Hornick Building Block Co.

National Labor Relations Board - Board Decisions

Sep 22, 1964

148 N.L.R.B. 1231 (N.L.R.B. 1964)

HORNICK BUILDING BLOCK CO. 1231
or assist labor organizations , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of Local 135, International Brotherhood of, Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, or any other labor organization.
AMERICAN ART CLAY COMPANY, INC.,
Employer.
Dated---------------- --- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921, if they have any questions concerning this notice or compliance with its
provisions.
Hornick Building Block Co. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Building Material & Construction Drivers, Helpers & Mate-
rial Handlers, Local Union No. 341. Case No. 6-CA-912. Sep-
tember 22, 1964
DECISION AND ORDER
On June 26, 1964, Trial Examiner Alba B. Martin issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Coun-
sel filed a brief in answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
148 NLRB No. 128.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Hoffiick Building Block Co., its officers, agents, successors, and as-
signs, shall take the action set forth 4n the. Trial Examiner's Recom=
mended Order as modified herein :
1. The following paragraph will replace paragraph 2(a) of the
Recommended Order :
(a) Reinstate Bernard Trusiak, Joseph DeMarco, Merle L. Crowe,
Rudy J. Tabacek, Frank Yaksetich, and George Zrelak to their former
or substantially equivalent positions, without prejudice to their se-
niority and other rights and privileges, and make them whole for any
loss of pay they may have suffered by reason of the Respondent's
discrimination against them.
2. The following paragraph.will replace the last full indented para-
graph in the notice :
WE WILL reinstate Bernard Trusiak, Joseph DeMarco, Merle
L. Crowe, Rudy J. Tabacek, Frank Yaksetich, and George
Zrelak to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of pay they may have
suffered by reason of the discrimination practiced against them.
i The Trial Examiner found , and we agree , that the Respondent engaged in unlawful
interrogation , threats, discharges „ and other unlawful conduct designed to thwart the
organizational efforts of its employees It embarked upon this conduct when Trusiak,
one of its truckdrivers , introduced Union Business Agent Soldo to Hornick, the Respond-
ent's president , and told Hornick the drivers had joined the Union and wanted it to rep-
resent them Hornick refused to talk to Soldo, ordered him out of the office , and told
Trusiak he might as well go with Soldo . As Trusiak left, he called out to Soldo that he
thought he had been discharged Hornick thereupon called to Trusiak that he should go
back to work until the arrival of Hornick 's wife, who assisted him in the management of
the business . The Trial Examiner found that "Hornick's instruction to Trusiak to follow
Soldo out, although revoked, amounted to an implied threat . . . thereby violating Sec-
tion 8 ( a) (1)." Although we find that Hornick's instruction to Trusiak was not revoked
but merely stayed until Mrs. Hornick arrived, we agree nevertheless with the Trial
Examiner that it was an unlawful threat.
Although the Trial Examiner recommended that Respondent offer to the six discrimi-
natees "immediate and full reinstatement to their former or substantially equivalent
positions ..." he failed to make provisions therefor in his Recommended Order and
notice . We shall , therefore , amend the Order and notice to provide for such reinstatement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with the General Counsel and Respondent represented by coun-
sel, was heard before Trial Examiner Alba B . Martin in Pittsburgh, Pennsylvania,
on March 9 and 10, 1964, on complaint of the General Counsel and answer of
I
HORNICK BUILDING BLOCK CO. 1233
Hornick Building Block Co., Respondent herein.' The issues litigated were whether
Respondent unlawfully interrogated and threatened its employees, whether the
July 31 to October 28, 1963, strike of its five truckdrivers ( and one plant employee)
was an unfair labor practice strike, whether on July 31 Respondent unlawfully dis-
charged the five truckdrivers, whether during the strike Respondent unlawfully
sought to induce and encourage striking employees to abandon the strike and return
to work, whether the strikers' offer to return to work on October 28 was an un-
conditional offer, and whether Respondent unlawfully refused to reinstate the strikers
between October 28 and December 22, when all strikers were admittedly offered
employment. The General Counsel contended that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq., herein called the Act. Respondent's motion to dismiss made at
the end of all evidence, and upon which decision was reserved, is hereby decided in
accordance with the findings and conclusions herein. After the hearing the General
Counsel and Respondent filed briefs, which have been carefully considered.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation with its principal office and place of
business located at Cheswick (Acmetoma), Pennsylvania, is engaged in the manu-
facture and sale of building blocks. During the 12-month period immediately pre-
ceding the filing of the charge, Respondent sold goods valued in excess of $50,000
to Ryan Construction, Inc., of Pittsburgh, Pennsylvania, which meets the Board's
jurisdictional standards by virtue of its annual retail sales in excess of $500,000
and its direct receipt from outside Pennsylvania annually of materials valued in
excess of $20,000. Siemons Mailing Service, 122 NLRB 81. See also Harry
Tancredi, 137 NLRB 743. Upon the entire record, I find that at all times material
herein, Respondent is and has been engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Building Material & Construction Drivers, Helpers & Material Han-
dlers, Local Union No. 341, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Was it an unfair labor practice strike?
On July 31, 1963, shortly after midnight July 30, Respondent's five truckdrivers
went on strike. They decided to do so during the evening of July 30. Although
they had signed union authorization cards during the previous few days and had
participated in three organizational meetings with union representatives during July,
several of the strikers and one union representative credibly testified that there was
no discussion of a possible strike prior to July 30. There was no testimony to the
contrary.
The record proved further that the strike was caused by the events of July 30;
by Respondent's snub of a union organizer that afternoon; and by Respondent's un-
lawful interrogations of and threats to its employees that afternoon and evening.
About 2 p.m., July 30, the Union's 'business agent, Peter Soldo, acting upon au-
thorization specifically given him by several of the drivers at a meeting the previous
Sunday, and presumably also upon authorization given the Union by the employees'
signing of the union cards, went to Respondent's place of business and was introduced
to Respondent's president, Frank Hornick. According to the credited- testimony
of Soldo and the employees' union steward, Trusiak, the latter informed President
Hornick, in substance, that the truckdrivers had joined the Union and wanted the
Union to represent them, that Soldo was a business agent of the Union, and that he
represented the drivers.
1 The charge was filed by the Union on December 9, 1963, and the amended charge was
filed by the Union on January 24, 1964
76 0-5 77-6 5-v o l 148-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without asking Soldo any questions about why he was there or giving Soldo or
Trusiak any opportunity to state their mission, President Hornick abruptly ended
the conversation by putting his hand out and directing Soldo, "out, out, out."
Soldo attempted to say something, but was stopped by Hornick. As Soldo was
leaving, Hornick told Trusiak he might as well go with Soldo. As Trusiak started
toward Soldo, shouting to Soldo that he thought he had been fired, Hornick called
him back and told him to go back to work until Helen Hornick arrived. The
latter was the wife of the president of the Respondent, was bookkeeper for Respond-
ent, and had other duties and authority which made Respondent responsible for
her activity, as found below.
About 45 minutes later Trusiak was called to the office and Helen Hornick, who
had been called to the plant by President Hormck, asked him, according to the
credited testimony of Trusiak, who the instigator was. Steward Trusiak replied
that there was no instigator, that all five of the drivers had gone into the Union.
Helen said to Frank Hornick that she had thought it was the plant employees, but
it turned out to be the drivers, who were the "sneaky ones." She then said that
she was going to replace two drivers right away and asked Trusiak if he knew the
number of the "unemployment office." She then said she was going to hold a
meeting of drivers after work, and for Trusiak to return to work and finish out the
day. At the end of his workday Trusiak asked Mrs. Hornick if she was going to
hold the meeting and she replied no, and that she would let him know if she was
going to have a meeting.
Upon the entire record considered as a whole, I conclude that President Hornick's
instantaneous rebuff of the union business agent, in the face of the assertion that
he spoke for the drivers, and in the presence of the union steward, was an act
reasonably calculated to and which reasonably tended to interfere with the rights
of employees under Section 7 of the Act and was an act in complete repudiation of
the principle of collective bargaining. By this interference with the rights guaran-
teed in Section 7, Respondent violated Section 8(a)(1) of the Act. Hornick's in-
struction to Trusiak to follow Soldo out, although revoked, amounted to an implied
threat of economic reprisal because of Trusiak's and the other drivers' union activ-
ities, Respondent thereby further violating Section 8(a)(1). By Helen Hornick's
asking Trusiak who the instigator was, Respondent further reasonably tended to in-
terfere with, restrain, and coerce employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent thereby further violating Section 8 (a) (1) . Helen
Hornick's statement to Trusiak that she was going to replace two drivers right away
was, in the light of all the facts, an economic threat of reprisal against the drivers
because of their union activities, Respondent thereby further violating Section
8(a)(1)
When Joseph DeMarco, another driver, reported into the office that afternoon
after a trip, President Hornick, according to DeMarco's undenied and credited
testimony, asked him if he had anything to do with the Union. When DeMarco
replied in the affirmative President Hornick, raising his voice, talked about the
favors he had done to DeMarco, who was Hornick's brother's brother-in-law Then
Helen Hornick, who had overheard the above conversation, said that she would
replace a couple of the drivers "real quick." She telephoned the "unemployment
office" and, according to Helen Hornick's credited testimony, asked them to send
out two drivers, that "two of our drivers went out on a strike." 2 Under all the
circumstances of this case, President Hornick's interrogation of DeMarco reason-
ably tended to interfere with, restrain, and coerce employees in the rights guaran-
teed in Section 7 of the Act, as did Helen Hornick's threatened economic reprisal
against the job security of the drivers by saying she would and then taking steps to
replace two drivers; Respondent thereby further violating Section 8(a) (1) of the Act.
Later that afternoon, July 30, when Truckdriver Merle Crowe came into the
office after a trip, President Hornick asked him, according to Crowe's undenied
and credited testimony, if he had joined the Union and why. Helen Hornick said
that she had called the "unemployment office" and that there would be new drivels
2 In her testimony Helen Hornick attempted to justify this request for two drivers on
the ground that she asked DeMarco if he would be at work in the morning and he replied
in the negative But this does not explain why she asked for two replacement drivers or
why she told three drivers she was getting replacements. She had had no conversation
with Trusiak as to whether lie would he at work the following day, and De1llarco was the
next driver to come into the office Up to that time the drivers had not discussed strik-
ing On all the evidence, I conclude that this was a retaliative pressure move against the
drivers by Helen Hornick and was not a bona fide effort to seek strike replacements.
HORNICK BUILDING BLOCK CO. 1235
the following day. Later , at Hornick's house nearby, Hornick told Crowe that
there would be no union at the plant .3 By interrogating Crowe as to whether he
had joined the Union and why, Respondent reasonably tended to violate the rights
guaranteed in Section 7 of the Act , Respondent thereby further violating Section
8 (a) (1). Helen Hornick 's statement concerning the unemployment office and new
drivers amounted to a threat against the economic security of the drivers , Respond-
ent thereby further violating Section 8 (a)(1). President Hornick's remarks that
there would be no union at the plant was not a view, argument , or opinion protected
by Section 8(c) but, under all circumstances of this case , amounted to a statement
of intention by the president of the Company and an implied threat of economic
reprisal against the drivers because of their union activities . Respondent thereby
further violating Section 8 (a) (1) of the Act.
At the end of the workday on July 30, when Truckdriver Tabacek reported into
the office , Helen Hornick, in effect, interrogated him by observing that she guessed
he had joined the Union . Tabacek allowed that he had . She then asked him why
he did not "come and talk to us before you joined ?" She also asked him who the
instigator was. She said that President Hornick "will never go for a union. He
will close the place up." 4 By interrogating Tabacek concerning his union activities
and by threatening that President Hornick would close the plant rather than deal
with a union , Respondent further violated Section 8 (a) (1) of the Act.
That evening Helen Hornick went into Tabacek 's house to pick up something
and while there told Tabacek , according to the latter's credited testimony, that she
was glad they had joined the Union , that they should "stick to your guns," that she
wanted "to get the hell out of there anyway," and that "she hoped he would sell
it." Under all the circumstances of this case , these remarks were more than views,
arguments, or opinions protected by Section 8(c) and amounted to an implied threat
of economic reprisal against the drivers if they persisted in their union and/or con-
certed activities ; Respondent thereby further violating Section 8 (a) (1) of the Act.
Later that evening, in the parking lot of a private club located near the plant,
about an hour and a half before the strike and picketing began , and when only
Trusiak, Helen Hornick , and a local policeman were present, Helen Hornick re-
quested the policeman to arrest Trusiak, giving as the reason that Trusiak had
worked for Respondent only 4 months and was trying to bring a union into the
plant. This request for these reasons revealed Mrs . Hornick's and Respondent's
complete ignorance of the rights of the employees under Section 7 of the Act to
join, form , or assist a union of their own choosing , and her complete ignorance of
the principle of collective bargaining.
In addition to all of the above, on July 30, according to the credited and undenied
testimony of John Stavor, ". . I was in the office when Bernie (Trusiak) was in
there talking to Mrs . Hornick. They asked me if I joined the Union . I told them
no. They asked Bernie if I did and Bernie told them that I didn 't join ." Stavor's
plural references referred to President Hornick , who was present when Mrs. Hornick
was talking to Trusiak . By this additional interrogation by President Hornick and
Mrs. Hornick , Respondent further violated Section 8 (a)(1) of the Act.
As to Respondent 's responsibility for the unlawful statements and acts of Helen
Hornick on the crucial July 30 , Respondent admitted that she was an agent of Re-
spondent but, in substance , denied that Respondent was responsible for her acts.
The facts refute this denial . As has been seen above, by her own testimony , corrob-
orated in part by three drivers, she called the unemployment office ( in the presence
of and without consulting President Hornick ) and requested that two drivers be
sent out the following day. She let three drivers know she was doing this , at least
partly in the presence of President Hornick . Confronted by the Union , President
Hornick told one employee to go back to work "until Helen . . . gets here," show-
ing, President Hornick 's reliance upon her in employee relations matters. She in-
structed one employee that she was going to hold a meeting of drivers after work
and for him to return to work and finish out the day. She was in the office most
of the time and guarded the telephone either at the plant office or at the Hornick
home a few blocks away ( the telephone rang at both places simultaneously ) in order
"to tell the truckers where to go and when to go." She dispatched the drivers on their
3 Although Respondent ' s witness , Jess Brown , who was at Hornick ' s house that evening,
testified he did not hear Hornick say this , the record does not show that Brown overheard
all of the conversation between President Hornick and Crowe.
4 A local police officer credibly testified that during the strike President Hornick told
hint that this Union would never be in the plant ; that he would rather sell the plant.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
runs in the absence of President Hornick and John Stavor,5 who usually did it when
they were there. She secured and recorded for the Company initial employment in-
formation from new hires, including several of the present truckdrivers. On
December 22, 1963, at the request of President Hornick, she telephoned each of the
strikers and asked him to return to work. It thus appears that Helen Hornick's func-
tion was much greater than that of giving her husband wifely encouragement and
backing; she was actively engaged in exerting management authority in manage-
ment's day-to-day relationship with the employees. As Respondent held her out
as having management authority, as Respondent never sought to disavow the fact
or impression that she was authorized to speak and spoke for it in the fields of
employee and union relations, and as her views, interrogations, and threats found
herein were so consistent with those of Respondent as expressed by its president, I
find on the entire record that Helen Hornick was a management agent having gen-
eral authority in the fields of employee and union relations and acting within the
scope of her authority from Respondent, for whose unlawful acts as found herein
Respondent was legally responsible. Cf. International Association of Machinists,
Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. N.L.R.B. 311 U.S. 72, 79-81;
Continental Motors, Inc., 145 NLRB 1075.
With the union steward, Trusiak, taking the initiative, the five drivers consulted
somewhat over the telephone that evening, July 30, and later at the parking lot near
the plant, and decided to go on strike. Preponderant in their thinking as they con-
templated this action was President Hornick's snub of their union spokesman, Soldo,
that afternoon; a fear because of Helen Hornick's call to the unemployment office
that they were going to be discharged the following day; and Respondent's attitude
toward their joining the Union as expressed that afternoon by the interrogations and
threats of Mr. and Mrs. Hornick, as found above. They were also mindful that
Hornick had originally told Trusiak to leave with Soldo even though he had re-
tracted the order. They began the strike shortly after midnight although their
next runs went out around 5 or 6 that morning, with the hope that this would allow
time for consultation and agreement with President Hornick and no loss of work.
It did not work out just that way.
Upon the above evidence I believe and hold that the, strike was caused by the
unfair labor practices committed by Respondent on July 30, and was an unfair
labor practice strike.6 The strike continued until October 28.
B. Prolongation of the strike by additional unfair labor practices
During the strike Respondent committed two more unlawful acts which tended
to prolong the unfair labor practice strike: Respondent discharged the five drivers
almost as the strike began; and then a week or two later attempted to defeat the
strike by trying to draw the three older drivers away from the other three strikers
and back to work, thereby abandoning the strike.
First the discharges- The five drivers who started the strike, Trusiak, DeMarco,
Crowe, Tabacek and Yaksetich, each testified that shortly after midnight as they
were about to begin to picket across the street from the plant, but while they were
still on the parking lot, Mr. and Mrs. Hornick drove into the parking lot and paused
long enough for Hornick to discharge the five drivers. Although these drivers
quoted Hornick as using different words,7 the drivers stood, according to their
estimates, from 8 to 25 feet away from him but more or less in a group. If in fact
Hornick was drunk at the time, he may well have used different words, but they all
add up to the same; discharge.
G This man's name was erroneously spelled S-t-a-b-o-r in the transcript of the record.
The transcript is hereby corrected so that this name appears as above.
6In an effort to show that the strike was planned before the events of July 30 and was
therefore not an unfair labor practice strike, Respondent sought to show that the words
on the picket signs were painted on and so could not have been prepared during the
evening of July 30 The competent and credible and undenied testimony was that the
Union used picket signs with standard legends already painted on and that the name
"Ilornick" was printed on several signs, with a marking pencil, that night by a union
agent as he was being driven to the scene of the picketing
7 Soldo quoted him as saying that "As far as he was concerned, they don't work there
anymore" Trusiak: "You drivers 'are fired.' " DeMarco • "You are 'finished.' You are
'through ' " Crowe: "You boys are fired " Tabacek : "I know five guys that are out of
a job." Yaksetich: "You are fired ... finished."
HORNICK BUILDING BLOCK CO. 1237
Mr. Hornick , Mrs. Hornick , and their friend , Jess Brown , each testified that
Frank Hornick never left his house that night and so did not go to the parking lot
and discharge the strikers . Brown testified that he had watched Hornick drink for
a good many years and that he would say that on the night of July 30 Hornick was
under the influence of liquor . Hornick testified he was drinking Canadian Club.
Mrs. Hornick testified that at least part of the time he was so intoxicated he was
"out like a light, on the couch ." Brown said Hornick was up and down and con-
tinued drinking when he was up. Brown testified that once he and Mrs. Hornick
drove Hornick 's "Fleetwood" over to the parking lot and back, saw the pickets
but did not talk to them ; and that they drove over and back once or twice more.
But surely the strikers , several of whom had worked for Hornick for years and were
close friends of his, knew him and his voice and would not confuse him with Brown,
even at night.
On the entire record , I credit the testimony of the drivers that Hornick came to
the parking lot shortly after midnight that night and fired them . Two drivers,
Tabacek and Crowe, by their demeanor particularly impressed me as credible wit-
nesses, and they so testified . I do not rely upon Hornick 's memory of that night
because of his drinking , and Hornick 's testimony generally failed to carry conviction
as to its complete accuracy . By her demeanor Mrs. Hornick did not impress me
as a credible witness, and her testimony lacked the ring of authenticity . Brown was
a sufficiently good friend of the Hornicks to remain at their home during this trying
night to be of help to them, and by his friendship was closely interested in having
them prevail in this proceeding . For the above reasons, and upon the entire record
considered as a whole, I credit the drivers rather than Brown and the two Hornicks.
As the drivers were discharged purely because of their union activity and because
they went on strike , which was protected concerted activity , Respondent thereby
further violated Section 8 (a) (3) and ( 1) of the Act.
As to the efforts to break the strike : President Hornick told his friend, Jess Brown,
in substance that he would like to have Crowe, DeMarco , and Tabacek back at
work, but not Trusiak and Yaksetich , that during a previous strike the former three
had "stuck by me" and worked . One day a week or two after the strike started
Brown went over to the picket line and passed that message on to Crowe, DeMarco,
and Tabacek . Brown suggested that the three go over and talk to Hornick about
it. Tabacek replied , "It is too late now. We already signed up for the Union," and
that Hornick , "wouldn 't even talk to our organizer ." Crowe testified that the three
didn 't return to work "because he said he didn 't want any thing to do with the other
two." Brown reported to President Hornick that he had talked to the men and
had made arrangements for them to meet with Hornick, who expressed approval
of Brown's efforts. Insofar as the record shows the three men never did go over
and talk to Hornick about his offer of reinstatement.
In addition to the above , President Hornick testified that during the strike (on
an undisclosed date ) he himself asked Tabacek to return to work and that Tabacek
would not even talk to him . Asked if Hornick offered him his job back, Merle
Crowe replied , "He wanted us to come back to work . I told him we were on
strike." Also, DeMarco testified that about a week after the strike began President
Hornick offered him his job back and he refused it.
Upon the above testimony and the entire record considered as a whole, I conclude
that during the strike President Hornick himself attempted to get the three older
drivers , who had been loyal to him and worked during a previous strike, to abandon
the strike and the other two drivers and return to work . This effort to divide and
conquer was a continuation of the pattern of antiunion activities by the Respond-
ent, including interrogations , threats, and discharges , which had caused and pro-
longed the strike, as seen above, and which reasonably tended further to prolong
the strike ; Respondent thereby further interfering with, restraining , and coercing
employees in the exercise of the rights guaranteed in Section 7 and thereby further
violating Section 8 (a) (1) of the Act.
C. October 28: abandonment of the strike , application for reinstatement, and
refusal to reinstate
According to the credited testimony of the strikers, upon orders from the Union
and agreement among themselves , on the early morning of October 28, 1963, the
strikers abandoned the strike and agreed to make, through their steward and spokes-
man, Trusiak , an unconditional offer to return to work . They agreed among them-
selves, knowing this was the slack season in Respondent 's business , and no doubt
also aware that the strike had been costly to Respondent's business , that they would
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not insist that all be returned to work immediately, and that they would be satisfied
to return one or two at a time as Respondent was able to absorb them in its
,operations9
As unfair labor practice strikers they had an absolute right to return to their jobs
upon their unconditional abandonment of the strike and their unconditional applica-
tion for reinstatement.
The record sustains the conclusion, which on the entire record I reach, that in
speaking for the men to President Hornick that morning, Trusiak made it clear to
Hornick that the men were unconditionally abandoning the strike and were uncon-
ditionally applying for reinstatement. Soldo, Trusiak, Crowe, and Yaksetich, who
were present, all credibly denied that Trusiak placed any condition upon their ap-
plication for reinstatement.
There was much testimony on what was said by Trusiak and Hornick on this
occasion. According to one of the most articulate accounts of the events, that of
Tabacek, the group of men walked over to President Hornick on the company
premises and Trusiak informed him that ". . we took down the signs (the picket
signs ). We are ready to go back to work." President Hornick replied, "I have no
work for you fellows. You chased all my business away . . I have to ask my
customers if they want to take you guys back." Trusiak then asked if they were
"fired, then, or laid off." Hornick replied, "You are not fired or laid off. We just
don't have any work for you."
Business Agent Soldo credibly testified that Hornick added that he had hired
other men and he was not going to lay them off to take the strikers back. Several
testified Trusiak told Hornick the strikers were going to sign up for unemployment
insurance. Several testified that Hornick referred Trusiak to John Stavor, who dis-
patched drivers, to see if there was any work; Mrs. Hornick explaining that Presi-
dent Hornick had been away the day before and was uninformed as to whether any
loads were to be driven that day. Stavor replied to Trusiak that there were no
orders to go out. Trusiak asked Stavor whom he would call when he had runs to
make, the strikers or the replacements, which question Stavor did not answer.
Although President Hornick testified that Trusiak said, "We all go back as a
unit," his original version was that Trusiak said, "We are all back here to come to
work," and his second version was suggested to him by the reading of a letter from
the Company to the Union, quoted below President Hornick's testimony on this
point was. unconvincing. Helen Hornick testified that Trusiak said, "They were all
ready to come back to work," and a moment later said, "You take us all back to-
gether." John Stavor testified Trusiak said, "We are all ready to come back to
-work." Mrs. John Stavor, who was also present, testified Trusiak said, "We are
ready to come back to work, Frank, all of us."
As has been seen above, on the entire record I conclude that the strikers' applica-
tion for reinstatement was unconditional .9
8 As DeMarco testified on cross-examination: "We hoped he would accept at least one or
two of us back to work . . We would have been more than glad if he would have
taken one or two of us." Similarly, Yaksetich, who by his demeanor impressed me as a
credible witness, testified on cross-examination that the men agreed among themselves
that morning that if Hornick would take one or two of them, those reinstated would go
to work
8 Nine days later, on November 6, 1963, the Union wrote Respondent as follows:
This is to inform you that on October 28, 1963, at 5.45 a m., all the drivers of
your company, who had previously been on strike, reported unconditionally back to
work and informed you then and there that they were ready and available immedi-
ately for employment. The drivers are as follows: Joseph DeMarco, Bernie Trusiak,
Rudy Tabacek, George Zrelak, Merle Crowe, and Frank Yaksetich.
This unconditional offer for immediate employment, without any condition has con-
tinued in effect from October 28, 1963, to the present date and will continue until
the employees are reinstated to their employment under the same terms and condi-
tions which existed immediately prior to the effective date of the strike. To be noted
is that this letter operated as an unconditional offer to return to work as of its date
even if, contrary to the above finding, the strikers' offer of October 28 was a condi-
tional offer.
President Hornick replied to the Union's letter on November 14 as follows:
This is in reply to your letter of November 6, 1963.
You will recall that on July 30, 1963, the men whose names you listed in your
letter, struck this plant. They have not reported for work from that day until Octo-
HORNICK BUILDING BLOCK CO. 1239
President Hornick's response to the strikers' unconditional offer to return to work
was in substance that he was not going to discharge the replacements and that there
was no work. The record showed that during the period October 28 to Decem-
ber 22, when Respondent offered the strikers employment, Respondent employed
some replacements and that they drove trucks, for which they were paid on a trip
basis. Truckdrivers were paid on a trip basis. On the entire record considered as
a whole, I conclude that during the period October 28 to December 22 Respondent
refused to reinstate the strikers at least on a trip-by-trip basis or part-time basis, be-
cause of their participation in the strike and their adherence to the Union, Respond-
ent thereby further violating Section 8 (a) (3) and (1) of the Act. Cf. Cactus Petro-
leum, Inc., 134 NLRB 1254, 1260-1261.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain af-
firmative action designed to effectuate the policies of the Act.
As the unfair labor practice strikers, including Zrelak,10 who joined, the strike
about August 2, unconditionally applied for reinstatement on October 28, they had
an absolute right to their jobs even if it meant their replacements must be discharged.
The record showed that drivers were paid on a trip basis and that during the period
between October 28 and December 22, when all strikers were offered employment,11
her 28. Prior to October 28, in order to maintain operations, I had hired other
people to do the work they had been doing so that unfortunately on October 28 and
since that time, there is no work available for these men.
I should also like to correct your epparent misunderstanding concerning what
occurred on October 28. The men you listed in your letter did not present them-
selves unconditionally for re-employment, but on the contrary they demanded that
they all be re-employed immediately as a condition of any of them coming to work.
10 Although George Zrelak, as a plant employee, was not included in the truckdrivers'
unit in which, on October 24, the Regional Director directed an election (in Case No.
6-RC-3389, of which I take official notice), nevertheless as an employee of the Respond-
ent who struck in sympathy and support of the unfair labor practice strikers he is en-
titled to the same protection and to the same reinstatement remedies as the striking
employees who were directly and primarily aggrieved by the unfair labor practices caus-
ing the strike. Concrete Haulers, Inc., 106 NLRB 690, 693, footnote 11, and cases cited
therein, enfd 212 F. 2d 477 (C.A. 5). Further here, as has been seen, on July 30, several
days before Zrelak joined the strike, August 2, Respondent threatened that no union
would ever come into the plant and threatened to close up the plant or to sell it, which,
if executed, would have affected Zrelak's continued employment. Thus, Zrelak's relation-
ship to the purpose and causes of the strike were sufficiently close to establish him as an
unfair labor practice striker.
11 The record established that strikers Truslak, Crowe, Tabacek, and Yaksetich were
offered employment December 22 and those who wished to, all but Tabacek, returned to
work on December 23. DeMarco testified that he is employed by Respondent and that
Helen Hornick, Respondent's agent who made the offer of employment to the others that
day, called him on December 22 about returning to work. Helen Hornick testified in
substance that on December 22 on behalf of Respondent she offered employment to all
strikers. Upon the entire record, I find that on that date Respondent offered employment
to all strikers, including Zrelak, the plant employee. However, it was not shown that
the strikers were offered or reinstated to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privileges. As on Decem-
ber 22 Respondent offered the strikers employment and never told them that they were
not reinstated sooner or then because of any picket line misconduct, I ruled at the hear-
ing in effect that Respondent had condoned any such alleged misconduct by the offer and
giving of employment on December 22 and 23, and I did not permit Respondent to litigate
any alleged misconduct during the strike, which ended October 28.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the replacements were paid for trips and therefore drove loads the strikers
would have driven had they been called to work by Respondent. The record, at
page 318, gives the names of the replacements and the inclusive dates of their em-
ployment but it is not necessary to set them forth here. Respondent's records show
the number of trips which would have been hauled by the strikers during this pe-
riod but were in fact driven by the replacements, by John Stavor, and sometimes by
plant employees. Employee James Puskar credibly testified that he was hired in
March 1963 as a truckdriver but soon became the forklift operator. Thereafter he
drove a truck only occasionally. He said he drove a truck during the strike more
often than before the strike. He testified the strike replacements drove trucks almost
exclusively during the strike.
Respondent having unlawfully discharged Bernard Trusiak, Joseph DeMarco, Merle
Crowe, Rudy J. Tabacek, Frank Yaksetich, and George Zrelak because of their union
and concerted activity, and it not having been proved that Respondent has ever
offered them reinstatement to their former or substantially equivalent employment,
I recommend that Respondent offer to these six employees immediate and full rein-
statement to their former or substantially equivalent positions,12 without prejudice
to their seniority and other rights and privileges and make them whole for any loss
of pay they may have suffered by reason of the discrimination against them by pay-
ment to each of a sum of money equal to that which he normally would have earned
as wages for trips driven and otherwise from October 28, the date of Respondent's
discriminatory refusal to reinstate him, until the date when, pursuant to the Rec-
ommended Order herein, Respondent shall offer him full reinstatement, less his net
earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498),
said backpay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligation of
Respondent shall include the payment of interest at the rate of 6 percent to be com-
puted in the manner set forth in Isis Plumbing & Heating Company, 138 NLRB
716. As provided in the Woolworth case, I recommend further that Respondent
make available to the Board, on request, payroll and other records in order to,
facilitate the checking of the amount of backpay due.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless the Order is coextensive
with the threat. In order therefore to make more effective the interdependent guaran-
tees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce and thus effectuate
the policies of the Act, I shall recommend that Respondent be ordered to cease and
desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Hornick Building Block Co., Cheswick, Pennsylvania, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Building Material & Construction Drivers, Helpers & Material Handlers,
Local Union No. 341, is a labor organization within the'meaning of Section 2(5)
of the Act.
3. By interrogating employees and threatening them with economic reprisal con-
cerning their union membership, activities, and sympathies; by refusing to talk with
a union representative asserted to represent the drivers; by threatening to close the
plant rather than deal with a union ; by attempting to defeat the strike by offering
reinstatement to some of the drivers while rejecting the rest; and by other acts, Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Bernard
Trusiak, Joseph DeMarco, Merle L. Crowe, Rudy J. Tabacek, Frank Yaksetich, and
George Zrelak, thereby discouraging membership in the labor organization named
in paragraph 2, above, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3 )'arid (1) of the Act.
32 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
HORNICK BUILDING BLOCK CO. 1241
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case considered as a whole, I recommend that the Respond-
ent, Hormck Building Block Co., of Cheswick, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Building Material & Construction
Drivers, Helpers & Material Handlers, Local Union No. 341, or any other labor
organization of its employees, by discriminating in regard to the hire and tenure of
their employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Building Material & Construction Drivers, Helpers & Material
Handlers, Local Union No. 341, or any other labor organization, to bargain collec-
tively through representatives of their own choosing and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Make whole Bernard Trusiak, Joseph DeMarco, Merle L. Crowe, Rudy J.
Tabacek, Frank Yaksetich, and George Zrelak for any loss of pay they may have
suffered by reason of Respondent's discrimination against them in accordance with
the recommendation set forth in the section entitled "The Remedy."
(b) 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 records necessary to analyze the amount
of backpay due and the rights of the six employees named above, under the terms
of this Recommended Order.
(c) Post at its plant in Cheswick, Pennsylvania, copies of the attached notice
marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Di-
rector for Region 6 (Pittsburgh, Pennsylvania), shall, after being signed by the
representative of Respondent, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to all employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6 in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.14
1i If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
14 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 6, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Building Material &
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction Drivers, Helpers & Material Handlers, Local Union No. 341, or
any other labor organization, by discriminating against our employees in any
manner in regard to their hire or tenure of employment or any term or con-
dition of employment.
WE WILL NOT unlawfully interrogate our employees concerning their and
other employees' union membership, sympathy, and activities.
WE WILL NOT threaten to close down the plant or sell it rather than deal with
a union representing our employees, or otherwise threaten the job security of
employees because of their union membership, sympathy, and activities.
WE WILL NOT refuse to talk with a union representative who is said to repre-
sent our employees.
WE WILL NOT attempt to defeat a strike of our employees by offering rein-
statement to some of the strikers while rejecting the rest of the strikers.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Building Material & Construction Drivers, Helpers
& Material Handlers, Local Union No. 341, or any other labor organization,
to bargain collectively with representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL make whole Bernard Trusiak, Joseph DeMarco, Merle L. Crowe,
Rudy J. Tabacek, Frank Yaksetich, and George Zrelak for any loss of pay
suffered by them by reason of the discrimination practiced against them, in
accordance with the Recommended Order of the Trial Examiner's Decision.
All our employees are free to become or refrain from becoming members of In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Building Material & Construction Drivers, Helpers & Material Handlers,
Local Union No. 341.
HORNICK BUILDING BLOCK CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107
Clark Building, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have
any question concerning this notice or compliance with its provisions.
Iowa Pork Company, Inc. and United Packinghouse, Food &
Allied Workers, AFL-CIO, District No. 3
Iowa Pork Company, Inc. and Dallas County Industrial Labor
Union, Petitioner. Cases Nos. 18-CA-1746 and 18-1C-5340.
September 22, 1964
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
On May 28, 1964, Trial Examiner Ramey Donovan issued his De-
cision in the above-entitled proceeding, finding that Respondent had
148 NLRB No. 116.