Artcraft Mantel and Fireplace Co.

National Labor Relations Board - Board Decisions

Feb 25, 1969

174 N.L.R.B. 737 (N.L.R.B. 1969)

JOSEPH H. BLISS
Joseph H. Bliss, d/b/a Artcraft Mantel and
Fireplace Co. and United Brotherhood of
Carpenters and Joiners of America , Carpenters
District Council of Western Pennsylvania,
AFL-CIO. Case 6-CA-4036
February 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On May 2, 1968, Trial Examiner Herman Tocker
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed with respect to these
allegations. Thereafter, Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision, together with supporting briefs.
Respondent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations 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
Recommended Order of the Trial Examiner and
hereby orders that Respondent, Joseph H. Bliss,
d/b/a Artcraft Mantel and Fireplace Co.,
Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner: This proceeding,
with all parties represented, came on to be heard before
me at a hearing in Pittsburgh, Pennsylvania, January 18
and 19 and February 5, 1968, upon a complaint issued
737
December 12, 1967, following a charge filed September 5,
1967, and amended December 12. It was alleged in the
complaint that Joseph H. Bliss, the employer, had
engaged in- (a) violations of Section 8(a)(1) of the Labor
Management Relations Act, 1947, as amended, involving
an alleged promise of benefits to an employee in order to
induce him to abandon a strike and an alleged threat that
he would not be reemployed if he did not abandon it; and
(b) violations of Section 8(a)(1) and (5) involving the
alleged failure and refusal of the employer to recognize
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO, as the duly designated and
authorized representative of his employees' for purposes of
collective bargaining, thereby causing to be prolonged a
strike commenced to procure such recognition, and thus
causing it to become an unfair labor practice strike.
The Respondent, Joseph H. Bliss, appeared by counsel.
In his answer, received by the General Counsel December
29, while reserving his contention that the Board had no
jurisdiction to entertain this proceeding, he denied all
allegations on the basis of which it might be concluded
that he had violated the law.
PRELIMINARY
Together with his answer Respondent filed a motion
contesting the Board's jurisdiction and, at the same time,
a motion to dismiss. The motions were referred to Trial
Examiner Charles W Schneider for preliminary
disposition. By order dated January 10, 1968, he denied
them. These motions were renewed at the hearing and
since. After careful consideration, I have concluded that
they should have been and properly were denied. For that
reason, to the extent that they are now renewed, they are
denied.
By petition dated April 12, 1967, amended May 8, the
Union requested the National Labor Relations Board to
hold an election for the certification of representatives on
behalf of Respondent's production and maintenance
employees. After a hearing held May 26, 1967, in which
Bliss participated and was represented by counsel, the
Regional Director of Region 6, National Labor Relations
Board, on August 25, 1967, issued his decision and
direction of election. In the decision he defined as the unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All full time and regular part-time production and
maintenance employees, including installers, helpers,
janitors and truckdrivers, at the Employer's Pittsburgh,
Pennsylvania, plant, excluding salesmen , automotive
mechanics, office clerical employees and guards,
professional employees and supervisors as defined in the
Act.
He held further that Respondent's activities ".. afford a
basis for the assertion of jurisdiction under the Board's
nonretail standards."
He decided as well whether certain disputed persons
should be included in or excluded from the unit. Excluded
were Lester Cauffiel, Carol Settlemaier, Mary Ann
Petrowski, Grace Bliss, Philomena Vichie (not to be
confused with Lawrence Vichie included as noted below),
Ann Muscarella, Clyde Creen, William Worshawski, and
finally Jerome DeWalt and William Kush. He included
Gerald Klodowski, Gus Kalaras, William Gardner, Frank
Sergi, Pardo Nairo, Joseph Walker, Jeffrey Lynn, and
finally (mentioned last and singled out particularly
174 NLRB No. 110
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of a suggestion during the hearing of the
complaint case that there might be a question as to his
supervisory capacity) Lawrence Vichie, whom he
characterized in his decision as being, " .. at most . . . a
`straw boss' or group leader."
An observation was made in the decision that, "A
strike called by Petitioner began on April 12, 1967, and
was still in progress at the time of the hearing."
Bliss, the employer, petitioned the National Labor
Relations Board for review of the Regional Director's
decision. He brought up as issues the Board's jurisdiction,
the finding defining the "appropriate unit," and the
determinations that the particular employees above
mentioned were to be included within the unit By
telegraph decision, issued September 14, 1967, the Board
denied the Petition for Review saying, ". . . [I]t raises no
substantial issues warranting review, except as to the
exclusion of automotive mechanics, De Walt and Kush, ...
[which] issue can best be resolved through the challenge
procedure, . " The Regional Director's decision was
amended accordingly to permit these two employees to
vote subject to challenge.
The decision as to the unit, as to employees to be
included or excluded, and the status of Lawrence Vichie is
binding upon and not subject to reopening by me. It
likewise determines the issue as to jurisdiction with respect
to which Respondent's motion has been denied, as noted
above.
Subject to preservation of the right to challenge
DeWalt and Kush, it was agreed that, as of April 12,
1967, the employees in the unit were Delbert Brain, Elmer
Caton, Guy Chickinelli, Paul Creen, Leon Cristofano,
James Elder, Dan Floss, Anello Giugliano, Bradford
Hart, Gus Kalaras, Gerald Klodowski, Jeffrey Lynn, Rod
McConaha, Pardo Nairo, John Pitchok, Frank Sergi,
Lawrence Vichie, Joseph Walker, James Ward, Glenn
Yauch, and Robert Zrimsek.
Upon the filing of the charges in the complaint case,
the Union requested permission to withdraw its petition
for certification of representatives and, the complaint in
this proceeding having been issued on December 19, 1967,
the Regional Director on that day entered an order
permitting such withdrawal.
THE ISSUES
The issues are (a) whether the Employer violated
Section 8(a)(1) of the Act by a promise of benefits to
induce an employee to abandon the strike and a threat of
loss of employment if he continued to strike, (b) whether,
on April 12, 1967, the Union had been designated by a
majority of the employees in the unit for purposes of
collective bargaining ; (c) whether the Employer, by
refusing to recognize the Union upon demand made at
that time, violated Section 8(a)(1) and (5) of the Act; (d)
whether the strike which already had been in progress at
the time of the refusal thereby became an unfair labor
practice strike, (e) whether, if it did become an unfair
labor practice strike, the remedial order to be entered
herein should require an offer of reemployment,
reinstatement, and backpay to all employees who have not
been reemployed and further require backpay to the
employees who participated in the strike and since have
been rehired; and finally (f) whether an order should be
entered herein requiring the Employer to recognize, and
engage in collective bargaining with, the Union.
In connection with the foregoing issues consideration
also will have to be given to whether, as alleged, following
the initial demand, there had been recognition which
subsequently was withdrawn and to the conduct of the
union representatives and employees during the strike.
In the resolution of all issues with respect to which
credibility of oral testimony became a factor, I have
weighed all the probabilities, considered the demeanor and
conduct of the witnesses, their candor or lack of it, their
objectivity, bias, or prejudice, their understanding of the
matters concerning which they testified, whether their
testimony has been contradicted or sufficiently impeached,
whether parts of testimony should be accepted when other
parts are rejected, consistency, plausibility and probability,
and the effect which leading questions might have had on
the answers elicited thereby.
Now, upon the entire record, after my observation of
the witnesses and having in mind the foregoing
considerations, the following are my
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times hereinafter mentioned Joseph H. Bliss, an
individual, has been doing business under the firm name
and style of Artcraft Mantel and Fireplace Co. He is
engaged in the manufacture and retail sale of fireplaces,
mantels, and related accessories in Pittsburgh,
Pennsylvania. During the calendar year 1966, in
connection with and for the operation of said business he
received directly from outside the Commonwealth of
Pennsylvania, for use in his business in Pittsburgh, goods
and materials valued in excess of $50,000. He is now, and
at all times hereinafter mentioned was, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO, is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. JURISDICTION
The National Labor Relations Board has jurisdiction of
the Respondent and of this proceeding.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Promise of Benefit to Induce an Employee to
Abandon the Strike and the Threat
Save for the alleged refusal to recognize and bargain
with the Union, the only incident involving an alleged
violation of Section 8(a)(1) of the Act alleged to have
occurred from the 12th day of April 1967, until and
including the day of the hearing herein, approximately
nine months, is to be found if at all in an alleged
telephone conversation between Bliss and an employee,
Anello Giugliano. There is some disagreement about his
testimony as it is set forth in the transcript As it appears
there, following his testimony to the effect that he received
a telephone call from Bliss while he was on strike in the
month of June 1967, it is.
A. Mr. Bliss said, "you want to come back to work I
pay you how much you want." I said, "no, if you
JOSEPH H. BLISS
recognize the Union I will be back."
Q. What did he say9
A. He said, "you know if I recognize the Union I
want you back."
Q. Did you say anything after that to Mr. Bliss?
A No, that is all.
Q. Was that the end of the conversation9
A. That is it. Oh, I said, "that is all right" after he
said, "I want you back."
Counsel for the General Counsel, in his motion for
corrections of the transcript, requests that it be corrected
so that the word "How" would be inserted in the answer
following the question, "What did he say?" so that it may
read, "He said, `How you know if I recognize the Union I
want you back?' " I have denied that application to
amend because it is not consistent with what I recalled
immediately after the witness had completed his testimony
and the case had been rested At that time I inquired of
counsel, "Am I right that there is no proof of paragraph
6(b) of the complaint and that it should be dismissed?"
Counsel promptly disputed this and contended that the
testimony had been substantially the same as he now
contends. If Giugliano had testified in the same words as
were contained in his pretrial affidavit, that is the way he
would have testified at the hearing. However, according to
my recollection, he did not, and I say this even though the
transcript is rife with errors as must be apparent from an
order which I have entered directing numerous other
corrections. Nevertheless, even if the testimony had been
in the form requested, I would give it no credit because I
am convinced that Bliss had been so conditioned by his
attorney, as he testified and as appears in documentary
evidence in the record, not to engage in any conversations
with employees lest such conversations be considered
violations of the law, that it is highly unlikely that he
would have offered this particular and lone employee, as
an inducement to abandon the strike, whatever amount of
compensation that employee might request and that he
would have said anything to this employee impliedly
threatening not to reemploy him if he did not abandon the
strike or if he did support the Union. Bliss religiously and
blindly followed the instructions given him by his
attorney.
While Bliss admitts having had a conversation with
Giugliano in or about June and thereby appears to have
violated his attorney's instruction not to talk to the
strikers, the conversation which he admits having had had
nothing to do with the strike.
Bliss' version of the conversation with Giugliano, and
how it came about, immediately following his testimony
that his attorney had instructed him to stay in the office,
not to talk to the strikers, not to question them, not even
to say, "Hello," to them, was. On an occasion when
Giugliano came in to get his pay, his May hospitalization
charges had been paid but the time for paying the June
charges was soon to arrive and Giugliano had no money
in escrow for that payment. He was informed that unless
he was back at work he would have to make the payment
to Respondent or his hospitalization would be dropped.
Having been so informed, he agreed to make a weekly
deposit so that, by June 20, when the June payment was
due, the money would be available to make it Apparently
he failed to make the deposits. This resulted in a
telephone call by Bliss to him to ask "him if he wanted to
keep up the hospitalization, . " Bliss testified that the
hospitalization "was the extent of the conversation" and
that he "did not ask him to come back. .
Bliss' testimony is supported in an important aspect by
testimony given by Mary Ann Petrowski, an absolutely
739
credible witness According to her, during the strike,
Giugliano came to the office and "inquired about keeping
up his hospitalization." An arrangement had been made
for him to send in a weekly check so that it might be
maintained.
I accept as credible Bliss' version of the conversation
that it was concerned only with the hospitalization and as
a denial of the claim that he had asked Giugliano "to
come back." It is notable that neither Bliss nor his
attorney adverted to any alleged or implied threat not to
rehire Giugliano if the Union were recognized. This was
consistent with my own recollection that there had been
no such testimony. On the other hand, even if Giugliano
had testified to the same words used in his pretrial
affidavit, I would accept as credible Bliss' testimony and
rule that no such threat had been made.
Paragraphs 6(a) and (b) should be dismissed.
B. The Refusal to Recognize and Bargain With the
Union
On the morning of April 12, following a meeting of
employees on the night before at which it had been
decided that if the Employer did not recognize the Union
as their bargaining agent they would go on strike,
Respondent's employees came to his establishment.
Instead of going to work as they usually did, they stood
outside, milled around, and gave every appearance that
they were on strike. According' to Bliss, as was his
practice after awakening about 7 o'clock in the morning,
he went to the window and, seeing all the men at the
corner of the building, he became very excited. "They
were standing in bunches, and at that time they had
supposedly been working. They were supposed to be
working." He dressed, went downstairs, and spoke to his
leadman, Vichie, asking him what was going on. When he
looked through the window at or about 8 or 8:15 o'clock
the men "were walking up and down in front of the
building with signs . They had signs; they were
walking up and down in front of the place. When the girls
came to work at 9 o'clock they had signs." He observed
that Maher, the Union Organizer,' apparently was one of
the leaders and was instructing the men as to the manner
in which they were "to walk up and down and pointing
out the different ones to keep going back and forth."
Sometime after that, possibly iwthe area of 10 or 10:30
o'clock, Maher came in, informed, him that the men were
on strike, and said that he wanted to talk to him about it.
Bliss testified that he answered, "you have got them out
there; they are yours. As far as I am concerned they are
fired." He told Maher that if there was anything to be
discussed the discussions were to be with his attorney,
"that the men were out picketing and as far as I was
concerned they were fired. And I walked away from him "
There is evidence that at a later time he changed his mind
about the discharges. Maher's version of the conversation
is that he informed Bliss that the Carpenter's Union
represented a majority of the employees, that he wanted
to know whether Bliss would recognize them, and that he
was willing to have the authorization cards viewed by an
impartial person. The answer, after an imprecation by
Bliss, was, "Those people don't work for me any longer.
You have them; you can keep them. If you want to talk
to anyone talk to my attorney."
The initial petition for an election was filed that
morning shortly after 11 a.m On the same day a letter
claiming majority representation, offering to submit
authorization cards to prove it, and requesting a meeting
to proceed with collective bargaining, was sent to
Respondent. Respondent at no time thereafter recognized
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union as the bargaining representative of its
employees, has consistently refused to do so, and has
refused to bargain with it.
It is alleged in the complaint that for a short period of
time beginning on or about June 7 and ending on or about
July 21 Respondent purported to recognize the Union and
purported to bargain with it but that on about September
15 it "did withdraw recognition from the Union, ." I
am satisfied from all the evidence that this did not
transpire and that, to the extent that Respondent's
attorney dealt with the Union during this period, he did so
because Respondent was distraught with the manner in
which the strike was being conducted and, for the purpose
of settlement (albeit it risked a violation of Section 8(a)(2)
of the Act) he entered into negotiations with the Union's
representatives to ascertain what, if any, benefits and
conditions might result from recognition. During the
course of this claimed recognition, the res gestae,
Respondent's attorney wrote the letter of June 12, 1967, a
portion of the correspondence received in support of the
charge. In this letter he stated,
If you will recollect, from almost the very beginning, I
have asked that you submit to my office a letter setting
forth the benefits of recognizing the Union plus what
you want from Artcraft Mantel Company, so that I can
have a preliminary meeting with Mr. Bliss and go over
everything with him without numerous preliminary
meetings with you and him and others which will only
terminate in obtaining the facts then which I request
now.
Trusting you will comply with my request so that we
may explore the advisability of recognizing the Union
and accept your terms , I remain . . . [Emphasis
supplied.]
When Bliss looked into the street immediately upon
awakening on the morning of April 12 and again after
going downstairs into the shop he had ample visual
evidence that his employees were on strike. Not long after
that he was confronted by a union representative who
endeavored to obtain recognition and start collective
bargaining . He rejected that offer giving as his reason not
that he doubted the Union's majority authorization but
that the men had gone on strike and had been discharged.
(The fact that, at a later time, Bliss seems to have
reconsidered and cancelled the discharges does not alter
the effect of what he did on April 12.)
At the time the demand was made the Union had
obtained from sixteen employees signed authorizations to
act as their exclusive bargaining agent "in regards to
wages, hours, and working conditions ..." The employees
in the unit at that time aggregated 21 and, if Respondent's
contention that two additional persons should be included
is allowed, the aggregate would have been twenty-three.
Even if the two card signers excluded by the Regional
Director' s decision are added to these twenty-three the
Union's majority continues.
Bliss' peremptory refusal to recognize the Union on the
first day of the strike was explained or changed later by a
claim that his business was not subject to the jurisdiction
of the National Labor Relations Board and a claimed
doubt that the Union actually did represent a majority of
his employees. However sincere Respondent's belief that
the Board did not have jurisdiction might have been, this
mistake of law is not a defense to a wrongful refusal to
recognize and bargain. H & W Construction Company,
Inc., 161 NLRB 852; Old King Cole, Inc. v. N.L.R.B.,
260 F 2d 530, 532 (C.A. 6) and cases there cited. The
continuation of the strike, the number of men
participating in it, and the visual evidence Bliss had that
there was a majority participating on the morning of April
12 negate the contention that when on that day and in the
weeks or months following there had been a refusal to
recognize based upon a genuine or sincere doubt that the
Union did have majority authorization. Seven Up
Bottling Company of Miami, Inc., 92 NLRB 1622.
Thus it must be held that there was an unlawful refusal
to recognize and to bargain with the Union in violation of
Section 8(a)(1) and (5) of the Act.
C. The Unfair Labor Practices Strike Aspect
Bliss testified that when he rejected the Union's demand
for recognition he told its representatives that the
employees had been discharged. The action of the
employees in continuing the strike at that time is different
from a walkout following a discharge, as was the situation
in Brooks Foundry, Inc., 166 NLRB No. 57 and
N.L.R.B. v. Mastro Plastic Corp., 214 F.2d 462 (C.A. 2).
The evidence here does not present either an implied or
explicit picture of a strike induced by or continued
because of a discharge or discharges. Nevertheless the
strike was continued and the employees persisted in it by
reason of and because of Bliss' refusal to recognize the
Union as their authorized bargaining agent. Consequently,
although I do not find that they continued their strike in
protest against their discharge, allegedly unlawful, I do
find that it was continued and was clearly a strike for
recognition after a wrongful refusal to recognize. It was
therefore an unfair labor practice strike.
Now, upon the foregoing facts and the entire record,
the following are my
CONCLUSIONS OF LAW
1. Respondent, Joseph H. Bliss, doing business under
the firm name and style of Artcraft Mantel and Fireplace
Company, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and the
National Labor Relations Board has jurisdiction over him
and of this proceeding.
2 On or about April 12, 1967, and for an undetermined
period thereafter, United Brotherhood of Carpenters and
Joiners of America, Carpenters District Council of
Western Pennsylvania, AFL-CIO, a labor organization
within the meaning of Section 2(5) of the Act, was the
duly authorized representative for purposes of collective
bargaining of Bliss' employees in the unit comprising:
All full time and regular part-time production and
maintenance employees, including installers, helpers,
janitors and truckdrivers, at the Employer's Pittsburgh,
Pennsylvania, plant, excluding salesmen, automotive
mechanics, office clerical employees and guards,
professional employees and supervisors as defined in the
Act.
3. Bliss, the Respondent, on .that day and for a long
time thereafter, did wrongfully refuse to bargain
collectively with that Union and, by so refusing to bargain
with it and to recognize it, he thereby violated Section
8(a)(1) and (5) of the Act.
4. Such refusal by him caused what might have been
commenced as an economic strike to become an-unfair
labor practice strike.
5 Respondent's activities and operations as heretofore
set forth had and have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
JOSEPH H. BLISS 741
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
6. Respondent ' s refusal to recognize the Union, his
refusal to bargain with it, and his conduct in connection
with his initial rejection of the Union ' s request for
recognition are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not engaged in a violation of Section
8(a)(1) of the Act by promising an employee economic
benefits in order to induce him to abandon the strike or
by threatening him with loss of employment if he, did not
abandon the strike, as alleged in paragraphs 6(a) and (b)
of the complaint and those paragraphs accordingly should
be dismissed.
8. Respondent at no time extended recognition to the
Union and for that reason cannot be said to have
withdrawn recognition once extended . To the extent that
there are allegations to this effect in the complaint, those
allegations should be dismissed.
THE REMEDY
If this were an ordinary refusal to recognize and
bargain case the remedy would be the routine order to
recognize the Union, to bargain with it concerning
working conditions in Respondent ' s establishment, and to
offer reemployment to all strikers excepting only those
found guilty of misconduct on and off the picket line.
This, however, is not an ordinary and conventional refusal
to recognize and bargain case. In the first place, except
for the refusal to recognize and bargain , the Respondent
here engaged in no violations of Section 8(a)(1) of the Act
except to the extent that it could be argued, although
eschewed by the General Counsel, that his impetuous and
subsequently cancelled discharge of the striking employees
was a violation of that Section . All that can be said of his
conduct is that he scrupulously avoided contact with the
striking employees ' and gave blind obedience to his
attorney ' s advice, much of which was based on an
erroneous ` interpretation or understanding of the Labor
Management Relations Act and Board decisions
thereunder . On the other hand, the evidence of events
which must be laid at the door of the Union and the
striking employees presents a sordid picture of disregard
of the law, violence , and misconduct , and their failure to
compel or seek recognition by following through on the
normal procedures of Board action available to them
under the law. This requires some
ADDITIONAL FINDINGS OF FACT
At the very beginning of the strike the pattern or die
was cast by an early morning intrusion on April 13, 1967,
by two strikers at the home of Mary Ann Petrowski as
she was getting -ready to go to work. Here I must observe
quite emphatically that I regard Miss Petrowski as an
absolutely credible witness and believe every word of her
testimony. Bradford Hart, a striker whom she had
previously "dated," came to her door and informed her
that Leon Cristofano, another striker, wanted to talk to
her in his car. It was parked slightly up the street and was
not visible from her front door. She acceded to the
request, walked up the street, got into the car, and was
told by Cristofano "that if Joe [Bliss , the Employer]
didn't recognize the union he would have 500 men down
at Artcraft to damage the building. He said, `Can you
imagine what 500 men can do to that building?' He also
said that, `Joe Bliss's skull wouldn't be the first that the
union had crushed .' " She was told that all the men were
on the union side, that no - one was working and that "they
would win because [Bliss'] attorney had no knowledge of
the labor laws." She testified in addition, "They wanted
someone on the inside working every day to give them
information as far as what Joe's strategy would be."
Additional remarks made to her were that they would
picket every outside job Respondent had, that they were
sorry for her and two other employees because they
"would lose [their] jobs if [they] didn ' t go in with the
union, didn't give in to the union ." There was also a
suggestion of blackmail related to Bliss' income tax
return. She refused to agree to their demands because she
had made her decision not to participate in the work
stoppage.
This was an omen and warning of things that were to
come and did come. Any claim made that the events
which followed have not been legally connected with the
Union may not be upheld because, as was testified by a
union representative , at all times it hacl one or more
representatives present at the scene . Being present, it had
knowledge of what was happening and should have but
did not take steps to stop it. In fact, it was admitted that
the union representatives encouraged some of the acts and
that they engaged in a consistent pattern of following
Respondent ' s movements , whether by truck or
automobile . Events such as happened here, to which
reference will be made below , particularly when they are
events which had not happened before, and which followed
a warning such as had been given to Miss Petrowski, may
not be disregarded and dismissed for lack of meticulous
and technical common law proof or direct eye -witness
connection. We are permitted to make reasonable
inferences based on all of the facts and, when these
inferences can be made, we may not disregard them if
they are relevant to the proceeding.
I am satisfied both by photographs in evidence and by
the testimony of Bliss, which I credit notwithstanding the
fact that there was some inconsistency between his
testimony at the hearing and in the representation case on
an unrelated matter, that numerous acts of violence and
misconduct for which the Union and the strikers are
responsible did occur . Before referring to these facts it
may be well to note that Bliss had had a heart attack, was
under the care of a physician , and his physical condition
was known to all the employees because, only about two
weeks before the beginning of the strike, he had left the
hospital where he had been confined.
On the very first day of the strike the strikers, in the
presence of Maher, one of the union representatives,
sought to prevent female employees from going to work.
On that day the chain which controlled the raising and
lowering of the garage door was cut and the door could
not be operated . Respondent was thereby prevented from
driving his truck in or out of the garage . During the strike
soda pop bottles , cans, and other litter were strewn in
front of Respondent's premises at places of egress, When
the garage door was repaired and an effort was made to
drive the truck out of the garage, the strikers, under
Maher ' s direction , made it a practice to stand or walk in
groups in front of the garage so that the truck was
prevented from being driven out by this human barrier.
During the strike nails were placed under tires of various
cars in front of Respondent's premises . Some of these
nails caused at least one tire to be punctured. Another tire
had been pierced by an instrument which could have been
an ice pick . On one occasion , when Respondent's wife
sought to take her car out of the garage after the door
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chain had been repaired, the falling door almost struck it
because bolts in the apparatus had been removed. The
strikers engaged also in mass picketing. The police had to
be called to contain this.
Respondent caused his attorney to bring an action in
the Court of Common Pleas of Alleghany County for an
injunction restraining alleged unlawful acts. The
complaint, answer, and a consent preliminary injunction
have been received in evidence. The fact that the
preliminary injunction was issued following the filing of
the complaint is not res judicata of the facts therein
alleged. Montgomery Building & Construction Trades
Council v. Ledbedtter Erection Co., Inc., 344 U.S. 178.
Nor is the fact that I have received these court papers in
evidence proof of the facts therein alleged. They are,
nevertheless, evidence of the fact that the court
proceedings were brought and that the Union entered into
the consent preliminary decree Inasmuch as no final
judgment was entered in the court case, we may not base
any finding of fact upon the facts as alleged in the papers.
The consent decree, however, is acceptable evidence of
what it provided It limited picketing to two pickets at
each entrance, prohibited picketing at any entrance used
only for residential tenants, prohibited blocking of ingress
and egress and prohibited both the Union and individual
strikers from authorizing, ratifying, permitting, or
engaging in any proscribed conduct. The Union's attorney
consented to the entry of this decree and the Union and
all strikers became bound thereby. After it was entered
Bliss affixed it to ^ the window of his premises but Union
Representative DeSio scoffed at it and referred to it as
only a piece of paper.
Unlawful conduct continued even after the issuance of
the decree to the extent that the Common Pleas judge
found it necessary orally to warn the union representatives
against continuing disregard of its provisions.
Mass picketing continued Locks were stuffed with
chewing gum. When Bliss' child went to school he was
followed by union representatives. The strikers continued
to walk in front of Bliss ' truck and defied the possibility
that they might be struck. On an occasion when Bliss
sought to take a picture of what was happening Union
Representative DeSio warned him that if he took one
more picture DeSio would take the camera and strike him
on the head. On another occasion, while Bliss' leadman
sought to take a commercial vehicle out of his garage, the
strikers tried to pull him out of it and almost yanked him
into the street. The efforts to prevent trucks from leaving
Respondent's premises were continued. Union
Representatives DeSio and Maher warned Bliss' wife that
they would not permit her to drive the truck out of the
garage. Wherever Bliss went, even to the bank, he was
followed and on at least one occasion by Union
Representative Maher.
A nonstriker's automobile, parked in front of
Respondent's premises , was locked in by strikers' cars,
making it impossible for him to get out. On one occasion,
when DeSio and Maher sought to have egress by Bliss'
truck blocked by one of the strikers, they instructed him
to fall in front of it and make it appear that he was
injured. Mysterious and unidentified telephone calls, never
before received, started coming in on Respondent's
telephone. The callers would hang up when the telephone
was answered.
Union Representative DeSio and strikers stood in front
of Bliss ' store window and thumbed their noses at persons
in the store. Union representatives and about ten strikers
engaged in a childish prank of standing across the street
from Respondent's premises pointing in a group at those
premises.
On the occasion of Bliss' wife's birthday, as the
birthday party was leaving to go to Bliss' car, a union
representative, Bernard, followed the party across the
street, for some unexplained purpose, in a manner that
could have been regarded as a menacing gesture. When
others of the party approached he stopped following them
and returned to his car.
One unidentified picket, when seeking to stop Bliss'
truck from moving out of the garage on one occasion,
stood in front of it in such a way that if Bliss -had
continued he would have been struck This person taunted
Bliss telling him that if he were knocked down or hurt he
would wind up owning the building. On another occasion,
a new man employed by Respondent was directed to
install a fireplace but Union Representative DeSio called
him and, after a conversation between them, the new man
returned, took his tools, and went home.
On another occasion, Union Representative Maher
boarded Bliss' truck and refused to leave it, staying in it
while Bliss drove it, going about his business. During this
ride Maher told him, "you know there was a paint bomb
thrown in your employee's house - in two of your
employees' houses, and it did quite a bit of damage. You
wouldn't want that to happen-to you." Paint bombs were
in fact thrown into the houses of two employees. Damages
to one of them amounted to from $800 to $1,000. There
was extensive paint damage to furnishings and furniture.
A big front plate glass window in the home of
Respondent's leadman was broken.
A window in Respondent's showroom also was broken
when a bottle was thrown through it about 3 or 4 o'clock
one morning Union Representative DeSio threw a cup of
coffee into Bliss' face on one occasion. Respondent was
prevented from getting delivery of merchandise needed for
his business and was forced to rent a van and procure it
himself On another occasion, when Respondent's truck
was being moved out of the garage, Union Representative
Maher stood alongside it and beat upon it "like a
madman." This caused a big dent in the truck's hood.
The foregoing recital is based on credible oral
testimony given by Bliss. It is corroborated to a large
extent by pictures in evidence which show blocking of
trucks, group picketing or loitering, intrusions within the,
confines of Respondent's premises, mockery, the broken
store window, the punctured tire, the littering and
garbage, and the paint bomb destruction, among other
things.
Leon Cristofano was called in rebuttal but no effort
was made to refute Miss Petrowski's testimony and the
threats, intimidation, warnings, and blackmail to which
she testified must be deemed to be admitted. Union
Representatives DeSio and Maher also were called in
rebuttal. While they categorically denied some of the
conduct, they conceded some of the events concerning
which Bliss had testified although their interpretation of
them was different. They disclaimed knowledge of or
having seen other events. Their testimony has not
persuaded me that the events to which Bliss testified did
not transpire or that they did not transpire in the manner
related by him. In fact, their manner on the witness stand
suggests to me that they were of the opinion that whatever
did happen was justifiable as the means whereby the
recognition which they sought was to be attained.
Respondent relies strongly on N.L.R.B. v. Indiana &
Michigan Electric Company, 318 U.S. 9 (1943), which
affirmed a decision of the Sixth Circuit Court of Appeals
JOSEPH H. BLISS 743
(124 F.2d 50) remanding 20 NLRB 989, to the Board "to
hear additional evidence as to a course of depredations,
including dynamitings, committed, ii is alleged," by a
union on company property during the pendency of the
case. That case, however, is authority only for the
principle of law that the Board must give consideration to
union violence when evidence of it is offered in a Board
proceeding. It is a matter of interest however that ten
months after the Supreme Court's decision the Board, in
an order dated November 20, 1943, vacated its original
decision and dismissed the complaint. Indiana &
Michigan Electric Company, 53 NLRB 991.
Two relatively recent cases are more pertinent to the
matters in issue here. In Herbert Bernstein, et al, d/b/a
Laura Modes Company, 144 NLRB 1592, the Board
refused to enter an order requiring Respondent, absent an
election, to recognize and bargain with the union even
though it found that respondent had failed to do so in
violation of Section 8(a)(5) of the Act. There the Board
took note of the fact that a group of union members, not
employed by Laura Modes invaded Laura Modes'
premises, struck one of the partners in the face when he
requested an employee to call the police, and "pushed
around" that employee. The Board noted also that the
union representative there, who had temporarily left the
group, upon returning "ordered his adherents to stop the
fracas, stating that the Union `did not want any of that
sort of thing.' " Later, during the strike, an employee
pointed out one of the partners to four men, "who
thereupon proceeded to beat" that partner. A complaint
charging the union with violation of Section 8(b)(1)(a) of
the Act was filed. This caused the union to agree "to
refrain from committing any act of the nature
incorporated in the charges." The complaint was
withdrawn and the union thereafter complied fully with
the terms of the agreement. There was no recurrence of
objectionable conduct. The Board said:
.. [O]ur finding that the Respondents acted unlawfully
prior to the Union's misconduct is not to be taken as
condonation of the Union's subsequent resort to or
sanction of violent acts in furtherance of its demand
that the Respondents immediately recognize and
bargain with it: An atmosphere of violence and
intimidation can hardly be expected to produce
Respondent's participation in reasoned discussion with
union agents about the subjects of collective bargaining
.... [Emphasis supplied.]
We do not, however , deem it appropriate to give the
Charging Union the benefit of our normal affirmative
bargaining order in the circumstances of this case. For
we cannot , in good conscience , disregard the fact that,
immediately before and immediately after it filed the
instant charges , the Union evidenced a total disinterest
in enforcing its representation rights through the
peaceful legal process provided by the Act in that it
resorted to and /or encouraged the use of violent tactics
to compel their grant. Our powers to effectuate the
statutory policy need not, we think , be exercised so
single-mindedly in aiming for remedial restoration of
the status quo ante, that we must disregard or sanction
thereby union enforcement of an employer's mandatory
bargaining duty by unprovoked and irresponsible
physical assaults of the nature involved here. We
recognize of course that the employees ' right to choose
the Union as their representative survives the Union's
misconduct. But we believe it will not prejudice the
employees unduly to ask that they demonstrate their
desires anew in an atmosphere free of any possible
trace of coercion.
Taking note of the fact that the Union had agreed to
refrain from misconduct and stating its belief that this
agreement would afford the employees the desirable
conditions necessary to make a free choice it said:
We conclude that, in the particular circumstances of
this case, the policies of the Act and the legitimate
interests of the public and the parties will best be served
by denying to the Union the right to invoke our
statutory processes in aid of a demand for recognition
as bargaining representative of Respondents' employees
unless and until it demonstrates its majority among
those employees through the Board's election
procedures
The other pertinent case is United Mineral & Chemical
Corporation, 155 NLRB 1390, where the Board concluded
that the violence was not of a nature sufficient to justify
denial of the routine recognition and bargaining order and
it required the employer to recognize and bargain with the
Union. (A Trial Examiner of the Board, of course, is
bound by the Board decision notwithstanding that the
Second Circuit Court of Appeals, N.L R.B. v. United
Mineral and Chemical Corp. 67 LRRM 2343 391 F.2d
829 (C.A. 2), denied enforcement of that portion of its
order requiring the employer to recognize and bargain
with the Union.)
The Board in United Mineral & Chemical did not
overrule or recede from the policy expressed in Laura
Modes. It held merely that "the facts and conclusions set
forth in Laura Modes are inapposite" to the
circumstances of United Mineral. It pointed out that in
Laura Modes the union did not wait to give the employer
an opportunity to consult with his lawyer but, on the very
next day, "beat up one of the owners . . . and `pushed
around' a female office employee" and that this conduct
was followed several days later by the beating of another
partner. In United Mineral the Board took note of the
fact that the Union in Laura Modes had exhibited a total
disinterest in resorting to Board procedures and had
resorted to or encouraged violence to obtain the same
results. After noting its view of the Union's conduct in
Laura Modes, the Board observed in United Mineral that
the union petitioned for an election on April 22, the day
after it made its initial demand for recognition, agreed to
United's demand concerning the scope of the appropriate
unit, and consistently offered to have its majority status
determined by a variety of methods, only to be met from
the very beginning with "Respondent's hostility to the
Union, including discriminatory discharges and serious
violations of Section 8(a)(1), and Respondent's use of
dilatory tactics aimed at dissipating the Union's majority
strength. The four or five instances of serious misconduct
on the picket line during the 65-day strike primarily were
attributable to [two employees], for whom reinstatement is
not sought. These outbursts, moreover, took place in the
heat of picket line tensions, and do not appear to be part
of a plan of intimidation as is the case in Laura Modes."
Under these circumstances the Board concluded that it
would not refuse the usual affirmative bargaining order.
Our case is not precisely the same as either Laura
Modes or United Mineral but our facts are closer to those
in Laura Modes. In some ways our case' would appear to
be more serious. For example, in Laura Modes the union
agreed and abided by its agreement not to engage in
0
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further violence. In our case, although the Union's
attorney had signed a consent preliminary injunction, it
has never agreed before this Board and has never offered
before this Board to refrain from violence or to endeavor
to prevent violence. On the contrary, after the consent
preliminary decree was signed, the union representatives
flouted and mocked that decree and violence and unlawful
conduct continued The Board, in United Mineral,
referring to Laura Modes, observed that there had been
"a plan of intimidation." What greater evidence of a plan
of intimidation can there be than the threats, intimidation,
and blackmail by Cristofano to Miss Petrowski conveyed
for transmission to the employer and the paint bomb
threat by Maher? In United Mineral, the Board took note
of the numerous discriminatory discharges and violations
of Section 8(a)(1) of the Act and, no doubt, weighed these
as a factor to be considered ' in determining the remedy.
As a matter of fact, even m Laura Modes, there were
numerous violations of Section 8(a)(1). It hardly can be
said that in our case any of the violence, intimidation, and
threats were provoked in the slightest by the conduct of
the Employer and this despite the uncredited testimony
that the coffee-throwing incident mentioned above had
been provoked or caused by Bliss and his wife.
All that can be said in this case is that the Employer
was not well advised. Not being well advised, he
nevertheless acted in good faith in seeking to have certain
legal questions determined. While this activity on his part
and on the part of his attorney is not a defense to a
charge of violation of Section 8(a)(5) it does not give
license to the Union or the strikers to resort to violence to
induce abandonment of such ill-advised efforts. I repeat
what I have said above that in this case, save for the
single violation of Section 8(a)(1) and (5) involving the
unlawful refusal to recognize and bargain and the claimed
discharges incident thereto (but shunned by the General
Counsel), Respondent is guilty of no other violation of the
Act. The Employer's questioning of jurisdiction, his
position as to unit and his litigation of the persons to be
-included therein cannot be the basis for finding antiunion
animus.
It may be argued that here, as in United Mineral, the
Union in addition to its demand for recognition promptly,
on the very date it was rejected, filed a petition for an
election and that this is evidence that it did not indicate
"any lack of interest in enforcing its statutory rights
through the Board's processes, [but] zealously sought to
do so." I am not so sure, in fact I doubt, that whatever
zeal there might have been in filing the petition for
recognition, that filing in the light of what happened here
was a good-faith resort to the orderly processes afforded
to labor unions and employees under the statute When
the time finally came that an election could have been
held, the Union only then, on September 5, 1967, filed its
charge alleging violations of Section 8(a)(3) and (5) of the
Act, which charge was amended December 12, 1967, to
allege only the violation of Section 8(a)(5) of the Act. In
both charges the alleged violation was addressed to the
refusal to recognize back on April 12. Simultaneously
with the filing of the initial charge, the Union requested
permission to withdraw its petition for certification of
representatives Ordinarily, withdrawal of a petition for
certification, whether it be before an election or after a
union has lost an election, may be a perfectly reasonable
and proper course of procedure. Under the circumstances
of this case, where there has been no pattern of 8(a)(1)
conduct and the instances of 8(a)(3) conduct charged were
not prosecuted, I find nothing from which I would assume
in the light of everything else that happened that the
Union in this case had a genuine and continuing interest
in having its statutory right to recognition enforced or
determined by the Board's processes. Its filing of the
petition for an election seems to me to have been merely
lip service to Section 8(b)(7)(c) of the Act.
In Laura Modes the Board found that there had been a
violation of Section 8(a)(5) but made no provision in its
Order with respect to it even 'though it restricted its
dismissal of the complaint to allegations "as to which no
specific finding of violations" had been made. In United
Mineral, having found the violation and having
distinguished, Laura Modes, it entered an affirmative
Order requiring the employer to recognize and bargain
with the union and, in addition, directed reinstatement for
certain improperly discharged employees, together with
other routine relief. As in Laura Modes, here "the
legitimate interests of the public and the parties will best
be served by denying to the Union the right to invoke [the
Board's] processes in aid of a demand for recognition as
bargaining representative of [Respondent's] employees
unless and until it demonstrates its majority among those
employees through the Board's election procedures" (page
1596).
The General Counsel requests a reinstatement order
here although there has been no proof that any employee
either has applied for or been denied reinstatement or, in
fact, is not at the present time working for the
Respondent. Nevertheless, reinstatement is appropriate
remedial action where a strike has been for the purpose of
obtaining recognition wrongfully refused. It will be treated
at greater length below.
The General Counsel suggests further that, in view of
Respondent's testimony that all the employees had been
discharged on the first day of the strike, they should not
only be offered reinstatement but be awarded "backpay
from that date until such offer of reinstatement is made."
The last of course is not consistent with Board law. "The
employees were on strike at the time of their discharge.
As they had not abandoned the strike and applied for
reinstatement, we can see no justification for awarding
them backpay while they were withholding their services
irrespective of the fact that they were discharged. Our
refusal to award backpay to striking employees is
consistent with long-established Board principles and no
sufficient reason appears in the particular circumstances
of this case for deviating from those principles." Seaway
Distributing, Inc, 143 NLRB 460. More recently see LTV
Electrosystems, Inc., 169 NLRB No 64, and Hilton
Mobile Homes, 155 NLRB 873.
This matter of reinstatement requires some further
consideration. While, in accordance with established
Board principles as stated above, discharged strikers are
entitled to backpay only from the time that they cease
withholding their services and unqualifiedly request
reinstatement, there is a question in this proceeding
whether some of the employees should be denied
reinstatement because of their misconduct. The proof in
this connection has been rather general and only Bradford
Hart and Leon Cristofano have been directly connected
with serious misconduct. It was they who induced Miss
Petrowski to enter Cristofano's car, there to be subjected
to the threats, blackmail, and warning of the events to
follow. While Hart did not take an active part in the
conversation, he arranged it, sat in the car, and indicated
by his conduct that he was in complete agreement with
what Cristofano was saying. He was equally culpable with
Cristofano. Cristofano, however, has been identified as
JOSEPH H. BLISS
one of the strikers who participated in misconduct. The
proof as to other strikers actually named by Bliss is
inadequate to establish that they engaged in that degree of
misconduct to justify denying them reinstatement. For
these reasons, only Hart and Cristofano will be excluded
from the reinstatement requirement The others come
within the rule of B.V.D. Company, Inc., 110 NLRB
1412, remanded sub nom International Ladies' Garment
Workers Union v. N.L.R.B., 237 F.2d 545 (C.A.D.C.)
Supplemental Decision, 117 NLRB 1455.
It is argued also that there has been either condonation
of the misconduct or abandonment of the claim. In this
connection my attention has been directed to
Respondent's letter of April 21, 1967, to the Pennsylvania
Bureau of Employment Security. This letter is far from
being evidence of condonation or abandonment. It makes
repeated references to the Union's misconduct and to the
fact that court action had been brought to restrain such
conduct. The Respondent has complained consistently and
persistently in every forum afforded to him, the
Pennsylvania State Agency, the Pennsylvania State Court,
and this Board. There just has been no condonation,
acquiescence, or abandonment of the claim.
It is suggested also that the misconduct in this case is
negligible when compared to that in the Indiana &
Michigan case, above cited. Can a quantitative standard
be developed for the determination of when misconduct
deserves no cognizance? If so, could such a quantitative
evaluation be made without regard to proportion of
damage and relative size of the person injured? We must
not overlook the fact that here the misconduct was not, as
was suggested in United Mineral, "in the heat of picket
line tensions ." Far from being the product of emotional
flareups, spontaneous outbursts of temper, or responses to
provocation, the misconduct here appears to have been
calculated, deliberate, and the fulfillment of the promise
made at the very beginning of the strike. In practically
every instance, both at the Employer' s premises and at the
homes of nonstriking employees, the misconduct was not
on or associated with any legal picket line but was of a
nature which implied premeditation.
But, let us have a moment's look at this proposed
quantitative assessment. True, in Indiana & Michigan
three of the employer's transmission line poles were sawed
off on September 5, 1939, and a transmission line tower
was dynamited on September 8. This was followed by the
dynamiting, on November 11, of another transmission line
tower, on October 28 by the dynamiting of two
transmission poles, on October 30 by the destruction of
another transmission tower and, on November 23, by the
destruction of two more transmission towers. All the
transmission towers carried high voltage Imes and some
were located along public highways or railroad tracks.
These were high quantity damages indeed. They
undoubtedly were greater than the damages sustained by
our Respondent and his innocent employees In view,
however, of the Board's description of Indiana's vast
multistate business and its reference to its 1,000 employees
(20 NLRB 991, 993, 994) it is not difficult to conclude
here that the conduct and the results of the conduct in our
case were as serious or more serious, both qualitatively
and proportionally, than those in Indiana . We must not
overlook that this one-man retail business with from 20 to
25 employees was operated out of a single store property
which was part of Respondent's living quarters in the city
of Pittsburgh, Pennsylvania, and his entire gross business
might have been about $300,000 a year.
745
With all the foregoing considerations in mind I have
concluded that the order in this case- should be patterned
after those in Laura Modes Company, 144 NLRB 1592,
and LTV Electrosystems, Inc., 169 NLRB No. 64
Moreover, because Respondent, in the heat of the
beginning of the strike, either impetuously discharged or
made it appear that he discharged his employees because
they went out on 'strike there should be a provision
requiring him to cease and desist from such conduct.
Because there is no convincing or substantial evidence that
he has rejected the principles and concept of collective
bargaining and because he has not engaged in any pattern
of violations of Section 8(a)(l) of the Act, I have
concluded that he should not be subjected to a broad form
order requiring him to cease and desist from "in' any other
manner" interfering with, restraining, or coercing his
employees in the exercise of their rights under the Act.
The following is my recommended
ORDER
Respondent, Joseph H. Bliss, doing business under the
firm name and style of Artcraft Mantel and Fireplace
Co., his agents, representatives, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging any employees or making it appear that
any employees have been discharged because they engage
in or have engaged in a lawful strike or in other concerted
activities for their mutual aid or protection.
(b) In any like or related manner interfering with,
restraining, or coercing his employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action:
(a) Upon application, offer to all employees who
participated in the strike which commenced April 12,
1967, and continued thereafter and who have not yet been
reemployed, excepting however only Bradford Hart and
Leon Cristofano because of their misconduct during the
strike, immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges previously
enjoyed, and make all such persons, whether already
reemployed or to be reemployed, except Hart and
Cristofano, whole for any loss of earnings they suffered or
may have suffered from the date they unconditionally
requested or the date when they will unconditionally
request reinstatement by payment to them of a sum of
money equal to that which they normally would have
earned following the date of their unqualified request for
reinstatement, less their net earnings during said period.
Such backpay shall be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, together with interest thereon at
the rate of 6 percent per annum. Isis Plumbing and
Heating Co., 138 NLRB 716.
(b) Notify any and all of the said persons except Hart
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Cristofano 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.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
to any employee.
(d) Post at his premises, copies of the attached notice
marked "Appendix "' Copies of said notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent, Joseph H. Bliss, shall be
posted by him immediately upon receipt thereof, and be
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the receipt of this Decision,
what steps he has taken to comply herewith.'
Except to the extent expressly found herein, all other
allegations of violations set forth in the complaint shall
be, and hereby are, dismissed.
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees
that:
I WILL NOT discharge or make it appear that any
employees have been discharged because they engage in
a lawful strike or in other concerted activities for their
mutual aid or protection.
I WILL NOT, in any like or related manner, interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
I WILL, upon application, offer all employees who
participated in the strike which commenced April 12,
1967, and who have not yet been reemployed, except
Bradford Hart and Leon Cristofano, immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make all employees except
Bradford Hart and Leon Cristofano, whole for any loss
of earnings they suffered or may have suffered from the
date they unconditionally requested or the date when
they will unconditionally request reinstatement by
payment to each of them of a sum of money in the
manner provided in the Decision.
All my employees are free to become or remain, or
refrain from becoming or remaining , members of any
labor organization.
Dated
JOSEPH H. BLISS, D/B/A
ARTCRAFT MANTEL AND
FIREPLACE CO.
(Employer)
(Sole Owner)
Note: I will notify the above-designated 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.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 644-2977.