C. F. Martin & Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1192 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. F. Martin & Co., Inc. and Local 552, United
Cement, Lime and Gypsum Workers Interna-
tional Union. Cases 4-CA-9227 and 4-CA-
9456
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 6, 1980, Administrative Law Judge Max
Rosenberg issued the attached Decision in this pro-
ceeding. Thereafter, Respondent, the General
Counsel, and the Charging Party filed exceptions
and supporting briefs, and Respondent filed briefs
in response to the exceptions filed by the General
Counsel and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
The General Counsel and the Charging Party except to the Adminis-
trative Law Judge's admission of, and reliance upon, testimony by em-
ployee witnesses concerning their relationships with the Union and the
reasons for their resignations therefrom. They argue that the testimony is
inadmissible because Respondent, in preparation for the hearing, ques-
tioned the employees without giving them adequate assurances against re-
prisals as required by, Johnnie's Pouliry Co. and John Bishop Poultry Co.,
Successor, 146 NLRB 770 (1964). We find no merit in their contention.
Although they now argue that Respondent's prehearing interviews with
its employees violate Sec. 8(a)(l) of the Act, the General Counsel made
no motion to so amend the complaint at the hearing, and Respondent has
presented no defense to the possible 8(a)(l) allegation As the matter was
not fully litigated at the hearing, we do not reach the issue whether Sec.
8(a(1) of the Act was violated by the interviews. The Administrative
Law Judge, who observed the demeanor of the employee witnesses at
the hearing, had the best opportunity to determine the reliability of their
testimony. We shall not disturb his ruling that the testimony was admissi-
ble.
2 The General Counsel and the Charging Party have excepted to the
Administrative Law Judge's reliance, on employee testimony concerning
the relative importance of Respondent's proration of vacation benefits in
the employees' decisions to withdraw support from the Uniln as their
collective-bargaining representative We find merit in this exception, and
specifically do not rely on this subjective testimony Nevertheless, we
find that the Administrative l.aw Judge's conclusion that the proration of
the vacation benefits was not the cause of the employees' disaffection
from the Union is amply supported by the record evidence In this
ings,2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.4
We agree with the Administrative Law Judge,
for the reasons stated below, that Respondent vio-
lated Section 8(a)(5) and (1), but not Section
8(a)(3), of the Act by prorating vacation benefits to
certain of its striking employees in January 1978.
We further agree with the Administrative Law
Judge that this conduct, in the circumstances
herein, had a "comparatively slight" impact on the
employees' rights and does not warrant an exten-
sion of the Union's certification year, which ex-
pired on April 14, 1978. Therefore, we agree with
the Administrative Law Judge's conclusion that
Respondent's May 25, 1978, withdrawal of recogni-
tion from the Union occurred in a context relative-
ly free of unfair labor practices and was based on
Respondent's good-faith doubt as to the Union's
continuing majority status. We also agree with the
Administrative Law Judge's alternate conclusion
that the Union did not, in fact, represent a majority
of Respondent's employees in the appropriate unit
on May 25, 1978. We therefore agree that Respon-
dent's withdrawal of recognition did not violate
Section 8(a)(5) of the Act.
regard, we note that approximately one-fourth of the strikers had taken
all of their vacation time prior to the commencement of the strike and
therefore did not lose any benefits, that many employees lost several
months' wages as a result of the strike. while losing only a few days'
wages as a result of the proration, that several months' time elapsed be-
tween the proration of the vacation benefits and the Union's loss of ma-
jority support, and, finally, that the Union engaged in a course of total
inaction and disregard of the employees' concerns during the long
months of the strike We therefore agree with the Administrative l.aw
Judge that Respondent's withdrawal of recognition from the Union was
effected in a context relatively free of unfair labor practices.
Respondent excepts to the Administrative Law Judge's finding that the
strike herein continued until June 1978. The record shows that the strike
in fact ended on May 25, 1978., and we correct the Administrative Law
Judge's findings in that regard
' We agree with the Administrative Law Judge that no useful purpose
would be served by fashioning a separate remedy. for the 8(a)(5) violation
concerning the proration of vacation benefits. However, as the Adminis-
tratie Law Judge inadvertently omitted the 8(a)(51 conclusion from the
Conclusions of Law, we amend that section of his Decision
T' he Administl-rative L.a Judge included a broad cease-and-desist
provision i his recommended Order. In flickmoot Foods. Inc., 242 NLRB
1357 1979), the Board held that such an order is warranted only when a
respondent is shosnll to havre a proclivity to violate the Act, or has en-
gaged i such egregious or widespread misconduct as to demonstrate a
general disregard for the emplisees' fundamental statutolry rights We
find that this case does not fall into that category. We therefore substitute
a narrow cease-and-desist provision for the broad one in the recommend-
ed Order and conform the notice accordingly
252 NLRB No. 167
1192
C F. MARTIN & CO., INC,
We agree with the Administrative Law Judge
that the strikers herein had a vested right to their
entire 1977 vacation pay when they commenced
their strike on September 14, 1977. However, the
record does not entirely spport the Administrative
Law Judge's factual conclusion that the strikers
herein were the only employees of Respondent
ever to suffer an adverse action concerning their
vacation benefits. As more fully detailed in the Ad-
ministrative Law Judge's Decision, Respondent's
vacation policy allowed employees to take their
vacations at any time during the calendar year in
which earned; employees who did not use all of
their entitlement as days off were, at the end of the
year, paid for such unused time according to their
hourly wage rate. Respondent has never required
that employees reimburse it for vacation days used
if they thereafter do not work the entire year. The
only restriction is that new employees must be on
the payroll by July 1, and have at least 90 days'
service, to be entitled to any vacation during the
first employment year. As noted by the Adminis-
trative Law Judge, if a new employee did not satis-
fy those requirements but remained an employee
thereafter, the first calendar year of his employ-
ment counted as a full year for the purpose of com-
puting vacation benefits in subsequent years. It is
not clear from the record whether an employee
who works less than 90 days in 1 calendar year is
immediately entitled, before accumulating 90 days'
total service, to take vacation days at the beginning
of the next year.
The record reveals very few situations in Re-
spondent's history where employees left its employ
before the end of a calendar year without using all
accrued vacation time. The written policy does not
provide any guidelines for dealing with these situa-
tions except that, since 1973, it has provided that
employees who quit without using all accrued time
are entitled to full payment. During 1973, before
the policy change was instituted, two employees
who quit were not paid for their unused time. Be-
tween 1972 and 1976, the years for which Respon-
dent produced records, monetary payments were
made to only eight employees-seven who quit and
one who became disabled. During the same period,
four employees were discharged, two had already
used all accrued vacation time, and were new em-
ployees who had not served 90 days during the ini-
tial hire year and would not, presumably, be enti-
tled to vacation benefits.
In 1977, the following occurred: One employee,
who was in his second calendar year of employ-
ment, was discharged. He had not served a total of
90 days, and was not paid for days he apparently
would have been eligible to take as vacation. Two
employees became disabled; one had used all ac-
crued vacation, and the other was paid in full for
his unused portion. Another employee who was
disabled when the strike began did not return to
work when his disability status ended before the
end of the year. His accrued vacation eligibility
was prorated for the time after the disability ended.
One employee who quit during the strike had his
vacation eligibility prorated on the same basis as
the strikers. Approximately 17 employees were laid
off prior to the commencement of the strike. The
employees were given the option of using their ac-
crued vacation time then or retaining it for a later
time when they returned to Respondent's employ.
Laid-off employees who had accumulated time left
at the end of the year had their benefits prorated,
according to the record; the manner in which the
benefits were prorated is not revealed. As noted by
the Administrative Law Judge, during 1977 Re-
spondent also attempted to reduce the amount of
unused vacation benefits it was obligated to pay to
salaried, nonstriking employees by forcing them to
take additional days off and finally resorting to a
plant shutdown.
In view of the foregoing, and especially in view
of the scant evidence presented by this record for
comparison purposes, we are unable to conclude
that Respondent's proration of the strikers' unused
vacation benefits is the sort of patently discrimina-
tory conduct contemplated by N.L.R.B. v. Great
Dane Trailers, Inc., 388 U.S. 26 (1967). Rather, we
find, as did the Administrative Law Judge, that the
instant case is similar to Knuth Bros., Inc., 229
NLRB 1204 (1977), and Thorwin Manufacturing
Company, 243 NLRB 620 (1979), where the Board
found that an employer's nondiscriminatory con-
duct in denying strikers' vacation benefits violated
Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
purview of Section 2(5) of the Act.
3. From April 15, 1977, until on or about May
25, 1978, the Union was the exclusive collective-
bargaining representative of Respondent's employ-
ees in the following described unit appropriate for
the purposes of collective bargaining:
All production and maintenance employees, in-
spectors, repair employees and shipping em-
ployees of C. F. Martin & Co., Inc., at its
Sycamore Street facility in Nazareth, Pennsyl-
vania, but excluding all office clerical employ-
I 1'3
I)ECISIONS ()F NATIONAL .ABOR RLA'IO()NS B()ARI)
ees, quality control employees, professional
employees, supervisors and guards as defined
in the Act and all other employees.
4. By withholding accrued vacation benefits
from its striking employees, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
5. By withholding accrued vacation benefits
from its striking employees, which action involved
and affected employees in the above-described ap-
propriate collective-bargaining unit, without notifi-
cation to or bargaining with the Union, Respon-
dent violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the ambit of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
C. F. Martin & Co., Inc., Nazareth, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I. Subtitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withhold accrued vacation
benefits from, our employees as a consequence
of their protected concerted activities in en-
gaging in a strike.
WE WIl.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL pay to employees who engaged in
the strike in 1977 the accrued vacation benefits
due them for the calendar year 1977 which we
withheld from them, with interest thereon.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization.
C. F. MAR'IIN & Co., INC.
DECISION
MAX ROSENBERG, Administrative Law Judge: This
proceeding was heard before me in Allentown, Pennsyl-
vania, on September 18 and 19, October 5, 6, 30, 31, and
November 1 and 2, 1978, upon a consolidated complaint
filed by the General Counsel of the National Labor Rela-
tions Board and an answer submitted thereto by C. F.
Martin & Co., Inc., herein called Respondent.' The
issues raised by the pleadings relate to whether Respon-
dent violated Section 8(a)(l), (3), and (5) of the National
Labor Relations Act, as amended, by certain conduct to
be detailed hereinafter. Briefs have been received from
the General Counsel, the Charging Party, and Respon-
dent, which have been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of each witness who testified
herein, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONI) ENT
Respondent, a Pennsylvania corporation with its main
office and place of business located in Nazareth, Pennsyl-
vania, is engaged in the manufacture and sale of fretted
stringed instruments. During the annual period material
herein, Respondent sold and shipped goods valued in
excess of $50,000 to points located outside the Common-
wealth of Pennsylvania. The complaint alleges, the
answer admits, and I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. rHE lABIOR ORGANIZATION INVOLVEI)
Local 552, United Cement, Lime and Gypsum Work-
ers International Union, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE AI.I.EGED UNFAIR I.ABOR PRACTICES
Respondent is charged in this proceeding with violat-
ing Section 8(a)(1) and (3) of the Act by withholding ac-
crued vacation pay from its employees because they had
engaged in a statutorily protected work stoppage against
Respondent, and with offending the provisions of Sec-
tion 8(a)(5) of the statute by refusing to bargain with the
Union over this personnel action. Respondent is further
charged with running afoul of Section 8(a)(5) of the Act
' he complaint in Case 4 CA-9227, which issued on April 27. 1978,
is based upon a charge Filed on February 21, 1978. and served on Febru-
ary 22. 1978, and an amended charge filed and served on March 23, 1978
The complaint in Case 4 CA 9456 was issued on July 31, 1978, and is
based upon a charge which was filed and served on June 14, 1978 By
order of July 31, 1978. the Regional Director for Region 3 consolidated
these cases
1194
C. F. MARTIN & CO., INC.
by declining to bargain with the Union on and after May
25, 1978, notwithstanding that that labor organization
constituted the duly designated majority bargaining rep-
resentative of an appropriate unit of its employees at the
critical time in question. 2
A. The Backdrop
Since 1833, Respondent has maintained a plant in
Nazareth, Pennsylvania, where it mass produces accous-
tic guitars which are fabricated by hand from raw mate-
rials. Prior to the advent of the Union, the unit employ-
ees had never selected a collective-bargaining representa-
tive other than a shop committee and, although Respon-
dent and the shop committee had reduced to writing cer-
tain employment policies, including one relating to vaca-
tions, no formal bargaining compact had ever been ex-
ecuted between the parties.
Pursuant to a representation petition filed by the
Union with the Board's Regional Office in Philadelphia,
an election was conducted on April 7, 1977, among em-
ployees in the appropriate unit. The tally of ballots in
that election showed that, of approximately 200 eligible
voters, 136 cast their votes for and 58 voted against the
Union, with no challenged or void ballots.3 On April 15,
the election results were certified by the Board. Follow-
ing the election, all members of the bargaining unit, with
the exception of Elwood Trach and Kirk Hamm, who
were absent from work due to disability, joined the
Union.
Beginning in June 1977, and continuing until Septem-
ber 8, 1977, Respondent and the Union conducted a
series of 17 bargaining colloquies, several of which were
attended by a Federal mediator. Because the parties were
at loggerheads over a variety of issues, the Union held a
meeting of its members on September 14, 1977, at which
a strike vote was taken and a strike approved. All unit
employees thereupon engaged in a work stoppage which
continued until June 1978. At the hearing, the General
Counsel stipulated that the work stoppage constituted a
legal, economic strike throughout its duration. Between
September 14, 1977, and December 31, 1977, the parties
attended approximately five more bargaining sessions
called by the mediator without resolving their differ-
ences.
B. Withholding of Accrued Vacation Pay and the
Failure To Bargain Over This Benefit
The record discloses that Respondent has maintained a
written policy with respect to vacations which had been
developed over the years. The policy in effect for the
calendar year 1977 was promulgated in February 1976,
and essentially paralleled the one which existed since
It is undisputed and I find that all production and maintenance em-
ployees, inspectors,, repair emplisees, and shipping employes of Respon-
dent at Its plant in Nazareth, Penns l'ania. excluding all office clerical
employees, quality control emploees, professional employees. guards. all
supervisors as defined in the Act, and all other emplosees constitute a
unit appropriate for the purposes o collective bargaining ithin he
meaning of Section 9(h) of the Act
3 The Axcelrior eligibility list submited toi the Regional Office prior to
the election carried the names of 196 unit emploees
1970(). 4 Pursuant to this policy, Respondent has allowed
its employees to take their vacations during the calendar
year in which earned rather than await the following
year. At the end of a given year, if an employee had not
taken all of the vacation to which he was entitled, he
was paid his hourly rate for the unused days in a lump
sum in January of the following year. The only excep-
tion to this procedure dealt with the new employees who
were required to be on the payroll prior to July I of a
given year and who had worked at least 90 days. If a
new employee failed to satisfy these requirements but re-
mained an employee thereafter, the first calendar year of
his employment, regardless of the number of hours he
actually worked, counted as a full year for the purpose
of computing his vacation benefit in subsequent years.
In January 1978, Respondent paid the members of the
bargaining unit for their unused vacation days which had
accrued in calendar year 1977. However, in contrast to
past practice, this payment did not account for all the
unused vacation days which these employees had earned
in that year. Because the above-noted work stoppage
spanned from September 14 through December 31
during the 1977 vacation year, Respondent reduced the
number of available vacation days by three-tenths to ac-
count for the amount of unused vacation earned during
the strike for that year. Based on these calculations,
many employees received no payment in January 1978
because they had already used their entire vacation allot-
ment, while a total of 153 employees experienced a de-
crease in payment for unused vacation days for 1977
which they would otherwise have received but for the
withholding of work as a result of the strike. It is undis-
puted and I find that Respondent neither notified the
Union about, nor offered to bargain with it over, the va-
cation pay reductions.
The General Counsel contends that, by reducing the
accrued vacation benefits due to the strikers, Respondent
violated Section 8(a)(1) and (3) of the Act. He further
contends that, by refusing to notify or consult with the
Union regarding these reductions at a time when that or-
ganization was the duly designated bargaining represen-
tative of the employees in question, Respondent also vio-
lated Section 8(a)(5) of the Act. Finally, the General
Counsel urges that, inasmuch as these statutory intrusions
occurred within the Union's certification year, that year
should be extended because a bargaining relationship be-
tween the parties had not existed for a reasonable period
of time. 5
In .VL.R.B. v. Great Dane Trailers, Inc.,6 the United
States Supreme Court addressed itself to the issue here
The only changes made since 1970 increased the number of personal
days as part of the total vacation, and permitted employees who had vol-
uintarils quit to be paid for all their unused vacation days
5 The charges embodying this alleged misconduct %uere filed by the
Union on February 21. 1978. Those charges were amended by the LUnion
ott March 23. 1978, hy adding the allegation that Respondent had addi-
lionally iolated the statute by mailing correspondence to the employees
threatening them ith the elimination of certain benefits and advising
them of certain adverse action to be taken by Respondent The Regional
)ireclor refused to issue a complaint based on the latter charge. and this
refusal s.ia subsequetnll affirmed bh the (neral Counsel tt appeal
88 L S 26 119 71
195
DECISIONS ()F NATI()NAL LABOR RELATIONS BOARD
bargaining agent of the employees involved had entered
into an agreement which contained a commitment pursu-
ant to which the company agreed to pay specified vaca-
tion benefits on or about July I of each year to employ-
ees who had worked a certain number of hours during
the preceding year. Prior to July 1, 1963, the union em-
barked upon a strike. During the work stoppage, the
company continued to operate utilizing nonstrikers, re-
placements, and some original strikers who had returned
to work. On July 12, 1963, the strikers demanded their
accrued vacation pay from their employer which was
denied to them on the ground that all contractual obliga-
tions had been terminated by the strike and, hence, none
of the employees had a right to vacation pay. However,
shortly thereafter, the company announced that it would
grant vacation pay in the manner set forth in the expired
agreement to all employees who had reported for work
on July 1, 1963. Holding that the company had violated
Section 8(a)(1) and (3) of the Act by paying vacation
benefits to nonstrikers while withholding them from the
strikers, the Court said:
The unfair labor practice charged here is grounded
primarily in Section 8(a)(3) which requires specifi-
cally that the Board find a discrimination and a re-
sulting discouragement of union membership.
American Shipbuilding Co. v. Labor Board, 380 U.S.
300, 311. There is little question but that the result
of the company's refusal to pay vacation benefits to
strikers was discrimination in its simplest form. [Ci-
tations omitted]. Some employees who met the con-
ditions specified in the expired collective-bargaining
agreement were paid accrued vacation benefits in
the amounts set forth in that agreement while other
employees . . . who also met the conditions but
who had engaged in protected concerted activity
were denied such benefits. Similarly, there can be
no doubt but that the discrimination was capable of
discouraging membership in a labor organization
within the meaning of the statute. Discouraging
membership in a labor organization "includes dis-
couraging participation in concerted activities . . .
such as a legitimate strike." Erie Resistor Corp. v.
Labor Board, 373 U.S. 221, 233. The act of paying
accrued vacation benefits to one group of employ-
ees while announcing the extinction of the same
benefits for another group of employees who are
distinguishable only by their participation in pro-
tected concerted activity surely may have a dis-
couraging effect on either present or future concert-
ed activity. 7
After reviewing its prior decisions dealing with a con-
struction of the statutory language "discrimination . . .
to . . . discourage" as used in Section 8(a)(3), the Court
distilled the following principles from those decisions:
First, if it can reasonably be concluded that the em-
ployer's discriminatory conduct was "inherently de-
structive" of important employee rights, no proof of
an antiunion motivation is needed and the Board
can find an unfair labor practice even if the employ-
Id. at 33.
er introduces evidence that the conduct was moti-
vated by business considerations. Second, if the ad-
verse effect of the discriminatory conduct on em-
ployee rights is "comparatively slight," an antiunion
motivation must be proved to sustain the charge if
the employer has come forward with evidence of
legitimate and substantial business justifications for
the conduct. Thus, in either situation, once it has
been proved that the employer engaged in discrimi-
natory conduct which could have adversely affect-
ed employee rights to some extent, the burden is
upon the employer to establish that it was motivat-
ed by legitimate objectives since proof of motiva-
tion is accessible to him. 8
The main thrust of Respondent's defense to the charge
that it had discriminatorily withheld accrued vacation
benefits from 153 strikers by prorating their award be-
cause of the work stoppage rests primarily on its argu-
ment that the strikers had not accrued or secured a
vested interest in a full year's vacation entitlement when
they embarked upon their cessation of work on Septem-
ber 14, 1977. It therefore argues that the vacation bene-
fits were lawfully reduced to an extent reasonably com-
mensurate with the time which they had spent while en-
gaged in the strike. With respect to this contention, the
record singularly fails to substantiate Respondent's claim
that its policy and past practice did not provide for the
immediate, annual accrual of vacation benefits. Frank
Woodrow, Respondent's personnel manager, testified
that any employee, except a new, ineligible one, could
"take his vacation whenever he wants during the vaca-
tion year." In response to a query as to whether employ-
ees were required to work any particular number of days
a year in order to qualify under Respondent's vacation
format to their entire vacation for the calendar year,
Woodrow added that "an employee can take his vacation
at any time during the year subject to the approval of
the supervisor as he desires."
That Respondent's vacation policy in 1977 sanctioned
the vesting of annual vacation benefits at the outset of
the year is further buttressed by Woodrow's admission
that, during 1977, employees who had quit their employ-
ment, who he retired, who were on medical leave or dis-
ability, or who had died, received all of their vacation
entitlement if they had worked at any time during that
year.9 Indeed, Woodrow also conceded that, with re-
spect to employees who were in layoff status during the
period in question, they were given the option either of
retaining their year's entitlement to vacation pending
recall or utilizing those benefits immediately.
In light of the foregoing, I find that Respondent main-
tained a vacation policy in 1977 under which regular em-
ployees who were on the payroll at the beginning of that
year were sufficiently tenured at that time to entitle them
to vacation benefits for the entire year. I further find
' Id at 34
" Respondeni's written vacation policy for 1977 specifically provided
that "an enployee who voluntarily quits during the year will he paid for
unused vacation," Woodrow testified that Respondent had never made
any attempt to recoup vacation benefits from employees who had quit
their employment prior to the end of the calendar year.
1196
C. F. MARTIN & CO., INC.
that, pursuant to this policy, the strikers here involved
had a vested right to their entire year's vacation when
they commenced their work stoppage on September 14,
1977.10
o
With regard to the General Counsel's assertion that
Respondent's conduct in withholding portions of the ac-
crued vacation pay of the strikers was "inherently de-
structive" of important employee rights and violative of
Section 8(a)(3) of the Act, and therefore no antiunion
motivation need be shown, there is no specific evidence
spread upon this record which is demonstrative of any
intent by Respondent to discriminate against them be-
cause of their engagement in the work stoppage." t Con-
sequently, I perceive no basis for finding that Respon-
dent violated Section 8(a)(3) by denying strikers all of
the vacation benefits to which they were otherwise enti-
tled for the vacation year ending December 31, 1977.
However, while the record fails to establish that the
denial of accrued vacation pay was keyed uniquely and
purposely to their engagement in the protected, concert-
ed activity of a lawful, economic work stoppage, the
strikers were nonetheless denied this benefit as a conse-
quence of their having taken part in that job action. As
the record establishes, and I have heretofore found, the
striking employees had acquired a vested interest in their
vacation benefits at the outset of 1977 which, but for the
strike would have been paid to them in January 1978.
To justify its withholding of vacation pay, Respondent
relies upon a claim of legitimate and substantial business
considerations. In this connection, Personnel Manager
Woodrow recounted that the unit personnel normally
took their vacations during the months of July, August,
November, and December. In 1975, Respondent paid
those employees approximately $7,000 for unused leave,
and that figure approximated $8,000 in 1976. After pro-
rating the accrued vacation pay of the strikers for 1977,
Respondent paid out approximately $16,000 to them in
1978 as unused vacation benefits. According to Respon-
dent's calculations, this latter sum would have escalated
to slightly over $50,000 if it had accorded the affected
strikers all of their accrued vacation benefits without
proration due to their absence from work during the
strike.
After careful consideration, I am not persuaded that
Respondent's figures convincingly demonstrate that the
proration of benefits for the strikers for 1977 has been
adequately excused. On the record made, the strikers
were entitled to a full year's vacation when they hit the
bricks on September 14, 1977. While Respondent ostensi-
bly sought to insulate itself against some undisclosed eco-
nomic losses occasioned by the work stoppage by with-
holding the accrued benefits in January 1978, this defen-
sive effort lacks the support of logic. For, if the strikers
had taken all of their vacation days for the period from
September to December 1977, Respondent would have
lost their productive time while still paying them the
o1 Woodrow also testified that this was the first occasion on which Re-
spondent had ever prorated vacation entitlement for is employees.
l In this connection, I would note that the General Counsel does not
urge that Respondent's action in depriving strikers of their accrued aca-
tion pay converted the Union's work stoppage into an unfair lahbor prac-
tice strike.
same vacation sums which it denied to them at the turn
of the year. Moreover, when the employees embarked
upon their work stoppage, Respondent actually saved
money by failing to pay them the wages which they nor-
mally would have earned during that period. Further-
more, Respondent seemingly made no effort to deny ac-
crued vacation pay to employees on layoff status be-
tween September 14 and December 31, 1977, or who
were on medical leave or disability.
Nor does the treatment which Respondent claims it
accorded to the nonunit, salaried employees help its
cause in this connection. Personnel Manager Woodrow
testified that the long-established vacation policy was
equally applicable to these employees as well. With the
advent of the strike, the salaried personnel were called
upon to perform the work which had been done by the
strikers. According to Woodrow, in August 1977, prior
to the work stoppage, Respondent unaccountably decid-
ed "to reduce severely the amount of unused vacation
that would be left in the non-bargaining unit employees',
year." A memorandum was thereupon posted in the
plant setting forth some unspecified limit to which Re-
spondent would obligate itself toward payment for
unused leave for 1977. A few months later, Respondent
posted another notice requesting that the salaried person-
nel take more vacation days as time off than set forth in
the earlier notice, if at all possible. Finally, Respondent
forced these nonunit employees to utilize vacation days
by closing the plant between Christmas and the New
Year in order to reduce their accrued vacation benefits.
In my opinion, while the foregoing action might have
operated to reduce in some vague amount the number of
vacation days which the salaried employees could claim
for 1977 in January 1978, this evidence hardly justifies
Respondent's proration of vacation benefits for the strik-
ers, thus automatically depriving them of all the benefits
which had accrued between September and December
1977.
In sum, I conclude that, although the adverse effect
upon the strikers caused by the withholding of the ac-
crued vacation pay for the period spanning from Septem-
ber 14 to December 31, 1977, was "comparatively
slight," Respondent nonetheless violated Section 8(a)(1)
of the Act by doing so inasmuch as it has failed to justify
the vacation forfeiture by the advancement of legitimate
and substantial business considerations. 12
As the parties stipulated that Respondent failed to
notify the Union or bargain with it concerning the alter-
ation of an established condition of employment to the
detriment of the unit employees, and, as the Union con-
stituted the exclusive, majority bargaining representative
of those employees in January 1978 when Respondent
adversely changed its vacation policy, I concur in the
General Counsel's contention that Respondent violated
Section 8(a)(5) of the statute by its unilateral action in
this regard. 1 However, as I have hereinafter found that
12 Knuth Bros, Inc.. 229 NLRB 1204 (1977); Thorwin Manufacturing
Company, 243 NI.RB 673 (1979)
' Custon Craft Manufacturing Company. a Division of US Industries.
Inc., 212 N.RB 255 (1974), Jimnmy-Richard Co.. Inc.. 210 NLRB 802
(1974)
1197
DECISIONS ()F NATIONAL LABOR RE.ATIONS H()ARD
dent's employees on and after May 25, 1978, and have
ordered Respondent to reimburse the affected strikers for
the lost vacation pay, I conclude that no useful purpose
would be served in fashioning a remedy for this derelic-
tion.
The General Counsel further argues that, inasmuch as
Respondent unlawfully withheld the accrued vacation
benefits from the strikers without prior notification to or
consultation with the Union, this misconduct so under-
mined the Union's collective strength and ability there-
after to pursue meaningful bargaining negotiations as to
warrant the extension of the Union's certification year
which ran its course on April 14, 1978. In essence, the
General Counsel seemingly advocates that the certifica-
tion year be extended well beyond May 25, 1978, the
date on which I have hereinafter found that the Union
lost its majority representative status through inanition
rather than statutory intrusion.
As chronicled above, I have found that Respondent's
conduct in prorating vacation pay had only a slight
impact upon the exercise of employees' protected, con-
certed activities, albeit an unlawful one. Moreover, there
is absolutely no evidence in this record which even re-
motely suggests that Respondent embarked upon this
course of conduct to "dillydally" the negotiations or
"subtly" erode the Union's majority strength, nor is
there anything in the General Counsel's complaint which
alleges such conduct as specifically violative of Section
8(a)(5) of the Act. In short, I am not persuaded that the
General Counsel has made out a convincing case on the
facts here presented for extending the Union's certifica-
tion year beyond April 14, 1978. 1 shall therefore deny
his request in this regard.
C. Respondent's Alleged Refusal To Bargain With the
Union on and After May 25, 1978
The evidence relating to this issue is virtually undis-
puted and I find the facts to be as follows:
Following the strike vote on September 14, 1977, and
after 17 previous bargaining sessions, the parties met on
six more occasions through April 5, 1978, on call of the
Federal mediator, without reaching a consensus on an
agreement. With the passage of time, some of the strikers
became disgruntled with the lack of progress being made
by the Union in negotiations and by the failure of their
bargaining agent to schedule regular meetings with its
members to discuss the status of those deliberations, de-
spite the fact that the Union's bylaws mandated the hold-
ing of monthly meetings. Indeed, since the strike vote
was taken on September 14, 1977, the Union had con-
ducted only one membership meeting between that date
and May 7, 1978, and this lone session, which transpired
in early October 1977, dealt solely with a discussion of
the cost of the Blue Cross and Blue Shield coverage
which the strikers were forced to shoulder since the
outset of the work stoppage.
In consequence of the Union's inaction, approximately
10 of the strikers evinced an early desire to abandon
union representation and to return to work. I find that, in
October 1977, Gerald Altemose, a unit employee who
had joined the strike at its inception, placed a call to the
Board's Regional Office in Philadelphia to inquire into
the necessary legal steps which would have to be under-
taken to accomplish this objective. Altemose was put in
touch with the Board's duty officer who advised that, in-
asmuch as Altemose had the support of only 10 strikers,
he should forestall his contemplated action until he had
obtained the support of a larger number. Altemose was
further advised that, in order to withdraw the authority
given to the Union to represent him and his cohorts, he
should submit a letter of resignation to the District
Office of the Union's International as well as to the
Union itself stating that he had resigned from the Union
and had forfeited all benefits which it had to offer.
At the end of November 1977, 1 find that Altemose
once again telephoned the Board's duty officer and re-
quested assistance in achieving his goal. On this occa-
sion, the Board agent counseled Altemose and the other
strikers who desired to return to work without union
representation that they could pursue one of three alter-
natives: () resign from the Union; (2) persuade Respon-
dent to employ them as salaried employees; or, (3) if Re-
spondent and the Union were parties to a bargaining
compact, resign but continue to offer financial support to
the Union. Altemose pressed the duty officer for the best
course to take in returning to his employment without
union representation, and the agent announced that he
and his fellow strikers should resign from the labor orga-
nization and specifically forfeit any and all benefits to
which they might be entitled.
Harold Weiss, a unit employee who had also joined
the strike on September 14, 1977, headed up another
group of strikers who sought to return to work because
of their dissatisfaction with the Union's failure to hold
meetings on a regular basis to apprise them of the pro-
gress of negotiations. This attempt at defection from the
Union's ranks was soon brought to the attention of
Union President Harold Miller. While serving on picket
duty in mid-November 1977, Weiss was confronted by
Miller and another union official and was accused of
trying to persuade the strikers to abandon the work stop-
page. During their encounter, Miller hinted at threats of
violence against Weiss for sponsoring the back-to-work
movement.
Alphonso Realo, Jr., another striker, also complained
to Union President Miller about the lack of membership
meetings. Realo brought the matter to Miller's attention
in October 1977, only to be told that a meeting might
result in a riot and Realo, himself, might be the target of
violence. Following this conversation, Realo's family re-
ceived anonymous, threatening telephone calls for a
period of 2 weeks thereafter.
Other strikers who had manifested a similar dissatisfac-
tion requested that Francis "Bench" Wunderly attempt
to obtain a membership meeting. In response thereto,
Wunderly sought out Union President Miller in Novem-
ber 1977 and, after broaching the matter with the union
official, received the response that Miller did not "think
it's necessary" to convene a meeting. Sometime there-
after, Wunderly brought the subject to the attention of
Harold Remaley, the Union's secretary, and was told
that such a conversation might lead to bloodshed. How-
ever, Wunderly persisted in his efforts and a ballot box
1198
C F. MARTIN & CO.. INC.
was placed at the site where the strikers received their
weekly strike pay. When the ballots were counted, only
35 strikers had voted for holding a union meeting. 14
During the foregoing time frame, Respondent's offi-
cials quickly learned of the strikers' disaffection with the
course of events which had transpired since the strike
commenced. Because Respondent was one of the oldest
and largest employers in the small metropolis of Naza-
reth, the relationships between the unit employees and
the managerial staff during the course of the work stop-
page were extremely close, largely due to family ties, the
proximity of neighbors, and the social events in which
both groups participated. i Thus, Plant Superintendent
Earl Remaley recounted that, prior to Christmas of 1977,
Harold Weiss informed Remaley of the incident noted
above regarding Union President Miller in mid-Novem-
ber 1977, and Respondent's Assistant Personnel Manager
Kenneth Murdock attested to a conversation which he
had had with Weiss in which the latter expressed his
chagrin over the complete lack of information which he
was receiving from the Union. Weiss testified and I find
that he also had a conversation in November 1977 with
Willard Mohn, Respondent's chief of security, in which
Weiss revealed that "I was talking with some of the men
on the line . . . trying to get a group of the boys . . . to
go in to work . . . and . . . [q]uite a few of men had
told me that they had voted for the union and were dis-
couraged, and wanted to go back in." Weiss further testi-
fied and I find that, on April 15, 1978, he encountered
John Dusinski, Respondent's production manager, at a
local sporting goods' store. In an ensuing conversation,
Weiss informed Dusinski that the former "was very dis-
satisfied with the way the union was treating us, that
they held no meetings after the strike had occurred," and
that Weiss felt that President Miller had breached the
Union's bylaws by doing so. Weiss added that "if there
was a way we could get in, I felt it's only a question of
time, we're going to find it, and we're going to go in to
work, and go back after our jobs that were in there."
During this colloquy, Weiss told Dusinski that employ-
ees Albert Getz, Charles Vogel, Roy Kessler, and Ed
Fry had previously contacted Weiss and expressed the
same sentiments.
In addition, employee Dwayne Smith informed Per-
sonnel Manager Woodrow of Wunderly's abortive at-
tempt to obtain a union meeting in November 1977.
Milton Hess, Sr., another striking employee, relayed to
several of Respondent's officials, including Chairman of
the Board Frank Martin whose house Hess frequently
visited, Plant Superintendent Earl Remaley, and Marcel-
"4 Wunderly's testimony is undenied and I find that, as each striker
was about to vote on this occasion, he was pulled aside by a union offi-
cial who spoke to the voter. Wunderly related that, when he proceeded
to cast his ballot, Union Secretary Harold Remaley called him aside and
warned that "you might have bloodshed" if a meeting was demanded
Another striker, Frances Smith, was similarly advised.
'" For example. Plant Superintendent Earl Remale) was the cousin of
unit employees Donald and I.ee Fritz: the brother of Paul Werkheiser
was an assistant supervisor; Conrad Bartholomew was the son of a fore-
man; James Trach was the son of unit employee Elwood Trach Harold
Hower, the quality control manager, was a bowler in several leagues in
the area in which unit employees were participants and also wras a neigh-
bor of unit employee Lee Fritz; and Assistant Personnel Manager Ken-
neth Murdock was a neighbor of employee Irving Hopper.
lus Trach, the assistant to Remaley, his disenchantment
with the Union's failure to communicate with the mem-
bership and disclose the status of the collective-bargain-
ing dialogue with Respondent. These sentiments were
also echoed by Hess' son, Milton, Jr., who expressed
them to Bruce Mariano, Respondent's marketing analyst,
and who also mentioned to Mariano that striking em-
ployees Daniel and Dave Singleton felt the same way.
Mariano testified and I find that he had received a simi-
lar report from striking employee Lon Werner.
Harold Hower, Respondent's quality control manager
for imported instruments, testimonially recounted that he
was active in many bowling leagues and frequently en-
gaged in conversations with several strikers who were
also active in this sport. During their games, Hower
heard comments from John Fries, Casey Fenstermaker,
Freddy Recker, Arlington Dietz, Myron Diefenderfer,
Dale Eckhart, Virgil Remaley, Walter Lambert, Derrick
Camps, Blaine Rodgers, Harry Stetler, Lon Werner, Paul
Werkheiser, and Dan Schmoyer that they had grown
tired of the Union because they had not been afforded
any meetings to discuss the state of negotiations with Re-
spondent. Similar expressions of dissatisfaction were con-
veyed to Personnel Manager Woodrow and his assistant,
Kenneth Murdock, by employee Alphonso Realo, Jr.,
and these officials were informed on March 1, 1978, by
employee Carey Laubach of the latter's desire to return
to work because of the Union's ineffectiveness. In addi-
tion, Murdock learned from James Trach that many em-
ployees who shared picket line duties with him were
upset with their collective-bargaining agent and were de-
sirous of returning to work. Irving Hopper, Murdock's
neighbor, related his deep concern to this official about
the lack of information from the Union regarding the
issues which separated the parties and his dissatisfaction
with union representation.
That Respondent's officials continued to gain knowl-
edge that the striking employees were bent upon eschew-
ing union representation and returning to work is further
demonstrated by the uncontradicted testimony of Pro-
duction Manager Dusinski concerning an angry colloquy
between Donald Fritz, a striking employee, and union of-
ficials, including President Harold Miller, which took
place at the last negotiating session held by the parties on
April 5, 1978. Fritz, who was present at the session as an
observer for the Union, questioned Miller about the
status of negotiations because of various newspaper ac-
counts which Fritz had read intimating that Respondent
desired to eliminate many employee benefits, and asked
when the official planned to hold a general membership
meeting to explain the situation. Miller responded by
flatly refusing to call such a meeting, whereupon Fritz
remarked that "we've been out of work for a long time
now and there are people who want to get back to work
I understand that they're going to get out of this
Union."
The record discloses and I find that, pursuant to an
operational plan devised at the outset of the strike, all in-
formation received by managerial personnel relative to
the work stoppage was funneled to Respondent's negoti-
ating committee, which consisted of Personnel Manager
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodrow, the so-called Strike General, Vice President
Hugh Bloom, Jr., and Production Manager Dusinski.
From reports fed to the committee by the end of April
1978, 1 find that this body developed a reasonable basis
for believing that a considerable number of the strikers
had become thoroughly disenchanted with the Union be-
cause of its failure or unwillingness to schedule member-
ship meetings and apprise its members of the progress of
the contract negotiations, and due to its general attitude
toward the work stoppage.
As resentment continued to grow among the strikers
over the Union's inactivity and silence, employee Francis
Wunderly undertook an examination of the Union's
bylaws in April 1978 and discovered that the member-
ship could force a general meeting if they obtained a
written petition signed by at least 10 percent of the mem-
bers requesting such a convocation. Due to his reluc-
tance to circulate a petition for this purpose in light of
his unsuccessful efforts in November 1977 to persuade
the Union's officials to hold a meeting, Wunderly sought
the assistance of Donald Fritz, a more senior employee.
In view of Fritz' angry confrontation with Union Presi-
dent Miller at the bargaining session held on April 5,
1978, it is little wonder that Fritz quickly agreed to un-
dertake the task and, with the aid of unit employee
Donald Lesher, they managed to obtain the necessary
signatures within a short period of time. Fritz then pre-
sented the signed petition to President Miller who sched-
uled a meeting for May 7, 1978, approximately 3 weeks
later.
The May 7 meeting, chaired by Miller, and attended
by other officers of the Union and its International as
well as approximately 170 members, was, by all ac-
counts, hardly a showcase of decorum. At the outset,
employee Arlington Dietz arose and moved for a vote to
decertify the Union but was unsuccessful in this endeav-
or. Harold Weiss then took the floor and made a motion
that the membership vote on whether to accept Respon-
dent's proposed contract which had been mailed to each
member of the bargaining unit. Weiss' motion was ig-
nored for over an hour by the chairman who, instead,
recognized Gerald Altemose. Altemose thereupon
moved that Respondent's proposals be examined seriatim
and that the union officials detail their position on each
item in dispute. As a result, some discussion ensued on
the contract proposals. However, they were rejected by
the union officers without, from the viewpoint of many
of the members, any meaningful explanation being af-
forded by the officers or any counterproposals being sug-
gested. During the session, the strikers posed a variety of
questions to the officials. Donald Fritz asked Tony Ca-
pella, an International representative, whether Respon-
dent could hire permanent replacements for the strikers
and what would happen if the strikers lost their jobs be-
cause of the replacements. Capella replied, "So what, go
out and get another one." This response, in Fritz' words,
"opened up a lot of people's eyes." Paul Werkheiser then
inquired about the timing of the strike and failed to re-
ceive an adequate answer.
At the conclusion of this discussion, President Miller
finally recognized Harold Weiss who again moved for a
vote on Respondent's contractual package and the
motion was seconded. Miller thereupon called for a
show of hands. This voting procedure was bitterly at-
tacked by several members who demanded a vote by
secret ballot. Ignoring these demands, Miller ordered a
voice vote and, despite the din in the room, Miller inter-
preted the vocal response as a rejection of Weiss' motion
as well as Respondent's contract proposals. When the
meeting ended, many members in attendance were se-
verely disturbed at the results which they interpreted as
portending an indefinite prolongation of the work stop-
page because of the intransigence of the Union and its re-
fusal to abide by democratic processes in its dealings
with the constituent members. This feeling was best ex-
pressed by Donald Fritz who lamented that "I talked to
a lot of other people. Total disgust. I went home and my
wife was burned up. She said didn't you talk up? I said,
yes, I did talk up, but it didn't do no good. Well, you
see, in the beginning they had said this Union was
unique. You would be part of it. It's not like any other
union there was. You would be part of it. You would
run the show . . . And it got towards the end that when
you left that meeting for the first time in your life, you
seen there was no way going back unless they told you.
I was dumbfounded. I really was."
Respondent was not only apprised in advance that a
union meeting had been scheduled for May 7, 1978, but
it also received reports of what exactly had transpired at
that session. Dwayne Smith informed an employee who
had worked in Personnel Manager Woodrow's office
that a meeting was scheduled for May 7, and he ex-
pressed the hope that the strike might come to an end
and that negotiations between the parties might be re-
sumed. On another occasion, Respondent's marketing an-
alyst, Bruce Mariano, spoke to Francis Wunderly while
the latter was assisting his son in moving his residence in
April 1978. In their conversation, Wunderly revealed
that he was dissatisfied with the lack of union meetings
and displayed a signed petition which he had sponsored
to promote this goal. Following the meeting, Harold
Weiss told Plant Superintendent Remaley what had oc-
curred at the session and related that, as a result, many
of the strikers came to believe that they had lost their
voice in union affairs. In addition, employee Arlington
Dietz spoke to Assistant Supervisor Tom Molschem and
Greg Unger, a managerial employee, about the meeting
and Unger conveyed the information to Remaley. This
intelligence was in turn transmitted to Personnel Man-
ager Woodrow, in consequence of which Woodrow and
several other management representatives remained in
the plant on the eve of the May 7 meeting in anticipation
of the strikers' return to work on the following day.
Upon their failure to receive what they considered a
fair vote on whether to accept Respondent's contract
offer, a group of 21 employees jointly decided to return
to work and resign from the Union. To effectuate this
decision, I find that Gerald Altemose telephoned the
Board's Regional Office for a third time on or about
May 14, 1978, to verify the information which he had
previously received relative to returning to their jobs
without union representation. As a result of his call, Al-
temose received the precise language from the Board
1200
C. F. MARTIN & CO.. INC
agent to effectuate a withdrawal from the Union. and he
was advised to send copies of the resignation both to the
Union and its International by registered mail. Utilizing
this information, the group drafted resignations from the
Union on May 17, 1978, and one of them, Jeffrey Duel-
ley, mailed all of their signed copies to the Union and
the International on that date. These documents recited:
Letter of Resignation
I, , , upon receipt of this letter to
President of Local 552 of the International United
Cement, Lime and Gypsum Workers Union, do
hereby resign as a member of the International
United Cement, Lime and Gypsum Workers Union,
Local 552, and forfeit all rights and privileges so
given by said Union.
Sincerely,
Of these 21 employees, 16 took the stand and testified
without equivocation that, when they executed the resig-
nation forms, they no longer desired that the Union rep-
resent them. 6
When the 21 strikers reported for work on May 18,
1978, they advised Personnel Manager Woodrow that all
had resigned from the Union. One of them, Barry
Rinker, showed Woodrow his copy of the resignation
and Woodrow read it. Harold Weiss then explained to
Woodrow that the wording on the document had been
given to the employees by the Board's Regional Office
and that that Agency had assured them that the language
was legally sufficient to enable the signatories to remove
themselves from union representation and return to
work. Although these returning strikers sought to discuss
the work stoppage and the problems which they had ex-
perienced with their collective-bargaining agent, Wood-
row, as well as the remainder of Respondent's manageri-
al staff, heeded counsel's advice and refused to engage in
any discourse regarding this topic with the returnees. '
On May 19 and 20, 1980, Woodrow received copies of
the resignations from all of these employees. When
called to the stand, the witnesses testified that their pur-
pose in signing the resignation forms and conveying
them to the Union was to rid themselves of union repre-
sentation.
On May 18, Irving Hopper executed a resignation
form and mailed it to the Union on that date. He re-
turned to work on May 19. Hopper presented a copy of
the document to Woodrow on either May 21 or 22. Ac-
Is These 16 were Gerald Altemose, William Buss, Arlington Dietz,
Jeffrey Duelley, Dale Eckhart, Milton Hess, Jr, Walter L.ambert. Rick
Metz, John Morro, Alphonso Realo, Barry Rinker. Daniel Singleton,
David Singleton, Dwayne Smith, Harold Weiss, and James Trach, Sr
The other five employees in the group were Charles Chumas, William
Ruch, William Rundle, Barry Sandi, and Lon Werner. ho were not
called as witnesses in this proceeding
At the hearing. the General Counsel disclaimed any coniention that
these or any other resignations from the Union were oliciled by Respon-
dent
17 The General Counsel neither alleges nor contends that Rcspondent
violated Sec (a)(l) f the Act h an> conduct in which it indulged
when the strikers returned to ss ork or while the) cre ngaged in the
work stoppage
cording to the employee, he took this action in order to
divest himself of union representation.
The following day. May 20, three more strikers desert-
ed the Union's ranks and returned to their former jobs
after having previously executed and mailed resignations
to the Union and provided them to Respondent. One of
these, Paul Werkheiser, spoke to Woodrow on the date
of his return. In their conversation, Werkheiser com-
mented that "I was thoroughly disgusted with it, and re-
signed, and I don't want to have nothing to do with the
[the Union] no more, and there would probably be other
people coming." In his testimony, Werkheiser related
that "I did not want them to represent me any more, be-
cause they did nothing for me, absolutely nothing for 8-
1/2 months. They wouldn't give us no meetings. We had
to find a way to force them into having the meeting. I
lost almost $10,000 in wages. I had to pay my own Blue
Cross and Blue Shield of $72.01 a month, and you can't
have two kids going to school with that." Daniel
Schmoyer, who also returned to work on May 20, re-
counted on the stand that he had transmitted a signed
resignation to the Union on May 17 because he no
longer desired its representation. The third returnee,
Fred Christman, reported for duty on May 20 and in-
formed Personnel Manager Woodrow that he intended
to withdraw from the Union. On May 22, Christman
submitted his formal resignation to that organization. He
testified that he had taken this action in order to remove
the Union as his bargaining representative.
No strikers returned to work on May 21 because it
was a Sunday and the plant was closed. However, an
emergency meeting of the Union was hastily scheduled
for that day. According to Donald Fritz, he had re-
ceived a call at home from a fellow striker on May 18
who reported that some of the unit employees had
crossed the picket line that day. Fritz immediately jour-
neyed to the plant and, when he arrived, found out that
a union official, who was no longer on the scene, had in-
formed the pickets that several strikers had mailed resig-
nations to the Union and returned to work. While at the
picket line, Fritz learned about the resignation forms
which were being utilized to withdraw from the Union
and the procedures for accomplishing that end. Francis
Wunderly, who was present on the line on May 18, con-
vinced Union Official Fischl to schedule a meeting in an
attempt to stem the tide of defectors, and such a session
was held on May 21.
When the meeting opened, President Miller was asked
by Donald Fritz whether the strikers who had already
returned to work would be charged with a $100 fine
which the Union announced prior to the work stoppage
that it would impose upon "scabs," and the union leader
announced for the first time that there was "no way" to
exact this sum because the "scabs" were no longer union
members. Fritz and other strikers thereupon beseeched
Miller and the Union International Representative
Marvin Wright to put Respondent's proposed contract
up for a vote before the assembled membership because,
with the return to work of several strikers, the handwrit-
ing was on the wall as far as the work stoppage was con-
cerned. Both officials replied that this action could not
1201
DECISIONS OF NATIONAL I.ABOR RELATI()NS tOARID
be taken for undisclosed reasons, but they promised to
put the question to the International for advice on the
following day, May 22. '8
On May 22, seven more strikers returned to work after
having previously tendered their resignations to the
Union. One of these returnees, Donald Lesher, testified
and I find that he was accompanied to work early that
morning by Milton Hess, Sr., Blaine Rodgers, and James
Miller and they were greeted by Respondent's Represen-
tatives Woodrow, Dusinski, and Earl Remaley. Before
receiving their work assignments, and in Lesher's words,
"We told them . . . that we were glad that we were out
of the Union. We were glad that we were no longer af-
filiated with such an organization. We openly told them
that we were totally disgusted with the events that led
up to our resignations." In midmorning, David Anthony,
Albert Getz, and Earl Shook returned to their jobs after
submitting their resignations to the Union. On the same
day, Gerald Altemose, who had abandoned the strike on
May 18, informed Production Manager Dusinski that the
former had been instrumental in contacting the Board's
Regional Office and obtaining the language which ap-
peared on the resignation forms and which the returnees
had submitted to the Union and Respondent. Altemose
explained that he had asked that Agency for advice as to
how to rid themselves of union representation and that
the document precisely reflected the information which
he had received.
Not having obtained any response on May 22 from the
International regarding a vote on Respondent's contract
package, Francis Wunderly, who was pulling picket duty
on that day, urged the pickets to proceed to their homes
and telephone their counterparts to inform them that
Wunderly was scheduling a meeting for the morning of
May 23 at a local park. When the session convened,
Wunderly informed the 70 attendants that no word had
been received from the International respecting a vote
on Respondent's proposals. Thereupon, resignation forms
were handed out to the assemblage with instructions to
delay signing and submitting them to the Union until
May 24 out of respect for the union officials, and the
strikers concurred. Meanwhile, on the morning of May
23, 38 more strikers abandoned the work stoppage and
returned to the plant after submitting their resignations
to the Union. Each of these employees who testified in
this proceeding averred without hesitation that, by ex-
ecuting these forms, they had unequivocally intended to
abandon union representation. One of the returnees,
Donald Fritz, informed Woodrow of the Union's May 21
meeting and of its results. Fritz also told Woodrow that
"practically everybody" would abandon the work stop-
page and return to duty the next day, a prediction which
was repeated by the other returnees. This forecast was
fortified on the afternoon of May 23 when Woodrow
and his assistant, Murdock, observed a large number of
' Lee Fritz, Donald's brother, also attended the May 21 meeting. Fol-
lowing that session, he had occasion to speak to his neighbor. Harold
Hower, Respondent's quality control manager, and Plant Superintendent
Earl Remaley, who 'was also Lee's cousin. During their conversation,
Lee filled the supervisors in on what had transpired at the meeting and
stated that he and other strikers intended to return to work because they
did not feel they needed union representation in light of the Union's inac-
tion and ineffectiveness
the remaining strikers on the picket line signing resigna-
tion forms.
While Woodrow, Murdock, and Dusinski were having
lunch on May 23, they received a telephone call from
Respondent's counsel who reported that the Federal me-
diator had relayed a request from the Union to hold a
bargaining session prior to the one regularly scheduled
for June 9. Woodrow informed counsel that 38 strikers
had returned to work that morning and repeated the
comments which he had received from Donald Fritz re-
garding the imminent return of the balance of the strik-
ers. Woodrow added that he had noticed a large number
of additional strikers signing resignation forms on the
picket line. Armed with this intelligence, Woodrow
opined that he had serious doubts that the Union still
represented a majority of the employees in the unit. Re-
spondent Vice President Hugh Bloom, who had gone to
Philadelphia on business that day, telephoned Woodrow
late in the afternoon of May 23 and learned of Woo-
drow's conversation with counsel. Although Bloom also
had doubts about the Union's majority status in light of
the fact that approximately 70 employees had already re-
turned to work and others contemplated doing so, he
suggested that any decision regarding a proposed meet-
ing date with the Union be deferred until May 25 when
counsel would be available for consultation.
On the morning of May 24, 11 more strikers returned
to work, 10 of whom had signed and mailed their resig-
nations to the Union on or before May 23, while the
other posted his withdrawal on May 24. One of the re-
turnees, Dennis Fischl, testified and I find that, when he
reported to work, he and the other returnees stood in
line and handed their signed resignations to Plant Super-
intendent Remaley as they entered the plant. Five of
these men testified herein that, after executing the with-
drawal forms, they no longer desired union representa-
tion.
During the afternoon of May 24, Francis Wunderly
and the other strikers continued to patrol on the picket
line, although many of them had previously signed resig-
nations, awaiting news from the International regarding
the acceptance of Respondent's contract proposals.
When Wunderly and the strikers learned from the union
officials at the line that they had nothing to report from
the International, Wunderly delivered the ultimatum
that, unless they managed to bring back some news
within an hour, the strikers would take affirmative
action. When the union officials failed to receive a re-
sponse from the International within the time limit set,
Wunderly announced that he would wait no longer and
that he would be returning to work on the morning of
May 25. Following this colloquy, Wunderly and several
other of his cohorts signed resignation forms and mailed
them to the Union.
On the morning of May 25, 33 additional unit members
crossed the picket line and sought to return to work.
With the exception of employees James Black and Larry
Fehnel, all of these employees testimonially reported that
they had brought a copy of their resignations with them
and exhibited them to various members of management's
staff. Moreover, all of these returnees who testified
1202
C. F. MARTIN & CO., INC.
herein disclosed that they had signed the resignation
forms with the firm understanding that they were aban-
doning their collective representation by the Union.
Possessed of 112 signed resignations and the return of
IIl of the strikers on May 25,1 9 Respondent's negotiat-
ing team consisting of Woodrow, Bloom, and Dusinski
decided that their earlier doubts about the Union's ma-
jority status were justified and they informed their coun-
sel to advise the Federal mediator that Respondent
would bargain with the Union no longer. Sometime
during the week of May 28, the Union dispatched a tele-
gram to Respondent demanding a bargaining session, a
demand which the latter rejected. On June 2, the Union
called off its strike.
At the hearing, the General Counsel conceded that, as
of May 25, a majority of the unit employees had resigned
from the Union.
The underlying legal principles applicable to situations
where an employer seeks to withdraw recognition from
an established bargaining representative were summa-
rized by the Board in Terrell Machine Company,2 0 wher-
ein it stated:
It is well settled that a certified union, upon expira-
tion of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues. ' This presumption is
designed to promote stability in collective-bargain-
ing relationships, without impairing the free choice
of employees.2 Accordingly, once the presumption
is shown to be operative, a prima facie case is estab-
lished that an employer is obligated to bargain and
that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer af-
firmatively establishes either (1) that at the time of
the refusal the union in fact no longer enjoyed ma-
jority representative status;3 Nor (2) that the em-
ployer's refusal was predicated on a good-faith and
reasonably grounded doubt of the union's continued
majority status. As to the second of these, i.e.,
"good faith doubt," two prerequisites for sustaining
the defense are that the asserted doubt must be
based on objective considerations4 and it must not
have been advanced for the purpose of gaining time
in which to undermine the union." This second
point means, in effect, the assertion of doubt must
be raised "in a context free of unfair labor prac-
tices." See Nu-Southern Dyeing & Finishing, Inc.,
179 NLRB 573, fn. 1 (1969), enfd. in part 444 F.2d
II (C.A. 4, 1971).
Celanese Corporation of America, 95 NLRB 664. 671 672
2 Id.
a "Majority representative status" means that a majority of em-
ployees in the unit wish to have the union as their reprcsentaive
for collective bargaining Id
I See Layirom Manufacturing Company, 151 NlRB 1482. 1484.
enforcement denied oin other grounds (sufficiently of evidence) 359
" Between three and five addiio;lal employees returned lo %sork oni
May 25 but s ere immediately) laid off because no jobs ecre aailable for
them
2n 173 NRB 1480. 1480-81 (1969). ecnfd 427 1 2d 1088 (4th Cir
1970)
1 2d 799 (C A 5, I966), Un:lth'd .irruil ('rportlon, 68 Nl RH
480) ( I )X)..N 1 R Gu ( lloyll Ii ,hl (olpanv. 162 t 2d 588
(C A 5. 1966h, enfg 147 NI.RH 977 And cr lIdl S1,ln (l;psum
(', o.pnor'. 157 Nl.RH 652
: ( & C Plvri,id Corporation, 163 NLRB 1(22: Raflv Caw and
(tXo/r. /1nc. 172 NLRI 1127
The General Counsel argues that Respondent has
failed to overcome his prima facie case that the Union
continued to maintain its majority representative status
following the expiration of the certification year. In sup-
port of this advocative stance, the General Counsel as-
serts that the resignation forms which the returning strik-
ers submitted to Respondent were not probative of their
desire to reject union representation; that their abandon-
ment of the strike was consistent with their knowledge
that no union fines would be imposed upon them rather
than proof that they no longer wished to be represented
by the Union; and that their return to work was motivat-
ed by a penchant for receiving a paycheck rather than a
raincheck on representative presence. In short, the Gen-
eral Counsel contends that Respondent has failed affir-
matively to establish either that the Union in fact no
longer represented a majority of the unit employees on
May 25, 1978, or that Respondent entertained a good-
faith and reasonably grounded doubt as to the Union's
continued majority status. On my view of the evidence
spread upon this record, I find the General Counsel's al-
ternative argument in this regard totally lacking in merit.
As the record reveals and I have heretofore found,
some of the strikers became concerned as early as Octo-
ber 1977 about the status of negotiations between the
parties and the lack of communication with their elected
representative when Gerald Altemose telephoned the
Board's Regional Office to seek advice as to how to
remove the Union as their bargaining agent. Altemose
repeated this effort in November 1977 and, concurrently,
Harold Weiss attempted to persuade Union President
Harold Miller to conduct a union meeting to bring the
members up to date on negotiations but was informed by
union officials that violence might be visited upon him if
he persisted in sponsoring a back-to-work movement. In
addition, Francis Wunderly importuned Miller in No-
vember 1977 to convene a union meeting for a discussion
of the progress of the bargaining colloquy but was
turned down with the warning that bloodshed might
result if a session was scheduled. Throughout the spring
of 1978, the strikers continued to express their dissatisfac-
tion over the collective representation which they were
receiving from the Union and, in April 1978, Wunderly
forced Miller to conduct a membership meeting on May
7. Following that session, many of the strikers became
totally disillusioned with the Union and, once again, unit
employee Altemose telephoned the Board's Regional
Office where he received the precise text for a resigna-
tion form which the Board agent assured could be uti-
lized by the strikers to rid themselves of union represen-
tation and to return to work. Thereafter, with the draft-
ing and distribution of the forms, the strikers commenced
to sign the resignations, mail them to the Union, and pre-
sent them to Respondent upon their return to work. On
May 21, the Union was offered an opportunity by a
number of unit employees who were still on strike to
1203
DI)'ECISI()NS ()O NAII()NAI I ABl)R R A I I)NS B()ARI)
preserve its integrity and representative status by allow-
ing a vote at an emergency meeting on w hether to
accept Respondent's contract proposals. The Union offi-
cials flatly refused to pursue this course until it had been
sanctioned by its International and, when that authoriza-
tion was not forthcoming, the strikers embarked upon a
mass exodus back to the plant. On May 25, when Re-
spondent challenged the Union's majority status, 111, or
a conceded majority of the employees in the unit, had re-
signed from the Union and returned to work.
The record further discloses and I have heretofore
found that, coincident with the commencement of the
strikers' dissatisfaction with its union representation in
October 1977, and continuing until May 25, 1978, Re-
spondent was constantly and lawfully kept aware of the
content and extent of that dissatisfaction, and learned
that Altemose had prepared resignation forms at the sug-
gestion of the Board's personnel with the assurance that,
when signed by the unit employees and dispatched to the
Union, these documents would effectively remove the
Union as their collective-bargaining agent and facilitate
their return to employment. In addition, Respondent's of-
ficials were informed by returning strikers of their desire
to rid themselves of union representation and that this
was the purport of the signed resignations which they
had submitted to the officials upon their abandonment of
the strike. Moreover, and as heretofore found, the Gen-
eral Counsel conceded at the hearing that, on May 25,
1978, the date of Respondent's refusal to bargain, a ma-
jority of the unit employees had resigned from the
Union.
While I concur in the General Counsel's thesis that an
employee's return to work during a strike2 ' or his resig-
nation from membership in a labor organization in the
course of a work stoppage 22 may not, standing alone,
provide his employer with a reasonable basis for presum-
ing that he has repudiated his bargaining representative, I
deem it an affront to reason to suggest that this is the
conclusion to be drawn from the totality of the evidence
adduced herein. In my opinion, an amalgam of factors
such as the wording of the resignations, when considered
in the context of the known source and purport of the
language; the purpose for their execution and dissemina-
tion as expressed by the strikers to Respondent; and Re-
spondent's complete awareness of the striker's dissatisfac-
tion with their bargaining agent all conclusively establish
that, when Respondent refused to negotiate further with
the Union on and after May 25, 1978, that refusal was
predicated "on a good-faith and reasonably grounded
doubt of the union's continued majority status." In
reaching this conclusion, I am satisfied on the record
made that Respondent's decision in this regard was
founded entirely upon objective considerations.
I am also convinced that Respondent's good-faith
doubt was raised in a context sufficiently free of unfair
labor practices. As heretofore found, Respondent did
violate Section 8(a)(l) of the Act when, in January 1978,
21 A4/lild Industrial Workiers. 4L-C10 Local Union No. 289 [Cavalier
Corporation] v. N'L.R.B., 476 F.2d 868, 881 (D.C Cir 1973), Idaho Fresh
Pak-lne, 215 NLRB 676 (1974)
2Z See Pioneer Inn AIsociTaei d/b/a Pioneer Inn and Pioneer Inn Cavino.
228 NLRB 1263., 1266 (1977).
it withheld vacation benefits from a number of strikers.
However, I have found that Respondent did so not be-
cause the unit employees had engaged in the work stop-
page but as a consequence of their engagement in such
activity. In this connection, the Board has ruled that the
commission of an unfair labor practice does not necessar-
ily prohibit an employer from challenging the majority
status of a labor entity and that the nature of the conduct
must be assayed to determine whether it would likely
cause a departure from the Union's ranks. 2 That Re-
spondent's conduct in this regard was not aimed at caus-
ing disaffection from the Union is notably exemplified by
the testimony of all former strikers who were summoned
to the stand in this proceeding. In their testimony, not a
single one of them attributed Respondent's tactic in with-
holding vacation pay as a cause of their loss of allegiance
to the Union. Rather, each explained their defection on
the grounds that their bargaining agent had failed and re-
fused to communicate with the members concerning the
progress of negotiations and to follow democratic pro-
cesses outlined in its bylaws in attending to their collec-
tive affairs. Moreover, each of these witnesses unequivo-
cally averred that the loss of their accrued vacation
benefits in January 1978 had absolutely no impact upon
their decision to return to work in May 1978.
Nor am I convinced that the General Counsel has sus-
tained his claim that the strikers abandoned their work
stoppage solely because they learned that they were free
from the imposition of a $100 fine rather than because
they no longer desired union representation. As I have
heretofore found, the unit employees first learned from
the Union on May 21 that it was powerless to fine them
if they crossed the picket line. However, it is undisputed
that, prior to that date, 25 strikers had already crossed
the line without having received such assurances. If the
lifting of the fine proves anything, it simply demonstrates
that the remaining strikers believed that a financial obsta-
cle to their abandonment of the Union had been re-
moved.
Finally, the General Counsel urges that the strikers'
desire to return to remunerative employment rather than
to reject union representation was the motivating force
which caused them to cross the picket line. However,
this argument proves too much. Throughout the work
stoppage, the unit employees constantly sought informa-
tion from the Union concerning the status of negotiations
because their sole income consisted of a $50 weekly
strike benefit. Their concern over this status was neces-
sarily predicated upon their desire to learn how far the
parties were apart and what the prospects for a settlment
and gainful employment might be. When the Union
steadfastly and cavalierly refused to commune with its
members about these topics, an ingredient in their deci-
sion to return to work necessarily involved their loss of
pay. However, this loss was a product of the Union's in-
transigence and ineffectiveness, the very factors which
motivated the strikers to foresake union representation. "4
2'1 Colonial Manor Convaleceni & Nurving Center, 188 NLRB 861
(1971)
4 See Colonial Manor Convalescent & Nursing Center, supro at 861,
862
1204
C. F. MARTIN & CO., INC.
Accordingly, I find that, on May 25, 1978, the Union
lost the support of at least 11 of its membership, a con-
ceded majority of the total. I therefore find that, when
Respondent refused to bargain with that labor organiza-
tion on and after that date, it harbored a good-faith and
reasonably grounded doubt of the Union's majority
status which was based on objective considerations and
which was not advanced in order to gain time to under-
mine that labor entity.2 5 In so doing, I conclude that Re-
spondent did not violate Section 8(a)(5) of the Act, and I
shall dismiss this allegation from the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close and in-
timate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
v. THE REMEDY
Having found that Respondent discriminatorily with-
held accrued vacation benefits from certain employees
who engaged in a strike during the calendar year 1977, 1
shall order that Respondent be required to pay to each
such employee the vacation benefits so withheld. The
amount of the vacation pay due to those employees shall
be paid with interest thereon as provided in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977).
Upon the basis of the foregoing findings of fact and
conclusions, and the entire record made in this proceed-
ing, I hereby make the following:
CONCI.USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the pur-
view of Section 2(5) of the Act.
3. By withholding accrued vacation benefits from its
striking employees, Respondent has engaged and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the ambit of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
or the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER:K2
The Respondent, C. F. Martin & Co., Inc., Nazareth,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
" The General Co unrel makes no conenlilon herein Ithal Replpondent
did nol hargain with he Union in good faith
'r In the event no eceptioln. are filed as pro ided hb Sec 102 4 of
the Rules and Regulaliion. of the Natioal I abor Relations ioaird. Ihe
1. Cease and desist from:
(a) Withholding accrued vacation benefits from, or, in
any other manner discriminating against, its employees in
regard to their hire or tenure of employment, or any
term or condition of employment, to encourage or dis-
courage membership in any labor organization.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I deem
is necessary to effectuate the policies of the Act:
(a) Pay to all affected strikers the accrued vacation
benefits withheld from them for the calendar year 1977,
in the manner set forth in the section of this Decision en-
titled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to determine the identity of the employ-
ees to whom accrued vacation pay is due as provided
herein, and to analyze the amounts due.
(c) Post at its plant in Nazareth, Pennsylvania, copies
of the attached notice marked "Appendix." 27 Copies of
said notice to be furnished by the Regional Director for
Region 4, after being duly signed by Respondent's autho-
rized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
I-r IS FURTIHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
findings. conclusions, and recommended Order herein shall, as provided
in Section I02.48 of the Rules and Regulations, he adopted hb the Board
and become Its findings, conclusions, and Order, and all objections there-
to shall he deemed aised for all purpose%
27 In the e ent that this Order is enforced hby a Judgment of a United
Sltatl Court of Appeals, the x ords in the ntice reading "Plo,ted hb
)rder of the National abor Relation Bioard" hall read "Posled PIurLu-
ant to a Judgmenlt of the Unitecd Stales Court of Appeals Enforcing an
Order of thie Naion,l.d Labor Relations tiocard
1205