Chesapeake Plywood, Inc.

National Labor Relations Board - Board Decisions

May 25, 1989

294 N.L.R.B. 201 (N.L.R.B. 1989)

CHESAPEAKE PLYWOOD
Chesapeake Plywood , Inc., a subsidiary of Chesa-
peake Corporation and International Wood-
workers of America-Region V. Cases 5-CA-
17436, 5-CA-17769, 5-CA-17823, 5-CA-
17931, and 5-CA-18143
May 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 10, 1988, Administrative Law
Judge Joel A. Harmatz issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief; the General Counsel filed cross-ex-
ceptions and a supporting brief; the Respondent
filed an answering brief to the General Counsel's
cross-exceptions; and the Charging Party filed an
answering brief to the exceptions filed by the Re-
spondent.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions2 only to the extent consistent with this
Decision and Order.
1. In accordance with the judge's decision we
find that the Respondent violated Section 8(a)(5)
and (1) of the Act by causing a deadlock in negoti-
ations on the basis of the Respondent's demands to
modify certain provisions in a court-approved EEO
settlement agreement that had been jointly execut-
ed with the Union on January 10, 1983, to resolve
a Title VII discrimination case. We also agree with
the judge that the reason the Respondent could not
lawfully insist, over the Union's objection, on
modifications of those provisions is that the Union
and the Respondent had agreed, in that same settle-
ment agreement, that the relevant terms would be
effective for a 5-year period, in the absence of
agreement by both parties to change them, and the
period had not yet expired at the time the Re-
spondent insisted on the modifications.
Although those provisions do not in themselves
constitute a full collective-bargaining agreement,
by agreement of the parties they nonetheless were
incorporated in the ensuing collective-bargaining
i The judge found at In 21 of his decision that the Board in Clear Pine
Mouldings, 268 NLRB 1044 (1984), repudiated the Thayer doctrine set out
in NLRB v Thayer Co, 213 F 2d 748 (1st Cir 1954) We note that the
remark made by the judge relates only to the plurality opinion In any
event, reliance on Thayer is unnecessary to our decision here
2 In adopting the judge's conclusion regarding the Respondent's with-
drawal of recognition because of the Union's loss of majority status, we
also rely on Hearst Corp, 281 NLRB 764 (1986)
201
agreement and constitute agreements on terms and
conditions of employment, i.e., mandatory subjects
of bargaining. Such agreements are subject to the
requirements of good-faith bargaining established in
Section 8(a)(5) and (d) of the Act. See, e.g., Geor-
gia Pacific Corp., 275 NLRB 67 (1985) (statutory
good-faith bargaining requirements applied to a
separate agreement on converting to a four-shift
operation). As the judge correctly recognized, the
Act's policy of minimizing industrial strife by en-
couraging stability in agreements on terms and con-
ditions of employment is undermined by a party's
making unilateral changes in such matters during a
period in which both parties have agreed that
changes can be made only by mutual agreement.
Thus, the Respondent could not lawfully condition
its agreement to a new collective-bargaining agree-
ment on modifications to the agreements reached
as part of the Title VII settlement.3
The heart of the Respondent's argument, howev-
er, is not disagreement with these principles, but
rather a contention that the parties affirmatively
agreed in the Title VII settlement agreement that
the provisions in question would be subject to the
normal processes of collective bargaining when the
existing collective-bargaining agreement expired,
including the process of unilateral implementation
after impasse. We agree with the judge that this
construction of the agreement is not well founded.
Specifically, the duration clause (sec. 20) *of the
EEO settlement agreement provides:
Unless an earlier date is provided elsewhere in
this Agreement, Sections 7 through 12 of the
Agreement shall cease to have any force or
effect upon expiration of five years from the
date of the Agreement. Prior to that time, the
terms of Sections 7, 8, 10, 11 and 12 can be
changed by agreement of the Company and the
Union. [Emphasis added.]
A change effected through unilateral implementa-
tion of one party's final proposal simply does not
constitute a change "by agreement of the Company
and the Union"; and the latter is the only means by
which section 20 permits modifications prior to the
expiration of the 5-year period.
In arguing its interpretation of section 20, the
Respondent also contends that it was erroneously
precluded by the judge from putting in evidence
on the parties' intent in negotiating that section.
We agree with the judge, however, that, even as-
3 While the Respondent could not lawfully insist on modifications in
the specified Title VII settlement agreement provisions before the 5 years
was up, it was of course permitted to propose such modifications to the
Union This is the only sense in which this case concerns insistence on a
"permissive" subject of bargaining
294 NLRB No. 5
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suming the language in question was ambiguous,
the evidence proffered by the Respondent-testi-
mony that was to have been given by an individual
who had not been involved in the negotiations for
the Title VII settlement agreement and that con-
cerned only its own (the Company's) intent in ne-
gotiating section 20-does not constitute the kind
of bargaining history evidence that may serve to
cast light on the meaning of ambiguous contract
language.
2. We also agree with the judge's conclusion
that, because the Respondent was guilty of an un-
lawful refusal to bargain, the strike that ensued was
an unfair labor practice strike from its inception.
The Respondent's argument that the strike was an
economic strike and that the EEO settlement
agreement was "seized upon by the Union as an
afterthought" to support its claim of an unfair labor
strike is unavailing. The Respondent's proposed
changes to the EEO settlement agreement were
clearly among the factors precluding the parties'
agreement on a new contract and precipitating the
strike.
Flora Copeland testified that she conducted a
union meeting on July 22, 1986. At that meeting
she read the Respondent's final proposal. She had
with her a copy of the 1982/1985 contract and a
copy of the EEO settlement agreement. She testi-
fied that there was a discussion concerning the set-
tlement agreement at that meeting and that she
thought the Respondent's proposal violated the
EEO settlement agreement. She said the employees
were very upset about this. We find that this testi-
mony supports the judge's finding that the EEO
dispute was a significant issue causing the strike
commencing July 23, 1985.4
' The September 18, 1985 bargaining session did not alter the nature of
the strike because, as the judge found, the Respondent's demands affect-
ing the EEO settlement agreement generally were not, as the Respondent
argues , withdrawn Those demands, even as modified, effectively under-
mined the EEO settlement agreement by supplanting existing seniority
criteria under art 7 of that agreement with an entirely distinct system of
preferences for advancement, transfer, and the filing of vacancies
The Respondent nevertheless contends that the October 4, 1985 letter
to it from Union Regional President Campbell (G C Exh 12A) proves
that the Respondent's September 18 proposal, even if it contained provi-
sions inconsistent with the EEO settlement agreement , was no longer a
factor contributing to the strike The Respondent claims that Campbell's
letter reiterating the Union's September 18 bargaining proposal is devoid
of reference to any matter "even arguably" covered by the settlement
agreement The Respondent is clearly mistaken That letter, inter alia,
refers to the Union's request that, in order to settle the strike, the Re-
spondent would have to withdraw its proposals regarding the Mainte-
nance Training Program, a significant part of the settlement agreement
In any event , assuming arguendo that the Respondent's interpretation of
Campbell's letter is correct, the lack of reference alluded to by the Re-
spondent does not mean that the Union and the strikers were no longer
concerned that the Respondent ' s demands conflicted with certain terms
of the settlement agreement, as noted above In the absence of an un-
equivocal statement manifesting the Union 's abandonment of its opposi-
tion to the Respondent ' s demands relating to the settlement , we are un-
willing to read into the Union's proposal of September 18, as repeated in
3. We find in agreement with the judge that the
Respondent violated Section 8(a)(3) and (1) of the
Act by denying reinstatement to the unfair labor
practice strikers following individual offers by cer-
tain strikers to return to work after November 4,
1985, and the Union's offer on behalf of all unrein-
stated strikers on December 29, 1985. The judge
also determined that the Respondent's unlawful
treatment of the strikers extended to the Respond-
ent's letter of May 22, 1986, which was addressed
to all unreinstated strikers, and the Respondent's
termination of those strikers who did not respond
to that letter. The letter advised its recipients that
they would be removed from the preferential
rehire list, which the Respondent had established
on November 4, 1985, if they failed to respond to
the letter's inquiries concerning their wishes to
remain on the list or not to return to work. The
judge found that the letter violated Section 8(a)(1)
because removal from the list "was tantamount to
discharge" and thus "the consequence of failure to
respond . . . was forfeiture of the rights held by
the strikers under Laidlaw Corporation, 171 NLRB
1366 (1968)." The judge further found that the ter-
mination of eight striking employees because they
failed to respond to the Respondent's May 22 letter
violated Section 8(a)(3) and (1). We affirm these
findings, but on slightly different grounds from
those of the judge.5
The strike was an unfair labor practice. strike
from its inception. Consequently, the Respondent
was not at liberty to threaten to terminate or termi-
nate any of its striking employees because they
failed to respond to the May 22 letter. As unfair
labor practice strikers, they could not lawfully be
discharged, or threatened with discharge or other
disciplinary action, other than for misconduct caus-
ing them to lose the protection of the Act. They
were entitled to reinstatement on making an uncon-
ditional offer to return to work and their reinstate-
ment rights were paramount over any replacements
hired for them during the strike. The Respondent,
Campbell's letter, what the Respondent claims for it In this regard we
note that Campbell testified that the Union's proposal was made as a last-
ditch effort to settle the strike and that the Respondent rejected it, thus
leaving the parties where they were at the time of the September 18
meeting We also note that the strike continued without interruption
through these events
s In finding that the employees removed from the preferential hiring
list were unlawfully terminated, the judge relied on Charleston Nursing
Center, 257 NLRB 554 (1981), and the cases cited in his decision at 19
The judge' s reliance on these cases is misplaced in the context of an
unfair labor practice strike Charleston Nursing Center (and each of the
other cases cited by the judge) involved an economic strike In economic
strikes, the rights of strikers can be affected by such matters as the hiring
of permanent replacements That eventuality, however, has no impact on
the rights of unfair labor practice strikers Therefore, to the extent the
judge treated the instant strikers as economic strikers, we disavow his
analysis
CHESAPEAKE PLYWOOD
therefore, could not diminish, circumscribe, or
affect their reinstatement rights through preferen-
tial hiring lists of the kind it established here or
subordinate those rights to the rights of employees
hired to replace them. Indeed, the replacements for
the strikers should have been discharged, if neces-
sary, to accommodate the reinstatement of the
unfair labor practice strikers when they sought re-
instatement. Given these circumstances, the Re-
spondent had no legitimate basis for conditioning
the strikers' continued right to reinstatement upon
their complying with the letter's requirement to re-
spond, or face removal from the preferential rehire
lists-which removal as the judge correctly found
and. the facts bear out "was tantamount to dis-
charge." Accordingly, we find that the termination
of strikers because they did not reply to the Re-
spondent's May 22 letter violated Section 8(a)(3)
and (1) of the Act. Similarly, we find the letter
itself violates Section 8(a)(1) because its forewarn-
ing the strikers that those who did not respond
would be removed from the preferential rehire list
constituted an unlawful threat of discharge. Clear-
ly, if removal from a preferential hiring list
amounts to unlawful discharge, a statement presag-
ing that event is coercive and illegal.
4. The judge found that no violation occurred
when the Respondent removed striking employees
Brittingham and Gailliard from the preferential
rehire list because, in response to the May 22, 1986
letter, each advised the Respondent that "I do not
wish to return to work at Chesapeake Plywood be-
cause I have found another job." The General
Counsel argues that these two employees should
have remained on the list because neither Brit-
tingham nor Gailliard had indicated he had found
"equivalent-comparable" employment or would not
have at that time accepted his prior position. Be-
cause the strike was an unfair labor practice strike
and the Respondent had earlier unlawfully denied
them reinstatement, along with other unfair labor
practice strikers, and because they had no obliga-
tion to respond to the letter to preserve their rein-
statement rights as it contained no offer of rein-
statement, we find that their right to reinstatement
is unaffected by their reply that they did not wish
to return to work. See Consolidated Freightways,
290 NLRB 771 (1988). Nevertheless, since in reply-
ing they expressed a clear choice not to return, we
6 In light of the strike's unfair labor practice character, the Respondent
cannot justify its actions by showing that those actions would be lawful
as to economic strikers The establishment and mamtainance of the pref-
erential rehire list, therefore , was unwarranted because it constituted an
integral part of the Respondent's treatment of the strikers In these cir-
cumstances, the list does not have any force or effect on the rights of the
strikers (we note that the complaint does not allege, nor does the General
Counsel contend, that the establishment of the list violated the Act)
203
shall not disturb the judge's finding that their re-
moval from the list pursuant to their response did
not separately violate the Act.
5. The General Counsel has alleged that the Re-
spondent resorted to disparate treatment in its dis-
charge decisions regarding employees whom it ac-
cused of strike misconduct. The judge rejected the
General Counsel's claim of disparate treatment and,
using a Clear Pine Moldings standard' for assessing
the severity of alleged strike misconduct, dismissed
the allegations that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging strik-
ers Larry Smullin , William Taylor, Donald Hem-
mian, Anthony Jenkins, and Ronald Hockett.8 The
General Counsel has excepted to these conclusions.
Although, for reasons stated below, we agree with
the judge 's conclusions in regard to Smullin,
Taylor, Hemmian, and Jenkins, we find merit in
the General Counsel's claim that Hockett's dis-
charge involved disparate treatment, in light of the
Respondent's failure to discharge nonstriker
Hayman, who the Respondent was aware had en-
gaged in misconduct of a more serious nature.9
Ronald Roberts, the Respondent 's general man-
ager of the wood products division, testified that
on an unspecified day during the strike, a Maryland
state trooper informed him of allegations by strik-
ers that a striker replacement, subsequently identi-
fied as Robert Hayman, had come through the
picket line with a shotgun. When Roberts ques-
tioned Hayman at the plant, Hayman admitted
having a shotgun in the trunk of his car. Hayman
further admitted having had a shotgun in the front
seat with him as he had crossed through the picket
line and having stated to those on the picket line
words to the effect of, "if you mess with me, you
have to answer to this." i ° When Roberts further
' 268 NLRB 1044 (1984)
8 No exceptions were filed to the judge's conclusion that employee
Jennis Collins had not engaged in strike misconduct that would warrant
discharge and that the Respondent violated Sec 8(a)(3) and (1) by dis-
charging him
e The General Counsel also argues that the Respondent's discharge of
certain strikers was disparate in light of its reinstatement of striker Cor-
nell Roberts, who also allegedly engaged in strike misconduct We find
no merit in this contention, noting that the General Counsel has failed to
cite any authority to support this position Because Roberts and the strik-
ers who were discharged by the Respondent were all similarly engaged
in strike activity, any variance in discipline within this group of employ-
ees would be insufficient as evidence to show that the disciplined em-
ployees were treated disparately because of their protected activity
10 There is no essential conflict between Robert's testimony or Hay-
man's account, as described above, and the testimony of strikers who wit-
nessed the Hayman incident Striking employee Collins, who was present
on the picket line, testified that Hayman had the shotgun with him in his
car when he stated to the strikers that if anybody wanted to do anything
that he had something for them The accounts, however, do diverge re-
garding whether Hayman pointed the shotgun at the pickets out of the
window of his car, or whether, as Hayman reported to Roberts, the shot-
gun had merely fallen across his lap as he turned through the picket line
Continued
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
questioned Hayman as to why he brought the gun
to the plant, Hayman indicated that he had been
receiving telephone threats at home and that he
brought the shotgun with him to protect his prop-
erty. For bringing a firearm on to the Respondent's
property, Hayman received only a written warning
informing him that if he did it again, more severe
discipline would occur. We also note that Roberts
did not investigate the incident beyond questioning
Hayman.
As stated in Aztec Bus Lines, 289 NLRB 1021
(1988):
Although an employer does not violate the
Act by refusing to reinstate strikers who have
engaged in serious misconduct, it is not free to
apply a double standard. It may not knowingly
tolerate behavior by nonstrikers or replace-
ments that is at least as serious as, or more se-
rious than, the conduct of strikers that the em-
ployer is relying on to deny strikers reinstate-
ment to jobs.
Accord: Garrett Railroad Car & Equipment v.
NLRB, 683 F.2d 731, 740 (3d Cir. 1982). We find
that the judge erred in disregarding this principle
by reasoning that the Respondent may treat em-
ployees who cross the picket line more leniently
solely because "they are furthering management's
legitimate objective of continuing operations in the
face of the strike." From the perspective of assess-
ing an employee's statutorily protected activity in
relation to a strike, his right to join the strike is not
inherently less deserving of protection than his
right to work in disregard of the strike, notwith-
standing the employer's separate interest in con-
tinuing production.' 1 Whatever distinctions may be
drawn between various incidents of alleged strike
misconduct must be derived from the objective cir-
cumstances of each case, not from whether the em-
ployee is supporting or opposing the employer's in-
terests.
Applying this analysis, we agree with the judge's
conclusion that the Respondent acted lawfully in
discharging employees Smullin, Taylor, Hemmian,
and Jenkins because their misconduct was more se-
rious than that of Hayman. As discussed fully by
the judge, Smullin engaged in misconduct that
threatened bodily harm to three management repre-
In assessing the relative severity of Hayman's threat to the pickets, how-
ever, we find it unnecessary to resolve this conflict because under either
account the exhibition of the shotgun was an essential aspect of the
threat
ii Cf Machinists Local Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB
1330 (1984), in which the Board held in reviewing a union's disciplinary
decisions during a strike that a union's institutional interest in preserving
strike solidarity cannot negate or otherwise overcome the statutory rights
of employees in strike settings Id at 1334
sentatives; Taylor threatened employees Golt and
Hughes with physical harm and actually threw hot
coffee on Golt; Hemmian threatened employee
Revels and provoked a fight with employee
Dennis; and Jenkins threatened an employee with
physical harm and carried out a threat to damage
that employee's car. In the case of Hemmian, we
find that the actual incidence of a physical assault
was more severe than a threat of physical harm.
With respect to all four of these discharged strik-
ers, we find that the Respondent has provided a le-
gitimate factual basis for drawing a distinction be-
tween the threats made by them and the threat
made by Hayman. First, the Respondent had ascer-
tained that Hayman's threat was prompted by un-
contradicted reports that he had received telephone
threats. Further, Hayman's threat to the strikers
was conditional on their taking some further action
against him that would provoke his response. In
short, Hayman's threat, although clearly an unwar-
ranted overreaction, was based on provocation and
may be viewed as an attempt at self-defense. In
contrast, the threats of physical harm made by
these four discharged strikers were neither pro-
voked nor conditioned on some further action
being taken against them personally. In those in-
stances, the threats were either directly made
against management officials or were made against
striker replacements for their exercise of the statu-
tory right to cross a picket line. Accordingly, with
respect to these four employees, we find the Gen-
eral Counsel has not established an adequate basis
for concluding that the Respondent has engaged in
disparate treatment.
We do agree with the General Counsel, howev-
er, that Hayman's misconduct was more serious
than the misconduct engaged in by employee
Hockett, and that the Respondent's decision to dis-
charge Hockett but not Hayman was evidence of
discrimination against Hockett based on his strike
activities. The facts leading up to Hockett's dis-
charge are set out in the judge's decision. The
judge found that Hockett was lawfully discharged
for having made an alleged threat in relation to
employee Herbert Mossett's house. 12 Briefly, the
judge found that Hockett spoke to Mossett at the
plant shortly before the strike was to begin. Ac-
cording to the credited testimony, Hockett, who
was then on his work shift, asked Mossett, who
was not then working but whose shift was to start
12 The judge rejected the Respondent's reliance on Hockett's alleged
involvement in a rock-throwing incident, because the judge found that
the Respondent acted without evidence reasonably leading to the conclu-
sion that Hockett was responsible for the rock throwing The judge
found it unnecessary to address whether Hockett was actually involved
in the incident
CHESAPEAKE PLYWOOD
after the strike was to commence, whether the
latter was returning to work. After Mossett failed
to reply, Hockett stated, "I feel sorry for your
damned house." Mossett thereupon left the plant.
Mossett reported this to management but noted in
his affidavit that no damage was done to his house
nor did he know of anyone else's house being dam-
aged by Hockett. A comparison between Hayman's
threat of physical violence, and Hockett's threat to
Mossett's house, including consideration of all the
surrounding circumstances, reveals that Hayman's
threat was the more serious. Although Hayman's
threat was conditional and in self-defense, Hock-
ett's threat was less than an explicit threat to
damage Mossett's house. Further Hayman's deci-
sion to exhibit the shotgun was a demonstration
that he had the specific ability to inflict grave
physical injury, whereas Hockett's ability or inten-
tions with respect to damaging Mossett's house are
much less demonstrable. Fundamental to the dis-
tinction, however, is that the threat of physical
harm is by its nature more serious than a threat to
property.13 Thus, we cannot allow the Respondent
implicitly to condone such conduct engaged in by
Hayman through a mere written warning, while al-
lowing the Respondent to discharge Hockett, who
was involved in less serious misconduct. We there-
fore conclude that the Respondent violated Section
8(a)(3) and (1) by disparate treatment.14
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 4.
"3. The Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Jennis Collins and
Ronald Hockett on January 15, 1986, under condi-
tions discouraging union membership.
"4. The Respondent violated Section 8(a)(3) and
(1) of the Act beginning about November 4, 1985,
by refusing to reinstate unfair labor practice strik-
ers who unconditionally, either individually or as a
group, offered to return to work."
AMENDED REMEDY
The remedy recommended by the judge is af-
firmed subject to the following modifications.
Having concluded that the Respondent discrimina-
torily discharged Ronald Hockett, the Respondent
shall offer him immediate reinstatement to his
former position or, if that no longer exists, to a
substantially equivalent position, discharging if nec-
'3 We note, however, that such a distinction may disappear if the
threat to property would lead to obvious physical endangerment, such as
a threatened assault on a moving vehicle
14 In view of the above, we find it unnecessary to consider whether
Hockett's discharge would have been lawful, absent evidence of disparate
treatment, solely under the test articulated in Clear Pine Mouldings, supra
205
essary anyone hired to replace him since his termi-
nation, and shall make him whole for any loss of
earnings and other benefits by reason of the dis-
crimination against him. Backpay shall be comput-
ed on a quarterly basis from the date of discharge
to the date of a bona fide offer of reinstatement,
less net interim earnings, as prescribed in F W.
Woolworth Co., 90 NLRB 289 (1950), with interest
computed in accord with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), subject to the pro-
viso that interest accruing prior to January 1, 1987,
shall be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977).
Having found that the strike was an unfair labor
practice strike and that the Respondent has denied
the strikers reinstatement, we find that the judge
incorrectly tolled the commencement of backpay
for strikers who requested reinstatement until a
date 5 days after their unconditional offer to
return. Where reinstatement has been denied, a 5-
day grace period has no useful purpose. Newport
News Shipbuilding & Dry Dock Co., 236 NLRB
1637, 1638 (1978). Accordingly, we shall modify
the judge's recommended remedy by requiring the
Respondent to make whole the unfair labor prac-
tice strikers from the date they unconditionally of-
fered to return to work.
ORDER
The National Labor Relations Board orders that
the Respondent, Chesapeake Plywood, Inc., a sub-
sidiary of Chesapeake Corporation, Pocomoke
City, Maryland, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with loss of their
reinstatement rights as unfair labor practice strikers
if they fail to respond to the Respondent's inquir-
ies.
(b) Discouraging its employees' activity on
behalf of a labor organization by discharging unfair
labor practice strikers because of their failure to re-
spond to its inquiries.
(c) Discouraging its employees' activity on
behalf of a labor organization by discharging strik-
ers, without an honest belief that they had engaged
in misconduct of a disqualifying nature, or where
they had not engaged in serious misconduct.
(d) Discouraging its employees' activity on
behalf of a labor organization by refusing to rein-
state unfair labor practice strikers on their uncondi-
tional offer to return to work.
(e) Refusing to bargain with the Union, the
International Woodworkers of America-Region V,
by withdrawing recognition from the Union as the
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
employed by Respondent at the plywood plant
located at Pocomoke City, Maryland, includ-
ing Stock Rustlers; but excluding all office
clerical employees, temporary employees,
watchmen , guards, leadmen and supervisors as
defined in the Act.
(f) Refusing to bargain in good faith with the
Union by negotiating to impasse on a nonmanda-
tory subject of collective bargaining.
(g) Refusing to bargain with the Union by refus-
ing to provide information requested by the Union
necessary to the performance of its duties as exclu-
sive representative of the Respondent's employees
in the appropriate unit.
(h) In any like or related manner interfering
with, restraining, or coercing, employees in the ex-
ercise of the rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Jennis Collins and Ronald Hockett im-
mediate reinstatement to their former positions or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination against
them in the manner prescribed in the amended
remedy section of this decision.
(b) Remove from their files, delete, and expunge
any reference to the unlawful termination of Jennis
Collins and Ronald Hockett, notifying them in
writing that this has been done and that this dis-
charge will not be used against them in the future.
(c) Offer immediate reinstatement to unreinstated
employees, who at the time of their unconditional
offer to return to work held the status of unfair
labor practice strikers, and make them whole for
any loss of earnings they may have suffered by
reason of the failure to reinstate them, in the
manner prescribed in the amended remedy section
of this decision.
(d) Recognize and, on request, bargain with the
Union as the exclusive collective-bargaining repre-
sentative of its employees in the appropriate unit
concerning their rates of pay, wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody the under-
standing in a signed agreement.
(e) Bargain in good faith by furnishing the Union
the information requested in its letter of April 3,
1986.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its Pocomoke City, Maryland plant
copies of the attached notice marked "Appen-
dix." 15 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
15 If this Order is enforced by a,judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten our employees with loss
of their reinstatement rights as unfair labor practice
strikers if they fail to respond to our inquiries.
WE WILL NOT discourage our employees' activi-
ties on behalf of a labor organization by discharg-
ing unfair labor practice strikers because of their
failure to respond to our inquiries.
CHESAPEAKE PLYWOOD
WE WILL NOT discourage our employees' activi-
ties on behalf of a labor organization by discharg-
ing strikers, absent an honest belief that they had
engaged in misconduct of a disqualifying nature, or
where they had not engaged in serious misconduct.
WE WILL NOT discourage our employees' activi-
ty on behalf of a labor organization by refusing to
grant reinstatement to unfair labor practice strikers
on their unconditional offer to return to work.
WE WILL NOT refuse to bargain with the Union,
the International Woodworkers of America-Region
V, by withdrawing recognition from it as the ex-
clusive representative of our employees in the fol-
lowing appropriate unit:
All production maintenance employees em-
ployed by the Employer at its plywood plant
located at Pocomoke City, Maryland, includ-
ing Stock Rustlers; but excluding all office
clerical employees, temporary employees,
watchmen, guards, leadmen and supervisors as
defined in the Act.
WE WILL NOT refuse to bargain with the Union
by refusing, on request, to provide information rel-
evant and necessary to the Union's performance of
its duty as collective-bargaining representative of
our employees.
WE WILL NOT refuse to bargain in good faith
with the Union by bargaining to impasse on a non-
mandatory subject of collective bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed by Section 7 of
the Act.
WE WILL recognize and bargain with the Union
as the exclusive bargaining representative of our
employees in the appropriate unit concerning their
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding
is reached, embody the understanding in a signed
agreement.
WE WILL furnish the Union the information re-
quested in its letter of April 3, 1986.
WE WILL offer Jennis Collins and Ronald Hock-
ett immediate reinstatement to their former posi-
tions or if those no longer exist, to substantially
equivalent positions, and make them whole, with
interest, for all losses sustained by reason of dis-
crimination against them.
WE WILL notify Jennis Collins and Ronald
Hockett that we have removed from their person-
nel files, deleted, and expunged all references to
their discharges and have notified each that this
has been done and that his discharge will not be
used against him in the future.
WE WILL reinstate all unreinstated unfair labor
practice strikers, who have not been lawfully ter-
207
urinated for misconduct, and shall make them
whole for losses sustained by reason of our discrim-
ination against them, with interest.
CHESAPEAKE PLYWOOD, INC., A SUB-
SIDIARY OF CHESAPEAKE CORPORA-
TION
Harvey A. Holzman, Esq. and Steven C Bensinger, Esq.,
for the General Counsel.
A. W. Vandermeer Jr., Esq. and Kelly O. Stokes, Esq.
(Hunton & Williams), of Norfolk, Virginia, for the Re-
spondent.
Samuel Morris, Esq. (Gerber, Gerber & Agee), of Mem-
phis, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Pocomoke City and
Salisbury, Maryland, on various dates between 9 March
and 21 May 1987, on an initial unfair labor practice
charge filed on 23 January 1986 and a consolidated com-
plaint issued on 24 February 1987, alleging that Chesa-
peake Plywood, Inc., a susidiary of Chesapeake Corpora-
tion' (Respondent) violated Section 8(a)(5) and (1) by re-
fusing to bargain in good faith, as evidenced by its over-
all acts and conduct, including its insistence to impasse
on a nonmandatory bargaining subject, its implementa-
tion of a final offer prior to legitimate impasse, and its
withdrawal of prior proposals. The complaint further al-
leges that Respondent additionally violated Section
8(a)(5) and (1) of the Act by subsequently withdrawing
recognition, and refusing to meet with, or to provide rel-
evant information to, the Union as the exclusive repre-
sentative of employees in the appropriate collective-bar-
gaining unit. The complaint alleges further that a strike
was caused and prolonged by unfair labor practices, and
hence that Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to reinstate the strikers upon their
unconditional application to return to work. Finally, the
complaint alleges that Respondent violated Section
8(a)(3) and (1) of the Act by discharging 6-named strik-
ers, and by threatening to rescind, and thereafter rescind-
ing, recall rights of 10 replaced strikers In its duly filed
answer, Respondent denied that any unfair labor prac-
tices were committed. Following close of the hearing,
briefs were submitted on behalf of the General Counsel,
the Charging Party, and Respondent.
On the entire record in this proceeding,2 including
consideration of the posthearing briefs, and my opportu-
' Name of Respondent appears as amended at the hearing
2 Certain errors in the transcript are noted and corrected
Pursuant to procedures outlined at the hearing and consented to by the
parties, I grant the General Counsel's motion that the record be reopened
to receive Jt Exh 1, a compilation of payroll and reinstatement data,
possibly affecting compliance rights of alleged discriminatees , including
all those who participated in the strike which commenced 23 July 1985
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nity directly to observe the witnesses while testifying
and their demeanor,3 I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Virginia corporation with a place of
business in Pocomoke City, Maryland, the sole facility
involved in this proceeding, from which it is engaged in
the production and distribution of plywood. In the
course of its operation, during the 12 months prior to is-
suance of the complaint, a representative period, Re-
spondent sold and shipped from its facility products,
goods, and materials valued in excess of $50,000 directly
to points located outside the State of Maryland.
The complaint alleges and it is concluded that Re-
spondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, the record
shows, and it is found that the International Woodwork-
ers of America-Region V (the Union), now exists, and at
all times material has existed for the purpose of repre-
senting employees in the negotiation of wages, hours,
and terms and conditions of employment, and, accord-
ingly, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Prior to the instant controversy , the parties maintained
a long , reasonably harmonious bargaining relationship at
the Pocomoke City plywood plant . That history ended
following unsuccessful negotiations to renew the most
recent collective -bargaining agreement that expired on
18 June 1985. Thus, negotiations opened in May 1985,
but for all intents and purposes ended on 18 September
1985 when the Employer withdrew its outstanding pro-
posals. In the interim , the employees commenced a strike
on 23 July 1985 in furtherance of their bargaining posi-
tion . The Company continued to operate in the course
thereof, utilizing permanent replacements . On 4 Novem-
ber 1985 , certain strikers made individual offers to return
to work , and thereafter on 30 December 1985 the Union
ended the strike, communicating a further offer to return
on behalf of all remaining strikers. Many, if not all, strik-
ers covered by these offers were denied immediate rein-
statement.
On 15 January 1986, the Employer terminated six
strikers , allegedly because of their misconduct during the
course of the strike.
On 13 March 1986, the Employer withdrew recogni-
tion asserting doubt that the Union continued to repre-
3 Credibility resolutions hereinafter made are occasionally accompanied
by objective rationale This is intended to reinforce, not diminish , percep-
tions gained through my firsthand observation of the witnesses and their
demeanor Furthermore , unmentioned testimony is rejected to the extent
that it is irreconcilable with expressly credited evidence
sent a majority Thereafter, on 3 April 1986, the Union
requested information concerning the identity of employ-
ees in Respondent's work force, including those' not on
payroll status but having recall rights, together with se-
niority dates, rates of pay, and criteria used in effecting
recall Respondent declined to provide that information.
On 22 May 1986, Respondent, by letter, informed un-
reinstated strikers that failure to respond to an inquiry
concerning their availability would terminate their reem-
ployment rights. By letter dated 5 June 1986, Respond-
ent terminated eight strikers because of their failure to
respond to that letter, and two others because their re-
sponse signified that they did not wish to return.
As indicated, the alleged 8(a)(5) violations are based
on Respondent's conduct at the bargaining table, its
withdrawal of recognition, and its failure to respond to
the Union's request for information. The most far reach-
ing of the 8(a)(3) allegations is founded on the assump-
tion that the strike was caused and prolonged by Re-
spondent's unfair labor practices, and hence proscribed
discrimination ensued from the failure to duly reinstate
the unfair labor practice strikers on their unconditional
offer to return to work. The discharge of certain strikers
based on alleged strike misconduct, as well as the termi-
nation of others, who refused to respond to the inquiry
of May 1985, are also alleged to have violated Section
8(a)(3) and (1) of the Act.
B. Concluding Findings
1. The alleged refusals to bargain
a. The background, the allegations, and their remedial
significance
The 1983 settlement of an Equal Employment Oppor-
tunity (EEO) law suit is central to this overall controver-
sy By that action, the parties adjusted claims that Re-
spondent had engaged in practices which discriminated
against Black and female employees. The General Coun-
sel contends that Respondent violated Section 8(a)(5) and
(1) of the Act by carrying to impasse, during 1985 con-
tract renewal negotiations, its demands for modifications
to that settlement. The General Counsel argues that the
Employer's conduct in that respect precluded any as-
sumption that the impasse ultimately reached in those ne-
gotiations was lawful. Hence, it is argued that when Re-
spondent subsequently implemented certain terms of its
last offer, and withdrew others, it engaged in further in-
dependent violations of Section 8(a)(5) and (1).
These issues bear critically on the two major areas of
remedial concern in this case. First, the 8(a)(5) allega-
tions foreshadow the possibility that a significant number
of strikers are entitled to extensive backpay and reinstate-
ment. In this regard, the General Counsel does not con-
tend that such liability would inure if those affected
merely are deemed economic strikers. On the other
hand, the General Counsel argues that this was not the
case, relying on the 8(a)(5) allegations as having caused
and prolonged the strike so as to warrant the conclusion
that it was an unfair labor practice strike The import of
this issue is underscored by Respondent's concession that
all strikers were not reinstated within 5 days of their un-
CHESAPEAKE PLYWOOD
conditional application to return to work as admittedly
would be required under the Act in the' case of unfair
labor practice strikers
Secondly, the above-described 8(a)(5) and 8(a)(3) alle-
gations figure prominently in assessment of Respondent's
ultimate termination of the bargaining relationship. Thus,
against this background of alleged illegality, the General
Counsel argues that the withdrawal of recognition was
unlawful because it occurred in the context of unreme-
died unfair labor practices of a type tending to contrib-
ute to employee defections from the Union.
b. The bargaining history
The plywood plant in Pocomoke City prior to 1980
was apparently operated as a joint venture involving
Champion International Inc. and the Chesapeake Corpo-
ration . In that year , Chesapeake became its sole owner
and operator . Earlier , in 1967 , the Union was certified as
the exclusive representative of the plant's production and
maintenance employees . As indicated , the most recent
collective -bargaining agreement was scheduled to expire
on 18 June 1985. In prior years, successive collective-
bargaining agreements were executed by the parties, ap-
parently on an amicable basis, and without resort to
strike action In contrast , the 1985 negotiations collapsed
with an unsuccessful strike, whereupon on 13 March
1986, the Respondent, having received evidence that a
majority no longer wished representation , effectively ter-
minated the established bargaining relationship.
c. The Equal Employment Opportunity Commission
settlement
During the late 1970s, a dispute emerged concerning
Respondent 's treatment of Blacks and female employees.
At times material, the active work force represented by
the'Union consisted of between 150 and 200 employees.
Blacks and females were employed in significant num-
bers. In 1975, the Union, together with certain individual
employees, filed an employment discrimination charge
against Respondent with the Equal Employment Oppor-
tunity Commission (EEOC). These charges were deemed
meritorious by the EEOC, which sanctioned a lawsuit
filed in 1978 in the United States District Court for the
State of Maryland. The suit was summarily dismissed,
but reinstated on appeal by the United States Court of
Appeals for the Fourth Circuit. 649 F.2d 1259 (4th Cir.
1981) The areas of alleged discrimination cited in the
EEOC action included: (1) hiring, (2) job assignments,
(3) promotions , (4) transfers , (5) training programs, (6)
discipline, and (7) general working conditions. The pro-
tagonists of the discrimination claim argued that these
employment practices created substantial earnings differ-
ences based on race and sex.
Further adjudication of the EEO complaint was avoid-
ed by a written settlement agreement , which was execut-
ed by the Respondent on 10 January 1983, and approved
by the court on 23 July 1983. (G.C. Exh. 2.)
On its face, the settlement agreement appeared to be
designed to curb the effects of any gender or race dis-
crimination by defining procedures encouraging upward
mobility and promotion from within through a combina-
209
tion of tools. A process of job posting and competitive
bidding was established as the method for in filling
future vacancies. Constraints were imposed on employer
discretion in outside hiring. Apprehension in employees
about risking a new job were allayed by requiring the
employee's restoration to his former position should ad-
vancement prove unsuccessful. A major area of conten-
tion in the lawsuit was the maintenance department,
whose work force of 22 employees included only 2
Blacks The EEO settlement provided a mechanism for
correcting this imbalance by establishing an apprentice-
ship program to offset outside hiring and to develop op-
portunities and preferences for inexperienced incumbent
employees. Eligibility for vacancies at the entry level,
and progression thereafter within defined maintenance
job classifications was to be resolved in favor of the
senior qualified employee. The settlement also appears to
address a potential for cronyism, which allegedly preju-
diced training and earning opportunities of minorities.
Previously, an employee awarded weekend overtime
could select his own replacement if he elected not to
work. The EEO settlement attempted to impose that re-
sponsibility on the Company by requiring foremen to
make that selection
d. The 1984 midterm negotiations
In 1984 the Pocomoke City plant was viewed by man-
agement as plagued by poor production and substantial
losses. Labor relations was an area targeted for correc-
tion as part of the process of rehabilitating the plant's
profitability. To this end, on 17 August 1984, manage-
ment met with the Union. Respondent at that time pre-
sented proposals in quest of contract relief. Included
were sweeping changes in the seniority/promotion pro-
cedures (G.C. Exh. 16(b) and (d)) and a 10-percent-wage
cut. (G.C. Exh. 16(c).) Apparently, at that meeting, the
Union was informed, inter alia, that the plant had not
had positive earnings since 1978, that it had lost over $2
million in 1984 and that due to depressed conditions in
the industry, the Pocomoke City plant, to survive, would
be required to upgrade its product mix, increase its pro-
ductivity, improve quality, and reduce costs. See Re-
spondent's Exhibit 8. The Union offered no response at
the meeting itself By letter dated 27 August 1984, the
Union replied as follows:
This is to inform you that the Union has closely re-
viewed the proposal of the company to reopen the
existing labor agreement on specific items, and has
in addition, further considered the circumstances as
outlined in our meeting of August 17, 1984.
The Union does not feel it would be appropriate at
this time to reopen the labor agreement scheduled
to expire on June 18, 1985, nor to consider propos-
als made by the Company in this meeting. [G.C.
Exh. 16.]
e. The 1985 contract renewal negotiations and the
EEO proposals
The Employer's basic posture during the 1985 negotia-
tions strongly resembled its unsuccessful 1984 strategy.
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Once more its bargaining demands included terms that
on their face, either collided directly with or reduced
measureably the effectiveness of terms of the EEO settle-
ment . Firstly, a proposed introduction of seniority pref-
erences based on job, then department seniority, tended
to narrow the opportunities for advancement contemplat-
ed within the existing system of plant seniority This
would tend to enhance the advancement of White males
from jobs and departments scantly populated by Blacks
and females , while perpetuating White male domination
of those occupations and departments. The deemphasis
of plant seniority was accompanied by a further demand
eliminating the settlement 's assurance that employees
who take promotions do not face job loss due to failure
to qualify. Indeed, by virtue of that proposal, apprentices
in the maintenance training program could be fired if
they failed successfully to complete testing procedures.
A more detailed summary of the differences between the
EEO settlement and the Employer's final proposal is set
forth below.
Employer's Final EEO Agreement
1985 Proposal
[G.C. Exh. 10(f)]
First consideration on Previously, only plant wide
promotions given to seniority controlled, and
employees with 8 or was the recognized criteria
more years of for filling vacancies in
Company Service. maintenance jobs under
[G C. Exh. 10(f), item Item 7(a) of the EEO
4.] Three types of Agreement, as well as entry
seniority: (a) job, (b) in the Maintenance Training
department and (c) program defined in Item
plant. In consideration 8(b) thereof.
of promotions, first
preference shall be
given to job seniority.
Where job seniority is
nondeterminative,
departmental seniority
shall prevail. Where
job seniority and
department seniority
are determinative,
plant seniority shall
prevail.
Qualifications for Maintenance experience is
maintenance entry the only requirement for
level job require: (a) "Repairman III," the lowest
high school education rated journeyman job in
or the equivalent, (b) maintenance [G.C. Exh. 2,
acceptable scores on art. 7(c)(i).] On-the_ job
required employment factors, such as plant
tests, (c) scores on seniority, potential
standard group qualifications, and work
interview, and (d) record are the sole
work habits requirements for entry in
satisfactory to the maintenance
Company. [G.C, Exh. apprenticeship. [Art. 8(b).]
10(f); item 10.]
Any regular, full-time
employee who meets
the qualifications for
Repairman Apprentice
"B", the initial
apprentice position,
may apply for transfer
into the Maintenance
Department.
[Openings in
Maintenance
Department may be
filled by hiring
outsiders . [G.C. Exh
10(f), item 10, sec.
II(A) ]
Employer not
required to post
qualification for a
vacant maintenance
job. [G.C Exh. 10(f),
item 10 , II and III ]
Qualifications for
promotion within
maintenance
department requires
satisfactory
completion of
undefined checklists.
[G.C. Exh. 10(f), item
10, sec. III (A)(2).]
Maintenance Training
Program broken down
into two
classifications:
"Apprentice "B" and
Apprentice "A."
Testing after 12
months in each
classification.
Employee terminated
if he fails to
satisfactorily
complete, unless
transferred from a
production job, which
is available, and
which he is capable of
performing. [G.C.
Exh. 10(f), item 10.]
No requirement that
Company maintain a
viable training
program with
employee
participation. [G.C.
Exh. 10(F).]
Vacancies in maintenance
jobs will be posted and
filled by the senior, qualified
employee with
management 's selection
subject to grievance
procedure [G.C. Exh. 3, art.
I(A), appendix "B." G.C.
Exh. 2, item 7(a).]
Openings in Maintenance
Department may be filled
only by bidding procedure
within the plant. [G.C. Exh.
2, art 7(a).]
Employer is required to
post qualifications for
vacant maintenance job.
[G.C. Exh. 3, art. I(B),
appendix "B." G.C. Exh. 2,
item 7(b).]
Advancement dependent
upon established
competitive bidding
procedures, with special
requirements limited to
defined job experience
criteria. [G.C. Exh. 2, art
7(c):
Two year apprenticeship; no
testing. No discharge for
disqualification; unsuccessful
candidate is returned to his
previous job within 90 days
of the start of apprenticeship
and, thereafter , to the labor
pool. [G.C. Exh. 2, art. 8;
G.C. Exh 3, attachment B,
II(D).]
Company is required to
employ "a minimum of one
apprentice at all times,
assuming the availability of
qualified applicants." [G.C.
Exh. 2, art. 8(a); G.C. Exh.
3, attachment B, II(G).]
CHESAPEAKE PLYWOOD
Employee who
declines to work
scheduled weekend
overtime may secure
his own replacement.
[G.C. Exh 10(F), item
2.]
Employee promoted
or transferred to new
job has 10 days to
withdraw, and
Company has 30 days
to disqualify the
employee as unable to
do the work.
Disqualified
employees have no
defined rights to an
alternative job. [G.C.
Exh. 10(F), item 4.]
Bidding on jobs
outside an employee's
line of progression
restricted to those
having at least 2 years
of plant seniority.
[G.C. Exh. 10(F), item
3 (B).]
If employee does not desire
to work scheduled weekend
overtime, he will notify
foreman, who will attempt
to secure a qualified
replacement. [G.C. Exh. 2,
art. 12(a).]
After promotion, employees
will be allowed to disqualify
themselves during the trial
and training period.
Employees disqualified on
their own initiative or by
the Company shall be
reinstated to their former
positions. [G.C. Exh. 2, art.
11.]
No restriction on bidding
based on lines of
progression or minimum
seniority. Employer is
required "to fill the position
with the senior employee
. . . who, in the judgment
of the Company, is qualified
to perform the job." [G.C.
Exh. 2, art. (10(c).]
Between 9 April and 23 July 1985, the parties met on
some 13 occasions. During this period, Respondent's
EEO proposals were revised and upgraded. On 23 July
1985, the Union struck. As the above comparison re-
veals, the Company's demands on that date contemplated
a substantial departure from the EEO settlement. At no
time did the Union capitulate in these areas.
Based on the foregoing, it is apparent that the initial
factual premise of the General Counsel has been substan-
tiated. In addition to the undeniable attempt to alter the
EEO settlement, there is no genuine dispute that the con-
tract renewal negotiations, effective 23 July, had reached
impasse. At that time, there was little, if any, hope that
continued meeting would result in either party manifest-
ing a will to move from its entrenched position. See, e.g.,
Television & Radio Artists v. NLRB, 395 F.2d 622, 628
(D.C Cir. 1968).4
In this light, the determinative question is whether the
EEO proposals were permissive subjects of bargaining,
as the General Counsel contends, or mandatory, as the
Respondent urges. For, in accord with long-standing
policy, neither party to collective bargaining is free to
insist to impasse upon a nonmandatory subject of bar-
4 The General Counsel correctly observes that the alleged violation
does not require proof that union representatives specifically objected to
the EEO proposals The lack of capitulation, together with the conflict
between the Employer's proposal and the settlement, alone suffices In
any event, as shall be seen, credible testimony establishes that in resisting
employer proposals in this area, explicit references were made to the fact
that they violated the EEO agreement
211
gaining. The objective underlying this policy has been
explained as follows:
Bargaining to impasse over a permissive bargaining
subject is a per se Section 8(a)(5) violation because,
in effect, it is a refusal to bargain over mandatory
bargaining subjects.5
As a corollary, however, the parties on a voluntary basis
are free to negotiate with respect to nonmandatory sub-
jects, provided they are withdrawn prior to, and in no
sense contribute to impasse. See NLRB v. Borg-Warner
Corp., 356 U.S 342, 349 (1958).
In other words the injection of issues, extraneous to
terms and conditions of employment, tends to complicate
negotiations and cannot be reconciled with statutory
policy favoring the peaceful, expeditious resolution of
contract disputes.
Here, there can be no dispute that the Employer's
EEO proposal focused directly upon terms and condi-
tions of employment. Although the Act customarily de-
fines such demands as mandatory subjects of bargaining,
on behalf of the complaint, it is argued that the EEO
proposals were merely permissive, because forbidden by
the EEO ageement's fixed term. Thus, the duration
clause, article 22 of that 1983 agreement, states as fol-
lows:
Unless an earlier date is provided elsewhere in this
agreement, Sections 7-12 of the Agreement shall
cease to have any force or effect upon expiration of
5 years from the date of the agreement. Prior to
that time, the terms of Sections 7, 8, 10, 11 and 12
can be changed by agreement of the Company and
the Union.6
Respondent contends that, notwithstanding the dura-
tion clause, it lawfully maintained its EEO proposals to
impasse. In support, Respondent observes that the agree-
ment itself does not give either party "an absolute veto
over proposed amendments ." This comment undercuts
Respondent' s entire defense. The issue is whether the
statute, in promoting collective bargaining, precludes a
party from beclouding renewal negotiations with matters
previously resolved and already binding Quite clearly,
the EEO settlement is not subject to an interpretation
that would permit either signatory, unilaterally to amend,
alter, or abrogate articles 7, 8, 10, 11, and 12 of that
agreement during its 5-year term. That limitation was not
relaxed by the obligation to incorporate most of these
terms in the "Labor Agreement."
Article 20 is irreconcilable with Respondent' s claim
that- "Any changes were subject to collective bargain-
ing, in which each side could exert its economic influ-
ence over the other " To hold otherwise would produce
5 C Morris, Developing Labor Law, 770 2d ed 1983) Idaho Statesman,
281 NLRB 272 (1986)
6 All substantive provisions of the settlement, except art 9, which per-
tained to advancement to supervisory positions, and art 10, concerning
hiring, were to be incorporated in the ensuing labor agreement Consist-
ent therewith, art 7 (maintenance employment), art 8 (maintenance train-
ing), art II (job protection), and art 12 (overtime) appear in the
1982/1985 collective-bargaining agreement
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an anomaly , whereby the Employer might unilaterally
annul the EEO agreement Thus, under the law, the
right to raise the issue embodies the right to abrogate
under the well-settled principle that after impasse an em-
ployer is free to impose changes in employment terms
unilaterally. NLRB v. Katz, 369 U.S. 736 (1962). The
ends of collective bargaining would hardly be served by
principles encouraging a party to seek impasse in order
to extricate itself from a disadvantageous contract. Con-
siderations of stability preclude the acknowledgement of
any right in the Respondent to "veto" terms of an other-
wise binding contract , simply by maintaining an unyield-
ing stance during the renewal negotiations.
The logic of and harmony between this view and stat-
utory policy is enforced by the precedent. For, "A party
is not required to rebargain that which has already been
secured to him by binding past agreement ; He may do so
if he wishes." See Harvstone Mfg. Corp., 272 NLRB 939,
942 (1984). Consistent therewith, well-settled authority
establishes that , under Section 8(d) of the Act, unless the
parties have expressly agreed to midterm modification of
a fixed-term contract , economic pressures may not be in-
voked in furtherance of demands for contract modifica-
tion. See Herman Bros., Inc., 273 NLRB 124, 127 (1984);
NLRB v. Lion Oil Co., 352 U.S. 282 (1956). Neither arti-
cle 20, nor any other term of the EEO settlement author-
izes either the Union or the Employer to pressure the
other into rescission or modification of that agreement.'
As stated by the Supreme Court in Allied Chemical &
Alkali Workers v. Pittsburgh Glass, 404 U.S. 157, 185-186
(1971) "Section 8(d) defines the obligation to bargain to
be . . . the duty to maintain . . . mandatory terms with-
out unilateral modification for the duration of the collec-
tive-bargaining agreement ." From this injunction , it fol-
lows that an employer 's attempt to either unilaterally
modify or insist to impasse on modification of an extant
contractual obligation is a permissive subject of bargain-
ing. The desirable Federal policy encouraging stability,
while mitigating industrial strife, would be seriously im-
paired if one party to a binding agreement could force
renegotiation on the part of the other through threat of
economic pressure . These statutory interests would be
even more severely prejudiced if the agreement could be
abrogated unilaterally merely by pressing the matter to
impasse In this case , the EEO settlement established a
firm commitment on the part of the Employer to main-
tain certain employment procedures . It also set forth the
duration of that obligation . Though embodying mandato-
ry subjects of bargaining , once executed , the EEO agree-
ment became subject to the strictures of Section 8(d) of
the Act. Allied Chemical & Alkali Workers v. Pittsburgh
Glass, supra . Accordingly , absent mutual assent, those
terms could not be unraveled during the contract renew-
al negotiations in 1985 . As an impasse was reached on 22
July 1985, and as the final offer by the Employer submit-
ted at that time included proposals requiring a modifica-
tion of the EEO settlement agreement , it is concluded
that Respondent was guilty of an unlawful refusal to bar-
' For the above reason, Respondent 's reliance on cases involving prop-
erly authorized reopener negotiations is misplaced
gain by carrying the negotiations to deadlock through its
continuing insistence on such terms.
Having so found , it is irrelevant that non-EEO matters
also may have contributed to impasse . In Latrobe Steel
Co. v. NLRB, 630 F.2d 171, 180 (3d Cir. 1980), the court
stated:
[A] party may not avoid bargaining on the manda-
tory subjects by insistence on nonmandatory pro-
posals. . . . This is precisely what occurs when a
party's insistence on nonmandatory proposals causes
negotiations between the parties to reach an im-
passe. . . . [I]t is well-settled that the insistence
upon the nonmandatory proposal need not be the
sole cause of the parties' failure to reach agreement
in order for a Borg- Warner violation to be found.
The Respondent would diminish the obstructive influ-
ence of its EEO proposals , contending that the break-
down was due to economic issues. It is true that at the
inception of the strike little had been resolved , and sig-
nificant mandatory subjects were left open These includ-
ed wages, pensions , safety, and welfare . Beyond that,
there is little evidence to support the Respondent's
premise.8
The General Counsel points to specific testimony dem-
onstrating that proposed EEO changes were among the
factors precluding agreement . In this respect , Charles
Campbell , the Union 's regional president , avers that he
entered negotiations on 17 June because of the Compa-
ny's EEO proposals . He testified that at the negotiating
session of 17 July he informed John Hockman , the Com-
pany's chief negotiator , that if the EEO issues were re-
moved the parties would be close to a settlement. Camp-
bell further testified that at the 19 July bargaining ses-
sion, after the Company gave its final offer, the meeting
closed with Campbell telling Hockman. "John, you're
forcing me out on strike over the EEO settlement and
there's nothing that I can do about the EEOC settlement
I'm bound by law."
Although Respondent 's testimony was less definitive,
there is no clear cut denial that EEO was debated. Thus,
Respondent 's negotiating team consisted of Sharon
Miller , Respondent 's Woodlands manager; Ronald G.
Roberts, general manager of the Wood Products divi-
sion ; and Hockman , the spokesman . Hockman testified
that while the Union during the 1984 reopener discus-
sions mentioned that the EEO proposals were a hurdle
he had no clear recollection that the Union objected to
this package during the 1985 contract renewal negotia-
tions9 Sharon Miller and Ronald Roberts confirmed that
8 Respondent 's contention that the impasse was caused by union insist-
ence that any settlement conform to a so-called "industry pattern" is con-
jectural There is no evidence that the Union successfully achieved out-
side settlements establishing any degree of uniformity, or that it went
down to the wire on the basis of considerations irrelevant to the basic
work unit There is not a scintilla to suggest that the Union ever stated
that agreement was conditioned on the Employer's adherence to a settle-
ment achieved with one of its competitors See, e g , Typo service Corp,
203 NLRB 1180 (1973)
If the EEO agreement was mentioned in 1984 , it is difficult to imag-
ine that it was not raised in 1985 in opposition to substantially identical
proposals by the Company
CHESAPEAKE PLYWOOD
on 17 June when Campbell entered the negotiations he
argued that the seniority system and departmental lines
of progression proposed by the Company were illegal. i o
Miller , like Hockman , appears to have had a limited
recollection, but admitted that the EEO settlement was
mentioned during the contract renewal negotiations, al-
though he could not remember the number of sessions in
which it was brought up or who mentioned it. Roberts
could not recall whether the EEO settlement was raised,
but admitted that the Union opposed the Company's pro-
posals in the area of overtime scheduling, seniority, bid-
ding eligibility, job progression, and the multicraft classi-
fication in the maintenance department.
On balance, the testimony centers on a question of
degree, with the truth lying somewhere between highly
partisan accounts. Even if Campbell overstated the
weight actually given the EEO dispute, there is every
reason to believe that it was a significant issue. Thus, the
Employer's proposals conflicting with the EEO settle-
ment are traceable to the 1984 renewal negotiations, and
remained substantially in tact from the outset of the 1985
negotiations , through 13 negotiation sessions, until 23
July, when the Union struck. During this entire time-
frame, concessions on the part of the Union in the area
were nominal . In this light it is fair to assume that relief
from the EEO provisions was a major issue to the Re-
spondent , and persuasive evidence does not exist, war-
ranting a conclusion that the Union viewed them other-
wise.
In sum, the evidence fails to establish that impasse
would have occurred, even if Respondent had not insist-
ed on the nonmandatory proposals. CF. Latrobe Steel v.
NLRB, 630 F.2d 171 (3d Cir. 1981). Accordingly, Re-
spondent violated Section 8(a)(5) and (1) of the Act by at
least partially causing a deadlock in negotiations on the
basis of nonmandatory demands effectively modifying
the EEO settlement.
f. The nature of the strike
The General Counsel contends that the above, and
other unfair labor practices caused and/or prolonged the
strike, hence warranting reinstatement preferences for
the strikers. In support, Campbell, with corroboration
from Flora Copeland , an International representative
who serviced the plant during the 1985 negotiations, tes-
tified that prior to the final prestrike union meeting,
which was held on 22 July, he drafted a motion to be
presented to the membership. The document allegedly
reflected a recommendation from the negotiating com-
mittee that the membership turn down the Employer's
proposals and authorize a strike because of the EEO set-
tlement proposals. Campbell and Copeland also testified
that 'at this, and an earlier , union meeting employees
voiced specific concerns about possible changes to the
EEO settlement.
10 Respondent makes much of the fact that Campbell , during this ses-
sion , mentioned a suit against Georgia Pacific , Respondent 's competitor,
which focused on lines of progression, and his comment when confronted
with the Company's evidence contradicting his view,that he "doesn't lie
about everything " Contrary to the Respondent, I am unwilling to draw
any conclusion from this example of what appears to be little more than
argumentative discourse at the bargaining table
213
Respondent attacks this testimony on grounds of plau-
sibility. It points to the fact that the EEO issue was not
addressed on the picket signs during the early stages of
the strike. i i Respondent also addresses the suspicion
concerning the Union's failure to preserve Campbell's
handwritten motion. I share these concerns. If one is to
believe Campbell, he informed company negotiators as
early as 18 June that their proposals were illegal and that
at the 17 July session he accused Hockman of violating
the NLRA by negotiating on the EEO settlement to im-
passe. Campbell assertedly took the occasion to threaten
to file unfair labor practice charges if the Company con-
tinued to insist on its maintenance training proposal. In
fact, the Union did file unfair labor practice charges on 9
August 1985, a few weeks after the strike began. Against
this background, it is difficult to believe that these skilled
union negotiators would have made no special effort to
preserve the motion that, according to Campbell and Co-
peland, listed EEO as the sole issue on which employees
chose to strike. The spectre of litigation beclouded the
negotiations since June, and neglect of such significant
evidence does not enhance the believability of their ac-
counts. Also mysterious is the fact that no effort was
made to preserve the picket sign allegedly made by
Campbell on 18 July at a meeting of the negotiating
committee . That sign was to be used as a sample listing
violations of the EEO agreement as the sole grievance.
There-is no evidence that such a sign or a replica was
present when picketing began on 23 July. In sum, my un-
favorable impression of Campbell's demeanor was con-
firmed by his improbable testimony that the EEO pro-
posals were the only strike issue. This is particularly so
when one considers the Employer's position on econom-
ic matters, including its cost-cutting objectives.
At the same time, as found above, EEO matters were
among the issues contributing to the deadlock. Respond-
ent's evidence tending to mitigate this fact is less than
compelling. "[A] strike will be deemed an unfair labor
practice strike if it was caused , at least in part, by an
unfair labor practice." Struthers Wells Corp. v. NLRB,
721 F 2d 465, 471 (3d Cir. 1983). Here, despite 7 years of
EEO litigation, Respondent's proposals as a whole
would leave females and minorities with few guarantees
against future discrimination . With this in mind, in a
work force that was 60 percent Black and 20 percent
female, the conclusion is inescapable that the EEO issues
were among the material causes for strike action. I infer
that they were. Accordingly, I find that those who par-
ticipated in the walkout at the inception were unfair
it Respondent offered articles which appeared in several area newspa-
pers, attributing statements to Flora Copeland concerning the causes of
the strike The articles are rank hearsay and are not entitled to probative
weight See R Exhs 21(a) and (b) Nor am I persuaded that testimony
by Ronald Smullin, a maintenance department employee and member of
the negotiating committee, necessarily diminishes the importance of the
EEO issue Smullin was obviously confused, and had difficulty recalling
the events in question He did relate that, while the Union did not object
to the maintenance training proposal, it did object to proposed restric-
tions on entry into the maintenance department Thus , his testimony was
not entirely inconsistent with that of Campbell, for it confirms that the
Union opposed at least one important aspect of the Employer's proposal
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practice strikers . NLRB v. Fountain Manor, 785
F.2d 195 (7th Cir. 1986).
g: The bargaining session of 18 September 1985
On 18 September 1985, the parties met for the first
time since the strike began . After the contract issue was
reopened , the Union broke off negotiations that morning,
but the Employer , pursuant to the Union 's request,
agreed to meet again that afternoon During the after-
noon session , detailed proposals were exchanged.
Through that tendered in its behalf, the Company: (1)
abandoned its intention to change article 8, section 10 of
the EEO settlement agreement until expiration thereof,
and (2) withdrew demands for changes in the mainte-
nance , entry and training programs . In addition , the Re-
spondent reminded of retraction of prior concessions in
the form of a wage reopener , a $500-signup bonus, union
shop and checkoff. The Union indicated that it would
get back ' to the Company and the meeting closed with-
out discussion of the revised offer.
Both sides attempted to make capital of what tran-
spired at this session . An additional 8(a)(5) and ( 1) allega-
tion is based on the tightening of position manifested by
Respondent 's dropping of its 19 July offers of a $500
bonus for signing , a wage reopener , union security and
checkoff. The General Counsel contends that this was
not simply indicia of bad faith , but itself constituted an
independent unfair labor practice . At the same time, the
Respondent argues that the withdrawal of its EEO relat-
ed proposals purged the strike of any unlawful influ-
ences, and hence from that day forward , the strike was
waged purely in furtherance of economic objectives.
Firstly, as respects the alleged refusal to bargain, the
General Counsel strains to argue that the Employer's
economic concessions were on the table as of 18 Septem-
ber. The evidence does not substantiate that this was so.
With the exception of union security and checkoff which
were historically a matter of contract , the other conces-
sions were first offered by the Respondent in the Compa-
ny's proposal of 18 July . The package was delivered to
the Union at the negotiating session of 19 July. See Gen-
eral Counsel 's Exhibit 10(f). By letter dated 22 July,
which was hand -delivered to Local President Richard
Truitt with a copy to International Representative Flora
Copeland , the Union was advised as follows:
Please be advised that the company's offer of a cash
bonus and a wage reopener must be withdrawn
should it not be accepted by the Union on or before
12:01 a.m , July 23, 1985. I continue to hope that
our offer will be accepted [R. Exh. 6.]
Roberts credibly testified that these concessions were
withdrawn after the strike began because they were of-
fered as a payoff to avoid a stnke.
Thereafter, by letter dated 30 July, to Richard Truitt
with a copy to International Representative Flora Cope-
land 'as well as International Union Headquarters in
Memphis, Tennessee , the Union was advised as follows.
The strike by Local 5-346 against Chesapeake
Plywood, Inc. has now lasted a full week. So far,
the Company has operated the plant on a reduced
schedule with supervisory personnel. We do not
intend to continue to do so indefinitely.
You and all other production employees are in-
vited to return to work. We hope you will do so
The terms of employment of employees who choose
to return to work will be those set forth in the
Company's final offer dated July 19, 1985, except for
the cash bonus, the second year wage reopener, and
Articles XXII [Union Security] and XXIII [Check
off] of the expired Labor Agreement. For the time
being we are operating from 8:00 A.M. to 6:00 P.M.
Monday through Friday. Any employee who
wishes to return to work should call the plant at
957-1501 for further details.
If insufficient employees choose to return to
work, the Company will begin hiring replacements
on or about August 5, 1985. I hope this will not be
necessary.
Contrary to the General Counsel, the reopener, bonus,
union-security and checkoff items were withdrawn long
before 18 September. The above documents, delivered to
responsible union negotiators , clearly and unmistakably
rescinded concessions in these areas. Furthermore, this
step was initiated before the Union filed its initial unfair
labor practice charge on 9 August and was in no way
linked to the 18 September withdrawal of provisions af-
fecting the EEO settlement. Moreover, I am mindful of
no authority deeming mere withdrawal of contract pro-
posals a per se unfair labor practice. Instead, illegality re-
quires a showing that this conduct was accompanied by
subjective bad faith in the form of a desire to subvert the
bargaining process in order to avoid reaching agreement
or to undermine the Union. i 2 Absent evidence of bad
faith, the Act does not artificially freeze the Employer's
bargaining stance, irrespective of shifts in the relative
bargaining strength of the parties, the purposes behind
earlier concessions, or the duration of the strike and its
effectiveness. 13
12 The General Counsel appears to argue that the Board 's decision in
Harowe Servo Controls, 250 NLRB 958, 961 (1980), establishes the princi-
ple that the employer violates Sec 8(a)(5) where, in the context of an
unfair labor practice strike, it offers more regressive proposals without
economic justification The General Counsel overreads Harowe In that
case , the Board regarded the tightening of the employer 's bargaining pos-
ture as evidence of bad faith, not as an independent unfair labor practice
Nor does Pacific Grinding Wheel Co, 220 NLRB 1389 (1975), confirm the
General Counsel ' s view that an unfair labor practice strike imposes a pre-
sumptive limitation on the employer 's right to reduce its proposals
There, as in all other cases bearing upon the issue , the employer 's regres-
sive bargaining stance was not an independent unfair labor practice but
merely evidence of its "intention to avoid reaching agreement and to
humiliate the employee 's bargaining representative " Hence, the General
Counsel's attempt to distinguish Barry-Wehmiller Co, 271 NLRB 471
(1984), on grounds that an economic , rather than an unfair labor practice
strike was involved is unpersuasive
13 The General Counsel's reliance on Yearbook House, 223 NLRB
1456, 1465 (1976), also is misplaced That decision does not acknowledge
that the Board has embraced the notion that employer action , which cre-
ates new issues during bargaining , constitutes a per se violation of Sec
8(a)(5) In that case, the Board simply affirmed an administrative law
judge's conclusion that the employer 's 13 new proposals "were predict-
ably unacceptable to the Union" and hence warranted the inference that
Continued
CHESAPEAKE PLYWOOD
While the judge appears to have viewed the Re-
spondent's reasons as insufficient justification for
withdrawing or revising its proposals . . . "It is
immaterial whether the Union, the General Counsel
or [the administrative law judge] find these reasons
totally persuasive." What is important is whether
they are "so illogical" as to warrant the conclusion
that the Respondent by offering them demonstrated
an intent to frustrate the bargaining process and
thereby preclude the reaching of any agreement.
In any event, in this case, the Employer has afforded
legitimate economic justification for its bargaining stance.
The bonus and wage reopener were conditional offers.
They represented a departure from the Employer's oth-
erwise rigid position on wages, which it consistently
maintained during the 1985 bargaining, as well as the
abortive 1984 attempt at reopening. It was conceived,
communicated, and utilized as a means of averting the
strike. When that approach failed, those terms were
withdrawn. The union-security/checkoff provisions were
also withdrawn when it became apparent that the hiring
of permanent replacements would be necessary and out
of a rational desire to relieve those employees from these
provisions. In my opinion, the Employer's action with
respect to these four items was routinely built upon its
interest in securing a favorable contract in a plant which
was experiencing serious losses Its strategy did not tran-
scend the risks contemplated by the bargaining process
and did not suggest a bad-faith attempt to impede negoti-
ations. See American Thread Co, 274 NLRB 1112, 1113
(1985).
Accordingly, as there is neither evidence that the Em-
ployer did not intend to reach agreement, nor indication
that the revision in its bargaining stance after 23 July
was part and parcel of a broader scheme to discredit or
eliminate the Union, the 8(a)(5) allegation in this respect
shall be dismissed.
By way of defense, Respondent points to the 18 Sep-
tember bargaining session as converting the strike from
unfair labor practice to economic. In this respect, it is
undisputed that during that session the Employer with-
drew its proposal modifying the EEO settlement agree-
ment's maintenance department provisions, as well as
that allowing employees themselves to select overtime
replacements. In this connection, the General Counsel al-
leges that Respondent's 18 September withdrawals did
not include all demands seeking to reduce its obligations
under the EEO settlement. Respondent argues that it
withdrew "the allegedly offensive proposals."
Here, the General Counsel correctly observes that the
Employer's 18 September action left in tact its demands
for: (1) eliminating plant seniority, (2) establishing specif-
ic lines of progression, (3) allowing an 8-year employ-
ment preference, (4) imposing a 2-year employment re-
quirement on bidding into a new line of progression, (5)
the employer did not approach the bargaining table with an open mind
and purpose to reach agreement 223 NLRB at 1465 Here, the General
Counsel's proof does not allege, and indeed it is not contended, that the
Respondent's withdrawal of concessions was ulterior to objectives inimi-
cal to good-faith bargaining Indeed, see Barry-Wehmiller Co, above at
473 where the Board described the critical issue as follows
215
shortening the time period for qualifying in higher rated
job, and (6) eliminating a disqualified employee's right to
return to his/her former job. 14 Only item 6 of these
listed modifications conflicted directly with specific
terms in the settlement agreement. Thus, according to ar-
ticle 11 thereof, it was stated as follows: "Employees
who are disqualified on their own initiative or by the
Company will be reinstated to their former positions."
Beyond article 11, the elements of the Respondent's
EEO proposal, which survived the 18 September re-
trenchment, did not conflict en haec verba with the
EEO settlement. However, the contemplated cutback in
assurances against discrimination remained a very signifi-
cant consideration. Thus, the promotion procedures es-
tablished in the EEO settlement were at least partially
triggered by seniority, with plantwide, being the sole
recognized formulation in place prior to 1985. Neither
occupational, nor departmental priorities existed. Fur-
thermore , minimum employment history was not requi-
site to an employee's participation in the bidding proce-
dure. And senior employees, such as those having 8
years' service, i 5 enjoyed no absolute preference. In
short, the 18 September revisions did not alter employer
demands, which effectively undermined the EEO settle-
ment by supplanting existing seniority criteria with an
entirely distinct system of preferences for advancement,
transfer, and the filling of vacancies generally.
On these facts, Respondent's claim lacks merit. The
law does not permit a party to frustrate the intent of an
agreement by indirect action that has the same substan-
tive effect as a direct breach. Indeed, the desirable policy
encouraging voluntary adjustments would suffer dramati-
cally if a party were required to reject every compro-
mise until each and every tactic which might undermine
the purpose of settlement had been anticipated and re-
stricted by express, unmistakable terms There can be
little question that the EEO settlement was founded on
an accommodation designed to encourage Blacks and
female workers to compete under the established bidding
procedure and to facilitate equal opportunity within that
framework. To accomplish that objective, it was neces-
sary to correct the alleged "concentration of White
males in certain job categories and Blacks and females in
other job categories, creating substantial race-and sex-
based pay differentials in the workforce." 659 F.2d at
1262 The restraints on competitive bidding envisioned
by a system of job and departmental seniority , as well as
a minimum length of service requirement inherently tend
to dampen mobility, and in doing so, would tend to per-
petuate the race and gender profiles of various jobs and
departments, including those dominated by caucasian
males. The consequences of these proposals would frus-
trate the EEO settlement no less than had each condition
been specifically outlawed therein Accordingly, it is
14 There is no evidence that any of these provisions were agreed by
the Union or endorsed by the latter as a fitting subject for the negotia-
tions
15 The 8-year seniority preference in the Employer's proposal would
not appear to be a substantive departure from the system of plantwide
seniority Rather, it would seem to recognize an exemption of the more
senior workers from the limitations of departmental and job seniority
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concluded that the Respondent's continued insistence on
2 years of seniority for eligibility to enter the bid proc-
ess, as well as preferences based on job and departmental
seniority and lines of progression, constituted a severe re-
striction on the system of plant seniority contemplated
by the EEO settlement. Moreover, the substitution of a
complicated process of requalification, rather than guar-
anteed restoration to former positions, as a consequence
of an unsuccessful job change entailed a clear departure
from specific guarantees in the EEO settlement. Where a
party has injected nonmandatory subjects, and persisted
on them to the point of impasse, the illegal consequences
of that action will be redressed only on an unambiguous,
clearly communicated , total withdrawal of those de-
mands. A misunderstanding, albeit in good faith, as to
the scope of the proposals which must be excised affords
no defense. The bargaining table must be cleansed of the
obstructive issues. Thus, the strike did not lose its char-
acter as an unfair labor practice strike on and after 18
September.
As indicated, the strike terminated on 29 December
1985, when an unconditional offer to return to work was
made on behalf of all strikers. General Counsel's Exhibit
4. Earlier, Respondent, on 4 November 1985, had estab-
lished a perferential rehire list. Respondent, at the strike's
end, being of the view that those requesting reinstate-
ment were economic strikers, placed them on that list.
By Respondent's letter dated 2 January 1986, those
placed on the list were so informed and were also told
that there presently were no available jobs but that they
would be recalled as vacancies arise General Counsel's
Exhibit 7.16
Having found that the strike, at all times material, was
an unfair labor practice strike, it follows that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
failing to effect, within 5 working days of the above-de-
scribed offers to return to work, immediate reinstatement
of all strikers who previously had not been recalled and
who did not engage in misconduct found to be of a dis-
qualifying nature.17
h. Unilateral implementation of proposals
The final allegation contesting the Employer's bargain-
ing tactics derives from the General Counsel 's assertion
that Respondent, after the strike began, implemented its
final offer, despite the absence of a valid impasse. In this
connection, Ronald Roberts stated that he believed that
Respondent placed in effect the following terms of its
final offer: (1) revised starting rate for new employees,
(2) extended probationary period, (3) departmental se-
niority, including lines of progression, (4) limitations on
bidding to those with 2 years' seniority with a preference
to those having 8 years of seniority Though a might
shaky, this was the sole evidence offered by the General
Counsel in support of this allegation. In any event,
having found that the impasse was at least partially at-
tributable to Respondent' s insistence on a nonmandatory
subject of collective bargaining, normally, it would
follow that unilateral action would constitute a further
unlawful refusal to bargain and violate Section 8(a)(5)
and (1) of the Act. See, e.g., Massillon Community Hospi-
tal, 282 NLRB 675 (1987). In this area, however, the
Board distinguishes between strikers and replacements
and has held that "even in the absence of impasse, an
employer may lawfully change the terms and conditions
of employment for strike replacements after a collective-
bargaining agreement terminates ." Marbro Co., 284
NLRB 1303 (1987). Here, the paucity of evidence ad-
duced by the General Counsel is vague and off-handed
and neglects to establish that any changes impacted on
employment conditions of restored strikers. Hence, on
authority of Marbro, the 8(a)(5) and ( 1) allegation in this
respect shall be dismissed.
2. Discrimination and restraint against strikers
a. The refusal to reinstate
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) by failing to reinstate the unfair labor
practice strikers immediately on their unconditional ap-
plication to return to work.
b. The letters of 22 May and 16 June 1986
By letters dated 22 May 1986, Respondent informed all
unreinstated strikers , still on the preferential hiring rehire
list, as follows.
Several months ago, you were informed that
your name had been placed on a Preferential Rehire
List. The Company has been attempting to contact
employees as vacancies occur in jobs they previous-
ly held.
In many instances, the Company has been unable
to contact employees or get them to respond to
written correspondence. In other instances employ-
16 In its answer , and again at the hearing , on 4 March 1987, Respond-
ent argued that the allegations based on the failure to reinstate the unfair
labor practice strikers, as well as the 22 May letter and the 5 June termi-
nations , are time-barred by Sec 10(b) of the Act There is no merit in
this contention "It is well settled that the timely filing of a charge tolls
the time limitations of Section 10(b) as to matters subsequently alleged in
an amended charge which are similar to, and arise out of the same course
of conduct, as those alleged in the timely filed charges " Pankratz Forest
Industries, 269 NLRB 33, 36-37 (1984) Here, the original charge filed on
9 August 1985 related exclusively to refusal-to-bargain allegations It was
not until 20 January 1987 that this charge was amended to allege that the
failure to reinstate the stnkers, commencing 1 November 1985, violated
Sec 8(a)(3) and (1) of the Act The only charge, in its original form, al-
leging a violation of Sec 8(a)(3) and (1) was that filed in the interim on
21 January 1986 That charge, as later amended, on its face pertained
only to named strikers, each of whom was allegedly discharged for strike
misconduct Nonetheless, it remains clear that the events in controversy
here, though not specifically the subject of a timely independent unfair
labor practice charge, occurred when pending timely filed charges ac-
cused the Employer of refusing to bargain in good faith and discrimina-
torily discharging certain strikers The more recent allegations as well as
those covered by timely filed, pending charges emerged from the same
basic labor dispute, and "concern the Company's response to the
Union's" effort to secure a new contract Rock Hill Telephone Co. v
NLRB, 605 F 2d 139, 142 (4th Cir 1979) As such, it is concluded the
matters were fully litigated, without suggestion of prejudice, and without
offense to Sec 10(b) of the Act
" The parties stipulated that some or all the individuals listed in ap-
pendix A of the complaint would be entitled to participate in the remedy
should a violation be found in this respect It was understood by the par-
ties that specific identification of those individuals would be left to reso-
lution during compliance stages of the proceeding
CHESAPEAKE PLYWOOD
ees have found other work and declined our offer
of reinstatement. These circumstances have resulted
in delaying the return to work of people who wish
to come back and has led to unnecessary temporary
understaffing For these reasons, we have decided
to request you to complete the bottom of this letter
and return it to Chesapeake Plywood by June 4,
1986. If no response is received by the Company by
June 5, 1986, your name will be removed from the
Preferential Rehire List
I wish to remain on the Preferential
Rehire list. My current address and phone number
are:
I do not wish to return to work at Chesa-
peake Plywood because I have found another job.
[G.C. Exh. 14(a).]
The General Counsel alleges that the above letter
threatening removals from the preferential hiring list in-
dependently violated Section 8(a)(1) as a restraint on the
right to strike I agree that, in the circumstances, remov-
al from the preferential hiring list was tantamount to dis-
charge. Hence, the consequence of failure to respond to
the May letter was forfeiture of the rights held by the
stokers under Laidlaw Corp., 171 NLRB 1366 (1968). As
such, the letter violated Section 8(a)(1) of the Act.
As matters turned out, eight employees (Eric Allbrit-
ton, Robert Davis, Joseph Greene, John H. Lutz, John
Palen, Edward Sanchez, Myron Schmidt, and Alice
Tarr) did not respond. Consistent with the above warn-
ing on or about 16 June 1986, Respondent, by mail, indi-
vidually terminated all eight, as follows:
By letter dated May 22, 1986 you were requested
to advise the company of your wishes to remain on
the preferential re-hire list. The letter stated that "if
no response is received by the company by June 5,
1986, your name will be removed from the prefer-
ential re-hire list."
Our records indicate that we received no re-
sponse from you and accordingly your name has
been removed from the preference re-hire list. [G.C
Exh. 4(b).]
In addition, former strikers Russell Brittingham and
Ricky Gailliard were removed from the preferential
hiring list because both signified that they had found
other employment and did not wish to return.
The General Counsel contends that elimination of
preferential rehire rights to the eight named employees,
as well as to Brittingham and Gailliard, violated Section
8(a)(3) and (1) of the Act.18
It is well settled that replaced economic strikers retain
their rights to recall until they obtain substantially equiv-
alent employment. Lone Star Industries, 279 NLRB 550
(1986). Conflict between that right and management's in-
18 Remedially, this allegation is probably cumulative in the case of all
but Brittingham and Gailliard because the former would seemingly qual-
ify as unfair labor practice strikers entitled to reinstatement and backpay
well prior to Respondent's action of 22 May
217
terest in ascertaining the striker's present and future
availability was the precise issue addressed in Charleston
Nursing Center, 257 NLRB 554 (1981). There, the Board
concluded that an employer could not terminate an eco-
nomic striker's reinstatement rights solely because the
striker failed to respond to the employer's request for up-
dated information. In so holding, the Board stated (at
556):19
Any termination of reinstatement rights based on
a failure to respond to such a periodic request
would be premature inasmuch as no job vacancy
existed at the time of the request. Further, the
burden on the employer would be slight: it need
only maintain a nonresponding employee's name on
the preferential hiring list until he is offered rein-
statement and either refuses or fails to respond to
the job offer The burden on the employee, howev-
er, is severe: termination of all reinstatement rights.
Even if the employer did not actually follow
through by terminating the employee's reinstate-
ment rights, the employee might be deterred from
inquiring about future openings. Therefore, we con-
clude that, although an employer may legally re-
quest replaced economic strikers to furnish current
information about their interest in reinstatement, an
employer may not require replaced economic strik-
ers ato respond to such a request or risk losing their
reinstatement rights.
Based on the foregoing, the termination of eight em-
ployees on 16 June solely because they failed to respond
violated Section 8(a)(3) irrespective of their status as eco-
nomic or unfair labor practice strikers. See Giddings &
Lewis, supra, 567. On the other hand, the like allegations
in the case of Brittingham and Gailliard shall be dis-
missed. As to them, there is no casual connection be-
tween the 22 May letter and their securing alternative
employment. The latter, not the former prompted them
to waive rights to recall as economic strikers. Coca-Cola
of Memphis, 269 NLRB 1101 (1984). Their intent to do
so was clearly manifested The information made avail-
able to the Respondent was sufficient to establish that
they preferred, on a voluntary basis, the "comparable
employment" they had secured. Cf. Lone Star Industries,
supra at 563.20
19 Although it is conceivable that a different result might follow where
the employer demonstrates a specific business necessity, that burden is
not met merely on a showing of "administrative convenience " See, e g,
Giddings & Lewis, Inc, 264 NLRB 561, 567 (1982), Penn Corp, 239
NLRB 45, 49 (1978), enf denied by an equally divided court in 630 F 2d
561 (8th Cir 1979) Enforcement of Giddings & Lewis, was also denied
710 F 2d 1290 (7th Cir 1983) However, the court agreed in principle
that a notice requirement designed to extinguish preferential hiring rights
of strikers is inherently destructive of employee rights The court also ac-
knowledged that "administrative convenience" does not rise to the level
of legitimate and substantial business justification 710 F 2d at 1285-1286
The court stated "[W]hile professed difficulties in locating employees
with preferred hiring rights alone cannot justify a notice requirement
such as the one before us, when those difficulties impede the growth and
progress of a company, then a notice procedure may be proper " 710
F 2d at 1287 No such showing is made here
20 No different result is required by cases holding that the employee's
preference will not be inferred simply from the fact that the striker, labor-
Continued
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. The misconduct discharges
(1) Preliminary statement
On or about.15 January 1986 Respondent terminated
six employees solely on grounds that they participated in
strike misconduct. All were covered by a prior offer to
return to work. The complaint alleges that Respondent
violated Section 8(a)(3) and (1) in each case.
Under established Board precedent, the discharge of a
striker is presumptively unlawful. However, rebuttal is
substantiated on the Employer's showing of an honestly
held belief that the striker engaged in the misconduct for
which he or she was discharged. See Rubin Bros. Foot-
wear v. NLRB, 203 F.2d 486 (5th Cir 1953). Not all mis-
conduct will suffice. The employer's burden is further re-
fined by the requirement that the "misconduct . .
under the circumstances existing . . . reasonably tend to
coerce or intimidate employees in the exercise of rights
protected under the Act." Clear Pine Mouldings, 268
NLRB 1044, 1046 (1984); Keco Industries v. NLRB, 819
F.2d 300 (D.C. Cir. 1987).21 Having proven these ele-
ments, the burden shifts to the General Counsel to estab-
lish that the employee did not in fact engage in the dis-
qualifying conduct. NLRB v. Burn up & Sims, 379 U.S. 21
(1964).
By the way of overview, it is noted that each of the
dischargees received identical letters from the Respond-
ent, which in material part stated as follows:
You have been identified as having engaged in seri-
ous misconduct while on strike. Accordingly, your
request for reinstatement is denied, and your em-
ployment is terminated effective this date.22
The decision to discharge the strikers was made by Ron
Roberts, general manager of Respondent's Wood Prod-
ucts division. The misconduct assigned consisted of al-
leged threats by the strikers to harm persons and proper-
ty, vandalism, and fighting.
In this regard, the General Counsel makes a sweeping
challenge to the right of Respondent to effect any mis-
conduct discharges in consequence of this strike. First, it
is argued that even in the event of serious misconduct
the discharge would be unlawful if the alleged miscon-
duct was a "spontaneous eruption of anger not intended
mg under economic pressures of an existing strike, had obtained another
job See, e g, K & K Transportation Corp, 262 NLRB 1481 (1982), and
cases cited at 1493 Dismissal here, however, would not alone affect Brit-
tingham and Gailliard's participation in any remedy that might have ma-
tured earlier in consequence of their status as unfair labor practice strik-
ers
21 Contrary to the General Counsel, the fact that a strike may have
been provoked by unfair labor practices imposes no obligation on an em-
ployer to act with greater leniency than in the case of economic strikers
Cf NLRB v Thayer Co, 213 F 2d 748 (1st Cir 1954) In arguing that any
misconduct here was outweighed by the Respondent's unlawful conduct,
the General Counsel overlooks Clear Pine Mouldings, supra at 1047 In an
apparent attempt to persuade that the Thayer doctrine remains viable, the
General Counsel cites PRC Recording Co, 280 NLRB 615, 650 (1986)
The General Counsel must have known that the views of the judge in
that case predated Clear Pine's repudiation of Thayer Moreover, the
judge's approach there obviously did not receive Board approbation For,
the Board upheld the discharge of all 24 unfair labor practice strikers as
lawful
"See G C Exhs 8(a)-(f)
to coerce strikers nor reasonably having that effect." The
General Counsel's position cannot be reconciled with
Clear Pine Mouldings. The test in that case in no sense
relates to the motive of the perpetrator, but turns on
whether the "misconduct ... may reasonably tend to
coerce or intimidate employees in the exercise of rights
protected under the Act." 268 NLRB at 1046. In any
event, here in each instance, as shall be seen, Roberts,
whether or not having a fair basis for his case against the
offender, at least acted on grounds reflecting a general
propensity to engage in "serious" misconduct, rather
than abstract emotionalism.
Equally without substance is the General Counsel's as-
sertion that the Respondent's failure to act earlier reflects
that it condoned any misconduct perpetrated by the
strikers. Such an inference assumes that employers are
duty bound to inflame an already tense situation by ef-
fecting discharges immediately upon receipt of incrimi-
nating evidence in the course of a strike. The Act does
not sanction an intrusion on business judgment in these
circumstances. NLRB v. Fansteel Metallurgical Corp., 306
U.S. 240, 259 (1939).
Finally, The General Counsel argues that an employer
is denied the privilege of terminating strikers if it fails to
discharge replacements who engage in like misconduct.
Firstly, the evidence of misconduct on the part of any
replacement here was not sufficiently identical to that of
any discharged striker to establish norms of acceptable
behavior. Thus, the evidence falls short of demonstrating
a disparate reaction in a statutory sense. Moreover, a
fundamental difference exists between strikers, whose
jobs are threatened by replacements, and the latter, who
are endeavoring access to a strike-bound plant. The re-
placements are furthering management's legitimate objec-
tive of continuing operations in the face of the strike; the
strikers have other designs Management's right to oper-
ate embraces the right to maintain a check on these de-
signs, through disciplinary action where necessary to
assure safe transport of those willing to work during an
extant or future work stoppage. In sum, the fact that one
nonstriker was not discharged despite an overly zealous
reaction to daily taunts from the picket line, or that the
Employer rehired a former striker, who while picketing,
engaged in coercive conduct, involved discretionary acts
consistent with the right to maintain operations during
the strike. These managerial steps were not taken on pain
of forfeiting the right legitimately to invoke disciplinary
machinery in the future.23
(2) The individual terminations
(a) Larry Smulhn
Prior to his discharge, Smullin had been employed by
the Respondent for about 7 years. Of the six discharges,
Smullin alone served in an official capacity within the
Union. Thus, he was a shop steward and a member of
the negotiating committee during the renewal negotia-
23 See , e g , Fibreboard Corp, 283 NLRB 1093 In 1 (1987 ), Longview
Furniture Co, 100 NLRB 301 (1952), NLRB v Fansteel Metallurgical
Corp, supra , NLRB v Community Motor Bus Co, 439 F 2d 965 (4th Cir
1971)
CHESAPEAKE PLYWOOD
tions in 1985 . The evidence against Smullin was limited
to the early days of the strike.
Ron Roberts testified that he elected to discharge
Smullin on the basis of threatening conduct towards
Roberts, himself; towards Plant Superintendent "Bob
Jack" Whealton ; and towards Maintenance Superintend-
ent Hugh Tims.
Tims, with corroboration from Whealton , testified that
on the first day of the strike on 23 July 1985 Smullin,
from the picket line, referring to Tims, shouted that
others should "drag the son-of-a-bitch out of his pick-up
truck" and "I ' ll stump his godamned [sic] ass." Wheal-
ton, who was following Tims in his own vehicle, con-
firmed the threat , also indicating that Smullin "lurched
forward as if he was going to grab Tims."24
Whealton testified to a second confrontation with
Smullin at the picket line which allegedly occurred a
few days later on or about 26 July. On that occasion, he
and Plant Manager Ed Carter were leaving the plant at
midmorning . Apparently as they crossed the picket line,
Smullin allegedly cursed Whealton , calling him an "s.o.b
and an m . f," shouting "stop your car and I ' ll whip your
ass." Smullin then got into the pickup truck of another
striker , Robert Allen, and with his head out the window
shook his fist at Whealton stating, "I ' ll get you sooner or
later."25
Finally, Roberts testified to a confrontation with Smul-
lin on the second day of the strike. At the time, Roberts
was in his car, which was parked near the picket line.
According to Roberts, a pickup truck driven by Smullin
came off the main highway , sped towards Roberts' vehi-
cle, veering off only at the last second . After repeating
this vehicular assault , Smullin pulled up alongside of
Roberts' car so that only a few feet separated the two.
After an interlude of name calling, Smullin approached
Roberts, who was still in the car , urging him to get out
of the car so he could whip his a-. Smullin then opened
the car door , stating he would pull Roberts out and
"beat the shit out of him," and then he would force Rob-
erts to sodomize him in front of everybody on the picket
line.
Based on this information , which was either perpetrat-
ed against or reported to Roberts , Smullin was dis-
charged Unquestionably , the threats and the assault of
Roberts, under Clear Pine Mouldings, supra, would con-
stitute serious misconduct warranting discharge of the
striker.
The General Counsel argues that the credible testimo-
ny demonstrates that the above accusations were either
overstated or did not occur. With respect to the Tims in-
24 In briefing the matter, the General Counsel cites Tims' testimony as
indicating that "Smullin made no movement towards Tims" In fact,
Tims merely testified that he did not observe Smullin move towards him
Furthermore, unlike the General Counsel, I see no conflict between the
testimony of Tims, who placed Smullin within a "large body of people"
and that of Whealton, who related that "Smullin was away from the
crowd about a foot or so " While criticism of counsel is always unfortu-
nate, in this instance misleading argumentation not only transcends rea-
sonable limits of advocacy, but has required a precise verification of all
assertions in a 153-page brief-a process that has significantly delayed
disposition of this case
25 Carter did not appear as a witness Allen had no specific recollec-
tion of-who said what during the incident
219
cident , Smullin admitted to being on the picket line on
23 July but could not recall Tims ' crossing the picket
line that day . He denied ever saying that he would whip
Tims' a- or kick his a-, nor did he ever threaten Tims,
or encourage others to drag him out of his truck. He
denied ever blocking vehicles during the strike or threat-
ening Tims on any occasion.26
Smullin admitted to exchanging curse words with
Whealton , but denied ever having made the threatening
remarks described by Whealton.
Concerning the Roberts incident , Smullin 's account in-
cludes important concessions He admits to confronting
Roberts as the latter sat in his car. He further admits to
opening the car door , while accusing Roberts of having
cursed him in retribution for an earlier confrontation. Fi-
nally, he admittedly invited Roberts to get out of his car
and to repeat what Roberts had said to him on that prior
occasion According to Smullm , the incident ended at
that puncture , whereupon he returned to his pickup and
went down to the picket line. Smullin denied that his re-
quest that Roberts come out of his car was an invitation
to fight . He denied ever driving the truck in a threaten-
ing or wreckless fashion . He denied cursing Roberts or
threatening him in any way.
On balance, I resolve the critical credibility issues in
favor of Respondent . It is my opinion that the General
Counsel has failed by persuasive , believable evidence to
disprove the threats of bodily harm addressed to Man-
agement Representatives Tims, Whealton , and Roberts.
Their combined testimony depict Smullin as out of con-
trol during the early days of the strike, with a propensity
to engage in the conduct attributed to him . My impres-
sion of Smullin reenforced my views as to the probabili-
ty and underlying truthfulness of this testimony by man-
agement officials . Accordingly , the General Counsel has
failed to meet his burden and the allegation that Re-
spondent violated Section 8(a)(3) and ( 1) of the Act by
discharging this striker shall be dismissed.27
26 William Tarr, a striker, offered testimony tending to exonerate
Smullin Unlike Smullm , Tarr claims that he did recall Tims crossing the
picket line on the first morning of the strike He claims that he was with
strikers Pete Hockett , Bobby Davis , Ralph Shreeves , and Smullin Tarr
claims to have been within 10 to 15 feet of Smullin Tarr also claims that
he, Hockett , and Smullin spoke at the same time , saying "well, there goes
the son -of-a-bitch in now " Tarr testified that he did not hear Smullin
threaten Tims in any way , nor do or say anything reflecting an intent to
attack Tims Striker Davis , who also claimed to have recalled the inci-
dent, related that on the morning in question there were probably 90 to
100 people in the area creating a lot of confusion Because of the yelling
and shouting, Davis relates that he could not really hear who said what
From this the General Counsel argues that Tims and Whealton could not
possibly have heard any remarks made by Smullin I disagree An indi-
vidual assailed generally is in a far better position to hear and recall than
a neutral bystander, whose interests and attention might well be else-
where
29 The General Counsel's proclivity to misspeak the testimony is evi-
dent in his comment that Julia A Taylor testified that Smullm did not
stoke Roberts' car, did not threaten to force Roberts to commit a sexual
act or otherwise to threaten Roberts To read the cold transcript allows
one to quickly perceive that Taylor had a limited recollection of the inci-
dent , and that her testimony was not that these matters did not occur, but
simply that she did not remember them She stated, "I only remember
two things that he did say " Counsel for the General Counsel's character-
ization of this testimony is incomprehensible in light of my expressed ad-
monition , during her testimony , that a witness ' avowed lack of recollec-
tion concerning an incident does not constitute proof that the incident
did not occur
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) William Taylor
Roberts testified that Taylor's discharge was grounded
on reports of misconduct by two employees who joined
the strike initially, but returned to work shortly after the
strike began.
First, employee Scott Hughes testified that he elected
to return to work a week after the strike began. The first
time he crossed the picket line Hughes claims to have
been confronted by Taylor, whose voice rose above the
shouting crowd to state that "they were going to get my
ass next ." Within 48 hours after that incident, all four of
the tires on Hughes' vehicle were slashed.
Employee Tom Golt testified to a similar experience
when he crossed the picket line. He had stayed out on
strike for about 10 days before deciding to return to
work. The first day back he crossed the picket line in a
vehicle driven by Plant Superintendent Whealton. Golt
testified, and an affidavit given to the Company on 13
August 1985 confirms, that on 7 August, the first day he
reported back to work, Taylor saw him in Whealton's
truck and yelled "Tom Golt, you son-of-a-bitch, I'll get
you.,,
In that same affidavit, Golt avers that he rode to work
with Whealton, who arranged to pick him up at the
Safeway parking lot. On the morning of 8 August, he
met Curtis Milbourne, another nonstriking employee, at
that location. As they waited for Whealton, striker
Turner and his wife drove by shouting profanities at the
two. After Milbourne cursed Taylor, the latter pulled
into the Safeway parking lot. Golt avers that he walked
over to the truck and asked Taylor what his problem
was. Taylor replied that Golt was his problem. Golt told
him that if he wanted to whip his a- he should get out
of the truck and do it. Turner told Golt to pull him out.
Golt said no, observing that Taylor had a wooden
"blackjack" about 1-1/2 feet long in his hand. Golt said
that if Taylor hit him with that he would retaliate by
hurting Taylor. Taylor then threw hot coffee a, Golt,
hitting him on the face, left arm, and chest.28
The evidence that William Taylor had threatened em-
ployees Golt and Hughes with physical harm, together
with the coffee throwing incident satisfied the Respond-
ent's initial burden under Clear Pine Mouldings, supra.29
28 Contrary to the General Counsel, Golt's affidavits do not disclose
that Respondent lacked an honest belief that Taylor engaged in disquali-
fying misconduct at the Safeway parking lot Though Golt admittedly
participated in an abusive verbal exchange with Taylor, it was Taylor
who elected, without invitation, to drive onto the Safeway lot, and
Taylor who raised the level of abusive behavior by throwing the coffee
Accordingly, I find that the Respondent was possessed of, and acted on,
information furnishing a reasonable basis for belief that Taylor had
threatened nonstriking employee Golt and then assaulted him Indeed, the
picket line threat to Golt corresponded, in kind, to that reported by
Hughes
29 Counsel for the General Counsel correctly observes that a stoker's
discharge may not be validated on the basis of misconduct not known at
the time of termination See, e g , Western-Pacific Construction Materials,
272 NLRB 1393 (1984) On this basis, the General Counsel urges that I
disregard the Hughes ' tire slashing incident because it was not mentioned
in a position paper submitted by counsel for the Respondent on 10 Febru-
ary 1986 See G C Exh 22(b) While this act of vandalism is rejected as
a basis for the discharge , in doing so , I rely solely on the fact that linkage
between the car damage and Turner is too speculative
In contending that Taylor did not engage in any seri-
ous misconduct, the General Counsel points to the testi-
mony of Taylor, his wife, his father-in-law, and another
striker, Robert Lee Davis. Taylor first denied having
threatened Hughes. Betty Taylor, his wife, and Al
Adkins, his father-in-law confirmed that they never
heard Taylor threaten Hughes. Davis related that he did
not hear Taylor threaten Golt, but did hear him call
Golt a "stupid son of a bitch." Taylor denied that the
coffee hit Golt in the face.30
More specifically, Taylor testified that during the
period when Golt supported the strike Golt told Taylor
that he had obtained a job in Washington, D.C., and had
no intention of returning to work at Chesapeake. Taylor
placed this remark on the day before the Safeway park-
ing lot incident. However, Turner went on to testify that
he first observed Golt cross the picket line the day after
the Safeway confrontation. Taylor avers that when he
observed this, he "was really disappointed in a way be-
cause he [Golt) had said he wasn 't going to cross."
Turner admitted that as Golt crossed, " I just said, there's
Thomas Golt, son-of-a-bitch, but I was more or less
speaking to myself." Taylor insisted that he made this
remark speaking to himself, and that Whealton's pickup
truck, carrying Golt, was then approximately 40 feet past
the picket line. It is strangely coincidental that Golt
who, according to Taylor, was in no position to hear his
remark would single out Taylor as engaging in coercive
conduct towards him on the occasion in question. It is
noteworthy that Turner denied ever saying anything else
to Golt as he crossed the picket line.
The sequence described by Taylor is also mystifying.
Thus, Taylor would have me believe that Golt's return
to work was unknown to him, and hence did not pro-
voke the Safeway altercation. He disassociates the
Safeway incident from his reaction to Golt from the
picket line by testifying that the latter stemmed from an
earlier remark by Golt that he had secured alternative
employment The more probable chronology is that re-
lated by Golt; namely, that the Safeway encounter was a
byproduct of the ill will evident from the picket line
threat of the previous day.
On balance, having considered all the testimonial evi-
dence, that of Golt, Hughes, Milbourne, and Roberts is
preferred and based thereon'31 it is concluded that the
Respondent has established by credible proof that Wil-
liam Taylor did in fact engage in misconduct sufficiently
serious to warrant his discharge. Accordingly, the 8(a)(3)
and (1) allegations in this respect shall be dismissed.
30 Taylor, in his prehearing affidavit, simply stated that he threw his
coffee at Golt
Si Nonstriking employee Curtis Milbourne, who witnessed much of the
incident, did not observe the coffee being thrown, but described Golt im-
mediately after the incident as showing evidence that he had been hit in
the face and across the upper body with a hot liquid Roberts saw similar
evidence on the face and shirt of Golt when the latter arrived at the
plant that morning, describing him as very upset Taylor and his wife
insist that Milbourne, the only outside eyewitness, had his back turned
towards them Particularly unbelievable was the testimony of Betty
Turner that Milbourne had his back turned during the entire incident By
her own account, she was not in a position to observe him at the same
time as she was witnessing what was going on between her husband and
Golt
CHESAPEAKE PLYWOOD
(c) Donald Hemmian
According to Ronald Roberts, Hemmian was terminat-
ed on the following grounds: (1) fighting with nonstrik-
ing employee Darryle Dennis, (2) threatening strike re-
placement Tim Revels, (3) vandalizing vehicles owned
by Revels, and (4) vandalizing an automobile owned by
nonstriking employee Milbourne.
With respect to the vandalism allegations , the evidence
does not establish that Hemmian was responsible. He
denied damaging any of the vehicles. There was no eye-
witness. Testimony of Milbourne and Revels did not fur-
nish a reasonable basis for either honest implication of
Hemmian or rejection of his denial. First, in the case of
Milbourne, during the earlier stages of the strike, he re-
turned home from work to find four holes in the wind-
shield of his car. The only evidence linking Hemmian
with the incident was a neighbor's report that Hemmian
and another individual, identified only as a man having a
beard, were standing in front of Milbourne's house that
same day.32 Milbourne's house actually was divided into
separate apartments, one of which was occupied by
Diana Jones. Diana Jones was a nonstriking employee
who also was a member of the negotiating committee.
She is Hemmian's sister . Not only was it customary for
Hemmian to be in the immediate area,33 but he testified
credibly that he lived only 2 or 3 blocks away. Hemmian
testified that he had reason to be in the area of Mel-
bourne's apartment regularly, and denied ever vandaliz-
ing his car or knowing who did. Both Hemmian and
Collins denied that they had ever ridden in the same car
together. In this respect, I believed Hemmian' s denial
and conclude that he did not vandalize Milbourne's car.
Accordingly, this incident would not justify a refusal to
reinstate Hemmian.
Hemmian was also implicated in strike misconduct by
Tim Revels, a strike replacement. The latter was sched-
uled to begin work on Tuesday, 6 August. In statements
given to Respondent, Revels avers that over the prior
weekend, on two occasions, striker Anthony Jenkins
threatened to damage Revels' car. Revels, who lived
down the street from Curtis Milbourne, averred that on
Wednesday, 7 August, he learned of the damage to Mil-
bourne's car. Accordingly, Revels checked his own vehi-
cles only to find holes in the side of his car and a hole in
the windshield of his van. In his statements, Revels ac-
knowledged that he did not know who damaged his ve-
hicles. Despite the threats attributed to Jenkins, Hem-
mian apparently was implicated because Milbourne lived
nearby, because the damage to Milbourne's car was simi-
lar to that done to his own, and because Marla Nunn, a
neighbor, identified Hemmian as being in the area that
32 Contrary to a statement appearing in Respondent's brief, the record
does not reflect that Melbourne "was told that Hemmian and Jennis Col-
lins were responsible for the damage "
33 Milbourne apparently assumed that Jennis Collins was the individual
identified as being with Hemmian in the area that morning He acknowl-
edged that he never confronted either Milbourne or Collins concerning
the incident, but assumed that Collins was the man with the beard be-
cause he had see Collins in a car riding with Hemmian at some time
during the course of the strike Milbourne also suspected Collins, be-
cause , after the incident, Collins, who, like himself, was a member of the
American Legion, ceased attending meetings of that organization
221
same day. Interestingly enough, Roberts avers that Jen-
kins was terminated, at least in part, because of his re-
sponsibility for damage to Revels' vehicles. Jenkins was
never identified as present in the area with Hemmian that
day. In any event, even assuming that Respondent held
an honest belief that Hemmian was responsible for the
damage to Revels' vehicles-which it did not-it is con-
cluded that he was not involved in Revels misfortune
and this event would not furnish legitimacy to Respond-
ent's action in terminating Hemmian.34
Revels also testified to a confrontation with- Hemmian
on the picket line. He claimed that during the first week
of his employment, 35 as he was leaving work Hemmian
jumped out holding his hands in front of Revels' car, and
stating that they were on private property but if Revels
would go to the state highway, Hemmian would whip
his a- Hemmian climbed the hill to the guardrail, but
as he did so the state police appeared , so Hemmian
left.36 Hemmian admitted to observing Revels cross the
picket line, but denied that he ever jumped in front of
Revels' car or that he ever said anything to Revels other
than to call him a "scab." He denied threatening or invit-
ing Revels to fight. I believed Revel and credit him over
Hemmian , and the latter 's sister , Diana Jones.37
The final ground offered in support of Hemmian's ter-
mination derived from his fight with nonstriking employ-
ee Darryle Dennis. Grace Dennis, Darryle's mother,
started working for the Respondent as a strike replace-
ment on 20 August. Previously, she had a conversation
with Hemmian, who urged her to dissuade Darryle from
crossing the picket line, implying that if Darryle did so,
she would find him in an alley with a piece of pipe run-
ning up the side of his head Later, according to Grace
Dennis, she received an anonymous phone call stating
that if she did not talk to Darryle she would be dragging
him from an alley. Dennis, who had known Hemmian as
a neighbor for a long time, testified that the voice on the
telephone sounded like Hemmian.
34 As I read the Respondent's posthearing brief, no argument is made
to support Robert's effort to link Hemmian with the damage to Revels'
vehicle
35 His testimony states that it was during the first week of the strike
This could not have been the case More reliable is Revels' affidavit,
given to the Company's attorney, which indicates that he started work
on 7 August See R Exh 13(a)
36 Revels did not list this incident in the written statements he gave in
August 1985 This might well be explained by the possibility that the
confrontation occurred after he gave those affidavits The incident was
mentioned in an affidavit given the Board, which was referred to during
cross-examination of Revels
3Y Revels identified Diana Jones as present on the picket line at the
time of that incident Jones testified that there was never a time in her
presence when Hemmian jumped in front of Revels' car, nor did she ever
"hear" Hemmian threaten Revels She also denied ever observing Hem-
mian encourage Revels to fight If Jones was present that day, and in a
position to observe her brother during the entire incident, her testimony
would corroborate her brother's denials At the same time, however,
Revels impressed me as an entirely credible witness, and I do not believe
that he concocted this elaborate story Moreover, the incident described
by Revels, to a significant degree, corresponds with propensities evident
in Hemmian's admission that prior to an altercation with Darryle Dennis,
he left the picket line, ran up the hill, sat on the guardrail, and ultimately
became engaged in a fist fight with Dennis on the shoulder of the state
highway
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Darryle Dennis was a student at the University of
Maryland, Eastern Shore. He had a history of summer
employment with the Respondent dating back to 1982.
During the first week of the strike, he did not report to
work, but because he needed the money he decided to
cross the picket line. Dennis confirmed that his mother
had passed Hemmian 's warnings on to him. Dennis testi-
fied that about 4 or 5 days after his return he was late
leaving work, and as he passed through the picket line,
Hemmian hollered that he had something for Dennis and
to meet him up on the state highway. Dennis responded
that he had to go that way anyway. By the time the car
in which Dennis was a passenger reached the state high-
way, Hemmian had already climbed the hill and was
seated on the guardrail. According to Dennis, Hemmian
approached the car and swung at Dennis before he he
had a chance to get out. When he did so, he and Hem-
mian grabbed and started hitting each other. The fight
was stopped by a number of pickets and the police.38 On
the basis of his accounting of the incident, bolstered by
Grace Dennis' reports of Hemmian 's alleged threats it is
concluded that Respondent, through Roberts, had a rea-
sonable basis for belief that Hemmian engaged in dis-
qualifying misconduct in this connection.39
Hemmian is 5 feet 4 inches tall and weighs 130
pounds. Dennis is 6 foot 3 inches tall. Nonetheless Hem-
mian's account of the incident acknowledges that he left
the picket line, climbed the hill,40 and waited for Dennis
on the state highway. According to Hemmian, he sat on
the guardrail waiting 2 or 3 minutes for the Dennis car
to clear the traffic and enter the highway. The Dennis
car passed, but then pulled onto the berm. Dennis got
out and approached Hemmian. Hemmian stood up and
threw his glasses in the weeds. According to Hemmian,
Dennis attempted the first blow, which he blocked. The
pickets then approached and broke up the fight, dust as
the police arrived.
It is undisputed that both were charged criminally
with assault , battery, and obstruction of a public high-
way. They were subsequently released on their own re-
cognizance, and told to stay away from each other The
charges against Hemmian were never brought to pros-
ecution . Dennis entered a plea of nola contendre to a
charge of disturbing the peace and, without a finding of
guilt, was placed on unsupervised probation. He was
found not guilty of assault and battery.
Hemmian denied the threatening comments attributed
to him by Grace Dennis, denying that he even spoke
with her concerning Darryle Dennis' employment during
the period prior to the fight. He also denied ever tele-
31 Counsel for the General Counsel asserts that the testimony of Dar-
ryle Dennis contained "omissions , inconsistencies and contradictions "
From my view, the omissions were as to nonessentials The contradic-
tions and inconsistencies are in the mind of counsel , and in no way sur-
face from an objective reading of the testimony Dennis was neither an
unresponsive nor evasive witness
ss The General Counsel would disagree, citing the fact that Roberts
did not interview the dnver of the vehicle in which Dennis was the pas-
senger I know of no policy requiring an employer to obtain corrobative
proof as a precondition for asserting its right to terminate a striker on a
good-faith belief
40 The fight took place on the berm of a public highway at a site rising
approximately 50 feet above the picket line
phoning Grace Dennis or making a telephone threat to
her family.
As should be obvious, Hemmian's testimony in materi-
al areas disagree with that of Dennis in terms of the ini-
tial provocation and who struck the first blow. The bal-
ance of the conflict merely entails incidentals. As for the
former, the scenario depicted by Dennis is to the effect
that Hemmian was on the driver's side of the road leav-
ing the premises , while Dennis was on the passenger side
of the car in which he was a passenger. As the car
passed, Hemmian and another picket were hollering
"scab ." Hemmian denied that he said anything else. With
this, according to Hemmian, Dennis told Hemmian "to
meet him up on the highway." Hemmian admits to then
running up the hill and waiting on the guardrail 41
All witnesses agree that when Dennis' car crossed the
picket line, the pickets and strikers in the area were all
yelling scab as the car passed. There is no evidence that
Dennis and Hemmian previously had any differences,
and it is fair to assume that their altercation stemmed di-
rectly from Dennis' role as a striker. Yet, Hemmian char-
acterized his own conduct at that time as no different
from that of the other strikers. If that were so, why
would Dennis have singled him out?42 I am convinced
that in this respect, Hemmian was not entirely forthright.
Upon consideration of all the facts, the demeanor of
the witnesses and the probabilities, I am convinced that
Hemmian provoked the fight with Dennis. His agressive
predelictions, as evidenced by confrontations with
Dennis and Revels, were not curbed by his smallness of
stature. Accordingly, it is concluded that the fight
evolved from provocative remarks made by Hemmian to
the mother of Dennis which were again reenforced by
Hemmian's action on the picket line immediately prior to
the fight.43 Based on his threats of bodily harm and his
role in provoking the fight, together with its potential
for widespread disruption-taking place at a location so
near a picket line-Hemmian engaged in striker miscon-
duct rendering it legitimate for Respondent to discharge
him. Accordingly, the 8(a)(3) and (1) allegation in this
respect shall be dismissed.44
4i The General Counsel called striker Percy Watts, who was unaware
of who invited who up the hill or who struck the first blow Josephine
Bryant, another striker, testified that it was Hemmian who hollered out,
"alright, I'll meet you on the hill " She was not sure just what Dennis
might have said to provoke such a remark , but she surmised that Dennis
must have said something about "meet me up the hill " She testified that
it was Dennis that struck the first blow
42 Counsel for the General Counsel points to the fact that Respondent
did not call the driver of the Dennis vehicle, A Hughes, and urges an
inference that testimony by the latter would have supported Hemmian
The suggested approach is too mechanistic, I prefer to resolve the con-
flict in light of probabilities suggested by all the evidence, while noting
that the record does not disclose that this individual was available to the
Respondent
4a The General Counsel called a number of witnesses to corroborate
Hemmian Thus , all saliant aspects of Hemmian 's account were confirmed
by strikers Lawrence Bennett , Rickey Gailliard, Diana Jones, and Eliza-
beth Marshall In rejecting the testimony of Hemmian and the strikers, I
note that probabilities, not numbers, are at the cornerstone of my analy-
sis
44 The claim of disparate treatment founded on Respondent 's failure to
discharge Dennis is nonmeritonous Simply put, Dennis did not provoke
the fight, and to this extent their conduct was dissimilar
CHESAPEAKE PLYWOOD
(d) Jennis Collins
Collins was discharged in violation of Section 8(a)(3)
and (1) of the Act. Respondent had no honest belief that
he engaged in misconduct. Also persuasive is the proof
that Collins did not do so.
Collins was discharged on the basis of his alleged in-
volvement in vandalizing the vehicles owned by Revels
and Milbourne. The Respondent had no eyewitness to
the vandalism. Milbourne, the sole source of information
to the Respondent concerning damage to his vehicle,
merely reported his own speculation that Hemmian and
Collins were responsible. That Milbourne's opinion was
unsupported by direct proof should have been clear to
Respondent. Thus, Milbourne's report concerning the in-
cident was limited to the following:
The reason I know that Hemmian and Collins were
involved is because my neighbor Marla (I don't
know her last name). told me that she saw these
men . . in the front of my house on the day the
damage was done. She didn't see them do the
damage. I have not confronted these men about the
damage to my car.
Respondent concedes that, prior to the discharge, it
made no effort to seek out Marla (Nunn). This, despite
the fact that on the face of the Milbourne affidavit the
identification was based on assumption, rather than ob-
servation, and made even less reliable by its dependency
upon rank hearsay. Considering the frailties of these alle-
gations, it is difficult to imagine that Milbourne was not
questioned further Had it done so, Respondent would
have learned that Marla Nunn was not even in a position
to identify Jennis Collins. She merely told Milbourne
that Hemmian was accompanied by "the gentleman with
the beard." Milbourne merely deduced that Collins was
in the company of Hemmian because he had once seen
the two of them riding together, and because Collins
after this incident terminated his practice of attending
American Legion meetings.45 Had Respondent inquired
of Marla Nunn, it would have learned that she had never
before even seen Collins.
Respondent's evidence is even thinner in the Revels'
case. There was no evidence identifying Collins, or
anyone resembling him, in the vicinity of vehicles owned
by Revels. In this regard Revels merely states:
On August 7 my car and van were damaged I have
no actual knowledge as to who did the damage to
my vehicles. However, Marla Nunn lives on Clark
Avenue in Pocomoke told Curtis Milbourne that
Donald Hemmian was near the Milbourne's house
at the time of the property damage. Milbourne's car
was damaged on the same day as mine. Milbourne
45 It is doubtful that the American Legion could have contributed to
Melbourne's initial assumption that Collins was involved The damage
was done on 7 August His affidavit naming Collins was dated 14 August
Thus, Melbourne had arrived at his conclusion only a week after his car
was vandalized, a time interval insufficient to support any notion that
Collins abandoned his interest in the American Legion See R Exh
12(b)
223
lives two blocks from me. Hemmian is a striking
employee.
Respondent has failed to suggest that it acted against
Collins on any other factual grounds. In the circum-
stances, to conclude that the action against Collins was
supported by an honest belief would merely reenforce a
wrecklessness on the part of managers at the expense of
more worthy statutory considerations. The obligation
that employers act in good faith when disciplining strik-
ers is not designed to impose a rigid burden. The Board
will not intervene solely because the underlying investi-
gation did not meet optimum standards of thoroughness,
nor will management's judgment be scrutinized closely
At the same time, the onus placed on employers by
Burnup & Sims, supra, was designed to accommodate
management 's right to maintain discipline, while preserv-
ing the Section 7 right to strike Consistent with this bal-
ance, precedent fails to acknowledge that naked accusa-
tion suffices to fulfill the employer' s initial evidentiary
burden. General Telephone Co., 251 NLRB 737, 739
(1980); NLRB v. Moore Business Forms, 574 F.2d 835,
842-843 (5th Cir. 1978). Respondent's case against Col-
lins goes no further. Accordingly, Respondent did not
discharge Collins, while possessed of an honest belief
that he offended the property of anyone. In any event,
even were I to conclude otherwise, since I credit Collins'
denial that he did so,46 Collins, as a striker, who was the
subject of an unconditional offer to return to work, was
unlawfully discharged on 16 January 1986 in violation of
Section 8(a)(1) and (3) of the Act.
(e) Anthony Jenkins
The discharge of Jenkins was predicated on allegations
by strike replacement Revels. According to Revels, on
the weekend prior to his reporting for work, during the
first week of August, he was at a local playground.
Striker Jenkins was also present. After a basketball game,
as Revels was leaving, Jenkins pointed him out saying
"there goes one of them that's suppose to start work
Monday." Jenkins allegedly added if Revels did so ". .
they were going to f-k [Revels] up."
In a further incident involving Jenkins, Revels testified
that at a car wash the next day Jenkins approached him
as he was wiping off his car and stated "yeah, she clean
. . . you go over there to work . . I'm going to throw
some stones on it and f-k it up." Revels replied, "suit
yourself, the car is fully insured."
Milbourne and Revels rode to work together. Revels
went to work on the first Monday in August as sched-
uled. As indicated, during that week his car and the
windshield of his van were damaged by either stones or
a pellet gun. This was discovered the same day as Mil-
bourne discovered the damage to his car.
Based on Revels' account, Respondent possessed prima
facie evidence of Jenkins' alleged threat of harm to his
person and property. In this light, Respondent could
rightfully infer, based on the timing of the damage to
46 I also credit Collins' testimony that he never at any time rode in a
vehicle with Hemmian
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Revels' vehicles, and the nature of the threat made by
Jenkins, that he was responsible for the vandalism.
Hence, Respondent had a good-faith belief that Jenkins
engaged in disqualifying misconduct.
The foregoing was denied by Jenkins. He claims that
he first learned that Revels was working for Chesapeake
during the strike sometime after 12 September when
Revels approached him at the pool hall accusing the
strikers generally of putting holes in his car and van be-
cause he went to work.47 According to Jenkins, when
he indicated that he would do nothing like that because
he had a car of his own Revels allegedly said "I don't
think you did it anyway," indicating that he believed
that it was Hemmian . Jenkins related that he had a good
relationship with Revels before the strike and had never
had a problem with him. Jenkins added that he has had a
fine relationship with Revels since the strike ended.
Here again , I find Revels the more credible witness.
He impressed me more favorably on the basis of demean-
or, and his account seemed more plausible. I find it diffi-
cult to believe that Revels would have approached Jen-
kins in a pool hall about a month after he had given in-
formation to the Respondent accusing Jenkins of threat-
ening remarks and, based on them, implicating Jenkins,
at least circumstantially, in the damage to his car More-
over, the record fails to suggest any basis for suspecting
that Revels might have concocted the accusations out of
any grudge or ill will towards Jenkins As I credit
Revels over Jenkins, it is concluded that the General
Counsel has not established by a preponderance of the
evidence that the misconduct did not occur. According-
ly, the 8(a)(3) and ( 1) allegations in this case shall be dis-
missed.4 8
(f) Ronald Hockett
According to the Respondent, the several acts of mis-
conduct leading to the termination of Hockett occurred
the very first few hours of the strike. Two incidents
were involved, the first being an alleged threat to em-
ployee Herbert Mossett, and the second involved rock
throwing in the environs of the picket line.
It will be recalled that the strike began at midnight on
23 July. Mossett testified that after attending the union
meeting on 22 July he decided against supporting the
strike. Mossett was scheduled to commence his next shift
at 11:10 p.m on 22 July. He arrived at the plant that
evening , well before the start of his shift, at approximate-
ly 10 p.m. He parked his car in the management parking
lot. Hockett's shift was from 3.30 to 11:30 p.m. Mossett
avers that Hockett, who was then working, approached
him in the parking lot and inquired whether he was re-
turning to work. Mossett ignored Hockett and rolled up
47 Jenkins denied ever seeing Revels at the basketball court This de-
spite the fact that both Revels and Jenkins testified that they both visit
the basketball court during the summer
48 Although Revels was not recalled by the Respondent to refute the
pool hall statements, in this instance, the judgment not to do so by Re-
spondent 's attorneys does not create a negative implication that overrides
my judgment that Jenkins was not telling the truth Moreover, the fact
that Revels' preheating statements were not verbatim replications of, or
as complete as his testimony , does not offend the substantive consistency
of his account on the critical issues, nor shake my confidence in his ve-
racity
his window. Hockett commented: "You don't plan on
working do you?" Mossett still did not reply, whereupon
Hockett allegedly stated, "I feel sorry for your damned
house." At that juncture, Mossett left the plant premises
and went home.49
Mossett's account provided prima facie grounds for
terminating Hockett. Hockett's remark was a clear threat
to damage Mossett's home. Contrary to the General
Counsel, I fail to see how the relatively greater size and
weight of Mossett could have any relevance to the possi-
bility that such a threat would have been carried out.
Hocket admits that he was walking around outside the
plant during his shift that evening, but claims that later
his foreman told him to remain inside because the Com-
pany was concerned about sabotage. He denied that he
was outside the plant after 5 p in He denied seeing Mos-
sett at the plant, communicating with him, or ever
threatening him in any way. I believed Mossett, who im-
pressed me as entirely trustworthy. I cannot accept that
the incident was a product of imagination As the Gener-
al Counsel has failed to establish by credible proof that
the threat was not made, the tendency to intimidate a
nonstriker inherent therein alone warrants dismissal of
the 8(a)(3) and (1) allegations in Hockett's case.
However, there is also the rock-throwing incident.
Salem Equipment Company was a contractor retained by
Respondent to install equipment on its premises. It is un-
disputed that between 6:30 and 7 a.m., on 23 July, three
vehicles operated by employees of Salem crossed the
picket line. After an attempt to block the lead vehicle, a
rock was thrown from the picket line breaking the
window of that truck. Raymond Brown, an employee of
Salem, who was in the middle vehicle testified that the
man who threw the rock was caucasian, 6 foot, slender,
with shiny brown hair and a mustache. Brown testified
that as he went through the picket line, and he observed
the same individual through his outside rearview mirror.
Brown, and a striker who ultimately crossed the picket
line, Robert Allen, offered the only testimony specifying
Hockett as the person responsible. Reports containing
general descriptions of the individual involved were also
obtained from two other employees of Salem.
The General Counsel's attack on the evidence devel-
oped through Brown and other representatives of Salem
Equipment is well taken. Thus, neither Brown nor his
coworkers who reported the incident on 23 July were
ever asked to return to the picket line to identify the
striker.50 Failure to take this step is difficult to under-
49 The incident , and Mossett 's reaction , were reported to management
See R Exhs 15(a) and (b)
10 In his statement provided to the Company on 23 July Brown identi-
fied the striker involved as "a tall, slender white male " There was no
mention of a mustache See R Exh 3(a) On 23 July, Respondent also
secured statements from Salem employees Darwin Lamb and Richard I
Smith Neither testified and apparently , unlike Brown , neither subse-
quently identified the rock thrower with any specificity Thus, Darwin
Lamb, averred in his statement that he did not observe who threw the
rock , but appears to surmise that the culprit was an individual whom he
did not describe as wearing a mustache See R Exh 3(b) Smith, who
claimed to have observed the rock thrower, merely, identified him as "5
foot, 10 inches to 5 foot 11 inches in height, about 165 to 170 pounds in
weight, white, male with dark hair " Here again, there was no mention of
Continued
CHESAPEAKE PLYWOOD
stand in light of the generalized description they afford-
ed, and the fact that the Salem employees crossed the
picket line everyday for 3 or 4 weeks thereafter. In fact,
as I understand Brown's testimony, he was not offered
the opportunity to provide a specific identification until
February 1987, a year and a half later. This of course
was some 13 months after the discharge of Hockett.5 i
Thus, it is clear that Respondent effected the discharge
without benefit of Brown's identification of Hockett.
Nonstriker Allen was the only remaining source of
evidence. He testified that he observed the trucks cross
the morning of 23 July. He saw a rock thrown at the
first vehicle, but could not identify who threw the rock
other than to say that Hockett was in the vicinity of
"where the rock hit." On the other hand, Allen testified
that he personally observed Hockett throw a rock at the
second truck.52 However, Allen was confused as to
when he initially reported this to the Respondent. On ex-
amination by the General Counsel, Allen claimed that it
was about the time he supplied Respondent with his affi-
davit dated 31 January 1986. It is considered entirely
likely that this was the case, and I find that Respondent
had no access to Allen's account prior to the discharge.
Roberts could not recall whether he discussed the matter
with Allen "prior to the end of the strike."
From the foregoing, it is apparent that at the time of
the discharge the only evidence available to Respondent
were statements from the Salem employees. Not one
identified Hockett and, indeed, the generalized descrip-
tion they provided would not confer fair basis for charg-
ing Hockett, who is only 5 feet 8 inches tall and was
mustached at the time.
Accordingly, the issue of whether Hockett actually
threw the rocks need not be reached, as it is concluded
that Respondent acted without evidence reasonably lead-
ing to the conclusion that Hockett was the guilty party.
Nevertheless, the threat to Mossett was an unmitigated
attempt to intimidate a coworker, and itself constituted
serious misconduct furnishing an independent justifica-
tion for terminating Hockett. Accordingly, the 8(a)(3)
and (1) allegation in his case shall be dismissed.
a mustache See R Exh 3(c) It is not without significance, that aside
from race, one of the most distinct features on the individual depicted on
G C Exhs 17(a) and (b) is his mustache Roberts testified that based on
the description accorded by Brown , Smith, and Williams he concluded
that Hockett threw the rocks In view of the lack of symmetry between
their observations and Hockett's physical characteristics, it is difficult to
believe that Roberts could have arrived at this conclusion and I discredit
his assertion that he did
51 Respondent requested that Brown make the identification in Febru-
ary 1987 from photographs forwarded to Brown by mail In these photo-
graphs Hockett is the only caucasian pictured , whose features are reason-
ably distinguishable See G C Exh 17(a) Thus, the General Counsel ob-
serves , convincingly , that Brown ' s selection was channelled through a
process that was uncomplicated by alternatives Absent such options, and
the broader sampling they would present, I agree that Brown's designa-
tion was thoroughly unreliable
52 In the light of Allen's specific testimony in this respect, I find it dif-
ficult to understand the General Counsel 's comment that Allen "was
unable to offer a reliable account to Respondent of who threw the
rock(s) "
225
3. The poststrike refusals to bargain
a. The withdrawal of recognition
Following termination of the strike, a meeting was
scheduled by the parties for 17 March 1986. By telegram
dated 13 March 1986, the Respondent informed the
Union as follows:
Chesapeake Plywood has objectively based good
faith doubt that IWA Local 5-346 continues to have
support of the majority of employees. An NLRB
petition will be filed. Meeting scheduled for
3/17/86, therefore inappropriate to hold and is can-
celled. s a
That very day, a petition bearing signatures of 140 em-
ployees had been presented to the Respondent. That doc-
ument advised that those signing no longer wished union
representation.54 At the time, the unit consisted of 250
employees. Of these, 195 were actively employed, 62
were on the preferential rehire list, and 1, Jennis Collins,
heretofore has been found to have been unlawfully dis-
charged.
Respondent does not dispute that this action was tanta-
mount to a withdrawal of recognition, effectively termi-
nating the bargaining relationship. The General Counsel
contends that Respondent thereby violated Section
8(a)(5) and (1) of the Act. In the circumstances present-
ed, the General Counsel's initial burden is aided by the
presumption outlined by the Board as follows:
It is well settled that a certified union , upon expi-
ration of the first year following its certification [or
voluntary recognition], enjoys a rebuttable pre-
sumption that its majority representative status con-
tinues This presumption is designed to promote sta-
bility in collective-bargaining relationships, without
impairing the free choice of employees. According-
ly, once the presumption is shown to be operative, a
prima facie case is established that an employer is
obligated to bargain and that its refusal to do so
would be unlawful. The prima facie case may be re-
butted if the employer affirmatively establishes
either (1) that at the time of the refusal the union in
fact no longer enjoyed majority representative
status; or (2) that the employer's refusal was predi-
cated on a good-faith and reasonably grounded
doubt of the union's continued majority status.55
However, the defense's proven loss of majority will not
necessarily end the inquiry For, such evidence may only
be asserted in good faith, free of employer instigation
and influence. Furthermore, the expressed doubt of ma-
Jonty will not be entertained in a context in which em-
ployee defections are attributable to unremedied unfair
labor practices. See, e .g., Southern Wipers Co., 192
NLRB 816 (1971).
ss See G C Exh 9(d) On 24 March 1986, Respondent filed an election
petition in Case 5-RM-930 See G C Exh 9(f)
54 See G C Exh 19
55 Terrell Machine Co, 173 NLRB 1480, 1481 (1969)
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel does not argue that Respondent
was in any way a participant in initiation , preparation, or
distribution of the petition. Instead, the General Counsel
argues that the petition was tainted and did not reflect
the freely expressed will of the majority of the employ-
ees in the unit because it was developed in the context of
Respondent 's unfair labor practices . In this connection, it
is noted that prior to the March 1986 withdrawal of rec-
ognition the Employer violated Section 8(a)(5) and (1) of
the Act by insisting to impasse on a nonmandatory sub-
ject of collective bargaining, a violation that caused and
prolonged the strike commencing on 23 July Respond-
ent also has been deemed to have violated Section 8(a)(3)
and (1) of the Act by failing, on termination of the strike,
to reinstate strikers within 5 days of their unconditional
offer to return to work. Finally, having found that em-
ployee Jennis Collins did not engage in disqualifying mis-
conduct during the strike, Respondent, in discharging
him, further violated Section 8(a)(3) and (1) of the Act.
Despite these illegalities , the General Counsel is not fa-
vored by a per se rule. Guerdon Industries, 218 NLRB
658, 661 (1975). The 8(a)(5) violation will only be found
upon a showing "that the Union's decline in support was
attributable to the employer's misconduct . . . [a]bsent
such evidence, the employer prevails." Hotel & Restau-
rant Employees Local 19 v. NLRB, 785 F.2d 797, 799 (9th
Cir. 1986), enfg. 273 NLRB 1001 (1984). In this regard,
the General Counsel must establish that "the unfair labor
practices committed . . were . . . `sufficiently serious
. .. that they possessed an inherent tendency to [con-
tribute] to the union's loss of majority status."' BASF
Wyandotte Corp, 276 NLRB 1576, 1577 (1985). In other
words, the unlawful conduct must be of such a character
"as to affect the Union's status, cause employee dissaffec-
tion, or improperly affect the bargaining relationship
itself." See Guerdon Industries, supra, 661.
Consistent with the foregoing, the record confirms
that the Employer's bargaining strategy set in motion a
chain of events whose ultimate consequence was loss of
majority. The unlawful insistence on EEO changes con-
tributed to strike action that continued while the Compa-
ny hired replacements. When the strike ended, the re-
placements were unlawfully retained to the prejudice of
unfair labor practice strikers. At that juncture, the re-
placements held jobs of discriminatees and hence were
ineligible to express themselves on the issue of union rep-
resentation. See, e.g., Jacques Syl Midwear, 247 NLRB
1525, 1533 (1980). Their unlawful retention was not rem-
edied prior to the withdrawal of recognition. In these
circumstances , aside from the question of whether
weight ought be given to the preference of replacements,
the cessation of the strike created an aura of competition
for jobs that, quite forseeably, would stimulate a pro-
nounced antiunion reaction on the part of the replace-
ments. Accordingly, the Respondent, having unlawfully
provoked the strike and then having failed to remedy the
discrimination against the participants created the scenar-
io jeopardizing the Union's retention of majority status
within the grouping composed of strikers and replace-
ments. In these circumstances , the nexus between the loss
of majority and unlawful conduct is sufficient to pre-
clude legitimate , termination of the bargaining relation-
ship Having done so, Respondent violated Section
8(a)(5) and (1) of the Act.
b. The failure to provide information
The complaint further alleged that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by refusing since on
or about 5 April 1986 to provide the Union with infor-
mation necessary and relevant to the Union's perform-
ance of its representative function.
The facts demonstrate that on 3 April 1986 the Union
requested ( 1) the names , addresses , phone numbers, rates
of pay, and seniority of all employees then working at
the plant ; (2) the names, addresses , and seniority dates of
employees not working, but retaining recall rights, and
(3) the method used by the Employer to select employ-
ees for recall. The Respondent concedes that it declined
to provide the requested information. Under established
precedent, employers are obliged to provide requested
information that is relevant to the Union's discharge of
its statutory duties and responsibilities. NLRB v. Acme
Industrial Co., 385 U.S. 432, 437 (1967). "Where the re-
quested information concerns wage rates, job descrip-
tions, and other information, pertaining to employees
within the bargaining unit , this information is presump-
tively relevant." Pfizer, Inc., 268 NLRB 916, 918 (1984).
Moreover, during the period after a strike, where re-
placements have been retained over strikers, the informa-
tion sought here would be relevant to assessment of em-
ployment rights within the unit, and to the question of
whether rights of strikers are being properly recognized.
See Crouse-Irving Memorial Hospital, 271 NLRB 1044,
1046-1047 (1984). Georgetown Holiday Inn, 235 NLRB
485, 486 (1978). On the foregoing, it is concluded that
Respondent violated Section 8(q)(5) and (1) of the Act
by refusing, on request, to provide the Union the afore-
said information relevant and necessary to the perform-
ance of duties and responsibilities as exclusive representa-
tive in the appropriate collective-bargaining unit.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Jennis Collins on 15 January 1986
under conditions discouraging union membership.
4. Respondent violated Section 8(a)(3) and (1) of the
Act beginning in November 1985 by refusing to reinstate
within 5 days of their individual or group offer to return
to work all such employees who participated in the
strike.
5. The following employees of the Respondent consti-
tute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Respondent at its plywood plant lo-
cated at Pocomoke City, Maryland, including stock
rustlers; but excluding all office clerical employees,
CHESAPEAKE PLYWOOD 227
temporary employees, watchmen, guards, leadmen
and supervisors as defined in the Act.
6. Respondent violated Section 8(a)(5) and (1) of the
Act by insisting to impasse on a nonmandatory subject of
collective bargaining.
7. The strike, which began on 23 July 1985, was an
unfair labor practice strike from its inception, and contin-
ued as such at all material times thereafter until its termi-
nation on or about 29 December 1985
8. Respondent violated Section 8(a)(5) and (1) of the
Act by on 13 March 1986 withdrawing recognition from
the Union, and by thereafter refusing to bargain in good
faith with the Union
9. Respondent violated Section 8(a)(1) of the Act by
threatening to remove former strikers from a preferential
rehire list unless they replied to Respondent's inquiries.
10, Respondent violated Section 8(a)(3) and (1) of the
Act by removing Eric Allbritton, Robert Davis, Joseph
Greene, John Lutz, John Palen, Edward Sanchez,
Myron Schmidt, and Alice Tarr from a preferential
hiring list because of their failure to respond to Respond-
ent's inquiries under conditions limiting their statutory
right to reinstatment.
11, Respondent violated Section 8(a)(5) and (1) of the
Act in April 1986, and thereafter, by refusing, on re-
quest, to provide the Union with information relevant
and necessary to the performance of its obligation as ex-
clusive bargaining representative in the appropriate unit.
12. The unfair labor practices set forth above are
unfair labor practices having an effect on commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, it
shall be recommended that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
Having concluded that Respondent discriminatorily
discharged Jennis Collins, it shall be recommended that
he be offered immediate reinstatement to his former posi-
tion, or a substantial equivalent position, discharging if
necessary, anyone hired to replace him since his termina-
tion, and that he be made whole for any loss of earnings
and other benefits by reason of the discrimination against
him. Backpay shall be computed on a quarterly basis
from the date of discharge to the date of a bona fide
offer of reinstatement , less net interim earnings , as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in accord with New Horizons for
the Retarded, 283 NLRB 1173 (1987), subject to the pro-
viso that interest accruing prior to 1 January 1987 shall
be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977)
Having found that the strike was an unfair labor prac-
tice strike and that the Respondent, within 5 days of the
unconditional offer to return to work on behalf of the
strikers, had denied them reinstatement, it shall be rec-
ommended that all such strikers, as identified in a subse-
quent compliance proceeding, be offered immediate rein-
statement to their former, or substantially equivalent po-
sitions, discharging if necessary, all replacements hired
since 23 July 1985, and be made whole for loss of earn-
ings and benefits attributable to the discriminatory refusal
to reinstate. Backpay under the terms of this order shall
be computed on a quarterly basis, from a date 5 days
after the unconditional offer to return to work to the
date of a bona fide offer of reinstatement , less net interim
earnings, as prescribed in F. W. Woolworth Co., supra,
plus interest computed in accord with New Horizons for
the Retarded, supra,56 and for that accruing prior to 1
January 1987, as computed in Florida Steel Corp., supra.
To redress the violations of Section 8(a)(5), it shall be
recommended that Respondent, on request, recognize
and bargain with the Union in good faith and provide
the Union with relevant information.57
Counsel for the General Counsel urges that the
remedy include a visitatorial clause, authorizing the
Board to engage in discovery if necessary to monitor
compliance with any remedial Order issued here. That
request argues broadly that such a provision be incorpo-
rated routinely as part of the Board's standard remedial
formula in all cases. However, the Board has rejected
that position, taking the view that the relief in question is
only appropriate where warranted by the circumstances
of the particular case. See Cherokee Marine Terminal, 287
NLRB 1080 (1988). Having studied the 14-page motion
made by the General Counsel, it is clear that there is nei-
ther showing, nor argument as to how the specific con-
duct under scrutiny in this proceeding warrants such
relief. Based on the cited authority, the request is denied.
[Recommended Order omitted from publication.]
ss On or about 5 June 1986, the Respondent unlawfully removed the
names of eight strikers from its preferential hiring list Special provision
of a remedy in their cases would be cumulative since, as unfair labor
practice strikers , their participation in the relief under the terms recom-
mended above would fully redress the subsequent violations
SS The Charging Party contends that an offer to return to work on 18
September 1985 was sufficient "to trigger the striking employees ' right to
backpay " The complaint does not allege a violation on that basis, the
issue was not litigated, and the proof does not disclose that an uncondi-
tional offer to return on behalf of the strikers was perfected at that time