Acker Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1970

184 N.L.R.B. 472 (N.L.R.B. 1970)

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acker Industries , Inc. and International Association
of Machinists and Aerospace Workers. Case
16-CA-3709
July 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 28, 1970, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in certain
unfair labor practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions' of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Acker Industries, Inc.,
Wewoka, Oklahoma, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
' While agreeing with and adopting the Trial Examiner 's recommenda-
tion that a bargaining order should issue because Respondent 's unfair labor
practices tend to preclude the holding of a fair election under the standards
set forth by the supreme Court in N L R B v Gissel Packing Company, 395
U S 575, Members Fanning and Jenkins find it unnecessary to pass on the
Trial Examiner 's further conclusion that a bargaining order would be war-
ranted even in the absence of such unfair labor practices Member McCul-
loch, on the other hand , would adopt both grounds relied on by the Trial
Examiner to support the 8(a)(5) finding and the issuance of a bargaining
order based thereon See Pacific Abrasive Supply Co , 182 NLRB 329
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner. The International
Association of Machinists and Aerospace Workers,
hereinafter called the Union, filed a charge on Au-
gust 15, 1969, amended September 12, 1969,
against Acker Industries, Inc., hereinafter called
Respondent. The General Counsel of the National
Labor Relations Board, hereinafter called the
Board, by the Regional Director of Region 16 (Fort
Worth, Texas), thereupon issued a complaint and
notice of hearing on September 29, 1969, alleging
that Respondent violated Section 8(a)(5) of the
Act by refusing to recognize and bargain with the
Union on its demand, violated 8(a)(3) by discharg-
ing an employee, Henry Streater, and by failing and
refusing reinstatement to 29 named employees who
went on strike to protest Streater's discharge and
thereafter made an unconditional offer to return to
work and violated 8(a)(1) by the above acts and by
threats and interrogation of employees, by a physi-
cal assault on an employee and by granting wage in-
creases to employees. The complaint also alleges
that the strike was an unfair labor practice strike.
By its timely filed answer Respondent denied the
commission of any unfair labor practices. Respon-
dent admitted the jurisdictional facts, the request
for recognition and that it declined to recognize the
Union; admitted that a strike had taken place, but
denied that it was an unfair labor practice strike;
and alleged that the strikers had engaged in miscon-
duct and had thereby lost any right to reinstate-
ment.
On the issues thus drawn, I heard the matter in
Wewoka, Oklahoma, commencing January 13 and
concluding January 15, 1970. All parties were
represented at the hearing and had an opportunity
to present relevant and material evidence,' argue
on the record and file briefs. Briefs were received
from the General Counsel and Respondent. On the
entire record in the case and in consideration of the
briefs, I make the following:
' After the hearing closed Respondent moved to reopen the record to
receive in evidence a Memorandum Opinion of the United States District
Court of the Eastern District of Oklahoma refusing an injunction on the
petition of the Regional Director based on the issues raised by the
pleadings before me, and argued that the court's pleadings are binding on
me by the doctrines of res judicata, collateral estoppel and/or estoppel by
judgment Respondent also moved to amend its answer to the same effect 1
denied Respondent's motions and they were renewed, I denied them again
In Respondent 's brief the same motion is again urged, I hereby deny it for
the third time on the ground that , as the District Court's Opinion sets forth,
its decision is not binding on me or the Board in this proceeding Congress
has given the Board the function of deciding initially whether persons have
engaged in unfair labor practices and the decision by a District Court of the
United States on an injunction petition is in no way binding on either the
Trial Examiner or the Board
184 NLRB No. 51
FINDINGS OF FACT
ACKER INDUSTRIES, INC. 473
1. THE BUSINESS OF RESPONDENT
Respondent is an Oklahoma corporation manu-
facturing steel brakeshoes for railroad cars at its
Wewoka plant. Respondent annually buys and
causes to be shipped to Wewoka, Oklahoma, from
other States of the United States goods and materi-
als valued in excess of $50,000. Respondent is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's plant in Wewoka, Oklahoma, is
manned by about 30 employees. Prior to this
proceeding the employees have not been
represented by any union. In April2 Respondent
hired Henry Streater, a young cousin of Larry
Streater, its foreman, as its sole truckdriver. His pri-
mary function was to drive a large truck which
pulled a 40-foot tandem float or trailer carrying
materials purchased by Respondent and delivering
its product.
In July, on a trip to Tulsa, Oklahoma, Henry
Streater became interested in representation by a
union . He talked with some of his coworkers who
shared his interest, and ultimately contacted the
Union. As the result of his contact Mr. Harvey
Christian, a Grand Lodge Representative from Nor-
man, Oklahoma, met with Henry Streater on July
27 in the morning and later that day with Nathan
Parker. Christian gave Streater and Parker
authorization cards and suggested that unless at
least 80 percent of the employees signed up there
would be little use in organizing. He also suggested
that in the small unit he would recommend seeking
recognition by majority of cards rather than by an
NLRB election.
Henry Streater and Parker immediately com-
menced calling on their fellow employees at their
homes By the next day all but one of the em-
ployees had signed authorization cards. On that
day; Monday, July 28 Streater telephoned Christian
to tell him so. Christian advised him that he would
meet him at Respondent's plant at 4:30 p.m. that
same day. When they met, Streater wanted
Christian to immediately enter the plant with a
group of employees and demand recognition.
Christian declined to follow this course and the fol-
R All dates hereinafter are in the year 1969 unless otherwise specified
5 Parker testified that he was informed on the 31st rather than the 30th
However Webb's testimony in this regard is corroborated by that of em-
ployee Russell Bible and by the additional circumstance that the telegram
lowing day sent a telegraphic night letter to
Respondent advising it that the Union represented
a majority of the employees, offering to show proof
thereof, demanding recognition and bargaining and
suggesting a meeting on August 4 at 10 a.m. either
at Wewoka or in the Union's Oklahoma City office.
On July 30 Robert Webb, vice president of
Respondent and manager of the Wewoka plant,
commenced informing employees that they were to
be given wage increases, effective on August 4. Ac-
cording to Webb's testimony, corroborated by In-
geborg Acker, the company treasurer, the raises
were awarded pursuant to a proposal made on July
22 by Webb to Mrs Acker's husband, the president
of Respondent, and approved by him that day.
Webb informed a number of employees on July 30
including Nathan Parker of the raise.' Parker sug-
gested to Webb that he hold up on announcing the
raise until the following Monday and informed
Webb that the employees were represented by a
union . According to Parker's testimony Webb
responded that he had been "sweating the union for
six months " Parker also testified, after twice being
reminded, that Webb said if the Union came in it
would close the doors. This is denied by Webb who
testified that he said only that he would refrain
from informing other employees until he checked
into the matter further.
A short time after the conversation with Parker,
Webb returned to him and announced that he had
received a telegram. The following day according
to Webb he made an appointment with Attorney
Soule for Friday, August 1.
After the meeting with Attorney Soule Respon-
dent sent a letter to the Union declining recogni-
tion, refusing a card check on the grounds that "the
only reliable procedure to determine the wishes of
the employees is through an NLRB election" and
questioning whether the unit was appropriate. The
letter, signed by Webb and drafted by him together
with Soule, was mailed August 1 from Oklahoma
City. It was not delivered to the Union until August
6.
On August 4, having received no response to his
telegram , Grand Lodge Representative Christian in
the company of James Lyons and a committee of
employees, including Bill Brewer , Nathan Parker,
Raymond Withers and Henry Streater, met with
Manager Webb in Respondent's Wewoka office
Christian requested recognition of the Union claim-
ing that a substantial majority, in fact all of the em-
ployees, had designated the Union as their collec-
tive-bargaining representative and offered to show
the designations which he had with him. Webb said
that he would not recognize the Union at that time
and suggested that Christian talk to his attorney,
Soule Christian said he knew Soule and suggested
that if recognition were afforded and an agreement
was received the same day In the absence of evidence to the contrary 1
infer that the telegram was delivered on the date following its dispatch I
believe that Parker is mistaken in his recollection
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked out hard feL'iings might be avoided. He also
warned Webb not to discriminate against em-
ployees and pointed out that their union activities
were protected under the Act. During the conversa-
tion Webb made some reference to an election.'
A sharp conflict appeared in the testimony
whether in response to Christian's claim of majority
Webb said, "I don't doubt it" or as he testified, "I
doubt it." I find it unnecessary to decide which
statement was made or the precise context in which
Webb may have said it. I do not conceive from the
present posture of the law that a finding thereon is
in any way dispositive of any issue before me.
Another conflict concerns whether Webb said
something to the effect that he wanted time to
present the Company's side of the story, which was
not included in Webb's account of the meeting. I
find that he made a statement to that effect
On Saturday, August 9, Christian met with the
employees in Wewoka. He advised them of the
situation and of their rights under the law and sug-
gested that they elect a committee to represent
them on the scene. In accord with this suggestion
the employees elected Bill Brewer and Nathan
Parker as their stewards and unanimously agreed
that in the event any employee was discharged
Brewer and Parker would present a grievance to
Respondent and if the discharged employee were
not reinstated the employees would walk out on
strike.
On August 11 after the election of the shop com-
mittee and of the shop stewards, Brewer and
Parker, the committee consisting of employees
Parker, Bill Brewer, Donnie Brewer, Henry
Streater, Russell Bible and Raymond Withers called
on Webb and asked him to recognize the Union.
Webb said he would not recognize the Union but
would wait until after an election had been con-
ducted by the NLRB. He also said he wanted an op-
portunity to tell the Company's side of the story.
Apparently nothing else was discussed on this occa-
sion.
The employees' resolve was soon tested On Au-
gust 13 Henry Streater was discharged by Respon-
dent under circumstances which will be set forth
below. Parker and Brewer called on Webb, who be-
fore talking to them, called Foreman Larry Streater
into his office. Parker asked Webb why Henry
Streater had been discharged. Webb answered that
he did not have to tell them but in response to a
second question said the discharge was not because
of union activity.
According to the testimony of Brewer and
Parker, Larry Streater when the Union was men-
tioned said, "What Union. We do not have a union.
I can discharge any one of you and replace you
with new employees "
Larry Streater denied making the above state-
ment. According to him he said that the Union
could force us to close our doors or in the event
that we went union and there was a strike, an active
strike, that they could be permanently replaced. He
testified that he had been furnished a leaflet by
Webb containing instructions of what he should or
should not say to any employee
Webb's testimony with regard to the same meet-
ing made no mention of any statement by Foreman
Streater. According to Webb, Brewer and Parker
asked why Henry Streater had been discharged and
he responded that it was none of their business
Brewer said that if it had anything to do with the
Union it is their business whereupon Webb told him
the discharge had nothing to do with the Union.
Then, according to Webb, the men said that they
had been elected spokesmen for the Union in the
shop and they were the ones to whom Webb would
be talking on the things involving people in the
shop such as wage increases. Webb then said that
there was no way the Union could guarantee wage
increases and showed them figures demonstrating
Respondent's position that it could not afford a
large increase Brewer observed that if the men in
the shop had known of this there probably would
never have been any talk of the Union.
I do not believe any of the accounts of the meet-
ing are complete I believe that Webb, with the
elected shop representatives of his employees open-
ing the conversation with regard to the Union, se-
ized the opportunity to fire the opening guns in his
campaign and said what he testified. I credit Brewer
that Larry Streater said in effect that the employees
had no union, this indeed was Respondent's legal
position at that time and still is. I credit Brewer's
testimony that Streater observed that unions are no
good and exist only for the purpose of taking dues
from employees This is a familiar refrain, I can re-
call few cases that I have heard involving an antiu-
nion campaign in which the employer has not used
it. I credit Streater that his admonition with regard
to discharging all of the employees was tied in with
the condition of the employees embarking in a
strike. I view Brewer's version as somewhat of a
non sequitor in the context in which he placed it.
Neither Parker nor Webb was asked to testify re-
garding Streater's statement. I draw no inference
therefrom since any such inference is met with an
equal and opposing inference. I find that the
General Counsel's proof does not support the al-
legation regarding the direct threat of discharge,
but I find Streater's admitted statement that the
Union could close the doors of the plant to have
been made.
Brewer and Parker left Webb's office and talked
to Henry Streater and to the employees regarding
what steps were to be taken. Streater called
Christian by telephone and Christian promised to
come to the plant the following day.
4 No petition for an election has been filed either by the Union or by
Respondent
ACKER INDUSTRIES, INC.
In the morning the employees assembled outside
the plant. Brewer and Parker again called on Webb
to reinstate Henry Streater and he refused. Brewer
and Parker reported this to the assembled em-
ployees and they decided not to go into the plant.
The two spokesmen accompanied by several com-
mittee members then went back to Webb and in-
formed him of the employees' decision He said,
"Okay" and they left
Christian arrived about noon, and picketing at
the plant commenced around 2 p.m. At this time all
of the employees except one engaged in the strike 5
On August 22 the striking employees addressed a
letter to Robert Webb at Respondent's Wewoka
plant urging him to recognize and bargain with the
Union and advising him that the employees who
had signed the letter had not only signed authoriza-
tion cards but were dues-paying members of the
Union. The names of 25 employees are subscribed
to the letter The letter requested Webb to contact
Mr Christian either by telephone at Norman,
Oklahoma, or at his office in Oklahoma City. No
response to the letter was received
On August 26 Christian sent a telegram to Webb
advising him that the striking members of the
Union were making an unconditional offer to
return to work the following morning at 8 a.m. The
copy of the 'telegram received in evidence,
prepared by the Western Union office, bears a
notation "DEL Wewoka Oklahoma 26 2 p" which I
take and believe to mean that the telegram was
delivered on August 26 at 2 p.m. There is no
evidence to the contrary
On the morning of the 27th before 8 o'clock the
striking employees and Christian gathered across
the street from the plant. Two policemen who had
been employed by Respondent to guard the plant
between midnight and 8 a.m. were joined by three
other policemen, two of whom were to remain as
guards and the third who drove them to the site of
the plant All five policemen took a position in line
before the only door to Respondent's plant then in
use. The employees saw Mr. Acker, the owner of
the plant, Manager Webb, Foreman Larry Streater,
employee Lingo, who had signed a card but was
working behind the picket line, some plant office
workers and an undisclosed number of women with
whom they were not familiar.
Christian, Brewer and Parker walked across the
street together and accosted the policemen, asking
to see Mr. Acker. A policeman named Whelan,
who was one of those employed by Respondent the
previous night as a guard, entered the plant and
returned stating that Acker was busy at that time
' At some time later in the strike one of the striking employees returned
to work
fi The record reveals that a day or so before this a striking employee had
been arrested by a Wewoka policeman for trespass when he had stood on
the plant side of the street talking with another policeman Because of this
incident , Christian said , he and the employees were loath to go onto
Respondent 's property without an invitation
475
Christian led the two employees back across the
street and the employees waited for 30 to 45
minutes in the hope that Acker or Webb would
come out and talk to the employees.6 This did not
happen, whereupon the picketing was resumed.
Later that day Christian sent a letter addressed to
Webb at Respondent's Wewoka plant, confirming
and reiterating the August 26 telegram containing
an unconditional offer to return to work, confirm-
ing also that at 8 a.m. on August 27 the employees
were gathered ready, willing and able to report to
work, recounting their attempt to speak to Acker
and reiterating their request for recognition and the
unconditional offer to return to work. There is no
evidence that the letter was ever acknowledged or
answered.'
It appears that the strike has continued to the
time of the hearing. At an unemployment compen-
sation hearing held sometime after August 27,
Christian again offered on behalf of the employees
that they would return to work Webb declined the
offer stating that the plant was full and was in
operation.
B' The Discharge of Henry Streater
Henry Streater was employed in the middle of
April as a truckdriver; his duties included helping
out wherever he was needed inside the shop when
he was not driving. Respondent has only one truck
in the Wewoka plant, a tractor-trailer pulling a 40-
foot tandem float. On July 31 the truck was in need
of some repairs before it could be sent to a
neighboring city to pick up a load of material.
Webb cold Henry Streater to draw up a list of the
things that he thought should be done to the truck
and to submit it to James Hutchins, Respondent's
sales manager, who went over the list with Henry
Streater and crossed out 2 of the 15 items on the
ground that the work was not necessary to be done
at that time One notation on the list was that the
air horn works improperly. According to the
testimony of Streater when the horn was activated
he could hear air rush through it but it did not
make the necessary sound. This was not one of the
items Hutchins crossed out Hutchins wrote on the
list the following legend
Fix the reverse problem 1st
Lights 2nd, the rest if you have time. I need the
truck early Tues morning if at all possible.
Thanks Jim
r The General Counsel contends that the strike which was caused by the
discharge of employee Streater was an unfair labor practice strike Ac-
cordingly, the General Counsel adduced no evidence as to whether any of
the striking employees had been permanently replaced Plant Manager
Webb testified that the plant was in operation and it was almost at full com-
plement Respondent did not attempt to introduce evidence that replace-
ments were permanent or as to which jobs had been filled thereby
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That night Henry Streater talked to Webb who
told him to leave at 2 the next afternoon, take the
truck to Oklahoma City, get a work order made out
on it and that perhaps the mechanic would start
work on the truck the same night. This Henry did,
arriving about 3:30 at the International plant in
Oklahoma City, where he saw a mechanic, Ham
Gaines who appears to live in Wewoka and with
whom Webb is acquainted. Streater gave the slip of
paper to Gaines and had a work order filled out for
the truck. He drove back with Gaines to Wewoka
that evening, leaving Oklahoma City at 4:30. The
repairs turned out to be more major than the
parties had anticipated and the truck could not be
recovered from the repair shop until August 12. On
that day about 3 or 3.30 Streater arrived at the In-
ternational plant to get the truck and found that the
air horn had not been repaired. He called this to
Gaines' attention and Gaines climbed to the top of
the truck with Streater and tried to repair the air
horn. They were unable to repair it, whereupon
Streater said to put a new one on. Gaines asked the
shop foreman to get someone else to put a new air
horn on the truck because he was already clocked
in on another job. Another mechanic who had
helped repair the truck was called and spent about
15 minutes installing the new horn. Immediately
thereafter Henry Streater left for Wewoka in the
truck. At a point about 65 or 70 miles from
Oklahoma City en route he met and passed a car
containing Webb and others heading toward
Oklahoma City. Henry Streater arrived back at the
plant at 4:30, left the bill for the truck repair on a
desk in the office and went home.
According to the testimony of Webb, he returned
at 12 or 1 in the morning from Oklahoma City and
received a message that Ham Gaines had called his
wife and was upset because the repair bill had got-
ten completely out of hand.8 Gaines also said that
Henry Streater had come to the plant and ordered
air horns put on the truck after the truck was sup-
posed to have been finished and Gaines was quite
upset about it. Webb went "straight back down to
the plant to see if the air horns had been put on"
and found that they had been. The following morn-
ing he called Gaines in Oklahoma City and asked
him about the air horns, Gaines again apologized
because the repair bill had gotten out of hand and
said, "It was just about the last straw whenever
Henry came up there and had air horns put on the
truck."
When Henry Streater came to work the next
morning he went to Webb's office. Webb went out
and got Foreman Larry Streater and brought him
back to the office. The accounts of Henry Streater
and Webb concerning the interview that followed
are far from consistent. According to Webb he
asked Henry Streater how he happened to put air
horns on the truck and he answered that it needed
8 It appears that the repair bill for the truck was in excess of $1,500
- According to Henry Streater this happened on two occasions His state-
horns Webb asked whether Streater had any
authority to put air horns on the truck and Streater
answered that he did not but thought that they
needed them. Webb stated that Streater had no
authorization either from the Company or from
Ham Gaines and just went and put them on. At or
about this point, according to Webb, he discharged
Henry Streater and told Larry Streater to take him
out to the truck to get his personal belongings and
then bring him back so that Webb could recover
the credit cards and keys from him At that time
Henry Streater offered to pay for the horns, the
offer was declined by Webb who said that was not
the point, the point was that he did not follow in-
structions.
Henry Streater testified that Webb asked, "How
come you put the damn horn on the truck?" and he
answered that the other horn could not be repaired,
that the repair was on the list and it had been
okayed by Hutchins. Webb told Henry Streater that
he had no authority to spend the Company's money
and that if he had called and asked permission to
put the horn on the truck it would have been ap-
proved, but since he went over Webb's head and
made it look bad on him that he was going to fire
Henry Streater. He directed Larry Streater to go
with Henry to get his personal belongings. While he
was doing so Henry asked Larry Streater if he
thought Webb would give him his job back if he of-
fered to pay for the horn Larry Streater said he did
not know, so when they returned to Webb's office
Henry offered to pay for the horn but Webb
declined to take his money stating that he was fired.
From this point on the two stories are fairly con-
sistent. Webb made some statement to the effect
that he had become dissatisfied with Henry
Streater's work and Henry challenged him with re-
gard to any cause he had for dissatisfaction. Webb
took him into Hutchins' office where Hutchins ac-
cused him of disobeying orders on August 1 when
he left for Oklahoma City at 2 o'clock rather than
at 3:30 as Hutchins had advised him to do. Streater
answered that Webb had told him to leave at 2 and
he followed Webb's orders. Webb then called in his
secretary and asked her if Henry Streater had been
"hateful" to her. She answered, "Yes, over some
timecards." The incident to which she referred
had taken place at some time in the past. The
secretary, Janet Whelan, was unable to find the
timesheets for several of the employees and went
to them and asked them to make out new work-
sheets. Henry Streater declined to do so stating
that he made one out and turned it in . Shortly
thereafter Mrs. Whelan found his timesheet and
told him that she had found it whereupon he
answered, "I told you if you would look hard
enough you would find it." This appears to have
been "hateful" to Mrs. Whelan.`'
ment that if she looked hard enough she would find the timecard occurred
on this second occasion a week or two before his discharge
ACKER INDUSTRIES, INC.
Larry Streater complained at this time that Henry
Streater had refused to do work, referring to an oc-
casion during the summer when the employees dur-
ing breaktime were sitting in Larry Streater's office.
Henry Streater had spent the previous 2 days paint-
ing some material, a job which he found distasteful
Jack Davis, a supervisor who is in charge of the
shipping and receiving department, mentioned that
there was some material to be painted. According
to Henry Streater he asked who was going to paint
it and Davis answered "probably you" whereupon
Henry said, "Oh I've had about all the painting I
want for a while. Couldn't you find somebody
else. "10
Several weeks before his discharge Henry
Streater was sent to Texas to pick up a load of
sheet steel On his arrival he found that the material
was rusted and called his office for instructions,
speaking to Foreman Larry Streater. He informed
Streater that he was having trouble with the seller
refusing to load it properly on his truck and men-
tioned that the material was rusty. According to his
testimony Streater answered that that did not make
any difference because Respondent was getting a
bargain on the steel and planned to clean it. When
he returned to the plant the steel was inspected and
found to be pitted Respondent attempted to clean
it by brushing but it was too deeply pitted to be
used and was returned to the seller with the excep-
tion of one or more sheets which Respondent at-
tempted to use. On the occasion of his return, ac-
cording to Henry Streater's testimony, Larry
Streater told him in the future to be sure and check
steel to see that it was not pitted when he picked it
up. According to Supervisor Larry Streater, Henry
Streater had been instructed when he was hired to
inspect materials that he picked up and, in addition,
according to Foreman Streater, he instructed Henry
Streater in the telephone call not to bring back the
steel if it was pitted.
Foreman Streater testified that he had had an oc-
casion to complain that Henry Streater had been
producing an insufficient number of skids, a task to
which he had been assigned by Larry Streater. He
testified that when he found that insufficient skids
had been produced he searched for Henry Streater
and found him at another employee's machine.
Henry Streater testified that he had been asked by
various employees to help them during the course
of the day in question and had done so as was his
normal practice and it was as a result of this that he
had not produced enough skids to satisfy Foreman
Streater
Foreman Streater also testified to an incident
when Henry Streater had a flat tire and had asked
permission to take the truck to a service station
where the tire was to be repaired to have the tire
477
taken off the truck, because he could not remove
the lugs Foreman Streater attached a long pipe to
the lug wrench and with the help of Henry Streater
and another employee whom he called from the
plant was able to loosen the lugs It appears that
this story was placed in evidence in an attempt to
reveal some inadequacy in Henry Streater's work or
his willingness to do it Foreman Streater also
testified to another occasion when Henry Streater
had suggested switching tires between the tandem
float which had new tires on it and the tractor
which had recapped tires which were badly worn
Foreman Streater informed Henry Streater on this
occasion that he would have to check with
Manager Webb to determine whether he wanted to
buy new tires or to switch around the old ones
Evidence of this incident was apparently adduced
by Respondent to show that Henry Streater had
been informed in the past that expenditures of
money for the truck had to be approved in advance
by Webb.
Discussion
The General Counsel contends that Streater was
discharged as a demonstration to his fellow em-
ployees that union adherence could result in their
discharge General Counsel attempts to support this
theory with evidence that Respondent in the person
of Webb and his supervisory staff in a consultation
with Attorney Soule on the night before Henry
Streater's discharge discussed discharging em-
ployees. Webb denied that any mention was made
in the discussion with Soule about the discharge of
Henry Streater or any other employee. The General
Counsel suggests his testimony was controverted by
testimony of Bill Roberts, one of the supervisors
who went to Soule's office on the night of August
12, who testified that Soule told the managerial
staff not to discharge anyone if they could get by
without it but that no individual employee was
discussed in terms of discharge
Plant Manager Webb unconvincingly denies that
at the time of the discharge he was aware of any
connection of Henry Streater with the Union or
even that Henry Streater was sympathetic to the
Union's cause. He admitted that Henry Streater was
among the employee group who accompanied
Christian in the confrontation on August 4 at the
Wewoka plant, and was among the delegation that
asked him to recognize the Union on August 11.
Webb claimed that he thought Henry might have
been there simply as a neutral observer. I discredit
his denial that he was aware of Henry Streater's
union adherence especially in view of the fact that
Webb testified that he had no idea why any em-
ployee accompanied Christian on the morning of
'0 According to Jack Davis, Henry's answer was "blankity blank I'm not
1 have done my last damn painting " According to Larry Strcater, Henry
answered, "That's all the damn painting I'm going to do "
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 4 . He stated " they could have been curious
I don't know . I really didn't have any idea." Plant
Manager Webb spent a considerable time on the
witness stand . He did not impress me as being ob-
tuse nor indecisive . His testimony however with re-
gard to three aspects of this case was remarkable.
He testified for instance that the fact that all of the
employees except one went on strike when he
refused to reinstate Henry Streater in no way en-
lightened him with regard to the truth of Christian's
assertion that the employees were solidly behind
the Union . In another context he testified that he
had no belief or reason to believe on the morning
of August 27 that the employees had assembled to
go back to work . This was in spite of the fact that
he had received a telegram on August 26 stating
that they would assemble for that purpose . In each
of these instances I believe that any normal man
would have drawn some conclusion from the
demonstrable facts, yet Webb testified that he did
not. I can only believe that Webb 's testimony was
based less on fact than on his apprehension of the
exigencies of Respondent 's defense on the three is-
sues First , that Respondent had no knowledge of
Henry Streater 's union adherence , second, that
Respondent had a "good-faith doubt" of the
Union 's majority status, and third , that Respondent
had no knowledge that the employees on August 27
were unconditionally offering to return to work.
Webb 's evasiveness under cross-examination as to
each of these three matters seriously impairs any
value I would place upon his testimony I find that
Respondent had reason to know and knew that
Henry Streater was a union adherent I find this
without reference to the Board's "Small Plant Doc-
trine" which is surely applicable here, but solely
from the record evidence.
Of course , it is not dispositive of the issue that I
find employer knowledge of Henry Streater's union
adherence . This does not in itself amount to sub-
stantial evidence that that was a reason for his
discharge An examination of the alleged cause of
the discharge is required . Respondent contends that
the incident of the installation of an air horn on
Respondent's truck was the "straw that broke the
camel's back ." In support of this contention
Respondent adduced evidence of alleged un-
satisfactory conduct going back over the entire
period of Henry Streater 's employment . It can fairly
be assumed that Respondent, until it determined to
discharge Henry Streater, did not consider that his
conduct warranted discharge . As a matter of fact
there were only two occasions on which he was
reprimanded, according to Respondent's testimony,
and these are both denied by Henry Streater One
of these was the incident of the pitted steel. With
regard to that I credit Henry Streater that he had
not prior thereto been advised that his job as a
truckdriver entailed an inspection of material
purchased by Respondent in such detail that it
would have disclosed the fact that the rusted metal
was pitted . It is not denied that he informed
Respondent of the fact that the metal was rusted in
his telephone call to Foreman Streater . I do not
credit Foreman Streater 's testimony that on the oc-
casion of that telephone call he specifically made
reference to the possibility that the material was
pitted and instructed Henry Streater not to bring it
if it were While I have no doubt that Respondent
complained when it found the metal to be pitted
beyond use , I do not believe that Henry Streater's
failure to discover that fact resulted in Respon-
dent 's attaching any blame on him.
The other occasion in which Henry Streater was
allegedly reprimanded was the instance of his state-
ment with regard to the painting. Foreman Streater
testified that as a result of that incident he asked
Webb to discharge Henry Streater but that Webb
refused to do so His testimony that he reprimanded
Henry Streater thereafter appears to me to have
been an afterthought on his part and I credit Henry
Streater 's denial that he was reprimanded . Foreman
Streater admitted that Henry did not refuse to do
any further painting or for that matter any other as-
signment . Henry Streater testified without con-
tradiction that he completed painting that evening.
Whether additional painting was assigned to others
is not clear from the record . What is clear is that
the statements attributed to him were made in a so-
cial context during a break in the air-conditioned
office and I believe, as Henry Streater testified, that
the exchange between the two Streaters and Davis
was innocuous and jocular
The characterization by Respondent of Henry
Streater 's remark to Mrs. Whelan as "hateful" is
hardly borne out by the recitation by Mrs Whelan
of what he said I can only conclude that she is an
extremely sensitive woman The other complaints
raised by Respondent amount to little more than
nit-picking in my opinion.
As to the matter of the air horn I believe and I
find that it was a contrived pretext to discharge
Henry Streater Respondent 's position was that
somehow he was guilty of insubordination in order-
ing a new air horn placed on the truck without
getting permission therefor from Webb. An ex-
amination of the record in this regard is enlighten-
ing. Webb asked Henry Streater to prepare a list of
things that needed to be done and told him to sub-
mit the list to Hutchins before he took the truck in
for repairs . Hutchins struck two of the items on the
list but not the item concerning the air horn and
subscribed to the list his instruction to fix the items
"if you have time."
While the truck was in the shop admittedly Webb
was in frequent communication with Ham Gaines,
the mechanic who was working on the truck. There
is no evidence that at any time either through in-
structions of Hutchins or in the conversations
between Webb and Gaines was the repair of the
horn distinguished from the repair of other items on
the truck . Nor does it appear that Webb nor any
one else informed Gaines that the horn was not to
be replaced if it could not be repaired . When Henry
ACKER INDUSTRIES, INC 479
Streater picked up the truck and found the horn
still not functioning he informed Gaines of that fact
and Gaines attempted to repair it. Henry Streater
testified that it was Gaines that asked his foreman
to assign another mechanic to install a new horn,
since he was busy. Respondent contends that the
fact that the horn was not repaired or replaced is
conclusive evidence that it was not authorized but
there is no evidence that any of the other new
material that was put on the truck as the result of
the repair order was specifically authorized either. I
do not believe Webb's testimony that Ham Gaines
called his wife to tell her that he was upset over the
fact that Henry Streater had ordered a new horn
put on the truck. Surely Gaines, who had been in
constant communication with Webb concerning the
repairs to the truck, would not have had a new horn
installed if he had believed that Henry Streater was
exceeding his authority in ordering it. Certainly not
without at least attempting to contact Webb. Webb
testified that he instructed Gaines to call him about
anything he felt needed to be done to the truck to
see if Webb wanted to put in new parts or whatever
might be. The tenor of Webb's testimony was that
the list prepared by Streater was in no way a work
order but was rather a suggestion and that the ac-
tual orders to complete any particular part of the
work resulted from his telephonic conversations
with his friend, Ham Gaines."
Hutchins testified that he told Henry Streater
that if the repair shop could not fix the air horn to
bring the truck back, not to have it replaced. Henry
denied this and I believe his denial I was not im-
pressed with Hutchins' demeanor on the witness
stand nor with the fact that he admitted giving
"mistaken" testimony in the injunction hearing,
which preceded the hearing before me by a couple
of months, that when he went over the list prepared
by Henry Streater he struck through the item con-
cerning air horns as he had struck through two
other items on the list. The result therefore was that
Respondent contended that any work done on the
air horns was without Respondent's approval.
He gave no explanation for the fact that his story
had changed between the two hearings other than
that he was mistaken at the earlier hearing. I think
a key to the change in his testimony might be the
fact that Henry Streater procured the original list in
the period of time between the two hearings and it
was placed in evidence prior to Hutchins' and
Webb's testimony.
On the basis of the entire record and in con-
sideration of the demeanor of the witnesses, I con-
clude and find that the alleged cause for Henry
Streater's discharge is a pretext; that he was in fact
discharged for reasons other than the incident of
the air horn. I do not believe that he went beyond
the instructions given him by Webb and by
Hutchins nor that the situation as it developed was
in any way insubordination as Respondent con-
tends.12
The failure of Respondent's defense leaves a
vacuum with regard to the real reason for Henry
Streater's discharge. From the failure of Respon-
dent to advance a valid cause for the discharge,
from the evasiveness of Webb in his testimony with
regard to his knowledge of Henry Streater's union
adherence, from the incredible nature of the
testimony of Hutchins and from the intransigence
of Respondent with regard to both the recognition
of the Union and reinstatement of the employees as
set forth below, I infer that the real and undisclosed
reason for the discharge was, as the General Coun-
sel contends, that Respondent thereby attempted to
demonstrate to the employees the dangers of union
organization and also rid itself of a strong union ad-
vocate. I so infer and I find that Respondent
discharged Henry Streater for these reasons in
violation of Section 8(a)(3) and (1) of the Act.
There is no question that the strike was caused
solely by the discharge of Henry Streater and
Respondent's refusal to reinstate him, which I have
found to be an unfair labor practice. Accordingly, it
follows and I find that the strike is an unfair labor
practice strike which bears the consequence that
the strikers have an absolute right to reinstatement
upon their unconditional offer therefor, whether or
not the Employer has replaced them.
Although Respondent contends that it had no
duty to reinstate any employee, it also contends
that all of the employees engaged in serious acts of
misconduct in connection with the strike in con-
sequence of which they fall without the protection
of the Act and the Employer is justified in discharg-
ing them. Respondent's contention involves three
separate legal issues The first, based on the argu-
ment that the strike was an economic strike, is an-
swered by my finding above that the strike was an
" Ham Gaines was not called to testify I conclude therefrom that his
testimony would not have contradicted that of Henry Streator with
reference to the incident of putting the horn on the truck
" Z Respondent relies on another incident of insubordination to support its
contention that Henry Streater was an insubordinate employee in that it
contends that Streater was insubordinate to Hutchins in leaving at 2 in the
afternoon to take the truck into the repair shop rather than at 3 30 There
is no controversion of Henry Streater 's testimony that he left at 2 o 'clock in
accordance with the suggestion of Webb and there is no support for
Respondent 's recitation in its brief that " It is apparent that Mr Webb had
delegated this matter ( the supervision of Henry Streater with regard to the
time for him to leave the plant ) to Mr Hutchins, as Henry Streater knew or
should have known , and his attitude in response to Mr Hutchins ' direction
clearly amounted to insubordination " If in fact such a delegation had been
made I assume Webb or Hutchins would have so testified and if in fact
Henry Streater had been so informed I would assume that Webb would
have testified to that effect while he was on the witness stand Hutchins was
not a line supervisor at the plant , he was the sales manager and testified
that he occasionally did some purchasing for the plant His only connection
with the truck repair problem appears to have been the fact that as sales
manager he was anxious to deliver a load of merchandise to a customer and
needed the truck to do so I can scarcely conclude that Henry Streater
should have inferred that Hutchins had been given authority to override
W ebb 's instructions in this regard
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
unfair labor practice strike. However, even in the
event I were to have found the strike to be an
economic strike Respondent has adduced no suffi-
cient evidence that the strikers at the time of their
request for reinstatement had been replaced per-
manently by Respondent. The only evidence in that
regard was a statement by Manager Webb that on
August 26 "we had almost a full work force at that
time" and a statement by Janet Whelan that "the
Company was not hiring people." Webb's use of
the word "almost" of course leaves the inference
that the work force was not completely full and ac-
cordingly that some of the strikers had not been
replaced. The fact that the Employer was not hiring
people in a strike situation raises a number of in-
ferences especially in the absence of any indication
that there were employees available to hire, other
than the strikers. Nor is there any evidence that any
replacement hired, if such there were, was hired
permanently rather than temporarily for the dura-
tion of the strike. I do not reach the issue in view of
my finding that the strike was an unfair labor prac-
tice strike
The second issue raised by Respondent's conten-
tion is whether a general showing of violent or
destructive activity taking place during the period
of a strike with no attribution of any specific acts or
conduct to any individual striker attaches responsi-
bility to all the strikers because of their concerted
action in striking, so that Respondent is warranted
in refusing to reinstate any of them. Respondent at-
tempted to adduce a large amount of evidence of
alleged misconduct such as allegedly sabotaged
machinery, broken windows, harassment by late
night telephone calls and damage to automobiles of
nonstriking employees and the like, all of which
had been received in evidence in the prior injunc-
tion proceeding. I declined to receive the evidence
whereupon Respondent, in accordance with an ar-
rangement to which I agreed during the hearing,
filed, after the close of the hearing, an offer of
proof in the form of copies of pages of the tran-
script of the injunction proceedings. The offer of
proof is rejected as well as the contingent offer of
countervailing evidence by General Counsel, sub-
mitted together with his objection to the offer of
proof. I know of no instance, and I am referred to
none by Respondent, where the Board has held, as
Respondent would have me do, that a general
course of conduct no matter how unprotected, vi-
cious or destructive operates to protect an em-
ployer in a refusal to reinstate unfair labor practice
strikers who are not shown to have engaged in said
conduct. Accordingly, the evidence has no
relevance in this proceeding and was and should be
rejected as well as the argument in support of
which the evidence was offered
Finally, Respondent offered evidence purporting
to show that 13 named employees were guilty of
strike misconduct of such a nature that they were
subject to discharge. The record reveals that 29
employees went on strike and unconditionally of-
fered to return to work either through the Union
acting on their behalf or by their appearance at the
gate on August 27. Without more ado I find that
the following employees were not alleged to have
engaged in specific acts of misconduct and were en-
titled to reinstatement on August 27 when they ap-
peared for work Respondent's refusal to reinstate
them as unfair labor practice strikers at that time
violated Section 8(a)(3) and (1) of the Act.
Johnnie Cellars
David L Cross
Larry C Davis
Eddie K Jones
Homer R Parker
Weldon Stout, Jr
William R Turner
Napolean Washington
Oceaphus Clark
Edward J Crutcher
Robert Douthit
Andrew Nichols
Ronald Pittman
Louis L Tiger
Jimmy R Underwood
Frank Yarbrough 13
As to the remaining employees Respondent con-
tends that it has adequate provocation because of
misconduct by them during the strike to warrant
their discharge. The following evidence was ad-
duced
Russell Bible
Russell Bible was accused along with Henry
Streater, Bruce Brewer and Daniel Sharp of making
an obscene gesture, consisting of extending the
third finger of his hand, toward Betty Webb 3 or 4
days after the strike began She picked those four
men out of a crowd of 15 to 25. Phyllis Streater
testified to the same incident and identified Bill
Brewer , Nathan Parker, Daniel Sharp and Henry
Streater as being present although she did not
identify any particular persons as making obscene
gestures.
Bill Brewer
Janet Whelan quoted Bill Brewer as saying,
"There is nothing like having a pregnant bitch for a
secretary." This allegedly took place in the first
week in September according to her testimony. Bill
Brewer testified that he did not make such a state-
ment , and did not learn that Janet Whelan was
pregnant until a hearing at the unemployment com-
mission on October 22. Four and a half months
later when I conducted the hearing in Wewoka
Mrs. Whelan was not yet delivered. I credit Bill
Brewer's denial that he was aware of Mrs. Whelan's
condition.
"The evidence reveals that after the unconditional offer by the em-
ployees but before the hearing Frank Yarbrough was called back to work
by the Respondent , the only employee who was called back With regard to
Yarbrough the period of discrimination is the period between August 27
and the date upon which he returned to work
ACKER INDUSTRIES, INC.
Jack Davis testified that Bill Brewer , who was
standing 250 feet from him, threw rocks at him. He
testified on cross-examination that he did not be-
lieve anybody could throw rocks that far and he
was not hit although he heard a rock strike the
building
Pauline Phillips, a strike replacement, testified
that a man whom she identified as Bill Brewer
called her a "bitch." A policeman asked her what
he had said and she denied that Brewer said
anything because she did not want to cause any
confusion.
Jack Davis also testified that while he was work-
ing in the plant near an open door he heard
something which he later identified as a rock strike
the floor. He looked out the back door and saw Bill
Brewer and Nathan Parker with rocks in their
hands. He testified that he did not see either of
them throw a rock but that others did see it and
identified Larry Streater, President Acker and Mrs
Webb as the others Larry Streater was in the hear-
ing room at the time as was Mrs. Webb. Neither of
them testified with regard to the incident President
Acker was not called to the witness stand. Bill
Brewer and Nathan Parker both denied that they
threw rocks at anytime during the strike. I credit
Davis' testimony that he saw the two men at the
back door. Bill Brewer testified that Davis came
running out on the ramp on that occasion and said
"don't throw no rocks at me" whereupon he denied
throwing rocks Of course Davis did not purport to
testify on this occasion that he saw either Brewer or
Parker throw any rocks, and there is no evidence
that any damage was done.
Bruce Brewer
Bruce Brewer was one of those identified by
Betty Webb as making an obscene gesture toward
her and Phyllis Streater. Phyllis Streater did not
identify Bruce Brewer but identified Bill Brewer as
being present on that occasion.
Donald Brewer
Harold Miller, who had been employed by
Respondent briefly during the strike, testified that
three individuals whom he identified as "Mr.
Brewer," "Mr. Mitchell" and "the young Mr. Bre-
wer" were throwing rocks at cars from a position
across the street from the plant He found a dent in
the hood of his car He stated that there was no
great damage done and no glass broken. Respon-
dent identifies one of the Brewers as Donald, how-
ever there is no evidence in the record by which I
can deduce that either Brewer mentioned by Miller
was Donald Brewer rather than Bruce Brewer
Donald Davis
481
Janet Whelan testified that Donald Davis was on
the picket line on an occasion when she was going
to a machine shop to pick up something for the
plant As she walked out to her car she saw Donald
pick up some rocks and stick them behind his
picket sign . She told him to drop the rocks and he
did.
David Lollar''
Jack Davis testified that David Lollar on one oc-
casion called him a scab and a scum. He also
testified that he did not know what those terms
meant. Betty Webb testified that on two occasions
David Lollar made an obscene gesture, the same
gesture about which she testified with regard to
other employees, and called her some kind of a
woman, she did not hear the qualifying words.
Bobby G. Mitchell
Betty Webb testified that during the strike she
walked by Bob Mitchell looking for the policeman
at the plant while Mitchell was on the picket line.
As she passed him he commented, "I'd like to have
a piece of that." She did not answer. She testified
that in October when she left the plant to pick up
lunch for the people who were working she
returned with her hands full and bumped against
the car door to shut it whereupon Bob Mitchell said
"oh" or "woo" and exclaimed, "what an ass." Bob
Mitchell also was one of those identified by Harold
Miller as throwing stones.
Nathan G. Parker
Nathan Parker is alleged by Respondent to have
turned off the water supply to the plant. However
the testimony does not support the allegation. The
only witness that testified with regard to the in-
cident was Betty Webb who testified that she had
seen Mr. Parker on the opposite side of the building
shortly before the incident and identified Withers
as being near the building at a time when she as-
sumed that the water had been turned off.
Parker was also identified by Phyllis Streater as
among those present in the group that made
gestures toward Betty Webb but he was not
identified by either Streater or Webb as having
made such a gesture.
Parker was identified by Jack Davis as one of the
persons he saw with rocks in his hands on August
19 on the occasion that a rock hit the floor inside
the plant.
" This is the same David Lollar from whom Webb testified he received a
complaint that he was being pressured by the people in the shop to join the
Union
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel R Sharp
Betty Webb testified that Daniel R. Sharp was
identified by her as having made harassing
telephone calls to the plant. Larry Streater
procured a list of the telephone numbers of the
strikers and, when the telephone would ring, people
in the office would attempt on the other telephone
to call strikers' telephone numbers. Ultimately they
found that Sharp's telephone was busy at the same
time a harassing telephone call was received at the
plant. Robert Webb answered the telephone while
his wife listened in on a connecting line and Larry
Streater dialed the other numbers. Mrs. Webb
testified that a baby was heard crying in the
background and testified that Daniel Sharp was
"the first person [that] came to her mind at the
time that had a baby." As soon as Robert Webb
hung up the telephone Larry Streater dialed Daniel
Sharp's, number and Sharp answered. Robert asked
Daniel if he was trying to get hold of him and Sharp
said, "No, no why." Webb accused Sharp of calling
the plant and Sharp said, "Well how did you know
that" and then denied that it was he. Later Sharp
called Webb and asked if Webb wanted to talk to
him and Webb said he was just trying to find out
why Sharp was making calls to the plant and
bothering them. Sharp asked him again how he
found out that Sharp had made the calls. Webb an-
swered that the telephone told him. Sharp said, "oh
yeah is that right, well how about that" and hung
up. Phyllis Streater identified Sharp as one of those
in the group from which gestures were made
toward Betty Webb.
Davis identified Sharp as one of three people,
Withers, Streater and Sharp, who on some morning
or mornings after he had received harassing
telephone calls during the night asked him if he had
slept well
Sharp was also identified by Harold Miller as one
of the individuals who was throwing rocks together
with the two Brewers and Mitchell, on the occasion
when he found a dent in the hood of his car.
Henry Streater
In addition to Respondent's contention that
Streater was discharged for cause and has no reem-
ployment rights because he was not an employee at
the time of the strike, the Respondent contends
that he had in any event lost his employee protec-
tion by the following events Betty Webb identified
Streater as one of the striking employees who made
an obscene gesture toward her; Phyllis Streater
identified him as one of those in the group who
made such gestures, and Davis identified him as
one of those who asked him if he slept well
Bob R Withers
Withers was identified by Davis as one of the
three employees who asked him if he slept well
after he had received anonymous telephone calls
during the night. He was identified by Mrs. Webb
as having walked near a place on the plant building
where an outside water valve is located on an occa-
sion when immediately thereafter she attempted to
use water in the restroom and found that there was
no water pressure. She testified that Withers had a
pipe in his hand and that Respondent found that
the lack of water pressure was due to the fact that
water was turned off at the valve near which she
had seen Withers It is not clear from her testimony
whether the pipe has any significance. In the
absence of evidence I cannot assume that a pipe is
ordinarily used to turn a valve. 15
Raymond B. Withers
Charles Johnson, who had worked for Respon-
dent in 1968 long before the strike and left its em-
ploy, came back to work during the strike. He was
apparently friendly with the strikers and he told a
group of them, including Raymond Withers, that he
was contemplating going back to work at the plant.
He testified that Raymond Withers said something
to him to the effect that he should go back to work
at the plant and tear up the 8-foot expander.',
Johnson testified that in his opinion Raymond
Withers was joking at the time and that the tone of
the conversation was jocular.
J. D. Leach
A great deal of testimony was adduced concern-
ing an incident in which J. D Leach was walking
the picket line at a time when Foreman Streater
was driving the company truck across the picket
line. According to Leach Streater came out of the
plant property without stopping and struck him
with the right front corner of the truck cab throw-
ing him to the ground and injuryng his back so that
he was in the hospital for a period in excess of 2
weeks. According to Larry Streater he stopped the
truck and waited for Leach to get out of his way
and as soon as he started the truck again Leach
turned around and appeared to fake being hit by
the truck. After the incident an ambulance was
called and Leach was taken to the local hospital
where he was X-rayed and examined. The examin-
ing doctor testified that he found no evidence of
any contusions, bruises, breaks or other injury to
Leach and the X-rays disclosed none. The next day
Leach was moved to another hospital where he was
treated by his private physician. Leach's wife
" My personal experience is to the contrary " Apparently the largest machine in Respondent 's plant and the one on
which he had theretofore been employed
ACKER INDUSTRIES, INC. 483
testified that she was informed by his physician his
diagnosis was as follows: Lumbo sacral strain-
possible intervertebral disc. A great deal more
testimony was offered and various witnesses were
called. Some of the testimony was patently false,
none of it was wholly credible. However taking the
facts as reported by Respondent's witnesses," we
have no more than a situation where Leach walked
into the side of the truck in an attempt to block its
passage across the picket line, fell to the ground
and was hospitalized thereafter for 2 weeks,
although no objective signs of injury were apparent.
I do not see how this incident can be regarded as
misconduct of such a nature as to warrant Leach's
discharge as Respondent appears to contend
Discussion
Respondent relies on the decision of the United
States Circuit Court of Appeals for the Fourth Cir-
cuit in Onetta Knitting Mills, Inc v. N.L.R.B., 375
F 2d 385 (1967), enfg. in part and denying enforce-
ment in part a Decision and Order of the Board at
153 NLRB 51 (erroneously cited by Respondent as
150 NLRB 54). The duty of a Trial Examiner is to
follow the decision of the Board rather than that of
the reviewing court unless and until the Board
adopts the rule of the court or the Supreme Court
reverses the Board's position. Even in consideration
of the decision of the United States Court of Ap-
peals for the Fourth Circuit in Onetta Knitting
Mills, supra, I would find that none of the incidents
relied on by Respondent are of such a nature as to
warrant the denial of reinstatement to the em-
ployees by Respondent. I have in mind the rule
which has been adopted by the Board first set forth
by the First Circuit in N.L R.B. v. Thayer Co., 213
F.2d 748, cert. denied 348 U.S. 883, that requires
the Board to balance the alleged misconduct of the
strikers against the unfair labor practices of the em-
ployer and determine whether under the circum-
stances the misconduct is justifiable. I believe that
no one would condone violence and intimidation of
a serious character but a review of the Board's
decisions in the field reveals that, generally speak-
ing, activities of the strikers which do not seriously
damage property, intimidate nonstrikers or prevent
them from entering the employer's property are not
generally of such a nature as to warrant the
discharge of the employee who engaged in the
misconduct.
With regard to the rock-throwing incident
charged against Brewer and Parker there is no
evidence that any damage was done or that anyone
could have been intimidated thereby. The only per-
son who testified with regard to the incident was
Jack Davis who testified that no one could have
thrown a rock as far as Brewer was from him. With
regard to the incident reported by Davis when he
was in the plant, there is no evidence that Brewer
or Parker threw the rocks but even assuming that
they did, they were only 35 or 40 feet from Davis
and the rock apparently went nowhere near him. I
cannot conclude from that that it was thrown at
him or that he was intimidated or any property
damaged thereby. With regard to Miller's testimony
that the two Brewers, Mitchell and Sharp threw
rocks at cars, Miller testified that no windows were
broken and apparently the only damage he saw was
a dent on the hood of his own car. He could not
identify the person who threw the rock that caused
the dent. In my opinion this is a little more difficult
but the absence of damage leads me to conclude
that under the Board's rules it is not adequate to
deny these employees the right of reinstatement.''
With regard to the phone calls attributed by
Betty Webb to Sharp, I do not believe that the at-
tribution is adequate to warrant a finding that
Sharp was in fact guilty of this type of harassment.
Even if he were, however, I do not find that the
harassment was misconduct of such a nature as to
warrant his discharge. Similarly, with regard to
Davis' testimony that Withers, Henry Streater and
Sharp asked him if he slept well the morning after
he received anonymous telephone calls, even if I
were able to find that they made the telephone
calls, and I cannot, I would not find that this is
misconduct of such a nature as to warrant their
discharge. Betty Webb's testimony that Streater, Bi-
ble, Bruce Brewer, Sharp and Lollar made obscene
gestures toward her and Phyllis Streater's testimony
that Bill Brewer and Nathan Parker were in the
group is all undemed. Again, I know of no
precedent nor does Respondent recite any to a
finding that such a gesture toward a young woman
by a striking male is adequate to take them out of
the protection of the Act. This was not an example
of a situation where employees have banded
together in hurling profane, obscene and insulting
epithets at employees who were attempting to work
in an effort to degrade and humiliate them publicly
and prevent their working. At this time Mrs. Webb
was not an employee, she was the wife of the
manager. I have discredited Janet Whelan's
testimony that Bill Brewer said, "There is nothing
like having a pregnant bitch for a secretary " How-
ever, I believe Pauline Phillips who testified that
Bill Brewer called her "a bitch." There is no
evidence of the presence of other employees.
Again, however, I don't believe that against the
background of an unfair labor practice strike at a
time when the employer had already refused rein-
statement to the strikers en masse, and feelings
were running high, that this affords justification for
withholding reinstatement to Bill Brewer. I do not
mean by that to imply that I approve of the miscon-
'r The incident is dealt with at greater length below as an 8 ( a)( I) allega - Tenipco Mfg Co , Inc , 177 NLRB 336
tion
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct On the contrary, but that is not the test with
which I must work.
As to the incident of Withers and the turning off
of the water, the evidence falls short of proving that
he had anything to do with the fact that the water
was turned off. Respondent, in its brief, argues that
by turning off the water the machinery in the plant
was endangered. There is no evidence in support of
this conclusion. The only evidence reveals that the
turning off of the water was harassing in that it no
longer flowed in the women's restroom. Even as-
suming I were to find that Withers could reasonably
be charged with turning off the water, I could not
find that this is conduct warranting his discharge.
Betty Webb's testimony as to Bob Mitchell's sug-
gestive remarks directed at her fall within the same
principle as the incident of the obscene gestures
and with the same result. Janet Whelan's testimony
concerning Donald Davis picking up rocks contains
no indication that Davis threw rocks or was even
prepared to throw rocks, only that he picked them
up and dropped them when she told him to. This
certainly does not warrant his discharge. Finally,
Johnson's testimony that Withers jokingly sug-
gested he tear up the machine reveals, in my
opinion, nothing more than the sort of joking that
might be expected by an employee who is inform-
ing strikers that he is going to cross their picket
line The suggestion was made in jest and taken as
such and Johnson made no effort to follow through
with it nor did Raymond Withers.
In accordance with my findings above, I shall
recommend that Respondent be required to offer
reinstatement to employees Russell Bible, Bill
Brewer, Bruce Brewer, Donald Brewer, Donald L.
Davis, David W. Lollar, Bobby G. Mitchell, Nathan
G. Parker, J. D. Leach, Daniel R. Sharp, Henry
Streater, Bob R. Withers and Raymond B. Withers.
C. The Alleged Independent 8(a)(1) Violations
The complaint alleges various independent viola-
tions of Section 8(a)(1) consisting of interroga-
tions, threats, the granting of wage increases and an
assault by truck on employee Leach. The only al-
leged interrogation relied on by the General Coun-
sel consists of the conversation that ensued when
Plant Manager Webb informed Nathan Parker of
his wage increase I have found that this conversa-
tion took place on July 30, which was the day on
which Webb received Christian's telegram
requesting recognition. Taking Parker's testimony
of the incident, on which the General Counsel re-
lies, Parker told Webb to hold up on the raise and
wait until Monday and see. Webb came back a few
minutes later and wanted to know what was going
to happen on Monday and Parker told Webb that
"it was about a Union" and that he should already
have been notified. Webb said "that's what I was
afraid of, I've been sweating the union for six
months." Parker testified that that ended the con-
versation.'9 General Counsel characterizes the
above exchange as clear interrogation and argues
that Webb "would be satisfied with nothing but a
full disclosure of the union activities." Nothing in
Parker's testimony supports this assertion. I recom-
mend that this allegation be dismissed inasmuch as
it lacks support.
Russell Bible testified that on or about August 4
he had a conversation with Webb during a break in
working hours in which Webb asked him why he
thought the Union would help the employees. Bible
answered that it would give them job security for
one thing and probably more wages and other
benefits. Webb answered that the only effect of
unionization would be to end his custom of
negotiating individual wage increases with em-
ployees, because the employees would cease to be
individuals then and wages would have to be
negotiated through the Union. Bible testified,
"Robert said it wouldn't give us any job security
because he would just fire us all if we tried to go
union and hire new employees." The General
Counsel asked whether a strike was mentioned in
the conversation and Bible answered, "Well, yes it
was, he said that if we did go out on a strike that he
would just fire us, that's when he said that he would
fire us and hire all new employees. He said he
didn't have to hire any of us back if he didn't want
to, he said he could replace us all permanently."
Recalled to the witness stand the next day, Bible
testified that actually he had had two conversations
with Webb, the one about which he had testified
earlier and another at the time he was informed of
his raise. Bible testified that he had recalled the
second conversation during the evening between
his two appearances on the witness stand after
hearing a tape recording of a union meeting at
which he had reported the conversations to the as-
sembled employees. In the earlier conversation, the
one about which he testified at the later time, he
testified that Webb stated that the Union could not
possibly do the employees any good and if they
went union he could just fire them all arid get new
hands He would not ever have to accept the
Union. He said he would never accept a contract
offered by the Union. With regard to wage in-
creases he said that the wages paid by Respondent
were dictated by the economy of the area rather
than by any position of the Union. Bible testified
that he had not reported a second conversation to
the General Counsel; there was no account of it in
his affidavit taken during the investigation and -it
was not until the evening between his twp-
i" Parker also testified that Webb said that if the Union came in it would
close the doors i discredit this testimony i note that it is denied by Webb
and that Parker had to be reminded twice before he recalled this testimony
ACKER INDUSTRIES, INC.
pearances on the witness stand that he recalled that
there had been two. He also testified that at the
union meeting at which the tape was made that re-
called to him the fact that there had been two con-
versations, Union Representative Christian had
been advising the employees of the type of unfair
labor practices which they could expect including
threats to close the plant and discharge the em-
ployees and the like. He also testified that he had
lots of conversations with everybody at the plant in-
cluding Webb and Streater but recalled only these
two at which the Union was discussed.
Webb testified that he had only one conversation
with Bible. It started at the coke machine during
the break and broke off at the end of the break and
was continued at Webb's machine. According to
Webb's testimony Bible asked if everybody was
going to be fired and Webb denied that he had any
intention of doing so. Speaking about a wage in-
crease he testified that he told Bible that there is no
way a union can guarantee a wage increase because
the wages the company pays its employees depend
on the economy of the area. He also testified that
he told Bible that he did not think the Union could
give the employees proper representation because
they were an International Union and the men
would lose their identity of being an individual in
the plant and dealing with management on such
things as wages and job security and would be able
to bargain only through a bargaining agent. Under
all the circumstances of Bible's testimony, I dis-
credit his recollection that any threats to discharge
the employees and close the plant were uttered. I
believe and I find that Webb took the opportunity
of a personal discussion with Bible to make the
statements about which he testified, the familiar ar-
guments presented by the employers of unor-
ganized employees when faced with union organiza-
tion. I believe and find that Webb stated that the
employees would lose their individuality if they
went union and that any wage increase thereafter
would have to be negotiated through the Union,
that he told Bible that the Employer could not be
forced to grant wage increases in excess of those
that were considered reasonable for the area and
that if the employees struck he could replace them
and would do so. It must be remembered that this
conversation took place within a few days of
Webb's consultation with Attorney Soule and
Webb was advised as to what he could and could
not say. I find no violation in the conversation and I
recommend that the complaint be dismissed insofar
as a violation based thereon is alleged.
Raymond Withers testified that on August 7 he
was walking in front of Larry Streat_er wTio was talk-
meone wRefrr-#e-conld-noti citify. He
L° Foreman Streater's explanation of the statement is worthy of note He
testified in effect that what he meant was that the plant was drafty and the
doors illfitting and that he anticipated that if the Union came in they would
require the employer to lower the ceilings or install air conditioning
whereupon the doors would have to be kept closed He testified that for
485
heard Streater make a statement that if the plant
went union it would close the doors of the shop.
Withers also testified that on August 6 he heard
Webb make the same statement to Nathan Parker.
While Nathan Parker testified to Webb making
such a statement to him he testified that this took
place on the occasion of Webb's informing him of
the raise He testified that this was on July 31 and I
have found above that it was on July 30. I do not
credit Withers' testimony with regard to the in-
cident with Webb and Parker. He heard no more of
the conversation than a single phrase which he
recounted and there is no corroboration by Parker
of the incident at all Webb denies making the
statement or even having the conversation. How-
ever I note that, as I have discussed above, Streater
admitted to a conversation with Parker and Brewer
in which he said the Union could cause the com-
pany to close the doors There was no satisfactory
location in time of this incident. I believe it is quite
possible that Withers was confused and heard
Foreman Streater, on two occasions rather than
one, make such a statement.20
I have found that Respondent threatened that if
employees went on strike they would be
discharged. A distinction must be drawn between a
statement that employees may be replaced if they
strike and hence would lose their jobs and a state-
ment that they would be discharged if they strike.
The former is a threat of a lawful action and is not
in itself unlawful whereas the latter is a threat to act
unlawfully and the threat itself is unlawful under
Section 8(a)(1).21 I find also that Foreman
Streater's admitted threat that if the Union came in
it could close the plant doors is coercive and viola-
tive of Section 8(a)(1) of the Act.
In my discussion of the discharge of Henry
Streater and the commencement of the strike,
above, I discussed Brewer's testimony that Streater
threatened to discharge any of the employees and
replace them. I find therein that the proof of the
General Counsel does not support the allegation re-
garding the direct threat of discharge.
General Counsel contends that by granting the
wage increase effective August 4 Respondent inter-
fered with the rights of employees in violation of
Section 8(a)(1). I have found that the wage in-
creases were granted pursuant to a decision made
on July 22, before the commencement of the or-
ganizing campaign and that the announcement of
the- wage increase commenced before Respondent
was shown to have knowledge of Union's activities.
I cannot find therefore that the wage increases were
instituted to interfere with employees' union activi-
ties and I know of no authority for the proposition
-urged by the General Counsel that Respondent
this reason he made the statement that the Union could cause the company
to close the doors I believe that he made the statement but I have trouble
swallowing the explanation
2' Ideal Baking Co , Inc , 172 NLRB No 120
427-835 0 - 74 - 32
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should have rescinded the wage increase, even
though it had already announced it to some em-
ployees, on learning of the union campaign. I shall
recommend the dismissal of the allegation that the
wage increase constituted a violation.
Finally, the General Counsel contends that the
Leach truck episode constitutes 8(a)(1) in that it
was an assault by Foreman Streater on employee
Leach who was then walking the picket line. Leach
testified that on August 21 he was walking the
picket line in the afternoon when Foreman Larry
Streater drove a truck out of the driveway with the
intention to cross the picket line and run out on the
highway. The picket line at this point runs parallel
with the highway just off the highway. Leach
testified that he first saw the truck when it was 100
to 150 feet away from the highway and when he
was at the north end of the building heading north
toward the point at which the truck path crossed
the picket line. He crossed the path of the truck
and continued northerly about 10 feet beyond the
driveway and turned back toward the south as the
truck approached He testified at the time he made
his turn at the north end of his route the truck was
within 10 or 12 feet of him, and that the truck
never stopped at any time As he got to the point at
which the truck's route would cross the picket line
he saw a car coming down the highway and as-
sumed that the truck would stop, but, as he got in
front of the truck, the truck sped up and hit him,
knocking him down and causing him injuries which
required hospitalization for a period of 2 weeks and
for which he was still under treatment. He also
testified that when the truck was probably 14 or 15
feet from him, Foreman Streater shouted, "Just
walk on out there you s-o-b and I'll run over you."
Streater testified that he did not shout at Leach
at all and that as he pulled out of the yard Leach
was walking back and forth across the driveway at-
tempting to block the truck. He testified that he
stopped at the edge of the picket line and when
Leach had cleared the path of the truck to his right,
i.e., the north, he edged forward whereupon Leach
hurriedly turned around and pretended to be hit by
the truck and fell to the ground.
In corroboration of Leach's story Nathan Parker
testified that he was across the street at an ice dock
at the time of the incident, that the truck was going
between 8 and 10 miles an hour and never stopped
as it intercepted the picket line and that the right-
hand corner of the truck struck Leach as he was
walking the picket line. Bill Brewer also testified
that he was sitting across the street by the ice dock
and looked up just as the truck struck Leach
knocking him to the ground. He testified that as the
truck hit him it looked as though he had tried to
turn and get away from the truck.
Respondent in corroboration of Streater's
testimony called Lieutenant Whelan, the husband
of its secretary and one of the policemen who had
been employed by Respondent as a night guard.
Whelan testified that he was standing to the south
of the driveway when the incident occurred and
that he saw the truck come out and stop 3 or 4 feet
away from the highway. He saw Leach, who was at
that time south of the truck, proceed north in front
of the truck When he got two or three steps on the
north side of the truck the truck moved forward, at
which time Leach turned around and quickly
stepped into the side of the truck and fell down.
Captain Hostmeyer, another policeman22 and the
grandfather of policeman Whelan, testified that on
various occasions prior to the Leach incident he
had had to warn pickets to cease impeding the
entry and exit of the company truck across the
picket line and that the pickets commonly marched
back and forth in front of the truck as it tried to
cross the picket line until he would warn them to
permit the truck to pass. He also testified that he
was called to the scene shortly after the Leach in-
cident, which he did not see, and that his grandson
reported the incident to him. He testified he had no
recollection of his grandson saying that he had not
seen the incident. This was in response to testimony
by Parker that when Hostmeyer arrived he asked
Whelan what happened and Whelan answered, "I
don't know. I couldn't see it."
I discredit Whelan. He testified that he was
standing behind a car that was parked abutting the
building to the south of the site of the incident and
some 50 or 75 feet from it. The evidence reveals
that there were at least three cars parked in front of
the plant, two to the north of a door in the center
of the building and one to the south and that he was
standing south of the southernmost car. From that
position it would have been impossible for him to
have seen the impact as the truck advanced to the
edge of the picket line which was some 5 feet from
the edge of the highway The forward left corner of
the truck would surely have been interposed
between the forward right corner and Whelan.
Similarly Mrs. Jack Davis who had arrived at the
plant a few minutes earlier to pick up her husband,
a supervisor, testified that she was sitting in the
northernmost of the three cars, which was abutting
the northwest corner of the plant and that she saw
the entire incident and saw that the truck did not in
fact hit Leach at all but rather that as the truck
passed he threw himself to the ground pretending
to be injured. In an attempt to reinforce her story
she testified on cross-examination, when it was
pointed out that the angle of vision at which she sat
made it impossible to have seen Leach at the
northwest corner of the truck, that she could in-
deed see his head through the windshield and his
feet underneath the truck at the instant of impact.
" The lowest ranking policeman on the Wewoka Police Department is a
lieutenant
ACKER INDUSTRIES, INC.
Considering the fact that she was sitting in the left
front seat of the automobile her eyes could not
have been more than 5 feet above the ground
which is level at that point. Henry Streater testified
that the window in the left cab door of the truck
was some 6-1/2 to 7 feet from the ground. It is
quite apparent that Mrs. Davis could not have seen
Leach's head either through the windshield or
through the cab door window. It is my observation
that Leach was not an extraordinary tall man and
certainly not in excess of 6-1/2 feet. Nor do I be-
lieve that she could have seen his feet from that
angle both because of the low sides of the truck and
the interposition of the left front wheel and the
right front wheel thereof. If indeed Mrs. Davis was
looking in that direction I do not believe that she
could have seen Leach at any time until the tractor
portion of the truck had passed the line of vision
between her and Leach and she could then see
under the float. By this time of course Leach would
have been on the ground. I discredit her entirely.
I discredit Leach's testimony also. If the truck
was going as fast as he claimed and did not stop, I
believe it is impossible that he could have been at a
point 10 or 15 feet left and forward of the driver
when he testified Streater threatened to run over
him, crossed in front of the truck, proceeded 10 to
15 feet beyond the truck, turned around and
returned to be in front of the truck by the time it
crossed the picket line, if he proceeded at a normal
pace I believe that, as Whelan testified, Leach ran
in front of the truck in an attempt to impede its
crossing the highway as the truck proceeded to
speed up. I believe that both Streater and Leach
were engaging in a dangerous little game. Whether
Leach was actually struck by the truck because he
misjudged the speed with which he or the truck was
moving or whether he attempted to fake an ac-
cident by pushing against the right front corner of
the truck and falling away from it,23 in either event,
I cannot find that he was deliberately run down by
Foreman Streater and, accordingly, I shall recom-
mend that the complaint be dismissed insofar as it
alleges that Leach was assaulted in violation of Sec-
tion 8(a)(1).
D. The Alleged Refusal To Bargain
The General Counsel argues that under the deci-
sion of the United States Supreme Court in the Gis-
sel case,24 the Respondent is guilty of a refusal to
bargain cognizable under Section 8(a)(5) of the
Act and a bargaining order should ensue. The
General Counsel contends that he has shown that
the Union had in its possession a clear card majori-
ty, in fact 100 percent of the employees, and that
t' Brewer testified that he could not tell whether the truck spun Leach
around with the impact or whether Leach spun around in an effort to push
himself away from the truck
14 Gis ul Pucluig Company v N L R B ,395 U S 575
487
the activities of the Respondent after the demand
for recognition undermined the Union to the extent
that a fair election would be impossible.
The Respondent in its brief contends that under
the decision in Gissel, Respondent had the right to
refuse the Union bargaining status on the basis of
its cards and to insist upon a secret election and
that it did not in fact commit 8(a)(1) by any sub-
sequent conduct.
In any event it is necessary for a determination to
be made concerning the majority status of the
Union General Counsel by various witnesses, each
of whom testified that he saw the card signed, in-
troduced authorization cards signed by all of the
employees who were employed in the unit25 on or
about July 27 and 28. There is no evidence that any
employee signed a card unwillingly with the possi-
ble exception of testimony by Plant Manager Webb
that an employee, Lollar, came to him and com-
plained that he was being coerced by his fellow em-
ployees to join the Union. This same Lollar sub-
sequently walked out on strike and remained out on
strike and is in fact one of the employees whose al-
leged misconduct on the picket line renders him
unfit for reinstatement according to Respondent's
theory. I find that at the time Union Representative
Christian made his demand for recognition by the
night letter delivered on July 30, the Union was in
possession of authorization cards by a clear majori-
ty of the employees.
General Counsel contends that Respondent's al-
leged refusal to bargain commenced on August 1,
1969, the date on which Respondent sent a letter to
the Union refusing to bargain, and that an order
should be granted because, although Respondent
refused to bargain unless the Union were certified
after a Board-conducted election, subsequently
committed unfair labor practices have rendered an
election impossible
As I read the Gissel case, I am of the opinion that
the rule therein becomes applicable only secon-
darly. The situation with which I am faced in the in-
stant case is one specifically excepted by the
Supreme Court in Gissel The Court stated in its
discussion of the first issue, section III of the deci-
sion,
Almost from the inception of the Act, then, it
was recognized that a union did not have to be
certified as the winner of a Board election to
invoke a bargaining obligation; it could
establish majority status by other means under
the unfair labor practice provision of §
8(a)(5)-by showing convincing support, for
instance, by a union-called strike or strike
vote, or, as here, by possession of cards signed
by a majority of the employees authorizing the
t' There is no contention that the unit alleged in the complaint is not an
appropriate unit Respondent at the hearing withdrew its denial thereof
Accordingly , it is agreed and I find that the unit as set forth in the com-
plaint is an appropriate unit
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union to represent them for collective bargain-
ing purposes
We have consistently accepted this in-
terpretation of the Wagner Act and the present
Act, particularly as to the use of authorization
cards. . . . Thus, in United Mine Workers, supra
[ United Mine Workers v. Arkansas Flooring Co.,
351 U.S. 62, 37 LRRM 2828(1956)], we
noted that a "Board election is not the only
method by which an employer may satisfy itself
as to the union's majority status," 351 U.S. at
72, n 8, since § 9(a), "which deals expressly
with employee representation, says nothing as
to how the employees' representative shall be
chosen," 351 U.S. at'71. We therefore pointed
out in that case, where the union had obtained
signed authorization cards from a majority of
the employees, that "[i]n the absence of any
bona fide dispute as to the existence of the
required majority of eligible employees, the
employer's denial of recognition of the union
would have violated § 8(a)(5) of the Act." 351
U.S. at 69. We see no reason to reject this ap-
proach to bargaining obligations now. . . .
[Footnotes omitted. ]
In the instant case on August 13, the two em-
ployees known to Respondent to be the employee
representatives of the Union informed Respondent
that if it would not reinstate Henry Streater the em-
ployees were going to walk out. Respondent
refused to reinstate Streater and the employees
with one exception walked out. This circumstance
is precisely that set forth by the Supreme Court in
Gissel as one in which no bona fide dispute as to
the existence of the required majority could have
existed. This is one of the circumstances which the
Supreme Court in Gissel specifically excepted from
the action of its decision in Gissel even without the
consideration of the unfair labor practices sub-
sequently committed. Accordingly, I find that
Respondent having no possible dispute as to the ex-
istence of the required majority was under a duty to
recognize and bargain with the Union at least as of
the date of the Union's demonstration to it of its
representative status, i.e., August 13, and its failure
to recognize and bargain with the Union from that
day forward violates Section 8(a)(5) and (1) of the
Act.
Secondarily, under the decision of the Supreme
Court in Gissel, the bargaining order is still war-
ranted While I have found that most of the 8(a)(1 )
activity relied upon by General Counsel, taking
place between the demand for recognition and the
inception of the strike, is not in fact violative of the
Act and while I find that that which remains is not
of such substance that I could find that it would in-
terfere with the election processes and tend to
preclude the holding of a fair election, and even in
consideration of the possible impact on employees
of the discharge of Henry Streater, I find that on
August 27 when Respondent refused to reinstate
the unfair labor practice strikers, thereby rendering
everyone of the employees with one exception a
dischargee, which I have found to be a violation of
Section 8(a)(3) and (1) of the Act, the impact of
these unfair labor practices obviously is such as to
interfere with the holding of a fair election and
under Gissel requires a bargaining order
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with
Respondent's operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminated
against Henry Streater by discharging him and
against the unfair labor practice strikers by refusing
to reinstate them upon their unconditional requests
therefor, I shall recommend that Respondent offer
Henry Streater and each of the unfair labor prac-
tice strikers immediate and full reinstatement to his
former job or if this job no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges, discharg-
ing if necessary any employee hired on or after Au-
gust 13, 1969, and make each of them whole for
any loss of earnings which he may have incurred as
a result of Respondent's unfair labor practices by
payment to each of them of a sum of money he nor-
mally would have earned as wages during the
period; in the case of Henry Streater from his
discharge to the date of Respondent's uncondi-
tional offer of reinstatement, and with regard to the
unfair labor practice strikers from August 27 until
Respondent's unconditional offer of reinstatement.
Said loss of earnings shall be computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, together with interest at the rate of 6
percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
I By interfering with, restraining and coercing
its employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
ACKER INDUSTRIES, INC.
2. By discriminatorily discharging Henry Streater
and by discriminatorily refusing the striking em-
ployees unconditional offer to return to work,
Respondent has discriminated with respect to their
hire, tenure and terms and conditions of employ-
ment thereby discouraging membership in the
Union and has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(3) of the Act.
3. International Association of Machinists and
Aerospace Workers has been since July 30, 1969,
and now is the exclusive collective-bargaining
representative of the majority of the Respondent's
employees in a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
4. The following described collective-bargaining
unit is a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act: All production and maintenance em-
ployees of Respondent at its Wewoka facility, in-
cluding over-the-road truckdrivers, but excluding
office clerical, professional employees, watchmen,
guards and supervisors as defined in the Act.
5. By failing and refusing to meet and bargain
with the Charging Party since August 1, 1969,
Respondent has engaged in and is engaging in con-
duct violative of Section 8(a)(5) of the Act.
6. The strike which commenced on August 14,
1969, was an unfair labor practice strike arising
from the prior unlawful conduct of Respondent.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
8. Respondent did not engage in unfair labor
practices alleged in the complaint which are not
specifically found herein.
RECOMMENDED ORDER26
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in this case, I recommend that Acker Industries,
Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its
employees in the exercise of their statutory rights
by threatening economic reprisals in the event the
Union came in.
(b) Discouraging membership in International
Association of Machinists and Aerospace Workers
or any other labor organization by discharging em-
ployees because of their union activities or by fail-
ing and refusing to grant reinstatement upon the
unconditional offer of unfair labor practice strikers
29 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
489
therefor, or in any other manner discriminating
against them with respect to their hire or tenure of
employment or any other term or condition of em-
ployment.
(c) Refusing to bargain collectively with Interna-
tional Association of Machinists and Aerospace
Workers as the exclusive representative of all em-
ployees in a unit consisting of.
All production and maintenance employees
of Respondent at its Wewoka, Oklahoma,
facility, including over-the-road truckdrivers,
but excluding office clericals, professional em-
ployees, watchmen, guards and supervisors as
defined in the Act
(d) In any like or related manner interfering
with, restraining or coercing its employees in the
right to self-organization, to form their own labor
organizations, to join or assist the Union or any
other labor organization, to bargain collectively
with representatives of their own choosing and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion or to refrain from any or all such activities
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Henry Streater reinstatement to his
former job or if this job no longer exists to a sub-
stantially equivalent position without prejudice to
his seniority or other rights and privileges and make
him whole for any loss of pay he may have suffered
as a result of the discrimination against him in the
manner set forth in the section entitled "The
Remedy."
(b) Offer all striking employees reinstatement to
their former jobs or if those jobs no longer exist to
substantially equivalent positions without prejudice
to their seniority or other rights and privileges
discharging, if necessary, all replacements hired on
or after August 13, 1969, and make them whole for
any loss of wages they may have suffered to the ex-
tent and in the manner set forth in the section enti-
tled "The Remedy."
(c) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(d) Upon request, bargain collectively with In-
ternational Association of Machinists and
Aerospace Workers as the exclusive representative
of all employees in the unit set forth above and if
agreement is reached, upon request, sign a contract
embodying the same.
(e) Post at its plant and place of business at
Wewoka, Oklahoma, copies of the attached notice
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
490 DECISIONS OF NATIONAL
marked "Appendix."27 Copies of said notice, on
forms provided by the Regional Director for Region
16 (Fort Worth, Texas), after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material
(f) Notify the Regional Director for Region 16,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."'
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
t" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 16, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that after a trial
in which both sides had an opportunity to present
their evidence the National Labor Relations Board
has ordered us to post this notice and we intend to
carry out the order of the Board and abide by the
following.
WE WILL NOT threaten our employees with
discharge or threaten them that the plant will
close in the event they join the Union
WE WILL NOT refuse to bargain collectively
with international Association of Machinists
and Aerospace Workers as the representative
of our employees in the unit consisting of:
All production and maintenance em-
ployees in the Wewoka plant, including
LABOR RELATIONS BOARD
over-the-road truckdrivers, but excluding
office clericals, professional employees,
watchmen, guards and supervisors as
defined in the Act.
WE WILL NOT discharge our employees or
otherwise discriminate against them because of
their activities on behalf of the Union.
WE WILL offer Henry Streater reinstatement
to his old job and pay him any money he lost as
a result of his discriminatory discharge
WE WILL offer immediate and full reinstate-
ment to the employees who went on strike on
August 14, 1969, to their former jobs, or if
those jobs no longer exist, to substantially
equivalent positions, discharging, if necessary,
any replacements hired after August 13 and
WE WILL make them whole for any money
they lost because we did not reinstate them
when they requested reinstatement on August
27, 1969.
WE WILL notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
All our employees are free to become and remain
or refrain from becoming or remaining members of
the International Association of Machinists and
Aerospace Workers or any other labor organiza-
tion
ACKER INDUSTRIES, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 8A24 Federal Office Build-
ing, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921