Stewart Hog Ring Co., Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1961

131 N.L.R.B. 310 (N.L.R.B. 1961)

310' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From my observations and demeanor of the witnesses , and based on the reasons
given here, it is accordingly found that Julia Maldonado was discharged by the Re-
spondent on March 16, 1960, in violation of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, which occurred in
connection with the operations of the 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to the hire and tenure
of employment of Julia Maldonado, I will recommend that the Respondent offer
to her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights and privileges, and make
her whole for any loss of earnings she may have suffered by reason of the Respond-
ent's discrimination against her, by payment to her of a sum of money equal to that
which she normally would have earned as wages from the date of her discharge to the
date of the Respondent's offer of reinstatement, less her net earnings during said
periods, to be computed on a quarterly basis in the manner established by the Board
in F W. Woolworth Company, 90 NLRB 289, 291-294.
Having found that the Respondent interfered with, restrained, and coerced its em-
ployees set forth herein, the Trial Examiner will recommend that the Respondent
cease and desist from this conduct.
It will also be recommended that the Respondent preserve and, upon request,
make available to the Board, payroll and other records to facilitate the computation
of the backpay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union and Local 1 are labor organizations within the meaning of the Act.
3 By discriminating in regard to the hire and tenure of employment of Julia
Maldonado, thereby discouraging membership in the Union, and other labor organ-
izations, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
4. By engaging in conduct with respect to interference, restraint, and coercion,
as set forth herein, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Stewart Hog Ring Company, Inc. and Earl P. Strike and Darwin
L. Knight. Cases Nos. 14-CA-2163, 14-CA-2161. and 14-CA-
2180. April 27, 1961
DECISION AND ORDER
On June 22, 1960, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled consolidated proceeding, finding
131 NLRB No. 49.
STEWART HOG RING COMPANY, INC. 311
that the Respondent had engaged in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action; -as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers'in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case,' and hereby adopts the findings; conclusions, and recommenda-
tions of the Trial Examiner with the following corrections,' addi-
tions, and modifications :
1. We find, in' agreement with- the Trial Examiner, that the Re-
spondent violated Section 8 (a) (3) and (1) of the Act by discontinu-
ing its long-distance trucking operation and discharging its two truck-
drivers, Strike and Knight. The discharges occurred shortly after
the Union began organizing; 1 week after these two men were elected
president and secretary-treasurer respectively of the Union; and 2
days after the Respondent received a demand for recognition of the
Union. -
The Respondent contends that it had been concerned for some time
about the excessive costs of operating its own long-distance trucks,
that it had been considering contracting out this work, and that it
did so at the time in question for economic reasons. The Respondent's
president admitted, however, that he made the decision to do so after
he had called Strike and Knight to his office on the occasion of their
discharges. At that time, no arrangements had yet been made with
any trucking firm, nor any decision reached as to which company
would make the deliveries.
Moreover, the Respondent, after contracting out its long-distance
hauling, retained the trucks which it used for long-distance deliveries,.
and has used them on at least one occasion since its drivers were dis-
charged. Also, although both Strike and Knight had spent a substan-
tial amount of time in work other than driving trucks, and inter-
1 As no exceptions were filed to the Trial Examiner 's recommended dismissal of the
allegations of the complaint pertaining to the second discharge of Oria McDaniel on or
about November 2, 1959, we hereby adopt pro forma his findings, conclusions, and recom-
mendations on this matter
'At page 339 of the Intermediate Report, the Trial Examiner cites, among other cases,
N L R B. v Wagner Iron Works, 220 F. 58, 59-60 (C.A 9). This seems to be an in-
advertent error as no such case appears there . The Trial Examiner may have intended to
refer to N.L R B v. Wagner Iron Works, at al , 220 F.- 2d 126 , 139 - (C A. 7). In any
event, this does not affect the Trial Examiner' s ultimate findings, conclusions , and recom-
mendations , nor our concurrence therein. -
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change of employees from one job to another was a common practice,
no other work was offered to them.
Accordingly, we agree with the Trial Examiner that the high cost
of operating its trucks was not the motivating factor behind the Re-
spondent's discontinuance of this operation, and that the precipitate
discharges of Strike and Knight shortly after their election as union
officers were discriminatorily motivated and violated Section 8(a) (3)
and (1) of the Act.
The Trial Examiner recommended that the Respondent be directed
to resume its long-distance trucking operation in order to reinstate
the two drivers. However, due to the fact that both Strike and Knight
had spent a considerable portion of their time doing work for the Re-
spondent other than driving trucks, we shall order the Respondent to
offer them reinstatement to their former or substantially equivalent
positions. If such reinstatement can be made without resuming its
long-distance trucking operation, then the Respondent may do so. If
not, then the Respondent shall resume such operation to the extent
necessary to afford Strike and Knight the reinstatement to which they
are entitled'
2. We agree with the Trial Examiner that the Respondent's polling
of its' employees concerning their union sympathies, in a context of
threats, coercion, and discriminatory discharges, violated Section
8(a) (1) of the Act. The purpose of polling employees in such an
atmosphere of coercion is to undermine the Union, and therefore con-
stitutes interference, restraint, and coercion.' This is true even though
the speech which preceded the balloting was protected by Section
8(c) 5
3. We agree with the Trial Examiner's findings as to the inade-
quacy of the reasons advanced by the Respondent for its refusal to
reinstate certain strikers. These reasons included allegations that
strikers Farris, Schlosser, Whittemore, and Woody engaged in im-
proper mass picketing; that strikers Whittemore and Duke each made
a threatening remark to a nonstriker; and that strikers Farris,
Acklen, and McDaniel cut a wire fence on the farm belonging to non-
,striker Elam, thereby allowing his hogs to escape.
(a) The Trial Examiner found, and the record supports this find-
ing, that shoulder-to-shoulder mass picketing continued for only 30 to
40 minutes when the picket line was being organized on the first morn-
ing of the strike. When ordered to do so by a deputy sheriff, the
strikers dispersed, and thereafter picketed in an orderly manner.
Moreover, there is no evidence in the record that the mass picketing,
while it lasted, or the picketing at any time thereafter, prevented in-
s Winchester Electronics , Incorporated, Pyne Moulding, Inc., 128 NLRB 1292; see
also Hugh Major d /b/a Hugh Major Truck Service, 129 NLRB 312.
4 Brown and Root Caribe, Inc., 123 NLRB 1817.
5 See California Compress Company, Inc., 121 NLRB 1388 , enfd. 274 F. 2d 104 (C A. 9).
STEWART HOG RING COMPANY, INC. 313
gress to or egress from the plant.6 Under these circumstances, we
agree with the Trial Examiner that the brief mass picketing episode
herein did not warrant denial of reinstatement to the strikers who en-
gaged in such picketing.
(b) We agree with the Trial Examiner that the remark by Duke
to a nonstriker, "Don't you go in there or I will get you," and by
Whittemore to another nonstriker, "I would like to take you back
behind the building," were improper and not to be condoned. We also
agree with him, however, that the content of these remarks, when
viewed in the context in which they were uttered, was not so flagrant
as to justify removal of these strikers from the protection of the Act.'
(c) While the cutting of Elam's fence was misconduct of sufficient
seriousness to warrant a refusal to reinstate those responsible for it,
we find, like the Trial Examiner, that the record fails to reveal who
participated in this incident. The only basis advanced by the Re-
spondent for the belief that Acklen was a participant was Elam's
questionable identification of a gray Studebaker passing his house at
night on an unlighted road at a time when he had just been awakened
from sleep, and the fact that Acklen owned a gray Studebaker. One
of the other strikers, however, also owned a gray Studebaker. More-
over, the passing of this particular automobile on the road in front of
Elam's house was not shown to have had any connection with the fence
cutting.
One of the Respondent's witnesses testified that he overhead Mc-
Daniel and Farris talking about cutting Elam's fence, and the Re-
spondent relied on this testimony to establish that these two strikers
were involved in this incident, but nothing further was shown to con-
nect either of them with the actual fence cutting. The deputy sheriff
who investigated the incident testified at the hearing that he found
no clue to the identity of the fence cutters. Finally, there is a com-
plete lack of evidence that the Respondent knew either about Elam's
purported identification of Acklen's car or about the conversation be-
tween McDaniel and Farris at the time the Respondent refused rein-
statement to these three men. Under all the circumstances, particu-
larly the lack of identification of the culprits, we agree with the Trial
Examiner that the fence-cutting incident does not justify the Re-
spondent's refusal to reinstate Acklen, McDaniel, and Farris.
6In the Thayer case, cited by the Trial Examiner as support for his findings on the
question of mass picketing, the court of appeals enforced this aspect of the Board Order,
while remanding other questions of striker misconduct for further findings. H. N. Thayer
Company, 99 NLRB 1122 , 1130, enfd . 213 F. 2d 748 , 756 (C A. 1), cert. denied 348
Us 883.
7 In Schott Metal Products Company, 128 NLRB 415, we had occasion to consider the
effect of expressions such as "Go ahead and work, you scabbing sons of bitches," "I'm
going to get you one of these days," and a statement that one person was going "to
whip" another , used by strikers to nonstrikers who were crossing the picket line, and
held that such conduct did not warrant denial of reinstatement to the striking employees
involved.
e
314 DECISIONS OF NATIONAL LABOh riELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Stewart Hog
Ring Company, Inc., Paris, Illinois, its officers, agents, successors, and
assigns, shall : _
1. Cease and desist from :
(a) Discouraging membership in United Mine Workers of America,
District 50, or in any other labor organization of its employees, by
discharging or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of employment.
(b) Coercively interrogating or polling employees as to their union
sympathies or activities.
(c) Threatening employees with loss of employment or other re-
prisals for engaging in union or concerted activities.
(d) Promulgating or enforcing rules which prohibit employees
from wearing union buttons, badges, or other union insignia while at
work.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form
labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except as author-
ized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Earl P. Strike and Darwin L. Knight immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges,
resuming its long-distance trucking operation to the extent necessary
to afford Strike and Knight such reinstatement, and make Strike and
Knight whole for any loss of pay suffered by them in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Make Harry Farris, Milo Schlosser, Jay Acklen (Leonard J.
Acklen), Robert Hewitt, George Whittemore, John Duke, Harry
Woody, and Oria McDaniel, and each of them whole for any loss of
.pay he may have suffered as a result of his discharge on July 31,
1959, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
,agents, for examination and copying, all payroll records, social secu-
STEWART HOG RING COMPANY, INC. 315
rity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amounts of backpay due under the
terms of this Order.
(d) Post at its Paris, Illinois, plants copies of the notice attached-
to the Intermediate Report marked "Appendix." 8 Copies of said -
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondent's authorized-
representative, be posted by the Respondent immediately upon receipt
thereof in conspicuous places including all places where notices to em-
ployees are customarily posted, and maintained by it for at least 60
consecutive days thereafter. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
The allegations of the complaint based upon the second discharge
of Oria McDaniel on or about November 2, 1959, are hereby dismissed.
s The notice shall be amended by substituting for the words "A Recommended Order
of a Trial Exanuner" the words "A Decision and Order " In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be further sub-
stituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, in which the parties were represented by counsel, was heard
before Trial Examiner Owsley Vose in Paris, Illinois, on December 14-18, 1959,
upon the complaint of the General Counsel and answer of Stewart Hog Ring Com-
pany, Inc., herein called the Respondent. Counsel for the General Counsel presented
oral argument at the close of the hearing, and counsel for the Respondent subse-
quently filed a lengthy but helpful brief. The General Counsel's motion to correct
the record is granted subject to the changes proposed in the Respondent's response
thereto.
The main issues litigated at the hearing were whether the Respondent, by dis-
charging Earl P. Strike and Darwin L. Knight, and by later discharging eight em-
ployees for alleged strike misconduct, has violated Section 8(a)(3) and (1) of the
National Labor Relations Act, and whether the Respondent by other acts and con-
duct has engaged in interference, restraint, and coercion in violation of Section
8(a)(1) of the Act.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, operates two plants at Paris, Illinois,
where it manufactures and processes wire parts. Most of its business is done on a
contract basis for other manufacturers, such as Westinghouse and Nutone. In the
course of its operations it receives from out-of-State sources raw materials valued
in excess of $50,000 annually. The Respondent. as it admits, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America , District 50, is a labor organization within the
meaning of Section 2 (5) of the Act.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The organization of the Union
In the first half of 1959, United Mine Workers of America, District 50, herein
called the Union, succeeded in organizing one of the local factories in Paris, the
Markel Broom Company. This led to discussions among the employees of the Re-
spondent's plants concerning the benefits of joining a union. Oria McDaniel, one
of the employees at the Respondent's plant No. 2, a small plant in which plating
operations are carried on, communicated with Louis Austin and Steve Galati, repre-
sentatives of the Union, sometime in June 1959. They came to McDaniel's house
about June 20 and, after a lengthy discussion, gave McDaniel pads of union author-
ization slips. During the next 3 weeks Union Representative Austin talked with
approximately half of the employees in the Respondent's two plants in an effort to
interest them in the Union. Among those with whom Austin talked were Earl P.
Strike and James Floyd, whom he visited at Floyd's home on July 7. After Strike
and Floyd agreed to help in the organizing efforts, Austin gave them pads of author-
ization slips which they split up and gave to other employees.
About this same time, a preliminary organizing meeting was held on the court-
house lawn. A few days later, on July 11, about 35 to 40 employees attended a
meeting in the courthouse at 7 p.m. After Representatives Austin and Galati ex-
plained the benefits to be derived from organizing, 'officers were informally selected.
Strike was chosen president; Floyd, vice president; and Darwin Knight, secretary-
treasurer.
2. President Stewart's talks and bulletins to the employees
Just before the employees left for their vacation on June 26, James O. Stewart,
the Respondent 's president ,- made identical speeches to the employees at both plants.
The Respondent's plants were closed down for vacations from the night of June 26
until the morning of July 7. These speeches, which were read to the employees by
Stewart, are as follows:
Every man's life has passages during which he must think for himself. We, at
Stewart Hog Ring, now are confronted by one of the most important of those
times You are being4uasked to join an organization completely foreign to the
group of which you now are a part. This is not being done to right a wrong or
to ease a hardship. It would not be done unless profit is to be made and this
profit must come from you. Remember, you now are members of the finest
working organization in this community. The majority always has ruled here
and every man knows he is welcome to discuss any work problem in the front
office. Our management believes and has proved it can do more for you than
any third party. All labor issues have been investigated thoroughly, settled
promptly and in every instance the company has done everything in favor of
the employee it was possible for it to do.
Think before you would vote to disrupt honest management.
It is good to wish you a pleasant vacation and to invite you to discuss any
work issue upon your return.
On July 9, 2 days after the employees had returned from their vacations, the Re-
spondent issued "Bulletin #3" to the employees, as follows:
Proponents of union operation have stated some of our employees would not
have jobs unless they signed cards. This not only is untrue but a direct viola-
tion of Federal law.
Whether you join or do not join will have absolutely no bearing on your job
EXCEPT as it influences the company. We have told you there is no need for
a union in a small plant where management encourages front office discussion
of any work problem We have stated our honest opinion that fair manage-
ment is by far your best leader in job shop operation, which is this kind of
plant. Business is placed where business confidence can be placed. We know
all of our jobs except the few required for making Hog Rings depend on the
confidence our customers have in this management-confidence they do not
have in any third party-and this includes the union asking for your support.
We suggest you sign an application card only if you want to be a union mem-
ber. Do not sign to avoid discussion of the issue. You are not obligated to
discuss it and there may not be an election for registering either approval or
disapproval. ,
STEWART HOG RING CO., INC.
STEWART HOG RING COMPANY, INC. 317
As noted above, the Union scheduled a meeting at the courthouse for 7 p.m. on
Friday, July 11. Earlier that day the Respondent issued two bulletins to the em-
ployees dealing with the organizational drive. Bulletin #5, entitled "Day of Deci-
sion," is as follows:
THE TIME HAS COME TO DECIDE WHETHER YOU WANT TO CON-
TINUE TO REPRESENT YOURSELVES ON AN INVITATIONAL BASIS
OF SETTLING ANY WORK PROBLEM OR GRIEVANCE INSTANTLY
AND DIRECTLY WITH ME-IF ANY SHOULD OCCUR-OR IF YOU
WANT TO PAY SOMEONE TO ARGUE FOR YOU.
CHOOSE BETWEEN PRESENT RATES WITH STEADY WORK AT
OVERTIME-AND WORK CONDITIONS WHICH ARE NOT BAD-AND
HIGHER RATES WITH SHORTER HOURS THAT WILL NET YOU LESS
MONEY-WITH NO CERTAINTY OF WORK A DAY IN ADVANCE BE-
CAUSE OF DECREASING VOLUME AS OUR WORK GOES TO OTHER
FACTORIES.
DECIDE WITH ME AND WE GO ALONG AS WE HAVE FOR 34 OF
THE LAST 35 YEARS.
DECIDE WITH THE UNION SEEKING YOUR MEMBERSHIP, THE
COMPANY CANNOT AND WILL NOT ADVISE YOU FURTHER. YOU,
LIKEWISE, WILL NOT HAVE ACCESS TO HELP FROM THE NATIONAL
LABOR RELATIONS BOARD-THE FEDERAL AGENCY THAT CERTI-
FIES ALL LEGAL UNION REPRESENTATION-BECAUSE THIS UNION
IS NOT RECOGNIZED AS LEGITIMATE BY THAT BOARD.
DECIDE, BOYS, BEFORE MORE DAMAGE OCCURS TO BOTH OF US.
STEWART HOG RING CO., INC.
The other bulletin was headed "What Makes a Job Shop Different." This bul-
letin, in substantial part, is as follows:
We have described the vast difference between finished goods manufacture
as done in other Paris plants and job shop work in making components as done
here. I have told you, quite honestly, I believe this plant would fail under
union domination. Our customers simply will not place orders when there is
any possibility of work stoppage. They have so stated to me and some orders
now have been cancelled. We will run out of work in a few days for all except
a handful of men unless these orders are re-written or replenished. I am the
only man in the world who can get this done and I will NOT do it if our costs
are to be increased. The present profit to this company-for all of your work
and all of my investment-amounts to less than 2¢ per hour per man.
* * * * * * *
I am not telling you and will not tell you to join a union or ask you not to
join one. I'm meeting a moral responsibility to you and exercising a legal right
in telling you truthfully what the score actually is. I have urged you to show
usual and expected loyalty to the leadership you now have-leadership that is
personal and friendly and free-and not to be misled by agitation that is begin-
ning to hurt you. Our customers have been told of organizational work in our
group so they could take any steps they considered necessary to avoid disaster
to their production lines. Customer reaction has been most unfavorable, as is
inevitable to anything affecting deliveries. Lay-offs have commenced and only
men necessary for current production will be retained. We will do everything
reasonable to keep the greatest number employed but buyers are not to be
convinced when our ability to deliver-and at today's prices-are in doubt.
The ammunition I need , gentlemen, is tangible evidence that a majority of you
want to follow my leadership and that of my supervisors for as long as we
work for your best interests. This evidence will be rushed by airplane to the
buyers and, with it, I honestly believe the damage can be corrected. Conversely,
should a work stoppage occur, the customers' dies and fixtures would be re-
moved from our plant and taken to other factories. They never would return
and all the jobs that go with them would be lost forever. Don't let that happen.
* * * * * * *
If the plan we now are following and hope to follow in the future does not
appeal to you or if you honestly want to try different conditions of work or
rates or hours, we must suggest you change your allegiance and place of work.
It simply will not benefit either of us for you to attempt re-making of this plant.
This lay-off and others, if unavoidable, will be as light as our lessened pro-
duction, now curtailed by customer anxiety, permits. Those retained are, in
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our opinion, most valuable to the company. This is strictly in accordance with
established precedent and exactly as explained at time of hiring.
Simultaneously, the Respondent laid off 24 of its then complement of 108 employees.
3. The Respondent's interrogation of employees
About June 26, James O. Stewart, the Respondent's president, came up to James
L. Smitha, the Respondent's tool- and die-maker, and asked whether he "had ever
been approached by the Union." When Smitha admitted that he had, Stewart com-
mented that "they had had a union before, . and that they had closed him down
for 6 months . because he couldn't make any promises or exact statements of
when he could deliver goods or he couldn't quote any exact prices because of the
union." i
Stewart had a further conversation with Smitha in the plant a day or two after the
July 11 meeting at which union officers had been selected. The conversation oc-
curred at John Binole's work station.2 Stewart, after referring to the election of
Strike and James Floyd as officers in the Union, asked Smitha whether he wanted
to be represented by them, and commented that Smitha was more capable of looking
out for his interests than Strike and Floyd were.3 Stewart went on to say that he
probably would not benefit from the Union "because in most union shops they only
work 40 hours and if the guys don't have any particular work for you you would be
sent home . because each man was more or less classified in different classifica-
tions and if they didn't have any particular work for that man he doesn't do anything
else " At that time Smitha was working 51 hours per week.4 Stewart also said to
Smitha on this occasion that "if I wanted the union in the place I should go work
where the union was " 5
About this same time Russell Sandstead, superintendent of both plants, told James
Floyd that he had heard that there were 70 percent already signed up for the Union,
and asked him whether he had signed a card.6
On July 13, Earl Strike, the union president, was filling the tank of the Respond-
ent's truck with gasoline at the Stewart farm south of Paris. Stewart came up to
him as he was doing so, and said, according to Strike's credited testimony:
. "What is this I hear about you being a big wheel with the union?" And I
said, "I don't know what you are talking about, Mr. Stewart." He says, "Don't
lie to me, I know all about it, I know about your meeting and I know every-
thing that is going on ." He says, "Let me tell you something, if you don't
know nothing abokt a union you better keep away from these guys because they
are after you and once you get it will take every dime you got for union dues."
And I said "Mr. Stewart, just a minute, I was with the Greyhound for 20 years
and was in the B.R.T.. . .
He said he didn't give a "D" thing about that, "What I want you to do is to
go down and tell them fellows to cut out this union activity, I don't want a
thing to do with it; and, furthermore, if you don't, I should fire you right now."
And I said "Mr. Stewart, I don't know what you are talking about. If there is
any union activity, in the long run you will see through it. It will benefit you
as much as the employees."
' Stewart admits having this conversation with Smitha.
s Smitha testified that the conversation at which Binole was present occurred in August
I believe that Smitha in his testimony was confusing the two conversations I find, in
accordance with Stewart's testimony, that the August conversation took place in Stewart's
office, and that on this occasion, when Smitha sought to find out about reports that he
was trying to organize another union, Stewart stated that he had not received any such
reports
3 When questioned about this incident, Stewart testified
I was telling to Johnny about something else How unionism came up I have
no knowledge at the moment But I stated to Jim that in my opinion he could
figure things out for himself, that anything I would attempt to tell him would be
superfluous, that is again in my opinion
* Stewart was not questioned about this statement
e According to Stewart, he told Smitha on this occasion that if he felt he must work
in a union plant, there were union plants all over the country, that his services would
be in demand at such plants, but that he hoped Smitha would not leave I credit Smitha's
testimony set forth in the text above.
9 This is the testimony of Floyd which is substantially corroborated by Superintendent
Sandstead.
STEWART HOG RING COMPANY, INC. 319
Stewart also stated that he knew all about the union meeting and who were elected
officers, and added, after naming the three officers, "Two of my best men, I just can't
figure you out." Shortly thereafter, as Strike was loading a jig for another em-
ployee in the plant, Stewart stopped and said, "I want to tell you something, Strike,
I want this union stuff cut out in the factory." Strike replied, "I wasn't talking to
nobody, I was standing right in my factory position."'i
4. President Stewart's talk of July 15 and his polling of employees as to their
union sympathies
According to President Stewart's testimony, which I credit, on July 15 he read a
prepared speech to the employees in plant No. 1, the Respondent's main plant,
shortly before the end of the workday. The speech was given in the recreation
room of the plant. At the close of the speech Stewart requested the employees to
vote on the question of union affiliation. The text of the speech, as furnished by
the Respondent, is as follows:
Boys, we have called you here--on company time-to discuss a situation
that is just as much an enemy of yours as it is of mine. It is so serious that,
like a fire, it can consume years of my work and destroy the jobs of 9 out of
every 10 men in this room. Now just as I have stressed that everything I have
told you is what I honestly believe, this likewise is my opinion. It is based
upon my knowledge of the production of this business from the germ of an idea
in a customer's product development laboratory to our delivery of parts to their
assembly lines. You know damned well it is authentic. "I'll accept any verdict
you reach but-for the good of everybody affiliated with this company-all of
us want that verdict based on fact and complete information . This message is
to inform you and advise you legally. It is not to scare you or threaten you
with coercive intentions.
We are concerned about work in sufficient volume to see you boys employed.
Haven 't written an important contract since the organizing started early in May.
We are scraping the bottom of the barrel now. Twenty-four (24) men were
laid off last week and others will follow because that much damage already has
been done. You see, we told our customers about the organizing at once, as
we had to if we were to retain their confidence . Without confidence there can
be no future business . Confidence is our most important product. It is the
life-essence of your jobs-and we propose to defend it for all of you. Con-
fidence must be earned. It is the result of an honest policy over the years of
fair dealing and, most important of all, of preventing work stoppage in the
customer's plant by on-time delivery without falldown. Most of you remember
when Bud Milbourn left our employ in May of last year. All of us liked
Bud and recognized his ability but we had to let him go-impartially-because
he let Dominion's Production Line go down. This was the first time this had
ever happened but explain as we did, we just haven't done anything of im-
portance for Dominion since. That loss of an important customer hurt us to
beat hell and cost at least 15 jobs. Dominion just now is beginning to order
again Confidence is a fragile thing but terribly important. This kind of con-
fidence is placed only in the owners of a small business. It cannot stand the
possibility of work stoppage. Work stoppage or the threat of it is the only
method this union has of-as they say-putting on the pressure. This union
does not have the sanction, the indorsement or the certification of the National
Labor Relations Board. It is Lewis' union that-with all its "benefits"-has
destroyed the jobs of thousands and brought the kiss of strangulation to whole
mining communities. Right now many broom factory men are unhappy to
learn the cards they signed authorized the Union to order company deduction
of an unspecified amount from their wages.
Now, boys, the majority always has ruled in this plant. It always will, too-
at least as long as I'm running it. We are going with you just as far as we can
But we think-and I believe-neither of us is going anywhere with a union in
this job shop plant where production is a daily thing We cannot build for
advance delivery-we cannot store or warehouse-production regularly is on a
weekly basis and it frequently is on a daily basis. In the past all the benefits
° Stewart, while recalling a conversation with Strike , denied having made substantially
all of the statements above referred to. Most of the statements attributed to Stewart
are wholly consistent with Stewart's strong opposition to the Union, as revealed in his
own letters , bulletins, and speeches to the employees . Strike impressed me as a generally
credible witness and I credit his testimony in this regard
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we could afford that unions demand in other plants have come to our men
without fuss and for free. We keep step with other plants doing similar work.
The May increase, granted in advance of a real upswing in business but because
we expected it, actually was delayed by the wrangling at Midwest.
This brings us back to where we started. We were discussing lack of business
and work caused by the uncertainty you and I alone can sweep away. Our
efforts toward that end in the future will depend greatly on where we stand
now. We could learn by a show of hands-but I don't want to know your
individual thinking on a majority rule basis. Suppose we vote on it by secret
ballot right now in our first aid room.
Stewart also read the same speech to the employees at plant No. 2.8
Pursuant to Stewart's request that they vote on the matter, when he finished talk-
ing the employees filed through the first-aid room, one at a time, where they voted
for "UNION" or "NO UNION." This was the choice given the employee on bal-
lots prepared by the Respondent. After marking the ballots under the appropriate
words with a check or a cross, the employees dropped the ballots in a slotted box
furnished by the Respondent for this purpose. The balloting was conducted in secret.
It does not appear that the Respondent publicly announced the results of the vote.
However, Stewart credibly testified at the hearing that when he counted the ballots
2 days later he found 11 votes marked "UNION," 36 votes for "NO UNION," and
31 blank ballots.
5. The discharges of Earl Strike and Darwin L. Knight
As noted above, Strike had been chosen president of the Union and Knight,
secretary-treasurer, at the union meeting on July 11. They were the Respondent's
two long-distance truckdrivers On Saturday, July 18, at 4 p.m. Stewart sum-
moned Strike and Knight to his office and informed them that they were being dis-
charged, telling them, as Knight testified, that "he was terminating the trucks and he
would have no further use for us." Stewart asked the men to come back the fol-
lowing Monday for their paychecks, explaining that the office force had already left
for the day. Stewart did not offer the men any other jobs in the plant, although
both men had previously spent over 35 percent of their time in nondriving duties.9
Knight had performed many different jobs in the plant during his various periods
of employment over the past 10 years, as Stewart admitted. Strike had worked
mainly in the shipping department when he was not driving a truck. The balance
of his time, when not truckdriving, was spent in maintaining the trucks and doing odd
jobs around the plant. It was a common practice in the Respondent's plants for
employees to be transferred from one operation to another Stewart testified that
neither Strike nor Knight was a capable worker at jobs in the plant.
When Strike and Knight came in the following week for their paychecks, Stewart
mentioned that they might want to buy the trucks. Strike subsequently informed
Stewart that he would not consider such a proposal, saying, "I am going to stick
with the boys." When Knight later sought to explore Stewart's proposal in this
regard, Stewart refused to discuss the matter.
Stewart had not previously discussed with the men the discontinuance of the over-
the-road trucking operation, although he had at various times complained to them
about the costs of operating the trucks, particularly at times when he was faced with
a heavy repair bill or some similar expenditure on the trucks. Stewart admitted that
he did not make the decision to discontinue the trucks until he called Strike and
Knight into his office. The Respondent made no further long-distance deliveries with
its own equipment after July 18.
The Respondent contends that Strike and Knight were discharged as a result of its
decision to discontinue making its own deliveries, an operation which had long been
a losing proposition. The facts concerning this contention and other facts bearing on
the discharge of Strike and Knight are discussed hereinafter.
8 Some employees testified at the hearing concerning Stewart's talk on this occasion.
T find nothing in their testimony which is seriously inconsistent with the version quoted
In the text above which I have credited There was some disagreement in the men's
testimony as to whether Stewart read the speech verbatim or merely glanced at it occa-
sionally as be was talking. The preponderance of the testimony persuades me that
Stewart read the speech, with few deviations from the prepared text, if any
O This figure is based upon a stipulation of the parties that Strike earned $1,724 03
from his nondriving duties and $3,173 48 for his work as a truckdriver in the period of
July 1, 1958, to July 1, 1959, and that Knight earned $716 27 from his work in the
factory and $1,124 86 for truckdriving from February 2, 1959, to July 18, 1959
STEWART HOG RING COMPANY, INC. 321
6. The Respondent 's refusal of the Union 's requests for recognition ; the Respondent's
subsequent bulletins and letters discussing the anticipated strike
On July 16, Fred Thomason, the Union's regional director at Terre Haute, Indiana,
wrote the Respondent a letter in which he asserted that the Union represented a sub-
stantial majority of the Respondent's production and maintenance employees and
requested recognition as their exclusive bargaining representative. That same day,
without waiting for the letter to reach the Respondent, Union Representatives Austin
and Galati called on President Stewart at the plant. They informed him that the
Union represented a majority of the employees. Stewart at once challenged this
assertion. This led to a somewhat angry exchange of words. After the discussion
calmed down, the Union requested Stewart to agree to a check of the Union's authori-
zation slips or a privately conducted election. Parenthetically, it should be stated
that the United Mine Workers of America and its subdivisions had not filed the affi-
davits and statements required by Section 9 of the Act and consequently could not
avail themselves of the facilities of the Board for election or other purposes. The
meeting terminated with Stewart taking the position that the Respondent was not
going to recognize the Union under any circumstances.
The next day, July 17, the Respondent put out Bulletin No. 7 in which it reiterated
that "We cannot afford a work stoppage and neither can you because of the perma-
nent damage resulting therefrom." The bulletin then went on to state the Company's
opinion that the employees would be the first ones hurt if the Company got into
financial difficulty because of a strike.
On January 20 the Respondent mailed personal letters to the employees in which
it again referred to the possibility of a work stoppage at the plant. A typical letter
is as follows:
STEWART HOG RING CO., INC.
PARIS, ILLINOIS
JULY 20, 1959.
HOW IMPORTANT IS YOUR JOB?
Mr. ORIA MCDANIEL,
912 Broom Street,
Paris, Illinois.
DEAR ORIA: It's very important to us and, we believe it is to you. You, to-
gether with the other employees, are half of the team that is mighty important
to our customers. It is the customers who actually employ us both. Our record
in the past has caused them to trust us with their production. They would be
seriously hurt if our shipments to them should fail-even for a day. All the
dies and fixtures and processes belong to the customers. They have paid for
them. They would have them rushed to other plant so their parts manufacture
could be re-established.
That would be a black day for the entire team-for the company and for all
the men. Both of us depend on the production that would go to other plants.
It would not return. We live by this production-you and I. We must not give
our customers cause for removing those tools. We must keep production
going-to protect the company, yes-but to protect the employees, also-those
who, at the moment, may want to idle as well as those who want to work. We
respect employee's right to organize and join an organization-although we fail
to see a need for such organizing in a plant where management is doing all it
can for the employees. We respect the right to picketing,,if legitimate in con-
duct and number . No discrimination will be made or tolerated for legitimate
acts. Your right to refuse joining a labor organization also is respected as is
the right of protection for your person and your property. Discrimination
against folks who like things as they are, likewise will not be tolerated
A work stoppage for our plants is rumored and-if it should occur-we urge
you to report for work as usual. Be tolerant of the other fellows' views. We
also urge you to show not only your desire to form your own opinion but your
ability to do it. Defend your right to work, Oria, and save the jobs we have. I
give you this as my opinion but you know it to be true and necessary.
Very truly yours,
[S] JIM STEWART,
STEWART HOG RING CO., INC.
JOS:maw
On the morning of July 21, Union Representative Austin and Regional Director
Thomason met with President Stewart, his nephew, U. G. Stewart, who acts as
599198-62-vol 131-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Stewart's assistant , and Robert L. Gibson, their attorney. They again re-
quested the Respondent to agree to a privately conducted election or to have some
local reputable official, such as the local judge, the mayor, or the sheriff, check the
union authorization slips against the company payroll. President Stewart referred
all questions to Attorney Gibson. Gibson stated that the Respondent "was going
to stand firm in its position and was not going to concede anything," and that the next
step was up to the Union. Austin testified that he believed that the Union mentioned
that the Company's position left the Union no alternative but to call a strike. I find
that all of the representatives at the meeting understood that a strike was the Union's
next step.
7. The calling of the strike; the Respondent's bulletins to
employees during the strike
Upon leaving the meeting with the Stewarts and Attorney Gibson on July 21, the
union representatives went to plant No. 2 and conferred with James Floyd, the vice
president of the Union,10 and the other employees at plant No. 2. They decided to go
out on strike immediately and did not go back to work after lunch. Two men im-
mediately started picketing that plant.
After meeting with the employees at plant No. 2, the union representatives looked
up Earl Strike, the president of the Union who had been discharged the preceding
Saturday, and it was decided to hold a meeting on the courthouse lawn. Some 35
or 40 employees of both plants attended. It was decided that the employees of
plant No. I would go out on strike commencing with the first shift on the following
morning.
Instructions were given at this meeting by Representative Galati that the pickets
should not come on the picket line drunk, that they should stay off company prop-
erty, and should stay far enough apart so as not to interfere with men going in and
out of the building. A question was asked how they were going to keep the men
from going to work. Galati replied that they realized that some of the men would
go through the picket lines, and added cryptically, "It gets dark, you know" or
words to this effect."
On July 22, the Respondent sent another bulletin to the employees announcing
that the plant was remaining open for work and expressing the hope that they
would return to their jobs without delay. The bulletin stated, among other
things, that "We cannot guarantee these jobs will remain open to you because im-
portant customers, already have directed us to deliver their tools and dies to other
manufacturers who will complete the contracts."
8. The strike; incidents of alleged misconduct engaged in by employees
during the strike
a. Preliminary statement
As will appear more fully hereinafter, on July 31, 1959, the Respondent dis-
charged Harry Farris, Milo Schlosser, Jay Acklen, Robert Hewitt, George Whitte-
more, John Duke, Harry Woody, and Oria McDaniel because of certain conduct
during the strike. Because the complaint challenges the legality of the discharge of
these eight men, it is necessary to consider in some detail the events of the strike,
with particular reference to the conduct of these men.
b. The so-called "mass picketing" on the morning of July 22
The day shift at plant No. 1 begins at 7 a.m. Pickets and union sympathizers
commenced arriving at the main entrance to the plant about 6 a.m The main
entrance door was in a recessed areaway one stop off the surface of Union Street, a
public thoroughfare. The entrance areaway is 15 feet wide at the outer wall of
the building, which is right on the street. The entranceway is 10 feet wide along
the inside wall where the door is, and is almost 30 inches deep. Robert R. Henson,
who was opposed to the Union,12 arrived at the plant at 6:30 a.m. He walked over
10 Floyd drove a truck between the Respondent's two plants
n This finding is based on the testimony of Robert Henson, and was inferentially
corroborated by Robert Grable's testimony that one of Galati's favorite remarks to the
pickets was that "nighttime guards a lot of secrets." The strikers uniformly denied
hearing Galati make such a statement. Galati was not called as a witness. I credit
Henson's testimony.
12 Henson had informed Harry Farris the day before that he would have no alternative
but to work during the strike.
STEWART HOG RING COMPANY, INC. 323
and talked to Harry Farris. Farris told him that he would hate to cross the picket
line if he were Henson, and urged him to wait a few days at least before doing so.13
Henson then left the area and joined a group of nonunion employees who had
previously agreed to meet on a street corner a few blocks from the plant. About this
time or a little later Grant Dawson walked into the plant without any difficulty.la
For a period of some 30 to 40 minutes commencing between 6:30 and 6:45
a.m. some 10 to 15 pickets gathered on what has been referred to as the bottom step
of the main entrance to plant No. 1 on Union Street.15 In addition, there were a
number of union sympathizers milling about in the street in front of the main
entrance. There is considerable discrepancy between the testimony of various wit-
nesses as to the number of additional persons in the street. I find, in accordance
with the testimony of Lawrence Bishop, the chief deputy sheriff of Edgar County,
and the acting sheriff of the county at the time, that there were some 20 to 25 addi-
tional persons milling about in the street in front of the main entrance.16
The men standing in the entranceway were described by the Respondent's wit-
nesses as forming a "line" or standing "shoulder-to-shoulder." Harry Farris, a
witness for the General Counsel, referred to the men as standing in "checkerboard"
fashion. He also testified that the composition of the group of men standing in
the entranceway frequently changed as one man joined the group and another
stepped out in the street. According to Farris' testimony, he was among the group
in the entranceway for about 5 minutes.
Only about three nonstriking employees approached the main entrance during
the height of this picketing. About 6:45 a.m., Joe Elam, a very short, lightly built
man started across the street to the entranceway. According to his credited testi-
mony, there were 35 to 40 men milling about him in the area at the time. Harry
Farris said to him, "Joe, you told me you wouldn't come in today." 17 Elam replied
that he had changed his mind. In the course of further conversation, Farris ap-
pealed to him, as Elam testified, "Would you walk across in front of I and Jay,
because we are good friends." At this point Elam turned around and left.
George Spencer arrived shortly before 7 a.m., the usual reporting time. Upon
observing the men lined up in front of the door, he did not attempt to enter the
plant. Spencer then joined the group of nonunionmen who gathered on a street
corner a few blocks from the plant. A few minutes after 7, this group of nonunion
employees walked down by the main entrance to the plant. At this time, according
to Spencer's testimony, "about thirty men jumped out in front, they didn't do any-
thing, they stood out there, they acted like they was going to stop us, but they didn't."
Henson, a witness for the Respondent who was in this group of nonunion employees,
credibly testified as follows concerning this incident: "We just walked down there.
A few of them, a lot of them met us on the sidewalk just before we got there.. . .
we met face to face there on the sidewalk." When asked "what, if anything oc-
•curred?" Henson answered, "Nothing at the time. He [Milo Schlosser] asked
me what we was doing and I said `nothing in particular, we come down to see what
was going on' I reckon if we was altogether we would have gone in."
During the' "mass picketing" George Yonce was driven up in front of the main
entrance to the plant by his wife. As he started to get out of the car, Harry Farris
came up to him and said, according to Yonce's credited testimony, "George, I
wouldn't go in there. . . . if I went in there I wouldn't have a friend out here."
Farris further stated on this occasion, "George, you know what the situation is
here at this plant. You have been here longer than I have. If you don't want to
help us picket, why don't you go home, at least give us a chance to win this thing." 18
13 The foregoing finding is based upon a blend of the testimony of both Farris and
Henson
14 While Milo Schlosser testified that Dawson entered the plant while the shoulder-to-
shoulder picketing was in progress, I find, in accordance with George Whittemore's testi-
mony, that Dawson went in about 6 -30 before the line of pickets was set up.
15 President Stewart testified that this picketing continued until about 9 am The
preponderance of the testimony, however, is in accordance with the facts related above
President Stewart's own handwritten notes carry the notation that this picketing con-
tinued "until dispersed by Edgar Co sheriff at 7 •30 CST "
16 These may not all have been union sympathizers Harry Farris credibly testified that
some townspeople, curious to see what was going on, were among the crowd
17 On the previous afternoon Elam had told Farris that although he disapproved of
unions, since Farris and Jay Acklen, active union adherents, were good friends of his, he
would stay home and work his farm during the strike.
1s This is Farris' testimony which I credit
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The group of men standing in the entranceway and the milling about in the street
continued, as above indicated, for from 30 to 45 minutes, until Deputy Sheriff
Bishop gave orders to one of the union representatives on the scene that the strikers
would have to stop milling about in the street and that the picketing would have to
be confined to those carrying signs on their backs who were regularly patrolling
back and forth in front of the entrances. As Bishop testified, his orders concerning
the picketing were promptly complied with. After the union sympathizers were
dispersed by the sheriff, George Spencer entered the plant through the main entrance.
This was about 8:15 a.m. There is no evidence that any of the pickets hindered
him in any way. About an hour later Joe Elam entered the plant in the company
"carryall" by the side entrance.
From about 7:30 a.m. on July 22, the picketing was normally confined to two
men per entrance, although at times during the first day or two there may have been
six or more men picketing the various entrances. After the first day or so the
Union worked out schedules for the picketing, each man picketing an hour or two,
and then taking time off. In the process there were frequent changes of shifts of
pickets. These were timed to coincide with the Respondent's changes of shifts, so
on occasions four or more pickets would temporarily be in the area of the plant
entrance.19
c. The incidents of July 23
(1) Woody's alleged blocking of the plant driveway
As one of the grounds for discharging Harry Woody, the Respondent cites an
incident involving Joe Elam which occurred when Elam reported for work on the
morning of July 23. According to Elam's testimony which I credit, as he was turning
into the driveway on the east side of the plant in his truck, Harry Woody waved his
arms, tried to walk in front of him, and "motioned his fingers" at Elam, but Elam,
as he testified, "pulled over to one side and went around him."
Although Elam indicated in his testimony that he reported this incident to President
Stewart, I find, for the reasons stated below, that he was mistaken in this regard.
President Stewart made detailed notes in his own handwriting concerning reports or
instances of strike misconduct. These notes were introduced into evidence by the
Respondent. They contain no record of any such incident, although they do record
other incidents of like character, including others reported by Elam.
(2) Duke's alleged threat to Merrick
The Respondent relies on an incident involving Jesse Merrick as its sole ground for
discharging John Duke. During the strike Jesse Merrick accepted employment with
the Respondent as a watchman. When Merrick reported for work the first time on
July 23 at 3:50 p.m., John Duke, a striking employee, was at the union headquarters,
a rented house diagonally across the street from the main entrance to the plant.
Upon observing Merrick getting out of his car, Duke hollered at Merrick, "Jesse,"
"Don't you go in there or I will get you," and pointed his finger at Merrick.20
Although Merrick testified that Duke was a friend and former neighbor of his and
that "John had done many a favor for me and they [the Dukes] are awful nice
people," he also stated that he thought that Duke meant to harm him, not at the plant
but after he had left the plant.
(3) Woody's following of Elam
One of the reasons assigned by the Respondent for the discharge of Harry Woody
was his following of Joe Elam on July 23. On this occasion Woody and Vernie
Wilhoit were sitting in Wilhoit's gray Studebaker on Buena Vista Street. Observing
Elam leaving the plant in his truck at 4 p in. they followed him east on Union Street
19 President Stewart testified that as many as a dozen or more men picketed the Buena
Vista entrance to the plant at times during the first day of the strike. He further testi-
fied that at unspecified times during the strike he observed three or four pickets "sur-
rounding" men attempting to come in to work. Stewart was unable to give any specific
instances of ingress to the plant being barred in this manner, and no other evidence of
such incidents was adduced by the Respondent. I find that Stewart, in the above
testimony, was exaggerating the extent of the picketing, and that the facts are as se; forth
in the text above.
20 This Is Merrick's testimony Duke, when asked, "Did you say to him I will get you,"
replied, "No, I don't believe I did. I don't even remember ever saying anything like that
to anybody " I credit Merrick's testimony
STEWART HOG RING COMPANY, INC. 325
for 6 to 10 blocks, turned right behind Elam on one of the streets past High Street
for a block or two, and then turned right again in Wood Street and followed Elam
driving west on Wood Street until they came near to the public square. At this point
Elam turned off Wood Street and stopped. After he turned off, he looked back and
saw Woody motioning his finger at him. Wilhoit and Woody continued west on
Wood Street, at one point passing within a block or two south of the plant. Although
Woody testified that Wilhoit was driving him home, Woody lived northwest of the
plant, and the following of Elam took place entirely in an area southeast of the
plant.21
(4) The cutting of Elam's fences
The Respondent has given as one of the explanations for discharging Jay Acklen,
Harry Farris, and Oria McDaniel their alleged involvement in the cutting of Joe
Elam's fences on the night of July 23.
The facts concerning this incident, according to Elam's credible testimony, are as
follows: Elam lives on a gravel road about 11 miles from Paris. Although this
road is 5 miles from a State highway, cars pass by the house quite frequently. On
the evening of July 23, between 8:30 and 9 p.m., after he had gone to sleep, he was
awakened by several cars passing by the house. It was almost dark at the time and
the moon was out. The cars had their lights on. The first car passed by -without
his seeing more than its taillights . His son , aged 13 , who was sleeping in the same
room, commented that the second car was a gray Studebaker. He and his wife agreed
that this was so. Then another car passed by which they were unable to identify.
The next morning after Elam had gone to work, Mrs. Elam discovered that the
wire fences on both sides of the road near their house had been cut, the gate was
open, and some of their hogs had gotten out. This was reported by Mrs. Elam to
President Stewart, who later that day came out and repaired the fences.
When Elam was asked at the hearing whether he knew who owned the gray Stude-
baker which he had seen driving by before the fence cutting, he answered, "Jay
Acklen drives a car just like " It does not appear however, that this information
was passed along to President Stewart.
As to Farris and McDaniel, the Respondent's basis for charging them with par-
ticipating in the fence cutting rests on the testimony of Robert Grable. Grable testi-
fied that, although he never reported it to Stewart, a day or two before the fence cut-
ting occurred he heard Oria McDaniel, Harry Farris, Earl Strike, and one of the
union representatives talking about cutting Joe Elam's fences to release the live-
stock. Grable testified further that he had originally planned to participate with
McDaniel and the others in this activity. However, Grable continued, his wife had
other plans for him and he did not join the group but went to the plant instead. There
he asked one of the boys where McDaniel was and was told, "They went out to Joe
Elam's."
Neither Farris nor McDaniel was questioned about cutting Elam's fences. I credit
Grable's testimony about overhearing Farris and McDaniel discussing cutting Elam's
fences. However, since, as Grable testified, he did not inform the Respondent about
this conversation until a few days before the hearing, months after the discharges,
their participation in the incident, assuming they did so, could not have been a factor
in the discharge of Farris and McDaniel.
d. The Bert Hart incident on July 28
In connection with the discharges of Jay Acklen, Harry Farris, Robert Hewitt,
Milo Schlosser, and George Whittemore, the Respondent relies in part on an incident
which occurred when Edna Hart came to pick up her husband after work on July
28. In some respects the testimony concerning this incident is in conflict, particularly
with regard to whether Jay Acklen was a participant. Both Mr. and Mrs. Hart in
their testimony included Jay Acklen in the group of five strikers involved, and
21 A similar incident occurred on this same afternoon after Archie Hickel left the plant
at 4 p.m. However, this incident was not reported to the Respondent prior to the dis-
charges Hickel's testimony indicates, and President Stewart's notes confirm, that the
only incident reported by Hickel involved cars stopping in front of his home later that
evening Accordingly, I will not go into the details concerning this incident. It should
suffice to state that Milo Schlosser and George Whittemore in Schlosser's car followed
Archie Hickel and Hayden Piper in Hickel's car for many blocks over a rectangular
doubling-back route which involved stops at both the sheriff's office and the police depart-
ment and at least four or five left turns The following was resumed when Hickel dropped
Piper off at his home, and continued all the way to Hickel's home
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluded Gary Markwell. Acklen himself testified that during the incident he was
sitting on the porch of the union headquarters across the street from the plant
entrance and that the strikers involved were Hewitt, Farris, Schlosser, Whittemore,
and Gary Markwell. Farris and Schlosser both testified to the same effect. I accept
the. mutually corroborative testimony of these men, and find that Acklen was not
involved in this incident, and the Harts in their testimony were confusing Gary
Markwell with Jay Acklen.
When Edna Hart arrived at the main entrance to the plant about 4 p m. she
drove past the entranceway a foot or two and stopped her station wagon about 3 or
4 feet away from the wall of the plant. When she first stopped, Hewitt was in front
of the car walking toward it, and Farris and Schlosser were walking directly in
front of the main entrance. Observing Hart coming out the door, Farris and
Schlosser stopped, and Farris said, "How are you doing, Bert?" Hart replied,
"Better than you are. I have got a job and you haven't." Farris rejoined, "When I
go back, I will walk in the door and not crawl in that door like you did." Schlosser
spoke up, "You told us you weren't coming in." Hart said, "I told you I was with
the majority." Schlosser stated that "the majority is out here." Whittemore, who
was coming up to replace Farris as a picket, "hollered" from the middle of the
street that "He would like to take [Hart] out behind the building" 22 While this
was going on Hart was walking to his car, some 10 steps away. By the time Hart
reached the front door, Hewitt was opposite that door, and Farris and Schlosser were
behind Hart opposite the rear of the car. Hart, who is larger and huskier than
Hewitt, gave Hewitt a shove, entered the front door and his wife drove off. At no
time during this incident did any of the pickets touch Hart.
Hart testified that Whittemore who "hollered" at him was "a lot smaller" than
himself, and that he was "not afraid of that kind of words." At another point, how-
however, he testified that he was afraid of what Whittemore and "some other guys"
might do to him. However, from his demeanor on the stand, Hart did not impress
me as being easily intimidated.
9. Incidents during the strike involving nonemployees
a. Preliminary statement
At the hearing evidence or acts of alleged violence or threats of violence engaged
in by unidentified persons, also some instances of alleged threats made by union
representatives, for the most part unidentified by name, was received on the theory
that such conduct constituted a part of the background for appraising the actions of
the eight strikers here involved who were discharged because of their conduct during
the strike. In the following paragraphs I discuss the principal incidents cited in the
Respondent's brief to the Trial Examiner.
b. Incidents involving union representatives
Grant Dawson had gone through the picket lines on July 22, but went home be-
cause so few others reported for work. After working July 23, he returned to the
vicinity of the plant that evening. According to Dawson's credited testimony, a
short, chunky, dark-haired man who said he was a union organizer left a group of
pickets standing on the bridge near the plant, stopped Dawson's car, opened the
door, told him not to go in the plant, and warned him that "they are laying for you
up town, but if you won't go into the plant . . . I will tell the boys to leave you
alone " Steve Galati, one of the three union representatives who was directing and
assisting the strikers, was described as a short, heavy-set, dark-haired man. Dawson
credibly testified that another occasion a " union man" (not an employee) told him
if I wanted to drink, I had better stay out of the taverns . they are going to get
you, they are going to take a beer bottle and bust your head up."
Harry Downs accepted a job with the Respondent as night watchman during the
strike. Downs credibly testified that when he first reported for work about I 1 p m.,
"one of the union guys," whom he described as dark-haired and heavy, stated that "it
wouldbe a long ride back home if [he] took the job."
c. Incidents engaged in by persons unknown
During the strike one nonstriking employee had the air let out of a tire and
another had his inner tube slashed. Roofing tacks and nails were strewn on the plant
This is Hart 's testimony. Whittemore denied making any such statement. Whitte-
more's testimony did not impress me as being wholly reliable, especially that part dealing
with the following of Archie Hickel I credit Hart's testimony as et forth above.
STEWART HOG RING COMPANY, INC. 327
driveway on one occasion during the strike. A brick was thrown through the porch
window of the home of Grant Dawson, who worked during the strike, scattering
glass all over the bed in which his wife was sleeping. Large rocks were thrown
against the house of John Crum, a nonstriker, about 1 o'clock in the morning, but
no glass was broken. Also one night during the strike, a small brick was thrown
through a window in .the gasoline station where Harry Downs lived. None of the
victims of this vandalism had knowledge of the identity of the vandals.
10. The return of the strikers to work; the discharge of the eight strikers allegedly
guilty of misconduct during the strike
The Respondent had approximately 84 employees on the payroll, including super-
visors, when the strike began. Between July 22 and 27 several more employees re-
turned to work each day. On July 28 the Respondent posted a sign outside the main
entrance stating that a list of employees for whom work was available was posted
inside. The list so posted contained 31 names. Not included on the list were the
names of 19 employees who were on the payroll when the strike began. From these
figures it appears that at the time the Respondent posted the list on July 28 some
30-odd employees had returned to work.
On the evening of July 28, Strike, the union president, went to the home of
U. G. Stewart, President Stewart' s assistant . After a few pleasantries, Strike asked
Stewart, "Is there any other union that you would consider? You seem to have a
bolt out for this U.M.W.A. and they are not recognized by the American Federation
of Labor. I will get one that is, would that satisfy or justify anything." U. G.
Stewart replied, "Not for job shop, and we don't need no `D' union." 23 President
Stewart telephoned at this point, and U. G. Stewart asked Strike to remain and
hear what he had to say. President Stewart arrived a short time later. After dis-
cussing his problems with Westinghouse and mentioning that "they have lost all
faith in me," Stewart stated ". . . what I have got to do -tomorrow morning when
those doors open, I want 50 men inside that factory." Strike demurred, saying,
"Jim, I can't do a thing for you. These men want a union." President Stewart re-
plied, "These men are not going to have a union ." Strike sought to persuade Stewart
that a union would benefit him. Stewart replied, "I am 100 percent against union
and no union organization is going to run my plant." When Strike argued that
"They are not going to run it and they are going to make conditions better," Stewart
answered, "Hogwash, I will not have a union . If you fellows want to get together on
a shop union I am open for suggestions at any time." Strike said, "Jim, they do not
want that." 24
The next morning the pickets were withdrawn and a substantial number of the
strikers returned to work in the next few days. When five of the employees whose
names had been included on the July 28 list had not returned by July 31, the Re-
spondent that day sent them letters notifying them that unless they reported by the
following Monday, or notified the Respondent of their inability to report, the Re-
spondent, because of its urgent need for employees, would consider them to have
lost their status as employees of the Company. At the same time the Respondent
sent similar letters to 11 employees for whom work had not previously been avail-
able notifying them of the availability of jobs.
As stated above, the Respondent on July 31 also sent letters to Harry Farris, Milo
Schlosser, Jay Acklen, Robert Hewitt, George Whittemore, John Duke, Harry
Woody, and Oria McDaniel advising them that "we have discharged you as an em-
ployee of this company because of your conduct during the recent strike at our
plant." As noted above, the complaint alleges that these discharges were violative
of Section 8 (a)( I) of the Act. The resolution of this issue turns upon the conduct
of these employees during the strike which has been discussed in the preceding sec-
tions of this report, and which will be considered further hereinafter in part III,
B, 2, b, below.
11. President Stewart's conversation with Farris after the strike
Farris had worked steadily for the Respondent for 11 V years. He lived in a
company house and paid less than the current rates for rent. After Victor Cameron,
the personnel director, informed him that his name was not on the list posted inside
21 This is not denied by U G Stewart
u Stewart denied having said on this occasion that the men cannot have a union and
that no union is going to run his plant . He admitted having told Strike that the men
could form a shop union . I credit Strike 's testimony above set forth
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
the plant , he went out and obtained other employment . Subsequently , at the urging
of Edward Armstrong , the Respondent 's shipping clerk , Farris went in to discuss the
whole situation with President Stewart . This was on August 3, after he had received
the letter confirming the fact of his discharge . As Farris explained it, "I was not
too happy about it , I didn 't like being out after 11'/2 years ." There was also the
matter of his occupancy of the company house . This matter was brought up at
the August 3 meeting, as well as at subsequent meetings between the two, discussed
below. According to Farris' credited testimony , the following occurred at the Au-
gust 3 meeting:
I told him that I more or less was perplexed and I didn 't understand why I had
been discharged , and he was very angry , very angry. He told me that I knew
why I had been discharged and not to sit there and tell him that, that I knew
very well why I had been discharged , and he mentioned one or two incidents
why I had been discharged... .
Well, he more or less read me out , letting them guys pull the wool over my eyes
and getting me to go along with them with a lot of false promises and so forth,
that I should know better than to believe that, and I was the last man that he
ever thought he would see out there in the street , it would have been worth a
thousand dollars to him to see me in there where I belonged . He also accused
me of trying to ruin the business and I specifically denied that I was not out
there in the street to ruin the business . . Oh, when I left he said that, he
was very nice , and he said he was glad that I came in and he said perhaps that
sometime in the future we might be able to get together . . . . and, I said,
"Thank you, sir," and I left.25
12. The reinstatement of the strikers
On September 30, 1959, the General Counsel issued the complaint herein. On
October 1, the Respondent mailed letters offering reinstatement to all of the strikers
whom it had discharged on grounds of misconduct . The letters advised them to
report by October 7. All of discharged strikers, except Harry Farris, returned to
work pursuant to this offer.
Farris received the offer of reinstatement on October 2, and went to see Stewart
on October 6. According to Farris' testimony, he told Stewart that he felt that it
was not "practical" for him to come back to work at that time, "that it would mean
I could only give my present employer very short notice" and that he would like to
give his present employer a week or 10 days' notice. Farris further told Stewart
that "he would probably check with him about my job again," that he "realized that
construction would not last forever." According to Farris, Stewart said nothing
about his coming back, merely again referred to the incidents which brought about
his discharge in the first place. Stewart testified that Farris told him on this occa-
sion that "he wasn't coming back," that "he could have done that, but that it would
have been on such short notice to his employer . . . that he wasn't going to do
that."
Although the foregoing two versions are not in sharp disagreement, they are not
reconcilable on the crucial point, whether Farris was accepting the Respondent's
offer and merely wanted more time to report. I find Stewart's version more in
accordance with the logic of the situation. Farris had received the offer on October
2, but did nothing about it until the 6th. Had Farris been serious about accepting
Stewart's offer, he could have notified his employer promptly and just as promptly
requested Stewart to give him a few more days' time. Instead, according to Farris,
he told Stewart that it was not "practical" for him to return to work at that time.
I find that Farris was not serious about accepting the Respondent's offer of rein-
statement, and that he has in effect turned it down.
13. The election of October 21; events of the preelection period
On October 14, 1959, after the repeal of Section 9(f),(g), and (h) of the Act
which enabled the Union to petition for an election , the parties stipulated for the
conduct of an election at the Respondent 's plants.
About this same date the Company posted a bulletin in its plants answering what
it regarded as false rumors spread by the Union regarding the possibility of a wage
ffi Except for denying that he was angry at Farris when the conversation began,
Stewart did not deny any of Farris ' testimony quoted above
STEWART HOG RING COMPANY, INC. 329
increase, backpay for the discharged employees, and the large salaries of J. O. Stew-
art and his wife. The introductory portion of this bulletin is quoted below:
To Our Employees:
On Wednesday, October 21, you will have an opportunity to decide, by secret
ballot, whether you will keep your independence or whether District 50 of the
Mine Workers Union is to speak for you and dominate you both at your work
and out of the plant.
We have agreed to this election because this is an important decision for
you-and one that only you can make. It's an important day for your families
too, because anything affecting your employment affects not only you, but your
whole family. Consequently, we hope you will consider all the facts and discuss
them with your families before you vote, disregarding the smear campaign
directed at us and our families, the lies, the false rumors.
Between now and October 21 you'll hear every smear, every lie, every bit of
hate that can be manufactured against us to get you to vote for the union.
These are the same tactics the union used last July when they promised you the
moon and ended up costing each of you about $100 in lost wages. The union
has no other weapons to use except a strike-and you know all about that
weapon of threat and fear-the dollars out of your pocket in lost time.
Those tactics are all right for the people who start these rumors, these smears.
They have no interest in you, no stake in your family, your community. They're
outsiders. Win or lose next Wednesday, their salaries go on and they can go
back home to Indiana without facing up to the facts.
We have a responsibility to you, your family, our community. Therefore,
we'll publish these lies, these half-truths that the Mine Workers are trying to
feed you. But we will also publish the facts in response. After all, there is
nothing to fear in the truth-and we have nothing to hide-most of all, our
responsibility to you.
The day before the stipulation for the election was formally signed the Respond-
ent posted in its plants notices stating that "UNION PROPAGANDA BUTTONS
CANNOT BE WORN IN THIS PLANT." The union button being worn in the
plant contained the following legend:
I'M A
UNION MEMBER
DIST. 50, U.M.W.A.
ARE
YOU?
Subsequently , on or about October 16 , a few of the employees at plant No. 2
were wearing the union buttons described above while at work . Superintendent
Russell Sandstead told Oria McDaniel to take the button off. McDaniel did not
comply immediately. About 10 minutes later Sandstead went up to Robert Herring-
ton, another employee, and said to him, "Bob , I said take the button off or go punch
the clock." Whereupon all of the employees removed their union buttons.
On October 17, just 4 days before the election , the Respondent issued another
bulletin to the employees. In the introductory portion of the bulletin the Respond-
ent, after urging the employees to vote, stated , among other things, "Just so there will
be no misunderstanding , we do not want the union to represent you in this plant.
... The bulletin continues:
The union organizers button hole you and tell you anything to get you to vote
for them . That is evident . We can not and will not engage in a battle of lies,
rumors and half-truths . We will not trade promises with the union-for talk is
cheap . We will tell you only what is supported by fact.
On the surface the issue in this election is simple-do you want District 50
UMW to represent you, yes or no. But the real issue is whether you want to
sentence yourself to complete domination by the union.
We are opposed to the union because they have no interest in you, your wages,
your working conditions. Their sole interest in you is to collect your dues of $3
each and every month-to take over $300 per month from this plant alone!
If you will consider all the facts and measure them against the wild promises
of the union we believe that you will be against the union and vote "NO" on
Wednesday.
Then for I V2 pages the Respondent detailed the reasons why it "believed" they
should vote "NO," stressing the excessive cost of membership in the Union , its in-
ability to gain the employees' benefits, the losses to the employees resulting from
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikes, and the possibility of the Respondent 's losing its most important business if
the Respondent were again threatened by a strike.
The election was held on October 21, 66 employees voted against the Union, 34
in favor, and 15 ballots were challenged.
14. The second discharge of Oria McDaniel on
November 2 and subsequent events
Pursuant to the Respondent's letter offering him reinstatement, McDaniel returned
to his old job in plant No. 2 on October 5. McDaniel was abruptly discharged by
Russell Sandstead, the general superintendent of both plants, about November 2.
According to McDaniel's uncontradicted and credited testimony, on this occasion
Sandstead handed him his check and merely said "That is it." McDaniel credibly
testified that Sandstead refused to tell him the reasons for his termination.
At the hearing Sandstead was questioned as to the circumstances of McDaniel's
termination. His answer was as follow:
At that particular time, we were in the department he was working in, we was
using seven employees. We needed a reduction to six, he was the seventh em-
ployee so he was released on that account. On the other hand, on the other
particular reason, about a week or possibly ten days prior to that, we had a
case of sabotage in the plant.
When asked to elaborate, Sandstead testified that "Damage was done to our nickel
tank" and "McDaniel was known to have been in the plant the evening before, which
was Sunday." In its brief to the Trial Examiner the Respondent stresses the "sabo-
tage" as the reason for McDaniel's discharge and states that "It was only incidental
that there was a reduction in work force." Because of the nature of the Respondent's
contention regarding the reason for McDaniel's discharge it is necessary to consider
in some detail the evidence concerning the steel-wool incident and the basis for the
Respondent's conclusion that McDaniel was to blame for it.
The Respondent operates three shifts at plant No. 2. During the first two shifts
(the morning shift from 7 a.m. to 4 p.m. and the evening shift from 4 p.m. to
12:30 a.m.) plating operations are carried on. On the so-called second shift (12:30
a.m. to 7 a.m.) "plastisol" operations are carried on which are of an entirely different
kind from plating operations, although the nickel cycle, which is part of the equip-
ment used in the plating operations, is also used in the plastisol operations. No
plating operations are carried on either on the evening shift on Saturdays or at any
time on Sundays.
On a Monday morning about a week before he was discharged McDaniel and
Robert Grable, another plating shift employee, walked into plant No. 2 together
about 6:45 a.m.26 As McDaniel started to add water to the nickel tank he noticed
a hook submerged in the tank. McDaniel called it to Grable's attention and, picking
it up, found several steel-wool pads fastened to the hook by a copper wire. Con-
cluding that the tank had been contaminated by the steel wool, McDaniel started the
filter, placed dummy sheets in the solution to remove the foreign matter therefrom,
and turned on the current to plate out the steel wool.
Foreman Rathbum arrived at the plant at 6:50 a in. He was immediately in-
formed by McDaniel and another employee of the finding of the steel wool in the
nickel tank. The record is confused as to what took place next, Foreman Rathbum
testifying on direct that he had McDaniel start removing the contamination by
electrolysis and a filtering process, and on cross-examination, that he had a regular
plating run begun to determine the extent of the contamination of the nickel tank.
Rathbum explained that if the steel wool had been in the tank only 10 minutes no
serious damage would have been done.27 The regular run which was commenced
at this time turned out imperfectly, and, as a result of the contamination of the tank,
operations had to be halted for 5 or 6 hours while the contamination was eliminated.
26 McDaniel placed this incident as having occurred on a Tuesday or a Wednesday
morning Neither Earl Rathbum, the foreman of plating operations, nor Robert Grable
could recall what day of the week the incident occurred. Superintendent Sandstead
testified that the steel wool was found early Monday morning, as did William Crunk.
Acceptance of McDaniel's testimony that the incident took place on a Tuesday or a
Wednesday would mean that the whole incident was a "frameup" to get rid of McDaniel,
for McDaniel's presence in the plant on Sunday would have no significance in the event
the steel wool was not discovered until Tuesday or Wednesday. Upon the record before
me I cannot accept such a conclusion
=1According to Superintendent Sandstead 's testimony , the solution causes the steel
wool to dissolve in the tank.
STEWART HOG RING COMPANY, INC. 331
Sandstead made an investigation, and talked to the employees who had been
working in the plant on the previous day. Sandstead testified that William Crunk,
a laborer who had been working on the morning shift Sunday cleaning out the plasti-
sol tank, had informed him that he had seen McDaniel in the plant that day (Sun-
day). Crunk testified as follows regarding this incident:
. we went home for dinner. We come back in the middle of the afternoon
and Oria McDaniel was raising Cain about some wrenches. I told him that I
didn't know nothing about it, and he went up in front and I took the notion
to see what he was doing. He was squatting down with a water hose cleaning
out the radiator out of the heater of the car. He said it was clogged up.
At the time, Crunk testified, McDaniel was in a different room from Crunk and
McDaniel was about 25 feet from the nickel tank. McDaniel had departed by the
time Crunk left at 4:20 p.m 2s Sandstead testified that none of the other employees
who were on the later shifts Sunday and early Monday morning had seen any
unauthorized person in the plant during this period. These plastisol-shift employees,
as noted above, used the nickel cycle which was 10 or 12 feet away from the nickel
tank in which the steel wool was found. According to Sandstead's credited testi-
mony, they told him they knew nothing about the steel wool being placed in the
nickel tank.
15. President Stewart's November conversations with Harry Farris
Farris went to Stewart's office on November 12 and asked whether he could come
back to work. Stewart replied that this was a "tough question." A lengthy con-
versation followed in the course of which Stewart stated that if Farris ever did go
back to work he would have to know absolutely that Farris would not engage in
union activity. Stewart also mentioned the fact that the Union was defeated meant
only a "temporary relief, and that he knew that many of the employees still favored
a union, that the `hard core' of union supporters was still there and that they were
holding `secret meetings."' During this conversation Stewart cited the case of Thor
Bishop, who he felt would always favor unions, and stated that although "he was
a good man and knew his machine well, he could never receive an advancement in
that plant."
On November 17 Farris went back to see Stewart again about getting his job back.
Stewart said the answer was "no," that his reinstatement would have to depend on
the outcome of the hearing in this case 29
B. Conclusions
1. The sequence of main events in broad outline
As stated above, after learning that organizing activities were underway, President
Stewart made speeches to the employees at both plants just before they left on vaca-
tion. In these speeches he urged the employees to reject the Union, which he said
was only interested in their dues, and asked them not to vote "to disrupt honest man-
agement." A day or two after the employees returned from vacation, President
Stewart issued a bulletin in which, after commenting that "there is no need for a
union in a small plant" like the Respondent's, stated that "most of our jobs depend
on the confidence our customers have in this management-confidence they do not
have in any third party-and this includes the union asking for your support." Two
days later, just before a union meeting was scheduled to be held, Stewart in another
bulletin stated ,that the union campaign presented the choice "between present rates
with steady work at overtime . . . and higher rates with shorter hours that will
net you less money" and a decreasing volume of work as it "goes to other factories "
In a second bulletin issued the same day, Stewart stated that his customers had com-
menced canceling orders upon being informed of the union movement, that the Com-
pany would largely run out of work in a few days, and that he would do nothing
29 McDaniel denied going into the plant to work on his radiator "in this particular
time," but admitted that he had gone into the plant and used company tools prior to
that time. Crunk's testimony regarding this incident was convincing I do not credit
McDaniel 's denial.
29Except with regard to Farris' testimony that Stewart had said that he would have
to know that Farris would not engage in union activity, which Stewart did not think he
had said, there is no substantial conflict between Farris' and Stewart's versions of this
conversation I credit Farris' testimony
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hold onto this business if the employees persisted in their organizing activities.
Stewart's layoff that same day of 24 employees lent emphasis to his statements.
A day or two after the union meeting at which Strike had been elected president,
Stewart commented about Strike's being a "big wheel" in the Union, instructed him
to tell the employees "to cut out this union activity," and concluded with a veiled
threat of discharge. At the end of the week Stewart suddenly decided to discharge
Strike and Knight, two of the three union officers, terminating them on July 18.
On July 15 Stewart assembled the employees at plant No. 1 to discuss the problem
raised by the presence of the Union at the plant. After referring to the union move-
ment as an "enemy" which "can destroy the jobs of 9 out of every 10 men in this
room ," Stewart reiterated that layoffs had occurred because of the loss of customers'
orders, and that more were imminent because of the effect of the union movement
on the placing of customers' orders. At the end of the speech Stewart asked the
men to cast their ballots either for "UNION" or "NO UNION." Only 11 men voted
for the Union.
In the meantime the Respondent had rejected the Union's request for recognition
and refused the Union's request to agree to a card check or a privately conducted
election as a means of proving the Union's majority status. The Respondent con-
tinued its series of bulletins and letters to the employees, again stressing that their
job security depended upon their keeping up production, that a cessation of ship-
ments "even for a day" would result in the removal of the customers' dies and fix-
tures and the permanent loss of their business. When the Respondent a second time
refused to recognize the Union and to accept any of the Union's proposals for prov-
ing its majority status, and in effect invited the Union to call a strike, the Union
did so.
The strike commenced the afternoon of July 21 at plant No. 2. At plant No. 1
the strike began early the next morning. The mass picketing and other incidents
involving strikers then occurred. The atmosphere was tense, union representatives
on a few occasions threatened violence against nonstrikers, and nonstrikers' homes
were attacked at night by unidentified persons. A majority of the employees re-
mained out on strike through July 28. On that evening, Strike discussed with the
two Stewarts the possibility of the Respondent accepting some other union, one
affiliated with the AFL-CIO. President Stewart emphatically said "no," declaring
that "no union is going to run my plant," but he added that if they wanted to form
a "shop union," such a move would be acceptable. The strike was abandoned on
the 29th, and most of the strikers returned to work that day. Prominent exceptions
were the most active strikers whom the Respondent discharged a day or two later,
asserting that they had engaged in misconduct during the strike.
2. The Respondent's violations of Section 8(a) (3) of the Act
a. strike and Knight
As stated above, Strike and Knight were suddenly discharged on July 18, 1 week
after they were elected officers in the Union. A few days earlier, Strike had been
directed by Stewart to tell the other employees to "cut out" the union activities, and
given a veiled warning about being fired.
The explanation given for the discharges was that the Respondent was discontinu-
ing its long-distance trucking operations. Admittedly this was a very hastily arrived
at decision. According to President Stewart's testimony, he made the decision to
discontinue the trucks "when I called Mr. Strike and Mr. Knight in my office." At
that time Stewart had not decided which concern would take over his trucking oper-
ations. The men were given no prior indication that the Respondent contemplated
discontinuing the trucks.
For over 10 years the Respondent had operated long-distance trucks as a con-
venience to its customers, primarily the Westinghouse Electric Company The pur-
pose was not to make money on the operation-the best the Respondent hoped to
do was to break even on the operation-but rather by making prompt deliveries in
good condition, to insure the goodwill and patronage of its best customers Not
beine a profitable operation. President Stewart had considered from time to time
whether there was any satisfactory alternative to operating its own trucks. About
a year prior to the discharge, Stewart remarked to one of the clerks in the office
that he thoueht the Company would be better off if it took the trucks off the road.
About the third week in June, U. G. Stewart was requested to obtain rates for full-
truckload lots from various trucking companies.
On July 7 William S. Smith, a sales representative for Yellow Freight Lines, Tnc.,
made a routine call on Victor Cameron, the Respondent's personnel director and
traffic manager, in a search for new business Apparently this was just a goodwill
STEWART HOG RING COMPANY, INC. 333
call to acquaint the Respondent with the fact that he was then associated with Yellow
Freight Lines. After receiving an inquiry about rates on truckload shipments to
Columbus, Ohio, he called on President Stewart and U. G. Stewart on July 17. He
showed them a diagram of Yellow's new 40-foot trailers. Stewart informed him
that his largest was 35 feet long, that he had a bulky item to ship, and that he was
looking for someone to handle the job. Stewart did not commit himself at this time
regarding using Yellow's services 30 Smith called upon President Stewart on July
27 or 28. Stewart expressed concern about Yellow's ability to make overnight
service. Stewart, however, still did not commit himself to use Yellow's services. On
August 6 the Respondent shipped its first load to Westinghouse via Yellow. Stewart
credibly testified that he selected Yellow instead of another shipper because of its
large-size trailers and because of the fact that Yellow, having a loading dock at
Columbus, Ohio, would be in control of the shipment all the way to its destination.
Viewing the precipitate discharge of these men in the light of the intense hostility
to the Union which was freely expressed in President Stewart's speeches and bulle-
tins, I conclude that the Respondent decided to discontinue its long-distance trucking
because such a change would enable it at one stroke to get rid of two of the three
union officers. There was no business consideration which made it imperative that
such a move be made at that time. The Respondent had considered the idea of con-
tracting out its long-distance hauling for over a year and probably much longer, but
the Respondent did not contact an outside hauler until after the union organizing
drive commenced. Not until after Strike and Knight assumed active roles in the
union drive and it appeared that a strike was imminent, did the Respondent take
action. And when it did act, the Respondent did not offer Strike and Knight other
jobs in the plant, although transfers from job to job were common in the plant and
Knight, at least, was experienced on various other operations. Both men had had
over 3 years of experience with the Respondent and were well regarded as truck-
drivers. Yet the Respondent simply let them go, apparently without considering
transferring them to other jobs, and without a word of warning Under all the cir-
cumstances of the case I find that the Respondent would not have discontinued its
long-distance trucking operations at that time but for the fact that two of the three
umon officers were involved. Accordingly, I conclude that the Respondent utilized
the discontinuance of its own trucking operations as a means of eliminating these two
union leaders, and that its action in this regard violated Section 8(a)(3) of the Act.
b. The eight strikers discharged because of their conduct during the strike
The Respondent in its brief to the Trial Examiner assigns various incidents of
alleged misconduct during the strike as the reasons for its discharge of Farris,
Schlosser, Whittemore, Woody, Duke, Hewitt, McDaniel, and Acklen. It is urged
by the General Counsel that the employees involved were engaging in concerted or
union activities protected by the Act. The question before me is whether the conduct
of these eight striking employees was of such a flagrant character as to be outside
the protection of the Act, and therefore to constitute a valid basis for discharge. See
Puerto Rico Rayon Mills, Inc., 117 NLRB 1355, 1357.
(1) Farris, Schlosser, and Whittemore
These three men are all charged by the Respondent with participating in the so-
called "mass picketing" on July 22 and in the Bert Hart incident of July 28.
As to the "mass picketing," I have found that 10 to 15 men in the entranceway
were standing virtually shoulder-to-shoulder for a 30- to 45-minute period early in
the morning of July 22 and that there were 20 to 25 additional men moving about in
the street, that such picketing was promptly discontinued upon the receipt of orders
from the acting sheriff and was not resumed. President Stewart's notes list seven
other employees as participating "in shoulder to shoulder picket lines" on this
occasion. It does not appear that the Respondent took any disciplinary action against
these seven employees. This indicates that the Respondent itself did not regard
participation in this incident alone as being of serious proportions. There is no
evidence that any of these pickets uttered any coercive remarks or made any menacing
gestures during this period.
Under all the circumstances, I find that the participants in this incident did not
interfere with employees desiring to go to work to an extent which would warrant
holding their conduct outside the protection of the Act. The conduct of all the
participants in this incident appears to be of a less inhibiting nature than that of the
so Stewart had no immediate shipping problem at that time as Westinghouse was then
closed for vacations
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets in the Thayer case which was held protected by the Board.31 Accordingly, I
conclude that the conduct of Farris, Schlosser, and Whittemore, in participating in the
so-called "mass-picketing" incident on the morning of July 22, was not such as to
deprive them of -the protection of the 'Act, and .hence did not constitute a valid ground
for discharge.
Regarding the Bert Hart incident, aside from Whittemore's challenge to Hart
from the middle of the street, discussed below, nothing occurred which was incon-
sistent with peaceful picketing. While Hart may have found himself in close quarters
with the pickets, this was just as much due to his wife's action in parking the car so
close to the building. The pickets merely continued their normal picketing activity.
There is no evidence that the pickets, while close up to Hart, said or did anything of
a threatening nature . I find that the conduct of Farris and Schlosser in the Bert Hart
incident did not exceed the bounds of permissible picket-line activity.
There remains to be considered Whittemore' s challenge to Hart that he would like
to take Hart "out behind the building." In view of the fact, noted above, that Whit-
temore was a lot smaller and less substantially built than Hart, I conclude that Whit-
temore's outburst should not be considered as a serious threat on Whittemore's part
of physical harm of Hart. Rather I think it should be regarded as a taunt uttered in
a "moment of animal exuberance" of the kind occasionally encountered in strike
situations which, although improper, is to be distinguished from "those flagrant cases
in which the misconduct is so violent or of such a serious character as to render the
employee unfit for further service." 32 Even when considered against the background
of Union Representative Galati's threats of violence against Dawson and Downs,
Whittemore's taunt, in my opinion, does not constitute the flagrant kind of miscon-
duct which justifies a discharge. Cf. Efco Manufacturing Inc. (case of Charles
Arnold), 108 NLRB 245, 250, 261, enfd. 227 F. 2d 675, 676 (C.A. 1), cert. denied
350 U.S. 1007.
The other incidents assigned by the Respondent as contributing factors in its
decision to discharge Farris, Schlosser, and Whittemore do not justify the Respond-
ent's action against them. The Respondent cites the Elam fence-cutting incident in
connection with Farris' discharge. Assuming, without finding, that Farris took
part in this incident, his participation in this unlawful activity did not become known
to the Respondent until many months after the discharge and therefore cannot
have been a factor in Farris' discharge. Similarly, Schlosser's and Whittemore's
following of Archie Hickel was not reported to President Stewart until long after the
discharges.33
Viewing the incidents relied upon by the Respondent against the background of
the total strike picture, I find that none of these incidents, either singly or in com-
bination , warranted the Respondent in discharging Farris, Schlosser, and Whitte-
more. Accordingly, I conclude that the Respondent's action in discharging these
three men for their strike activities was violative of Section 8(a),(3) and (1) of the
Act.
2. Harry Woody
The Respondent bases its discharge of Harry Woody on three incidents, his par-
ticipation in "mass picketing" of July 22, his alleged "intimidation of Joe Elam,"
and his following of Elam. As to Woody's participation in the mass picketing, for
the reasons discussed in the preceding section, such conduct was not outside the
protection of the Act.
Woody's alleged intimidation of Elam, as stated above, consisted of attempting
to walk in front of Elam's truck as Elam was entering the driveway into the Re-
spondent's premises, waving his arms, and shaking his finger at Elam. This did not
hinder Elam, who drove around Woody and entered the premises. This incident, as
I have found, was not reported to Stewart before Woody was discharged. More-
over, even if the Respondent had been aware of this incident, at the time it dis-
charged Woody, since Woody did not obstruct Elam's entrance to the premises, his
11 H. N. Thayer Co ., 99 NLRB 1122 , 1130-1131, 1195-1202, enfd 213 F 2d 748, 756
(CA. 1), cert. denied, 348 U.S 883.
32 N L R B. v Illinois Tool Works, 153 F. 2d 811 , 815 (CA 7), quoting from Milk
Wagon Drivers Union v. Meadowmoor Dairies Inc ., 312 U S 287, 293
23 The Respondent in its summary of instances of alleged misconduct implies, in the
case of Schlosser , that he placed sugar in the gas tank of the car of Hugh Hurst.
Schlosser denied engaging in such conduct . The hearsay report of an unidentified em-
ployee attributing such conduct to Schlosser is the only evidence upon which the Re-
spondent predicates this charge . I credit Schlosser's denial and find the evidence
wholly inadequate to Justfy such a serious charge against Schlosser.
STEWART HOG RING COMPANY, INC. 335
conduct was within the protection of the Act. Standard Oil Company of California,
91 NLRB 783, 788-789 (case of Borreani).
With respect to Woody's following Elam, as stated above, Woody was a passenger
in Wilhoit's car which followed Elam's truck when he left the plant at 4 p.m. on
July 23. After following Elam for at least 2 miles over a circuitous route, Wilhoit's
car continued on straight when Elam turned off and stopped near the public square.
As they left Elam, Woody motioned his finger at Elam. There is no evidence that
Woody uttered any threats against Elam; nor is there any indication Woody had any
intention of harming Elam in any way. In these circumstances Woody's conduct
on this occasion does not amount to coercion of Elam.34 Therefore it did not con-
stitute legal justification for Woody's discharge, either when considered by itself or
together with the other incidents upon which the Respondent relies in this connec-
tion. Cf. Standard Oil Company of California, 91 NLRB 783, 816-817 (case of
Page).
(3) Oria McDaniel
The Respondent's complaints against McDaniel are many but they do not con-
stitute justification for his discharge. First the Respondent relies on his alleged
participation in the cutting of Elam's fences. However, the Respondent had no
evidence even remotely suggesting that McDaniel participated in this incident at the
time of his discharge. Hence this could not have been a factor in McDaniel's
discharge.
McDaniel is also charged with hollering "scab" as he twice drove past George
Spencer's car on Sunday, July 26.35 The use of such epithets, while not to be ap-
proved, is not uncommon in strike situations, and does not remove an employee
from the protection of the Act. See Nutone, Inc, 112 NLRB 1153, 1172 (case of
Charlottie Puckett), enfd. with modification not here relevant, 243 F. 2d 593
(C.A.D.C.); Efco Mfg. Co., 108 NLRB 245, 266, enfd. 227 F. 2d 675 (C.A. 1),
cert. denied 350 U.S. 1007. The Respondent also refers to a conversation occurring
on July 22 between James Armstrong, foreman of plant No. 2, and McDaniel.
Armstrong spoke to McDaniel as McDaniel and John Garver walked the picket
line in front of plant No. 2. Armstrong commented that someone had crossed the
picket line at plant No. 1. McDaniel, as he admitted, told Armstrong that "that
was . . . a very bad, thing to have done or something, being there was only one man
across. If I would have been there . I might have clobbered him or some-
thing, I don't know." 36 This conversation was overheard by Hollister Sandstead,
the nephew of the superintendent, and he reported it to Stewart, who summoned
Armstrong to the office. Armstrong later told McDaniel that he had informed
Stewart that he thought McDaniel had been speaking in the past tense and was not
indicating what would happen in the future.37 McDaniel's remarks on their face
merely reflect his hypothetical state of mind regarding a past event. In these cir-
cumstances, it is reasonable to regard McDaniel's comments more as harmless brag-
gadocio than as a serious threat of future violence. Viewed in this light, McDaniel's
conduct on this occasion , in my opinion, is not of sufficient seriousness to warrant a
discharge.38
(4) John Duke
The sole ground alleged by the Respondent for the discharge of John Duke was
the fact that when his friend and former neighbor, Jesse Merrick, reported for work
as a night watchman during the strike, Duke yelled at him "Jesse . . . don't you go
84 The Respondent urges that Woody's conduct in this respect was violative of sections
376, 377, 581 of the Criminal Code of Illinois (Illinois Revised Statutes, 1959) relating
to "intimidation " Upon the facts above set forth, I cannot see bow these sections are
applicable In any event see the discussion in part (7), below
15 This Is Spencer's testimony which I credit.
"The Respondent's contention in this regard is predicated largely on the above testi-
mony of McDaniel himself.
34 This is McDaniel's testimony. James Armstrong, who heard McDaniel's alleged
threat, was not called as a witnesses. 1
18 In connection with McDaniel's discharge the Respondent cites one further incident
involving McDaniel On July 22, McDaniel, his wife, his sister-in-law, and Gary
Markwell drove out to Crum's farm early in the afteroon. Crum came down to the car
when they stopped in front of the house. Accepting Crum's testimony, McDaniel and
Markwell told him to say home during the strike, that they were advising him to do so
for his own good Crum testified that they did not openly threaten him I find McDaniel's
and Alarkwell's remarks on this occasion lacking in coercive impact.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in there or I will get you." Under all circumstances I regard this as another in-
stance of an employee exceeding the bounds of lawful conduct in "a moment of
animal exuberance" (Illinois Tool Works, supra, 153 F . 2d 811 , 815 (C.A. 7) ),
which, however regrettable , is not of such a flagrant nature as to justify a discharge.
H. N. Thayer Co., 99 NLRB 1122, 1206 (case of Aucoin), enfd. 213 F. 2d 748
(C.A. 1), cert. denied 348 U.S. 883.
(5) Jay Acklen
The Respondent attributes the discharge of Acklen to his alleged participation
in the Bert Hart and the Elam fence-cutting incidents . With respect to the Bert
Hart incident , I have found that he was not involved in this affair at all, that it
was a case of mistaken identity on the part of the Harts, and, in any event, that
participation in this incident was not outside the protection of the Act.
As to the fence cutting, while Elam testified at the hearing that he saw a gray
Studebaker like Acklen's, pass by his home the night before the fences were dis-
covered cut, the Respondent has failed to show that this fact was communicated to
it prior to Acklen's discharge. Since Acklen was a striker, the Respondent's burden,
if it is to prevail on this score, is at least to show that at the time of Acklen's dis-
charge it had a reasonable basis to believe that he was involved in the fence cutting.
Rabin Bros. Footwear, Inc., et al., 99 NLRB 610, 611.39 The Respondent has failed
to sustain its burden in this regard.
Even assuming that it was reported to Stewart before Acklen's discharge that a
gray Studebaker like Acklen's was seen passing the Elam home the evening before
the fence cutting was discovered, this is not sufficient to establish a reasonable basis
for the belief that Acklen was involved. Other cars also use the road past Elam's
house. There is nothing to indicate that the three cars passing on the occasion in
question had anything to do with the cutting. Secondly, the identification of the
car was made under conditions casting substantial doubt on its accuracy. It was
almost dark outside, the car had its lights on, and Elam and his son were some
distance away from the road inside the house. Even if they were right in identifying
the car in question as a gray Studebaker, this would not fasten the offense on Acklen,
who admittedly owned a gray Studebaker. The record shows that at least one other
striker, Vernie Wilhoit, also drove a gray Studebaker. There also may have been
other gray Studebakers in the vicinity. In view of the foregoing facts, I find that
the Respondent has failed to sustain its burden of establishing a reasonable basis for
a belief that Acklen was involved in cutting Elam's fences.
(6) Robert Hewitt
Hewitt had been included in the layoff of July 11 and was not working for the
Respondent at the time the strike began on July 21 and 22. After the strike had
been in progress for a few days, he heard about it and came down and joined the
pickets. The question arises in Hewitt's case, in view of his layoff, whether he is
to be treated like the other strikers who were on active duty at the time the strike
began. In view of the Respondent's urgent need for employees during the strike,
I find that he would have been put back to work by the Respondent had he been
willing; instead Hewitt joined the strikers. The Respondent itself treated Hewitt
like the other strikers. It sent him a letter discharging him for his conduct during
the strike; it also reinstated him with the others. Under all the circumstances, I con-
clude that Hewitt should be treated like the other strikers.
The Respondent predicates its discharge of Hewitt upon his participation in the
Bert Hart incident and upon his alleged trespassing upon company property on July
28. As found above, participation in the Bert,Hart incident does not constitute valid
grounds for discharge. With regard to Hewitt's alleged trespassing, the facts are
these: As noted above, on July 28 the Respondent placed a sign outside the plant
stating in effect that a list of employees who were welcome to return to work was
posted inside the plant. That evening Hewitt, in the company of Acklen and
Markwell, went to the plant. Hewitt started to go in to look at the list, but he was
stopped in the entranceway by Foreman Nicholson, who told him that he did not
have any business there. Hewitt immediately left, as Nicholson testified.
OD Although this decision has been disapproved by the Fifth Circuit ( 203 F. 2d 486),
the Board has subsequently adhered to this ruling. Wichita Television Corporation,
Incorporated, d/b/a HARD-TV, 122 NLRB 222, 226, footnote 26, enfd. 277 F. 2d
579 (C.A. 10).
STEWART HOG RING COMPANY, INC. 337
In view of the-presence of the sign outside the plant, which was tantamount to
an invitation - to enter the plant , the Respondent 's allegation of trespass against
Hewitt was wholly unwarranted and, indeed, appears to border on the frivolous.
(7) The Respondent's argument based on conduct allegedly in violation
of the Criminal Code of Illinois
The Respondent cites various sections of the Criminal Code of Illinois which it
asserts were violated by various of the eight strikers here involved. However, it does
not articulate the consequences which it deems to follow from these alleged viola-
tions of criminal statutes, but the implication is that if a State law violation was
involved, this is cogent evidence that the conduct in question warranted the discharge.
If a striker had been convicted of a crime for engaging in the conduct upon which
the Respondent relies as grounds for the discharge, this would be a relevant consid-
eration in appraising the Respondent's justification in discharging the striker. But
such a conviction would not be conclusive on the issue of the justification for the
discharge.
The judgment as to whether conduct during a strike justifies a discharge or dis-
qualifies a striker from reinstatement is entrusted solely to the Board, and its decision
is to be based exclusively on the standards prescribed in the Act. H. N. Thayer
Company, 99 NLRB 1122, 1128-1130, enfd. 213 F. 2d 748, 753-755 (C.A. 1), cert.
denied 348 U.S. 883; Nashville Corporation, et al., 94 NLRB 1567, 1569-1570. Con-
sequently, even if the strikers here involved had been convicted of the violations of
the sections of the Criminal Code relied upon by the Respondent, such determina-
tions would not be binding with regard to the issue whether the conduct in question
justified a discharge. I have considered all of the evidence offered relating to the
alleged misconduct of these strikers and have found it insufficient, under the stand-
ards of the Act, to warrant the discharge of the strikers. Assuming that in some
instances the conduct relied upon might have been violative of State law, this is not
of controlling significance on the issue before me. Hence, I must reject the Respond-
ent's suggestion to the contrary.
c. The second discharge of McDaniel
The Respondent defends its discharge of McDaniel in November 1959 on the
ground that he had been guilty of sabotaging its plating operations, or at least the
Respondent reasonably believed that he had. With respect to the fact of McDaniel's
placing the steel wool in the nickel tank, the evidence falls far short of establishing
that he did so. However, if the Respondent in fact suspected that McDaniel had
done so and discharged him for this reason, such a discharge would be lawful. This
follows from the fact that there is no claim that the conduct for which McDaniel was
discharged was concerted activity protected by the Act. So the situation here is
wholly unlike that of the eight strikers who were discharged for conduct claimed to
be within the Act's protection.
In my opinion the circumstances of this case do not establish that the Respondent
was motivated by antiunion considerations in discharging McDaniel. Union activ-
ities were relatively quiescent at this time, the Union having recently lost the election.
McDaniel had only recently been reinstated, and had not been any more active in
support of the Union than his fellow employees at plant No. 2. The Respondent's
explanation, that it suspected McDaniel of sabotage, cannot be said to be without
reasonable basis in the record. The sabotage occurred. The Respondent's question-
ing of other employees disclosed that McDaniel had been in the plant outside of his
regular working hours at a time when, and in circumstances under which, it would
have been possible for him to have committed the sabotage. It is true that McDaniel
made no effort to conceal his presence in the plant, "raising cain" about some
wrenches, as Crunk, the Respondent's witness, testified, and this perhaps suggests that
he was not in the plant on any nefarious mission. However, I cannot say that this
wholly knocks the props out from under the Respondent's suspicion that McDaniel
was the guilty party. For the foregoing reasons, I conclude that the General Counsel
has failed to sustain the allegations of the complaint based on the second discharge
of McDaniel.
3. The Respondent's violation of Section 8 (a) (1) of the Act
a. Interrogation and threats
As noted above, President Stewart on several occasions questioned employees
Smitha and Strike about union membership and activities. Superintendent Sand-
599198-62-vol. 131-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stead also questioned employee Floyd about the Union. In the course of his July 11
conversation with Smitha , Stewart warned that a loss of overtime and less regular
work would likely follow the unionization of the plant. Stewart, in his conversation
with Strike on July 13, uttered a veiled threat to discharge him if he failed to induce
the other employees to "cut out" their union activities . Stewart's statement to Farris
at the time he was applying for reinstatement in November, to the effect that Thor
Bishop would never receive advancement in the plant because he was union -minded,
is in this same category . Such threats constitute interference , restraint , and coercion
in violation of Section 8(a) (1) of the Act. In the context of the threats and discrim-
inatory discharges herein found , the Respondent 's questioning of employees concern-
ing union matters was itself also a violation of the Act.
b. Speeches and bulletins
Running throughout President Stewart's speeches , letters, and bulletins to the em-
ployees is the theme that the employees' job security would be jeopardized if they
persisted in affiliating with the Union because of the fact the Respondent 's customers
would not place orders with a unionized plant, due to their fear of an interruption
in shipments resulting from strikes. While at first glance it might appear that such
statements have coercive impact , since these statements were made in terms of pre-
dictions of possible actions of third parties, and since it has not been established that
the factual representations made in the statements ( i.e., that orders were being
canceled ) were untrue , the Respondent 's statements , for the most part, fall within the
scope of Section 8 (c) of the Act which protects expressions of "views , argument, or
opinion" containing "no threat of reprisal or force or promise of benefit." Neco
Electrical Products Corporation, 124 NLRB 481; Super Sagless Spring Corporation,
125 NLRB 1214.
However , in two instances , in my opinion, President Stewart , in his bulletins to
the employees , overstepped the bounds of free speech . In Bulletin #5 issued on
July 11, the day on which a union meeting was scheduled, President Stewart, after
referring to the alternatives before the employees of dealing directly with him or
paying someone "to argue for you," asked them to:
CHOOSE BETWEEN PRESENT RATES WITH STEADY WORK AT OVER-
TIME-* * *-AND HIGHER RATES WITH SHORTER HOURS THAT
WILL NET YOU LESS MONEY-WITH NO CERTAINTY OF WORK A
DAY IN ADVANCE BECAUSE OF DECREASING VOLUME AS OUR
WORK GOES TO OTHER FACTORIES.
This statement , unlike most of Stewart 's, statements in the course of his antiunion
campaign, was not couched in the form of an argument or expression of an opinion,
but was a flat statement that the employees would have less steady work at less
pay if they chose the Union . As such, this statement was outside the scope of
Section 8 (c) of the Act. In the second bulletin issued that same day, Stewart
stated to the employees that he would seek no new orders as long as they persisted
in taking any steps which might result in increased costs, a euphemism for insisting
upon union representation . In other words , Stewart was saying to the employees
that he was going to do nothing to stop the work from running out if the employees
insisted upon going through with their union plans. This was not "a prediction of
possible future actions of third parties ," as was the case in Neco Electrical Prod-
ucts Corporation, 124 NLRB 481, but rather a threat on the part of Stewart himself
that they were going to be many fewer jobs if the employees continued their affilia-
tion with the Union. Such a threat is violative of Section 8(a)(1) of the Act. See
N.L.R.B. v. Morris Fishman and Sons, Inc., 278 F. 2d 792 (C.A. 3).
c. The July 15 speech and poll
On July 15 , after Stewart had been informed that union officers had been chosen,
President Stewart assembled all of the employees of plant No . 1 and made a speech
to them during working hours. While the speech as a whole is within the protection
of Section 8(c) of the Act, its tone is one of determined opposition to the union
movement . The possibility of the Union 's drive causing the loss of jobs of 9 out of
10 employees was alluded to by Stewart during the speech at the meeting. At the
conclusion of the speech, Stewart had the employees vote on previously prepared
ballots either for "UNION" or "NO UNION." Only 11 employees marked their
ballots in favor of the Union.
In view of the context of events in which this election was held , Stewart's series
of antiunion speeches and bulletins , and the discriminatory discharge of two of the
three union officers later on that week, I find that Stewart 's July 15 speech and his
STEWART HOG RING COMPANY, INC. 339
polling of the employees constituted in effect a single transaction , one which when
considered as a whole exceeded permissible bounds. By his speech and by polling
of the employees as he did, Stewart sought to crystallize sentiment against the Union
in a manner which was inconsistent with the Respondent's duty to refrain from
interfering with employees in the exercise of the rights guaranteed in the Act.
Old King Cole, Inc., 117 NLRB 297, 301-302, 307-308, enfd., 250 F. 2d 791 (C.A.
6). Cf. N.L.R.B. v. Wagner Iron Works, 220 F. 58, 59-60 (C.A. 9).
d. Letters of discharge to strikers
On Friday, July 31, the Respondent sent letters to two groups of employees.
To five employees who had been invited to return by means of the July 28 list but
who had failed to return, the Respondent sent letters informing them that if they
failed to report for work on August 3, the Respondent would consider that they
had lost their status as employees. The Respondent also sent letters to 11 employees
who had not previously been invited to return notifying them that their jobs were
open, and that unless they returned by the following Monday morning, or notified
the Respondent of their inability to do so, the Respondent would consider their
employee status as terminated. These letters infringed upon the strikers' rights
to engage in concerted activities for their mutual aid or protection. While the
Respondent could lawfully replace the strikers (it is not claimed that they were
engaged in an unfair labor practice strike), it was not privileged, in effect, to threaten
them with discharge for failing to return to work by its August 3 deadline. These
letters reasonably tended to inhibit the employees in continuing the strike in which
they were engaged, and accordingly violated Section 8(a) (1) of the Act. Associ-
ated Wholesale Grocery of Dallas, Inc., 119 NLRB 41, 49.
e. Promulgation and enforcement of a rule prohibiting the wearing of
union buttons
On October 13 the Respondent promulgated a rule stating that "Union Propaganda
Buttons cannot be worn in this plant." Thereafter, on October 16, Superintendent
Sandstead, upon threat of discharge, enforced the rule against several employees
who were wearing buttons on which appeared the words "I'm a Union Member,
Dist. 50. U.M.W.A., are you?" The Respondent recognizes that it could not law-
fully prohibit the wearing of all union buttons in the plant, absent special circum-
stances, but contends that the button worn in this case bore union propaganda which
would tend to be disruptive of production in the plant. I cannot accept this
contention. Unlike the "Scab" buttons involved in Caterpillar Tractor Company, a
corporation v. N.L.R.B., 230 F. 2d 357 (C.A. 7), I find that the buttons here in-
volved would not, in the circumstances of this case, reasonably tend to disturb the
efficient operation of the Respondent's business. Accordingly, I conclude that the
Respondent's promulgation and enforcement of its rule against wearing of union
propaganda buttons was in excess of its powers under the Act. Kimble Glass Com-
pany, 113 NLRB 577, 578-581, enfd, Kimble Glass Co. v. N.L.R.B., 230 F. 2d 484,
485 (C.A. 6), cert. denied, 352 U.S. 836.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent discontinued its long-distance trucking opera-
tions on July 18, 1959, in order to get rid of two of the three union officers, and
that it thereby engaged in unfair labor practices in violation of Section 8(a) (3) and
(1) of the Act. In order to effectuate the policies of the Act, it is necessary to undo
the effects of the Respondent's unlawful conduct. In the cases of Strike and
Knight, who spent approximately two-thirds of their time in long-distance driving,
this can only be done by requiring the resumption of the Respondent's long-distance
trucking operations. Accordingly, my recommended order will include a provision
directing the Respondent to resume its long-distance trucking 'operations and to rein-
state Strike and Knight to their former or substantially equivalent positions in such
operations, and make them whole for any losses suffered as a result of the Respond-
ent's discrimination against them. Electro-Mechanical Products Company, 126
NLRB 637.
As to the eight strikers whom the Respondent discharged because of their conduct
during the strike, I have found that the Respondent offered reinstatement to all of
them, and that all except Harry Farris, who turned down the offer, accepted the
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer and returned to work . However, these eight employees were not paid backpay,
so far as the record shows. Consequently I shall recommend that each of these
employees be made whole for any - loss of pay he may have suffered by payment
to him of a sum of money equal to that which he normally would have earned from
July 31 , 1959 , the date of his discharge, to October 7, 1959, the deadline for report-
ing back for work, unless the employee reported back earlier . In such cases back-
pay will terminate on the day the employee reported back for work. The backpay
period in the case of Harry Farris will terminate on October 6, the day on which
he rejected the Respondent 's offer of reinstatement . The employees ' net earnings
during the backpay period shall be deducted from gross backpay in a manner con-
sistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289.
I shall recommend also that the Respondent preserve and, upon request, make
available to the Board or its agents , for examination and copying, all payroll rec-
ords, social security payment records, timecards , personnel records and reports, and
all other records necessary to analyze the amounts of backpay due under the terms
of my recommended order.
The Respondent 's unfair labor practices are such as to indicate an attitude of
opposition to the purposes of the Act generally, and accordingly the commission of
these and other unfair labor practices in the future is reasonably to be anticipated
from the Respondent 's past conduct . In these circumstances , the preventive pur-
poses of the Act may be thwarted unless the remedy is coextensive with the threat.
To effectuate the policies of the Act, therefore, it will be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaran-
teed employees by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging Earl P. Strike and Darwin L. Knight on July 18, 1959, and by
discharging Harry Farris, Milo Schlosser, Jay Acklen, Robert Hewitt, George
Whittemore, John Duke, Harry Woody, and Oria McDaniel on July 31, 1959, the
Respondent has discriminated in regard to the hire and tenure of employment of
the above-named employees, thereby discouraging membership in the Union, in
violation of Section 8(a) (3) of the Act.
3. By engaging in the aforesaid unfair labor practices and the other acts and
conduct summarized in section III, B , 3, above, the Respondent has interfered with,
restrained , and coerced employees in the exercise of the rights guaranteed in Section
7 of the Act, in violation of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices by discharging Oria
McDaniel on or about November 2, 1959.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a recommended order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Re-
lations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in United Mine Workers of America,
District 50, or in any other labor organization of our employees by discharging
or in any other manner discriminating against them in regard to their hire and
tenure of employment.
WE WILL NOT coercively question or poll our employees as to their union
sympathies or activities.
WE WILL NOT threaten our employees with loss of employment or other re-
prisals for engaging in union or concerted activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of the right of self-organization , to form labor organi-
zations, to join or assist United Mine Workers of America, District 50, or any
other labor organization , to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the purpose of
JAN'S SERVICES, INC. 341
collective bargaining or other mutual aid or protection as guaranteed in Section
7 of the Act, or to refrain from any and all such activities except as authorized
in Section 8(a)(3) of the Act, as amended.
WE WILL offer Earl P . Strike and Darwin L. Knight immediate and full re-
instatement to their former or substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges , and will make them whole
for any loss of earnings suffered as a result of our discrimination against them.
WE WILL make Harry Farris, Milo Schlosser , Jay Acklen, Robert Hewitt,
George Whittemore , John Duke , Harry Woody, and Oria McDaniel whole for
any monetary losses suffered as a result of their discharge on July 31, 1959.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of United Mine Workers of America , District 50, or any other
labor organization.
STEWART HOG RING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Jan's Services , Inc. and Mrs . Edwin Selvin
Jan's Services , Inc. and Inlandboatmen 's Union of the Pacific,
San Pedro Division. Cases Nos. 21-CA-4110 and 21-CA-4136.
April 27, 1961
DECISION AND ORDER
On January 24, 1961, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Respondent filed ex-
ceptions to the Intermediate Report, together with a supporting
brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions :
We agree with the Trial Examiner's conclusion that Respondent's
announcement of benefits on August 5, 1960, 2 weeks after the Union's
representation petition was filed, interfered with employees' rights
under Section 8(a) (1) of the Act.' In so finding, we reject Respond-
1 These benefits included extra-time pay, a vacation plan, time and a half for holidays,
and paid travel time. Although the announcement also included hospital and surgical
benefits, the Trial Examiner found that these benefits had been inaugurated prior to the
131 NLRB No. 47.