Highland Plastics, Inc.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Highland Plastics, Inc. and Local 445, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 2-CA- 16518 May 26, 1981 DECISION AND ORDER On September 29, 1980, Administrative Law Judge Steven B. Fish issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and support- ing briefs. The Respondent also filed an answering brief. 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, find- ings," and conclusions2 of the Administrative Law Judge, to modify his remedy, 3 and to adopt his recommended Order, as modified herein.4 1. On the afternoon of June 5, 1979,5 11 of the Respondent's first-shift employees, including Doug Koehler and Brian Nolan, went on strike and estab- lished a picket line outside the Respondent's prem- ises. Shortly thereafter, the Respondent's plant manager, Bertha, informed these strikers that if they did not report to work the following morning the Respondent would assume that they had quit. Later that same day the employees contacted union organizers who came out to the picket line and passed out authorization cards. One of the organiz- ers then met with Bertha and requested recognition based on the signed cards. Bertha refused, stating that these employees had quit. Subsequently, Bertha met with the supervisors and decided to ter- minate the striking first-shift employees, including Koehler and Nolan, for allegedly blocking trucks. Koehler and Nolan reported to the picket line somewhere between 7 and 8 a.m. on June 6. At ap- ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolttions with respect to credi- bility unless the clear preponderance of all of the relevant evidence cotn- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRH 544 (1950J, enfd 188 F.2d 362 (3d Cir. 1951). We have carefilly examined the record and find no basis for reversing his Findings. 2 'Ihe Admirnistrative law Judge, in finding that the Respondent's president violated Sec. 8(a(l) of the Act by brandishing a gun while at the picket ine, erroneously noted that there had been no preceding acts of violence by the pickets. The record shows, however, that earlier that day one of the pickets had thrown a punch at employee Schiavone and had thrown a crate under his car when he attempted to cross the picket line. We find that these acts, which the Respondent was not aware of, were not so serious that the Respondent's president's act of carrying a gun with him when he went out to the picket line would reasonably have appeared as only a permissibly defensive gesture 3 See Ihis Plumbing & teating Co., 138 NLRB 716 (1962), for rationale on interest payments. 4 We have modified the Administrative Law Judge's recommended Order to include the name Mark Hayes which was inadvertently omitted from the make-whole prosvision 5 All dates are in 1979 256 NLRB No. 28 proximately 7:30 a.m., all of the striking first-shift employees, except Koehler and Nolan, reported for work. The Respondent's supervisor, Taylor, in- formed them that they had all been terminated. Taylor testified that if either Koehler or Nolan had attempted to report for work he would not have permitted them to do so. In the early afternoon, Bertha told the strikers present on the picket line, including Koehler, that their jobs were available and that the Respondent wanted them to return to work. Bertha next telephoned the remaining strik- ing employees and relayed the same message to them. The following day the Respondent mailed the striking employees a letter stating that their jobs were "at this time" available. 6 Neither Koehler nor Nolan made an attempt to return to work. The Administrative Law Judge found, and we agree, that the Respondent violated Section 8(a)(l) and (3) of the Act by discharging the nine employ- ees who reported for work on June 6. We disagree, however, with the Administrative Law Judge's conclusion that Koehler and Nolan were not un- lawfully discharged because the record failed to es- tablish that the Respondent had directly informed them of their termination or that they had other- wise become aware of the Respondent's decision to discharge them. He also noted that the Respondent had informed Koehler and Nolan on June 6 and 7 that their jobs were available. In so finding, the Administrative Law Judge found the present case to be distinguishable from Martin Arsham Sewing Co., 244 NLRB 918 (1979), where the Board found that an employer violated Section 8(a)(1) and (3) by discharging four employees despite the fact that the employer did not directly communicate to the employees that they had been discharged. Contrary to the Administrative Law Judge, we find that the facts here are similar to those in Martin Arsham Sewing Co., and that its rationale is applicable. In Martin Arsham Sewing Co., the em- ployer told a group of employees that whoever signed union authorization cards would "leave with the Union or stay and work." Four employees were not present when the employer made his dis- charge statements. The Board concluded that since those remarks were directed at all card signers, and the employer could reasonably have expected that its statements would be communicated to the four absent employees, and that in fact they were, the ' We agree with the Administrative Law Judge, for the reasons stated by him, that this letter did not constitute a valid offer of reinstatement. On July 3, however, the Respondent made a valid offer of reinstatement to most of the striking employees, including Koehler and Nolan. The latter two did not resplonid to this offer. HIGHLAND PLASTICS, INC. 147 employer had unlawfully discharged the four em- ployees. Under the circumstances, in this case, we like- wise find that the Respondent both intended to dis- charge Koehler and Nolan and indeed considered them to have been discharged along with the others, as evidenced by Taylor's testimony. We further find it reasonable to infer, from the fact that Koehler and Nolan were at the picket line either at the time the discharges were announced or shortly thereafter, that their fellow strikers informed them of their discharges. Accordingly, we find that Koehler and Nolan were discharged by the Re- spondent in violation of Section 8(a)(1) and (3) of the Act. 2. We agree with the Administrative Law Judge's finding that the Respondent's unfair labor practices were sufficiently widespread and serious under N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), to warrant issuing a retroactive bargain- ing order. It has long been established that the threat of loss of employment, discharge of union adherents, and the threat of plant closure, all of which occurred herein,7 are likely to have a lasting inhibitive effect on a substantial percentage of the work force, and therefore are considered "hall- mark" violations which support the issuance of a bargaining order, unless some significant mitigating circumstances exist.8 No such circumstances exist in this case. Although the Respondent has appar- ently experienced substantial employee turnover since it committed the unfair labor practices de- scribed above, we find such turnover does not war- rant withholding a bargaining order. The Board has consistently held that the validity of a bargain- ing order depends on an evaluation of the situation as of the time the unfair labor practices were com- mitted and, therefore, to delete such an order on the basis of employee turnover would reward, rather than deter, an employer who engaged in un- lawful conduct during an organizational cam- paign.9 Accordingly, we find that a bargaining order is justified because the Respondent's unfair 7 The Respondent also violated Sec. 8(a(1) by its agent's brandishing a gun while at the picket line and driving a van into picketing employees. I See, e.g., Patsy Bee, Inc., 249 NLRB 976 (1980); cf. N.L.R.B. v. Ja- maica Towing Inc., 602 F.2d 1100 (2d Cir. 1979), wherein the Second Cir- cuit, while denying enforcement of the Board's bargaining order, express- ly recognized the special significance of the aforementioned "hallmark violations" as factors justifying a bargaining order. 9 Jamaica Towing Inc., 247 NLRB 226 (1980), and Glomac Plastics, Inc., 241 NLRB 348 (1979). Further, we respectfully continue to disagree with those courts of appeals which have expressed a contrary view of employ- ee turnover as a factor to be considered in determining the propriety of a bargaining order. Moreover, we note that at least one such court, the Second Circuit, has indicated that employee turnover is of little signifi- cance in cases where, as here, the respondent has committed various hall- mark violations of the Act N.L.R.B. v. Jamaica Towing Inc., supra. labor practices had a "tendency to undermine ma- jority strength and impede the election process." °0 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 modi- fied below, and hereby orders that the Respondent, Highland Plastics, Inc., Newburgh, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs accordingly: "(a) Make whole Michael Phillips, Doug Koehler, Brian Nolan, Steven Olsen, Dale Rehn- berg, Kevin Fitzpatrick, Mark Hayes, Larry Embler, Tom Dolan, Walter Johnson, and James Fichera for any loss of earnings they may have suf- fered by reason of the discrimination practiced against them in the manner set forth in the section herein entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. 'o Gissel Packing Co.. Inc.. upra at 613l614 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge or threaten to dis- charge our employees for engaging in a strike or in union activities or otherwise discriminate against them in order to discourage them from being or becoming members or supporters of Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT threaten to close or move our plant if the Union is selected as the collective- bargaining representative by our employees. WE Will. NOT brandish a gun while employ- ees are engaged in protected concerted activi- ty or drive an automobile into our employees while they are picketing. HIGHLAND PLASTICS, INC. 147 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with the Union concerning terms and condi- tions of employment of our employees in the following appropriate unit: All full time and regular part time produc- tion and maintenance employees employed by us at our Newburgh, New York, facility, including cutters, benders, bellers, packers, shippers and welders, but excluding office clerical employees, guards and supervisors as defined in Section 2(11) of the Act. WE WILL NOT unilaterally grant wage in- creases, distribute free turkeys to our employ- ees, or otherwise unilaterally change any other term or condition of employment of our em- ployees, without first notifying the Union and bargaining collectively with it in good faith concerning such proposed changes; provided that, nothing herein shall require us to rescind any wage increase or benefit which we have previously granted. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protec- tion, or to refrain from any or all such activi- ties. WE WILL make whole Michael Phillips, Doug Koehler, Brian Nolan, Steven Olsen, Dale Rehnberg, Kevin Fitzpatrick, Mark Hayes, Larry Embler, Tom Dolan, Walter Johnson, and James Fichera, for any loss of earnings they may have suffered by reason of our discrimination against them, plus interest. WE WILL, upon application, offer to all those employees who participated in the strike which began on June 5, 1979, and who have not been reinstated, immediate and full rein- statement to their former positions of employ- ment or, if those positions are no longer avail- able, to substantially equivalent employment, without prejudice to their seniority or other rights and privileges previously enjoyed, dis- missing if necessary, any persons hired as re- placements on or after June 6, 1979, and WE WILL make whole those employees for any loss of earnings they may have suffered by reason of any refusal on our part to reinstate them, plus interest. WE WILL, upon request, bargain with the Union as the exclusive bargaining representa- tive of the employees in the appropriate unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is Yeached, embody such understanding in a signed written agreement. HIGHLAND PLASTICS, INC. DECISION STATEMENT OF THE CASE STEVEN B. FISH, Administrative Law Judge: Pursuant to charges and amended charges filed by Local 445, In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, a complaint was issued by Region 2 of the Na- tional Labor Relations Board on August 7, 1979,1 alleg- ing that Highland Plastics, Inc., herein called Respond- ent violated Section 8(a)(1), (3), and (5) of the Act, by discharging some 19 named employees because said em- ployees joined and assisted the Union, and because they engaged in a strike from June 5 to on or about July 20; by threatening employees that Respondent's facility would be closed or relocated if they selected the Union as their collective-bargaining representative; by appear- ing during picketing and brandishing a gun; by assaulting picketing employees by driving an automobile van into employees when they were picketing; by bypassing the Union and dealing directly with striking employees by offering them a 10-cent-per-hour wage increase if they would abandon their strike and return to work; and by refusing to recognize and bargain with the Union as the exclusive representative of its employees in an appropri- ate unit. The hearing was heard before me in Goshen, New York, on January 8-10 and 22-25, 1980. During the course of the hearing, the General Counsel amended the complaint to add some additional discrimi- natees, and to specify the reinstatement dates for the al- leged discriminatees, and added allegations that Respond- ent by granting wage increases and distributing free tur- keys to employees on Thanksgiving violated Section 8(a)(1) and (5) of the Act, and, by denying a wage in- crease to employee Larry Embler, violated Section 8(a)(1) and (3) of the Act. 2 Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and Re- spondent, I make the following: I All dates are in 1979 unless otherwise stated. 2 In his brief, the General Counsel, after reviewing the record, agreed and submitted that employees Godfrey, Wajda, Wheeler, Fredell. Decker, Schiavone, lbbotson, and Miller were never discharged by Re- spondent. I shall treat this statement as a request to amend the complaint to delete these individuals as discriminatees from said complaint, which request I hereby grant. --- HIGHLAND PLASTICS, INC. 149 FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation, is engaged in the manufacture and distribution of plastic fittings and related products at its facility in Newburgh, New York. During the fiscal year ending October 31, 1978, Re- spondent purchased and received at its Newburgh, New York, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New York. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. Events of June 5, 6, and 7-Employee Strike, Union Appears, Respondent's Alleged Discharge of Employees, and Attempts To Offer To Reinstate Them On June 5, a number of Respondent's employees met and drew up a list of demands concerning various im- provements in working conditions. It was agreed that these demands were to be presented to Respondent. Accordingly, a group of first-shift employees,3 met with Ed Bertha, Respondent's plant manager, and Plant Foreman and Supervisors Steve Warran and Terry Taylor. Steve Olsen, one of the employees, read off a list of demands, including a 30-cent-per-hour increase, addi- tional sick days, personal days, holidays, and other im- provements in working conditions. Bertha, after listening to these demands, told the employees that their demands would be conveyed to Jack King, Respondent's principal shareholder. Most of the first-shift employees then punched out at or about 3:45 p.m., 4 and established a picket line outside Respondent's premises.5 The four second-shift employees, Al Guinta, Terry Drouin, Guy Banker, and Charles Shapiro, reported for work, punched in, and worked for a few minutes. At or about 4:15-4:30 p.m., they punched out and joined the first-shift employees on the picket line. At or about 4:45 p.m., Bertha, Warran, and Taylor approached the em- ployees on the picket line. Bertha asked Olsen what was happening. Olsen replied that unless Respondent met the employees' demands they were not going to work. Bertha then addressed himself to the four second-shift employees, Banker, Shapiro, Guinta, and Drouin, who were scheduled to be at work at that time; and told them that, if they did not return to work, he would assume that they had quit. One of these employees asked what if they were sick. Bertha replied that they did not look sick a At the time Respondent employed three shifts of employees: a day or first shift consisting of the bulk of Respondent's employees, ran from 8 a.m. to 4 p.m.; a second shift consisting of four employees running from 4 p.m. to midnight; and a third or night shift from midnight to 8 a.m. 4 Their shift ended at 4 p.m. s The first-shift employees present and on the picket line were Kevin Fitzpatrick, Tom Dolan, Michael Phillips. Mark Hayes, Walter Johnson, Doug Koehler, Dale Rehnberg, Brian Nolan, Larry Embler, James Fi- chera, and Olsen. to him and if they were sick they had better bring in a doctor's note. The employees did not resume work. Bertha then addressed himself to the first-shift employ- ees and informed them that, if they did not report to work the following morning, he would assume that they had quit. At or about 4:30 p.m., Fitzpatrick made a call to the Union. He spoke to Union President Al Schueler and told him that there was some sort of labor dispute going on and asked for assistance from the Union. As a result of this conversation, at or about 5:15 to 5:30 p.m. on June 5, Schueler and Joe Arnita, organizer for the Union, arrived at the plant. They discussed with the em- ployees on the picket line the possibility of the Union representing the employees and passed out authorization cards to sign. They told the employees to sign the cards if they wished the Union to represent them. All the em- ployees on the picket line at the time, totaling 12, after reading the cards, filled them out, signed them, and re- turned them to Arnita or Schueler.6 Arnita asked the employees how many employees were working for Re- spondent and received varying estimates ranging from 25 to 30. Arnita told the employees that the union officials would be going into the plant to request recognition from Respondent. Schueler then went inside the plant and met with Bertha. Schueler introduced himself to Bertha, told him that the Union represented a majority of his employees, and that he had cards signed by these employees. Bertha responded that it did not make any difference, that these employees did not work for Respondent since they all had quit. Schueler replied that he probably could straighten out the problem if he could speak to the owner. Bertha answered that the owner, Jamie King, was unavailable. He added that King was very antiunion and that before King would negotiate with a Union he would rather close the doors and go out of business. Schueler again requested to see King, and Bertha replied that he would pass his request on to King. Schueler in- formed Bertha that he would be glad to return the men to work immediately if these problems could be resolved. Bertha responded, "No way, they all quit."7 Shortly thereafter, at approximately 6 p.m., Bertha, Taylor, and Warran met to determine what action, if any, they were going to take against the employees. Warran obtained all the employees timecards and they were separated into three groups. One group, consisting of the four second-shift employees, Banker, Guinta, Sha- piro, and Drouin, since they did not return to work, was considered to have quit. The second group, consisting of Olsen, Phillips, Hayes, Johnson, Fitzpatrick, Dolan, Embler, Rehnberg, Fichera, Nolan, and Koehler, was terminated because, according to Respondent's witnesses, The card signers on June 5 were Rehnberg, Phillips, Shapiro, Banker, Olsen, Johnson, Drouin, Hayes, Guinta, Fitzpatrick, Embler, and Dolan. 7 The above is based on Schueler's version of his conversation with Bertha, which I credit, as I found him to be a more forthright and believ- able witness than Bertha. Bertha denied making any statements concern- ing the plant closing or King's attitudes towards the Union, but admitted that, in response to Schueler's demand for recognition, that he did inform Schueler that "some" of the employees did not work there anymore. HIGHLAND PLASTICS, INC. 149 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were seen "blocking" trucks and interfering with company business.8 Respondent decided to take no action against the third group, consisting of the remain- ing employees. Taylor was authorized by Bertha to inform the affected employees of Respondent's actions. He did not inform the second-shift employees of Re- spondent's decision with respect to their status, but he admitted that, if they arrived for work, he would tell them that Respondent was sorry, that they figured the employees had quit, and that "they would be out." Later that evening, Tom Dolan came to the plant and asked Taylor if he could use the phone. Taylor said that he did not want him in the building because as far as Re- spondent was concerned he did not work there anymore. Later that night, Fitzpatrick, who had been informed by Dolan of Taylor's actions, called and asked Taylor what was going on. Taylor informed Fitzpatrick that he did not work there anymore and not to bother to come in the next day. Taylor did not inform either Dolan or Fitz- patrick of why Respondent had decided that they "didn't work there anymore." Fitzpatrick informed employees Hayes and Schiavone that he had been terminated. A number of employees, namely, Keith Lund, John God- frey, Pete Schiavone, Ed Wajda, Gary Fredell, and Bob Decker, worked for Respondent on June 5 notwithstand- ing the presence of the picket line of employees. Sometime between 7 and 8 a.m. on June 6, Fitzpatrick, who had the day before been given additional cards to distribute by Arnita, gave cards to employees Doug Koehler, Pete Schiavone, James Fichera, and Brian Nolan on the picket line. Present on the line also were other employees: Olsen, Phillips, Embler, Hayes, and Rehnberg. Fichera, Nolan, Koehler, and Schiavone signed the cards in front of Fitzpatrick and returned them to him at that time. At or about 7:30 a.m., a number of the employees on the picket line attempted to report to work.9 Taylor was standing at the door which was locked. He admitted that he was there to make sure that anyone who Respondent had decided had either quit or was terminated would not be let in. Olsen, Phillips, Hayes, Embler, Johnson, Dolan, Rehnberg, and Fichera came to the door and attempted to come in. Olsen asked to come in, and Taylor replied that the employees did not work there anymore and that they were all terminated. Olsen insisted that, if the em- ployees were fired, then they were entitled to their checks immediately. Taylor replied that they would re- 8 The evidence presented by Respondent concerning the "blocking" of trucks and interfering with company business consisted of testimony that Respondent's witnesses observed some trucks pull up, some employees speaking to the drivers, and the drivers then refusing to make the deliv- eries. Respondent adduced no evidence of what was said to the drivers, nor of any physical blocking of these trucks by the pickets. The only evi- dence in the record of what was said to drivers was the testimony of Rehnberg, who as a shipping employee knew the drivers who customar- ily make deliveries to Respondent. He testified, without contradiction, that he merely told these drivers that there was a strike and a picket line up, and that the drivers replied that they were Union also and would not cross the picket line. 9 Arnita had instructed them the night before to try to report for work on June 6, and the Union would try to negotiate with the Company. ceive their paychecks at the regular time of 11:30 a.m., and they should return at that time. o Later in the day of June 6, Respondent had second thoughts about its decision to terminate certain of its em- ployees. Bertha testified that, when the decision was made on June 5, he informed Jamie King of his contem- plated action and that King had concurred, but suggest- ed verifying the decision with legal counsel. Bertha con- tacted an attorney who allegedly told him Respondent's action seemed proper, but he would check into it some more. Sometime on June 6, Bertha met with his attorney and was told that Respondent had made a big mistake. Bertha then began to try to contact people to tell them that their jobs were available. Sometime in the early afternoon of June 6, Bertha went out to the picket line to give the employees their paychecks. Bertha addressing them in a group told them that their jobs were available or still open and Respondent wanted them to come back to work. One of the strikers asked what the pay would be, and Bertha replied "the same as before." One of the strikers told Bertha that they would not return until their demands were met. Present in this group of employees were Olsen, Phillips, Hayes, Koehler, Fitzpatrick, John- son, Dolan, Rehnberg, and Embler. Bertha also tried to contact the remaining employees by phone. He called employees who were not terminated as well, since there was such confusion as to who had been terminated and or been notified of such termination. Bertha spoke to Guy Banker, James Fichera, Al Guinta, Pete Schiavone, Shaun Seeley, and Brian Nolan on the phone on June 6. He told them that their jobs were available and he wanted them to come back to work. Bertha did not recall the response of any of these individuals. Bertha also spoke to Fredell and Ibbotson, told them the same thing, and they responded that they would be traveling together and would try to get in to work. Keith Lund and Ed Wajda were also spoken to and re- plied that they would come in if they could. Sherry Wheeler told Bertha that she was a little afraid to come in, but that she would come in if she could get through the picket line. Bertha testified that he called Charles Shapiro and left a message that his job was available and that Respondent wanted him to come back to work.' 2 Bertha did not try to contact Terry Drouin, as Taylor had told him that he had contacted Drouin and that Drouin had told Taylor that he would be coming into work the next day. Bertha did not call Anthony Madia since he had been informed that Madia had resigned. '° The above recitation of facts is based on a compilation of the testi- mony of Taylor, Hayes, Embler, and Dolan, which is essentially not in dispute. Embler is the only witness who testified that Fichera was present during this incident. Fichera was not called to testify. Taylor did not mention Fichera being present, but did not deny that he was there. All of Respondent's witnesses agree that they had decided to terminate 11 em- ployees for allegedly blocking trucks and interfering with company busi- ness, but could only name 10 individuals not including Fichera. I find, particularly in the absence of a denial by Taylor that he was present on June 6, that Fichera was the I Ith person whom Respondent decided to terminate and that he was among the group of employees who attempted to report to work and were told by Taylor that they were terminated. " Banker, Fichera, Schiavone, Seeley, and Nolan did not testify. t2 Shapiro did not testify. HIGHLAND PLASTICS, INC. 151 The next day, June 7,13 Bertha sent a letter by certi- fied mail, return receipt requested, to all employees. The letter reads as follows: In light of the recent and ongoing work stoppage at the Highland Plastics plant, it has become necessary for us to take action to keep our business operating. This is to notify you that your jobs are at this time available and any of you who report for work will be put back on the payroll. This is to further advise you that effective immediately, we will begin to hire permanent replacements to fill the plant work requirements. Subsequently, on July 3, 1979, Respondent sent an- other letter to all employees who had not returned to work with the exception of Phillips and Olsen. 14 This letter, signed by Bertha, reads as follows: As we told you personally on June 6th, and con- firmed by letter the next day, the plant is operating and work is available. We have several openings at the present time and rather than hire additional per- manent replacements, we invite you to return to work. Please let me know as soon as possible of your deci- sion. Employees Banker and Guinta returned to work on June 18, Shapiro, Fichera, and Dolan on July 5, Embler and Drouin on July 9, Phillips on July 26, Hayes on July 30, and Fitzpatrick in mid-August. 1. The gun incident At 11 a.m., on June 6, a New York Telephone Compa- ny truck drove up to Respondent's premises in order to make a delivery. The driver stopped when a number of pickets approached him. The pickets informed the driver that the employees were on strike. The driver replied that he would not cross the picket line. Jamie King then came out of the main door of Re- spondent's premises carrying a loaded gun in his hand. He walked to the truck with the gun at his side and climbed up on the running board of the truck. He still had the gun in his hand, while he had a conversation with the driver. He did not at any time raise or point the gun at anyone. According to King,1 he said hello to the driver, who then told King that he could not go through the picket line, because he was scared. King replied that he understood the driver's right not to cross the line and suggested that he give King a call and King would deliv- er anything the driver needed to the customer's yard. as On June 5, David Ibbotson was given a card by Mike Phillips on the street away from the picket line. Phillips told him to read it and sign it if he agreed with everything that was on it. Ibbotson signed the card and dated it on June 7, and dropped it off at Phillips' house on that eve- ning. 14 Olsen was terminated by letter on July 3, 1979, for his picket line misconduct. The General Counsel does not allege this action to be in vio- lation of the Act. Phillips was offered reinstatement by letter dated July 12, but received a letter of reprimand for his picket line misconduct. The General Counsel does not contest the legality of this action either. 16 The driver did not testify. King denied that he asked the driver to go through the line, as well as denying that the reason that he took the gun out with him was to assist the truck in crossing the line. According to King, he took the gun with him out to the telephone truck because he was "trying to protect myself, my employees and my building." King testified further that when he arrived at the plant on that morning he was told by Taylor that a customer named Mike Weiss had come to the plant to make a pickup, that the pickets had given him a "hard time" coming through the line, and that it was necessary to call the police in order to get Weiss out of the plant. Taylor also informed King that some employees who wanted to come to work had attempted to force their way into the plant. In addition, King was told about some employees who had allegedly called in and said that they were afraid to come in to work because of threats by pickets. King admits however, that there had been no violence at the time of the incident. King testified further, "I might add that I had the feeling that if they knew there was someone here armed properly, they wouldn't do all these violent things." When asked which violent things, he re- sponded, "like the threats to the men." After King's conversation with the driver, he got off the running board, turned around, and walked into the plant, still carrying the gun but not pointing it at anyone. Shortly thereafter, the police arrived and asked King about the gun. King showed the police his permit. The police requested that he not bring the gun out to the picket line again. King replied that he was only trying to protect his property and employees. The police replied that they could do that and it was their job. King agreed not to carry the gun again. King took the gun home that day and did not bring it back to the plant. The police went out to the picket line and informed the employees that King had a permit for the gun and that he would not be bringing the gun out anymore. 2. The van incident On June 7, at approximately 12 noon, employees Olsen, Phillips, Rehnberg, and Johnson were picketing in front of driveway 2. They were walking in a clockwise circle about 5 feet apart. Jamie King, driving a rented Avis van, drove up on Jeanne Drive towards driveway 2. He did not blow his horn or turn on his directional signal, but did slow down to approximately 3-5 miles per hour as he turned into the driveway towards the pickets. He drove through the driveway and in the process struck Phillips, Olsen, and Rehnberg with various parts of the van as they were attempting to move out of the way. Phillips and Rehnberg fell to the ground. Rehnberg immediately got up, but Phillips remained on the ground holding his ankle. King stopped the van and walked over towards Phillips. Rehnberg called King a "murderer." King went back inside the plant. An ambulance was called and Phillips was taken to the hospital. X-rays were taken of his back, head, and ankle and he was re- leased from the emergency room with a sprained ankle. The next day he was in pain from his back, and was checked into the hospital by his private physician for HIGHLAND PLASTICS, INC~~~~~~~~~~~~~~~~~. 5 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD treatment of this injury, and remained in the hospital until June 16. Neither Rehnberg nor Olsen was injured as a result of being struck by the van. 6 3. The alleged threat to close the plant On June 6, in the evening, Warran came out to the picket line and spoke to employees Hayes and Embler. He told Hayes and Embler that he did not think that Re- spondent could afford to meet the demands of the Union, and that they would have to close or move. Warran also indicated that he had heard from someone inside the plant that the Company would rather close down and move than accept a Union. 17 4. The offer of a 10-cent-per-hour wage increase On June 7, Jack King, Respondent's chief operating officer, arrived at the plant. Olsen and Phillips requested a meeting of employees with Jack and Jamie King with- out Bertha. The meeting was held in the morning on June 7. The employees complained about Bertha and his management style. Jack King asked the employees to return to work, and Olsen repeated his insistence that the demands previously presented on June 5 must be met before the employees would return to work. Jack King asked for a brief recess, and then returned with Bertha and Jamie King. Jack King offered the employees a 10- cent-per-hour, across-the-board increase, if they would agree to return to work. The employees, after leaving the room and discussing the matter among themselves, came back in, rejected the offer of Respondent and walked out. As they were walking out, one of the em- ployees said, "now we'll go Union."' '6 The above description of this incident is derived from a sy nthesis of the testimony of Phillips, Johnson, Rehnberg, King, Keith Lund (an em- ployee who testified that he was present), and Stew Misner, a frmer employee of Respondent, who is employed at Hill Manufacturing located nearby, who was also a witness to the event I credit the essentially mu- tually corroborative testimony of Rehnberg, Phillips, Johnson, and Meisner that the van did in fact strike the picketing lployees. King, al- though testifying that he did not believe that the van struck any mnplo)- ees, admitted that he heard a metallic crash from the right rear of the van, which accounted for his decision to stop. Lund's testimony in sup- port of King's is not credited. He was so anxious to corroborate King's version that he testified that King had turned on his directional signal and had come to a complete stop as he turned into the drieway. Even King himself admitted that he could not recall either using his signal or coming to a complete stop. " Based on the testimony of Hayes, whom I found to be a forthright. candid, and truthful witness, corroborated in part by Embler and Joe Arnita, who was also present during part of the conversation. Although Embler did not corroborate Hayes and Arnita, insofar as they testified that Warren mentioned that he had heard front someone "inside" about the plant closing rather than accepting the Union, Hayes and Arnita's tes- timony in this area is supported by Bertha having stated to Schueler at the time of the demand that before King would negotiate with a union, he would rather close the doors and go out of business. Warran admitted volunteering the statement to employees that he felt that Respondent could not afford the demands of the Union, and "that either it would come down to either that they close the plant or move it." iHe claims, however, that this remark was precipitated by Olsen's informing him of the demands that the Union would be making upon the Employer of a $1.50- to $2-per-hour wage increase. I discredit Warran as to this testimo- ny, as it appears from the credited testimony of the other participants to the conversation that Olsen was not even present. Additionally, I found Warran generally to be a confused and uncertain witness. is No mention was made during the meeting of the Union by all) of Respondent's officials or any of the employees. Outside on the picket line, Arnita was present. The employees told Arnita the results of the meeting and Arnita asked the employees what they wanted to do as far as continuing the strike or accepting the offer. All the employees present urged continuation of the strike. Thus for the first time, picket signs reading Local 445 IBT were distributed to the employees.' That afternoon a telegram was received by Respond- ent from the Union. The telegram stated that the Union represented a majority of Respondent's employees in a unit of its production and maintenance employees, and requested a meeting to evidence the majority status and to commence negotiations. Respondent did not respond to this telegram. On June 8, the Union filed a representation petition, seeking to represent Respondent's employees, in Case 2- RC-18391. The charge in the instant case was filed on June 28 and the complaint issued on August 7. B. Distribution of Thanksgiving Turkeys In November 1979, Respondent for the first time in its history provided free turkeys to all of its employees on Thanksgiving. There is no evidence in the record that any mention of the Union was made at the time that the turkeys were distributed. Bertha, who was hired as plant manager in January, testified that the giving out of such turkeys has been a longstanding practice of his at other plants. He further testified that, during the month of October, Respondent's sales had increased by 40 percent. Thus since October was such a great month, he testified that he felt that the employees should share in this and that he therefore de- cided upon the distribution of turkeys on Thanksgiving. C. The Wage Increases At the hearing the General Counsel amended the com- plaint to allege that Respondent on or about June 7, and at various times thereafter, bypassed Local 445 and dealt directly with employees by unilaterally promising and granting wage increases. During the course of the hear- ing, extensive testimony was taken as well as documen- tary evidence received, with respect to the granting of various wage increases to employees from June through October. The General Counsel appeared throughout the hearing to be arguing, as he was with respect to the tur- keys, that the wage increases were granted, in part, in order to undermine the Union's majority status. The General Counsel also indicated at the hearing that he would, after the hearing closed, inspect the records and testimony of Respondent and possibly withdraw this allegation of the complaint.a° However, the General Counsel has made no reference in his brief to the allegation of the grant of wage in- creases, either by way of withdrawing same or in urging a violation be found with respect to such conduct. 19 reviously the employees had used handmade picket signs without any reference to Local 445 or any Union appearing on said signs. 20 See fn 2, wherein I deleted certain individuals from the complaint pursuant to the Genteral Counsel's concession in his brief. HIGHLAND PLASTICS, INC. 153 Although I suspect that the absence of any reference to the allegation in the General Counsel's or Respond- ent's brief indicates a desire on the part of the General Counsel to withdraw such allegation, in the absence of an affirmative statement by the General Counsel to this effect I shall consider this allegation on the merits. The evidence presented by Respondent, through testi- mony and documentary evidence, established that the raises granted to the employees of Respondent from June through October were consistent with and pursuant to Respondent's policy of periodic evaluations and merit in- creases, established by Bertha in February, shortly after he took over as plant manager. 2 ' No evidence was presented that the grant of any of these wage increases was accompanied by any reference to the Union or the existence of a union campaign. D. Denial of Wage Increase to Larry Embler Embler was one of the employees who participated ac- tively in the strike and the picketing. He returned to work after the strike ended on July 9. He returned at a salary of $3.90 per hour, the same salary that he was re- ceiving prior to the strike. Embler testified that in September and October he had a number of conversations with Terry Taylor pertaining to Embler's receiving a wage increase. Embler explained that he thought it was unfair that he was not receiving a wage increase. Embler felt that it was unfair that certain employees, with less seniority than he, particularly John Godfrey, Ed Wadja, and Keith Lund, had received in- creases and were making more money than he. Accord- ing to Embler, Taylor at some or all of these discussions, told Embler that once he (Embler) was able to establish that he was trustworthy he would receive a raise. Embler admitted that Taylor did not explain what he meant by trustworthy. Embler testified further, after a leading question by General Counsel, that Taylor had also said to him during one of these discussions that he had hurt his reputation by going out on strike. Taylor on the other hand recalls the conversations with Embler about a raise, but states that he gave Embler various reasons why a wage increase had not been granted to him. These reasons included the fact that his regular anniversary evaluation was not due until Jan- uary 1980, and that his work performance did not justify a merit increase prior to that time. Taylor gave Embler some areas where he could improve, such as coming in on time, agreeing to work more overtime, and putting out more work, in order to justify a merit increase. John Godfrey hurt his back in late September, and was out of work, which left Embler as the only employ- ee performing work on the long oven. Embler, accord- ing to Taylor, after Godfrey left, began to come on time, and perform exceptionally in his work. Accordingly, in late October, Taylor recommended that Embler receive a wage increase of 20 cents per hour, which he received as of October 28, 1979. Embler also received his annual 21 This policy calls for evaluations after 6 weeks, 3 months, and here- after on an employee's anniversary date. evaluation in January 1980 and received a 30-cent-per- hour increase. Embler began working for Respondent in January 1978. He was making $3.35 per hour in January 1979, and received raises on February 11 and 25, to $3.90 per hour. 22 The General Counsel submits that Embler was discri- minatorily denied a wage increase in view of the fact that employees who did not go on strike received in- creases prior to the time that Embler received his in- crease. He also notes that these employees were making more money than Embler, although they began working after Embler. The General Counsel did not mention in his brief which employees he was referring to, but Emnbler in his testimony mentioned Godfrey, Lund, and Wajda. The record revealed that Godfrey began working for Respondent on August 22, 1978. He received a number of raises from that time through April 22, 1979, and at the time of the strike was making $3.95 per hour. In fact, the record also establishes that, prior to the strike in April, Embler complained to Taylor that it was not fair that Godfrey and he were getting the same amount of pay because Embler had more seniority. Taylor replied that, since he and Godfrey were doing the same work, and the new evaluation system was being instituted, it was fairer to keep them at the same rate and, when the regular evaluation periods came up, seniority would be considered. Godfrey did work during the strike and received a raise on August 12 of 25 cents per hour to $4.20. Embler again in August complained to Taylor about Godfrey re- ceiving a raise, when he had to wait until January. Taylor responded that this was Godfrey's annual review (his starting date was August 1978), but Embler could catch up when his annual review occurred in January 1980. On September 9, Godfrey received another increase of 25 cents per hour to $4.45 per hour, but this was due to his promotion to the position of group leader. As for Lund, he began working for Respondent on August 15, 1978. Prior to the strike he was making $4.20 per hour, in part because of his responsibilities as a group leader. He also worked during the strike and received a raise of 60 cents per hour to $4.80 on August 19, 1979. Taylor testified that Lund was evaluated as part of his annual review at that time and it was decided that in view of his outstanding work including working a shift no one else liked, as well as the fact that he was given additional responsibilities with respect to shipping, that a 60-cent-per-hour increase was warranted. Wajda began working for Respondent on November 30, 1978, and at the time of the strike was making $3.55 per hour. He worked during the strike, and received raises on July 8 and August 19, of 25 cents each, bring- ing him to $4.05 per hour. Taylor explained that the July raise was due to the fact that Wajda was doing Kevin Fitzpatrick's work during the strike, which justified in Taylor's judgment a merit raise of 25 cents. 22 Ihe increase on FehruarN 25 wass part of a general across-the-board increase for all eilipl(yees HIGHLAND PLASTICS, INC. '53 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the strike ended, Wajda was promoted to a group leader on the night shift and received a 25-cent- per-hour increase on August 19. It is noted that at or around the same time, Tom Dolan, one of the active strikers and picketers, returned to work after the strike, and also received a 25-cent-per-hour raise due to his pro- motion to group leader. In addition, the record reveals that a number of other employees who were on strike and were card signers for the Union, who returned to work after the strike, re- ceived wage increases prior to Embler receiving his in- creases. These included David Ibbotson, Terry Drouin, James Fichera, Charles Shapiro, and Kevin Fitzpatrick. F. Acts of Violence by Pickets Respondent presented a number of witnesses who tes- tified to various acts of violence allegedly committed by pickets throughout the course of the strike. Respondent contends that the Union was responsible for the conduct of the pickets, and these acts of violence are sufficient to taint or invalidate a number of the authorization cards obtained by the Union, and to disqualify the Union from receiving a bargaining order.2 3 Much of the violence, as set forth below, was commit- ted by Steven Olsen, one of the pickets. Respondent seeks to attribute responsibility to the Union for Olsen's conduct, based on Olsen's alleged leadership role among the employees and on the picket line. It is undisputed that Olsen was the chief spokesman for the employees in all their meetings with Respondent, and informed Re- spondent that, unless their demands were met, the em- ployees were not going to work. Although some evi- dence was adduced that Olsen directed some employees on the picket line where to stand, other employees also made such directions. While there is some evidence that Olsen attempted to schedule some employees for picket line duty, other employees were more heavily involved in such activity, more particularly, Mark Hayes, who re- ceived a list of names and phone numbers of card signers from Arnita in order to contact pickets for this purpose. Arnita himself was present everyday of the strike for varying periods of time. He appointed no picket captain, nor anyone else to be in charge of the line when he was away. The Union supplied picket signs to the employees on and after June 7. Arnita gave instructions to the pick- ets not to engage in threats or violent acts. As for the acts of violence themselves, Olsen was not called to testify. Thus the acts attributable to him stand largely unrebutted, and I find them therefore to have taken place as testified to by the witnesses called by Re- spondent. Jack King testified that on Saturday, June 9, as em- ployees were attempting to come to work, he saw Olsen with a rock in his hand making threatening gestures to these employees. In addition, Olsen shouted to one em- ployee, "you may get in, but you will not get out again." The record does not establish whether Arnita was pres- ent when these events occurred. John Godfrey testified that on June 5, as he was leav- ing the plant, a number of pickets including Olsen yelled 23 Laura Modes Company, 144 NLRB 1592 (1963). that they were going to make it so he could not work again. They added that they were going to get his wife and going to wreck his car. On Friday, June 8, as Godfrey was driving into work, Olsen yelled that he should not cross the picket line, and added "if you do we're taking you out in a wooden box." On Monday, June 11, as Godfrey was walking into the plant with employee George Heim, Olsen said to them that he was going to cut their throats and that he had the knife right there to do it. He added that it did not matter to him, because he was already facing criminal charges. At the time that Olsen made this remark, he was wearing a large bowie knife. Olsen repeated this remark to Godfrey and Heim on several other occasions throughout the strike. On another occasion, in the second week of the strike, as Godfrey was driving into the plant, Olsen threw a rock and hit the windshield of Godfrey's car and yelled at Godfrey that he was going to get him and Godfrey was going to be leaving in a wooden box. On various other days during the strike, Olsen, as well as other pickets, attempted to block Godfrey as he and Heim were coming into work or leaving. Due to this ac- tivity it was necessary to call the police on many occa- sions in order to enable them to enter or leave the prem- ises. Godfrey does not recall seeing, nor does other evi- dence establish, that Arnita or any union officials were present during any of the above-described incidents. Godfrey also testified that on Thursday of the second week of the strike, June 14, on the picket line, Mike Phil- lips said to him and George Heim that he (Phillips) had a gun and was going to shoot Heim and Godfrey, and made a gesture by pointing his finger in the form of a gun at his head. Phillips denied this incident and denied ever making such a threat to Godfrey or Heim. Heim testified, and although corroborating Godfrey with re- spect to his testimony concerning Olsen, did not mention the incident involving Phillips, nor did he testify about any incident involving a threat to shoot any employee by any of the pickets. In view of Heim's failure to corrobo- rate Godfrey, Phillips' denials, as well as my previous finding that Phillips was in the hospital on June 14, and therefore could not have been present at the picket line on that date, I discredit Godfrey with respect to his testi- mony concerning Phillips' alleged threat to shoot him and Heim, and find the record insufficient to establish that such an incident occurred. Godfrey, Heim, and Taylor testified concerning an in- cident which occurred on or about June 21 or 22. Their testimony essentially mutually corroborative, which I credit, establishes that Al Guinta, who had been on the picket line with the striking employees for a short time, then decided to come to work. Since he was afraid to be seen by the pickets he would sneak into work through the back entrance near the woods, where there was no picketing. Finally, on June 21 or 22, at lunch time, Guinta walked outside the plant near the parking lot and was observed by the pickets. Olsen approached him and asked why he was not for the Union and now working HIGHLAND PLASTICS, INC. 155 again. Olsen added that a strike cannot work if people who walked out started to work the next day. Guinta ap- parently made no reply. Olsen said that he would get Guinta, and added that he knew where Guinta lived and where his girl friend lived, and that if he (Olsen) did not get him at work he would get him at home or his girl friend's home. Olsen then shoved Guinta in the chest with both hands. Guinta did not fall down, but was driven backwards 4 or 5 feet. Olsen then returned to the picket line. Arnita was present on the picket line during this inci- dent. Arnita, after the incident ended, went over to Olsen and reprimanded him about his conduct in the presence of a number of other picketing employees. Olsen told Arnita that he got mad and could not control himself. Arnita replied that he had told Olsen before and did not want to have to tell him again, "We don't want no violence on the line at all. In the future, control your- self." Olsen responded that he was sorry and he would see that it did not happen again. George Heim, in addition to corroborating in part the testimony of Godfrey and or Taylor as set forth above, testified further about other statements made to him by Olsen. During the second week of the strike, Olsen told Heim that it would just take $150 for him to pay some- one to break Heim's legs. Ed Wajda testified that as he was leaving the plant in his car on June 6 at 9 a.m., Olsen and Phillips yelled at him, "we're going to get you," "we're going to kick your ass." As he was going into the plant through the woods later in the day on June 6, he was approached by Embler and Johnson, and Embler told him that he better not go in or they were going to "kick his ass." Embler added that if he went in he would not get out. On Monday, June 11, Wajda was riding into work along with employee Sherry Wheeler, in Wheeler's car. Olsen picked up a rock, threw it, and hit the back of the car. As he and Wheeler were driving out of work on June I 11, they slowed down at the edge of the driveway. Olsen came to the window and said, "I'm going to kick your ass. Get out of the car right now." Wheeler drove away. Sometime early in the strike, Phillips, in the presence of Lund, came up to Wajda with his fist clenched and said, "I'm going to kick your ass right now." Wajda re- plied, "What do you want to fight me for?" Lund then stepped in and told Wajda to get out of there, which he did. Sometime during the third or fourth week of the strike, Olsen again threatened to get Wajda and to beat his "ass." Later that same day, Wajda went out to the picket line to speak to Olsen. Wajda began by saying, "I want to talk to you." Olsen then spit in Wajda's face and slugged him in the chest. Wajda then turned around, walked away, and proceeded to file criminal charges against Olsen for assault. The next day Olsen approached Wajda and told him that he better not press charges or "that's the last thing you're ever going to do." According to Wajda, although he knew who the union representative was, he could not recall him being present during any of the incidents described in his testimony, except for one occasion. On this occasion, a picket whose name Wajda could not recall threatened to kick his "ass." The union representative according to Wajda was standing 10 feet away from the picket who made the threat, and Wajda believed that the union representative must have heard the remark. Bertha testified that several times during the strike Olsen and other pickets threatened to burn his house down, told him that they knew where he lived, and that they had done it before, and they knew how to do it so that nobody could get out. At approximately 7:30 a.m., on June 6, Schiavone, who had worked on June 5, was driving his car out of the plant. Employees Lund, Wajda, Donna Jaeger, and Supervisor Taylor testified that they observed Phillips and Olsen approach the car. Schiavone stopped, and Phillips and Schiavone began to yell at each other. These witnesses did not hear what was said. Phillips admits that there was yelling, and that he called Schiavone a "scab faggot and an asshole." Jaeger, Taylor, Lund, and Wajda concur that Phillips during the discussion reached his hand in through the window of the car and attempted to punch Schiavone. The punch missed as Schiavone ducked. Phillips denies attempting to punch Schiavone during this incident. In view of the corroboration of four wit- nesses,24 I find that Phillips did in fact attempt to punch Schiavone on the morning of June 6. Taylor testified further that he saw Olsen throw a crate under Schiavone's car as he attempted to drive away and that Schiavone was forced to stop his car, get out, and remove the crate before he could drive away. Neither Jaeger, Lund, or Wajda corroborated Taylor with respect to this allegation, and as noted neither Schiavone nor Olsen testified. Phillips recalled seeing Schiavone's car hit a crate, but does not recall seeing Olsen throw it. Although Taylor was not corroborated by the three other witnesses on this issue, in the absence of a denial from Olsen, I shall credit Taylor and find that Olsen did in fact throw the crate underneath Schiavone's car as he was leaving. Phillips testified further that, when he spoke with Schiavone and called him names as set forth above, Schiavone asked what he was talking about. Phillips re- sponded that he (Schiavone) knew that the men were on strike, and asked him if he "was with us or not?" Schia- vone replied that he did not know. In the absence of any contrary testimony, I credit Phillips as to this conversa- tion with Schiavone. Later on that day, Schiavone came back, joined the employees on the picket line, and signed an authorization card for the Union. The card was handed to him by Fitzpatrick, in the presence of Phillips and Olsen. Respondent also presented evidence of the occurrence of damage to Respondent's property, although no wit- nesses were presented to the actual causation of such damage. Respondent argues that the record contains suf- ficient circumstantial evidence to attribute this damage to the pickets and the Union. 24 Schiavone was not called to testify. HIGHLAND PLASTICS, INC 155 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 8, Bertha testified that he observed in the plant fire extinguishers set off, powder all over the place, cartons and boxes pushed over, and wires ripped out. Bertha testified that there was a security guard present during the night before, and that the security guard in- formed him that the pickets were on the line all evening and were drinking. Bertha also testified that there were no break-ins at the plant before or after the strike. Bertha also testified that the windshield on his car and that of an employee were broken. Bertha testified then on June 15, when he parked his car in the driveway at I p.m., after returning from lunch, there was no damage. When he left at 5 a.m., he observed three small holes in his windshield.2 5 Bertha also testified that on this day, as well as many others, he observed employees on the picket line with a slingshot, shooting stones with it. Bertha did not see an employee shooting stones with a slingshot at his or at any other car or person. Various picketing employees admitted the presence of a slingshot on the line, but testified that it was only used by employees to shoot stones into the woods. Finally, Bertha testified that Donna Jaeger informed him on June 15 that she had received an anonymous call from someone who said that they owned a store and that some employees of Respondent had said among them- selves that they had placed a board with nails under a truck tire. Bertha then went outside and observed a board with nails sticking out of it under each of the tires of a truck near Respondent's loading dock. G. Majority Status of the Union The parties stipulated that the following employees were included in the bargaining unit as of the week of the strike, which includes June 5 through June 7; Miller, Embler, Godfrey, Ibbotson, Fredell, Seeley, Wajda, Drouin, Fichera, Olsen, Hayes, Wheeler, Schiavone, Phillips, Bender, Guinta, Johnson, Decker, Shapiro, and Koehler. "2 6 The bargaining unit status of six individuals, Fitzpa- trick, Lund, Dolan, Heim, Rehnberg, and Madia, are in issue. George Heim and Keith Lund were group leaders on the second and third shifts respectively. Each had three or four employees under them and no higher supervisor was present during these shifts. The work to be done would be left by Respondent's admitted supervisors, Taylor and Warran, and Heim and Lund would distrib- ute the work to the employees. The record does not es- tablish what independent judgment, if any, is exercised in the assignment of work by Lund or Heim. They had no authority to hire or fire or to recommend hire or fire, but they did have the authority to send em- ployees home for misconduct or not following orders. The instructions were, however, to attempt to contact either Taylor or Warran at home first, and if they could not be reached, then the group leader could send the em- ployee home. The next day, the group leader would 25 Bertha also observed the next week the windshield of employee Richie Mahan with similar small holes in it. 25 The parties also stipulated that employee Brian Nolan was a casual summer employee and not includable in the unit. report the incident to Taylor or Warran, who would then take appropriate action. Neither Heim nor Lund ever exercised this power, insofar as the record discloses. On one occasion, Lund reported employee Shapiro to Warran for "horsing around," and, as a result of this report, Warran suspended Shapiro. However, Lund made no recommendation to Warran as to what action if any to take against Shapiro. With respect to Heim the record establishes that he was suspended on June 1, for a week without pay, and informed of his removal as group leader. On that day, Bertha asked Dolan if he were interested in assuming the group leader position, Dolan agreed to do so, and it was agreed that Dolan would be trained during the week of June 4, and would start as group leader on June 11. However, as noted, the strike intervened, so Dolan did not take over as group leader. Heim reported to work on June 9 but did not work. On June 11 he worked, at his same salary of $4.75 per hour.27 During the strike, only one shift was utilized, so Heim did not exercise any group leader responsibilities during the strike. Heim became a group leader again in the fall of 1979 as part of a reorganization when Steve Warran left the Company. Dolan became a group leader sometime after he returned to work after the strike. Kevin Fitzpatrick was a "lead man" in the belling de- partment. There were three employees in the belling de- partment to whom Fitzpatrick assigned work. The record does not establish whether or not Fitzpatrick ex- ercised independent judgment in his assignment of work to other employees. Fitzpatrick spent the majority of his time performing production work along with the other employees. Fitzpatrick was consulted by Taylor in con- nection with retention of a probationary employee. In addition, Taylor would also utilize Fitzpatrick's perform- ance appraisals in connection with the periodic evalua- tions, when deciding upon wage increases. However, the record does not establish whether Fitzpatrick ever made any specific recommendations to Taylor or other man- agement officials on the subject of whether to retain an employee or whether or how much of a wage increase to grant to an employee. Rehnberg was employed in the shipping department, and was responsible for getting out orders and taking care of paper work. He also, as did Fitzpatrick, discussed the performance of employees with Taylor in connection with retention, merit reviews, and evaluations, but, inso- far as the record reveals, did not make any recommenda- tions to Respondent in any of these areas. Rehnberg in addition at the end of May had given notice to Respondent that he was leaving to take another job, effective as of June 8, 1979. As noted, the strike oc- curred on June 5, and Rehnberg was on the picket line from June 5 to June 8. Respondent sent him the June 7 and July 3 reinstatement letters described above, and he did not respond to either letter. Anthony Madia worked for Respondent on June 5 until 12 noon. Taylor testified that Madia told him that he was quitting. Taylor was not sure whether Madia told 2' Group leaders received a 25-cent differential. HIGHLAND PLASTICS. INC. 157 him this on June 5 before he left at 12 noon or whether he called the next day to inform him of his quitting. Bertha testified that he was informed by a secretary in the office that Madia had called on Wednesday, June 6, and resigned. As noted, the Union obtained 12 authorization cards on June 5; 4 on June 6; and I on June 7. Nine of these cards were directly authenticated by the signers, and the remaining eight by employees and or Arnita who testi- fied that the cards were signed in a group on the picket line and returned immediately to them by the signers. Respondent asserts that the cards of the eight card sign- ers who were not called to testify, Schiavone, Guinta, Fichera, Banker, Shapiro, Drouin, Koehler, and Nolan, should be invalidated because of the extensive violence on the picket line, as set forth above. However, with the exception of the incident involving Schiavone's altercation with Phillips and Olsen when he attempted to leave the plant on the morning of June 6, no evidence was adduced that any of these employees were subjected to or were ever even present during the commission of any violence or threats prior to their sign- ing cards. Respondent points to Taylor's testimony that he was told by Fichera and Guinta that pickets had threatened to beat them up or damage their vehicles if they tried to report to work. Aside from this testimony being clearly hearsay, there is no indication in Taylor's testimony as to when his conversations with these employees were or when these threats were made to them or whether the alleged threats were made before or after they signed cards. Respondent also points out that Guinta was phys- ically assaulted by Olsen, one of the pickets. However, it is noted that this assault took place some 15-16 days after Guinta signed his card. Concluding Findings A. The Alleged Discharges The Board has recognized that it is sometimes difficult to determine whether an employer, by its remarks, has discharged strikers, or has simply attempted to intimidate them in an effort to deter them from striking. 2 Each case requires a careful examination of the facts. In the instant case Respondent, by Bertha on June 5, told the second-shift employees, Guinta, Drouin, Banker, and Shapiro, that if they did not return to work he would assume that they had quit. The employees did not return to work, and, later that evening, Respondent's of- ficials removed their timecards, and concluded that, since these men did not report to work as ordered, Respond- ent would assume they had quit. Taylor admitted that his intention on June 6 was not to permit these employees, if they reported to work, to enter the premises. However, none of them attempted to report to work on June 6, and Respondent at no time ever informed these four employ- ees that Respondent had decided to terminate them or that it had in fact assumed that they had quit. All four of 28 C & W Mining Co,. Inc., and/or C & 14' Hauling C'o, Inc.. 24 NLRB 270 (1980). and cases cited therein these employees were reinstated when they so requested, on various dates between June 18 to July 9. The General Counsel contends that the employees were constructively discharged by Bertha's remarks, in that continued employment was made conditional upon employee abandonment of rights guaranteed under the Act, i.e., their right to strike. The General Counsel cites Masdon Industries, Inc., 212 NLRB 505 (1974), as authority for his position. Howev- er, although Masdon does recognize that a constructive discharge can be found where continued employment has been conditioned upon abandoning rights guaranteed under the Act, no violation was found to exist on the facts of that case. The cases cited in asdon where such a violation has been found were situations where contin- ued employment was conditioned upon giving up union membership, 2 9 an illegal condition of employment has been imposed,3 0 or working conditions have been changed in a manner which has the effect of forcing em- ployees to quit because the employee engaged in union or protected concerted activity.31 None of these factors is present in the instant situation, and the issue of whether these employees were dis- charged is in my judgment controlled by the principles set forth in Kerrigan Iron Works, Inc., 108 NLRB 933 (1954), affd. 219 F.2d 874 (6th Cir. 1955). In Kerrigan al- though the employer had threatened to terminate em- ployees if they did not return to work by a certain date, and had in fact treated the employees as having been ter- minated, no discharges were found, since the employer's subsequent conduct was inconsistent with a view of dis- charge. The subsequent conduct considered most crucial in Kerrigan, and many subsequent cases following Kerri- gan,3 2 is whether or not the employer reinstates those employees who requested same, after the employer's al- leged discharge statements. Where an employer does re- instate all those who apply, the Board finds, as it did in Crooktxron and the other cases cited in footnote 32, that the statement of the employer was merely a tactical ma- neuver and an attempt to dissuade employees from per- sisting in their strike conduct. Crookston explained that a violation would be found where an employer by subsequent conduct or language reiterates that original conduct. In the instant case Re- spondent's subsequent conduct consisted of notifying these four employees the next day that their jobs were available as well as taking all four of them back to work when they applied. Most significantly, at no time were these four employees ever notified by Respondent that a decision had been made to terminate them.3 3 According- 29 John 1 Ilko, d/h/.a Lifetim, Shingle Company, 213.1 N.R1 688 (1973; ,4mlrican 'nterprises, Ic., 191 NLRB 866 (1971). :"' Orr Iro, In, ., 207 N.RB 863 (1973), Bhlok-Southland Sportswear, Inm' and Soullthland Mfg. Company, Inc., 17() NI.RB 936 (1968). ' IInitcd Service (Corporation d/ha Forest Prk .imbulance Service, 206 Nl.RH 551 (1971) I)lumas Brotheri Manufacturing Compan. Inc., 205 NLRH 9ql, (1971) ' I, i d uIct (o, 126 NtRiB 458K l9')t); Cro)kAsion im, I'rntinil (ollanptn. 125 NR1 304 (195a, Viatlok ruck Bod & ratiler Corp., 217 N R13 34nh (l75) i, A n /a li pital ' \ I.R I]. 11 I RR\t 23(X) ( 7 1t ('Ci 197')) .lthodi;, I/ pial of Keniucky. 227 N RB 1392 1977) HIGHLAND PLASTICS, INC 157 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, I find that Respondent's actions with respect to these four employees do not rise to the level of a discharge, and I shall recommend dismissal of this allegation of the complaint with respect to employees Guinta, Drouin, Shapiro, and Banker. However, since the statements of Bertha made to these employees as well as similar re- marks made to the first-shift employees are clearly threats to terminate them in reprisal for their engaging in protected activity, they constitute infringement upon the employees' rights to engage in such activity, in violation of Section 8(a)(1) of the Act, and I so find. Kerrigan, supra; Matlock, supra. With respect to the first-shift employees, Respondent concedes and I agree that those employees whom Re- spondent notified on either June 5 or 6 of their dis- charges were in fact discharged by Respondent. Re- spondent concedes that Fitzpatrick, Olsen, Rehnberg, Embler, Phillips, Dolan, Johnson, and Hayes were in- cluded in this group. As noted, I have found above that Fichera was also present on June 6, when Taylor refused to permit employees to enter the plant and informed them of their termination. Therefore, I find that he was terminated as well. That leaves for consideration the status of first-shift employees Koehler and Nolan. They were present on the picket line on June 5 when Bertha told the first-shift em- ployees that, if they did not report for work the next day, Respondent would assume that they had quit. Respondent decided to terminate them on June 5, along with the other first-shift employees, and Taylor admits as he did with respect to the first-shift employees that, if Koehler or Nolan had attempted to report for work on June 6, he would not have permitted them to do so. However, neither Koehler nor Nolan was present on the morning of June 6 when Taylor notified the other strikers of their discharge. In addition, the record does not establish whether Nolan or Koehler was ever noti- fied of Respondent's actions by Respondent or by other employees. 34 Koehler and Nolan were both informed orally by Re- spondent that their jobs were available on June 6, and by letter on June 7, but insofar as the record discloses did not make any attempt to return to work for Respondent. In these circumstances since there is no evidence that either Koehler or Nolan was ever informed by Respond- ent or became aware of Respondent's decision to termi- nate them, plus the fact that they were told that their jobs were available on June 6 and 7, I find that their status is similar to that of the second-shift employees and that under Kerrigan, and Crookston, were not discharged by Respondent. Although an argument can be made that the rationale of Arsham, supra, could be applied herein, i.e., that Re- spondent reasonably could have expected that Taylor's statements of termination to the strikers would be com- municated to the two absent strikers, I note that in Arsham the Board also noted that in fact these statements were communicated to the absent strikers, which they were not in the present case. Thus, since the only com- munication to Koehler and Nolan on June 6 was that 34 Cf. Martin Arsham Sewing Co., 244 NL.RB 918 (1979). their jobs were available, I find Arsham to be distinguish- able and that the discharge of Koehler or Nolan has not been established by a preponderance of the evidence.3 5 Turning to the legality of the discharges of the nine strikers whom Taylor notified of Respondent's action on June 5 and 6 and refused to allow into the plant on June 6, it is well settled that an employer violates Section 8(a)(l) of the Act when it discharges employees for en- gaging in strike activity.3 6 Respondent seeks to defend its actions by asserting that "Bertha made the decision in good faith and upon the advice of counsel to terminate these employees because they had prevented trucks from entering the Company's premises in violation of Section 8(b)(1)(A) of the Act." However, contrary to Respond- ent's contention, the evidence of record with respect to this issue reveals that the "preventing" of trucks from entering consisted merely of evidence that truckdrivers honored requests made of strikers to honor their picket line. It is obvious that the "interference with Company business" referred to by Bertha and Taylor was caused by strikers engaging in legitimate picket line activity of making such requests. No evidence of substantial physi- cal blocking or threats or other unlawful conduct having been engaged in by strikers prior to their discharge was adduced by Respondent. As to the alleged unprotected activity, Respondent must present particularized proof that each discriminatee was personally guilty of serious misconduct before the individual in question loses the protection of the Act.3 7 This, Respondent has clearly not come close to demonstrating on this record. Accord- ingly, I find that Respondent has violated Section 8(a)(1) of the Act by discharging the nine first-shift employees on June 5. The complaint alleges that the discharges were also violative of Section 8(a)(3) of the Act in that they were also motivated by the employees' activities and support of the Union. Although the strike began as an economic strike solely by the employees, the Union was called in and the employees signed authorization cards shortly after the strike began. The Union made a demand for recognition, and at that time Bertha informed the union president that these employees did not work there any- more as they had quit, and added that King would rather close the doors before negotiating with the Union. An hour later, Respondent's officials met and decided to ter- minate the strikers "allegedly" for blocking trucks and interfering with company business. Clearly Respondent was aware of the union activities of those discharged, as they were all card signers and were all on the picket line. In these circumstances, I find that, in addition to discharging the employees for strike activities, the dis- charges were also in part linked to their union activities in violation of Section 8(a)(3) of the Act. 38 Respondent, while conceding that these employees were discharged, makes the curious statement in its brief that "the propriety of these discharges, however, is not a. Woodlawn Hospital, supra. .Methodist Hospital. supra. Hi Cincinnati Cordage and Paper Co., 141 NLRB 72 (1963); Hlilltop Van and Storage Companv, 182 NI.RB (1004 (1970). :7 Fry Foods, Inc., 241 NLRB 76 (1979). N8 Hilltop Van & Storage Co,. upra. HIGHLAND PLASTICS, INC, 159 in issue. Less than 24 hours after deciding to terminate these employees, the Company, in an effort to end the strike, offered each of them reinstatement, and as each individual expressed a desire to work he was immediate- ly reinstated." Respondent cites Maxville Stone Company, 166 NLRB 888 (1976), as authority for the above com- ments. In Maxville the Administrative Law Judge on facts somewhat similar but different in significant re- spects to those herein,39 found that under the rationale of Kerrigan and Crookston, supra, the respondent's letter to employees whom it had fired earlier, notifying them to report for work, vitiated the earlier discharge action, and found that no discharge had actually occurred. I would note that Maxville, although a Board decision was an affirmance of an Administrative Law Judge's Deci- sion, where no exceptions were filed by the General Counsel or the charging party. Therefore, its preceden- tial value on this issue is somewhat doubtful, particularly where it seems to conflict with later Board precedent such as C & W Mining, supra. In C & W Mining, the Board reversed an Administative Law Judge's Decision which found that an employer under the rationale of Kerrigan had not discharged employees, but merely en- gaged in a tactical maneuver to pressure employees to abandon the strike. The Board found, emphasizing facts similar to those present herein, that the respondent left no doubt that it was discharging the strikers, not only by making an unconditional statement that he was firing them, but also by ordering them off the premises because they no longer worked there. The Board also pointed out that the fact that the strikers terminated the strike and returned to work "does not alter the indisputable fact that they were discharged while still on strike." I therefore reaffirm my finding that the nine strikers here were effectively discharged by Respondent on June 5. 40 A more significant issue, however, is presented by Re- spondent's efforts to offer the discharged strikers their jobs back. That is whether Respondent's offers of rein- statement on June 6 and 7 constitute valid offers of rein- statement, sufficient to toll backpay liability. The Board has long held that a discriminatee on re- ceiving an offer of reinstatement has a "fundamental right to a reasonable time to consider whether to return."4 There is no per se rule as to the period of time that will constitute reasonable notice to the discriminatee. Rather, the Board examines the factual circumstances of each case to determine what constitutes reasonable time. Murray Products, Inc., 228 NLRB 268 (1977). The Board has held further that it will look to see "if the terms in which the offer is couched fail to provide 9g The employees in Maxville were informed that they were fired im- mediately after refusing to end the strike and report to work. Later that same day, the employees were given a letter instructing them to report to work the next day. In the instant case, the evidence established that the respondent, after threatening to discharge employees for striking, re- moved their timecards, made a management decision to terminate them. informed two employees the same day, and the next morning told the rest of the employees of the respondent's decision, while refusing to permit them to enter the plant. 40 C W aMining, supra. ccurate Die &t Manujacturing Corp , 242 NLRB 280 (1979). 41 Penco Enterprises, Inc.. Penco of Ohio and Acoustical Contracting Supply Corp., 216 NLRH 734 (1975). any reasonable time within which the employee can act." 4 2 A significant factor to be evaluated in determining the amount of notice to be required is the acts of discrimina- tion and their effect on the discriminatees. Murray Prod- ucts, supra. The General Counsel argues that the discriminatees herein were not afforded a reasonable time to consider Respondent's offers. I agree. Although as Respondent points out neither the oral nor written offers required acceptance by a certain date, I find that, under all the circumstances herein, the offers comtemplated an immediate return to work. The facts in Murray Products closely parallel the situa- tion here, and the Board's language is particularly appro- priate and pertinent to the instant case: Here, the strikers on August 4 were unlawfully denied reinstatement. The Respondent, with a clas- sic lack of candor and demonstrating its opposition to protected concerted activities, informed the dis- criminatees that they had been permanently re- placed. Two days later and with 10 vacancies, the Respondent commenced a series of oral offers of re- instatement, all of which contemplated an immedi- ate return to work. The fact that most of the strik- ers were on the picket line and apparently physical- ly able to return to work does not justify finding the offers of reinstatement to be valid. The Re- spondent's unlawful acts and its untruthful state- ments about vacancies created a situation which warranted allowing the discriminatees a reasonable time for serious evaluation of the offers of reinstate- ment. The strikers here were permitted absolutely no opportunity to evaluate their status and the Union's status in light of their having been previ- ously informed that they had all been permanently replaced. [Id. at 269.] I find that the offers herein did contemplate immediate acceptance on the part of the employees. The June 7 letter notified the employees that their jobs were "at this time available," and further advised them that "effective immediately, we will begin to hire permanent replace- ments to fill the plant requirements." These statements clearly contemplate an immediate decision to be made by the employees, or else they will be "immediately" re- placed. I would note that Respondent as of this time had no legal right to replace the discharged strikers, since their status had changed from that of economic strikers to discriminatees by virtue of Respondent's unlawful act of discharging them. Thus, as in Murray Products, Re- spondent's unlawful acts and untruthful statements cre- ated a situation which warranted allowing the discrimin- atees a reasonable time for serious evaluation of the offers, and an opportunity to evaluate their status and the Union's status, in light of having previously been in- formed that they had been terminated. 42 Fredeman's Calcasieu Locks Shipyard. Inc., 208 NLRB3 838 (1974) HIGHLAND PLASTICS, INC. 159 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that the offers to the nine discri- minatees were invalid,4 3 and that all of the discrimina- tees are entitled to backpay from June 5 until the date of their reinstatement or when they received the valid offer of reinstatement in July. Murray Products, supra, C & W Mining, supra. 4 4 B. The Alleged Threat to Close the Plant As noted, I have found that Respondent's supervisor, Steve Warran, on June 6, told employees Embler and Hayes on the picket line, that he did not think that Re- spondent could afford to meet the demands of the Union, and that they would have to close or move, and adding that he had heard from someone inside the plant that the Company would rather close down and move than accept the Union. Respondent argues that the statements of Warran were demonstrable economic predictions of consequences which could result from the employees' concerted activity, protected by Section 8(c) of the Act. 4 5 I do not agree. While an employer may lawfully predict the precise effects he believes the union will have on the company, the prediction must be carefully phrased on the basis of objective facts to convey an employer's belief as to the probable consequences of the union. 46 Warran's prediction of plant closure and moving was not based on any objective facts here. The Union had not made any demands nor could Warran legitimately foresee what the results of any future negotiations might be. The advent of the Union would only have required Responded to bargain in good faith over wage demands, not that it had to grant increases. Therefore, Respond- ent's unfounded economic forecast of plant closure or moving if the Union obtained representational status was coercive in nature and violative of Section 8(a)(1) of the Act.4 7 '4 Respondent also argues that all strikers who requested reinstatement were permitted to do so, including some of the discriminatees I iould note in this connection that none of the discriminatees requested rein- statement until after the July 3 letter of reinstatement, which letter the General Counsel concedes to have been a valid offer of reinstatement. Moreover, in Murray Products, supra, Respondent also reinstated all strik- ers who accepted its offer, a factor relied on by the dissent. However, the majority still found the offers to be invalid. 14 When Bertha orally informed some of the strikers that their jobs were available, one of the strikers told Bertha that they would not return until their demands were met. This raises an inference that at least some of the strikers may have "continued to withhold their services as a matter of personal choice," C & W Mining, supra; or were influenced by "appar- ent tactical or common policy front considerations causing most to choose continuing picketing rather than abandoning the strike." Murray Products. However, as the Board in C & W Mining points out, "this is a matter for compliance, for as we noted recently in Abilities and Goodwill Inc., 241 NLRB 27 (1979), even in the absence of an offer of reinstate- ment, the employer remains free to avoid or reduce its backpay obliga- tion by establishing [at the compliance stage of the proceeding] that the [discharged striker] would not have accepted the offer if made . . . and instead continued to withhold their services as a matter of personal choice." 45 N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969) a' Marathon Le 7burneau Company. Gulf Marine Division of Marathon Manufacturing Company, 208 NLRB 213 (1974); Starkville Inc., ltillsdale Manufacturing Corporation, et al., 219 NLRB 595 (1975). 47 Buckeye Tempo Gamble-Skogmo, Inc., 240 NLRB 723 (1979): Patsy Bee. Inc., 249 NLRB 976 (1980): Marathon. supra. Starkville, supra. C. The Van Incident The Board has held that the lawfulness of the incidents such as King having struck pickets with his van, as I have found, is based not on the intent of King, but on whether the conduct reasonably tends to interfere with the exercise of employees' rights.48 There can be little doubt that King in the instant case was the perpetrator of an assault rather than an escaping victim. 4 9 The failure of King to stop the van, and the fact of his striking the employees with the van, evinces sufficient negligence and is sufficiently threatening to the employ- ees struck, as well as to the onlookers, to constitute con- duct reasonably tending to interfere with employee rights in violation of Section 8(a)(1) of the Act. 50 D. The Gun Incident The issue to be decided in connection with this inci- dent is whether the evidence is sufficient to establish that King brandished his gun in view of the pickets, in re- sponse to protected concerted activity of said pickets and tended to interfere with the employees' lawful picket line conduct.5 King testified that he took the gun with him to protect himself, his employees, and his building, in view of var- ious reports made to him of violent acts committed by pickets. Therefore, Respondent contends that King's ac- tions were defensive in nature and not in response to the pickets protected concerted activity.5 2 However, the record does not establish in my judg- ment that King's actions were prompted by any alleged acts of violence committed by pickets. King admitted that, at the time that he went out to speak to the driver, no violence or damage to his property, or to the persons or property of his employees, had been committed by pickets. Although King testified that he received various reports of alleged threats to employees and that a truck- driver previously attempting to pick up was given a "hard time" by pickets, this hearsay testimony does not establish that any violence was committed by pickets prior to King bringing his gun out to the picket line. Absent evidence that pickets did in fact commit violence or damage, I must assume that Respondent had other reasons for taking such deliberate actions.5 3 The pickets were faced with a simple set of facts. They had not committed any violence or done any damage, and had merely exercised their lawful right to request that the driver honor their picket line. Immedi- ately thereafter King appeared, brandishing a gun, and, in full view of the pickets, jumped on the running board to speak to the driver of the truck. Such conduct could only have the effect of inhibiting the pickets from engag- ing in their lawful right to conduct their picket line. Thus King's actions interfered with, restrained, and co- 4 May Cohen d/b/a Brst Dress Company, 245 NLRB 949 (1979) 49 Ibid. 'o Dee Knitting Mills, Inc., 214 NLRB 141 (1974), Best Dress, supra. "L Church Point Wholesale Grocery Company. Inc., 215 NLRB 500 (1974). 62 Skrl Die Casting. Inc., 245 NL.RB 1()41 ( 179) Cabot Corp., 223 NLRB 13X8 (1976): Church Point, supra. "3 Sackett' Welding. 207 Nl.RB 1030 (1973). HIGHLAND PLASTICS, INC. 161 erced employees while they were engaged in activity protected by Section 7 of the Act in violation of Section 8(a)(l) of the Act. Sackett's Welding, supra, Courtesy Volkswagen, Inc., 200 NLRB 84 (1972). 5 4 E. The Offer of a 10-Cent-Per-Hour Wage Increase Respondent on June 7, pursuant to a request of the employees, met with them and listened to their com- plaints and demands. Jack King then offered the employ- ees a 10-cent-an-hour increase if they agreed to return to work. No mention of the Union was made during the meeting, except that, after the meeting ended, one of the employees said "now we'll go Union." On the picket line Arnita was informed of the results of the meeting, the employees voted on whether to accept the offer or con- tinue the strike, and voted to reject the offer and contin- ue striking. The Union then began supplying picket signs, sent a telegram demanding recognition, and filed a peti- tion the next day. The General Counsel contends that these facts estab- lish that Respondent has violated Section 8(a)(l) and (5) of the Act by promising benefits to employees and by- passing the Union, in order to undermine the Union's status. I do not agree. All Respondent was doing in the instant circumstances was to accept the employees' request to meet with them in order to continue the bargaining that had occurred on June 5, when the strike began prior to the Union's ap- pearance. Respondent was merely responding to the em- ployees' demands in an attempt to end the strike. Althought the Union had made a demand for recogni- tion on June 5, 1 note that the Union, by Arnita, was aware of this meeting, made no effort to stop it, and in fact conducted a vote among the employees on whether to accept Respondent's offer. Accordingly, whether or not, by virtue of Respondent's conduct on June 5 and 6, it had violated Section 8(a)(1) and (5) of the Act, and was under an obligation to bargain with the Union as of June 7, 1 find that the Union by its conduct has acqui- esced in Respondent's bargaining with the employees. In these circumstances, Respondent has not violated Section 8(a)(1) or (5) of the Act by its meeting with employees and offering them a 10-cent-an-hour increase, and I shall recommend dismissal of this allegation of the complaint. F. Denial of Wage Increase to Larry Embler The General Counsel argues that Embler was unlaw- fully denied a wage increase from July through October because of his participation in the strike and activities on behalf of the Union. He relies primarily on the alleged statements made to Embler by Taylor, when he asked about a raise, that Embler had to prove that he was trustworthy and that he had hurt his reputation by going out on strike. 54 I do not deem it significant that King did not point the gun at the pickets, nor that he made no threat to use said gun. It is admitted by King that he made no attempt to hide the gun, and that in fact he wanted the pickets to be aware of the fact that he had a gun. Thus, it is obvious that the pickets. upon seeing King with the gun drawn while speaking to the driver, reasonably would tend to believe that King was attempting to give them the impression that he might use the gun should the pickets continue to speak to drivers attempting t. enter the premises I do not credit Embler concerning these statements al- legedly made to him, and instead believe that Taylor's version of these conversations to be more probable and truthful. I therefore find that Taylor did not make the comments attributed to him by Embler, but instead ex- plained to him the reasons why he was not receiving a raise and what he would have to do to obtain one. I note in this connection that Embler was complaining to Taylor about Godfrey receiving the same salary as he, despite having less seniority than Embler, as far back as April, prior to the strike and prior to any union activity. The explanation given Embler in April and again reiter- ated in part in the fall, was that the system of raises insti- tuted by Respondent in early 1979 provided for regular evaluations and increases on an employee's anniversary, and that accounted for Godfrey having passed Embler in salary in August.55 Embler was hired in January 1978, and his regular anniversary evaluation was not due until January 1980. However, since his performance dramati- cally improved as of November 1979, as a result of his having filled in admirably for Godfrey who was out on disability, Respondent granted him a merit increase in November, 3 months before his regular evaluation was due. Moreover, the record reveals that a number of other returning strikers and card signers, including Kevin Fitz- patrick, the employee who contacted the Union and dis- tributed many of the authorization cards, received wage increases, after returning to work and prior to Embler having received his increase. Therefore, there is no basis for a finding that Respondent refused to grant wage in- creases to returning strikers in reprisal for their strike or union activity. Accordingly, I find that the General Counsel has not established that the Respondent discriminatorily denied Embler an increase, and shall recommend dismissal of this allegation of the complaint. G. Respondent's Refusal To Recognize and Bargain With the Union The parties stipulated the unit inclusion of 20 employ- ees and the exclusion of employee Nolan. The status of Fitzpatrick, Lund, Dolan, Heim, Rehnberg, and Madia are in dispute. I find that the record is insufficient to establish that any of the employees in dispute are supervisors within the meaning of the Act. 5' Although the record establishes that Fitzpatrick, Lund, Heim, and Rehnberg assigned work to employees, the record does not establish the exercise of independent judgment by any of these employees. Lund and Heim had the power to send employees home, but, insofar as the record reveals, this authority was only exercised once. In addition, the procedure involves attempting to 56 The record reveals that August was Godfrey's anniversary date 's Although the job functions and responsibilities of these individuals are similar, not surprisingly the parties have taken positions on their status apparently based on whether they had signed cards. Thus, the General Counsel asserts that Heim and l.und are supervisors, while Fitz- patrick Dolan, and Rehnberg are not. Respondent takes a contrary posi- tion with respect to each individual in dispute HIGHLAND PLASTICS, NC. 161 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contact the supervisor at home first prior to exercising such authority. In any event, no evidence was adduced that any of these employees ever effectively recommend- ed discipline, wage increases, or any other change in conditions of employment of employees. 57 Therefore, I find that the record does not establish that Heim, Lund, Fitzpatrick, Rehnberg, or Dolan were supervisors within the meaning of the Act. 5 8 Respondent also contends that Rehnberg should not be considered an employee within the unit, since he had no- tified Respondent at the end of May that he would be leaving Respondent's employ to accept another job, and his last day of work was to be June 8. As noted, Rehnberg signed a card on June 5, was ter- minated by Respondent, and appeared on the picket line until June 8. He did not respond to either of Respond- ent's reinstatement offers. It is clear that, on June 5, 6, and 7, Rehnberg was still an employee in the unit. His giving notice to Respondent of his intention to quit on a subsequent date does not affect his status as an employee in the unit on the days in question, all prior to the date of his quitting. 5 9 Anthony Madia was employed by Respondent until 12 noon on June 5. He left on that date and did not return to work for Respondent. Although the record is uncer- tain whether he notified Respondent of his intention to quit on June 5 or June 6, I find this conflict irrelevant to a determination of his status. I find that on June 5, the date of the original demand, he was still an employee in the unit and should be counted in the unit, although he left on that date and did not return. However, on June 6, since Madia notified Respondent of his quitting, he no longer was an employee in the unit. Accordingly, based on the above analysis, as of June 5, the date of the Union's first demand, Respondent em- ployed 26 employees in the appropriate bargaining unit. The next day, June 6, as well as on June 7, when the Union made its second demand for recognition, Re- spondent employed 25 employees in the unit. 60 The record establishes that as of June 5 the Union had obtained 12 authorization cards from Respondent's em- ployees. Therefore, as of the date of the Union's first demand, it did not represent a majority of the employees of Respondent. 57 The evidence that some of these individuals discussed the perform- ance of other employees with supervisors does not establish that any rec- ommendation. effective or otherwise, was made by these "alleged" super- visors. 56 In view of this conclusion, I need not decide whether Heim's tem- porary removal from the group leader position prior to the strike re- moved him from that position on the crucial dates in question. I also need not resolve the issue of whether Dolan should be considered a group leader on the dates in question since he had been selected prior to the strike to replace Heim in that position. However, since Dolan clearly did not assume the group leader position prior to the strike and was only training for it, I find that even if the group leaders are found to be super- visors that Dolan did not assume that position as of the first week in June. 59 Computed Time Corporation, 228 NLRB 1243 (1977); McEwen Man- ufacturing Company, 172 NLRB 990 (1968); Personal Products Corporation, 114 NLRB 959 (1955); General Tube Co., 141 NLRB 441 (1963). 6 I am of course including in the unit the employee whom I have pre- viously found to have been discriminatorily discharged by Respondent. However, the next morning, June 6, the Union ob- tained three authorization cards from unit employees.6 ' This brought the Union's total to 15 cards out of a unit of 26 employees, thereby establishing that it represented a majority of Respondent's employees on and after June 6. In addition, on June 7, the Union obtained another card, giving them 16 cards out of 26 employees when a second demand for recognition was made. Respondent seeks to invalidate a number of these cards for various reasons. It is argued that the cards of John- son, Fichera, Schiavone, Koehler, and Nolan should not be counted, because they were solicited by Fitzpatrick who Respondent claims to be a supervisor. Since I have previously found that Fitzpatrick was not a supervisor within the meaning of the Act, I need not decide what part Fitzpatrick played in the distribution of cards to these employees, or what affect his participation, if any, in the solicitation of these cards had on these signers. Respondent also contends those signers who were not called to testify62 should not be counted because of the extensive violence on the picket line. There can be no question that the cards were properly authenticated by the solicitors,6 3 leaving the only issue that of Respondent's claim that violence on the picket line tainted the execution of these cards. However, with the exception of the card executed by Schiavone, the evidence did not establish that any violence was directed toward these individuals or that any was committed in their presence, prior to their having executed their cards. Accordingly, there is no basis for Respondent's conten- tion that the cards of these individuals should be invali- dated because of violence on the picket line. Schiavone, however, as I have found, while attempt- ing to leave the plant on the morning of June 6, was stopped by Phillips and Olsen, had a punch thrown at him by Phillips, and had a crate thrown under his car by Olsen while being criticized by Phillips for crossing the picket line. Later on that morning, Schiavone returned to the picket line, was given a card by Fitzpatrick, and signed it in the presence of Phillips and Olsen. While I have some doubts about the validity of this card in view of the cir- cumstances described above, I find that, since the vio- lence directed toward Schiavone was not expressly tied to his executing an authorization card, the evidence is in- sufficient to establish that the card was coerced. As noted, the violence directed towards Schiavone occurred in the context of his crossing the picket line, and the ex- ecution of the card occurred later in the day unaccom- panied by any violence or threats. Thus, I shall count the card of Schiavone. 8' As noted, the Union also obtained a card on June 6 from Brian Nolan, but the parties have stipulated that he was a casual summer em- ployee not includable in the unit. 62 Fichera, Schiavone, Guinta, Banker, Shapiro, Drouin, Koehler, Olsen, and Nolan. '3 McEwen Manufacturing Co., supra. HIGHLAND PLASTICS, INC. 163 Therefore, I find that as of June 6 and continuing on June 7, the Union represented an uncoerced majority of Respondent's employees in an appropriate unit.6 4 Thus, although the Union was not authorized to repre- sent a majority on June 5 when it made its first demand for recognition, it was so designated on June 6, the very next day, and was still so designated on June 7, when it made an additional demand for recognition, this time by telegram. The Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., supra, approved the finding of an 8(a)(5) violation and the issuance of a bargaining order where the unfair labor practices committed by a respondent, has the "tendency to undermine majority strength and impede the election process." 395 U.S. at 613-614. There can be little doubt, and I so find, that the unfair labor practices found to have been committed by Re- spondent, most significantly the unlawful discharge of nine employees 6 5 and the unlawful threat to close or move the plant"" 66 as well as the other unfair labor prac- tices found, are sufficient to have such a tendency to impede the election process. Accordingly, I find that Respondent has violated Sec- tion 8(a)(1) and (5) of the Act, warranting the issuance of a bargaining order.67 Respondent also argues that, in view of the extensive violence committed by the pickets, the bargaining order, even if warranted, should be withheld from the Union. "6 In Maywood Plant of Grede Plastics-A Division of Grede Foundries Inc.,6 9 Administrative Law Judge David Davidson analyzed many of the cases dealing with this issue, and concluded that there are five main factors to be weighed in considering whether to deny a bargaining order because of union misconduct in the face 64 I note that, even if Schiavone's card were not counted, Respond- ent's majority status would not be eliminated, as it still would have had 15 cards on June 6 and 16 cards on June 7. e5 The Board and the courts have long classified the unlawful dis- charge of employees, as conduct going "to the very heart of the Act." Faith Garment Company, Division of Dunhall Pharmaceutical. Inc., 246 NLRB 299 (1979); N.LR.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (4th Cir. 1941). 66 The Board has also held that threats to close operations are "the hallmark of the type of case in which bargaining orders issue." Patsy Bee. Inc., 249 NLRB 976 (1980); Stereotypers and Electrotypers Union. Denver Local 13 (The Denver Post, Inc.), 246 NLRB 858 (1979); Hedstrom Compa- ny, a subsidiary of Brown Group, Inc., 235 NLRB 1193 (1978). 67 Respondent argues that its offers of reinstatement to the discharged strikers within 24 hours of their terminations, coupled with the fact that every discharged employee who requested reinstatement was reinstated, "totally dissipated any possible lingering effect from the allegedly unlaw- ful discharges." Although, as noted, I have found above that Respond- ent's offers of reinstatement were invalid, even if I were to find to the contrary on this issue, Respondent's assertion as to the effects of such re- instatement on the necessity for a bargaining order is without merit. The Board has repeatedly held that unfair labor practices such as those com- mitted by Respondent, even with immediate recall, and/or no loss of pay, cannot be readily forgotten, and will have a lasting effect on employees. That effect cannot be cured by traditional remedies. The holding of a free and fair election in such circumstances is unlikely if not impossible. John C Carey Milling Company, 218 NLRB 916 (1975); Chandler Motors Inc., 236 NLRB 1565 (1978); Zim Textile Corp., 218 NLRB 269 (1975); Vernon Devices, Inc., 215 NLRB 475 (1974). ns Laura Modes, supra. Allou Distributors Inc., 201 NLRB 47 (1973); The Dow Chemical Company, 216 NLRB 82 (1975); Artcraft Mantel and Fireplace Co., 174 NLRB 739 (1969). 60 235 NLRB 363 (1978). of an 8(a)(5) finding that would otherwise require such a remedy. The factors recited are: the extent of the union's interest in pursuing legal remedies; evidence of deliberate planning of the acts of violence and intimidation attribut- able to the union; whether assaults by union advocates were provoked; the duration of the union's misconduct; and, finally, the relative gravity of the union's miscon- duct as opposed to that of the company. The Board did not quarrel with Administrative Law Judge Davidson's analysis that these factors are usually found relevant in such cases, but disagreed with his ap- plication of the test to the facts in Maywood, and found that a bargaining order was appropriate. A comparison of the facts in Maywood with those pres- ent in the instant case leads me to conclude that the case for withholding a bargaining order in Maywood was more compelling than it is herein. Thus, in Maywood, the violence committed was more extensive than that committed herein, and most impor- tantly was committed directly by business agents and of- ficials of the Union. In the instant case, no act of vio- lence or even any threats were committed by Arnita or any other union business agent, officer, or official. More- over, the only act of violence committed in the presence of Arnita,70 the pushing of Guinta by Olsen, resulted in Arnita rebuking and reprimanding Olsen in front of the other pickets for this action, and warning him not to commit such action in the future. I find the record insufficient to establish that Olsen was ever appointed by the Union to act as a picket cap- tain or an agent. Although Olsen was a leader of the em- ployees in their presentation of demands to Respondent, once the Union became in charge of the picket line as of June 7, when it distributed signs to employees, Olsen's status vis-a-vis the Union was no different than that of any other striker. It appears that, at least for 8(b)(l)(A) purposes, the Union would be held responsible for the conduct of the pickets, since they authorized the picket line, and failed to take affirmative steps to disavow or correct the unlawful conduct of the pickets. 7 However, it seems that in Laura Modes cases, the direct participation of union officials in violent acts or, at the very least, their presence and acquiescence when sig- nificant violence occurs is an essential factor to justify the extraordinary remedy of withholding an otherwise appropriate bargaining order. I note that in all of the cases cited by Respondent, particularly the most often- cited cases of Laura Modes and Allou, union officials were found to have directly participated in the miscon- duct found sufficient to disqualify the union from receiv- ing a bargaining order. 70 I find that, contrary to Respondent's assertions, the record has not established that either the pickets or the Union was responsible for the damage to the plant or the broken windshields of the cars of Bertha and Mahan, or the nails being placed under a truck at Respondent's premises. '1 Broadway Hospital, Inc., 244 NLRB 341; Teamsters Chauffeurs. Helpers & Taxicab Drivers Local Union 327 (Coca-Cola Bottling Works of Nashville), 184 NLRB 84 (1970); United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Local Union No. 195. AFL-CIO (McCormack-Young Corpo- ration),. 233 NLRB 1086 (1977); International Brotherhood of Boilermakers. Iron Ship Builders. Blacksmiths. Forgers d Helpers. Local 696 (The Kargard Company, 196 NLRB 645 (1972). HIGHLAND PLASTICS, INC. 163 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, as in Maywood and contrary to Laura Modes, the Union did express an interest in pursuing legal remedies by filing a petition on June 8 and the in- stant unfair labor practice charges shortly thereafter. Moreover, as in Maywood, Respondent also engaged in serious and highly provocative misconduct at the picket line. Thus, Respondent violated Section 8(a)(1) of the Act as noted by King's conduct in brandishing a gun on the picket line in response to employees' concerted activ- ity and in striking picketing employees with his van.72 Accordingly, considering the misconduct of Respond- ent as well as the other serious unfair labor practices committed by Respondent, including the discharge of nine strikers and threats to close the plant, which could not have helped but to have prolonged the strike, 73 the misconduct of the pickets is insufficient to justify the ex- traordinary action of withholding the appropriate bar- gaining order required to remedy the Company's unfair labor practices. 74 As the Board pointed out in Daniel A. Donovan, et al., d/b/a New Fairview Hall Convalescent Home, 206 NLRB 688 (1973), enfd. 520 F.2d 1316 (2d Cir. 1975): We do not condone any picket line violence, and the processes of the Board are available to prevent its recurrence .... But we are also reluctant to deprive a substantial group of employees of the benefits of collective bargaining because of the mis- conduct of a few miscreants. Here, looked at in per- spective, there were but few instances of miscon- duct by a relatively small proportion of strikers, 75 . . . against a background of Respondent's frequent and recurring unfair labor practices. Viewed in that light . . . we have concluded that the extraordinary sanction remedy of withholding an otherwise ap- propriate remedial bargaining order would not best effectuate the policies of the Act. [Id. at 689.] Therefore, I recommend that Respondent be ordered to bargain with the Union as of June 6.76 72 I would also note that, even if it were found that these actions of King did not technically constitute an unfair labor practice, they were excessive and provocative, and show that Respondent "at times escalated the activity around the picket line in a manner that does not justify laying the responsibility for the resulting misconduct solely on the shoulders of the Union." Maywood, supra, fn. 9 at 366. 7' In view of Respondent's unlawful refusal to bargain with the Union as well as the other unfair labor practices committed by Respondent. I find as alleged in the complaint, that the strike, although commenced as an economic strike, was converted into an unfair labor practice strike by Respondent's conduct. Noted in this connection is the fact that the em- ployees on June 6 attempted to report for work and were refused en- trance to the plant and informed of their termination by Taylor. 7' Maywood. supra; Quintree Distributors, Inc., 198 NLRB 390. 403 (1972); Philadelphia Ambulance Service, Inc., 238 NLRB 1070 (1978). 751t is emphasized again that, in the instant case, nearly all of the vio- lence and threats were committed by one striker, Steve Olsen, who as in Donovan was lawfully denied reinstatement by the Employer for the commission of such acts. 76 The date that the Union obtained its majority status and when the unfair labor practices had commenced. Although the Union made its first demand on June 5, when it did not have majority support, its demand was continuing and justifies a bargaining order on the date it obtained a majority. Schwab Foods, Inc.. d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976). I note that, even if the demand were found not to constitute a continuing demand (see Hedstrom Company, a subsidiary of Brown Group v. N.L.R.B., 558 F.2d 1137 (3d Cir. 1977)), the Union made an additional H. The Wage Increases and Distribution of Turkeys The General Counsel has the burden of proving that Respondent's granting of wage increases and/or the dis- tribution of the turkeys were marked by an antiunion purpose. I find that he has failed to meet this burden. The turkeys were distributed in November, months after the picketing ended, and was not accompanied by any reference to the Union or the existence of a union campaign. Bertha credibly testified that Respondent's sales increased substantially in October and that he, pur- suant to his practice at other plants where he had been a supervisor, felt that it was appropriate to distribute tur- keys to employees. The wage increases also were unaccompanied by any references to the Union, and were consistent with and pursuant to Respondent's policy of periodic evaluations and merit increases established by Bertha in February, shortly after he took over as plant manager. Accordingly, I find that the General Counsel has failed to meet his burden of establishing that these bene- fits were granted for the purpose of inducing employees not to support the Union.7 7 However, in view of the fact that I have found that Respondent was under an obligation to bargain with the Union, as of June 6, it was not free to grant any wage increases or other benefits or improvements including the distribution of turkeys without consultation with or bar- gaining with the Union. Such conduct, therefore, I find to be unilateral changes in terms and conditions of em- ployment of its employees, in violation of Section 8(a)(1) and (5) of the Act. 78 Upon the foregoing findings of fact and upon the entire record herein and pursuant to Section 10(c) of the Act, I make the following: CONCLUSIONS OF LAW 1. Respondent Highland Plastics, Inc., is, and at all times material herein has been, an employer engaged in commerce within the meaning of the Act. 2. Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees of Respondent employed at its Newburgh, New York, facility, including cutters, bend- ers, bellers, packers, shippers and welders, but excluding office clerical employees, guards and supervisors as de- fined in Section 2(11) of the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. At all times since June 6, 1979, the Union has been the exclusive representative of the employees in said unit demand on June 7, when it still represented a majority of Respondent's employees, clearly justifying an 8(a)(5) finding and bargaining order on that date. 77 The Louis Allis Company (A Division of Litton Industries. Inc.), 193 NLRB 7 (1971). 7R Taylor Bros.. Inc., 230 NLRB 861 (1977); Broadmoor Lumber Co., 227 NLRB 1123 (1977); Fry Foods. supra. HIGHLAND PLASTICS, INC. 165 for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By discharging its employees Michael Phillips, Steve Olsen, Dale Rehnberg, Mark Hayes, Kevin Fitzpa- trick, Larry Embler, Tom Dolan, Walter Johnson, and James Fichera for engaging in protected concerted activ- ity and for supporting the Union, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By threatening to close or move the plant if the Union were selected by the employees as their collec- tive-bargaining representative, and by threatening to dis- charge employees for engaging in a strike, Respondent violated Section 8(a)(1) of the Act. 7. By brandishing a gun while picketing employees were engaged in protected concerted activity, and by driving an automobile into picketing employees, Re- spondent has interfered with the lawful strike activities of its employees in violation of Section 8(a)(1) of the Act. 8. By refusing since on and after June 6, 1979, to rec- ognize and bargain collectively with the Union as the ex- clusive representative of the employees in the unit de- scribed above, Respondent has violated Section 8(a)(l) and (5) of the Act. 9. By unilaterally granting wage increases and distrib- uting free turkeys to its employees, without consultation with the Union, Respondent violated Section 8(a)(1) and (5) of the Act. 10. The strike which began on June 5, 1979, as an eco- nomic strike, was prolonged and converted into an unfair labor practice strike on June 6, 1979, by the conduct of Respondent described above. 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in various unfair labor practices, I shall recommend that it cease and desist therefrom79 and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent made a valid offer of reinstatement to the discharged employees in July 1979, it is not appropriate to order Respondent to offer reinstatement to these employees. However, since I have found that the strike engaged in by Respondent's employees was converted to an unfair labor practice strike, those strikers who chose not to accept Respondent's offer of reinstatement resumed their status as unfair labor practice strikers. In addition, those strikers who were not discharged and who did not return to work also continued to retain their status as unfair labor practice strikers. Accordingly, I shall recom- mend that Respondent be ordered to offer reinstatement, upon application, to their former positions of employ- ment, or, if those positions are no longer available, to 79 Since the unlawful discharge of striking employees is of such a seri- ous nature and strikes at the very heart of rights intended to be protected by the Act, I shall recommend issuance of a broad cease-and-desist order requiring Respondent to cease and desist from in any other manner in- fringing upon employees' nghts. Abilities and Goodwill. supra. substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who participated in the strike which began on June 5, 1979, and who have not been reinstated, dismiss- ing, if necessary, any persons hired as replacements on or after June 6, 1979. 80 I shall also recommend that Respondent make whole those nine discharged employees for any loss of earnings they may have suffered by reason of the discrimination against them, from the date of their terminations until the dates of their reinstatement or offers of reinstatement. 8 ' In addition, I shall recommend that Respondent make whole the striking employees for any loss of earnings they may suffer, should Respondent refuse to reinstate them upon application, by payment to each of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement to the date of Respondent's offer of reinstatement to him. Backpay shall be computed in both situations described above, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). I shall also recommend that Respondent be ordered to recognize and bargain with the Union as the exclusive collective-bargaining agent of the employees in the unit found appropriate herein. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER8 2 The Respondent, Highland Plastics, Inc., Newburgh, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or threatening to discharge employees for engaging in a strike or in union activities or other- wise discriminating against them in order to discourage them from being or becoming members or supporters of Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. (b) Threatening to close or move the plant if the Union is selected as collective-bargaining representative by its employees. RO This portion of the remedy shall not apply to Steven Olsen, who was lawfully discharged by Respondent for engaging in picket line vio- lence. 8 C & W Mining, supra. As noted above, Respondent shall not be pre- cluded from avoiding or reducing its backpay obligation by establishing at the compliance stage of this proceeding that some or all of these discri- minatees would not have accepted a valid offer of reinstatement made prior to July. or by any other evidence showing the incurrence of a will- ful loss of earnings See also Abilities and Goodwill. supra. 82 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, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes. HIGHLAND PLASTICS, NC. 165 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Brandishing a gun while its employees are engaged in protected concerted activity, or driving an automobile into employees while they are picketing. (d) Refusing to bargain collectively with the Union concerning terms and conditions of employment of its employees, in the following appropriate unit: All full-time and regular part-time production and maintenance employees of Respondent, employed at its Newburgh, New York, facility, including cutters, benders, bellers, packers, shippers and welders, but excluding office clerical employees, guards and su- pervisors as defined in Section 2(11) of the Act. (c) Unilaterally granting wage increases, distributing free turkeys to employees, or otherwise unilaterally changing any other term or condition of employment of its employees, without first notifying the Union and bar- gaining collectively with it in good faith concerning such proposed changes; provided that nothing herein shall re- quire Respondent to rescind any wage increase or benefit which it has previously granted. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Make whole Michael Phillips, Mark Hayes, Steven Olsen, Dale Rehnherg, Kevin Fitzpatrick, Larry Embler, Tom Dolan, Walter Johnson, and James Fichera, for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section herein entitled "The Remedy." (b) Upon application, offer immediate and full rein- statement to their former positions of employment or, if these positions are no longer available, to substantially equivalent employment, without prejudice to their se- niority or other rights and privileges, to all those em- ployees who participated in the strike which began on June 5, 1979, and who have not been reinstated, dismiss- ing, if necessary, any persons hired as replacements on or after June 6, 1979. Respondent shall also make whole those employees for any loss of earnings they may suffer, by reason of Respondent's refusal if any, to reinstate them in accordance with the terms of this Order, in the manner set forth in the section herein entitled "The Remedy." (c) On request, bargain with the Union as the exclusive bargaining representative of the employees in the appro- priate unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed written agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary or useful to the analysis of the amount of backpay due under the terms of this Order. (e) Post at its place of business in Newburgh, New York, copies of the attached notice marked "Appen- dix." 83 Copies of the notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by it, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the said notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations not specifically found herein. s In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"