged in the hauling of steel products and general freight. During the preceding 12-month period , a representative period , it per- formed services valued in excess of $50,000 for companies which are directly engaged in interstate commerce . During the same period of time, Respon- dent at its Johnstown, Pennsylvania, location purchased fuel and parts val- ued in excess of $50,000 directly from points and places outside the Com- monwealth of Pennsylvania . Accordingly, it is an employer within the meaning of Sec. 2(2), (6), and (7) of the Act. I also find that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 110, is a labor organization within the meaning of Sec 2(5) of the Act. B. Outline of the Events in Question The Respondent is a family held corporation which is owned and operated by three McQuaide brothers-Le- land, William, and Stanley-and their sister, Mrs. Jean Walker. Each owns a one-fourth interest and takes an ac- tive role in the management of the business. Respondent operates a truck line from its terminal at Johnstown, Penn- sylvania, where it maintains its office, garage, maintenance shop, and a large loading dock which is used in conjunc- tion with the trucking business. Respondent hauls freight in four States and within the Commonwealth of Pennsylva- nia. One of its principal accounts is the Bethlehem Steel Corporation, for whom it does a large amount of interplant hauling. It handles all local customer deliveries in the Johnstown area for Sears, Roebuck and Company. Until July of this year, it owned and operated a warehouse at Sidman, Pennsylvania, near Johnstown, and is now en- gaged in warehousing in rented premises . Before the com- mencement of the strike here in question , Respondent em- ployed slightly less than 300 employees. It owns and operates about 100 tractors, 135 trailers, and 25 or 30 "straight jobs," or one-piece trucks. In addition to truckdri- vers who are directly employed, Respondent employs 40 to 50 owner-operators who haul freight on a contract basis. The employees of the Respondent are not represented by any labor organization. Previous attempts to organize these employees, made both by Teamster Local 110 and other labor organizations, have failed. On or about April 1, 1974, the Union herein served on the Respondent a letter in which it claimed to represent a majority of the drivers and warehousemen employed at the Respondent's Johnstown location and requested a meeting for bargaining. Respon- dent declined to do so. On April 2, the Union filed a repre- sentation petition seeking an election in this unit (Case 6-RC-6795). On April 17, a strike began at the Respondent's Johnstown terminal. Between 120 and 150 employees walked out. They began to picket the entrances to the terminal, a transfer point near the Bedford inter- change of the Pennsylvania Turnpike, and at other loca- tions. The Union also employed roving pickets whose ob- ject it was to picket McQuaide trucks at various delivery points. All agree that the initial purpose of the strike was to obtain recognition for the Union, to get a prompt election, and to secure improvements in wages and working condi- tions. The strike had a substantial disruptive impact on all phases of the Respondent's business, including the dock operations at the terminal, the operation of the Sidman warehouse, and all local and long-distance hauling. Re- spondent hired a number of full-time and part-time em- ployees, transferred nonstriking employees to the dock or to truck driving from clerical and warehouse positions, and operated its trucks with managerial employees, all in an attempt to keep its business going . The strike was punctu- ated with a number of incidents of misconduct by specified strikers, discussed later in more detail, and by a number of serious acts of vandalism to company property, the respon- sibility for which has not been fixed. A week after the strike began, McQuaide sought and obtained from the Court of Common Pleas of Cambria W. C. McQUAIDE, INC. 597 County, Pennsylvania, an ex parse temporary restraining order, couched in both broad and in specific terms. The order was directed against the Union, named officers thereof, and some 26 named strikers.4 A slightly modified temporary consent order was agreed to by the parties and entered into on April 29, 1974 , providing for a final hearing on June 25, 1974. This order forbade unlawfully inducing or unlawfully causing any individual to engage in picketing in the course of the labor dispute in progress; forbade mass picketing at specified locations ; forbade causing injury to the person of any individual or to McQuaide's property in connection with the labor dispute ; and forbade the threat- ening of individuals with personal injury or threatening in- jury to McQuaide's property, or the blocking of the ingress or egress of McQuaide's place of business. The preliminary injunction also forbade the Union , the named strikers, and others acting in conjunction with them from "being present or inducing or otherwise causing another to be present for any unlawful purpose described herein with 5280 feet of any entrance to any place of business where Plaintiff works, except in strict conformity" with certain limitations outlined in the order. It forbade any picketing at the inter- section of Elton Road and Theatre Drive, permitting no more than four individuals to be present at this location for picketing exchange and communication . It also limited picketing at any place to four individuals at any one time. The order required local police to assist in its enforcement. During this same period of time, Respondent herein sent to its striking employees a series of three letters, dated April 23, 29, and 30, respectively, and written over the sig- nature of Leland R. McQuaide, Respondent's president. The April 23 letter stated: Dear Employee, I regret to say that your insurance coverage (Health and Accident, Major Medical and Life Insurance) will be immediately cancelled for any employee who fails to report for work April 30, 1974. I also regret to inform you that any employee who fails to report to work April 30, 1974 will be perma- nently replaced. The second letter provided: Dear Employee, It has been reported to me that the Union has told you that you cannot be replaced at this time and you cannot have your health insurance policy immediately cancelled. If you have any question about what we have told you, please, for your own welfare, and for the welfare of your family, call the Labor Board at 412-644-2977 to determine if you can be replaced. Also, call the Provident Indemnity Insurance Compa- ny, at 412-471-0975 to determine if your insurance policy will be cancelled by the end of April, 1974. If you check the above matters, you will see that the Union is not telling you the truth. If we had some- thing to hide, we would not give you telephone num- bers to check the real information for yourself. If you find that. xhe Union is lying to you now, can you ever believe them or ever trust in them again? THINK about this carefully! It is a very important decision which affects you and your family. The third letter, mailed out on the day previously an- nounced for making replacements, stated: Dear Employee, It has come to my attention that the Union has told you there will be an election on May 18, 1974. If you want to find out the real facts and if you want to determine if the Union is lying again, call the National Labor Relations Board at Area Code 412-644-2977. I'm sure the Union has not told you that if the Un- fair Labor Practice charges which we filed against them are upheld (and we are convinced the charges will be upheld) then, an election may not be held for several months, if in fact, one is ever held.s Just re- member it is the Union's own unlawful conduct which may cause this result. We are of the opinion that the National Labor Re- lations Board may determine that the Union is unfit ever to be certified as a bargaining representative. On May 1, 1974, McQuaide filed a petition in the Court of Common Pleas to have Local 110, two named officers, and six named strikers adjudicated in contempt of the pre- liminary injunction issued on April 29. The petition was later amended to include a seventh striker. The contuma- cious events allegedly occurred on April 30, 1974, and in- volved an incident which took place on Bedford Street in Johnstown, as well as other events occurring on that date elsewhere in Cambria County. The petition was set down for hearing on May 6, and was heard by Common Pleas Judge H. Clifton McWilliams on May 6 and 7 at the coun- ty seat in Ebensburg, Pennsylvania. The contempt hearing is sometimes referred to in the record as the Ebensburg hearing. Judge McWilliams entered a contempt finding against seven truckdrivers, who are the same seven individ- uals named in paragraph 7 of the complaint as discrimina- tees. Two union officials were also adjudged to be in con- tempt and were fined. He made no specific findings of fact as to which act or acts committed by the strikers constitut- ed a violation of the court's earlier order, but levied fines against each striker in the amount of $50 (except for a $100 fine imposed upon discriminatee John W. Geisel, Jr.), and then suspended the collection of the fines pending the June 25 hearing on the permanent injunction. The later hearing never took place and the fines have never been collected. The strike continued unabated. As noted above, the Re- spondent began bringing in replacements to work on the dock. During the month of May, it transferred 10 employ- ees from other departments, hired 2 individuals who were not in high school or recent high school granduates, hired 9 high school students (most of whom were about to gradu- ate), and put 3 teenage sons of company principals to work 5 McQuaide filed a CB charge against Local 110 on April 12, 10 days after the RC petition was filed and 5 days before the strike began. On May 22, the Acting Regional Director issued a complaint against Local 110 (Case 6-CB-2990) alleging certain acts of misconduct occurring after the strike 4 Equity Case 1603-1974 . TRO signed April 24, 1974, by Judge McDon- began on April 17 and after the charge was filed. This case was ultimately ald, settled. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing dockwork. Respondent claims that these employees were permanent replacements, hired as foretold in the let- ter which it dispatched to striking employees on April 23. The General Counsel contends that they were not bona fide permanent replacements, but were friends of the sons of William and Leland McQuaide, who worked on a tem- porary part-time basis, or were individuals who never in- tended to remain on the job after the strike and in fact did not do so, or were transferees from within the Company whose positions were not filled or for some other reason should not be counted in determining whether striking dockworkers were lawfully removed from the payroll on May 17 to make room for them. During the weekend of May 17-19, the Respondent re- moved some 26 employees from its payroll. It terminated the seven truckdrivers 6 found guilty of contempt of the state court injunction by sending each of them a letter, dated May 19, which stated, "This is to advise that you have been discharged for engaging in unlawful conduct as found, for example, by Judge McWilliams on May 7, 1974." On May 17, Respondent sent letters to some 19 dockworkers, notifying them that they had been replaced.? The letter read "This to advise that you are no longer em- 6 These are Dennis J. Patterson, John W. Geisel, Jr., Harry E. Lavely. Charging Party Robert Lesnak, Frank Petrosky, Dennis Albert, and Law- rence Gindelsperger. 7 A sharp factual dispute arose at the hearing over the number of dock- workers who were mailed May 19 replacement letters . Respondent's execu- tive vice president, William McQuaide, prepared a form letter which was mailed to recipients, whose names were simply typed in the upper lefthand corner in the place normally reserved for the addressee. William McQuaide testified that he had no record of the names of the individuals to whom the letter was sent, in that the Company had departed from its normal practice in this regard because its office procedures had been thrown into a state of disarray by the strike. When the strike began winding down, Respondent sent a letter, dated August 13, to all of the individuals who received the May 17 replacement letter. It also has no definitive record of the persons to whom this letter was written. On the following day, August 16, William McQuaide sent a letter to his former attorney, Thomas Walsh, in which he listed 17 named individuals, together with their mailing addresses, and des- ignated the list as "Men that received the attached 'replacement letter' dated May 17, 1974." The list was prepared with the assistance of William Mc- Quaide's secretary. It was furnished to the Regional Office by Mr. Walsh in the course of the investigation of the charge in this case. At the hearing, William McQuaide testified that, to the best of his recollection, he would not have sent any such letters to McNulty, Baker, and Josephson, whose names appeared on the list. He doubted seriously that he would have sent one to Kessler, since, in his view, Kessler, whose name also appears thereon, was a foreman . I treat this testimony as an admission at the hearing by William McQuaide that at least 13 persons (Marion, Dikum, Swinger, Fer- rante, Spisak, Huntzinger, Saylor, Fuska, J.P. Maderia, J.A. Maderia, Bare- foot, Prudhoe, and Yeckley) received replacement letters . The findings of referee Edward Solomon, Jr., of the Pennsylvania Unemployment Compen- sation Board of Review, dated August 21, 1974, in a decision relating to claims for unemployment compensation filed by 83 strikers, recited that employee Dikum and "approximately sixteen other dockworkers on May 17, 1974" received the replacement letter here in issue . William McQuaide was uncertain whether he sent such a letter to Raymond Josephson. Joseph- son testified positively that he received a replacement letter, and his name appears on the list sent by William McQuaide to Attorney Walsh. I there- fore find that such a letter was sent to Josephson. Josephson testified that he saw such a letter in the hands of Vallie Baker, whose name also appears on the McQuaide-Walsh list. Baker testified that he never received a replace- ment letter. I credit Baker's denial, as he gave the most positive testimony on this point of the three witnesses, and would be the one most likely to remember if he had personally received a letter effectively terminating his employment. As to McNulty, his name was on the list attached to the McQuaide-Walsh correspondence. Both Patterson and Josephson testified ployed by W.C. McQuaide, Inc. You have been perma- nently replaced." On the same day that it sent out replace- ment letters to certain dockworkers, Respondent also sent the following letter to all of its striking employees: Dear Employee, It is now May 17, 1974, a month has passed since the strike began and there is no election in sight. I am sure you all now see that the Union has been lying to you. How much longer will you let the Union lies pro- duce harm for you and your family? What has the Union done to help those striking employees who have already been replaced and have lost their jobs? Many of you have not yet been replaced. Do you want to continue to rely on the Union's false promises in hope that you won't be replaced? What have you gained if the strike never produces an election and you loose [sic] your job? WE HOPE THAT YOU FIND ANSWERS TO THESE QUESTIONS FOR THE WELFARE OF YOUR FAMILY! If you desire to discuss these matters with us and learn the TRUTH, you are welcome to attend a meet- ing to be held in the Madadore Room, Holiday Inn, Johnstown, Pa., at 9 a.m. on Saturday, May 25, 1974. A meeting attended by about a dozen strikers took place at the above-noted time and place, at which time Respondent's officers urged striking employees to return. During the course of the meeting, L. McQuaide was asked by a striking employee, James Weyandt, if he was going to oppose the applications for unemployment com- pensation which were being filed by the dockworkers who had been replaced by the May 17 letter. L. McQuaide said that he would most certainly oppose these applications, be- cause he was "not going to condone what they done to me." Other such meetings were held in other restaurants and motels to encourage striking employees to return to work. credibly that they saw such a letter in the hands of alleged discriminatee McNulty. McNulty did not testify. William McQuaide' s repudiation of the reference to McNulty in his letter to Attorney Walsh was at best uncertain. Accordingly, I conclude that McNulty received such a letter. The name of A. B. Carr does not appear on the McQuaide-Walsh list. While he was not entirely certain , William McQuaide admits that he proba- bly sent such a letter to Carr, and I rely on this admission . There is no evidence to the contrary in the record. Moreover, a replacement letter bear- ing Carr's name was placed in evidence. The General Counsel moved to amend the complaint at the hearing to add the names of Homer Allison and Stephen Edwards to the list of dock- workers who received May 17 replacement letters . Their names did not appear in the McQuaide-Walsh letter . Edwards testified positively and cred- ibly that he received a May 17 replacement letter, so I find that he was notified of replacement as of that date. Edwards also testified credibly that he saw a replacement letter which was sent to fellow employee Homer Alli- son. There is no specific contradiction in the record that either was sent such a letter, except for the general statement by William McQuaide that he sent out only 12 or 14 replacement letters. As for R. J. Kessler, who the Respondent asserts is a supervisor, his name appears on the list submitted by William McQuaide to Attorney Walsh as being a person who received a May 17 replacement letter. In his testimony, William McQuaide unequivocally denied sending Kessler a let- ter, but his denial is couched in uncertain terms . I believe that the letter written by William McQuaide to his attorney, and prepared with the assis- tance of his secretary well in advance of the time when the issues in this case became crystalized, provides a more reliable indication of the fact than McQuaide's second thought on the matter. Accordingly, I find that a re- placement letter was sent to Kessler on or about May 17. W. C. McQUAIDE, INC. On or about May 20, a vote was taken at the union hall at a meeting attended by about 80 or 100 striking truckdrivers and dockworkers. Prior to the vote, the replacement of dockworkers and the discharge of truckdrivers was dis- cussed. The strikers voted to remain on strike in support of these employees. The strike wore on into the summer. At one time in July, Respondent made an offer directly to union officials that it would take back all striking employees and consent to a representation election in exchange for a payment by the Union to the Respondent of $250,000, said sum to cover damage done to company property during the course of the strike.' No such agreement materialized. On August 8, the majority of interested private parties to this proceeding, as well as their legal representatives, were present in Johns- town, Pennsylvania, at a hearing before the Pennsylvania Unemployment Compensation Board of Review, on a ap- peal from an earlier determination by the Pennsylvania Bureau of Employment Security that 83 striking McQuaide employees were not entitled for unemployment compensa- tion for the period of May I 1 through June 8. During the course of the appeal hearing, Respondent's attorney, Ca- bot, stated publicly in response to a question by the referee that the Respondent was "ready, willing, and able" to rein- state all striking employees. This offer necessarily included dockworkers who received the May 17 replacement letter and whose applications for unemployment compensation were pending. Cabot qualified this offer at the hearing in the instant case, in response to a question by me, by stating that the seven discharged truckdrivers were not intended to be included in the statement made by him to the referee, although it does not appear that he announced any such qualification to the unemployment compensation referee.' In a private conversation with Adams immediately follow- ing the hearing, Cabot repeated his statement relative to reinstatement of strikers. In his testimony in this case, Respondent's president, L. McQuaide, also stated that, at that time, the Respondent was willing and able to take back all striking employees. After the August 8 hearing concluded, Local 110 President Jack Adams spoke private- ly to Cabot and asked Cabot if he really meant what he said about taking back all strikers. Cabot replied that he did. On the same day, Adams dispatched a letter to the Re- spondent which arrived on August 12. The letter stated: Be advised that all employees of W. C. McQuaide Freight Lines, Inc., who are engaged in a work stop- page are unconditionally ready, willing, and able to return to work immediately. 8 On July 30, the company warehouse at Sidman, Pennsylvania, was burned under circumstances leading the Respondent to suspect arson. Legal responsibility for this destruction was never fixed on any individual or group. Damage to trucks, such as broken windshields and severed air hoses, also occurred throughout the strike, but the Respondent was never able to apprehend the culprits. In addition, severe damage was done to a hangar and airplane owned by the Respondent by unknown vandals. Respondent filed a civil suit against the Union seeking $ 1 million in damages for injuries which it suffered during the strike. This suit was ultimately dismissed. 9 Applications for unemployment compensation on behalf of the seven discharged truckdrivers were among those pending before the referee in this appeal. 599 This offer to return to work is consistent with the posi- tion which we have previously communicated to you concerning our unconditional offer to return to work immediately. On August 12, Respondent's president, L. McQuaide, sent the following letter to a large number of employees: Dear Employee, Today, for the first time, I have received informa- tion which leads me to believe that you may be willing to return to work unconditionally, and to do so at once. If you desire to return to work unconditionally, please notify me of your: 1. Intention to return to work, and 2. The earliest available date you can return to work. If you want your previous job which is available, contact me as soon as possible. Three days later, L. McQuaide wrote two additional let- ters to employees, one of which closely resembled the Au- gust 12 letter, except for the last paragraph. To dockwork- ers who received the replacement letters of May 17, he wrote: As you know on May 17, 1974 I wrote a letter inform- ing you that you were permanently replaced. I would appreciate hearing from you no later than Friday, Au- gust 23, 1974 if you have any desire to work again for W. C. McQuaide, Inc. If you are currently available and desire to fill a va- cancy should one occur, please notify me of your in- tention no later than August 23, 1974. If possible, please convey this information to me at my office. To other employees, L. McQuaide wrote, on August 15, the following letter: Today, for the first time, I have received information that leads me to believe that you may be willing to return to work unconditionally, and do so at once. If you desire to return to work unconditionally, please notify me of your: 1. Intention to return to work, and 2. The earliest available date you can return to work. If I do not hear from you by Friday, August 23, 1974, I will assume that you have no desire to return to work. If possible, please see me at my office to discuss this matter. On August 16, Respondent's Attorney Cabot wrote the following letter to Local 110 President Adams: In response to your letter dated August 8, 1974, we would like to set the record straight concerning your statement that the Union had previously communicat- ed to W. C. McQuaide, Inc., that all its employees, engaged in a work stoppage, were unconditionally ready, willing, and able to return to work immediately. Prior to receipt of your letter on August 12, 1974, W. C. McQuaide, Inc., was totally unaware that any, much less all, of the employees who were engaged in a work stoppage were unconditionally ready, willing, 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and able to return to work immediately. We received no written or oral communications to that effect prior to receipt of your letter. Moreover, your statement that the employees of W. C. McQuaide, Inc., who are engaged in a work stoppage are unconditionally ready, willing, and able to return to work immediately is severely undercut and totally inconsistent with the actions of your Union and the employees who are engaged in the work stoppage. Although you say these men are ready to return to work, these same men remain on strike, are picketing the premises of the Company, and are still threatening bodily injury and other harm to per- sons engaged by or involved with the Company. This includes your Union's having engaged in secondary boycott activities and other violations of the law.10 During this same period of time, the Respondent and the Union had certain oral discussions relating to the reinstate- ment of strikers, one of which was noted above. In a phone conversation with Adams, Cabot repeated that jobs were available to any employee who wanted them and that all they had to do was ask for them. He complained lained to Adams about the continuation of a picket line," and also com- plained that the existence of the picket line was inconsis- tent with Adams' letter of August 8. Adams said he would do what he could about eliminating the picket line and about having employees contact McQuaide concerning re- instatement. Upon dispatching his August 8 letter, Adams removed pickets from allocations, except for the main truck en- trance to the McQuaide terminal at Eisenhower Boulevard and Theatre Drive. He also terminated all roving picketing. Adams testified that, on or about August 18, he instructed pickets to cease picketing at the Eisenhower Boulevard en- trance to the terminal. It is clear from the record, and I find, that picketing continued at this location, in one form or another, until the first week in September. When asked why he waited to remove pickets at Eisenhower Boulevard and Theatre Drive until sometime after sending the August 8 letter to McQuaide's, Adams replied that the picketing was in support of the request for reinstatement and to pro- test the slowness of the Respondent in reinstating strikers. During the period between August 18 and November 11, the Respondent hired 40 new driver and dock employees, in addition to strikers who were reinstated. The incidence and breakdown of new hiring was as follows: Drivers Dockworkers Hired Aug. 18-31 2 6 Hired in Sept. 1 7 Hired Oct . 1- Nov. 11 7 17 Total 10 30 10 The letter in question is Respondent's proposed Exh. 9 At the hearing, I sustained the General Counsel 's objection to the admission of this docu- ment Upon repeated urging of the Respondent , both at the hearing and in Its brief, I reverse this ruling and admit Resp . Exh. 9 into evidence 11 The picketing at Eisenhower Boulevard and Theatre Drive is outlined above . The only specific incident involving a run -in between striking and nonstriking employees occurring after August 12 is a dispute between dis- charged employee Lavely and McQuaide driver Harris, discussed infra Of these employees, two new hires, Davis and Nugent, quit during this approximate period of time. Nugent left late in September and Davis left on a date not apparent from the record. In addition to the eight new employees who were hired in August, Respondent estimates that about 10 strikers were reinstated during that month. On August 29, L. Mc- Quaide sent a large number of form letters to striking em- ployees containing the text set forth in the following speci- men: Dear [employee's name], Recently, you called my office in response to my letter to you dated August 15, 1974, and inquired about the possibility of returning to work. If you are sincere in this desire, please see me at my office on September [date], 1974, at [time]. If this time is incon- venient, then please notify me immediately to set an- other appointment. If I do not see you at the designat- ed time, I will assume, and will therefore mark your personnel record accordingly, that you no longer de- sire to work for W. C. McQuaide, Inc. On the same day, L. McQuaide sent a form letter to other strikers which read: Dear [employee's name], As you may recall, I wrote you a letter dated August 15, 1974, requesting that you contact me if you have any further desire to work again for W. C. McQuaide, Inc. Since I have not heard from you, I can only as- sume, and must therefore mark your personnel re- cords accordingly, that you no longer desire to work for W. C. McQuaide, Inc. A series of appointments were scheduled for September 3-5 by these letters. L. McQuaide estimates that, during those days, he interviewed about 30 to 40 dockworkers and drivers who appeared at his office to seek reinstatement. During these interviews, L. McQuaide regularly asked ap- plicants whether they wanted to come back to work and when they would be available. He questioned many of them as to whether they had personally participated in strike violence and whether they knew the identity of strik- ers who engaged in various acts of depredation against company property. L. McQuaide admits telling all of these interviewees that there would probably be a representation election sometime in the foreseeable future , and that he would appreciate their support in the event of an election. While L. McQuaide denies threatening anyone and denies interrogation of any interviewees beyond asking them about strike violence or vandalism, the following are cred- ited versions of interviews between L. McQuaide and spe- cific strikers, which took place during the first week of Sep- tember 1974, as to matters in addition to those recited above. W. C. McQUAIDE, INC. 601 Robert Klimek, a striking tractor-trailer driver, was in- terviewed by L. McQuaide during the first week of Septem- ber. L. McQuaide told Klimek that if he was for the Union he might just as well turn around and walk out of the office right away, with no hard feelings on L. McQuaide's part. Klimek told L. McQuaide that he was not for the Union because of all the trouble that had taken place, and that he wanted his job because he was behind in his bills. L. Mc- Quaide mentioned the possible representation election and stated that he did not need guys who might cause trouble later because they are for the Union. Klimek was ultimate- ly hired back. Steven Edwards, a striking dockworker, was also inter- viewed by L. McQuaide during this period of time. L. Mc- Quaide asked Edwards if he knew anything about damage to company property inflicted by other strikers. He also asked Edwards why he went out on strike. Edwards replied that he wanted more money and union representation. L. McQuaide then asked Edwards if he had learned anything by going out on strike. Edwards replied that he thought someone was "a bunch of liars." L. McQuaide then asked him if he realized that he could be put back to work for less money than he was making and not on the same job. Ed- wards replied that he was willing to take his chances. Paul Sawko was a broker driver who reported for an interview with L. McQuaide on September 4. In response to a question by L. McQuaide, Sawko denied that he was involved in the cutting of an air hose on one of McQuaide's trucks in Altoona, Pennsylvania. L. McQuaide became an- gry and replied that he thought Sawko was lying. L. Mc- Quaide told Sawko that if he would only admit the vandal- ism the matter would be dropped. Sawko retorted that he was not guilty, had an attorney, and would fight any charges brought against him. L. McQuaide then told Sawko that if he found out that he had been involved in the air hose cutting incident, he would break Sawko's neck. After pressing Sawko again as to what he knew about vio- lence and vandalism committed during the strike, L. Mc- Quaide then asked him if he knew that the Teamsters was run by the Mafia and referred him to two Readers' Digest ;articles on the subject. He questioned him as to how he (could lower himself to be part of an organization run by Mafia gangsters. Sawko replied that he did not care who ran the Union, and that he believed in it. At this remark, L. McQuaide became angry. McQuaide then told him that he did not know if he could trust him to be around, and that he would have to think about his application. Albert Liberfinger, a striking truckdriver, reported for an interview in response to L. McQuaide's August 29 letter. L. McQuaide asked him why he went out on strike. Liberfing- er replied that he simply walked out with the rest of the employees. L. McQuaide asked him where he had been working during the strike, to which Liberfinger replied Johnstown-Pittsburgh Express. L. McQuaide then con- fronted Liberfinger with a report from his neighbor, a Mr. Valott, to the effect that Liberfinger had done some dam- age to company property during the strike. Liberfinger vig- orously denied it. Liberfinger filled out a job application. L. McQuaide told him that he had no work at present, but that he would contact him. James Weyandt, a striking truckdriver who had been employed by McQuaide for 9 years , originally tried to re- turn to work in mid-July. He met with strikers Ray Wolf- hope and William Savoy at Wolfhope's house. They phoned McQuaide to inquire about going back to work. L. McQuaide simply told them that he had had enough of .,our ... committees," that he would not talk to any group or committee, and would only talk with strikers individu- ally. This terminated the phone conversation . On or about August 5, Weyandt visited L. McQuaide in L. McQuaide's office to talk about reinstatement . Early in the strike, Wey- andt had made an appearance on a television newscast in support of the strike. During the newscast, he complained about working 70 hours a week and about the fact that he did not receive time and a half for overtime. L. McQuaide made reference to this television appearance and told Wey- andt that he was very unhappy about it. L. McQuaide showed Weyandt a scrapbook containing pictures of dam- age to company property inflicted during the strike and, in effect, asked Weyandt if he knew anything about it. Wey- andt said he did not. L. McQuaide then asked Weyandt if he was interested in unions, telling Weyandt that if he was for the Union and would not vote for him the Company did not want him back. He also stated that he was not particularly interested in getting old drivers to return be- cause new drivers were doing a better job. McQuaide in- sisted that he thought Weyandt knew about damages which had been done to company property . He also told Weyandt that, if he did come back to work, he would have no guaranteed run and would not have a particular truck guaranteed to him but would have to take whatever was available.12 Weyandt returned for I day on August 6 but then stayed out for 2 more weeks because he had received threatening phone calls. He returned again on August 20 and worked for about 5 weeks. He averaged 82 hours of work per week during that period of time, as compared with a 70-hour week before the strike. On September 30, his last day of work, he was assigned a run which lasted 19-1/2 hours. In the course of this run, he notified his dispatcher that he would be quitting at the end of the day . When he returned to the terminal, he made good his notification. Striking truckdriver Howard Eschbaugh received a form letter of August 15 from McQuaide , inviting him to make application for reinstatement . He visited the company premises late in August, asked to see L. McQuaide, and was told by the receptionist to wait . When he was unable to see L. McQuaide after a 15-minute wait, the receptionist suggested that he return another day . Eschbaugh told her that he had other things to do besides waiting to see L. McQuaide and left. At this point , L. McQuaide emerged from his office and followed Eschbaugh down the walk in front of the building, where they became engaged in a heated conversation. Eschbaugh told L. McQuaide that he was interested in getting his job back ; they discussed where Eschbaugh had been working and what he had been mak- ing. L. McQuaide then asked about Eschbaugh's participa- tion in the damaging of a customer trailer belonging to the 12 Before the strike, Weyandt regularly drove the Johnstown-Williamsport run, a daily round trip of about 300 miles 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Worthington Company, in an incident which occurred at the Gee Bee parking lot during the strike. L. McQuaide said that he had witnesses that Eschbaugh had made threats to the driver of the Worthington vehicle. He told Eschbaugh that he would never trust him around the prem- ises anymore, and if he caught him doing anything more, presumably referring to threats or vandalism, he would personally kill Eschbaugh. He then escorted Eschbaugh to his car. Eschbaugh denied any participation in the strike incident in question. Ken Christener was a striking truckdriver who had been employed by McQuaide for about 5 years. He reported for a reinstatement interview during the first week of Septem- ber. During the interview, L. McQuaide asked him if he knew anything about fires and damage to company proper- ty which had occurred during the strike. Christener denied any knowledge. L. McQuaide also asked Christener if he would testify against Titus McCue, a Teamsters organizer who had been active on behalf of the Union during the strike. Christener replied that any information that he had regarding misconduct on the part of McCue was merely hearsay. L. McQuaide then asked him whether strikers Don Christ and Carl Kegg had slashed tires on McQuaide vehicles during the strike. Christener said that he did not like to name names , but agreed that Kegg and Christ were responsible for some damage that was done. L. McQuaide told him that if he found out that he had anything to do with damaging tires on company trucks he would prose- cute him. L. McQuaide also asked Christener whether he had any information concerning the actions of strikers Bob Walters and Ron Faith in following company trucks in the vicinity of McConnellsburg, Pennsylvania. Christener had no information as to them and also denied that strikers Eschbaugh and Kimmel had engaged in any strike miscon- duct. At the conclusion of the interview, L. McQuaide told Christener that he had no work for him at the time, but that that he would appreciate any information he might be able to provide concerning strike misconduct by company employees. Striking truckdriver Norman B. Wright, an employee of 10 years' service with McQuaide, reported for a reinstate- ment interview on September 4. He filled out an employ- ment application form, but complained to L. McQuaide about being required to fill out the form. L. McQuaide said that the form was required by ICC regulations and that, if Wright did hot want to fill out the form, he could forget about coming back to work. During the course of the inter- view, Wright told L. McQuaide that he would not cross a picket line but, since the picket line was gone, he was ap- plying to come back to work because he could not afford to give up 10 years' seniority. L. McQuaide asked him why he did not think about these matters when he was on the picket line, adding that the Union was not going to do him any favors. They then discussed possible involvement by Wright in strike misconduct. Wright denied complicity in any incidents. L. McQuaide told Wright that the could put him back to work as a new employee at $2 an hour if he wanted to. He also told Wright that he had no openings at that time but that he would call him when one arose. Glenn McCleester was a striking truckdriver. On Sep- tember 4, he reported for a reinstatement interview with L. McQuaide. During the interview, McCleester indicated that he wanted to return as a mechanic rather than a truck- driver. L. McQuaide gave him a written mechanical apti- tude test. He also told McCleester that he could take him back as a new employee at the minimum wage of $2 per hour if he desired to do so. He told McCleester that he had no jobs available at that time but that he would get in touch with him in about a week. About October 4, Mc- Cleester phoned L. McQuaide to inquire if any openings had occurred. He was hired back as a driver at his former rate of pay, although he was assigned to drive a different run.13 L. and W. McQuaide, Cabot, Adams, and Union Attor- ney Brown met in mid-September to discuss settlement of outstanding differences, including the reinstatement of strikers. At this time, Adams renewed his request to the Respondent that strikers who were not back on the payroll be reinstated. As of the date of the hearing, 2 of the 20 striking dock- workers named in paragraph 6 of the complaint have re- turned to work at McQuaide-Spisak and Baker. The re- mainder have not. Some members of the general class of unnamed strikers, referred to in paragraph 8 of the com- plaint, have been reemployed by McQuaide and some have not been. Respondent asserts that it had difficulty in gear- ing up after the termination of the strike and in bringing its business back to normal. Accordingly, there had been a delay in granting reinstatement to those who had made individual requests, including many whom L. McQuaide interviewed between September 3 and 5. As to strikers not specifically named in the complaint, Respondent had sent various letters following the Septem- ber interviews. On or about October 10, L. McQuaide wrote to Christener: On September 3, 1974, during your job interview at my office, you stated you were available for work here at McQuaides' and that when an opening occurred, I was to get in touch with you by telephone. I have tried on several occasions and all I could get was a busy signal or a recording. Yesterday, the telephone opera- tor informed me that you do not have a telephone. I must hear from you immediately if you are still inter- ested in returning to work for W.C. McQuaide, Inc. If I do not hear from you by October 18, 1974, I can only assume that you no longer desire to work for W.C. McQuaide, Inc., and will mark your personnel records accordingly. On October 7, 1974, he wrote to Wolfhope: During our telephone conversation today, you in- formed me that you had another job elsewhere, that you were not available for work at W.C. McQuaide, Inc., and that you no longer desire to work for W.C. McQuaide, Inc. 13 The General Counsel also presented evidence, in the testimony of reemployed striker John Campagna, that during the course of the reemploy- ment interview with L. McQuaide, McQuaide unlawfully interrogated Cam- pagna concerning his union sentiments and activities. I found Campagna a confused and unreliable witness, so I decline to predicate any findings on his testimony. W. C. McQUAIDE, INC. ' 603 I am marking your personnel records accordingly. On October 10, he wrote to William Sauro: As you know we scheduled meetings several times be- fore we finally met on September 17, 1974. At this time you were not certain as to what you wanted to do as far as working for McQuaides'. Since September 17, 1974, I have tried to telephone you but have never received an answer. If you have a desire to work here at W.C. McQuaide, Inc. I must know immediately . If I do not hear from you by October 18, 1974, I will assume that you no longer wish to work for W.C. McQuaide, Inc. and will mark your personnel records accordingly. This letter had a similar tenor to one previously written by L. McQuaide to Sauro on August 28. The earlier letter read: As you are aware we were scheduled to meet in my office on August 21, 1974 at 10:00 a.m. to discuss your availability to return to work. Since you failed to hon- or the appointment, I can only assume that you no longer desire to work for W.C. McQuaide, Inc., and your personnel records show accordingly. Form letters like the August 28 letter to Sauro were also sent on that same date to strikers J. B. Roles , R. D. Faith, J. W. Griffin, Jr., J. B. Jones, and possibly to others. On October 10, 1974, L. McQuaide wrote to Prudhoe: On September 3, 1974, you made an appointment with me at my office for a job interview. The appointment was scheduled for 9:00 A.M. At 8:30 A.M. that morn- ing someone (and I believe it was your daughter) called and said that because of an accident , you would not be available for the appointment. I have heard nothing from you since. I have tried phoning you at different times but have evidently not called at the right time. I left a message yesterday for you to return my call concerning work but I have nothing from you. Today, I finally spoke to you by telephone and you informed me that you were undecided as to whether or not you wanted to return to work here at McQuaides'. I do have a job opening now but will have to fill it relatively soon. If I do not hear from you by October 18, 1974, I will assume that you no longer desire to work for W. C. McQuaide, Inc., and will mark your personnel records accordingly. Individual letters of the same tenor containing minor varia- tions were also sent by L. McQuaide early in October to strikers J. A. Miller, A. M. Liberfinger, L. G. Kimmel, Jr., and G. C. Kerr. C. The Discharge of Seven Truckdrivers on May 19, 1974 1. The events of April 20, 1974 Respondent asserts that the seven truckdrivers named in paragraph 7 of the complaint were discharged on May 19 because they had engaged in various acts of strike miscon- duct. The principal but by no means the only incident re- lied upon by the Respondent to justify the action involves a series of run-ins between the discharged drivers and non- striking employees which occurred on April 30. These events formed the basis for the Respondent's request that these seven individuals be held in contempt of the prelimi- nary injunction of April 29, issued by the Cambria County Court of Common Pleas. Respondent's principal witness to these events was nonstriking truckdriver Michael R. Char- ney, who, with helper Reed Holderbaum, was making local deliveries in and about Johnstown for McQuaide in fulfill- ment of Respondent's contract with Sears, Roebuck, and Company. Such deliveries are made in McQuaide delivery trucks, which are painted to give the appearance that they are Sears trucks. In finding and evaluating the facts relat- ing to Charney's confrontation with striking truckdrivers, I place no reliance upon Charney's affirmative testimony herein, unless corroborated by the testimony of others, be- cause of his two prior inconsistent sworn statements, one given to the Board agent investigating this case and the other given in open court at the Ebensburg hearing. These earlier statements either contradict or are at a material variation from the testimony given at this hearing." Hol- derbaum did not testify. About 9 or 9:30 a.m. on April 30, Charney and Holder- baum drove to 659 Bedford Street in downtown Johnstown to make delivery of a ladder to a Sears customer who resid- ed at this address. The house in question is a few doors away from the Local 110 union hall. The truck was spotted by discriminatee Frank Petrosky, who, with discriminatees Dennis J. Patterson and Dennis Albert, walked from the union hall to the delivery point to speak with Charney and Holderbaum. Two other individuals, whose identities are unknown, were also present. Albert and Patterson began picketing by patroling in front of the truck with a picket sign which read "On Strike." While Charney was on the porch of the customer's residence making the delivery, Pe- trosky spoke with Holderbaum, who was sitting in the front seat of the truck. According to Petrosky, Holder- baum had previously told striking employees that he would join in the strike, so Petrosky asked him, "What the hell are you doing in this . . . truck? I thought you were coming out with us." Holderbaum replied, "I thought the strike was over." Petrosky then told him, "What do you think we're out here for, our . . . health? You're nothing but a ... rotten scab!" At this point, the Sears customer, hearing the dispute, came down to the sidewalk and inquired what the problem was. He said that if there was going to be so much ruckus 14 In his brief, the General Counsel charges that, in placing Charney on the stand, Respondent's attorney was guilty of conduct amounting to subor- nation of perjury. He also contends that Respondent's counsel was guilty of various other acts of professional misconduct in the trial of this case be- cause of other asserted violations of specified canons of the ABA's code of professional ethics As noted above , I have discredited Charney as a witness, but I am unable to sit in judgment on the professional ethics of the attorney in question. Such charges should more properly be addressed to the discipli- nary board of the supreme court of Pennsylvania , Room 809, Widener Building, 1339 Chestnut Street, Philadelphia, Penn., 19107. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about delivering a ladder he would not accept it, so he returned it to Charney and Charney put it back into the truck. Charney spoke briefly to the two unidentified indi- viduals who were standing near the back of the truck. These individuals were apparently associated with the union cause, as they argued briefly with Charney concern- ing the merits and shortcomings of Teamsters Union bene- fits. Charney got back into the truck, but was unable to drive it forward because Albert and Patterson were picket- ing immediately in front of the truck, so he backed the truck approximately 75 feet down Bedford Street and into a side street, pulled forward, and left the area by driving out Bedford Street in the direction from which he came. Charney claims that, before he drove away, Patterson shouted obscenities at him, threatened him with physical harm, and pinned him up against the truck. Patterson de- nies saying anything to Charney. Consistent with the above determination, I discredit Charney. Likewise, I credit Petrosky's denial of Charney's assertion that he told Char- ney that he had "better park that-truck." It is contrary to Charney's assertion that he hammered on the truck as Charney was attempting to pull away. This is also contrary to Charney's Ebensburg testimony. Patterson admits that he and Albert blocked the forward motion of the truck, thus forcing Charney to leave by backing down Bedford Street in the manner described above. Charney's report of threats by Albert and Petrosky are uncorroborated by any other witness and are thus discredited. Charney returned immediately to the McQuaide termi- nal in the Johnstown suburbs and reported the incident. He initially indicated to the McQuaides that he did not want to continue making any more deliveries that day, but they were successful in prevailing upon him to continue with his assignment. As Charney was driving down Elton Road to return to Johnstown, he met Patterson, who was driving in the opposite direction to his home, which is lo- cated in the immediate vicinity of the McQuaide terminal. As Patterson drove past Charney's truck, he stuck his fist out the window at Charney and called him a "s.o.b." I discredit Charney's assertion that Patterson said anything further. Charney stopped at the next phone booth and re- ported this encounter to company officials. When Charney got back into downtown Johnstown, he drove along Horner Street and found that he was being followed by a number of individuals in a blue 1973 Ford 3-ton pickup truck. The truck was driven by discriminatee Robert Lesnak. Discriminatees Lawrence Gindelsperger and Albert and striker Robert Wallace were in the truck. Charney pulled up in front of the police station, parked, and went inside. Lesnak drove past, circled the block,15 and parked a few blocks away near Harvey's Auto Parts Store. Discriminatee Harry Lavely, who was driving a blue Volkswagen, drove up beside Lesnak a few minutes later. Just previous to meeting Lesnak, Lavely had driven into town with striker John Campagna. He drove up in front of the police station where he saw an acquaintance, Officer Martin Burke, standing alongside Charney, who had just emerged from the police station. Charney reported to Burke that he had been harassed by some individuals in a blue pickup. Burke walked up to Lavely's Volkswagen and asked Lavely what he was doing there. Lavely told Burke he just wanted to see if there was anything wrong. Burke told Lavely to leave the area before he got in trouble, so Lavely drove off. As noted above, Lavely then met Lesnak, who was parked, and informed Lesnak that Officer Burke told him of a report that the occupants of a blue pickup truck were drunk and were harassing deliverymen. Lesnak exhibited a can of Sprite to Lavely and offered him a drink. Lavely said he would see Lesnak later and drove away.16 Back at the police station, Charney asked Burke if he could provide him with a police escort back to the Mc- Quaide terminal. Burke said that he could not, but that he would be around if Charney needed him. Charney drove off and Burke followed him a few blocks in a police car. When Charney reached Main Street, Lesnak began to fol- low him in the pickup truck. Lesnak followed Charney sev- eral blocks, and was followed in turn by Officer Burke as far as Charney's next delivery stop in Woodville. A few minutes later, Burke stopped Lesnak's vehicle to inquire whether the occupants of the vehicle had been drinking, as reported. Burke inspected the inside of the vehicle and found cans of soda but no beer. Burke asked the occupants what they were doing, and was told that they were picket- ing the Sears truck. Burke suggested that they might have gotten a little close in following the Sears truck. They chat- ted a while, and Lavely, who was then walking, arrived at the scene and joined in the conversation. No arrests were made. During the course of Charney's deliveries on that morn- ing, he drove down Clinton Street, a narrow street in down- town Johnstown. As he neared a bend in the street, he was confronted by a red 1950 Chevrolet pickup truck being driven by discriminatee John Geisel, Jr. The pickup truck was partially in Charney's lane so Charney had to swerve to the right to avoid being hit. Geisel admits driving down Clinton Street on this occasion. He was going to visit his father-in-law and had his wife and child in the truck. The vehicle itself is an aged truck and in relatively poor operat- ing condition. As he approached the bend in Clinton Street, a blind turn, he did not immediately see an ap- proaching vehicle and made a wide arc in negotiating the bend, avoiding some cars which were parked at this point. There was no impact between his truck and the Sears vehi- cle so he continued on his errand. After passing the vehicle, he noticed the word Sears written across the rear door of Charney's truck as he looked in his rear view mirror. 2. Other incidents of alleged strike misconduct a. Robert Lesnak Nonstriking truckdriver Craig Odgers testified credibly 16 Charney's testimony relative to Lavely's misconduct in front of the 15 Charney testified at the instant hearing that Lesnak parked in front of police station before Charney went inside is not corroborated by Burke. him, jumped out of his truck, and started cursing and threatening him. I Moreover, it conflicts with Charney's own testimony at the Ebensburg hear- credit Lesnak's testimony that, when Charney parked to go into the police ing to the effect that Lavely arrived in the blue Volkswagen after Burke station , he drove on around the block. came on the scene and after he went into the police station. W. C. McQUAIDE, INC. 605 that, late in April or early May, he was driving a McQuaide vehicle from the terminal to Eisenhower Boulevard and had to stop for a traffic control signal. This intersection was a main picket location throughout the length of the strike. On this occasion, a car stopped in front of him and four strikers, including Lesnak, got out of the car and ap- proached him. While he was unable to attribute the re- marks specifically to Lesnak , he testified that the group of strikers, including Lesnak, shouted at him, placed their hands on the truck, and threatened to beat his head in. Odgers drove away immediately. He reported this confron- tation promptly to W. McQuaide. Another frequently picketed location was the Bedford interchange of the Pennsylvania Turnpike . McQuaide hauls trailers with its own tractors to the interchange, where the trailers are then disconnected and hooked to tractors operated by other companies . On one occasion late in April, Jack Inston, an office clerk who was driving trucks during the strike, took a Sears Roebuck trailer to the interchange to be picked up by a Sears driver and was confronted there by mass picketing . While he was discon- necting his tractor from the trailer , Lesnak punched him in the ribs and told him that if he was seen driving again Lesnak would knock Inston's "block off." Lesnak denies touching Inston or making this statement , but I credit Inston's version. On another occasion, late in April, nonstriking driver Fred Robel met Lesnak about 2 a.m. at the intersection of Peter Drive and Ardmore Boulevard as Robel was driving to work. Lesnak walked to the side of Robel's truck and told him that if he got back into a McQuaide truck Lesnak would break his legs or put him 6 feet under. Robel drove on to work. Lesnak denied this incident, as he denied the incident recounted by Odgers, but I credit both Odgers and Robel. b. Dennis Patterson Robert Rice, a claims department employee, was as- signed at the outset of the strike to driving a truck. About 3 days after the strike began on April 17, he approached the intersection of Eisenhower Boulevard and Theatre Drive. Strikers Dennis Albert and Dennis Patterson, who were picketing at this location, came up to him, hammered on the window of his truck, and shouted that if he contin- ued to drive for McQuaide they would "beat his ass." Striker Geisel was standing a few feet away yelling to Rice that he was a scab . Rice drove on. When he returned to the terminal, he reported the incident to L. McQuaide. c. Dennis Albert In addition to the incident involving Rice at Eisenhower Boulevard and Theatre Drive, Albert had another encoun- ter with nonstriking employees. Nonstriking driver Ross testified that, late in April, Miller drover a McQuaide trac- tor-trailer through the picket line at Eisenhower and The- atre. As he was doing so, Albert and Geisel shouted at him that they were going to burn his house down and that his wife would never see him again . Miller assertedly reported this incident immediately through the two-way radio inter- com with which the truck was equipped. Albert did not testify, but Geisel denied that either of them had uttered any of these threats to Miller . Geisel impressed me as ba- sically a truthful witness, while Miller exhibited animus to- ward Albert and Geisel to the point of making flat accusa- tions of other misconduct by them which he could not support. Accordingly, I credit Geisel's denial of threats by Albert and himself to Miller. d. John W. Geisel, Jr. Individual instance of misconduct by Geisel include the above-noted brush with Charney's truck, the incident in- volving Rice, and the accusation of Miller, all of which have been previously discussed. On one other occasion late in April, Rice had been riding in a truck while returning from Bedford when a rock hurled by an unknown assailant went through the windshield of the truck, hitting Rice and showering glass all over the front seat. A few days later, Rice was making a delivery in Johnstown when he encoun- tered Albert, Patterson, and Geisel. One of them asked Rice if he had been hit by the rock that went through the windshield and Rice said he was hit but not hurt. They expressed regret that he had not been hurt, and Geisel then told Rice that next time he might not be so lucky. e. Harry C. Lavely Thomas Kring, a clerk and dispatcher, was assigned to drive a truck during the strike. Late in April, he was oper- ating a truck in the direction of Altoona. As he was driving up a hill near Muster, Pennsylvania, he was passed by a red pickup truck, driven by an unidentified person, in which Lavely was riding as a passenger. As the pickup truck passed him, Lavely shook his fist at Kring and motioned for him to pull over. Kring did not. As Kring reached the top of the hill, he noticed that Lavely and his companion had gotten out of the red pickup truck and were standing on the side of the road, waving to him. Kring proceeded on and, as he did so, Lavely and the other individual shook their fists at him as he drove past . Lavely and the driver of the pickup stopped at Kring's first delivery point and came over to talk with him. They asked him whether he knew there was a strike on and he said he did . During the course of the conversation, one of the two men shook his fist at Kring and both said that they would "get him." Then they went their separate ways . Kring reported this incident to Stanley McQuaide upon returning to the terminal. Late in April, nonstriking employee Inston was driving through the picket line at Eisenhower and Theatre when he encountered Lavely and discriminatee Lawrence Gindel- sperger. As he passed, Lavely and Gindelsperger shook their fists at him, called him a scab, and said they would "knock the . . . shit out" of him if he drove any longer. Inston reported the incident to Stanley McQuaide upon returning to the terminal. Late in August, after some of the strikers were returning to work, Lavely had an encounter with nonstriking driver Thomas Harris who was making a delivery at one of the Bethlehem Steel plants in Johnstown . He arrived about 11:30 a.m. and had to wait to make a delivery until after 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the lunch hour, so he laid down to rest in the front seat of his truck. Lavely, who was then working for Burke's Trans- D. Analysis and Conclusions fer Company, was also making a delivery. Harris heard 1. Union animus of the Respondent Lavely shout at him, "Scab, you're going to get yours." Lavely's truck was near the egress to the loading dock and Lavely refused to move it when Harris blew his horn at him, so Harris had to drive around him in order to leave. f. Frank Petrosky W. McQuaide testified that, on or about May 1, he learned of a confrontation between pickets and nonstriking deliverymen at Southmont . When he arrived at the scene, pickets were going back to their car, so W. McQuaide in- structed the deliveryman to proceed to his next delivery point. He saw Petrosky standing in the area wearing a pick- et sign. W. McQuaide asked Petrosky not to picket Mc- Quaide customers, to which Petrosky reportedly replied, "If you know what is good for you , you will get those trucks back to the terminal and keep them there. We are not going to be responsible if we catch them out again. They might not get back in one piece." Petrosky emphati- cally denies picketing in the Southmont area and specifi- cally denies the reported conversation with W . McQuaide or of saying that "we won't be responsible for any dam- age." Petrosky impressed me as a truthful witness, and I credit his denial. Prompted by leading questions , nonstriking driver Odg- ers testified that, sometime early in May, at the intersection of Eisenhower and Theatre , Petrosky was apparently among a group of pickets who told Odgers that , if they ever caught him driving again, they would beat his head in. Petrosky was not specifically identified by Odgers as the person uttering this threat. The incident was immediately reported to W. McQuaide. Petrosky specifically denies ut- tering this threat. As he was not specifically identified as the maker of the threat, I credit his denial. g. Lawrence Gindelsperger L. McQuaide testified credibly and without contradic- tion that, 2 or 3 days before the seven truckdrivers were sent letters of discharge , he was operating a company truck on the Johnstown bypass , near the Windman Street exit, delivering a load of steel to the Bethlehem Steel plant. At this point, he caught sight of a blue pickup truck ap- proaching close by on his left side. He saw Gindelsperger operating the pickup, though Gindelsperger was sitting on the passenger's side of the vehicle. Gindelsperger cut di- rectly in front of L. McQuaide's vehicle, forcing him to turn sharply to the right and apply his brakes rapidly. The effect of this reaction caused the truck to shift abruptly from left to right. The McQuaide truck straightened out and proceeded on, barely avoiding impact with a car which was passing it on the right. L. McQuaide radioed to his brother to notify the police, but no arrest was made. The record herein contains various statements and ac- tions on the part of Respondent's principals which fairly bristle with union animus. In light of a large amount of damage which was done to Respondent's property during the strike and which Respondent attributes, though with- out demonstrable proof, to union causation, and in light of other strike misconduct for which responsibility can be fixed, such animus is understandable, but it is animus nonetheless. While, in some instances, certain of Respondent's acts and words were not alleged per se as violations of the Act, they serve to illuminate the meaning and effect other acts on the part of the Respondent, and to place them in context . Early in the strike, Respondent wrote a series of three letters to strikers in an effort to convince them to return to work . It notified them that, if they did not return by April 30, they would be permanently replaced and their health insurance would be canceled. Re- spondent coupled these injunctions with references to the Union as having lied to employees , stated that an election which had been sought might not be held for a long time, and opined that the Board might well determine that Local 110 is unfit ever to be certified. Respondent urged employ- ees to seek verification of its right and ability to terminate insurance policies and replace workers, and asked, "If you find that the Union is lying to you now , can you ever be- lieve them or ever trust them again ?" On the same day that it notified striking dockworkers that they had been re- placed, Respondent also wrote to other striking employees to tell them that the Union had been lying to them and asking, "How much longer will you let the Union lies pro- duce harm for you and your family? What has the Union done to help those striking employees who had already been replaced and have lost their jobs? .... Do you want to continue to rely on the Union's false promises in hope that you won't be replaced?" Months later, Respondent's president, L. McQuaide, confessed a strong distaste for Titus McCue, a Teamsters Joint Council 40 organizer who had been assisting in this campaign, even to the extent of asking one applicant for reinstatement whether he would be willing to testify against McCue in a state court action . L. McQuaide also told one applicant for reinstatement that he thought that the Teamsters was dominated by the Mafia and urged him to read two Readers' Digest articles to this effect. The Board long ago characterized letters sent to strikers in the course of a strike , similar in nature to the one sent by Respondent to its employees on April 23, as "an unlawful strikebreaking technique." Kerrigan Iron Works, Inc., 108 NLRB 933, 938 (1954). See also Ekco Products Co., 117 NLRB 137 (1957); Pennsylvania Glass Sand Corporation, 172 NLRB 514 (1968), enforced sub nom. General Team- sters Local 992 v. N.L.R.B., 427 F.2d 582 (C.A.D.C., 1970); Cusano d/b/a American Shuffleboard Company v. N.L.R.B., 190 F.2d 898 (C.A. 3, 1951); N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980 (C.A. 3, 1950). The unflattering references contained in the other L. McQuaide letters also highlight the Respondent's attitude toward Local 110, W. C. McQUAIDE, INC. 607 while statements to a striker who wished to return , imput- ing criminal connections to the Union, leave no doubt as to his feelings on the subject . Accordingly, other actions of the Respondent must be viewed in light of this plainly stat- ed antipathy. 2. The discharge of seven truckdrivers on May 19 With exception of the near collision between L. Mc- Quaide and Gindelsperger on the Johnstown bypass, all of the acts of strike misconduct, relied upon by the Respon- dent in discharging seven truckdrivers on May 19, took place before the Ebensburg hearing on May 6 and 7. Some of them occurred nearly a month before the discharges, and some of them did not take place at all. In light of the time which transpired between these events and the actual terminations themselves , a substantial question arises as to whether the events in question actually motivated the dis- charges, or whether they served merely as the pretexts therefor. Certainly, spontaneity of action provides a clue to motive, 17 and in this case, as in every discharge case, it is actual motivation rather than abstract justification which determines whether the Act has been violated.18 Another legal consideration bears upon the propriety of these discharges. Each of the seven truckdrivers who were fired on May 19 were strikers. Manifestly, they cannot be fired for striking, and any attempt to do so would be a clear and unmistakable violation. Rather, the Respondent maintains that their activities so exceeded the bounds of permissible strike action that they forfeited the mantle of protection thrown about them as strikers. In passing upon this contention, it is well to heed the words of the Sixth Circuit in the recent Cement Transport case: Since Thompson [the discriminates] was actively en- gaged in protected activity, and his discharge was prompted by alleged acts of misconduct in the course of his organizing efforts, the only remaining question is whether Thompson was guilty of misconduct so out- rageous as to justify his discharge in spite of his pro- tected Activities. In the context of a struggle to organize a union, "the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth," so long as the allegedly offensive actions are directly related to activities protected by the Act and are not so egre- gious as to be considered indefensible. [Citing Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 61 (1966); N.L.R.B. v. Local 1229, I.B.E.W., 346 U.S. 464 (1953); N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962); see also Hugh H. Wilson Corp. v. N.L.R.B., 414 F.2d 1345, 1355-56 (C.A. 3, 1969); Crown Central Petroleum Corporation v. N.L.R.B., 430 F.2d 724, 731 (C.A. 5, 1970); N.L.R.B. 17 See, for example, Passaic Crushed Stone Co., Inc., 206 NLRB 81 (1973); New Vision Display, Inc., 208 NLRB 127 (1974); FMC Corporation, 211 NLRB 770 (1974); Garner Tool & Die Manufacturing Inc., 198 NLRB 640 (1972). is N.L.R. B. v. Historic Smithville Inn, 144 F.2d 1358 (C.A. 3, 1969), cert. denied 397 U.S. 908 (1970). v. Thor Power Tool Co., 351 F.2d 584, 587 (C.A. 7, 1965).] ... We cannot find Thompson's reference to Respondent's President as a "son-of-a-bitch" to be egregious or out of context in a labor struggle... . [N.L.R.B. v. Cement Transport, Inc., 490 F.2d 1024, at 1029, 1030 (C.A. 6, 1974).] Certainly, mere profanity or the use of harsh epithets does not constitute egregious or indefensible conduct of a na- ture justifying discharge.19 Indeed, the use of the word "scab" has recently been accorded constitutional protec- tion by the Supreme Court 20 Moreover, a number of utter- ances, such as "getting even," "we'll fix you," or "I'll whip your ass," have been interpreted by other Administrative Law Judges, with Board approval, as being merely extrava- gant language, used in the course of a labor dispute to express disagreement or frustration. See FMC Corporation, supra; OIC Corporation, 212 NLRB 63 (1974). Many of the remarks used by discharged strikers, and relied upon by the Respondent in its defense, fall into this category. L. McQuaide's remark to Sawko in the course of a reemploy- ment interview-that if he found out Sawko was involved in any vandalism he would break his neck-and his condi- tional threat to kill Eschbaugh illustrate, in the context of this strike, the extent to which such extravagant language was and is employed by both management and labor at McQuaide. Geisel's near collision with Charney on the morning of April 30 falls into the category of events and not words. According to Charney's view, Geisel tried to run him off the road in order to harass him and to bring pressure to bear upon him to join the walkout. I credit Geisel' s testi- mony that he was driving at the time with his wife and child, and cannot believe that an individual intent upon endangering the life of a nonstriking adversary by a delib- erate act of assault by automobile would bring his wife and child along for the ride. Charney had been through an up- setting morning, and it is understandable that a near colli- sion on Clinton Street with Geisel' s oncoming pickup truck would be filtered through a hypersensitive mind as an act of willful misconduct on Geisel's part, rather than just mine-run negligence in the operation of a motor vehicle. However, the encounter on Clinton Street was momentary, unplanned, and took place at a blind turn in the road. Geisel was driving an ancient vehicle in poor operating condition, and it is easy to see how an incident such as this could have accidentally occurred at the time and place in question. I conclude that this is what in fact occurred just another near miss by two passing vehicles on a public street which had no relation to the strike in progress and which did not amount to an act of misconduct on Geisel's part justifying disciplinary action. Patterson and Albert's action in picketing Charney's 19 Hugh H. Wilson Corporation, 171 NLRB 1040, 1047 (1968); Bennett Company, 170 NLRB 204, 216 (1968); C. W Corporation, 188 NLRB 554 (1971), Coronet Casuals, Inc, 190 NLRB 685 (1971); Rowe Furniture Corpo- ration of Missouri, Inc., 200 NLRB 155 (1972). 20 Old Dominion Branch, No. 496, National Association of Letter Carriers v. Austin, 94 S. Ct. 2770 ( 1974). See also two recent cases in which the Supreme Court accorded first amendment protection to language every bit as oppro- brious as that which was used here. Cohen v. California, 403 U.S. 15 (1971); Popish v. University of Missouri Board of Curators, 410 U.S. 667 (1973). 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truck on Bedford Street in such a manner as to block its forward progress is arguably an act of strike misconduct, although a mild one. It is the only act of misconduct occurring on April 30 found on the basis of credible evi- dence in this record.22 Lesnak's encounter with Inston at the Bedford interchange-poking him in the ribs and threatening him against a back drop of a mass picketing of his vehicle-is likewise an act of strike misconduct. Other statements made at or near the picket line-such as Lesnak's comments to Robel, Patterson's words with Rice, the statement of Lavely and Gindelsperger to Inston, and possibly other remarks outlined above--could arguably constitute threats of a nature which would justify the dis- charge of a striker. However, if they were so egregious and indefensible as to remove from a striker the normal protec- tions of the Act, the question then arises as to why these persons were not terminated promptly after events oc- curred. The incidents during which these statements were uttered were promptly reported to McQuaide's manage- ment, and apparently they were carefully noted and cata- logued. Respondent sensed the weakness of this position when W. McQuaide testified that the delay in firing the seven truckdrivers was occasioned by a shortage of clerical personnel in the office during the first month of the strike and the consequent difficulty in dispatching letters of dis- charge. This lack of adequate clerical assistance did not prevent the prosecution of a 2-day contempt hearing early in May, at which the McQuaides and striking truckdrivers were all together in the same courtroom litigating whether the actions now asserted as the bases for discharge consti- tuted a violation of an outstanding injunction. How simple it would have been for either McQuaide to have orally discharged the seven individuals in question on that occa- sion, and with a minimum of formality, if indeed discharge was what it had in mind at that time. Later, W. McQuaide contradicted his earlier statement that the delay in terminating truckdrivers was occasioned by lack of clerical assistance early in May. He finally ad- mitted that the reason for the delay in terminating the sev- en truckdrivers was that no decision had in fact been made by the McQuaides to terminate them until May 19. Of the nearly 150 strikers who walked out, McQuaide determined to fire the seven in question because "these men seemed to be the troublemakers-of the threats, the violence. They were the ones which kept coming to our attention." How- ever, with the exception of the Gindelsperger-L. McQuaide incident, these seven individuals were not involved in any provable incidents found in this record which occurred be- tween the time of the contempt order on May 7, when their continued employment was still in an undetermined status, and May 19, when the actual decision to discharge was made. Indecision-or no decision-in the face of asserted- 21 But see Terry Coach Industries, Inc., 166 NLRB 560 (1967). 23 With all due deference to the Court of Common Pleas of Cambria County, I place no reliance on its adjudication of a contempt of its own order in resolving the matters at issue herein . In addition to many reasons which could be advanced in declining to defer to the judgment of that court, the order of May 7 which was placed in this record contains no findings of fact, and hence cannot provide an appropriate basis for a finding herein based upon the view of some other trier of fact. J H. Rutter-Rex Manufac- turing Company, Inc., 158 NLRB 1414, 1418 (1966). ly egregious and indefensible misconduct leads inescapably to the conclusion that, in the mind of the Respondent, such misconduct was not really so egregious after all, and that Respondent was suspending judgment for reason or rea- sons quite apart from the baneful nature of their employ- ees' misbehavior. There can be little doubt based on this record that Respondent's paramount interest was in e.tding the strike, on its terms, and by any means available. There is also little doubt as to the intense animus it harbored against Local 110. The letters sent to striking employees in the month preceding the May 19 discharges leave no argument on either score. Both the late April letters and the contempt hearing had no effect in ending the strike, although the diminution by mid-May of provable incidents of specific employee misconduct suggests that the contempt order had a salutary effect in mollifying the excesses which had pre- ceded it. McQuaide put his finger on it when he said that these seven were the "troublemakers," a signal word long used in a labor relations context to describe leading union adherents among employees. By its failure to take prompt action in removing these "troublemakers" at the time they committed acts which arguably or in fact exceeded the per- missible bounds of strike conduct, the Respondent evi- denced a disposition to ignore these incidents if it could achieve the larger end of bringing all striking employees back to work. When this tactic failed, it decided upon stronger medicine. All of what has been said above could be said to apply as well to Lawrence Gindelsperger, whose latest incident of strike misconduct occurred in point of time shortly before the May 19 discharge. The Gindelsperger-L. McQuaide in- cident is unchallenged on its facts and amounts to a serious act of misconduct which could easily have led to severe personal and property injury, not only to L. McQuaide and to a company vehicle but also to persons who were strang- ers to the dispute in question. More to the point, no inordi- nate delay took place between the happening of the event and the action which the Respondent took. Accordingly, I am persuaded that the near collision on the Johnstown by- pass was deliberate harassment and that it formed the pre- cipitating cause, not merely the excuse of record, for the removal of Gindelsperger. Hence, I will recommend that so much of paragraph 7 as pertains to Gindelsperger be dis- missed. As to the others, I conclude that, by discharging the six named drivers on May 19, the Respondent engaged in coercive tactics designed to bring about a prompt termi- nation of the strike, and in doing so, violated Section 8(a)(1) and (3) of the Act. 3. The offer to return to work On August 8, 1974, Union President Jack Adams wrote a letter to McQuaide which was received on August 12, and which stated that the strikers were "unconditionally ready, willing, and able to return to work immediately." On Au- gust 8, 1974, Respondent's counsel Cabot stated to the Pennsylvania Unemployment Compensation Board of Re- view and later to Adams that the Respondent was ready, willing, and able to take back all strikers. Faced with this salutary turn of events, the only question which should W. C. McQUAIDE, INC. have been at issue in this case is the fate of the seven truck- drivers, discussed above. However, as of the time of the hearing in mid-December, only 2 of the 20 striking dock- workers named in paragraph 6 of the complaint had re- turned to work, and many more, both drivers and dock- workers, referred to in paragraph 8 as an unnamed class, have yet to be reinstated. Such a situation could have ari- sen only because one or more of the parties hereto was speaking more for the record rather than for communica- tion with the other, thus to avoid the onus of a legal re- sponsibility. In examining the efficacy of Adams' letter of August 8, we are met with the Respondent's contention that the letter did not amount to an unconditional offer to return to work. No challenge is leveled at the Union's authority to speak for striking employees.23 Indeed, it would sit poorly if such an objection were noted at this point, in light of Respondent's repeated communications during July, Au- gust, and September with Adams and Local 110 to discuss the question of striker reinstatement. Such negotiations im- ply at least a de facto recognition of Local 110 by Mc- Quaide for this limited purpose. There is nothing in the language of the offer which con- ditions reinstatement upon any stated premise or limita- tion, nor did Adams collaterally impose any condition on the willingness of strikers to return. While expressed in terms of an asserted failure by Local 110 to make an un- conditional offer, Respondent's defense may more proper- ly be described as a contention that the Union's offer was not bona fide because, for nearly a month after the offer was made, the Union continued to picket at one location near the Respondent's terminal. As noted above, Adams told strikers to get in touch with McQuaide and terminated picketing at all locations other than Eisenhower Boulevard and Theatre Drive. It also pulled back its roving pickets.24 In view of past antagonisms, Adams was credulous when Cabot made the August 8 statement that the Company was ready, willing, and able to take back strikers, so he contin- ued the picketing to protest the slowness of the Respondent in making good its statement. The picketing did not pre- vent a large number of strikers from meeting with L. Mc- Quaide in his office early in September to discuss reinstate- ment. This number included strikers who said they would never cross a picket line, but who apparently arrived for the interview by using the unpicketed entrance to Mc- Quaide's office. Nor is there any evidence that any rein- 23 The Board stated in M. R. & R. Trucking Company, 178 NLRB 167, at 173, fn. 29 (1969), "It is well established that a union representing strikers may validly make a blanket unconditional application on behalf of the strikers for reinstatement to their jobs. See, for example, Elmira Machine and Specially Works, Inc., 148 NLRB 1695, 1702-03." See also Brown and Root, Inc., 99 NLRB 1031 (1952), enfd. 203 F.2d 139 (C.A. 8, 1953); Ameri- can United Inns, Inc. d/b/a Ramada Inn, 201 NLRB 431 (1973); N. L. R. B. v. 1. Posner, Inc., 300 F.2d 273 (C.A. 2, 1962); Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938). 24 Assertions by Respondent of harassment or misconduct on the part of strikers, made in the context of a claim that the offer to return was not bona fide and was inconsistent with the Union's other actions, are without foun- dation. The only specific instant of a post-August 8 incident was the Harris- Lavely dispute at the Bethlehem Steel loading dock, a minor spat for which the Union could not be charged under the most wide-ranging theory of vicarious responsibility. Moreover, it does not, as to Lavely, constitute mis- conduct which would deprive a discriminatee of reinstatement. 609 stated striker was picketing at a time when he had been assigned to be on duty in McQuaide's employ. There is nothing inconsistent in the Union's position vis-a-vis pick- eting and in the offer which it had tendered. Indeed, the two actions dovetail precisely. The Board stated in Hawaii Meat Company, Ltd., 139 NLRB 966 (1962), enforcement denied 321 F.2d 397 (C.A. 9, 1963): An unconditional request for reinstatement of strikers must carry with it . . . an undertaking to abandon the strike if the request is granted. It does not require em- ployees to forfeit their right to continue to strike if the request is denied. All that is required is that the Union or the employees unconditionally offer to return to work in the status they occupied before the strike be- gan. [139 NLRB at 971.] This rule had been followed consistently in many cases where picketing has continued after a valid unconditional offer to return had been tendered to an employer. Seminole Asphalt Refining, Inc., 207 NLRB 167 (1973); see also Com- bined Metal Manufacturing Company, 123 NLRB 895 (1959); Southern Fruit Distributors, Inc., 109 NLRB 376, 391 (1954); H. & F. Binch Co., 188 NLRB 720, at 724, fn. 6 (1971). Indeed, McQuaide obliquely acknowledged the bona fides of Adams' offer by two communications written to strikers immediately after receiving the Union's letter. In his letter, dated August 12, L. McQuaide stated that "To- day, for the first time, I have received information that leads me to believe that you may be willing to return to work unconditionally, and to do so at once." He repeated the same sentiments in a follow-up letter dispatched 3 days later. Accordingly, I find that the Union's letter, dated Au- gust 8, constituted a bona fide and unconditional offer on the part of all strikers to return to work immediately. Though it received a collective offer by strikers to return, the Respondent still preferred that employees make indi- vidual rather than a group application for employment. L. McQuaide told Weyandt in no uncertain terms that he would refuse to talk with any committee and would insist upon taking up the matter of reinstatement with each strik- er individually. This is what in fact he did, and what his August correspondence insists upon. The requirement by an employer that strikers make individual rather than group offers to return to work is a violation of Section 8(a)(1) and (3) of the Act. Mooney Aircraft, Inc., 132 NLRB 1194 (1961). In light of the fact that the Union made a collective and unconditional offer on behalf of all strikers, it was unnecessary for any individual striker to make a further individual offer to preserve his entitlement to re- turn to work, if, indeed, he was so entitled on August 12, 1974. Once a valid offer to return is made, it remains intact unless the employee has acquired regular and substantial employment; it need not be periodically renewed. The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). 4. The employer's obligation in the face of the Union's offer Assuming arguendo that all of the strikers here in ques- 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion are economic strikers, as the Respondent contends they are, once an unconditional offer to return to work has been made by or on behalf of such strikers, the Respon- dent is obligated to reinstate them to their former or sub- stantially equivalent positions if such positions exist, in the absence of a substantial business justification for denying reinstatement. Laidlaw Corporation, supra. The refusal to honor such a request, in the absence of such justification noted in Laidlaw, is in and of itself an unfair labor practice. Los Angeles Chemical Company, 204 NLRB 245 (1973). Where the replacement of economic strikers is not in issue, the rights of economic strikers and unfair labor practice strikers to reinstatement are identical . Universal Insulation Corporation, 149 NLRB 1397 (1964); Colony Material, Inc., 134 NLRB 1347 (1961); Wilkinson Manufacturing Company v. N .L.R.B., 456 F.2d 298 (C.A. 8, 1972). As noted before, Cabot stated on more than one occa- sion on August 8 that the Respondent was ready, willing, and able to take back all strikers. L. McQuaide testified at the hearing to the same effect. I questioned Cabot as to how a company, which had terminated a large number of dockworkers on May 17 by replacing them by new hires, could on August 12 take back all employees, including the replaced dockworkers. Cabot replied that an increase in business during the strike permitted such reinstatement. The General Counsel challenges the sincerity of these statements, but, at least as to the Respondent 's stated abili- ty to take back all strikers on August 12, I am willing to take Cabot and L. McQuaide at their word. When, on Au- gust 12 and August 15, L. McQuaide wrote to all strikers (except the discharged truckdrivers), indicating that he was willing to consider them for reemployment, these letters constituted a condonation by him of any strike misconduct on their part which might later be advanced as a justifica- tion for denying reinstatement as to any particular individ- ual. Medical Ancillary Services, Inc., 198 NLRB 789 (1972). Respondent argues that its general statement at the Pennsylvania Unemployment Compensation hearing, as well as a similar statement to Adams, constitutes an offer of reinstatement to striking employees which toll the run- ning of backpay liability and absolve it from making fur- ther offers of reinstatement. Accordingly, if any striking employees have not been reinstated, it is because they did not accept the Company's offer to come to work. Respon- dent applies the same rationale to a host of letters, recited above, which it sent in August and September to individual employees. In order to constitute a valid offer of reinstate- ment which tolls backpay, the offer of work to a striker must be specific, unequivocal, and unconditional.25 A mere inquiry, directed to an employee for the purpose of ascer- taining whether or not he is available for work, does not constitute an offer of reinstatement ,26 nor does an invita- tion to a striking employee which asks him to apply for reinstatement.27 In none of the letters involved herein did 25 Information Control Corporation, 196 NLRB 504 (1972); Controlled Al- loy, Inc., 208 NLRB 882 (1974); Standard Aggregate Corporation, 213 NLRB 154 (1974); Moro Motors, Ltd., 216 NLRB No. 29 (1975). 26 Rea Trucking Company, 176 NLRB 520 (1969), National Business Forms, 189 NLRB 460 (1971). 27 Information Control Corporation, supra McQuaide tell any striker to report for work at a stated time and place. On the contrary, the letters sent by L. Mc- Quaide to striking employees in August contained nothing more than an invitation to seek reinstatement, something these employees had already done on a group basis on August 8, through the aegis of the Union. While the Respondent was engaged in a dalliance with strikers who wished to come back to work, it was, at the same time, actively hiring new employees to fill slots which it acknowledged to be open, and was doing so apparently with a minimum of delay and formality. In August, Mc- Quaide hired eight new drivers and dockworkers; in Sep- tember, it hired eight more. Meanwhile, when prospective returnees from the ranks of strikers were called in for indi- vidual interviews early in September, L. McQuaide told many, if not most of them, that he had no current openings and that they would have to wait for reinstatement until an opening occurred. As previously noted, Respondent stated emphatically and repeatedly that it was ready on August 8 to take back all strikers who wanted to come back, includ- ing those who had been replaced on the docks in May. However, in early September, L. McQuaide was telling strikers in individual interviews that business had not picked up sufficiently to permit immediate reinstatement and argued the same proposition at the hearing herein. The two positions are flatly contradictory and lead inescapa- bly to the conclusion that the Respondent had no business justification, substantial or otherwise, for refusing to rein- state all strikers in August when they asked to come back. Such a refusal violates the Act. N.L.R.B. v. I. Posner, supra. In selecting employees from the ranks of strikers, Re- spondent did more than play the waiting game. It utilized the opportunity provided by a large number of individual interviews on September 3 through 5 to engage in hard-sell electioneering aimed at changing the minds of those it did accept for reinstatement and in defeating the Union in a representation election which was then in the offing.28 L. McQuaide admitted asking each interviewee to support him and to abandon the Union during the course of each interview. As discussed more fully infra, he pursued this tack both by permissible statements and by questions and remarks which illegally interfered with the Section 7 rights of the persons whose applications he was considering. In short, L. McQuaide declined or delayed reinstatement without just cause and tried to take advantage of the situa- tion facing him to purge his payroll of as many union ad- herents as possible, while converting others from their pre- vious ways by any means which appeared expedient, so that he might fashion a new work force which would see things his way in the event of a Board election. Such a program is clearly unlawful. Rushton & Mercier Woodwork- ing Co., Inc., 203 NLRB 123 (1973). 5. Interrogation and threats to returning strikers L. McQuaide's questions to returnees concerning strike violence on the part of themselves and others had no con- ceivable bearing on the purpose of the interview or the 2s The petition was later withdrawn by the Union as part of an out-of- Board settlement of various matters. W. C. McQUAIDE, INC. status of the strikers. A month before the Respondent had effectively granted condonation to all but the seven truck- drivers, both by its public pronouncements and by its let- ters inviting applications for reinstatement . Hence, it was no longer in a position to deny reinstatement , except as noted, on the basis of strike misconduct. L. McQuaide's questions in this regard were designed to elicit information which would provide evidence for a civil suit against Local 110 which was then pending. They were, at best, irrelevant to the interviews and provided a hostile setting in which other remarks were vocalized. I find that the following statements by L. McQuaide to interviewees on September 3-5 constitute unlawful threats, interference, or coercive interrogation, within the meaning of Section 8(a)(1) of the Act: (a) His statement to Klimek that if Klimek was for the Union he might as well turn around and walk out of the office. (b) His questions to Edwards in which he asked if Ed- wards had learned anything by going out on strike, and in which he asked Edwards why he had gone out on strike. (c) His statement to Sawko, after Sawko had confessed to being and remaining a union supporter, that he did not know if he could trust Sawko and that he would have to think about Sawko's application. (d) His question to Liberfinger as to why Liberfinger went out on strike. (e) His question to Weyandt as to whether he was still interested in the Union , and his further statement to Wey- andt that, if Weyandt was for the Union and would not vote for him, he did not want Weyandt to return to work. (f) His statement to Christener in which he implicitly conditioned the reinstatement of Christener on Christener's willingness to provide him with evidence relat- ing to the misconduct of other strikers. (g) His statement to Wright as to why Wright did not think about the possible loss of 10 years' seniority when Wright went out on strike. Normally, an employer's pejorative remarks about a la- bor organization, however actionable they might be in a civil court, do not constitute a violation of Section 8(a)(1) of the Act unless they go beyond slander and involve a promise of benefit or a threat of reprisal 29 In his conversa- tion in September with Sawko, L. McQuaide went beyond an abstract charge that the Teamsters were Mafia-domi- nated, and did more than make a polite suggestion to Sawko that he verify this contention by reading the Read- ers' Digest. L. McQuaide then asked Sawko how Sawko could lower himself by getting involved with an asserted criminal conspiracy, a hostile question designed to elicit an answer in the form of an argument disclosing Sawko's pri- vate sentiments on the question of unionization. I conclude that such a question is coercive interrogation in violation of Section 8(a)(1) of the Act. 6. The supervisory status of R. J. Kessler R. J. Kessler is named in paragraph 6 of the complaint 29 See, for example, Globe Wireless, Lid, 88 NLRB 1262, 1263 (1950), involving charges that a union was Communist-dominated. 611 as a discriminatee. He is referred to from time to time in the record as a dock foreman, and Respondent contends that he is a supervisor within the meaning of Section 2(11) of the Act. There is little direct evidence as to Kessler's specific duties, but there is testimony, which I credit, from discriminatee Dennis Patterson as to the duties formerly held and performed by Patterson, who, before becoming a truckdriver, held a position on the dock similar to Kessler's. The bulk of the Respondent's dock work is done at night, starting about 7:30 p.m. Both then and at other times, merchandise is unloaded from incoming trucks, sort- ed on the dock by destination, and then loaded on out- going trucks. The admitted supervisor in charge of this op- eration during the evening hours is Tim McQuaide, son of one of the principals. Three persons held positions equiva- lent to Kessler's, and one other dock foreman was assigned to prepare Sears Roebuck delivery trucks for departure. Their principal function lay in assigning dockworkers to load or unload various trucks. They did not hire or fire employees. There is some evidence that, on occasion, they would recommend an applicant for employment, but the record is unclear as to whether this was a job referral type of recommendation for a friend or acquaintance, or wheth- er it amounted to a substantial factor in the hiring process. Any dockworker wishing time off during the evening hours would channel his request through a foreman, but permis- sion to leave would have to come from the dispatcher. Dock foremen were hourly rated; neither foremen nor un- titled dockworkers punch a timecard, since this function is handled by computer in the clerk's office. Any insubordi- nation noted by a foreman would be reported to L. Mc- Quaide, although a foreman might try to straighten out the employee by a person-to-person talk before taking the mat- ter higher. As the work is pretty well routine, most dock- workers function with a minimum of supervision. While the matter is not free from doubt, it appears that the princi- pal oversight function performed by Kessler, and by per- sons similarly situated, was to make routine work assign- ments not involving the exercise of independent judgment. Accordingly, I conclude that Kessler was not a supervisor but a leadman and thus was entitled to the protection of Section 8(a)(1) and (3) of the Act. Orr Iron, Inc., 207 NLRB 863 (1973), enfd. 508 F.2d 1305 (C.A. 7, 1975); U.T.D. Corporation, 165 NLRB 346 (1967); NcNeff Indus- tries, Inc., 191 NLRB 76 (1971); D. H. Overmeyer Co., Inc., 196 NLRB 789 (1972); Goshen Litho, Inc., 196 NLRB 977 (1972). 7. The contentions of the General Counsel respecting replaced dockworkers The General Counsel contends that the dockworkers named in paragraph 6 of the complaint were unlawfully terminated. He supports this claim by saying that the non- striking employees hired or transferred to the dock prior to the release on May 17 of 19 dockworkers were not bona fide full-time permanent replacements, and hence, when striking dockworkers were replaced, the Respondent in ef- fect was discharging them without justification and for rea- son relating to union or protected activities, all in violation of Section 8(a)(1) and (3) of the Act. N.L.R.B. v. Interna- 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Van Lines, 409 U.S. 74 (1972). At that point, the dockworkers became, in his judgment, discriminatees enti- tled to reinstatement and backpay, with an obligation thereafter falling upon the Respondent to initiate their re- instatement rather than upon them to solicit it through an unconditional offer. N. L. R. B. v. Southern Greyhound Lines, 426 F.2d 1299 (C.A. 5, 1970). Accordingly, the strike be- came converted on May 17 from an economic strike into an unfair labor practice strike. Thus, early in August, when employees indicated a willingness to return , it became in- cumbent upon the Respondent to offer all of them, as un- fair labor practice strikers, full and complete reinstatement, discharging if necessary any persons who had replaced them since May 17. While this view is not without record support, it is un- necessary for me to pass upon these contentions because of actions by this Respondent and my findings and conclu- sions above. In announcing that it was ready, willing, and able to take back all employees, save the seven truckdri- vers, Respondent was, as to them, removing any distinction between unfair labor practice and economic strikers as far as entitlement to reinstatement was concerned. Since the Union made a valid unconditional offer on behalf of all strikers, including the replaced dockworkers, to return to work, the ball was then in the Respondent's court to notify all strikers of the time and place to start work. Were re- placed dockworkers regarded as discriminatees rather than merely economic strikers, their standing on the question of reinstatement could be no better. As for backpay, even if the 19 dockworkers were discriminatees after May 17, their entitlement to compensation would not begin to run until the strike ended and the Respondent was on notice of this fact, because the Board will not award backpay to strik- ers,30 even if they are discriminatees. Sea View Industries, Inc., 127 NLRB 1402 (1960); Knickerbocker Plastic Co., Inc., 132 NLRB 1209 (1961). Since the Respondent an- nounced a capability on August 8 to take back all strikers, it does not matter whether its earlier action on May 17 did or did not convert the strike then in progress into an eco- nomic strike. The resulting order would be the same as the one to be recommended herein. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent W. C. McQuaide, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen, and Helpers of America , Local 110, is a labor organization within the meaning of Section 2(5) of the Act. 30 In Kohler Company, 128 NLRB 1062, 1110 ( 1960), the Board stated: Ordinarily, a discnmmatonly discharged employee is entitled to back- pay from the date of his discharge . However, in cases where employees are discharged while on strike , it is the Board's established practice to award backpay from the date on which the employees make an uncon- ditional application for reinstatement, on the theory that it cannot be said that there was a loss of pay caused by the employer's conduct until the strikers indicated a willingness to return to work. 3. By discharging Dennis J. Patterson, John W. Geisel, Jr., Harry C. Lavely, Robert Lesnak, Frank Petrosky, and Dennis Albert, and by failing and refusing promptly to reinstate G. S. Marion, J. M. Dikum, R. C. McNulty, R. J. Kessler, J. M. Swinger, G. J. Ferrante, K. C. Hunt- zinger, G. L. Taylor, K. J. Fuska, J. P. Maderia, D. E. Yeckley, R. E. Josephson, T. Prudhoe, T. N. Spisak, N. V. Barefoot, J. A. Maderia, A. B. Carr, Stephen L. Ed- wards, Homer Allsion, and other employees of the Respon- dent, who, on or after April 17, 1974, ceased work concert- edly and went out on strike, in order to discourage their membership in, or support of, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, the Respondent herein violated Section 8(a)(3) of the Act. 4. By the acts and conduct described in Conclusion of Law 3, above; by coercively interrogating employees con- cerning their union membership, activities, and sympa- thies ; by conditioning reinstatement of employees upon their willingness to abandon their support for the Union or their willingness to provide the Respondent with informa- tion concerning the union activities of other employees; and by threatening employees in order to encourage them to abandon support for the Union or to cease engaging in concerted protected activities, the Respondent herein vio- lated Section 8(a)(1) of the Act. 5. The unfair labor practices recited above in Conclu- sions of Law 3 and 4 have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and 2(7) of the Act. THE REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom, and to take other actions designed to effectuate the purpose and policies of the Act. With respect to the violations of Section 8(a)(1) of the Act which have been alleged and proved in this case, it clearly appears that they have been pervasive and repeated, and that they manifest on the part of this Respondent a disposition to ignore and invade all of the statutory rights which Section 7 of the Act was designed to protect. Ac- cordingly, I will recommend a broad cease-and-desist or- der, designed to suppress any and all future violations of that section by this Respondent. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d. 532 (C.A. 4, 1941). With respect to reinstatement, I will recommend that the Respondent be required to offer full and complete rein- statement to all discriminatees named in the complaint, except Vallie R. Baker and Lawrence Gindelsperger. In this regard, I note that the fact that an employee has ob- tained employment elsewhere in the course of a strike does not, in and of itself, mean that he has waived reinstate- ment. The sending of letters, such as those dispatched by the Respondent on August 28, and those sent late in Sep- tember and early in October, to the interviewees who ap- peared on September 3-5, announcing that if Respondent did not hear from them, it would assume that they did not want to go to work, do not satisfy the Respondent's obliga- W. C. McQUAIDE, INC. 613 tion to offer reinstatement , nor do they toll backpay. In the case of Weyandt, the Respondent reemployed him in August but in a position different from the one which Weyandt held before the strike. I credit Weyandt's state- ment that, before the strike, he regularly drove the Wil- liamsport run and the Williamsport run was open when he returned to work. Moreover, Weyandt worked an average of 70 hours a week before the strike but was assigned, upon his return, to work which averaged, by his credited estima- tion, in excess of 80 hours per week. He quit late in Sep- tember after being assigned a run requiring him to operate a vehicle some 19-1/2 hours during a single day, under circumstances which would suggest that he was being goaded into quitting by the Respondent. Since the General Counsel does not allege this termination as a discriminato- ry discharge, I will make no finding in that regard . Suffice it to say for purposes of this case that , by failing to give Weyandt his former run and by assigning him to runs which required him to work in excess of the hours he for- merly worked, the Respondent did not satisfy its legal obli- gation to Weyandt of offering him his former or substan- tially equivalent position, so its obligation in this regard still remains. The Supreme Court noted with apparent approval in N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, Inc., 396 U.S. 258 at 260 (1969), that it "is apparently the Board's practice in reinstatement cases involving strikers ... not (to) name the individuals covered, but (to leave) disputes over the details of reinstatement and backpay to the compliance stage of the proceeding." In this case cer- tain discriminatees, namely, those receiving replacement letters of May 17, were specifically named in the com- plaint, while a broader class of strikers whose rights herein are similar in kind are not mentioned by name but are covered by a general reference in paragraphs 5 and 8. There is some testimony in this record that, as to some individual strikers in both categories , the Respondent may have satisfied its obligation to offer reinstatement and that backpay has been tolled. Such evidence, however, is impre- cise and inconclusive, so I make no finding in that regard. There is no evidence, as to classes of either named or un- named employees, that an obligation to the class has been generally satisfied. Accordingly, rights and liabilities in this regard as to individuals falling within these classes can best be resolved in a supplementary proceeding rather than in this Decision . Sufficient unto this day are the evils thereof. It is the Board's established practice to award backpay to unfair labor practice strikers who have not been reinstat- ed in response to an unconditional offer of reinstatement, beginning on the fifth day after the tender of the offer. The discriminatees involved in this case fall into a category an- alogous to unfair labor practice strikers because of the facts and circumstances set forth above , and should be awarded backpay running from 5 days after August 12, the date on which the Respondent received the Union's offer of an unconditional offer to return. Backpay should be computed in accordance with the Woolworth formula,31 with interest thereon running at 6 percent per annum. Isis 31 F. W. Woolworth Company, 90 NLRB 289 (1950) Plumbing & Heating Co., 138 NLRB 712 (1962). I will also recommend the usual notice posting to inform employees of their rights and of the recommended Order in this case. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the fol- lowing recommended: ORDER32 Respondent, W. C. McQuaide, Inc., Johnstown, Penn- sylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, failing promptly to reinstate employees upon unconditional request, or otherwise dis- criminating against employees in regard to the hire and tenure of their employment, in order to discourage mem- bership in International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 110, or any other labor organization. (b) Interrogating employees concerning their union ac- tivities and sentiments. (c) Conditioning the reinstatement of employees upon their abandonment of support for the Union or upon sup- plying the Respondent with information concerning the union activities of other employees. (d) Threatening employees with reprisal if they engage in union or concerted activities. (e) By any means or in any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative actions designed to ef- fectuate the purposes and policies of the Act: (a) Offer to the following named employees, and to all employees who concertedly engaged in a work stoppage on or after April 17, 1974, full reinstatement to their former positions, or, in the event that their former positions no longer exist, to substantially equivalent positions, without prejudice to any loss of pay suffered by reason of the dis- crimination or interference found herein, in the manner described above in the section entitled "The Remedy": Dennis J. Patterson, John W. Geisel, Jr., Harry C. Lavely, Robert Lesnak, Frank Petrosky, Dennis Albert, G. S. Marion, J. M. Dikum, R. C. McNulty, R. J. Kessler, J. M. Swinger, G. J. Ferrante, T. N. Spisak, K. C. Hunt- zinger, G. L. Saylor, K. J. Fuska, J. P. Maderia, D. E. Yeckley, R. E. Josephson, T. Prudhoe, N. V. Barefoot, J. A. Maderia, A. B. Carr, Stephen L. Edwards, and Ho- mer Allison. (b) Post at its Johnstown, Pennsylvania, office and ter- minal copies of the attached notice marked "Appendix B." 33 Copies of said notices, on forms provided to the Re- 32 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its find- ings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 33 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant Continued 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent by the Regional Director for Region 6, and duly signed by a representative of the Respondent, shall be post- ed by the Respondent immediately upon receipt thereof, and shall be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered over by any other material. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from date of this Order, what steps it has taken to comply herewith. IT is FURTHER ORDERED that insofar as the complaint seeks relief for Vallie R. Baker or Lawrence Gindelsperger, the complaint is hereby dismissed.