AMF, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1406 (N.L.R.B. 1977)

1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Head Division , AMF, Inc. and Midwest Regional
Joint Board , Amalgamated Clothing and Textile
Workers Union, AFL-CIO.' Cases 27-CA-4519
and 27-CA-4679
April 12, 1977
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND
WALTHER
On November 3, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel and the
Charging Party both filed cross-exceptions and
supporting briefs, and Respondent filed an answer-
ing brief to the cross-exceptions.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge that
Respondent's discharge of Robert Wright and refusal
to reinstate 79 strikers were violations of Section
8(a)(3) and (1) of the Act. The Administrative Law
Judge, however, dismissed the allegation that Mark
Garber's discharge violated the Act. The General
Counsel and Charging Party except to this finding,
contending the reason given for the discharge,
Garber's kicking of a soda vending machine, was a
pretext. We agree.
Garber was employed in the tennis department at
Respondent's Boulder plant from September 1974
until discharged on January 6, 1975. At lunchtime on
the day of discharge, Garber inserted some change
into a soda machine in the employee lunchroom and,
i On June 2, 1976, the Amalgamated Clothing Workers of America,
AFL-CIO and the Textile Workers Union merged, and with the merger the
new name of the Union became the Amalgamated Clothing and Textile
Workers Union, AFL-CIO
2 Respondent has requested oral argument This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and positions of the parties
3 Respondent and Charging Party have excepted to certain credibility
findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3,
1951) We have carefully examined the record and find no basis for
reversing his findings
' The Administrative Law Judge credited the testimony of employees
Seaton, O'Brien, Lindley, and Gay that this second kick dented the
228 NLRB No. 180
when unable to obtain either soda or a refund, he
swore at the machine, banged it with his fist, and
finally kicked it twice.4 A fellow employee, Bradley
Seaton, rebuked Garber for his actions, and later told
Robert Lindley, Respondent's safety manager, what
had happened. After some investigation,5 Lindley
reported the matter to James Hanifin, Respondent's
director of employee relations.
That afternoon, Garber was summoned before
Hanifin and Lindley, and questioned concerning the
incident. Garber admitted kicking the machine,
questioned whether he had caused any damage, and
offered to reimburse the Company for any damage.
He pointed out that banging and/or kicking the
machine were commonplace occurrences in the
plant.6 Hanifin cited a company policy against
deliberate destruction of property, and then fired
Garber.
Garber was an active union supporter. He leaflet-
ted for the Union in the fall of 1974, and spoke
favorably of the Union to his coworkers. In addition
he often made inquiries and complaints concerning
the health and safety conditions in the plant, and
made several attempts in October 1974 to get
Supervisor Stevenson to turn over a copy of a state
health department report which supposedly demon-
strated that there was no danger from dust inhalation
in Respondent's plant. In early December, Garber
discussed the report with Hanifin, and questioned the
existence thereof.
In December 1974 Stevenson invited Garber into
his office and asked why employees were dissatisfied
with Respondent. They discussed the Union and the
Company's response to unionization, particularly
changes in existing benefits, for 2 hours. Garber
stated that he thought the Company felt threatened
by the Union, and that the removal of benefits was
its response to the threat it perceived.?
The Administrative Law Judge pointed out that the
kicking of a vending machine seems to be a trifling
offense not warranting a discharge, and that when
coupled with Garber's activist role in union matters,
the finding of a violation was almost unavoidable.
machine, with estimates of length of the dent varying from 2 to 10 inches
The machine was owned by the Pepsi Cola Bottling Company. Their records
disclose a service call was made on the day of the incident, but do not reveal
the nature of the problem or if any repair was made
5 Seaton named Sharon O'Bnen as another witness to the event. Lindley
obtained O'Bnen's version of what had transpired, and then inspected the
machine.
6 Several employees testified they had kicked or jostled the machine,
and/or seen other employees do so Employee Joyce Gay testified, in view
of the prevalence of kicking the machine, that Garber's discharge "was a big
joke around the plant "
I In this context note Head Ski Division, AMF, Inc, 222 NLRB 161
(1976), where the Board found Respondent violated Sec 8(a)(1) by its
postelection discontinuance of a ski loaner program for employees, of free
employee use of a WATS telephone line, and of its job bidding procedure,
and by disparate enforcement of its no-solicitation, nodistnbution rule.
HEAD DIVISION, AMF 1407
Nonetheless he then rejected his own analysis, and
instead found Garber's was more than a "normal"
attack on a balky machine. He concluded the
ferocity of the attack justified Respondent's decision
to discharge Garber. We disagree.
We do not believe that the soda machine incident
was the real reason for Garber's discharge. In
Respondent's plant, as elsewhere, it is commonplace
for human beings to bang or kick a machine which
does not deliver the promised goods; yet Garber was
the only employee ever discharged for this action.8
Garber was a thorn in Respondent's side, continually
complaining about safety problems, and was also
known to be a union activist.9 In these circumstances
we can only conclude the vending machine incident
was a pretext to discharge Garber for his union
activity. We therefore find that Respondent dis-
charged Mark Garber in violation of Section 8(a)(3)
and (1), and shall order his reinstatement with
backpay.
ADDITIONAL CONCLUSION OF LAW
Add the following as Conclusion of Law 5.
"5. By discharging its employee , Mark Garber,
Respondent has engaged in an unfair labor practice
in violation of Section 8(a)(1) and (3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Head Division, AMF, Inc., Boulder, Colorado,
its officers, agents, successors , and assigns , shall take
the action set forth in the said recommended Order,
as so modified:
1. Insert the following as paragraph 1, (a), and
reletter the subsequent paragraphs accordingly:
"(a) Discharging employees to discourage their
support of Midwest Regional Joint Board, Amalga-
mated Clothing and Textile Workers Union, AFL-
CIO, or any other labor organization."
2. Substitute the following for paragraph 2, (a):
"(a) Offer to Robert Wright, Mark Garber, and the
unfair labor practice strikers reinstatement to their
former jobs or, if such jobs no longer exist, to
substantially equivalent ones, and make them whole
for any losses of earnings and benefits as prescribed
in the section entitled "Remedy.' "
3. Substitute the attached notice for that of the
Administrative Law Judge.
8 Respondent argues that it has discharged three employees previously
for violating its prohibition against deliberate property destruction , and that
it knows of no instance in which such conduct has not resulted in severance
We do not believe that the incident here is the equivalent of knife throwing
or product sabotage
The incidents involved the throwing of oyster knives into a ceiling, the
deliberate sabotage of tennis rackets, and the punching of a hole in a wall
9 Garber's union feelings were clear, as evidenced by the 2-hour
discussion Stevenson and Garber had in late December 1974 concerning
unions and employee dissatisfaction.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees to discour-
age their support of Midwest Regional Joint
Board, Amalgamated Clothing and Textile Work-
ers Union, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT enforce our no-solicitation, no-
distribution rule in a discriminatory manner,
thereby discharging employees to discourage their
support of Midwest Regional Joint Board, Amal-
gamated Clothing and Textile Workers Union,
AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of the
rights guaranteed in the National Labor Relations
Act, which are:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL offer to Robert Wright and Mark
Garber reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniori-
ty or other rights and privileges; and will make
them whole for any loss of earnings and benefits
suffered by reason of our unlawful discharge of
them.
WE WILL offer the employees who engaged in a
strike from May 9 through September 12, 1975,
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their
seniority or other rights and privileges, dismissing
if necessary any employees hired to replace them;
and will make them whole for any losses of
earnings and benefits suffered because of our past
refusal to reinstate them.
HEAD DIVISION, AMF,
INC.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RICHARD J . BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in Denver,
Colorado, on February 12 and 13 , March 9 through 12, and
April 13 and 14, 1976. The charge in Case 27-CA-4519 was
filed on May 14, 1975 , and amended on May 14 and 28,
and June 27 , 1975, by Midwest Regional Joint Board,
Amalgamated Clothing and Textile Workers Union, AFL-
CIO (Union). The charge in Case 27-CA-4679 was filed by
the Union on September 26, 1975.
A complaint issued in Case 27-CA-4519 on August 13,
1975, which was amended on November 11, 1975. On
December 12, 1975, an order issued consolidating the two
cases, and with it a consolidated complaint superseding the
earlier complaint in all respects . The consolidated com-
plaint alleges violations by Head Division , AMF, Inc.
(Respondent), of Section 8(a)(3) and ( 1) of the National
Labor Relations Act (Act).
The parties were given opportunity at the hearing to
introduce relevant evidence , examine and cross-examine
witnesses , and argue orally. Briefs were filed for the
General Counsel , for Respondent , and for the Union.
1. ISSUES
The complaint alleges that Respondent violated Section
8(a)(3) and (1) by:
1. Discharging Mark Garber on January 6, 1975, and
Robert Wright on May 9, 1975.
2. Refusing to reinstate 79 named strikers after they
had applied for reinstatement on September 12, 1975.
The complaint further alleges, in support of the latter
allegation , that the strike in question was caused and
prolonged by Respondent 's unfair labor practices-name-
ly, its discharges of Garber and Wright , and by conduct
later found unlawful in Head Ski Division, AMF, Inc., 222
NLRB 161 (1976).
The answer denies any wrongdoing.
It. JURISDICTION
Respondent, a New Jersey corporation headquartered in
White Plains, New York, is engaged in the manufacture
and nonretail sale of sports equipment . Among its facilities
is a plant in Boulder , Colorado. Respondent annually
causes products valued in excess of $50,000 to be shipped
from the Boulder plant directly to customers outside
Colorado.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
III. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The representation case
On August 16, 1974 , an NLRB election was held among
the approximately 200 production and maintenance em-
ployees at Respondent's Boulder plant.' On January 20,
1975, after disposition of objections to the conduct of the
election and challenges to the eligibility of certain voters,
the Union was certified as the employees ' bargaining
representative.
2. The earlier unfair labor practice case
As previously stated , the General Counsel contends that
the strike in question was caused and prolonged in part by
conduct of Respondent later found unlawful in Head Ski
Division, AMF, Inc., supra . That case, like this, involved
Respondent's Boulder plant.
A hearing was begun before Administrative Law Judge
James T. Barker on March 11, 1975. The hearing was
adjourned on March 12 in anticipation of settlement.
Settlement not materializing , the hearing resumed June 4
and ended June 6 . Judge Barker 's decision issued August
13, 1975 , and was affirmed in all substantive aspects by
Board decision of January 13, 1976 . This decision held,
among other violations , that Respondent had: (a ) violated
Section 8(a)(3) by discharging Richard Mahoney on July 9,
1974, and Barbara Vachon on August 8, 1974; (b) violated
Section 8(a)(1) by its postelection discontinuance of a ski
loaner program for employees , of free employee use of a
WATS telephone line, and of its job-bidding practice; and
by disparate enforcement of its no-solicitation, no-distnbu-
tion rule at various times in 1974.
B. Facts Immediate to the Violations Presently
Alleged
1. The discharge of Mark Garber
Garber was employed in the tennis grinding department
at the Boulder plant from September 1974 until discharged
on January 6, 1975 . Respondent avows that he was
discharged solely for kicking a pop vending machine at
lunchtime that day.
The machine , which belonged to the Pepsi-Cola Bottling
Company, was in the employee lunchroom . The cost of pop
had been raised, as of January 6, from 20 to 25 cents, and a
number of people , perhaps forgetful of the increase, were
having trouble operating the machine . When Garber was
unable to obtain either pop or a refund , he swore at the
machine , banged it with his hands, and gave it two hard
I Case 27-RC-4849
HEAD DIVISION, AMF 1409
kicks, the latter leaving a sizable dent.2 A nearby observer,
Bradley Seaton, rebuked Garber on the spot, precipitating
a "heated discussion" between the two. Seaton asked
Garber how he would like it were Seaton to kick his car,
then lectured that the machine belonged to everybody, that
some of its proceeds helped finance employee recreational
activities , and that everybody would suffer should it be
destroyed or removed because of abuse.
Following the lunch period, Seaton, a tool controller,
discussed the incident with Sharon O'Brien, an executive
secretary, who also had witnessed it, and they agreed that it
should not go unreported. Neither knowing Garber's
identity, Seaton inquired around the plant. He learned
Garber's name, then told Robert Lindley, Respondent's
manager of safety, what had happened. Seaton named
O'Brien as a witness. Lindley promptly obtained O'Brien's
version, after which he surveyed the damage to the
machine. Lindley also asked a plant custodian about the
previous condition of the machine, learning that it was free
of damage as of the previous weekend,3 and arranged for
notification of the Pepsi-Cola people.4
That same afternoon, Lindley reported the matter to
James Hanifin, director of employee relations, who
summoned Garber before the two of them at quitting time.
After Lindley had related his understanding of what had
happened and the damage he had found, Garber admitted
kicking the machine, both that day and in times past,
adding that the practice was not peculiar to him. He
denied, however, that he had kicked the machine hard, and
questioned whether he had caused the damage described.
Even so, Garber stated that he would be "more than happy
to replace or repair or make amends" for any damage he
might have caused.5
Hanifin was unmoved by Garber's offer. Citing a
company policy against the deliberate destruction of
property, he declared that Respondent "just can't tolerate
this type of behavior" and that Garber was fired .6
Various employees credibly testified of kicking, hitting,
or otherwise jostling the pop machine, and/or of seeing
others do it. Employee Joyce Gay testified, in seeming
reference to the prevalence of this sort of thing, that
2 Garber testified that he did not kick the machine hard enough to cause
damage, elaborating that he wore crepe-soled shoes that day Another
employee, Linda Hudson, testified that she observed the incident from
perhaps 15 feet away, and did not notice any damage then ("I wasn't paying
that much attention I was eating my lunch and talking to friends ") or the
next day when she used the machine. Another employee, Richard
Bensinger , testified that he pointedly examined the machine the next day,
even feeling its sides, perceiving no damage beyond the usual scuff marks
According to Bensinger , two other employees-Betty Grimes and Lynn
Gunderson-participated with him in this examination Neither of them
testified
Seaton, on the other hand, testified that Garber caused a 6-inch dent; and
Sharon O'Brien, who witnessed the incident from 4 or 5 feet away, testified
that Garber gave the machine "one violent kick," possibly two, leaving an
impression 2 inches deep by 4 inches wide Robert Lindley, Respondent's
manager of safety, testified of examining the machine later in the same
afternoon, finding a 6 to 10-inch dent and a bent and loosened frame, and
employee Joyce Gay testified of seeing "quite a big dent" in the machine the
next day
Seaton, O'Brien, Lindley, and Gay are credited that the machine was
damaged, and Seaton and O'Brien are credited that the damage was caused
by Garber Not only was their testimonial demeanor on this point
convincing, but the contemporaneous reaction of Seaton, and the later
actions of Seaton, O'Brien, and Lindley, described in the body of this
Garber's discharge "was a big joke around the plant."
None of those so testifying reported attendant damage,
however, except for the inevitable scuffing. Jack Collins,
Hanifin's successor as director of employee relations,7
credibly testified that the employees' handbook contains a
prohibition against deliberate damage to property, that
company records reveal the discharge of three employees
since 1972 for violating that prohibition, and that he knows
of no instance in which such conduct has not resulted in
severance. Another employee, according to Collins, quit
after being told of his imminent discharge for violating the
rule. None of these actions arose from damage to a food or
drink vending machine .8
The Union was not quiescent during the several months
between the election and certification. It organized a 30-
employee committee, which developed proposals in antici-
pation of bargaining, kept the other employees informed of
new developments, signed up new members, and investi-
gated health and safety conditions in the plant, the idea
being to maintain in-plant political strength during the
hiatus. Garber, although coming to the payroll after the
election, readily embraced the cause. He, along with 25 to
30 other employees in all, distributed union leaflets near
the employee exit on occasion in the fall of 1974, spoke
favorably of the Union to his coworkers, and was vocal to
management regarding health and safety.
A particular concern of Garber's was dust inhalation.
During a meeting of the tennis department employees in
October 1974, he asked Supervisor Tom Stevenson about
the effect of grinder dust on the lungs and whether plant
ventilation was adequate. Stevenson answered that a
government report had established that there was no
danger. After the meeting, Richard Bensinger, a member of
the 30-employee union committee, told Garber that the
Union would be interested in a copy of the report. Garber
consequently asked Stevenson for one. Stevenson said he
did not have one, but that Hanifrn might.
A day or two later, Garber, Bensinger, and a third
employee, Lynn Gunderson, attempted to see Hanifin
about the report. Hann being out, they talked to Lindley,
who denied any knowledge of the report and suggested
decision, are consistent with an extraordinary impact and the infliction of
damage.
3 January 6 was a Monday.
4 Pepsi-Cola records disclose that a service call was made at the plant on
January 6, but do not reveal the nature of the problem or if repair was
performed
5 Garber is credited that he made this offer Lindley expressly did not
deny it, testifying that he had no recall on the point Hanifin did not testify
He left Respondent in April 1975
6 Garber testified that, upon being told he was fired, he protested that the
"real reason . [was] . because I've been an active and vocal union
supporter, and I've been a constant thorn in your side", and that Hanifin
denied any ulterior motive, suggesting that Garber see the NLRB if that
were his belief. Lindley testified that this did not occur There being no
probative potential one way or the other, this conflict shall remain
unresolved.
7 Hanifin, as mentioned in a previous footnote, left Respondent before
the hearing and did not testify.
8 The records state that one was fired in March 1972 for "throwing &
sticking oyster knives in tennis molding ceiling", another was fired in June
1973 because he "personally sabotaged rackets"; and another was fired in
July 1973 because he "struck his hand thru a plasterboard wall " The one
who quit before being fired reportedly had kicked "a hole in the wall in the
work room" in February 1976
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they see Hamfin. Some time later, possibly in early
December, after several unsuccessful attempts to reach
Hamfin, Bensinger , Gunderson, and yet another employee,
Christine Teske, spoke with Hanifm about the report.
Garber was not present. Hanifin said he knew nothing
about it, but would try to find a copy.
A few days later, Garber, Bensinger, and Gunderson
asked Hanifin if he had found a copy, Garber voicing
doubt of the report's existence. Hanifin telephoned an
office of the state health department in their presence, to
ask about the report, after which he told them that the
office was busy with an explosion and could not give an
answer. Hanifin said he would call again, and would let
them know the outcome.
Nothing further happened regarding the report before
Garber's discharge. The plant shortly closed down for 2
weeks, covering the Christmas-New Year's Day period, not
to reopen until the day of Garber's discharge. At about the
time of the just-described meeting with Hanifin, however,
Stevenson invited Garber into his office. Stevenson asked
why the employees in general, and Garber in particular,
were dissatisfied with Respondent, and they chatted in that
vein for "probably two hours." 9 Garber's testimony:
I answered that I felt that the Company had made
many changes in their operational mode as a direct
result of the Union election; that they felt threatened
by the Union election, and, as a result, curtailed many
of the services that they had previously supplied to the
employees. I stated that as one of my reasons and one
of the general reasons for dissatisfaction in the plant. I
stated also that health and safety was another major
issue that the Company refused to negotiate with the
already-elected union on. Those were the two primary
topics of conversation.
In the same conversation, Stevenson told of his own
favorable experience as a union member in Baltimore, and
said he could see Garber's "point of view in becoming
involved with the Union." Stevenson then commented that,
because of his position with Respondent, he had to
"maintain the company line in the matter" and could have
"no sympathy" for Garber's position.
2. The discharge of Robert Wright
Wright was employed by Respondent from April 1974
until discharged in May 1975, with time out in March 1975
for a discharge later reduced to a suspension. Only the May
discharge is in issue. Wright was a foam core operator in
the ski department when that discharge occurred.
Respondent had a rule at the time that "the circulation
or distribution of written material in working areas or on
working time is strictly forbidden." Respondent's presi-
dent, William Tabar, testified that Wright had acted in
violation of this rule, and that this was the "principal
reason" for the discharge. As indicated earlier, Respondent
was found, in the decision reported at 222 NLRB 161, to
have violated Section 8(a)(1) by its disparate enforcement
of the same rule in 1974.
On May 7, 1975, Respondent made a plantwide distribu-
tion of a document captioned "Remarks by Mr. Pierre
DeBroux to the Union Negotiating Committee, May 7,
1975." Pierre DeBroux is the group executive, so called, of
the corporate cluster of which Respondent is part. The
DeBroux paper reported a 1973-74 decrease in the world
ski market of 45 percent and that Respondent's Boulder
operation had suffered "staggering losses"; and stated that
"we might be forced to consider closing down the Boulder
plant if we cannot make any profit out of the markets we
serve from this plant," and that "our wage structure and
benefits is [sic I fully competitive in the area ...."
The next day, May 8, upon returning to his work station
at about 12:30 p.m., Wright found an article from the April
17, 1975, issue of "Business Week" magazine . The record
leaves to speculation how it got there. The article stated,
among other things, that "the ski business is booming
again," and quoted the president of one ski manufacturing
company as saying "the industry looks healthy now."
Wright brought the article to the attention of several
coworkers in his immediate area, commenting that it
seemed "in direct conflict with" the DeBroux paper. After
they had read it, Wright delivered the article to three
employees 75 to 100 feet distant from his work station. He
estimated that this removed him from his station for 30 to
60 seconds. The article eventually was returned to Wright;
and later, while walking past the mailroom en route to his
break, he showed it to a mailroom employee.
Wright's supervisor, Andrew Cobb, observed these
activities and somehow himself obtained a copy of the
article. Cobb gave the copy to Safety Manager Lindley,
together with an oral report of what he had seen , and the
two of them notified Lloyd Forrestal, manager of ski
production. Forrestal in turn telephoned President Tabar,
who was in a bargaining session away from the plant along
with Richard Klinzing, corporate director of industrial
relations. Tabar turned the telephone over to Klinzing, who
directed Forrestal to "gather the facts" and report back.
Accordingly, about 2:30 that same afternoon, Wright
was summoned to the employee relations office, where he
was confronted by Forrestal, Lindley, and Cobb. Forrestal,
after relating his understanding of what Wright had done,
asked Wright if he had made photocopies of the article.
Wright had not, and so stated. Then, at Forrestal's request,
Wright prepared a brief written account of his activities.
That over, Forrestal commented that Wright had violated
Respondent's no-distribution rule and that it was a serious
situation. Wright then was asked to wait outside.
During Wright's wait, Forrestal telephoned Klinzing,
and was instructed to have Wright report the next morning
for a hearing to "review all the facts of the case." Upon
Wright's return to the room, Lindley stated that "very
serious actions would result from" his conduct. Wright
asked if that meant he would be suspended or fired.
Lindley answered that that "would be up to" Tabar, and
that Wright was to come to work the next day at the
regular time for a hearing.
As detailed below, the employees went on strike the next
day, May 9, Wright among them. The hearing concerning
9 Garber is credited that the conversation took place, and that it took the
form here described. Stevenson's denial that there was such a conversation,
and his assertion that he had no recall of Garber, lacked conviction
HEAD DIVISION, AMF 1411
Wright consequently did not materialize that day. At about
noon, however, Wright and several other strikers went to
the personnel office for their paychecks, May 9 being a
payday. Lindley informed Wright, but none of the others,
that he would be paid only upon surrender of his employee
identification card. Wright refused, and was not paid.
Tabar testified that it is "normal practice" for Respondent
to reclaim an employee's ID card "at the time of
termination or suspension." Wright turned in his card May
12, and was both paid and notified that the hearing had
been rescheduled for May 14.
The hearing was held May 14, as rescheduled. Present for
management were Tabar, Forrestal, Lindley, and Cobb.
After Wright and Cobb had presented their versions of
Wright's activities with the article, Tabar declared that "it
was a very serious matter because [Wright] had violated
company policy." Wright responded that he could not
understand "what all the fuss was about, that the Company
passed out antiunion literature all the time." Tabar
countered that Wright had been suspended twice previous-
ly; that he had been warned coincident with the second
suspension that one more transgression would mean
discharge; that he reportedly had threatened employees
about crossing the picket line; that he had "stepped out of
line too often"; and that he was fired. Tabar testified that,
but for Wright's other misconduct, he would have been
suspended for passing around the article, not fired.
In March 1974, during the Union's organizational drive,
Richard Rothstein of its staff wrote Respondent concern-
ing its no-solicitation, no-distribution rule. The letter
stated:
Hamfin replied by telegram, reciting the rule and stating:
This rule is applied uniformly. Any instances of
violation which are brought to my attention are
immediately corrected.
Despite Hanifin's representation, Wright was correct in
his intimation at the May 14 hearing that Respondent
sometimes used work time and work areas for the
distribution of literature. More recent than the instances
noted by Administrative Law Judge Barker in the earlier
Board decision 10 was the DeBroux paper itself, copies of
which were distributed to a number of employees, while
still engaged in production tasks, near the end of the day
shift on May 7.11
Another more recent instance was January 30, 1975,
when Supervisor Stevenson directed Andrew McSherry, a
leadman, to distribute copies of a document authored by
Hanifin and entitled "An Open Letter to Richard Benzin-
er." 12 McSherry credibly testified that he distributed these
copies to approximately 24 employees at their work
stations, shortly before the and of the day shift, and that
some of the recipients were "finishing off their produc-
tion," while others had started to clean up their work areas.
McSherry also credibly testified that he distributed other
literature from time to time at Stevenson's behest, Steven-
son sometimes telling him to "give them out now"- i.e.,
during production time-and sometimes to wait until
lunch or cleanup time.13
3. The refusal to reinstate the strikers
In the last three weeks a number of your employees
have been encouraged and permitted by management
to campaign actively against the ACWA union organi-
zation drive during working hours , including walking
around the plant floor , circulating antiunion petitions,
intimidating other employees from associating them-
selves with the union , and requesting employees to
demand return of their union authorization cards.
We demand a similar right for ACWA committee
members to walk around the plant floor during working
time, actively soliciting support for the union drive.
If I do not hear from you by Wednesday, March 27,
1974, I will assume that my interpretation of your in-
plant soliciting policy is correct, and will advise union
committee members that they are free to solicit union
membership and support during working and non-
working time.
10 See 222 NLRB 161, 165
11 Paul Rovnak testified that Douglas Payne, a stipulated supervisor,
interrupted Rovnak's production work to give him a copy of the DeBroux
paper; and that Payne handed copies to others at the time, at their
machines . Payne was not called in refutation of this testimony Rovnak was
convincing on the point , particularly absent refuting testimony, and is
credited.
Wright, Theresa Allen, and Shirley Day testified that Supervisor Cobb
gave them copies of the DeBroux paper as they performed production tasks,
Day adding that Cobb told her to read hers and pass it on because he had
run out. Day was corroborated by Virginia Eckert. Cobb testified, on the
other hand, that all distribution was during the cleanup period after
production work had ended , and Eileen Komnga testified that she received
As previously stated, the strike began the morning of
May 9, 1975. It did not cause a shutdown of the plant.
About 45 production employees crossed the picket line
May 9, the number increasing to about 105, where it
stabilized, by the end of the strike's second week. On about
May 19, Respondent began to augment these numbers by
the hire of striker-replacements.
By letter dated September 12, 1975, the Union notified
Respondent that it was making "an unconditional request"
that 79 named strikers be reinstated "to their former jobs
with the Company or, if such job is not available, to a
substantially equivalent one." Enclosed with the letter were
separate, identical reinstatement requests signed by each of
the 79.
President Tabar replied by telegram dated September 19,
stating in part:
Please be advised that there are presently 40 openings
here at the Head Division. Therefore, we are offering
her copy from Cobb during the cleanup period Komnga further testified
that she did not observe when and how Cobb made distribution to others.
That Korrmga received her copy while cleaning up is not inconsistent with
Day's receiving Cobb 's last copy while still doing production work , for, as
Cobb testified , the start of cleanup time was up to the individual employee
within a several-minute range of tolerance . Wright, Allen, Day, and Eckert
were more believable in the aggregate than was Cobb, and are credited
12 In this document , Hamfin called upon Richard Bensinger to
substantiate a claim , apparently made in support of the Union's wage
demands, that there had been a 15 percent cost -of-living increase in the area
in the preceding year.
13 Although testifying, Stevenson did not deny this.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these positions to the most senior qualified persons as
listed in your letter . . . . Those not so reinstated will
be placed on a preferential hiring list. Each person
listed in your letter will be contacted in conformity with
the above ... .
The Umon responded by letter dated September 24,
stating in part:
The [Union] . . . hereby rejects your offers of reinstate-
ment or offer of placement on a preferential hiring list
inasmuch as the Company did not offer all of the
below-listed employees their former jobs or substantial-
ly equivalent jobs with the Company. It is the position
of the [Union] that all of said employees have the
lawful right to their old jobs or substantially equivalent
jobs.
The Union's letter closed by listing the 79 strikers "on
whose behalf this letter is written."
The strike consequently persisted, the picketing finally
ending November 14, 1975. The record does not reveal the
circumstances leading to cessation of the picketing.
The strike was preceded by 13 bargaining sessions, the
first being on February 25, 1975, and the last on May 8.
Leading the union contingent was Arthur Loevy, director
of organizing, assisted by an employee committee of eight
and by four regular members of the Union' s staff-
Richard Rothstein, who had primary responsibility for
organizing Respondent's employees; Bill Himes, an assis-
tant manager ; James Tribble, business agent for the
Denver area; and Ronald Willis, staff attorney. The
principal company spokesman was Richard Klinzing,
corporate director of industrial relations.
Throughout negotiations, as is more fully discussed
below, the Union assiduously avoided mention of Respon-
dent's alleged away-from-the-table misconduct-the dis-
charges , the discontinuance of benefits, etc. As Loevy
testified:
My goal was to try to get a contract with the Company.
I felt that if all the unfair labor practices were
discussed, it would make it extremely difficult to get a
contract.
The trend of negotiations is reflected in the Union 's several
bargaining bulletins . Those bulletins, prepared by Roth-
stein with help from the committee of eight, were to be "as
factual as possible, without being dull." 14 The first bulletin,
distributed February 26, stated in part:
By the end of April the Committee believes we should
have a contract or be very close. Otherwise, at that time
we will be ready to take actions which our membership
deems appropriate.
Richard Bensinger , a member of the committee of eight,
testified that the second sentence of this passage envisioned
a strike.
19 Loevy's instructions
15 Employee Joyce Gay, called by Respondent , testified that she did not
hear any mention at this meeting of discharges or the withdrawal of benefits
The Union's second bulletin, dated March 21, mentioned
tentative agreement "on several minor issues," adding that,
"in important areas , the company has demonstrated an
uncooperative attitude." The bulletin concluded:
As the Company was told at the end of our negotiations
yesterday, there is some doubt in our minds as to
whether this company is willing to bargain in good
faith. At this time, the spirit of negotiations is not
encouraging.
The third bulletin, dealing with the bargaining sessions of
April 8 and 9, complained of Respondent's "totally
ridiculous" management rights proposal; and that, while
partial agreement had been reached on a grievance
procedure, "the length of time it took to reach this limited
agreement is not, in our view, consistent with an expecta-
tion of reaching agreement on other issues in the near
future." The bulletin elsewhere stated that Loevy "told the
Company quite clearly that they were not being consistent
with Federal Law in negotiating in good faith," and that
"the Company will not agree to anything or propose
anything without making each issue an excuse for endless
delays." The bulletin added that the Union was going to
file "a formal notice of `Intent to Strike'," and that "a mass
meeting for all workers has been set for Tuesday, April 15,
and the strike will be on the agenda."
In the late afternoon of April 15, and in the early hours
of April 16, at the end of the day and evening shifts, the
employees of the two shifts met for a strike-authorization
vote. The day shift meeting was attended by about 75
employees; the evening shift meeting, by about 25. The
aggregate tally was about 98 to 4 to give the Union strike
authority. As a prelude to the voting, there were speeches,
arguments , questions from the floor, etc. Liquor was on
hand, and the meetings-particularly that of the day
shift-were boisterous and disorderly affairs.
Shirley Apodaca, chairperson of the committee of eight,
opened the day shift meeting. After announcing its
purpose, she stated that negotiations "were going very
badly" and that Respondent's attitude toward them "was a
reflection of their past actions" of discharging union
supporters and taking away benefits.15 Apodaca " summed
it up" by saying that she did not "feel negotiations were
going to get ever any better"; that "we had argued and
hashed it out as much as we could"; and that a strike
authorization vote "should be called."
Apodaca was followed by James Tribble of the Union's
regular staff, who summarized the progress of negotiations,
placing special stress on Respondent's management rights
proposal. Tribble's presentation inspired comments from
the floor, some of which indicated a relish for violence as a
strike adjunct. Rothstein interjected that the Union was
opposed to violence, after which Richard Bensinger,
another of the committee of eight, was asked to speak.
Bensinger said that he was "discouraged with the way
these negotiations were going," especially Respondent's
position on job bidding. Bensinger concluded that, while he
"hoped" that negotiations "would pick up," he recom-
Apodaca, Rothstein, and Richard Bensinger testified to the contrary. Gay's
testimony in this regard was flawed by poor recall and much coaching, so is
given no credence.
HEAD DIVISION, AMF
mended a favorable strike authorization vote. The remain-
ing members of the committee of eight then voiced brief
concurrences in the recommendations of Apodaca and
Bensinger.
Sometime before the vote, a question came from the floor
about the "rumor" that, if there were a strike, Respondent
would fire the strikers and hire replacements. Rothstein
replied that a company cannot "legally fire" employees for
striking, continuing:
[I ]f we took a strike authorization vote and if the strike
authorization vote passed, people should very clearly
understand that we were taking a strike vote to strike
about a whole course of company conduct, and not
over simply particular contract clauses which we hadn't
even received yet; and that that conduct included
illegal action, such as the firing of Barb Vachon, and
Rick Mahoney, and Chip Garber, as well as others, and
the illegal withdrawal of benefits. And that in such a
situation, it was our position that the strike would be a
protected strike, an unfair labor practice, and in such a
strike the Company could not hire permanent replace-
ments for the strikers.[ 16]
The seething anticompany mood of the meeting explod-
ed into perfervid rancor when employee Bruce Gay,
arguing against a strike, stated that Respondent was "the
fairest company" he had ever worked for. In Apodaca's
words, "complete bedlam arose . . . there was almost a riot
atmosphere." Among the milder of the deluge of comments
from the floor were these:
(a) "If you think this company is so fair, you wouldn't
think so if you got fired for kicking a Coke machine."
(b) "If you think this company is so fair, why did they
take the ski loaner program away from us after the
election?"
(c) "Bruce, if you think the Company is so fair, why in
the hell did they take our WATS line away from us?"
Gay and other nonmembers of the Union finally were
asked to leave, and a show-of-hands vote was conducted.
The evening shift meeting followed the pattern just
described. The record, although vague concerning what
was said, does reveal that Rothstein repeated his remarks
of the first meeting "about whether the Company could
hire permanent replacements for the strikers"; and that
Faye Fullen, one of the committee of eight, deplored the
plight of Barbara Vachon. Apodaca credibly recalled
Fullen's proclaiming that Respondent had "gotten away
with" firing Barbara Vachon, that "Barbara has gotten
screwed on this whole deal," and that "it's high time we got
something better for her." 17
The Union's next bargaining bulletin, distributed April
25, described the negotiations of April 22, 23, and 24. It
stated that Respondent's "overall position" during the
April 22 session "was totally without regard for employees'
rights" as concerns hours of work, and that the Union had
expressed "doubts that the company intended to bargain in
good faith and cited several examples of AMF plants that
have had to strike in the past year." The bulletin continued
16 This is Rothstein's testimony, which was corroborated in its essentials
by Apodaca and Bensinger
IT Employee Chris Strong, called by Respondent, testified that he could
1413
that "a fair amount of progress was made on non-economic
problems" in the April 23 and 24 sessions, but that, despite
this "change in the pace of negotiations," Apodaca had
"made clear to AMF negotiators . . . that we were
prepared to call a strike on Monday."
Klinzing thereupon assured the Union, according to the
bulletin, that Respondent's "new `spirit of compromise'
would continue," that Respondent hoped for the resolution
of all noneconomic issues during the succeeding week, and
that Respondent "intends to present us with an economic
proposal on the Tuesday following next week's negotia-
tions." The bulletin concluded:
After the company negotiators left, the eight union
committee members discussed at length whether to call
a strike now or see if the company carries out its
intentions. The decision weighed heavily on the
committee; weighing all the factors carefully we
decided to negotiate for as long as serious progress is
made.
The Union's last prestrike bulletin was distributed May
2. It reported resolution of the issues of health and safety,
shop stewards, probationary employees, dues checkoff,
management rights, leaves of absence, and holidays; that
union security, subcontracting, and the "crucially impor-
tant issue" of job bidding remained outstanding; and that
the unveiling of Respondent's economic proposals had
been postponed from the next Tuesday, May 6, to the next
Wednesday. The bulletin added:
We are pleased that we will be able to make a final
strike decision next week based primarily on the
relatively clearcut issues of job-bidding and economics.
At the May 7 bargaining session , as a lead-in to
Respondent's economic offer, Pierre DeBroux presented
his paper, described above in connection with the Wright
discharge. The feature of Respondent's economic offer was
a 20-cent hourly wage increase, to be effective September
15, 1975. The Union countered by demanding a 60-cent
wage increase, among other things. Rothstein testified that,
had Respondent accepted this counterproposal, there
would have been no strike regardless of the status of
Respondent's alleged unfair labor practices.
The evening of May 7, Loevy invited Klinzing to his
hotel room for a "confidential" discussion. Voicing a desire
to "pull this out in the eleventh hour," Loevy stated that it
was "all a matter of money"; that, if there were an
adequate wage offer, "the other matters would fall into
place." Loevy noted that, the week before, a 10-percent
wage increase had been agreed upon at Respondent's plant
in Little Rock, Arkansas, and suggested the same treatment
for the Boulder employees. Klinzing, adverting to the
DeBroux paper, said he could not see "much more
movement beyond what we had done," then asked of
Loevy's feelings about job bidding. Loevy answered that
"perhaps we could get over the hump by shuffling the
language around, if not the substance." The meeting closed
not recall any mention of discharges at this meeting . Strong later admitted
that he "wasn't paying attention." That admission, coupled with his
unimpressive demeanor generally, rendered his testimony valueless
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Klinzing saying he would confer with his "principals,"
then get back to Loevy.
Klinzing informed Loevy later that evening that Respon-
dent "could not really go much beyond where we were
already." Loevy responded that this was unfortunate, for it
meant there would be a "long, violent, successful" strike.
The morning of May 8, before that day's bargaining
session , Apodaca stated to Loevy:
Arthur, I'm going back to work at the plant. I've had
enough-I'm fed up. It's ridiculous sitting here any
longer. We're not getting anywhere. We're not going to
get anywhere. . . . A strike is inevitable. I'm going to
the plant, and I'm going to make people aware of
this....
Loevy replied that he agreed with her, and that the parent
union was ready to back a strike "unless the company
made a significant change in its proposals." Apodaca
returned to the plant without attending the May 8 session,
as did Bensinger.
In the May 8 session, despite Klinzing's rigidity of the
night before, Respondent altered its wage position some-
what, offering a 20-cent hourly raise effective upon
ratification, or a 30-cent raise effective September 15.
Klinzing explained that he thought 30 cents "was the magic
figure for settlement," it being only slightly less than the 10
percent Loevy desired. This was unacceptable to Loevy.
He proclaimed his readiness to authorize a strike, and
preparations were begun for employee meetings to broad-
cast that decision.
The day and evening shift employees were presented
with leaflets as they left their shifts the afternoon of May 8
and the early morning of May 9. The leaflets announced
that there were to be union meetings "immediately after
work . . . to discuss the Company's economic `offer' and
an imminent strike." As the leaflets were passed to the day
shift employees, so was word of Robert Wright's trouble of
that same afternoon over the "Business Week" article. The
rumor was that he had been or was about to be fired.
The day shift meeting May 8 was attended by about 50
employees. The meeting was, to quote Rothstein, "very
emotionally charged" Apodaca announced that they were
there to call a strike for the following morning. She
elaborated that Respondent had made unacceptable wage
and job-bidding offers, that its unfair labor practices
remained unremedied, and that she was "fed up" with its
attitude and "with negotiations that couldn't go any
further." For all those reasons , she asserted, they should
strike immediately. Bensinger, citing Respondent's wage
and job-bidding offers, contributed that he was "very
disappointed that we couldn't come to an agreement with
the Company," but that he thought "we could take the
Company in a strike if we stuck together." Bill Himes of
the Union's regular staff injected that they would be
striking "for the right to have a union organization at
11 The earlier tentative settlement differed from this only in that Vachon
was offered employment-with a company other than Respondent, with
whom Hanifin had a private connection-rather than money. The Union's
attorney, Willis, and a representative of the committee of eight had stated on
the record , before Judge Barker on March 12 , their agreement to that
settlement The impetus for their agreeing to so incomplete an arrangement
Head," or words to that effect. Loevy, declaring that the
strike would be supported "100 percent" by the parent
union, explained strike benefits.
Also during the meeting, a clamor arose over the Wright
situation. Wright stood up and told his version, stating that
he had been fired. Apodaca recalled that "everybody
started yaying and yelling." Some raised the cry that they
should strike to get Wright's job back.
Finally, Apodaca asked if anyone was opposed to
striking. One or two hands were raised, and the cutting of
picket sign stencils began then and there.
The record is virtually silent concerning the evening shift
meeting early on May 9.
Picketing began the morning of May 9. The first picket
sign bore this legend : "On Strike Local 1156 ACWA
Against AMF-Head." This sign had been prepared from a
stencil, and was more or less official. A plethora of other
signs presently appeared, improvised by individual strikers.
Among them: (a) "On Strike for a Fair Contract"; (b)
"Don't Scab"; (c) "United We Stand"; (d) "Right On with
Wright"; and (e) "Unfair Tabar Practices." Several weeks
later, another stencil-prepared and more or less official sign
emerged: "On Strike Against AMF-Head Unfair Labor
Practices."
For 2 weeks or so after the onset of the strike, with the
hiring of striker-replacements, the picketers began distribu-
tion of a leaflet enumerating the sundry issues "which
prompted us to strike." Listed, among others, were the ski
loaner, WATS line, and job-bidding matters, and the
discharges of Mahoney, Vachon, Garber, and Wright.
On May 26, the first tentative settlement of the case
before Administrative Law Judge Barker having fallen
through, Respondent presented a revised settlement pro-
posal. Among the several issues in that case, it will be
recalled, were the discharges of Mahoney and Vachon and
the ski loaner, WATS line, and job-bidding matters. This
new proposal consisted of paying Vachon $2,000. No
provision was made for Vachon's reinstatement, for
backpay or reinstatement for Mahoney, or for redress of
the alleged independent violations of Section 8(a)(1).18
Upon receiving this proposal, Rothstein gathered some
50 to 60 strikers around him, at the strike trailer near the
plant, to consider it. Employee sentiment was overwhelm-
ingly against acceptance and to get on with the hearing.
Bensinger shouted through a bullhorn that they would be
"giving up one of the main reasons for the strike" should
they accept it. Apodaca exclaimed that she was "ready to
stay on strike forever if necessary" to remedy the Mahoney
situation. Stephanie Sanchez added: "Christ, this is
ridiculous. These were part of the issues that motivated us
to go on strike to begin with."
Rothstein at length urged a resolution rejecting the
revised proposal and vowing the strike's continuation until
there was "an overall settlement which included the
reinstatement of Vachon, Mahoney, and other employees
who had been unfairly discharged." Adoption was unani-
was Loevy's anxiety that "the litigation and the adversary relationship"
would preclude rapport at the bargaining table. Before the settlement's
formal consummation, the Union reversed itself and opposed it, Hanifin
since having left Respondent and there being doubt of his continued ability
to deliver the job for Vachon.
HEAD DIVISION, AMF
mous . Rothstein admittedly never advised Respondent of
this resolution ; and Apodaca testified that , even had the
matters before Judge Barker then been settled, the strike
would have continued in aid of the Union 's posture in
contract negotiations.
On or about August 1 , Klinzing and Arthur Goldberg,
general counsel of the parent union , met in search of an
overall settlement of the matters in dispute between
Respondent and the Union . They forged a package
containing a contract corresponding to Respondent's May
8 offer , but without the 30-cent wage alternative ; a striker-
reinstatement formula ; and a provision that all "unlitigat-
ed" unfair labor practice matters be withdrawn in favor of
arbitration. This latter was at Goldberg's suggestion, to
"wipe the slate clean ," but was not intended to affect the
matters awaiting Judge Barker's decision.
The next day, Goldberg advised Klinzing that the parent
union , on orders from its president , would recommend
neither acceptance nor rejection of the package . Goldberg
said that it would be submitted to Respondent 's employee-
members dust the same-"you could never tell what might
happen."
Loevy presently sent a written summation of the
Klinzing-Goldberg package to Rothstein , who in turn met
with the committee of eight on August 5. Rothstein
conveyed to the committee his understanding of the
package , adding that the Union was taking "no position"
on acceptance or rejection but would support any decision
the employees made . His description of the package failed
to distinguish between litigated and unlitigated unfair labor
practices, leaving the impression that even the matters
before Administrative Law Judge Barker were to be
withdrawn . Bensinger opposed acceptance , arguing that
abandonment of the unfair labor practices "would be
giving up . . . one of the main reasons" for striking.
Opposition was raised as well to the striker-reinstatement
formula , and to the wage and job-bidding aspects of the
proposed contract . The committee voted 7 to 1 against
acceptance.
On August 6, Rothstein and the committee presented the
package to the employee-members as a whole. After
Bensinger and the other committee members had expressed
themselves as they had the day before , the employees
"unanimously rejected" the package.
Also during the August 5 and 6 meetings dust described,
Rothstein recommended that the strikers begin to prepare
requests for reinstatement , the idea being that their
backpay entitlements as unfair labor practice strikers
would begin to vest upon submission . This was followed by
a meeting on August 12 at which all but 11 of the
individual reinstatement requests were filled out. As earlier
mentioned , the requests were submitted to Respondent by
letter of September 12.
Throughout the prestrike negotiations, and before as
well, there was considerable philosophical tension between
the Union 's regular staff people , Loevy in particular, and
the committee of eight . The specific point of conflict was
the employees ' preoccupation with striking and with past
grievances-the discharges , the elimination of programs,
etc.-as against Loevy' s resolve that the negotiating
climate not be jeopardized by a premature strike or the
1415
intrusion of noncontract issues . Extracting from Roth-
stein's testimony:
[T]hroughout the period of negotiations , Mr. Loevy
and I had had many conversations concerning what he,
and I as well, regarded as an unrealistic perspective on
the part of the members of Local 1156 , in which they
kept on bringing up to us benefits which had been
taken away and discharges , and rather than looking at
a future relationship which could be established .. .
through a contract.
And, as Loevy testified , the employees "told me regularly
... right from the beginning . . . that they wanted to
strike" over the past grievances , and he counseled them
time and again to "give the collective bargaining process a
chance."
An early manifestation of the problem surfaced in
August 1974, shortly after the election. The employees
reported to Rothstein that there had been "a crackdown in
discipline ," that use of the WATS line had been discontin-
ued, and that a lead job had been filled without posting.
Thinking these actions to have been triggered by the
election, the employees asked Rothstein about striking.
Rothstein aired the employees ' thoughts to Loevy, who
told him "absolutely not; that was not the way to resolve
problems."
The problem emerged anew on the heels of Garber's
discharge in January 1975. Bensinger informed Rothstein
that the employees in Garber's area were "extremely upset
and angered" and wanted to strike . Rothstein again
conferred with Loevy, who described his response as
follows:
I told Mr. Rothstein that under no circumstances was
he to authorize, or to encourage , or-to the degree of
his influence-to allow the people to walk out on strike.
At that time I reminded him that we were preparing for
collective-bargaining negotiations , and if there were
any problems they should be handled through the
collective-bargaining process. And there was no way
that I would authorize a walkout ... .
The next day, incidental to telling Loevy that the
walkout peril had subsided , Rothstein reported a consider-
able sentiment to file an unfair labor practice charge on
behalf of Garber . This , as Rothstein remembered, was
Loevy's response:
[H ]e responded to me very sternly , I got kind of a
lecture from him about how we weren 't going to file
any charges at this point . Mr. Loevy said to me that I
had to impress upon the people that when you enter
into a contractual relationship with a company , that it
is a spirit of give and take, you attempt to discuss things
across the table , and I had to try to put people in the
plant in a frame of mind where they would begin to
expect to resolve problems . . . in this manner rather
than by either walking out at this early date or by filing
charges.
The charge concerning Garber accordingly was not filed
until May 14-after the strike had begun.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then, following a bargaining session in early April,
Apodaca asked that Loevy excuse himself so the committee
of eight might meet alone. She explained that she wanted to
discuss with the committee, away from his intimidating
presence, his failure to bring the discharges and the
elimination of past practices to the bargaining table. Loevy
replied that a good contract would provide the best "long
run" protection for the employees, adding:
Shirley, I've told you before, I've explained to you
before, all of these issues will be brought up . . . after
we have a contract with the Company. At that time
then we can work these in with some sort of a trade-off.
This appeased Apodaca and the committee only briefly.
The conflict revived in late April when Apodaca told
Loevy that she was "fed up"; that Respondent "was
stalling"; and that she did not "give a damn," she wanted
to "go back in the plant and call a strike." Loevy dissuaded
her, saying the parent union would not back such a strike
and that, without its aid, the strike would "be beat within a
week." Loevy added:
The Company hasn't given their economic proposals.
Hold off-maybe something good will come across the
board. If you don't hold off, you will have never known
what they offered you.
Nor did that put the problem to rest. On May 3, the
employee committee disagreed with Loevy's recommenda-
tion that Respondent's job-bidding proposal be accepted.
The committee reasoned that the proposal failed to restore
the practice previously discontinued, which discontinuance
was later found unlawful, causing Loevy to remonstrate
that "we should look at the future and not at the past."
And on May 7, with negotiations near the make-or-break
juncture, Apodaca told Rothstein that if the discharges
were not dealt with, especially that of Mahoney, some of
those in Apodaca's area of the plant "were going to pull
their union cards." Rothstein, although counseling Apoda-
ca to "be patient," that those issues would be brought up
"when we had gotten everything else out of the way,"
agreed to mention her concern to Loevy. He did so, giving
Loevy a scrap of paper bearing the names of Mahoney,
Vachon, and Garber. Loevy, however, persisted in his
refusal to broach the discharges to Respondent, explaining
to the Union's Himes and Willis later that day:
[T]he people's best interests , in my judgment, would be
most advanced by entering into a collective-bargaining
agreement; and . . . I don't want the unfair labor
practices . . . to interfere with the prospect of entering
into a collective-bargaining agreement . . . . I was not
going to push the issue of unfair labor practices .. .
19 The present situation is distinguishable from that in N LR B v United
Steelworkers of America, CIO [Nutone, Inc], 357 U S. 357 (1958), relied
upon by Respondent. In that case, the Court dealt with the "very narrow
and almost abstract question" of whether, "when the employer himself
engages in anti-union solicitation that if engaged in by employees would
constitute a violation of the rule . . his enforcement of an otherwise valid
no-solicitation rule against the employees is itself an unfair labor practice "
357 U S at 362 . Answering the question in the negative , the Court remarked
on the absence of evidence "that the employees , or the union on their behalf,
because I felt that it would preclude us from entering
into a contract.
C. Analysis
1. The discharge of Mark Garber
At first blush, the kicking of a vending machine seems a
trifling offense, hardly warranting the extreme sanction of
discharge. Who among us has not done the same? Couple
that with Garber's dogged concern about the inhalation of
grinder dust (which was both a union and a protected,
concerted activity), Respondent's apparent recognition of
him as a person to be reckoned with in the union context
(as witness Stevenson's calling him in to talk about
employee dissatisfaction), and Respondent's demonstrated
willingness to discharge others for union activity (Maho-
ney, Vachon), and Garber's discharge would appear,
ineluctably, to have been unlawful.
For all its appeal, this analysis is not adopted. Garber's
was not an ordinary attack on a balky machine. Its ferocity
not only inflicted significant damage, but so dismayed
Seaton that he intervened to protect the machine. The
attack so dismayed O'Brien, as well, that she agreed with
Seaton that it should not go unreported. Both Seaton and
O'Brien were strangers to Garber at the time, minimizing
any likelihood that their motives were other than forth-
right. Moreover, while the discharge was effected the same
day, it occurred only after Lindley's careful investigation of
the incident, so did not bespeak an unseemly eagerness to
"get" Garber.
In short, while Garber's discharge is not above suspicion,
the totality of circumstances indicate that it was provoked
purely and simply by his insensate and destructive attack
on the pop machine. The allegations pertaining to Garber
are without merit, and will be dismissed.
2. The discharge of Robert Wright
The "principal reason" for Wright's discharge admittedly
was his circulation of the "Business Week" article on
working time in working areas. Yet, as previously detailed,
Respondent commonly made antiunion distributions in the
same circumstances. It thus is evident that Wright's
discharge was another in a series of instances, found
unlawful in 222 NLRB 161, in which Respondent applied
its no-solicitation, no-distribution rule unevenly. Wright's
discharge therefore violated Section 8(a)(3) and (1).19
Remaining is when the discharge took place. It is
concluded that it became a jural reality May 9. It was then
that Respondent demanded return of Wright's ID card,
which Tabar testified to be a "normal practice . . . at the
time of termination or suspension." True, there was a
hearing May 14, at which time Wright received official
requested the employer , himself engaging in anti-union solicitation, to make
an exception to the rule for pro-union solicitation ." 357 U S. at 363
Continuing, the Court stated: "Certainly the employer is not obliged
voluntarily and without any request to offer the use of his facilities and the
time of his employees for prounion solicitation." Ibid In the present case,
the Union's Rothstein sent a letter to Respondent in March 1974
commenting upon its disregard of its rule and demanding "a similar right"
on behalf of the Union
HEAD DIVISION, AMF
word of discharge, but that appears to have been little more
than hollow ritual, the decision having been made and at
least partially implemented on May 9.
3. The refusal to reinstate the strikers
Respondent concedes the validity of the reinstatement
requests submitted in September 1975 by and on behalf of
the 79 strikers. The General Counsel and the Union
concede that Respondent' s ensuing refusal to restore all 79
to their jobs en masse was unlawful only if they were unfair
labor practice, as opposed to economic, strikers.
The controlling principle is stated in Colonial Haven
Nursing Home, Inc., 218 NLRB 1007, 1009 (1975):
The principle is well established that employees may
be entitled to the special reinstatement rights provided
unfair labor practice strikers even though the strike
activity may have been motivated by concerns which
went beyond their employer's commission of unfair
labor practices, so long as it can be determined from
the record as a whole that the unfair labor practices
contributed in part to the employees' decision to strike.
We find it unnecessary to determine which concerns
predominated in the employees' minds in determining
to go out on strike ... .
A major factor in the strike decision was the displeasure
of Loevy and the employees with Respondent's May 8
bargaining proposal. Only then, when Loevy despaired of
wringing something better from Respondent, did he pledge
the parent union's support to a strike, after which the strike
became a quick reality. There is neither allegation nor
argument that Respondent's bargaining conduct in any
way violated the Act. The strikers' status turns, then, on
whether the displeasure with Respondent's bargaining
stance was the sole ground for the strike decision; and, if
not, whether Respondent's away-from-the-table miscon-
duct was an added factor.
As already stated, Respondent was found, in the decision
reported at 222 NLRB 161, to have committed a variety of
unfair labor practices in 1974, among them its discharges of
Mahoney and Vachon and its elimination of the ski loaner
program, WATS line use, and the existing job-bidding
procedure. And, as concluded earlier, the May 1975
discharge of Wright also violated the Act.
The record reeks of a profound and unceasing employee
bitterness over the conduct to be found unlawful in 222
NLRB 161, and later over the Wright discharge. As early
as August 1974, some of the employees considered striking
in protest, only to be convinced otherwise by Rothstein. In
early April 1975, Apodaca complained to Loevy of his
failure to make the discharges and the elimination of past
practices a subject of negotiations.
The theme of Respondent's past misconduct was heavy
throughout the strike-authorization meeting of April 15, as
well, reaching thunderous proportions in response to Bruce
Gay; and Rothstein carefully explained at both that and
the evening shift meeting of April 16 that "we were taking a
strike vote . . . about a whole course of company conduct
1417
; and that that conduct included . . . the firing of
Barb Vachon , and Rick Mahoney, ... and the illegal
withdrawal of benefits."
On May 3, in the same vein , the committee of eight
overrode Loevy' s recommendation concerning Respon-
dent's job-bidding proposal because it failed to restore the
practice later found to have been unlawfully discontinued;
and, on May 7 , Apodaca threatened Rothstein that some of
the employees "were going to pull their union cards " unless
the discharges , especially Mahoney's, were brought up in
negotiations . Similarly , during the May 8 day shift meeting
to announce the strike , Apodaca cited the unremedied
unfair labor practices as a reason for striking ; the Union's
Hines declared that they would be striking "for the right to
have a union organization at Head," implying a strike
purpose transcending the negotiations ; and Wright 's recital
of his day's adventures evoked a rallying cry that they
should strike to restore his job.
The same feverish concern for redress of past wrongs
continued during the strike . The leaflet given to striker-
replacements by picketers recited Respondent's unfair
labor practices in an itemization of things "which prompt-
ed us to strike"; and, on May 26 , during consideration of
Respondent 's proposal in settlement of the issues before
Administrative Law Judge Barker , the employees voted to
remain on strike until there was "an overall settlement
which included the reinstatement of Vachon , Mahoney,
and other employees who had been unfairly discharged."
Finally, on August 5 and 6 , the employees rejected the
Klinzing-Goldberg package, a significant reason being, in
Bensinger's words , that abandonment of the unfair labor
practices "would be giving up . . . one of the main
reasons" for the strike.
The foregoing summary removes any doubt that "at least
part of the motivation behind the strike was a reaction to
the Employer's persistent interference with the employees'
union activities ." C & E Stores, Inc., C & E Supervalue
Division, 221 NLRB 1321 (1976). The strike therefore was
an unfair labor practice strike, and Respondent violated
Section 8(a)(3) and (1) by refusing to reinstate all of the
strikers upon the request made September 12, 1975. See,
generally, C & E Stores, Inc., supra; Trading Port, Inc., 219
NLRB 298 (1975); Colonial Haven Nursing Home, supra;
Larand Leisurelies, Inc., 213 NLRB 197 (1974); Federal
Pacific Electric Company, 203 NLRB 571 (1973); Juniata
Packing Company, 182 NLRB 934 (1970); Kellwood
Company Ottenheimer Division, 178 NLRB 20 (1969);
Stafford Trucking, Inc., 166 NLRB 894 (1967); Wooster
Division of Borg- Warner Corporation, 121 NLRB 1492
(1958).
This conclusion does not ignore the statement in the
Union's May 2 bulletin that a strike decision would be
made the next week "based primarily on the relatively
clear-cut issues of job-bidding and economics," and
Loevy's emphasis until the end upon getting a contract to
the exclusion of the unfair labor practice issues. As the
Board explained in Larand Leisurelies, Inc., supra, a strike's
being "primarily" economic does not preclude its having
unfair labor practice implications . And, as is observed in
Kellwood Company, supra at 40, that a union "was
concentrating upon trying to get a collective agreement
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... and was not promoting a strike" does not destroy all
inference that the employer's unfair labor practices "were
also an important contributory cause of' the strike.
Nor does this conclusion ignore Rothstein's admission
that, had Respondent accepted the Union's May 7
counterproposal, there would have been no strike regard-
less of the status of the unfair labor practice issues; and
Apodaca's admission that, even had Respondent's May 26
proposal in settlement of the Barker case been accepted,
the strike would have gone on in support of the Union's
bargaining position. It is inherent in most instances of
multiple causation that not every last causative factor,
alone, would have provoked the aggregate result. It is
equally inherent that withdrawal of one of the causative
forces, after the orchestrated momentum of the combined
elements has been achieved, does not necessarily lessen
that momentum.
CONCLUSIONS OF LAW
1. By enforcing its no-solicitation, no-distribution rule
in a discriminatory manner, thereby discharging Robert
Wright on May 9, 1975, for distributing a magazine article
in support of the Union's bargaining position, as found
herein, Respondent engaged in an unfair labor practice
violative of Section 8(a)(3) and (1) of the Act.
2. By refusing to reinstate the unfair labor practice
strikers upon the unconditional requests sent on September
12, 1975, as found herein, Respondent engaged in an unfair
labor practice violative of Section 8(a)(3) and (1) of the
Act.
3. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
4. Respondent did not otherwise violate the Act as
alleged.
REMEDY
Respondent shall be ordered to cease and desist from the
conduct herein found unlawful.
Affirmatively, Respondent shall be ordered to offer the
unfair labor practice strikers immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges; 20 and to make
them whole for any losses of earnings and benefits suffered
by reason of the discrimination against them, by paying to
them and contributing on their behalf those amounts that
normally would have been paid and contributed from the
date of receipt of the requests for reinstatement to the date
20 Dismissing, if necessary, any employees hired as replacements
21 Wright was on strike when unlawfully discharged , and, so far as the
record shows, never thereafter requested reinstatement . The Board's usual
remedy in such cases limits "the period of backpay to run 5 days from the
date of . unconditional application for reinstatement to the date of the
Respondent 's offer of reinstatement " Roosevelt Roofing and Sheet Metal
Works, Inc, 204 NLRB 671 (1973). In Wright' s case , however, since the
discharge was based upon improper considerations independent of the
strike, it is assumable that any application for reinstatement would have
been a futility. It would be unwarranted , moreover, to suppose that Wright
would have remained on strike for any given length of time had he not been
discharged, especially in light of the number of early defections from the
strike Therefore, in keeping with the dual principles that the perfection of
legal rights does not require futile gestures and that uncertainties are to be
of Respondent' s reinstatement offer, less net earnings
during that period.
Respondent also shall be ordered to offer Robert Wright
immediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges; and to make whole for any loss of earnings and
benefits suffered by reason of the discrimination against
lion 2i
All backpay shall be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 22
Respondent, Head Division, AMF, Inc., Boulder, Colo-
rado, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Enforcing its no-solicitation, no-distribution rule in a
disparate manner, thereby discharging employees to
discourage their support of Midwest Regional Joint Board,
Amalgamated Clothing and Textile Workers Union, AFL-
CIO, or any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take this affirmative action:
(a) Offer to the unfair labor practice strikers and to
Robert Wright reinstatement to their former jobs and make
them whole for any losses of earnings and benefits as
prescribed above.
(b) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
for determination of the amounts owing under the terms of
this Order.
(c) Post at its plant in Boulder, Colorado, copies of the
attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director of
Region 27, after being signed by an authorized representa-
tive of Respondent, 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 customarily
are posted. Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by other
material.
resolved against the wrongdoer, it is appropriate that Wnght's backpay
accrue as of the date of discharge.
22 All outstanding motions inconsistent with this recommended Order
hereby are denied In the event no exceptions are filed as provided by Sec
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions , and Order , and all objections thereto shall
be deemed waived for all purposes.
23 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
HEAD DIVISION, AMF 1419
(d) Notify the Regional Director for Region 27, in IT is FURTHER ORDERED that the allegation of the
writing, within 20 days from the date of this Order, what complaint found without merit be dismissed.
steps Respondent has taken to comply herewith.