Thayer, Inc. of Virginia

National Labor Relations Board - Board Decisions

Nov 20, 1959

125 N.L.R.B. 222 (N.L.R.B. 1959)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom and take certain affirmative action designed to effectuate the policies of
the Act- Upon the basis of the above findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following
CONCLUSIONS OF LAW
1 International Woodworkers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
2 By inducing and encouraging employees of T Smith & Son, Inc, Neptune
Supplies , Inc, and Wm France , Fenwick & Company , Limited, to refuse in the
course of their employment to perform work for their respective employers, an ob-
ject thereof being to force and require T Smith & Son, Inc, to cease doing business
with Montmorency Paper Company , Inc, and Montreal Shipping Company, Lim-
ited, or in the alternative with Anglo Newfoundland Development Company, Lim-
ited, an object thereof being to force and require Neptune Supplies, Inc, to cease
doing business with Montmorency Paper Coiripany, Inc, and Montreal Shipping
Company, Limited, or with any person or persons on or in control of the SS Best-
wood, an object thereof being to force and require Wm France, Fenwick & Com-
pany, Limited, to cease doing business, directly or indirectly, with Montmorency
Paper Company, Inc , Montmorency Shipping, Limited, Montreal Shipping Company,
Limited, or in the alternative with Anglo Newfoundland Development Company,
Limited , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Act
3 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
Thayer, Inc of Virginia and International Hod Carriers ', Build-
ing and Common Laborers' Union of America, Local Union
No 453, AFL-CIO Case No 5-CA-1257 November 20, 1959
DECISION AND ORDER
On December 10, 1958, Trial Examiner Eugene E Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto Thereafter, the Respondent filed excep-
tions to the Intermediate Report, together with a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and finds merit in one of the Respondent's exceptions Accord-
ingly, the Board adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications set forth below
THE RE31EDY
One evening during the strike, strikers Vincile Perkins and Roger
Lacy approached nonstriking employees Bobby Baughman and
Bobby Layne and asked them to cease working and join the strike
125 NLRB No 25
THAYER, INC. OF VIRGINIA 223
During the course of the conversation, Perkins and Lacy invited
Baughman and Layne to "come on outside . . . if either of you think
you can whip us." [sic] Further, the nonstrikers were told that they
might get hurt if they went back to work.
Following the abandonment of the strike, Lacy was interviewed and
reinstated by the Respondent. At that time, the Respondent had no
knowledge of Lacy's part in the aforementioned incident, although it
learned of Lacy's participation about a month after that employee's
reinstatement. However, Perkins was denied reinstatement because
of this incident.
The Trial Examiner found that Perkins had engaged in misconduct.
We adopt this finding in the absence of exceptions by the General
Counsel.' The Trial Examiner nevertheless recommended that Per-
kins be reinstated, on the ground that the Respondent had condoned
Perkins' misconduct by reinstating and retaining the "equally guilty"
Lacy. We find merit in the Respondent's exception to this finding.
Condonation reflects an employer's willingness to "wipe the slate
clean" and to continue an employee in good standing despite that
employee's misconduct.2 However, an employer, by waiving its right
to terminate as to some employees, does not thereby waive this right as
to all employees in the same category .3 Under the circumstances of
this case, we find that the Respondent was justified in denying rein-
statement to Perkins and that it did not condone Perkins' misconduct
by reinstating and retaining Lacy. Accordingly, we shall not order
the Respondent to reinstate Perkins.
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, Thayer, Inc. of
Virginia, Bluefield, Virginia, its officers, agents, successors, and as-
signs, shall :
1 Member Fanning dissents from the conclusion that Perkins engaged in such heinous
misconduct as to warrant a denial of reinstatement and from the majority's inference
that the Trial Examiner did, in fact, make such a finding. The Trial Examiner found
only that the Company had condoned any "transgression" of which Perkins may have
been guilty. It was therefore unnecessary for the Trial Examiner to decide the legal
question whether misconduct of the type required for a denial of reinstatement had been
committed by Perkins. In Member Fanning's opinion, Perkins' conduct was not so serious
as to warrant a diminution of the Board's usual remedy, Efco Manufacturing, Inc., 108
NLRB 245, 250, 261, particularly necessary in this case in view of the Respondent's
flagrant violations of the Act.
1 See The Hoover Company, 90 NLRB 1614, 1624-1625. Member Jenkins agrees that
Perkins is not entitled to reinstatement because of his misconduct. He is unable to find
any evidence of condonation as he views that concept. See Member Jenkins' dissenting
opinion in Plasti-Line, Incorporated, et al ., d/b/a Sign. Fabricators. 123 NLRB 1471,
and his concurrence in footnote 2 in Union Twist Drill Co., 124 NLRB 1143.
3 N.L.R.B. v. Clearfield Cheese Co., Inc., 213 F. 2d 70, 75 (C.A. 3, 1954).
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain collectively with International Hod Car-
riers', Building and Common Laborers' Union of America, Local
Union No. 453, AFL-CIO, as the exclusive bargaining representative
of its employees in the appropriate unit concerning rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment, by refusing to meet with the Union, by granting unilateral
wage increases, and by refusing to furnish the Union with wage and
other data within the possession of the Respondent which are relevant
to the Union's task as bargaining agent.4 The following unit of
employees is appropriate for collective bargaining:
All production and maintenance employees at the Respondent's
Bluefield, Virginia, plant, excluding office clerical employees, guards,
watchmen, professional employees, and supervisors as defined in the
Act.
(b) Discouraging membership in International Hod Carriers',
Building and Common Laborers' Union of America, Local Union No.
453, AFL-CIO, or any other labor organization, by refusing to rein-
state any of its employees, or otherwise discriminating in regard to
their hire or tenure of employment or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist the aforementioned Union, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
('a) Upon request, meet and bargain collectively with International
Hod Carriers', Building and Common Laborers' Union of America,
Local Union No. 453, AFL-CIO, as the exclusive representative of all
employees in the aforesaid appropriate unit, concerning rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment, and if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Furnish to the above-named Union wage and financial data
within the Respondent's possession which are relevant to the Union's
task as bargaining agent.'
4 Member Rodgers would require the Respondent to furnish the Union only with the
names, job classifications, and rates of pay for the employees in the bargaining unit.
5 See footnote 4, supra.
THAYER, INC. OF VIRGINIA 225
(c) Offer to the striking employees named in "Appendix A" of the
Intermediate Report attached hereto, except Vincile Perkins, im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority and other rights
and privileges, dismissing, if necessary, any person hired on or after
November 26, 1957, and make whole said striking employees for any
loss of pay they may have suffered by reason of the Respondent's
refusal, if any, to reinstate them, in the manner and according to the
method prescribed in section V of the Intermediate Report, entitled
"The Remedy."
(d) Post in conspicuous places, including all places where notices
to employees are customarily posted, at its plant in Bluefield, Virginia,
copies of the notice attached hereto marked "Appendix." 6 Copies of
said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in conspicuous places.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fifth Region in writing,
within 10 days from the date of this Order, what steps Respondent has
taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International
Hod Carriers', Building and common Laborers' Union of Amer-
ica, Local Union No. 453, AFL-CIO, as exclusive bargaining rep-
resentative of our employees in the appropriate emit, by refusing
to meet with the Union, by granting unilateral wage increases,
and by refusing to furnish the Union, upon request, with wage
and other data within our possession which are relevant to the
Union's task as bargaining agent. The appropriate bargaining
unit is :
All production and maintenance employees of our Blue-
field, Virginia, plant, excluding office clerical employees,
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards, watchmen , professional employees , and supervisors
as defined in the Act.
WE WILL NOT discourage membership in the aforesaid Union
or in any other labor organization, by refusing to reinstate any of
our employees or by otherwise discriminating against them in re-
gard to their hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form, join, or assist the aforesaid Union, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized by the Act.
WE WILL offer to all our striking employees, except Vincile
Perkins, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their sen-
iority and other rights and privileges, dismissing, if necessary,
any person hired on or after November 26, 1957, and make whole
said striking employees for any loss of pay they may have suf,
fered by reason of our refusal to reinstate them upon application.
WE WILL, upon request, meet and bargain collectively with In-
ternational Hod Carriers', Building and Common Laborers'
Union of America, Local Union No. 453, AFL-CIO, as the exclu-
sive bargaining representatives of all our employees in the ap-
propriate unit, concerning rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement.
WE WILL furnish to the aforesaid Union wage and financial
data within our possession which is relevant to the Union's task
as bargaining agent.
All of our employees are free to become, remain, or refrain from
becoming or remaining members of the aforesaid Union or any other
labor organization.
THAYER, INC. OF VIRGINIA,
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.
THAYER, INC. OF VIRGINIA
INTERMEDIATE REPORT AND RECOMMENDED ORDER
227
STATEMENT OF THE CASE
Charges and amended charges were filed by the International Hod Carriers',
Building and Common Laborers' Union of America, Local Union No. 453,
AFL-CIO, herein called the Union, on January 20, February 4 and 20, May 27,
and June 25, 1958, all duly served on Thayer, Inc. of Virginia, herein called the
Respondent. On the basis of these charges the General Counsel of the National
Labor Relations Board, herein called the General Counsel and the Board, issued a
complaint by the Acting Regional Director of the Board's Fifth Region (Baltimore,
Maryland) alleging that Respondent had committed unfair labor practices in viola-
tion of Section 8(a)(3) and (5) of the National Labor Relations Act as amended,
61 Stat. 136, herein called the Act.
The complaint as amended at the hearing, in substance, alleges that from about
September 26, 1957, and thereafter Respondent refused to bargain with the Union
as the duly designated bargaining representative of Respondent's employees in an
appropriate unit and refused to reinstate various employees who had made an uncon-
ditional offer to return to work after having engaged in a strike caused by Respond-
ent's unfair labor practices. Respondent's answer denies the commission of any
unfair labor practices.
Pursuant to due notice, a hearing was held before the duly designated Trial
Examiner at Bluefield, West Virginia, from July 15 through 24, 1958. All parties
were represented by counsel and afforded full opportunity to present evidence, ex-
amine and cross-examine witnesses, make oral argument, and file briefs and proposed
findings of fact and conclusions of law. Briefs were received from both the
Respondent and the General Counsel.
On August 28, after the close of the hearing, the Board issued its decision in
Ra-Rich Manufacturing Corporation, 121 NLRB 700, reversing its previously held
position that the Jencks case, 353 U.S. 657, did not apply to Board proceedings.'
Pursuant to the Board's new interpretation of the Jencks case I issued an order on
September 8, 1958, reopening the record herein and directing that the General
Counsel make available to the Respondent the statements which were refused at the
hearing. I also gave Respondent 15 days in which to move to reopen the hearing
in the event it was desired to cross-examine on the basis of said statements. No
motion to reopen was made and the record herein is closed.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Respondent is, and at all times material herein has been, a corporation duly
organized and existing by virtue of the laws of the Commonwealth of Virginia,
having its principal office and place of business at Bluefield, Virginia, where it is
engaged in the manufacture and sale of juvenile furniture. In the course and
conduct of its operations during the 12 months' period preceding the hearing,
Respondent shipped goods and materials valued in excess of $50,000 from its
Bluefield, Virginia, plant direct to points outside the Commonwealth of Virginia.
Respondent admits and I find that Respondent is engaged in commerce within the
meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers ', Building and Common Laborers' Union of America,
Local Union No. 453, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Although it was stipulated that the Respondent began its operations in Bluefield
in January 1957, the evidence shows that at least 7 employees had been hired in
November and 12 in December 1956.2 In April 1957 the Union began its campaign
I Great Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280.
2 The November hirings appear from an exhibit listing Respondent's employees as of
November 25, 1957. The December hirings are taken from another exhibit showing the
dates of hire and wage increases made in 1957. The significance of the discrepancy be-
tween the stipulated starting date of operations and that reflected in the exhibits con-
cerns evidence regarding the 1956 Christmas as a paid holiday to be referred to later.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to organize Respondent's employees. On September 10 the Union won bargaining
rights in a Board-conducted election .3
At the time that the ballots were counted and it became apparent that the Union
had won the election a tentative bargaining date was discussed with September 26
claimed as the earliest that the Company's attorney would be available. At this
time Thurmond Radford, consultant-conciliator of the International and the Union's
spokesman on the negotiating committee, told J. C. Turley, a labor consultant
employed by the Company, that he thought the Union had conducted a clean
campaign and that he was "opposed" to the Company's having granted wage in-
creases during the campaign. Turley's reply was that to have withheld such
increases would have been a violation of law and that just because the Union had
won the election did not mean that the Company was going to stop doing things for
the employees on its "own." 4 According to Turley's testimony about this discussion,
he also commented to Radford that it appeared that the Union had won the election
and that the Company would like to begin bargaining as soon as possible.
In his letter confirming September 26 as the first meeting date Radford stated,
among other things,
I should like to point out that there has been an unusually long delay since our
original request for recognition as bargaining representative was made on May
21. 1957. Under the circumstances, we believe that the best labor management
relations can be achieved by devoting as much time as possible to the prompt
negotiation and consummation of an agreement. Accordingly, you are advised
that unless we are able to negotiate and execute an agreement resolving our
differences within the next sixty (60) days, our Organization will feel free to
engage in concerted activities for the purpose of achieving this result.
Prior to meeting with the union representatives, Respondent's negotiators 5 were
informed by Respondent's president that the Company was operating at a loss and
was in no "position to grant general wage increases, or fringe benefits, involving
money"-that they (the negotiators) "had his authority to go ahead and negotiate
a union contract covering rules and working conditions, recognition of the
Union, . but . not . . .:increases" in any respect whatsoever.
The September 26 meeting took place as scheduled at the plant during working
hours. Subsequent meetings occurred in the evenings 6 on October 25 and November
7 and 25. All but one of these dates again were claimed by Respondent as the
earliest time open to one or another of its representatives.
At the September 26 meeting the Union presented typed copies of its proposals
indicating at the time that its wage demands were left blank and would depend in
some measure on the extent that the negotiations brought "the fringe benefits of the
employees in the plant up to par with those prevailing in the furniture industry."
The essentials of the Union's initial demands were: (1) Dues checkoff; (2) seven
paid holidays with double time if worked; (3) one week's vacation for 1 year of
work, 2 weeks' for 2 years-discharged or quit employees to receive on a pro rata
basis the amount of leave earned; (4) grievance procedure ending in arbitration;
(5) leaves of absence; (6) plantwide and work group seniority after 60 days; (7) com-
pany contribution of 71/z cents per hour per employee to a health and welfare fund;
and (8) 4 hours call-in and report time.
At the Union's suggestion in this first meeting the negotiators proceeded to examine
and discuss the Union's proposals article by article. Turley commented that the
Union's proposed contract "looked like a right substantial contract for an initial con-
tract, that it appeared to (him) to represent fifteen or twenty years of bargaining
somewhere else, and (that) it would require considerable study by (the Company's
negotiators and their) principals before (the Company would) be prepared to
negotiate on it." The meeting lasted about 2 hours but was not long enough to
afford an opportunity to cover the entire proposal. Nor was very much accom-
9 The appropriate unit within the meaning of Section 9 (b) of the Act is : All produc-
tion and maintenance employees at Respondent's Bluefield, Virginia, plant, excluding all
office clerical employees, guards, watchmen, professional employees, and supervisors as
defined in the Act. On September 18 the Board issued its certification. Thayer, Inc. of
Virginia, Case No. 5-RC-2239.
* In his testimony Turley admitted making this statement. Whether it was at this time
or later during the negotiations is not clear.
5 Besides Turley representing Respondent there were, among others, John W. Gillespie,
an attorney, and Philip J. Carney, the son of the Respondent's president.
6In the first meeting Respondent objected to negotiations during working hours. The
evening meetings were the result.
THAYER, INC. OF VIRGINIA 229
plished in the way of agreement between the two parties. The Company readily
agreed to the recognition clause, Turley commenting that it could not be questioned
that the Union was the bargaining agent of the employees for a period of 1 year.
The Company also agreed to share with the Union the cost of printing for distribu-
tion to each employee a copy of any collective-bargaining agreement that came out
of the negotiations . Aside from such minor or legally binding concessions,7 the
Union's proposals were either rejected, set aside for further discussion, or for a later
counterproposal.
As a reason for rejecting the Union's demand for any paid holidays the Company
cited what it claimed was the practice in that respect in connection with the United
Mine Workers. The Union countered with the comment that the Company had
already established a precedent for paid holidays by having paid the employees for
Christmas Day in 1956. The rejoinder was that there were just a few employees at
that time and in effect that it was simply a Christmas present. As for the Union's
vacation proposal, the Company indicated it was interested in something based on a
percentage of the employees' gross annual income.
According to Turley's statement to Radford at the end of the first meeting, the
earliest date that the Company could meet again was on October 15. Radford
protested the long period between meetings and referred to his letter requesting con-
summation of a contract in 60 days. Turley replied that the Company was not
"going to be in any hurry to negotiate (a contract) just so (the Union) can move on
and organize another plant." He also said he resented what he interpreted as a strike
threat and commented that the Company was not "going to be pushed or shoved,"
and "intended to negotiate fairly and in good faith on their contract and on (their)
own proposals that (the Company) would have later."
At the outset of the October 15 meeting Gillespie, the company attorney, made
a statement about the Company's financial position coupled with a request that
negotiations be deferred for a year .8 Gillespie, claiming that the Company was
operating at a loss, pointed out that the plant had been brought into the community
as a civic project to establish diversified industry; that some $600,000 had been
raised by public subscription with which to build the plant to be used as an induce-
ment to an outside firm; that the Carneys had been invited to establish in Bluefied
and had borrowed money to equip the plant; and that "they were still in the process
of training a lot of employees . . . and a great deal of the material which was
being produced was below standard . . . and . . . had to be burned." Gillespie
also indicated that the Company's "books were open. And that they would not
be able to pay a general wage increase." Radford replied that he realized the plant
was new, and that the Union would like to give "as much of a break" to the Com-
pany as possible. He also reiterated that if the fringe benefits were brought "up
to par with those prevailing in the furniture industry" the Union's wage demands
"would be substantially less."
From this point the negatiators proceeded with their article by article perusal
of the Union's proposals. Again, little progress was made toward agreement.
Radford indicated that he "intended to notify the Federal Mediation and Concilia-
tion Service, and the Virginia Department of Labor." Turley said "We don't need
them" and added that he was "suspicious of those fellows." Gillespie suggested
putting a 2-hour limitation on the sessions but did not press it when the Union spoke
against it.
At the end of the meeting Gillespie said that he would write Radford as to when
he would be available for another meeting. Outside, in an informal discussion
between the two, Gillespie said that it appeared that November 7 would be the first
open date. In this same discussion Radford told Gillespie and Turley "that it was
going to take a substantial wage increase before they would be able to get over
the hump on the contract."
As he stated, Radford then wrote to both the Federal and State agencies referring
to his previous filing of the 60-day notice on September 23 and indicating the exis-
tence of a dispute within the meaning of Section 8(d) of the Act. On October 22,
7 Other examples of such concessions were that employees should not be required to take
time off to offset overtime worked, and the agreement to pay time and a half for all hours
worked in excess of 40 in any 1 week (both covered by requirements of the Fair Labor
Standards Act).
8 This is from Rad'ford's testimony. In his testimony Turley claimed that the request
for a year's deferment was only with respect to wages and matters involving financial
cost to Respondent. I see no need to resolve this conflict. Quite likely both versions
reflect each side's honest interpretation of the statement.
535828-60-vol. 125-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Radford wrote the Company complaining of the delay between meetings and inquir-
ing if the tentative November 7 date was open. The Company's letter suggesting
November 7 as the next meeting date crossed Radford's in the mail.
The November 7 meeting took place as scheduled. The Union presented a revised
vacation proposal encompassing a percentage type base. The proposal called for
a vacation period of the first 2 weeks in July of each year with payment of 2 per-
cent of annual gross wages for employees with 6 months' to 3 years' employment.
3 percent for 3 to 5 years' employment, and 4 percent for 5 years' or more employ-
ment. It also provided for a pro rata payment to separated employees and the
crediting of total employment to laid-off employees who return to work. The Com-
pany objected to the July period and the Union agreed to a more flexible period.
The Company also objected to the qualifying period of employment and the progres-
sive percentages involved. As a counterproposal the Company suggested a 2 per-
cent payment after 1 year of service. In this connection Radford pointed out that
it was his understanding that during the union campaign the Company had granted
paid vacations to all employees with 60 days' service. Turley's reply was "that that
was during the time when other plants in the area were closing down for vacation
period, and that Mr. Carney just felt like giving them a vacation."
It was in this meeting that the Union made its wage demands known-25 cents
an hour across the board. Gillespie countered with another statement as to the
Company's inability to meet any wage or other cost demands. He again suggested
a year's moratorium on any bargaining involving money but this time suggested
that at the end of that time the Company would "put in an appropriate wage increase,
or negotiate a profit sharing plan." Radford's reply to this was that it appeared that
the Company was trying to "crowd" the Union into a strike and that it would be
an unfair labor practice strike because of the unilateral increases the Company was
giving the employees. Gillespie commented that "Just because you won an election
in this plant is no sign we're going to stop doing things for our employees." The
Company also indicates that it was not intimidated by any strike threats. Radford
then said that since the Company was pleading financial inability, he wanted it to
provide the Union with "financial information and data to back up this position."
When asked to specify what data he wanted, Radford said he wanted to consult
counsel.
In addition to learning the wage demands of the Union at this meeting the Com-
pany also inquired what the Union's fringe demands were. Radford stated those
that he "attached the most importance to," naming 2 hours reporting and call-in
pay,9 the vacation plan, paid holidays, and a proposal that the Company pay the
Blue Cross-Blue Shield premiums the employees were carrying. The latter was
offered as a substitute for the Union's original health and welfare proposal. At the
end of the meeting, which came about 10:30 p.m., the Company gave the Union
its typed counterproposals. When Radford told the Company that he thought it
was about time they got serious in the negotiations, Turley replied, "I don't know
about the union representatives, but the company representatives have already spent
more time on these negotiations than they had intended. Maybe we can wind it
up at our next meeting." Radford had to attend a convention November 21, 22,
and 23. Since the Company claimed it could not meet on any date before the 21st,
it was agreed that the next meeting would take place on November 25.
The November 25 meeting, fourth and last of the fruitless negotiations between
the Company and the Union, took place as scheduled. After some discussion on
the Company's proposals, the Company again asked the Union to state its wage and
fringe demands. Radford did so. The Company asked if these were the Union's
minimum demands. Radford replied, "That's a fair assumption." The Company
then caucused. When the meeting resumed, Gillespie again proposed that nego-
tiations be deferred for 1 year on anything involving cost to Respondent. At this
point Radford reviewed the negotiations as he saw them. He stated that while
pleading financial inability the Company had "been unilaterally granting wage in-
creases to the employees at the plant, including (his) negotiating committeemen;
that they were proposing no paid holidays and they previously paid holidays. .
that they were offering a vacation plan that contained less than what they had paid
the employees prior to the negotiations." Radford continued, saying that the
Respondent was offering less than the employees had enjoyed prior to selecting the
Union as their bargaining agent. He also stated that the Company was "bargaining
in bad faith, and had just about exhausted (his) patience," and added that it looked
like the Company was truing to force a strike. Receiving no offer to alleviate the
situation, Radford told his commitee, "We may as well go," which they did.
9 The Union had reduced its demand from 4 hours to 2 hours.
THAYER, INC. OF VIRGINIA 231
At noon next day in a parking lot near the plant the employees voted to strike
and did not return to work. Picketing began the next morning. Prior to the picket-
ing, Radford called the employees across the road from the plant and "told them
that they had the right to peacefully picket the plant facilities, and that they were
not to engage in any coercion, intimidation, threats, violence, damage of property,
not to bring any whiskey to the picket line, that it sometimes caused difficulties,
and that (he) didn't want a large number of pickets across the road, that (he) wanted
a small number of people there."
On the day that the picketing started, a representative of the Federal Mediation
and Conciliation Service called Radford and informed him that he had arranged to
meet with the Company on December 3 and wanted to meet with Radford on
December 2. Neither meeting took place but not by reason of any action on the
part of the Union.
On December 3, Radford called Gillespie about a meeting. Gillespie said "he
didn't see how he could meet that week." Radford then called Carney who said,
"Maybe we can meet in the evenings" and promised to contact Gillespie and Turley.
The latter called Radford back and said, "he didn't see anything to meet about";
that the Company "was let down" by the Union "having left the meeting"; that the
Company had nothing in the way of money to offer and that to meet would be a
waste of time.
On December 11, Radford called Gillespie again and asked if the Company
wanted to "continue . negotiations." Gillespie said he would check and call
back. The next day he sent a wire to Radford stating that there had been "no
change" since Turley's conversation with him. On December 17, Radford called
Turley and asked if "there was any possibility of getting the negotiating committees
together." Turley said "he didn't know of any change" and told Radford that any
decision by the Company about resuming negotiations was up to the elder Mr. Car-
ney. Turley also said that he had refused another offer of the Conciliation Service
to step in. The following day Radford called Gillespie to see if there was any
chance of getting a meeting. Gillespie said, "It doesn't look like it."
On December 31, Radford called Gillespie from Morgantown, West Virgina, and
asked if there had been any change in attitude about meeting with the Union. Gilles-
pie said if there was any change he was not aware of it. Radford said it does not
look like the Company wants to meet. Gillespie said, "No, it doesn't."
The following day Radford wrote the West Virginia Department of Labor in an
effort to enlist its aid. On the same day he also wrote the Company referring to
his several past requests for a meeting and again offered "to meet and confer with
representatives of the Company for the purpose of negotiating further on the unre-
solved issues. ." On January 8, Radford went to see Gillespie in Tazewell and
asked "if the Company had decided" to meet with the Union. Gillespie said he
knew of no such decision. Radford also gave Gillespie some Board citations in-
volving "unilateral changes in wages, hours and working conditions." On January
9 the West Virginia Department of Labor wrote both parties offering its services of
mediation and conciliation. On January 12, Radford wrote the Company referring
to his many previous unanswered requests for a meeting and again made such a
request. In a separate letter to the Company on the same date he asked the Com-
pany to supply the Union with certain specified financial data which he described
as being "necessary in order that the Union may adequately analyze the Company's
financial ability or inability to grant wage increases, and for the purposes of collective
bargaining generally.li In this letter he also asked for the names, job classifications,
and rates of pay for every employee in the bargaining unit.
On January 17, Radford again wrote the Company requesting the names of all
employees granted unilateral increases since September 10, 1957, and the amount
granted in each instance. In a separate letter to the Company on the same date,
Radford again requested a bargainng meeting. He also stated that he had been
informed that the Company had declined the offer of assistance from the Federal
Mediation and Conciliation Service and in its place suggested that the West Virginia
Department of Labor be called in. Additional requests for a meeting were made to
the Company either orally or in writing by Radford on January 27 and 31 and
February 3, 5, 10, and 12. None of the Union's written requests for meetings or for
10 Requested at this time was
1. Profit and loss statement for period January 1 to December 31, 1957.
2. Opening and closing balance sheets for the same period.
3. Detailed analysis of surplus account.
4. Detailed explanation of current and future financial prospects.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information were ever acceded to or answered . Nor were any of its oral requests:
granted.
In the evening of February 12, Radford met with the striking employees who
voted to abandon the strike and return to work . Individual requests for reinstate-
ment . were received by the Company on February 14 from all those named in the
complaint except Nancy Parker , Harold L . Miller, and Albert Crist whose requests
were received by the Company on February 15.11
Contentions and Conclusions on the Refusal to Bargain
The General Counsel contends that "the pattern of the bargaining , when viewed
as a whole . . . establishes that Respondent was adamant in its determination to
retain unilateral control over the essential conditions of employment and thus fell
far short of satisfying the statutory requirement to bargain in good faith ." In this
connection , the General Counsel points to the unilateral increases granted the em-
ployees from the time the Union became their certified bargaining agent and to
Respondent's failure to produce financial data requested by the Union . Both these
items are claimed by the General Counsel to be separate and independent violations
of the bargaining requirement of Section 8(a) (5) of the Act. They also are signif-
icant when viewed as part of the entire picture, the General Counsel says , in show-
ing Respondent 's failure to bargain in good faith . This failure, according to the
General Counsel , is further demonstrated by (a) the limitation on the authority
of Respondent 's negotiators to bargain on anything involving cost to Respondent,
(b) Respondent 's proposal to defer negotiations for a year , and (c ) "Respondent's
careless and indifferent attitude toward negotiations ." Furthermore, the General
Counsel contends , the Respondent 's refusal to meet with the Union after the strike
began "was not only a violation of Section 8(a) (5) in and of itself, but also clearly
reflects Respondent's determination not to deal with the Union from the outset."
By the General Counsel's theory the strike which occurred was caused by and
prolonged by Respondent 's refusal to bargain and thus was an unfair labor practice
strike.
The Respondent contends that the Company bargained in good faith to an impasse
which "arose primarily from matters involving money, including both wage rates
and certain fringe benefits ." On this premise, of course , the strike was purely an
economic strike . Besides engaging in "conduct which was inconsistent with the
free atmosphere conducive to successful bargaining," by starting and punctuating
its bargaining with strike threats, the Union, according to Respondent , maneuvered
to make an economic strike appear to be an unfair labor practice strike. This it did
by demanding records it hoped the Company would refuse. When it became ap-
parent that the Company would make the records available , the Union 's scheme
failed and it dropped the matter . The unilateral increases complained about by
the Union and relied upon by the General Counsel as evidence of a refusal to bargain
are defended by Respondent as simply a continuation of a company policy inaugu-
rated before the advent of the Union and totally devoid of any purpose to undercut
the Union 's status as bargaining agent of the employees . Respondent further con-
tends that the Union sponsored and was responsible for various acts of misconduct
in connection with the strike ( to be alluded to later herein ) and that as a result
any obligation it had to bargain with the Union as suspended during the occurrence
of such acts.
11 Named as discriminatees in the complaint , as amended, were :
George Bandy Sylvia L. Harless Milton F. McBride
George E. Barrett James A. Hicks Nancy Parker
William L. Belcher Allan C. Hildreth J. A. Payne
Bernard Billings Mary J. Hill Kermit Penland
Harold W. Blankenship Emory W. Howard Vincile Perkins
Clarence Leon Bryant James Howard R. J. Ritter
Clyde F . Bryant Howard G. Hubbard Taylor E. Roberts
Herbert Chapman Elbert M. Hudgins Monroe Semans
Mildred Cole Harless Jennings Flora Short
Albert Crist Carrie M. Keller Fannie M, Stallard
Floyd L. Dale Earl Roger Lacy S. P.'Thompson
Maggie F. Farmer Ada Lester Kenneth Watkins
Bob Garbish Lucille Lewis Vivian A. Watkins
Garnet D. Goodman Josephine Loretta Lockhart William C . Williams
Denver Graybeal Harry L. Miller Chester Workman
Lucy A. Hale James E. Mitchem Dean O. Wright
David A. Hall Lora J. Munsey
THAYER, INC. OF VIRGINIA 233
In substance, I agree with the General Counsel's contentions. I believe and find
that the record as a whole shows by a preponderance of the evidence that Respondent
did not approach or fulfill its bargaining obligation in good faith as required by the
Act.12
Superficially, it may appear that Respondent was simply engaging in hard bargain-
ing which conceded little or nothing as was its right under the law. But the incon-
sistencies of its bargaining positions and the anomalies of its attitudes belie the
legality of its motives. For instance, at the outset of the negotiations Turley stated
that the Union's demands appeared to him to be such as to request 15 or 20 years
of bargaining elsewhere and would require considerable study before the Company
would be ready to negotiate on them. Yet after spending less than 8 hours in bar-
gaining sessions and before the Company had presented its counterproposals Turley
commented that the Company had already spent more time in negotiations than it
had intended. Likewise, notwithstanding Turley's comment to Radford about the
Company's desire to get started on negotiations as soon as possible after the election,
this eager attitude apparently had no effect on the setting of the bargaining dates-
even the first one. Nor, apparently, did it prevail when Gillespie sought to limit
the period of the bargaining sessions to 2 hours. Later on, moreover, Turley
indicated that the Company was going to be in no hurry to negotiate a contract thus
enabling the Union to "move on and organize another plant." Evidence such as
this when viewed in the context of the entire record leaves me with the impression
that the Company was something less than enchanted with the Union and the con-
cept of collective bargaining. But there is nothing in the law that requires an
employer to love the Union which has been certified as the collective-bargaining
agent of his employees; the law only requires that he bargain with such a union in
good faith. The nice point in this type of case always is to determine when distaste
for the Union really had developed and been translated into a resolution not to
engage in genuine bargaining or to enter into a contract. In this connection here,
I believe that the circumstances surrounding the individual wages increases granted
by Respondent provide the key to the question.
There are two divisions in Respondent's plant, the wood division directed by
Walter Waaranen, and the mattress and metal division directed by Q. W. Tanner,
both of whom have the title of superintendent. All wage raises are made by the
foreman, usually in concert with either of the superintendents who are independent
of each other in authority over their own divisions. According to Waaranen's
testimony, merit increases are based on the employees' "production and the quality
of their workmanship." There is no doubt, and I find that most of the employees
were informed of this fact when they were hired.
As noted, the Company had people working for it as early as November 1956.
By the end of December 1956, the evidence shows a total of 19 hires. In the month
of January 1957, the Company hired some 25 people. Seventeen were hired in
February and twenty-six in March. By the end of March, the Company had made
only a total of nine individual increases, six in April and three in March. But in
April, the month that the union campaign began, 45 individual increases were given.
Thereafter, except for the month of July (when only 5. increases were given) the
number of increases per month were 25 in May, 30 in June, 33 in August, 41 in
September, 33 in October, and 4 in November.13 During 1957 approximately 227
individual increases were given by Respondent to about 148 different employees.
During that period the highest number of employees on the payroll at any one time
was 163 as of September 1, 1957. At the time the strike started there were about
154 people on the payroll.
These figures raise some questions even when viewed without the aid of the sur-
rounding circumstances. Rather than merit increases, the extent of these increases
certainly give them the appearance of a general wage increase. Also the sharp gain
in the incidence of the increases coinciding with the advent of the Union's organizing
campaign in April would seem to indicate some connection between the two. But
more damaging to Respondent in this connection is the inconsistency of its positions
12 See Bonham Cotton Mills, Inc., 121 NLRB 1.235, where the Board, on the basis of
the totality of the record which included unilateral acts by the Respondent, a lack of
sufficient authority in its bargaining agent, and other conduct found that "Respondent
did not bargain in good faith, but merely entered into sterile discussions with the Union,"
and did not make "a reasonable effort to reach an agreement as required by the Act."
la Waaranen became superintendent of the wood division about July 1, 1957, having
worked with the previous superintendent during the month of June. Waaranen explained
the small number of increases in July on the basis of his then unfamiliarity with the work
of the individual employees.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein. While claiming financial inability to grant any concession involving cost,14
the Company was giving enough individual increases to equal or exceed a general
wage increase. Moreover, while claiming that these increases were based on the
improved quality and quantity of individual production, the Respondent was also
protesting to the Union the high incidence of faulty production that was occurring
and complained about other shortcomings of the employees.15 For these reasons,
and considering the record as a whole, I am convinced that Respondent's actions
regarding the wage increases it granted during the union campaign and after it
had been certified as the collective-bargaining agent of the employees were motivated
in substantial part by the desire and purpose to undercut and discredit the Union
as the bargaining agent of the employees and so find. However, even if I were to
conclude that the increases would have been made in the same amount and number
regardless of the Union's appearance in the plant, I would still find that by continuing
to make them after the Union became the certified bargaining agent of the employees
and after the Union protested the making of them, as it did on more than one
occasion, the Company was committing an unfair labor practice within the meaning
of Section 8(a)(5) of the. Act. May Department Stores, d/b/a Famous-Barr
Company v. N.L.R.B., 326 U.S. 376, 385; N.L.R.B. v. Armstrong Cork Company,
211 F. 2d 843 (C.A. 5); Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB
953.
Having found that Respondent refused to bargain with the Union as indicated
it is apparent, and I find, that said refusal to bargain was the direct cause of the
strike which began on November 26. Thus, from its inception, the strike was an
unfair labor practice strike. I also find that Respondent's conduct after the strike
commenced further violated its obligation under the Act to bargain and tended to
prolong the strike. Not only did Respondent's failure, after the strike began, to
acknowledge or accede to any of the Union's numerous requests for meetings con-
stitute further violations of its duty to bargain, but its failure to supply at least the
profit and loss statement and balance sheets and payroll data requested by the Union
in its letters of January 12 and 17, constitute further and independent violations
of its duty to bargain. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149; Shoreline Enter-
prises, 117 NLRB 1619. In reaching these conclusions I have considered and re-
jected as being without merit Respondent's contention than numerous acts of violence,
vandalism, and misconduct in connection with the strike were sponsored by the
Union and consequently suspended any obligation on the part of Respondent to
bargain with it. To show the Union's connection with and responsibility for said
conduct, the following evidence was adduced:
According to the testimony of Lloyd Cackler, a witness called by the Respondent,
early in the strike "Red" Warner, the then business agent of the Union, told Cuckler
(who was then striking but later abandoned the strike to return to work) that the
strikers were "going to have to get rough" if they expected to keep people from
crossing the picket line. On another unidentified occasion, Warner told the strikers
that "the union would protect them on anything that they done." Warner did not
testify.
James H. Moorehead, another of Respondent's witnesses, testified on direct exami-
nation that he heard strikers on the picket line make the statement that they ought
to get rough to which Warner agreed saying that "probably they'd have to get rough
with them before they could stop them from entering." On cross-examination, how-
ever, Moorehead testified that Warner's reply to the suggestion by the strikers that
they ought to get rough was "that would be one way of handling them." Moorehead
also testified that on another unidentified occasion Warner had said that the Union
"would stand behind (the strikers) in anything that was done, they would pay the
fines if anything happened." Moorehead also testified that at a union meeting he
heard some strikers make the suggestion that they would have to get rough and that
Radford commented "that was one way of doing it."
Clarence Matthews testified that one morning soon after the strike started, he
heard Radford tell a group of strikers, "I'll get you out of anything you do up to
murder." In his testimony, Radford categorically denied the statement.
Herbert Dillon, another of Respondent's witnesses. testified that he heard com-
ments by strikers about "getting tough or tougher" but that he never heard such
remarks by either Warner or Radford.
14 Even such a minor and remote one as paying the employees the difference between
their rate of pay and that earned by them when called for jury duty was rejected by
the Company in the negotiations.
'a Turley testified that one of the serious problems confronting the Company at the
time of negotiations was absenteeism.
THAYER, INC. OF VIRGINIA 235
Early in the morning of January 13 a crowd of strike sympathizers, estimated by
various witnesses to be anywhere from 50 to 500 strong, collected at the plant. As
the nonstriking employees began to arrive trouble commenced. Car windows were
broken, cars were stoned, and one car was overturned after having hit one of the
people in the crowd. By 6:45, the turmoil had ceased and the crowd had left or was
on its way. Cuckler testified that it was still dark as he arrived at the plant that
morning about 6:45. Several cars were leaving. About 125 yards from the plant
he saw Warner's car, a gray Studebaker, parked at a gas station. John D. Dority, Jr.,
a witness called by Respondent, testified that he arrived at the plant that day at
6:30. The crowd was blocking the entrance so he put his car in low gear and
"pushed on through." As they proceeded someone broke a side window. People
were "hollering and hammering on the car," and rocks pelted it all the way down to
the plant. A few minutes later he was standing in the office of the plant watching
as the crowd left. The office was situated about 90 feet from the highway upon
which the departing traffic was moving. Among the cars he saw leave was
Radford's-a black and white Buick.16 He could not see the occupants of the car,
however. Dority also testified that as he turned into the driveway to the plant that
day he saw 20 or 30 people he could recognize as employees of the plant.
Clarence Matthews, another striker who had abandoned the strike to return to
work and who arrived at the plant at about 6:30 on January 13, testified that his
car was stoned and he was cursed as he pushed through to the plant in low gear.
He named eight individuals he was able to recognize in the crowd at that time,
among them being "Red" Warner, the union business agent.
Another witness for Respondent, William T. Johnson, testified that by the time he
arrived at the plant on January 13, the car had already been turned over. A big
crowd was blocking the entrance so he "busted on in, and they just scattered."
A rock broke his right window. Johnson claimed to have recognized George Bandy
and Doug Harris, the former "scratching around there getting rocks as fast as he
could, and throwing them." Johnson also saw Taylor Roberts, Fannie Stallard, and
Lucy Hale there. He also placed Radford at the scene that morning."'
Charlie Hollingsworth, another nonstriking employee who was called by Respond-
ent, testified that he had ridden to work on January 13 with the above William T.
Johnson. As they drove through to the plant he recognized two strikers standing at
the side of the driveway-Taylor Roberts and George Bandy. He saw neither one
throw anything.
Two other pieces of evidence complete the picture of the Union's alleged sponsor-
ing of and responsibility for the strike misconduct:
1. On at least one occasion Radford was seen taking pictures of the nonstriking
employees' cars as they were leaving the plant.
2. About a week after he abandoned the strike and returned to work on January 7,
according to Cuckler's testimony, two strikers, Henry Neal and one South, came into
a restaurant that Cuckler helped out at in his spare time and ordered a glass of
milk. There were other customers in the place at the time. Neal told South (in
Cuckler's hearing), "We can't get him in here, we'll have to wait 'till we get him
outside." With that they went outside and joined several other strikers among
whom was "Red" Warner. After about 5 minutes the group left.
In rebuttal for the General Counsel, Fannie Stallard testified, among other things,
how she came to the plant to picket on January 13 with Lucy Hale between 6 and
6:30; how they found the strangers there who informed them they were taking over
the picketing; how they went back to Asbury's store with their picket signs; how
when they came out of the store they found Bill Spencer who had been hit by one
of the incoming cars and who wanted to see a doctor; how they took 'him to a
doctor in Pocahontas who examined him and told them to take him to a hos-
pital; how they drove first to "Red" Warner's home some 9 or 10 miles out of
Pocahontas and some 15 to 18 miles from the plant and told Warner about the situa-
tion at the plant; and how he told them he would go down to investigate.
In his testimony Radford denied being at the plant that morning or for that
matter being in the Bluefield vicinity at all that day. Taylor Roberts also denied
being present. He testified that he was in Cincinnati on that date.
16 another of Respondent's witnesses, Ronald Tanner, the driver of the car which was
turned over, also testified about seeing Radford's car on that morning which he de-
scribed as green on the body and cream or gray on top. The car he saw was "approxi-
mately that description."
"On cross-examination Johnson was asked why he had not named Radford as being
among those present in the statement he had given the. Board. Johnson replied that he
had only been asked about employees being present.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing evidence, in my opinion, is insufficient to show that the Union
sponsored or was responsible for the misconduct occurring in connection with the
strike and I so find. The evidence is too vague, conflicting, and indefinite to prove
Respondent's contention. Seeing automobiles that look alike is not unusual these
days. And to rely upon the remarks attributed to Warner and Radford about getting
the employees off for anything they did in connection with the strike (even if made)
without more details as to the circumstances under which they were made and what
else was said would be unwarranted. Besides lacking details as to when and where
some of these remarks were supposed to have been made, the witnesses were unable
to testify as to anything else that was said by either of the two union representatives
or anyone else concerned. I specifically reject the testimony regarding the remark
attributed to Radford and credit his denial thereof. I also find that Warner's remark
in substance simply agreed that one possible way of keeping people from crossing
the picket line was to engage in violence-a self-evident fact. In concluding as I do
I rely in part on testimony by Radford and several of the General Counsel's wit-
nesses that both Radford and Warner gave repeated and detailed admonitions to
the strikers against engaging in any misconduct.
As for the remarks about getting tough, a comment that getting "tough" with the
nonstrikers "would be one way of handling them" can hardly be said to indict the
Union in this matter. In rejecting the testimony about the presence of both Radford
and Warner at the disturbance of January 13 I am swayed by Radford's testimony
denying his presence and that of Fannie Stallard about her trip with the injured
Spencer to Warner's home that morning. I also have been influenced by some in-
consistencies in Respondent's evidence and by what I consider to be some inherent
improbabilities therein. For instance, Johnson, who placed Radford at the scene on
January 13, testified also that he saw George Bandy as he drove in that morning,
"scratching around there getting rocks as fast as he could, and throwing them."
Yet Hollingsworth, who rode in with Johnson that morning, saw Bandy standing by
the side of the driveway, throwing nothing. Also, several of Respondent's witnesses
testified that it was dark when they arrived at the plant on January 13 18 and that
they drove on through without stopping, usually under a barrage of rocks. Yet
many of these people testified how they recognized several strikers-Matthews
named 8 and another claimed to have recognized 20 or 30. More credible and
plausible to me is the testimony of Bernard Booth who testified that on the way in
he did not see anyone he knew-that he was too scared to look and did not have
time to look anyway and besides it was "fairly dark." 19
Respondent also contends that the Union's connection with and responsibility for
the strike misconduct is further established by "its failure to disaffirm it" which
failure implies "acquiescence and condonation." A similar theory was rejected in
N.L.R.B. v. B.V.D. Company, Inc., 237 F. 2d 545 (C.A., D.C.).
Having disposed of the question of the Union's responsibility for the strike mis-
conduct, there remains the matter of its effect on the Company's obligation to
reinstate individual employees 20 Respondent contends that "the evidence is over-
whelming that strikers regularly engaged in blocking of ingress and egress by stand-
ing in the middle of the Company's driveway and forcing cars entering or leaving
the plant to go around them and pass through a water hole filled with roofing nails.
By engaging in this conduct they were both blocking ingress or egress and engaging
in malicious damage to property." That the pickets stood in the middle of the drive-
way to the plant singly or in pairs is clearly established by the evidence. The evi-
dence also establishes that at some point in the strike someone had thrown a quantity
of roofing nails in driveway. But the evidence, notwithstanding these facts, does
not in my opinion establish that the pickets were "blocking ingress or egress" or that
they "engaging in malicious damage to property."
18 It hardly requires an almanac to recognize how dark it must have been at 6 :30 in
the morning on January 13, only a matter of days past the winter solstice with its
longest night of the year.
10 Several of Respondent's witnesses identified none on this occasion. In this group
were Herbert Dillon, Harding Thompson, Herbert Asbury, and Luther Underwood. The
latter testified, ". . . it was dark, I could not tell who was there. . . .. He also testified
that it was way after 7 o'clock before it became light.
20 The strike, being an unfair labor practice strike, imposed upon Respondent the re-
sponsibility of reinstating the striking employees upon their unconditional offer to return
to work, displacing if necessary, anyone hired after the strike began. Consequently by
failure to comply with the strikers' mid-February unconditional offers to return to work,
Respondent violated Section 8(a) (3) of the Act.
THAYER, INC. OF VIRGINIA 237
The access driveway to the plant presumably came out of the plant property
perpendicularly to the highway. There was a high spot in the center of the drive with
ruts or declivities on both sides caused by the wear of traffic in and out of the plant.
During wet weather these depressions would fill up with water and at times were
muddy. Whether there were two ruts on each side of the center or only one I am
unable to determine from the record . However, the evidence is clear and I do find
that the driveway was wide enough to accommodate two cars abreast and that cars
often came down the driveway from the highway in that manner and came out to
the highway the same way . I also find on the basis of Fannie Stallard's uncon-
troverted testimony that the sheriff advised the pickets to stand in the center island
of the drive as "the safest place not to block the traffic " and where the cars could
pass on each side of them . The evidence also shows that the pickets on the
driveway usually carried a flashlight . According to some of the Respondent's
witnesses the pickets flashed the light in the eyes of the drivers, trying to blind
them. This was denied by the General Counsel's witnesses who claimed their only
purpose in using a light was to protect themselves from oncoming cars in the dark-
ness. There was also some testimony by Respondent 's witnesses to the effect that
the pickets often cursed them as they drove through the picket line. The General
Counsel 's witnesses also denied this with the unanimous claim that they never spoke
at all to the people passing through the line.
While I have some doubts about the pristine purity with which the General
Counsel's witnesses would have me believe they deported themselves in the strike,
I am of the opinion , nevertheless , that none of this evidence reflects conduct of
sufficient seriousness to cause a forfeiture of the right of reinstatement of any of
the strikers involved . At the most , the only impediment suffered by the employees
crossing the picket line would appear to have been a sense of inconvenience or irri-
tation. The conclusion I have reached about this matter might be different if it
were shown that the pickets were responsible for the presence of the roofing nails in
the driveway or knew of their presence . 21 But this was not shown.
Vincile Perkins is one of the strikers who has already been denied reinstatement
by Respondent on the basis of information concerning misconduct toward two
then nonstriking employees. Under the doctrine of .Rubin Bros. Footwear, Inc.,
et al., 99 NLRB 610, an employer's good-faith belief that such conduct occurred
would be an adequate defense to a requirement of reinstatement unless the General
Counsel came forward with evidence showing that the conduct did not occur. The
facts regarding Perkins are these:
Roger Walker, Respondent 's purchasing agent, was informed by one of the
nonstriking employees that her son , an 18-year-old boy by the name of Bobby
Baughman and his 18 -year-old friend , Bobby Layne, both nonstriking employees
of Respondent , had been accosted by strikers Vincile Perkins , Roger Lacy , and two
other young men one night during the strike at a store frequented by young people.
According to the report , Perkins had invited Baughman and Layne to come outside
and fight. The storekeeper had ordered Perkins and Lacy to leave and had told
Baughman and Layne to leave by the back door to evade their molesters. This
information was passed on to Superintendent Tanner in whose department Perkins
worked.
Bowman , the storekeeper , testified that Perkins and others were outside in front of
his store . Perkins asked Bowman if they could come in and talk to Baughman and
Layne. Bowman told them they could not, that he did not want any trouble there.
Inside the store Bowman told the two youngsters that the fellows outside seemed
"to be kind of mad at you about this strike, and I would not go out there until they
left." He also testified that Perkins and his group left before closing time and that
he could not recall whether they ever came into the store.
Baughman testified that the group (Perkins, Lacy, Randolph Scott, and Bobby
Ward) came inside and brought up the subject of the Union . Someone, Baughman
was unable to remember who, said, "if either of you think you can whip us, come
on outside ." Someone also said that if they did not stop working they "might get
hurt." In the conversation the boys agreed to stay out until the first of the year.22
Baughman further testified that "everybody was friends when they left. They did
not have anything against us and we did not have anything against them ." Layne
testified that while Perkins did most of the talking on this occasion, he believed that
21 One of the pickets who later abandoned the strike and returned to work testified
that while he was on strike he saw some nails-in the driveway and kicked them out saying
he did not believe in such things.
22 This they did.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lacy tendered the invitation to come outside. He also testified that "it was a friendly
conversation . as it developed."
Perkins denied making any threats on this occasion or hearing any made.23 Ac-
cording to his testimony, he told Baughman that they were out on strike and would
"appreciate it if he'd stay out with" them. Lacy's testimony corroborated Perkins.
Neither Perkins' nor Lacy's version sounded convincing to me. I credit Baughman
and Layne.
At the end of the strike, Perkins was interviewed regarding reinstatement by
Tanner along with other strikers among whom was James Mitchem. Tanner told
Mitchem at this time that he could not be rehired until a West Virginia indictment
against him was dismissed. No mention, however, was made to Perkins at this
time regarding the Baughman-Layne incident. Later, Tanner learned that the
Company had filed an NLRB charge against Perkins. On May 15, Lacy was
recalled to work by the Company.24 Nothing about this matter was ever mentioned
to Lacy until sometime in June when he was questioned about it by the company
attorneys in the preparation of their defense.
Even though I find that Baughman and Layne were threatened with harm if they
did not join the strike and that Perkins was involved in the matter, I believe and
conclude that on the record herein to deny him reinstatement on this ground would
be unjust and is not required by the Act. While the evidence shows that Perkins
did most of the talking, it would appear that Lacy was the one who tried to start
the fight. It seems to me that both Lacy and Perkins were equally guilty in this
matter. The Company has seen fit to take the position that Perkins is not worthy
of rehire yet at the same time his equally guilty partner is obviously acceptable
to the Company and is back on the job. It seems to me that by this conduct, the
Company has condoned Perkins' transgression and has waived any right to resist
his reinstatement or other remedy to which he may be entitled. I so find.
Of those strikers listed in the complaint as having been discriminated against
by Respondent, the Respondent's witnesses named eight who were at the scene of
the January 13 trouble. Those eight were Fannie Stallard, Lucy Hale, Carrie Keffer,
Loretta Lockhart, Taylor Roberts, Bernard Billings, William Williams, and George
Bandy. All of them except Bandy were merely identified as being at the scene,
either at the side of the driveway or in the crowd generally. Bandy, however, was
claimed to have been throwing rocks 25
The testimony of Roberts, Stallard, and Hale, as far as their presence at the
plant that morning was concerned, has been set forth.26 Lockhart testified that she
was home in bed until 8:30 that morning and did not get to the plant until noon
that day. Carrie Keffer testified that as she arrived at the plant she saw Stallard
and Hale leaving. She went to the fire,27 and had a few words with Elbert Hudgins.
At about that time the Tanner boy "came flying off the highway into the crowd."
Somebody hollered, "Oh, God, he hit somebody." She turned and saw a man getting
up. Keffer left and went home.
Billings testified that he was home on January 13, 32 miles from the plant. Ronald
Dillon was supposed to have picked him up but did not do so. Williams also testi-
fied he was home in bed. Bandy testified that he got to the plant about 6:40. Hale
and Stallard were still there. He stayed about 10 or 15 minutes and left. He heard
rocks thrown but denied throwing any himself.
With respect to all of the above eight except Bandy, it seems to me that the evi-
dence (regardless if I should find all of them present which conflict I deem it
unnecessary to resolve) is insufficient to show participation on their part in the
illegal activity. All that the record shows is that they were there as was their
practice at that hour throughout the strike. I so find.
With respect to Bandy, however, I must resolve the conflict between Matthews
and Johnson on the one hand and Bandy on the other. I have already indicated
22 Perkins and Lacy were both young men but appeared to be a few years older than
Baughman and Layne.
24 The evidence also shows that on the basis of Mitchem's indictment being dismissed
he also was rehired by the Company.
'Both Matthews and Johnson so testified. Hollingsworth on the other hand, testified
that Bandy was not throwing anything.
26
Roberts claimed to have been in Cincinnati, it will ,be recalled, and Stallard and Hale
had left the scene and had taken Spencer to the hospital via a visit to Business Agent
Warner some 18 miles from the plant.
27 Since it was midwinter there was always a fire by the side of the road burning in an
oil drum.
THAYER, INC OF VIRGINIA 239
some skepticism about the ability of anyone driving into the plant that morning to
see well enough to make any accurate observations A reading of Matthews'
testimony on the events that day serves only to heighten this skepticism Not only
did he name eight people he recognized, but went into considerable detail about what
several of them said and did Johnson identified six on that occasion But his testi-
mony about Bandy's throwing rocks was contradicted by another occupant of his
car, Hollingsworth Since Johnson was driving and Hollingsworth was just a
passenger it is apparent that Hollingsworth was in much the better position to observe
I credit Bandy here and find that his presence on this occasion does not stand in
his way to reinstatement
On the first day of the picketing Henry Neal and Taylor Roberts met the bus
Hollingsworth came to work on which stopped in front of the plant They got
Hollingsworth and tried to convince him he should join the strike, telling him that
the Union would help him Hollingsworth voiced no objection to going with them
and talking to them They made no threats to Hollingsworth nor did they engage
in any coercive conduct toward him However, Hollingsworth did not go to work
that day and it would appear from his testimony that he was afraid to act any
differently than he did 28 Under the circumstances Roberts and Neal can hardly
be penalized for any element of coercion or intimidation experienced by Hollings-
worth in this matter I find this conduct here to be permissible
The day after the strike started, according to Matthews, he drove into the plant
driveway as if he meant to go on but stopped Lucy Hale came over and said,
"You rotten - -, you go back to work and I hope you get executed"
Hale's version was that she opened his door and said, "You're not going back in
on us, are you?" to which Matthews replied, "No, I'm not, I'm going to stay out
with you " Hale also specifically denied the use of any profane language My
observation of Hale would lead me to believe that she was not the type of woman
who would use profanity gratuitously if at all And it seems to me that the pro-
fanity attributed to her at this stage in the strike and the circumstances here could
be characterized as completely gratuitous I credit her denial
According to Matthews' further testimony, on Saturday, the first week of the
strike, he went into the plant to get his pay and remained there for about an hour
talking to his foreman When he came back he found one of the tires on his car
had been cut Across the road from the car at the time were Williams, Billings,
Stallard, Hale, all named in the complaint, and others Obviously, someone did not
like Matthews But there is nothing here that implicates any of the above strikers
Apparently there were a few striking employees who took it upon themselves to
engage in a variety of vandalism of this kind There are numerous incidents involving
vandalism, directed not only to nonstrikers but also to many strikers, committed by
unknown persons There were also three or four strikers and strike sympathizers
who were charged with numerous tire slashings and who pleaded guilty In addition,
there are several incidents involving intimidation and force directed toward the
nonstrikers by striking employees who for that reason were not named in either
charges or the complaint, and which, for the same reason , I have not discussed
Matthews also testified that after he returned to work a group of strikers , including
William Williams, James E. Mitchem, and E L Hudgins, passed him in his car
and thumbed their noses at him They slowed down in front of him and when he
tried to pass them they prevented it They kept this up all the way to the plant,
some 3 miles or so Near the plant entrance they signaled for a left turn but
instead made a sudden stop in front of him nearly causing him to hit them Then
they thumbed their noses at him and pulled away In their testimony the three
strikers deny the incident
On another occasion when Matthews was working on the roof of the plant,
Billings and Mitchem and an unidentified female striker shouted at him from the
road cursing him and another employee and saying they hoped he and the other
nonstrikers starved to death This was also denied by the two strikers
These last two items seem to me, when viewed in the context of the entire record,
to be of an isolated and relatively inconsequential nature even if they occurred
Furthermore, one of the accused strikers who was involved in both incidents was
recalled to his job by Respondent In these circumstances it would seem that to
exclude the other two from reemployment would be inimical to the effectuation of
the policies of the Act rather than helpful I so find
23 Hollingsworth was the colored janitor, and so far as the record shows the only colored
person employed in the plant
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce in the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Company. has engaged in and is engaging ,in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to effectuate the policies of
the Act.
It has been found that the Company refused to bargain collectively with the
Union thereby interfering with, restraining, and coercing its employees. I shall
therefore recommend that the Company cease and desist therefrom and from any like
or related conduct, and also, upon request, bargain collectively with the Union with
respect to wages, hours, and other terms and conditions of employment, and
embody, in a signed contract, any understanding reached.
It has been further found that the strike herein was an unfair labor practice strike,
caused by the Company's refusal to bargain. I shall therefore recommend that
the Company offer, upon application, immediate reinstatement to their former or
substantially equivalent positions,29 without prejudice to their seniority and other
rights and privileges, to all of the strikers, dismissing, if that be necessary, any re-
placements hired; those strikers for whom no employment is available because of
any change in the Company's operations shall be placed on a preferential hiring list
for all jobs for which they are qualified, with priority determined among them by
such system of seniority or other nondiscriminatory practice as heretofore has been
applied in the conduct of the Company's business, and thereafter in accordance
with such list shall be offered reinstatement as positions become available and before
any other persons are hired for such work.
I shall also recommend that the Company make whole such strikers for any loss
of pay they may have suffered by reason of the Company's refusal, if any, to re-
instate them, by payment to each of them of a sum of money equal to that which
he would normally have earned, less his net earnings, during the period from 5 days
after the date on which he applies for reinstatement to the date of the Company's
offer of reinstatement.
In view of the nature of the unfair labor practices committed, the commission
by the Respondent of similar and other unfair labor practices may be anticipated.
I shall, therefore, recommend that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and at all times relevant herein was, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Hod Carriers' Building and Common Laborers' Union of America,
Local Union No. 453, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to reinstate the striking employees whose names appear on Ap-
pendix A herein, Respondent engaged in discrimination to discourage membership
in a labor organization, thereby engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
4. All production and maintenance employees at Respondent's Bluefield, Virginia,
plant, excluding all office clerical employees, guards, watchmen, professional em-
ployees, and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
5. At all times since September 10, 1957, the Union has been and now is the
exclusive representative of all the employees in said unit within the meaning of
Section 9(a) of the Act.
6. By failing and refusing to bargain with the Union on and after September 26,
1957, Respondent engaged in unfair labor practices proscribed by Section 8(a)(5)
and (1) of the Act.
[Recommendations omitted from publication.]
2D The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
FUNERAL DIRECTORS OF GREATER ST. LOUIS, INC.
APPENDIX A
241
George Bandy Sylvia L Harless Milton F McBride
George E Barrett James A Hicks Nancy Parker
William L Belcher Allan C Hildreth J A Payne
Bernard Billings Mary J Hill Kermit Penland
Harold W Blankenship Emory W Howard Vmcile Perkins
Clarence Leon Bryant James Howard R J Ritter
Clyde F Bryant Howard G Hubbard Taylor E Roberts
Herbert Chapman Elbert M Hudgins Monroe Semans
Mildred Cole Harless Jennings Flora Short
Albert Crist, Carrie M Keffer Fannie M Stallard
Floyd L Dale Earl Roger Lacy S P Thompson
Maggie F Farmer Ada Lester Kenneth Watkins
Bob Garbish Lucille Lewis Vivian A Watkins
Garnet D Goodman Josephine Loretta Lockhart William C Williams
Denver Graybeal Harry L Miller Chester Workman
Lucy A Hale James E Mitchem Dean 0 Wright
David A Hall Lora I Munsey
Funeral Directors of Greater St. Louis, Inc, St. Louis Funeral
Directors Association and Alvin C. Trapf
Miscellaneous Drivers and Helpers Local 610, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Alvin C. Trapf. Cases Nos 14-CA-
2064 and 1I-CB-729 November 20, 1959
DECISION AND ORDER
On dune 16, 1959, Trial Examiner Charles W Whittemore issued
his Intermediate Report in this case, finding that the Respondent
Union and the Respondent Funeral Directors of Greater St Louis,
Inc, had each of them engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth more fully in the copy of the Inter-
mediate Report attached hereto Thereafter, the Respondent Union
and the General Counsel filed exceptions to the Intermediate Report
together with,supporting briefs
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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications
1 The Trial Examiner found, and we agree, that, by maintaining
and enforcing the discriminatory hiring and employment conditions
established by the contract between them, the Respondent Union
1 Pursuant to 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 Leedom and Members
Bean and Jenkins]
125 NLRB No 29