Clearfield Cheese Co., Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1953

106 N.L.R.B. 417 (N.L.R.B. 1953)

CLEARFIELD CHEESE COMPANY, INC. 417
a salaried superior who himself must sign and approve the
form, and in many cases the salaried superior and the disputed
employee jointly participate in the rating. In some cases,
particularly with respect to employees rated by the installers
(supervisory differential) and the equipment foremen, a com-
posite rating is necessary because the employee being rated
has worked under several foremen in the 6-month period
covered by the rating. On infrequent occasions the salaried
superior may suggest a change in rating or request an explana-
tion of a particular rating. But the evidence is clear that the
effective rating is in all cases made by the disputed employee.
While the matter is otherwise by no means free from doubt,
we accordingly find that the role of the disputed employees in
rating their subordinates is such as to make them all super-
visors within the meaning of Section 2 (11) of the Act."
We therefore find that the disputed employees are properly
excluded from the unit.' We shall, accordingly, amend our
certification with respect to these classifications of individuals.
ORDER
IT IS HEREBY ORDERED that the Certification issued herein
to Communication Workers of America, CIO, be, and it hereby
is, amended specifically to exclude from the certified unit, as
supervisors , the supervising operators and all daily wage
earners who receive a supervisory differential, employed by
the Employer. 'O
11 As the performance report involved in Lockheed Aircraft Corporation, 87 NLRB 40, did
not affect the status of the rated employees, that case on which the Union relies is clearly
distinguishable.
12 As the record establishes that the garage helper (supervisory differential) has authority
to rate his subordinates on the 1654 form, it is immaterial that he has not had occasion
because of the rate of turnover of garage helpers to do so.
13 This is not to be construed as a new certification
CLEARFIELD CHEESE COMPANY, INC. and UNITED STONE
AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO.
Case No. 6-CA-513. July 29, 1953
DECISION AND ORDER
On March 30, 1953, Trial Examiner Robert E. Mullin issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor practices and
recommended a dismissal of those allegations. Thereafter, the
106 NLRB No. 80.
418 DECISIONS OF NATIONAL LABOR RELATIONS BAORD
Respondent, the General Counsel, and the Union filed exceptions
and briefs.
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three -i ember panel [Members
Houston, Styles, and Peterson].
The Board has reviewed the Trial Examiner's rulings made
at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and the briefs,
and the entire record in the case and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner
with the following additions, corrections,1 and modifications.
1. The Trial Examiner found, and we agree, that the Re-
spondent interfered with, restrained, and coerced its employees
in violation of Section 8 (a) (1) of the Act by soliciting its
employees to establish a separate representation committee
or labor organization to deal with it, instead of the Union; in-
terrogating employees regarding their union activities and
sympathies; warning employees that if the Union organized
the employees, the Respondent might withhold a Christmas
bonus, 2 take away their group insurance, or move the plant to
Missouri; and making a promise of benefit to employee Roxie
Newpher if she would withdraw certain charges filed against
the Respondent.
2. We agree with the Trial Examiner, for the reasons stated
in his Intermediate Report, that the Respondent refused to
recognize and to bargain collectively with the Union on and
after August 28, 1951, in violation of Section 8 (a) (5) and (1)
of the Act.
3. The Trial Examiner found, and we agree, for the reasons
fully set forth in the Intermediate Report, that on October 19,
1951, the Respondent, by discharging s,ikers found to be en-
gaged in protected concerted activity under Section 7 of the
Act, violated Section 8 (a) (3) and (1) of the Act.
4. We also agree with the Trial Examiner that the Respond-
ent solicited four individual strikers to return to work at a
time when, as we here find, the Union was the majority repre-
sentative. As such solicitation was calculated to undermine
the Union and as it was part of a pattern of illegal opposition
to the purposes of the Act, we find, as did the Trial Examiner,
that such conduct on the part of the Respondent is violative of
Section 8 (a) (1) of the Act.'
We note and correct the following inadvertent error in the Intermediate Report . Charles
Duke intended to enter the plant at gate No. 12 on Saturday, October 20, not gate No 8 as
found by the Trial Examiner. This error does not, however, affect our conclusions.
=As we rely, in this connection, on the threats to this effect voiced by Foreman John
Krolick, we find it unnecessary to adopt the Trial Examiner's finding, to which the Respond-
ent excepts, that a similar remark by Thomas Eshelman, a shipping clerk and son of the
Respondent ' s vice president , was also attributable to the Respondent.
9Gazette Publishing Company, 101 NLRB 1694.
CLEARFIELD CHEESE COMPANY, INC. 419
5. The Trial Examiner found that during the strike 21
strikers engaged in unprotected concerted activities of a kind
which freed the Respondent from any obligations to reinstate
them or to give thembackpay. He further found that 18 strikers
did nothing to disqualify themselves for reinstatement and were
eligible for and entitled to reinstatement and back pay. The
Respondent takes exception to his findings as to most of the 18.
The Union and General Counsel argue that the Respondent, by
its subsequent statements and conduct , has condoned any mis-
conduct or unprotected activity by the strikers and has thereby
waived any right it may have had to refuse any of the strikers
reinstatement with back pay.
On the morning of October 17, 1951,4 approximately 44
employees of the Respondent went out on strike.I The strike
lasted until November 13. During that period the Respondent
communicated with its employees on several occasions, each
time by letter. On October 19, the Respondent, in a letter ad-
dressed to all employees then on strike, notified them that
inasmuch as they had "voluntarily quit" their employment on
October 17, 1951, they would have to make application for
"reemployment" on or before October 22, 1951, or the Re-
spondent would assume they were no longer interested in their
jobs. The letter also notified the strikers that since business
had fallen off because of the strike, the Respondent might not
be able to reemploy all of the strikers, but that it intended to
emply those who "first" applied and were qualified for the
jobs still open.
On October 29, the Respondent advised Orpha Sheeder, one
of the strikers , by letter, that since she had terminated her
employment on October 17, an insurance policy carried by the
Company for her benefit 6 was void so far as the Respondent
was concerned and that, if she cared to continue this policy,
she would have to make her own arrangements with the insur-
ance carrier. On the same date, the Respondent also wrote to
three strikers, namely Oral Bauman, Richard Frankhouser,
and Aaron Poole, that the plant was operating notwithstanding
certain of its "former employees quit and walked off the job,"
and as these three employees were not working at the time of
the walkout, they were requested to return to work on or before
November 1, but if they failed to return to work by that date,
the Company would consider that they had terminated their
employment. The Respondent closed the letter by stating that
"We consider you a valuable employee and would like you to
return to work." T
4Unless otherwise noted, the incidents discussed hereinafter occurred in 1951.
5 The Trial Examiner found , and we agree , that the strike was an unfair labor practice
strike and resulted basically from Respondent ' s unlawful refusal to recognize and bargain
with the Union, and was prolonged by Respondent's further unfair labor practices.
6The Respondent carried certain life, hospital , and sick- benefit insurance on its em-
ployees
TOral Bauman and Orpha Sheeder were found by the Trial Examiner to have engaged in
misconduct on the picket line approximately a week before the above-enumerated letters were
written. The Respondent was aware of such misconduct at the time they were written.
322615 0 - 54 - 28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After October 22 the Respondent made out checks to the
strikers which bore the notation " Wages in full." When many
of the strikers objected to the notation on the checks, the Re-
spondent mailed out new checks with an accompanying letter.'
In this letter, dated November 6, the Respondent stated that it
had eliminated the notation in question, but further advised
that: "According to our records, you voluntarily left our em-
ployment October 17, 1951 and you refused to return to work
when requested to do so, therefore, your employment with us
has been terminated by you."
It is significant that at no time during the strike did the Re-
spondent make reference in any of its letters to the fact that
picket line misconduct, of which it was well aware, would affect
the status of the strikers as employees. Instead, it treated them
as having "voluntarily quit." Moreover, in its October 19
letter it manifested an interest in reemploying the strikers in
the order of their applications for jobs which were open and
which they were qualified to fill. This was not countermanded
in any of the subsequent letters to the employees detailed
above. Indeed, the Respondent urged Oral Bauman to return to
work in its letter of October 29, even though he had engaged in
picket line misconduct during the prior week, as the Trial
Examiner found.
The same absence of any reference to misconduct is to be
noted after the strike terminated. Thus on November 13, the
day that the strikers had voted to end the strike, a union com-
mittee called on William Tate to apprise him of the fact that
the strike was over and that the employees were ready to
return to work. The committee members were given a supply
of job application blanks and were told that all strikers who
sought reemployment would have to fill out an application.
The union committee was also told that inno event would there
be jobs for everyone since a number of new employees had
been hired and the Company had lost orders because of the
strike. No reference was made to picket line misconduct
during this meeting. On the same date, the Respondent ad-
dressed a letter to the strikers in which it restated its belief
that the employees terminated their employment on October 17,
but that the Company intended to use its best efforts "to re-
employ the persons who were formerly employed" just as soon
as it could make arrangements to do so. The letter set Novem-
ber 19 as the deadline for filing applications and closed as
follows: "We assure you of our desire to cooperate in every
manner to re-employ all of our former employees who desire
to be re-employed just as soon as we can do so." On and after
November 13 the Respondent received applications from 39 of
the approximately 44 employees who had been on strike.
8The letter of November 6 was not sent to Jesse Waple and Vivian Painter as the original
checks which had been sent to these employees had been cashed. Nor did Margaret Duttry
receive this letter.
CLEARFIELD CHEESE COMPANY , INC. 421
According to the credible testimony of Hamer Tate , after the
applications were received, all applicants ' names were typed on
slips of paper and placed in a box. The box containing the slips
was then locked in a desk compartment . Thereafter , when the
Respondent had need for another employee, a slip was drawn
from the box and the person whose name appeared on the slip
was then contacted by the Respondent and offered the job.'
The record shows that shortly after the termination of the
strike until the early part of April 1952, a majority of those
who had gone out on strike , including many of the strikers
whom the Trial Examiner found to have engaged in certain acts
of misconduct during the strike , were communicated with"
and were offered reemployment by the Respondent.
Hamer Tate further testified credibly that, either at the time
he reached a striker or at a subsequent interview with the
striker, he informed the striker that " We're trying to get all
the employees back to work as quickly as possible ."" In all
instances where the striker accepted the job offer, he returned
as a new employee , and in most instances he did not return to
the same job he had at the time of the strike . It is clear, how-
ever , that during the course of these interviews, including
those with the strikers whom the Trial Examiner found to have
engaged in misconduct during the strike, the Respondent never
raised the question of misconduct or unprotected activities of
the strikers.
On April 8 , 1952, the Respondent mailed letters to seven
employees ' who had participated in the strike and who had not
as yet been offered reemployment . Each letter notified the em-
ployee that the Company regretted that it had been unable to
give him reemployment up to that time and that it had "given
or offered re-employment to practically all- -former employees
who quit or refused to return to work last October ." The letter
further stated that the Company still had the employee ' s appli-
cation on file and it was going to call him back as soon as a
job became available and asked that the employee notify it if
he still desired reemployment . The letter concluded with the
following : "We regret the delay inthis matter , but our business
was disrupted as a result of the work stoppage." Of these 7,
2 employees replied that they were desirous of reemploy-
ment, and the Respondent did thereafter make an offer of em-
ployment to 1 of them . And, according to Hamer Tate, there
9 If the job to be filled required a male employee , the drawing process continued until a
man's name was drawn
10 Hamer Tate testified that by the latter part of January 1952, the Respondent either had
contacted or made an attempt to contact all the women who had gone out on strike.
" The record shows that similar statements were made to the wife of Norman Pearce, and
to Max Ardary , Nora Jane Baskin , Roxie Newpher , Anthony Feola , Robert Russell , Vivian
Painter , Orpha Sheeder , and Martha Lippert. As already found by the Trial Examiner, this
statement to Roxie Newpher was made at the time Hamer Tate sought to induce the with-
drawal of her unfair labor practice charges.
12 Letters were mailed to Buford Smith, Ray Bauman , Elton Painter , Jack Knepp , Herschel
Owens, Aaron J. Poole , and Oral Bauman.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were jobs available for 2 others who failed to reply and to
1 who replied that he was not interested in returning.
It clearly appears from the foregoing that the strikers were
not informed , either during the strike or thereafter , that their
misconduct daring the strike would preclude their future em-
ployment with the Respondent . Indeed , the Respondent alluded
to the misconduct , for the first time, in its answer filed to the
complaint herein . However , the Respondent qualified its posi-
tion that the misconduct freed it from the obligation of rein-
statement . It indicated that their picket line activity did not
render them unfit for further employment by stating that it had,
nevertheless , informed its former employees that "it would
take them back as soon as it has jobs for them, and . . . it was
and is its intention so to do."
In addition to its delay in raising the misconduct issue, de-
spite the numerous opportunities to do so, until long after the
termination of the strike, the Respondent affirmatively indi-
cated at the time of the applications for reinstatement on
November 13 , and in its letters to, and conversations with, its
employees , an intent to condone the misconduct . This was made
manifest by its numerous assertions , in substance , that it was
going to treat all strikers alike and " re-employ" them just as
soon as possible . Thus , when approached by the union com-
mittee on November 13, Respondent ' s reaction was not that it
considered the strikers ' actions improper, but only that each
striker would have to fill out an application and his reemploy-
ment would depend only on the number of jobs available. More-
over, in its letter to all strikers , the Respondent reassured
the strikers of its desire to cooperate in every manner to
reemploy "all . . . former employees ." Thereafter , as jobs
opened up, the Respondent made offers of employment to most
of the strikers irrespective of their conduct on the picket line.
It further assured seven employees who had not been called
back by April 1952, that " it was going to call [them ] back as
soon as a job became available ." Indeed , Hamer Tate ' s testi-
mony pointed out that the selection of those strikers to whom
jobs were offered was made by drawing names from a box
containing the names of all strikers who had applied for jobs.
Moreover , during the course of the interview with many
strikers , the Respondent further indicated that it was "trying
to get all the employees back to work as quickly as possible."
While it is true , as the Trial Examiner found , that the Re-
spondent insisted at all times that the strikers return to work
as new employees, this was no more than a reiteration of its
position , first taken on October 19 when no misconduct on the
picket line had as yet occurred , that the strikers who did not
return to work when requested to do so were deemed to have
quit as of October 17 , the first day of the strike . That this is
so is further underscored by the fact that the Respondent
insisted that all strikers return as new employees and that it
CLEARFIELD CHEESE COMPANY, INC. 423
did not single out for such treatment only those strikers it
believed had engaged in acts of misconduct."
We find no basis for concluding, as apparently did the Trial
Examiner, that in clinging to the position that it had properly
discharged these employees for engaging in strike activity,
conduct which we have already found to be violative of the Act,
the Respondent could effectively urge thereafter that the mis-
conduct on the picket line was a further reason for its refusal
to reinstate them. So tohold,wouldbeto permit the Respondent
to benefit from its own unfair labor practices. Nor does his
position find support in the Longview case 14 relied upon by the
Trial Examiner. In that case the Board found that the Employer
was not precluded from raising the defense of picket line mis-
conduct, where the Employer represented to the strikers, who
had engaged in misconduct , that there were no job vacancies.
Here, not only did the Respondent not rely upon such a repre-
sentation, but it affirmatively notified all strikers that it in-
tended to use its best efforts "to re-employ the persons who
were formerly employed" just as soon as it could make ar-
rangements . More closely analogous to the instant case is the
Stilley case,' where a majority of the Board found the employer
had condoned certain misconduct. There, as here, the em-
ployer belatedly asserted the misconduct as grounds for refusal
of reinstatement of an employee, after it had expressed its
willingness to reinstate him as soon as possible at the time
application for reinstatement was made.
As more recently noted in the Mackay Radio case,' the
condonation principle is applicable where the strikers engage
in conduct which is unprotected, but is inapplicable where the
employees have participated in a strike which is unlawful from
its inception. In other words, the Board will apply this prin-
ciple to those cases which involve either (a) violence or other
similar conduct during the course of otherwise lawful, albeit
not always protected, concerted activity; or (b) participation
in concerted activity which the Board for policy reasons holds
to be unprotected." Clearly, therefore, as the instant case
involved conduct during the course of an otherwise lawful
strike, and as the Respondent failed at all opportunities to
mention as a reason for not reemploying his employees their
unlawful conduct during the strike, and, in fact, affirmatively
indicated at the time of their application for reinstatement, and
thereafter, that he would reinstate them to available jobs, we
conclude and find that the Respondent was willing to, and did,
19The Respondent admits that there was no evidence of misconduct as to at least seven of
the strikers.
14Longview Furniture Company , 100 NLRB 301.
'5The Stilley Plywood Company , Inc., 94 NLRB 932, enforced as modified in another
respect in 199 F. 2d 319 (C. A. 4).
16Mackay Radio and Telegraph Company . Inc., 96 NLRB 740.
17Member Houston indicated in the cited case that he would have applied the condonation
principle without distinction . The Board was therefore in complete agreement in holding that
the condonation is applicable in the above-stated situations.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in fact, condone the misconduct of all the strikers and waived
any right it may have had to refuse them reinstatement with
back pay.
6. Although the complaint does not list employee Edward
Duke as a discriminatee, the General Counsel urges that
Edward Duke should be included in any recommended order
for reinstatement. The Trial Examiner found, without passing
upon the question of whether the status of this employee was
fully litigated, that he was ineligible for inclusion in such a
reinstatement order because he had engaged in certain mis-
conduct on the picket line. In view of our finding that the Re-
spondent condoned all misconduct of the strikers, we must
determine the merit of the General Counsel's position.
Although the complaint contained no specific allegation of
discriminatory discharge against Edward Duke, the record
shows that the issues with respect to such discharge were
fully litigated at the hearing, and an opportunity was afforded
to the Respondent to adduce testimony, and it did, to refute the
charge. Accordingly, we find immaterial any variance between
the allegations of the complaint and our finding in this connec-
tion.' As the record shows, with respect to Edward Duke, that
he was discriminatorily discharged after he went out on strike,
and that, like the other strikers, he applied and was thereafter
refused reinstatement, we shall provide that he, with the other
strikers, be offered immediate reinstatement and back pay.
The Remedy
We have found, in agreement with the Trial Examiner, that
the Respondent discriminatorily discharged all its employees
who were on strike and that it thereafter wrongfully refused
to reinstate said employees whose names appear on Appendix
A, attached hereto. We shall, accordingly, order the Respondent
to offer to each of them immediate and full reinstatement to his
former or substantially equivalent position,i' without prejudice
to his seniority or other rights and privileges, and make each
of them whole for any loss of pay suffered as a result of the
discrimination by payment to each of them a sum of money
equal to that which he would have earned as wages from the
date each employee applied for reinstatement to the date of the
offer of reinstatement.
We have further found, contrary to the Trial Examiner, that
the Respondent also wrongfully refused to reinstate the em-
ployees on strike whose names appear on Appendix B, attached
hereto. We shall similarly order the Respondent to offer to each
of them immediate and full reinstatement to his former or
to N. L. R B. v. Armato et al , 199 F. 2d 800 (C.A. 7).
19 The expression " former or substantially equivalent position" is intended to mean
"former position wherever possible , but if such position is no longer in existence, then a
substantially equivalent position " The Chase National Bank of the City of New York, San
Juan, Puerto Rico , Branch , 65 NLRB 827.
CLEARFIELD CHEESE COMPANY, INC. 425
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make each of
them whole for any loss of pay suffered as the result of the
discrimination by payment to each of them a sum of money
equal to that which he would have earned as wages from the date
each employee applied for reinstatement to March 30, 1953,
the date of the Intermediate Report herein, and from the date
of this Decision and Order to the date of the offer of reinstate-
ment. 2°
The Trial Examiner also found, as do we, that the Respondent
discriminatorily discharged George Marshall who went on
strike and that he applied for reinstatement and was thereafter
refused reinstatement. At the time of the hearing George
Marshall was in the Armed Forces of the United States. We
shall therefore order that the Respondent offer him immediate
and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay suffered as
the result of the discrimination by payment to, him a sum of
money equal to the amount he normally would have earned as
wages during the periods (1) between the date of his application
for reinstatement, and the date of his induction into the Armed
Forces of the United States, less his net earnings during said
period;21 and (2) from a date 5 days after his timely notice of
his availability for reinstatement, if any, to the date of the
offer of reinstatement by the Respondent, less his net earnings
during said period.' If, at the time of the issuance of this
Decision and Order, he is still on active duty in the Armed
Forces of the United States, we shall order that the Respondent
immediately notify him in writing, by registered mail ad-
dressed to his last known address, that said offer of reinstate-
ment is continued until 90 days after his discharge from active
military service."
As we have found that the strike which began October 17,
1951, was caused and prolonged by Respondent's unfair labor
practices, the strikers were entitled to reinstatement, upon
application, irrespective of whether their positions were then
or have since been filled by Respondent. We shall therefore
order the Respondent to restore the status quo as it existed
prior to the time it engaged in the unfair labor practices, and,
if necessary to provide positions for the strikers herein
ordered reinstated, the Respondent shall dismiss any person
hired on or after October 17, 1951.24
20 This abatement of back pay for the period between the issuance of the intermediate
Report and our Decision and Order follows Board practice in cases in which, as here, the
Trial Examiner did not recommend the reinstatement of these employees or the award of
back pay to them.
21 The payment of this amount shall be made immediately, without awaiting a final deter-
mination of the full amount of the award. Vail Manufacturing Company, 61 NLRB 181
22 American Steel Foundries, 67 NLRB 27.
23Aerovox Corporation, 102 NLRB 460
24 Wheatland Electric Cooperative, Inc , 102 NLRB 1119
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Clearfield Cheese Com-
pany, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, hours,
and other conditions of employment with United Stone and Allied
Products Workers of America, CIO, as the exclusive represent-
ative of all production and maintenance employees of its
Curwensville, Pennsylvania, plant, excluding all office and
clerical employees, over-the-road truckdrivers, watchmen and
guards, professional employees, and supervisors within the
meaning of the Act.
(b) Discouraging membership in United Stone and Allied
Products Workers of America, CIO, or in any other labor
organization of its employees, by discriminatorily discharging
or refusing to reinstate any of its employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
(c) Interrogating its employees regarding their union mem-
bership and activities, threatening its employees with discharge,
loss of employee benefits, with refusal to reinstate them, and
with other reprisals for engaging in union activities and/or
other concerted activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
United Stone and Allied Products Workers of America, CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, to resort to the proc-
esses of the National Labor Relations Board, and to engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to the employees whose names are listed in Appen-
dix A and Appendix B. attached hereto, immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and
privileges in the manner set forth in the section entitled "The
Remedy" in the Intermediate Report, with modifications herein,
and make whole the said employees for any loss of pay they
CLEARFIELD CHEESE COMPANY, INC. 427
may have suffered by reason of Respondent ' s discrimination
against them as herein found, in the manner provided in said
section.
(b) Offer to George Marshall, upon his application within 90
days after his discharge from the Armed Forces , immediate
and full reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights and
privileges in the manner set forth in the section entitled "The
Remedy" in the Intermediate Report, with modifications herein,
and make him whole for any loss of pay he has suffered or may
suffer by reason of Respondent ' s discrimination against him as
herein found , in the manner provided in said section.
(c) Upon request, bargain collectively with United Stone and
Allied Products Workers of America, CIO, as the exclusive
representative of all employees in the aforementioned appro-
priate unit , and if an understanding is reached , embody such
understanding in a signed agreement.
(d) Upon request , make available to the Board, or its agents,
for examination and copying , all payroll records, social-
security payment records , timecards , personnel records and
reports, and all other records necessary to analyze the
amounts of back pay due.
(e) Post in its plant in Curwensville, Pennsylvania, copies of
the notice attached hereto marked "Appendix C." 21 Copies of
such notice, to be furnished by the Regional Director for the
Sixth Region, shall, after being duly signedbythe Respondent's
authorized representative, be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for a
period of sixty (60) consecutive days thereafter in conspicuous
places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(f) Notify the Regional Director for the Sixth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that paragraph 4, that portion of
paragraph 5 which alleges that Thomas Eshelman, Thomas Tate,
Mildred Krolick, Lois Riddle, and Charles Eshelman acted as
agents of the Respondent , that portion of paragraph 5 (b)
which alleges a threat to reduce wages and available overtime
work and to increase workload requirements , those portions
of paragraphs 5 (c) and (d) and paragraphs 6 and 7 which allege
discriminatory treatment of Jack Knepp , Roxie Newpher, and
Elsie Gearhart, of the complaint, be, and they hereby are,
dismissed.
E5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words " Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maxwell Ardary
Alexander Bacchieri
Nora Jane Baskin
Margaret Duke Blowers
Margaret Duttry
Richard Frankhouser
Martha Lippert
Norman Pearce
A. J. Poole
John Bailey
Oral Bauman
Ray Bauman
Anthony Feola
Elsie Gearhart
Raymond Harzinski
Jack Knepp
Floyd Lippert
Roxie Newpher
Herschel Owens
Elton Painter
APPENDIX A
Glenn Redden
Perry Rowles
Silvia Rowles Maines
Harry Selfridge
John Shaffer
Jesse Waple
Milton Wilkinson
Floyd Wisor
APPENDIX B
Vivian Painter
Clifford Read
James Robbins
LeRoy Rowles
Robert Russell
Orpha Sheeder
Buford Smith
Paul Smith
Owen Stewart
Clair Williams
Edward Duke
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees regarding their
union membership and activities, threaten our employees
with discharge, loss of employee benefits, with refusal to
reinstate them, or with other reprisals for engaging in
union activities and/or other concerted activities
WE WILL NOT discourage membership in United Stone
and Allied Products Workers of America, CIO, or in any
other labor organization of our employees, by discharging
or refusing to reinstate any of our employees or in any
other manner discriminating against them in regard to
their hire or tenure of employment or any term of condi-
tion of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self - organization , to form labor organizations, to
join or assist United Stone and Allied Products Workers
of America, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own
CLEARFIELD CHEESE COMPANY, INC. 429
choosing , to resort to the processes of the National Labor
Relations Board, and to engage in other concerted activ-
ities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all
such activities , except to the extent such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees listed below im-
mediate and full reinstatement to their former or to sub-
stantially equivalent positions , without prejudice to their
seniority and other rights and privileges , and make them
whole for any loss of pay they may have suffered by
reason of the discrimination against them:
Maxwell Ardary
Alexander Bacchieri
Nora Jane Baskin
Margaret Duke Blowers
Margaret Duttry
Richard Frankhouser
Martha Lippert
Norman Pearce
A. J. Poole
Glenn Redden
Perry Rowles
Silvia Rowles Maines
Harry Selfridge
John Shaffer
Jesse Waple
Milton Wilkinson
Floyd Wisor
Buford Smith
Paul Smith
Edward Duke
John Bailey
Oral Bauman
Ray Bauman
Anthony Feola
Elsie Gearhart
Raymond Harzinski
Jack Knepp
Floyd Lippert
Roxie Newpher
Herschel Owens
Elton Painter
Vivian Painter
Clifford Read
James Robbins
LeRoy Rowles
Robert Russell
Orpha Sheeder
Owen Stewart
Clair Williams
WE WILL offer to George Marshall, upon his appli-
cation within 90 days after his discharge from the Armed
Forces, immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to
his seniority or other rights and privileges and make him
whole for any loss of pay he has suffered or may suffer by
reason of the discrimination against him.
WE WILL bargain collectively, upon request , with United
Stone and Allied Products Workers of America, CIO, as
the exclusive representative of all our employees in the
bargaining unit described below with respect to rates of
pay, hours of employment, or other conditions of employ-
ment, and if an understanding is reached , embody such
understanding in a signed agreement. The bargaining
unit is:
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees at our
Curwensville, Pennsylvania, plant, excluding all office
and clerical employees, over-the-road truckdrivers,
watchmen and guards, professional employees, and
supervisors within the meaning of the Act.
All of our employees are free to become or remain or to
refrain from becoming or remaining members of United
Stone and Allied Products Workers of America, CIO, or any
other labor organization . We will not discriminate in regard
to hire or tenure of employment or any term or condition of
employment against any employee because of membership in
or activity on behalf of any such labor organization.
CLEARFIELD CHEESE COMPANY, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Labor Management Relations Act, 1947,
61 Stat. 136 (herein called the Act), was heard in Clearfield, Pennsylvania, from June 23 to
July 15, 1952, pursuant to due notice to all the parties. The complaint, issued on May 19, 1952,
by the General Counsel of the National Labor Relations Board,' and based on charges duly
filed and served, alleged that the Respondent hadengaged in unfair labor practices proscribed
by Section 8 (a) (1), (3), and (5) of the Act. In its answer, duly filed, the Respondent conceded
certain facts with respect to its business operations , but denied the commission of the alleged
unfair labor practices.
All parties were represented at the hearing by counsel and were afforded full opportunity to
be heard, to examine and cross -examine witnesses , to introduce relevant evidence , to argue
orally, and to file briefs and proposed findings and conclusions.2 Oral argument was waived.
On October 1, 1952, the General Counsel and the Respondent submitted able and extensive
briefs, both of which have been carefully considered by the undersigned. Upon the entire rec-
ord in the case and from my observation of the witnesses. I make the following:
tThe General Counsel and his representative at the hearing are referred to herein as the
General Counsel, and the National Labor Relations Board as the Board The above-named
Company is referred to as the Respondent, and the charging Union, likewise named above, as
the Union or Stone Workers.
=Motions by the Respondent to strike all testimony with respect to the allegation that
Thomas Tate, Thomas Eshelman, Mildred Krolick, and Lois Riddle acted as agents of the
Company and to strike the name of Charles Eshelman from the complaint were taken under
advisement They are disposed of as will appear hereinafter in this report.
CLEARFIELD CHEESE COMPANY, INC. 431
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, having its office and place of business at Curwens-
ville, Pennsylvania, is engaged in the production, sale, and distribution of process cheese. In
the course and conduct of its business , the Respondent makes annual purchases of materials,
supplies, and equipment valued at approximately $ 3,000,000, 85 percent of which is shipped
to it from points outside the Commonwealth of Pennsylvania. A similar percentage of its
annual sales, likewise valued at about $3,000,000, is made to out-of-State customers. Upon
the foregoing facts, the Respondent concedes, and I find, that the Clearfield Cheese Company,
Inc., is engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The period from August to November 1951
1. The Union's organizational efforts ; response on the part of management personnel
On August 19, 1951, 8 Buford Smith, an employee of the Respondent, contacted Gaston
Le Blanc, a representative of the Stone Workers, to request that the latter help organize the
employees at the Respondent's plant. The following evening Le Blanc met with some 14 of the
employees at Smith's home, explained to them the objectives of his organization, and asked
that they sign cards authorizing his Union to represent them. All those present signed such
authorizations and several received a supply of cards with which to solicit their fellow em-
ployees. During the course of the next few days Smith and several of his colleagues obtained
approximately 25 additional signed cards which they turned over to Le Blanc on August 25.
Late on the afternoon of August 23 and about 15 minutes before closing time, all the em-
ployees gathered for a meeting in the plantoffice which lasted for approximately half an hour.
In addition to the employees, the three principal foremen at the plant, Neal Imler, John
Krolich, and Charles Duke, were in the room. According to John Bailey, Imler opened the
meeting by telling the employees that "he understood that we were trying to bring a union in
and ... if we wanted to give the company a chance, that they will be good to us. He says that
they have something good to offer us if we would form our own union...." According to
Perry Rowles, another employee present, Imler told them "he wanted us to try what the
Company had to offer for three months and see how it worked out." Edward Duke testified
that Imler said that "he would like to have us organize a union of our own right in the plant."
Many of the other employees in attendance at this meeting corroborated the above testimony
and testified that Imler suggested that they join a "Company union rather than the inter-
national one." At about 5:15 that evening the gathering broke up. All present were paid for the
time spent in attendance. Ardary testified thatthefollowing morning he asked Imler the reason
for the meeting and the latter explained that it was intended that at the meeting, LeRoy Snyder,
one of the employees, "was going to make a motion that we send a committee ... into the
office to see what Mr. Tate had for us."
Imler denied that he had suggested a "Company" union to the employees. According to his
testimony, "I told them [the employees] that the opportunity had been suggested for their meet-
ing and what they would want to do with it, that as I understood it, that it was for the purpose
of seeing how many of them would want to go on through to management to talk things over."
Imler disclaimed responsibility for planning the meeting, asserted that LeRoy Snyder had
first suggested that it be held, and declared that he had done nothing more than obtain the
permission of Hamer Tate, secretary -treasurer of the Respondent, to afford the employees
an opportunity to get together. Imler denied having any conversation with Ardary the following
morning. Snyder likewise denied having any arrangement with Imler such as Ardary's testi-
mony would suggest and testified that it was his [Snyder 's] idea, originally , that a meeting of
the employees be held.
3 Unless otherwise noted, all events referred to herein occurred in 1951.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It may very well be that Snyder originally conceived the plan for calling the employees
together but it is likewise apparent that the Respondent cannot disclaim responsibility for
adopting the proposal as its own . Hamer Tate testified that, upon receiving a request from
Imler, he had given permission to hold the meeting and ,. as noted above , the Respondent paid
the employees for time spent in attendance. Imler conceded that no other meeting of a similar
nature had ever been held at the plant. Snyder himself took no part in the discussion which
ensued during the course of the gathering and Imler was the principal speaker.4 Despite the
latter's denial that he suggested that the employees organize a "Company union" rather than
join the " international" union, I am satisfied that the testimony of the employees to the con-
trary effect is the more credible . Consequently it is my conclusion and I find that at this
meeting the Respondent did, through Foreman Imler , as alleged by the General Counsel,
solicit its employees to establish a separate representation committee or labor organization
for the purpose of dealing with the Respondent in place of the Union.
There was credible testimony that in the first 2 weeks of the Union's campaign Imler and
Krolick questioned a number of the employees regarding their union sympathies and activity.
Imler conceded that on about August 21 he asked Perry Rowles whether he had heard anything
about the authorization cards that were being given to the employees . Clifford Read testified
that on the following day, Imler asked him and Buford Smith why the employees wanted a
union , declared that the Tates wanted them to talk with the management to see what the
Company had to offer, and commented that he preferred that the employees try a "company
plan" for at least 3 months. In connection with this conversation Imler first denied that
he mentioned the subject of unions and then stated that he could not recall whether he had; as
for the rest of the conversation it was Imler's testimony that he had assured Read and Smith
that he had nothing to offer them and that insofar as a meeting was concerned he was only
trying to "pave the way." I am convinced that as to this matter Read was the more credible
and so find. Ray Bauman testified that on the morning of August 23, Imler asked Bauman
whether he had heard about the Union, and when the latter answered in the affirmative, Imler
told him that a company union would be more helpful , and that if an outside union came in,
the Company would probably move its plant to Clinton, Missouri. Milton Wilkinson testified
that, on about the same day, Imler asked him and John Shaffer if they did not feel that they
should join a company union. Imler denied any such conversations with these employees.
After a consideration of the credibility of these witnesses in this connection, including their
demeanor at the hearing , it is my conclusion that the employees ' version is the more plau-
sible and I so find.
Several employees testified with respect to conversations had with John Krolick, foreman
of the packing lines . According to Robert Russell, on about August 22, Krolick asked why
Russell had not told him about joining the Union and when Russell denied that he knew any-
thing about the subject Krolick declared that he was a "liar." Krolick then asked who the
leaders were and when Russell denied any knowledge of the subject Krolick observed that he
considered Russell one of them. In another conversation that same day, Krolick told Russell
that the employees should try a company union and further stated that if the employees
joined an outside union the Company " could take away our Christmas war bond. " During the
same period, according to Oral Bauman , Krolick questioned him about his views on the Union
and whether he had signed a card. When Bauman acknowledged that he had, Krolick told him
"you'll be sorry" and predicted that if the employees organized a union the Company would
move its plant. Clair Williams testified that early in September , Krolick told him that "if
the Union came in the Company could take away our Christmas bonus and our group insur-
ance." Krolick denied making the comments attributed to him by Bauman , Williams, and
Russell. In connection with Russell, however, he conceded that on the day in question he had,
in fact, talked with him and although he could not repeat the conversation he did remember
that "all we discussed were unions ." It is my conclusion that here, as with the remarks
imputed to Imler , the employees' version, and not Krolick's, the more credible and I so
find.
LeRoy Rowles testified that during this same period Thomas B. Eshelman told him You
know, if the Union gets in here, you fellows who have been getting a bond for Christmas ...
that bond will be cut out. There will be no more gifts from the Company." Eshelman denied
this version of their conversation but, of the two, Rowles , in this instance, appeared to the
Examiner , to be the more credible . Eshelman was a shipping clerk and had no supervisory
4 Krolick also spoke , in response to several questions raised by employees present. Krolick
and Duke, however , other than being in attendance , played no significant part in the pro-
ceedings.
CLEARFIELD CHEESE COMPANY , INC. 433
status . He was , however, a son of Ross B. Eshelman, vice president of the Company, and his
remarks , so sunilar to those of supervisory personnel such as Imler and Krolick, set forth
above, were never repudiated by the Respondent . Because of these facts , particularly his
close 'relationship to management , I feel there is merit in the argument of General Counsel
that Thomas Eshelman was an agent of the Company for whose remarks , in this instance, the
Company must be held responsible . Joseph Michalik , d/b/a. Service Metal Industries, 96
NLRB 165, enfd. 201 F. 2d 48 (C. A. 6).5
2. The union request for recognition
On August 28, Le Blanc met with Hamer Tate in the latter's office . There Le Blanc stated
that he had "a majority of the people signed up" and that he had come to request union recog-
nition and to arrange a conference for negotiating a contract . Tate replied that all such matters
were handled by Mr. Frank G. Smith, counsel for the Company , whom he suggested that Le
Blanc contact . Later that day Le Blanc met with the Respondent 's attorney . There he again
stated that the Union had a majority at the plant , and asked whether it would be possible to
agree on recognition , either by a check of the authorization cards6 or by drafting stipulation
and identifying the cards as a preliminary to any negotiations for a contract . Smith declined,
stating that the Company would not recognize the Union until after the Board had decided on
the appropriate unit and the Union had won a Board -directed election . This concluded the
discussion and the meeting ended:
On September 5, the Union filed a petition with the Sixth Regional Office , in which it averred
that it represented a majority of the production and maintenance employees at the Respondent's
plant and requested an election. A hearing on this petition was held on October 15 . On Novem-
ber 16, the Board issued a Decision and Direction of Election in the proceeding. Clearfield
Cheese Company , Case No. 6-RC -895, On December 3 the Stone Workers moved to withdraw
their petition , and on December 7 the Board granted the motion.
3. Alleged discrimination with respect to Knepp, Newpher, and Gearhart
In September and October, the Union intensified its organizational efforts, held several
meetings in the vicinity of the company plant, and induced a number of additional employees to
sign authorization cards. The General Counsel,alleged that during this period the Respondent
discriminated against three of its employees. This allegation will now be considered.
a. Jack Knepp
According to the General Counsel, Knepp was singled out for discriminatory treatment on
October 5, while employed in the cheese cleaning room . The record developed that , at a time
when Knepp was engaged in conversation with another employee , Foreman Imler reprimanded
him for not staying at his job. After Knepp profanely declared that he did not care whether he
5Robert Russell testified that at about the same time as this incident he heard Eshelman
declare that if the employees joined a union the company would move its cheese processing
operation to Missouri . Eshelman denied making this comment and his testimony , in this con-
nection , is accepted as more credible than that of Russell.
The General Counsel also alleged that Thomas Tate , a son of J. Hamer Tate, and Charles
Eshelman, a brother of Ross B. Eshelman , likewise acted as agents of the Respondent in a
campaign to coerce and restrain the employees in the exercise of their organizational
rights. The record contains no evidence to support this allegation . Accordingly , I will recom-
mend that the complaint be dismissed as to these individuals.
6LeBlanc credibly testified that he had the cards with him at the time.
7 There was no significant conflict between the testimony of the two principals to this con-
ference Mr Smith testified that he told Le Blanc "before we can sit down and talk to
you... There will have to be determined what is an appropriate unit" and "whether or not
he represented a majority of the employees " According to company counsel , " I advised Mr.
Le Blanc 'the only way I knew those things could be determined was by a formal Petition to the
National Labor Relations Board , and a secret election held ."' In its brief the Respondent
argues that according to Mr Smith's testimony LeBlanc did not ask for recognition by a card
check . In fact , however , Mr Smith never denied Le Blanc's testimony in this connection and
rather significantly , with respect to a later conversation had with the union organizer , he tes-
tified that Le Blanc "kept insisting that we recognize the Union without first having the unit
determined , and then having an election"
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked, Imler suggested that, because of his "attitude " Knepp should remain off the job until
the following Monday . 8 He then escorted the employee to the next floor and handed him his
check, whereupon Knepp left the plant. Within a few minutes thereafter , many of the employees
in Imler's department walked off their jobs and proceeded to the restroom . When this hap-
pened, William Tate and Imler went before the group which had assembled . There, Tate, after
learning from some of those present that they understood Knepp had been discharged for over-
staying his rest period , told the employees that Knepp had only been laid off until Monday and
that this action had been taken , not because he had overstayed a rest period but because he
was talking when he should have been working and when Foreman Imler reproached him for
this he had profanely replied that he was not concerned as to whether he even held his job.
Tate then told the employees that, in any event, if they went back to work immediately they
would lose no pay and that Knepp would be recalled . Knepp was , in fact, returned to work that
afternoon and lost no pay for the period he was off.
The General Counsel argues that the Respondent 's treatment of Knepp was "unprecedented
and uncalled for, and can be explained only as part of " a pattern of antiunion activity . However,
that is hardly the situation here. Knepp had , unquestionaly , been talking with a fellow employee
when he should have been working and the insolent response he made to his foreman could
hardly avoid provoking disciplinary action. Knepp had signed an authorization card, but had not
distinguished himself by any other union activity in the preceding weeks . Moreover , there was
no testimony which indicated that the discipline meted out to Knepp was either "unprecedented"
or "uncalled for." Under the circumstances present here , I conclude and find that the Re-
spondent did not discriminatorily reprimand and threaten to discharge Jack Knepp.
b. Roxie Newpher
At the meeting on August 23, one of the employees asked Foreman Krolick why Newpher
was not receiving the top rate in the packing department . He answered that Newpher was still
unable to do all the various jobs in the department , but that when she was her rate would be
advanced. At the time of the meetingNewpher was getting $ 1 an hour. 9 On about September 15
she received a 10-cent an hour raise. She had performed various jobs while in the packing
department and in the period immediately before her September increase she was engaged in
making boxes and in an operation known as "folding down " ii on the 2-pound line. a Shortly
after getting the pay raise she was assigned to lining and "folding down" on the conveyor that
was packing 5-pound cartons. Newpher had difficulty with this job and Krolick reprimanded
her several times for not working fast enough. Nora Jane Baskin , a fellow employee , testified
that early in October she protested to Krolick that Newpher was not doing her share of the
work and that , as a result , the other employees were compelled to do Newpher 's work as well
as their own. 12 Krolick conceded that he recognized her problem and told her that he assumed
she was in a quandary as to why nothing had been done about Newpher; that he had, in fact,
planned to lay her off the preceding week but had not done so for fear the plant would go on
strike; and that, as a result, he proposed to continue Newpher at the same job.
The General Counsel alleged that after the plant meeting of August 23, where Newpher had
been discussed , the Respondent learned that she was a union member, then gave her a wage
increase, and assigned her to work she could not perform for the purpose of compelling her
to quit.
The record affords little substance to this allegation of the General Counsel. There had been
a passing reference to Newpher at the meeting in August and later Mildred Krolick 13 and
Lois Riddle , two employees alleged by the General Counsel to be agents of the Company,
questioned her on whether she had signed a card . According to Newpher, about August 24,
Mildred Krolick asked whether she had done so and she (Newpher) replied in the negative,
although in fact she had. Newpher testified that about a week later Mrs . Krolick again asked
if she had signed a card and that this time she answered in the affirmative . 14 According to
8 The incident arose on a Friday morning ; customarily, the plant was not in operation on
Saturday.
9The maximum rate in the packing department was $1.15.
10 This involved arranging the box liners.
111 e , the assembly line packing 2-pound cartons of cheese
ii At the time , Baskin and Newpher were working opposite each other on a conveyor belt.
is Wife of Foreman John Krolick
u0n cross - examination , however , Newpher stated "I never did tell them I joined."
CLEARFIELD CHEESE COMPANY, INC. 435
Newpher, on another occasion15 when Riddle asked to see her card she showed her and
Mrs. Krolick an authorization blank. Riddle's testimony was not in conflict with that of
Newpher as to this last incident although Riddle was not certain whether Mrs. Krolick had
been with her at the time. The latter, however, credibly testified that Newpher had never shown
her a union card.
The evidence to support the allegation that Riddle and Mrs. Krolick were acting as agents
of the Respondent in their interrogation of Newpher was not persuasive to the Examiner. Both
were rank-and-file employees. Neither had ever held supervisory status. Although
Mrs. Krolick, as the wife of a foreman, might under certain circumstances be held an agent
of the Company, cf. N. L. R. B. v. Taylor-Colquitt Co., 140 F. 2d 92 (C. A. 4), I am convinced
that is not the situation presented here. The only activity of these two employees on which
the General Counsel based his allegation was their discussion with Newpher about whether
she had signed a union card. There was no proof, however, that their questions were inspired
by the management or that, at the direction of the Company, they reported back to management
on her answers. There was credible testimony that during this same period both Riddle and
Mrs. Krolick openly attended union meetings and no one appears to have protested.16 As
coworkers closely associated with Newpher, both discussed many matters with her through-
out the course of each day. Newpher testified, in describing her relations with Riddle, "We
always were sort of chummy." By reason of the foregoing it is my conclusion and I find that
neither Mildred Krolick nor Lois Riddle were acting as agents of Respondent during the period
in question.
Neither do I believe that the General Counsel sustained the burden of proving by a pre-
ponderance of the evidence that the Respondent discriminated against Newpher. The testimony
of all witnesses was to the effect that Newpher was not able to maintain a normal rate of
production on the assembly line after her promotion. However, her difficulties in that regard
did not begin in September. Newpher was considerably older than most of the employees in
the packing department and it is apparent from the credible testimony of several witnesses
that she had experienced trouble keeping up her production rate most of the time she had
been there. Of further significance is the fact that Imler credibly testified that in March 1951,
she sought a transfer to his department on the ground that work on the production line in
Krolick's unit was too fast for her. 17 In the light of the above facts, it is my conclusion and I
find that the Respondent did not discriminatorily assign Newpher to work which she could not
perform in order to effect her elimination from the plant.
c. Elsie Gearhart
The General Counsel contends that the Respondent deliberately assigned Elsie Gearhart to
work it knew she was not physically able to undertake in order to discourage collective activity.
This was denied by the Respondent, the latter contending that her assignments were no different
from those of all the other employees in her department and further that her own doctor had
declared that she was physically capable of performing the work.
Gearhart was first employed in May and worked in the packing department under Krolick.
In August she was hospitalized for several days, following an appendectomy. She did not return
to the plant until September 24. According to Gearhart, shortly after her return, she was
assigned topacking onthe5-pound line. Two or three days thereafter she complained to Krolick
that the work caused physical discomfort and asked for another assignment. He then put her to
making boxes on the 5-pound line. In the meantime Gearhart signed a union card. A few days
later she was reassigned to packing. On October 12, shortly after going back to this job,
Gearhart again told Krolick that she could not do the work and at this time he told her she
would need a doctor's certificate to be excused. Gearhart then left the plant. Later that day
she secured a statement from her surgeon, Dr. Elmo E. Erhard, that she would be unable to
do any heavy lifting for 6 months. She did not repot for work on Monday. That evening she
attended a union meeting at which her case was discussed by those present and it was decided
that in the event she was again required to pack 5-pound boxes the employees would go out
on strike. Gearhart returned to work on October 16, at which time she gave Krolick the letter
from Dr. Erhard. That particular day she did no packing but was assigned instead to making
15Newpher's testimony as to the date of this conversation was most confused When first
asked, she testified it occurred about a week after the August 23 meeting; later she fixed it
as having occurred subsequent to a union meeting held on September 26.
16 See the testimony of Ava Delaney
17 This testimony was uncontradicted
322615 0 - 54 - 29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boxes. For 1 hour the following morning Gearhart continued at this same work. At the beginning
of the second hour Krolick told her to pack. Following this order Gearhart went back to the
conveyor, packed 1 carton and then walked out. Several minutes thereafter the rest of the
employees left the plant on strike.
Although Gearhart testified that prior to her operation she had never done any packing on
the 5-pound line, there was credible testimony from other witnesses 18 that occasionally she
had done so. Further it is also apparent from other similarly credible testimony that the
various jobs in the packing department were interchangeable and that employees were
frequently moved from one job to another during the course of a day. The work about which
Gearhart complained consisted of placing 6, 5-pound packages into a box, tilting this on end
and pushing it for a short distance along a roller conveyor to make room for the succeeding
carton. Krolick, on receiving her complaint, reported it to William Tate. On October 12, the
latter called on Dr. Erhard, explained in detail Gearhart's job, and received the doctor's
advice that she was capable of'doing that type of work without injury or discomfort. When
called as a witness the surgeon corroborated Tate's testimony as to the advice he had given.
Dr. Erhard further stated that, several weeks before, Gearhart had asked if she could return
to work and that he told her she could. He also testified that, on coming to his office on
October 12, Gearhart asked whether she should do the lifting required by her job and that he
told her that so long as it was not in excess of 50 pounds she could do so. 19 Dr. Erhard stated
that, in his opinion, during this period she was capable of doing the packing work in question.
Gearhart's testimony on whether she had asked her doctor if she should do any packing was
confused and contradictory. Thus, at one point, while conceding that Erhard had not forbidden
her to do any packing, she testified that"he told me, that if it bothered me, I shouldn't do it."
Later, however, she testified that she had never asked whether she should do any more pack-
ing.
Although Gearhart might have experienced some difficulties at the work in question, the
credible testimony of her own doctor affords no support for her contention that the packing
work was too difficult for her. Moreover, in view of the fact that the employees were assigned
to the jobs in Krolick's department interchangeably, and the fact that Gearhart had done this
work before, it is my conclusion and Ifind that she was not discriminatorily assigned to pack-
ing on October 17.
4. The strike
Subsequent to the meeting which Le Blanc had with Mr. Frank Smith, the Stone Workers'
representative had no further contact with the management until October 12 when he telephoned
William Tate to request a meeting at which Gearhart's case could be discussed. Tate replied
that he was not interested in talking with Le Blanc about anything, and that in the event the
union agent had something to discuss he should contact company counsel. Le Blanc told him
that he felt that unless they could get together, in view of the many grievances that were being
reported by the employees, as well as the Gearhart case, the plant might be closed down.
Tate, however, declined to talk with him any further. 20
As noted above, on the evening of October 15, the Union held a meeting at which those
present voted to walk out in the event Elsie Gearhart was again assigned to packing 5-pound
boxes. On the morning of October 17, when her foreman ordered her to do this work the em-
ployees left the plant on strike. The following day the Union set up an organized picket line
about the entrances which was maintained every day thereafter until November 13 when the
strike ended.
The union organizer made several unavailing attempts to meet with the company officials
during the course of the strike. On October 19, Le Blanc telephoned William Tate to suggest
a conference on settling the dispute. Tate refused, stating as he did so that until the Union was
recognized there was nothing to talk about. On about October 23, Le Blanc accosted Tate
as the latter was attempting to cross the picket line and the two held a brief conversation.
Arnold Nawrocki, a witness called by the Respondent who was with Tate at the time, credibly
testified that Le Blanc said to the plant president, "If you agree to an election we can have
these people back to work in the morning. Later, you and I will sit down and discuss terms....
181. e., Ruth Haley, Maxine Gardlock, and Evon Miller
19 The note which Dr. Erhard gave her read as follows:
Mrs Elsie Gearhart, Curwensville, had an abdominal operation in August, 1951, and
will be unable to do any heavy lifting for the next 6 months.
tOLe Blanc's testimony as to this conversation was uncontradicted.
CLEARFIELD CHEESE COMPANY, INC 437
If any court in this country says that I am not certified to represent these people I will leave
and bother you no further " Tate, however, declared that there was nothing to talk about and
refused to be drawn into a conversation . On October 28, Le Blanc had a brief telephone con-
versation with the plant president in which the former again asked that they meet to discuss a
settlement of the strike and suggested that if the Company would recognize the Union the
strikers would return to work . Tate reminded him of his previously stated position and told
Le Blanc he could only refer him to company counsel . There were no further conversations
between the parties.
On November 11, the employees voted to end the strike , and a committee of three employees
was designated to notify the Company of this action On November 13, this committee called on
William Tate to inform him that the strikewas over and that the employees were ready to re-
turn to work
a. The discharge of employees on strike
On October 19, the Respondent , in a letter addressed to all employees then on strike, noti-
fied them that inasmuch as they had voluntarily quit their employment , they would have to
apply for reemployment on or before October 22 or the Company would assume they were no
longer interested in their jobs: further , since business had fallen off because of the strike
and the amount of available work might be reduced , the Company intended to employ only those
who first applied and were qualified for the jobs still open . The Company carried certain life,
hospital , and sick- benefit insurance on its employees On October 29, it notified Orpha
Sheeder , one of the strikers , that since she had terminated her employment with the Company
on October 17, the policy was void as far as the Company was concerned and that if she cared
to continue it she would havetomakeher own arrangements with the insurance carrier. Some-
time after October 22, the Respondent mailed checks to the strikers which bore the notation
"Wages in full " When many of the recipients objected to any such phrase on the checks on
the ground that it suggested that they had voluntarily quit their employment , the Company
mailed out new checks and an accompanying letter . In this letter , dated November 6, the
Company stated that it was acceding to their request that the notation in question be eliminated
from the checks , but further advised each employee that:
According to our records you voluntarily left our employment October 17 , 1951 and
you refused to return to work when requested to do so, therefore, your employment with
us has been terminated by you.
When the union committee called on William Tate to notify him that the strike was over and
that the employees were ready to return to work , Hamer Tate gave the members a supply of
job application blanks and stated that all who sought reemployment would have to fill them
out He added , however , that in no event would there be room for everyone since a number of
new employees had been hired On the same date , the Respondent also sent letters to the
strikers in which it stated that it would use its best efforts to reemploy those who were
"formerly employed " and "who terminated their employment on October 17 " The letter set
November 19 as the deadline for filing applications for reemployment and closed with the
statement that the Company desired " to cooperate in every manner to re-employ all of our
former employees who desire to be re - employed . " Onand after November 13 , the Company
received applications from 39 of the employees who had been on strike.
b. Solicitation of employees to abandon the strike
It is undisputed that during the strike the Respondent ' s management urged various individual
employees to return to work On October 24, Hamer Tate and Imler went to the home of
Clair Williams, where Tate told the employee that in his opinion the strike was illegal, that
the Company wanted to get back in operation and that it needed him at work . Williams conceded
that he was hard pressed financially and Tate observed that " the union will not pay your bills."
When Williams suggested that he would be unable to drive his car through the picket line,
Tate and Imler assured him that they would provide transportation . They left the employee
with the suggestion that he notify them as soon as he decided to return. 21 The record also
contains letters, dated October 29, addressed to three of the employees who were not working
on the day of the walkout and who had not returned to their jobs. The Respondent wrote these
three22 that it considered them valuable employees , that it would like them to return to work,
but that if they did not do so by November 1, they would be considered terminated.
21 Williams , in fact, remained off his job until the termination of the strike.
22Oral Bauman , Aaron Poole, and Richard C. Frankhouser.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions with respect to allegations of interference,
restraint, and coercion
In the preceding pages I have found that on August 23, the Respondent permitted a meeting
on company time and at the plant where Foreman Imler urged the employees to form a
"company" union and held out the hope of preferential treatment in the event the employees
did so Under these circumstances I find that there is substance to the allegation of the General
Counsel that the Respondent solicited its employees to establish a separate representation
committee or labor organization to deal with it instead of the Union. By such conduct the
Respondent violated Section 8 (a) (1) of the Act
As set forth above, I have also found that Imler and Krolick, while acting as agents of the
Respondent, questioned a number of employees regardingtheir union activities and sympathies
Against the background of the meeting sponsored by the Respondent on August 23, to solicit
the establishment of an "inside" union, Imler's promotional efforts on behalf of such a plan,
and the fact that the union organizational drive was then only in a nascent stage the question-
ing of plant personnel by Imler and Krolick came at a time when the Union was peculiarly
vulnerable By such conduct on the part of its supervisors and agents the Respondent further
violated Section 8 (a) (1). Syracuse Color Press, Inc , 103 NLRB 377. It was likewise coercive
and a violation of the same section of the Act for these representatives of the Company and
for Thomas Eshelman to tell any of the employees, as I have found they did, that if the Union
organized the personnel, the Company might withhold a Christmas bonus, take away their
group insurance, or move the plant to Missouri. Finally, it was a further violation of Section
8 (a) (1) for the Respondent, by oral and written appeals, to individual strikers, to solicit
their return to work, since at the time, as found infra, the Union was the majority repre-
sentative, and such action had the necessary effect of undermining its authority Samuel
Bingham's Son Mfg Co , 80 NLRB 1612, 1613-1614 23
C. The issues with respect to the alleged violation of
Section 8 (a) (5) of the Act; conclusions with respect thereto
1. The appropriate unit
The complaint alleged that all production and maintenance employees at the Respondent's
plant, excluding office and clerical employees, over-the-road truckdrivers, watchmen and
guards, professional employees, and supervisors , constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 of the Act The Respondent denied
this allegation and averred that the instant proceeding was not the proper forum for a unit
determination and that such an issue should be reserved for a representation hearing
There is no merit to the argument that the appropriate unit for bargaining cannot be deter-
mined in an unfair labor practice case Inter-City Advertising Co , 89 NURB 1103, 1110, enfd
as to this point 190 F 2d 420(C. A. 4), cf N. L. R. B. v LaSalle Steel Co., 178 F. 2d 829, 832
(C. A. 7). In any event, here, a representation proceeding was held on November 16, 1951,
the Board issued a decision in which it found that the unit described above was appropriate
Clearfield Cheese Company and the United Stone and Allied Products Workers of America,
C. L O., Case No. 6-RC-895. At the hearing in the present complaint case the Respondent
did not seek to develop any new evidence designed to prove that the unit now sought is in-
appropriate Consequently, it is my conclusion, and I find, that on this record the unit
proposed by the General Counsel is appropriate
2 The union demand for recognition and bargaining
On August 28, as noted above, Le Blanc called on Hamer Tate and company counsel, in turn,
to disclose that the Union represented a majority of the employees and to ask for recognition
At his meeting with Mr Smith, Le Blanc asked whether it would be possible to agree on
recognition, either by a check of the authorization cards or a stipulation to that effect. 'as a
preliminary to any negotiations for a contract. Smith declined with the statement that it was
his understanding of the Labor Management Relations Act that the Respondent was under no
obligation to recognize the Union until the Board had made a finding as to the appropriate unit
23 The complaint also alleged that the Respondent threatened to reduce wages and available
overtime work and to increase work load requirements. No evidence was introduced in sup-
port of these allegations. Accordingly, I shall recommend that they be dismissed.
CLEARFIELD CHEESE COMPANY, INC. 439
and the Union had won an election held at the direction of the Board This has remained the
position of the Respondent to the present date 24 Throughout the course of the succeeding
months the Respondent refused on several occasions to discuss with Le Blanc either grievances
or settlement of the strike
The parties stipulated at the hearing that on August 28, there were 66 employees at the
plant in the production and maintenance category The General Counsel, however, contended
that of this group, 3 were excluded by language in the Board's Decision and Direction of Elec-
tion which provides that "high school students hired on a temporary basis may not vote in
the election " Clearfield Cheese Company, Inc , supra Two employees, Donald Bowman and
William Hawk clearly fall within this category Hawk was a student when hired in July and
told Tate at the time that he only wanted work until lie returned to school in the fall. Hawk
quit on September 15 Bauman started at the plant on May 21, immediately after graduating
from high school and remained until September 1, when he quit to enter college According
to Tate, he could not recall any conversation at the time Bauman was hired which dealt with
the subject of how long the latter would work However, Tate did testify in response to a
question as to the length of Bauinan's service with the Company, that the latter "had to go
to school in the fall" so that he assumed Bauman "would work up until the time that school
would start." In addition, since Bauman quit work on September 1, it seems likely that he
would have given notice of his plans for termination several days prior thereto. In the light
of the foregoing facts it is my conclusion that Bauman must be excluded from the unit for the
same reasons applicable to Hawk
Charles Curry, the third employee in question, however, presents a different problem
Curry was a schoolteacher who was first employed on August 6 and worked in the coolers
under Imler Although he apparently returned to teaching in the fall, he continued at the
plant until October 16 According to Tate, at the time of Curry's employment there was no
discussion as to whether his job would be temporary Tate testified that he knew only that
Curry desired work and that, despite the applicant's status as a schoolteacher, he gave no
thought to whether Curry planned to work only during the summer vacation since employees
hired for the summer months frequently remained permanently. The fact that Curry did
remain on the plant payroll as a full-time employee until October 16, a date considerably
beyond the opening of the school term, lends support to Tate's testimony. Consequently it is
my conclusion that as of August 28, Curry should be included in the unit Thus, excluding
Hawk and Bauman, but including Curry, there were 64 employees within the appropriate
unit on August 28
The General Counsel offered in evidence some 43 authorization cards purportedly signed
by the employees prior to August 28 and some 8 other cards purportedly signed in Septem-
ber The Respondent conceded the authenticity of the signatures on the cards but questioned
the General Counsel's assertion as to the dates the cards were signed 26
Most of the employees involved appeared at the hearing, identified their cards, and testi-
fied as to the time and circumstances surrounding the signing of the authorizations. There
was credible testimony that 14 employees signed cards on August 20 during the first organi-
zational meeting, held at the home of Buford Smith These were Buford Smith, Maxwell
Ardary, Raymond Harzinski, Perry Rowles, Ray Bauman, John Bailey, Jack Knepp, George
Marshall, Herschel Owens, Walter Scipione, Anthony Feola, Clifford Read, Milton Wilkinson,
and Floyd Wisor 26 There was further credible testimony that in the period from August 21
until the time of the Company meeting on August 23, the following 23 employees signed cards
Alexander Bacchieri, Pauline Bacchieri, Nora Jane Baskin, Oral Bauman, Margaret Duke
Blowers, 27 Edward Duke, Margaret Duttry, Joseph Krolick, Floyd Lippert, Elton Painter,
24On September 4, Le Blanc wrote a letter to William Tate, president of the Respondent,
and again set forth the union claim to majority representation and that the employees
"desire to be represented by this organization in collective bargaining concerning their
wages, hours of employment and other conditions of employment." The record indicates no
response to this letter by the Company.
25 Most of the cards bore a date. However, it is apparent from the record that, with few
exceptions, the cards were undated at the time they were signed by the employees, and that
Le Blanc, as his wife testified, placed dates on at least some of the cards in December 1951.
Consequently, in determining the question as to the time when specific employees signed
authorizations the Examiner has disregarded all dates appearing on the cards.
26All of the above named were present at the hearing and testified except Owens, Marshall,
and Wisor. Marshall was in military service at the time of the hearing.
27 Named in the complaint as Margaret Duke, she was married subsequent to the strike.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vivian Painter, Norman Pearce, James Robbins, LeRoy, Rowles, Sylvia Rowles Maines, 28
Robert Russell, Harry Selfridge, John Shaffer, Orpha Sheeder, Paul Smith, Owen Stewart,
Jesse Waple, and Clair Williams. From August 23 to August 27, at least 3 more em-
ployees, William H. Clark, LeRoy Snyder, and Edward Traister signed cards, and in the
period immediately thereafter and before October 1, the following 8 employees signed
authorizations: Elsie Gearhart, Richard Frankhouser, Ruth Harvey, Martha Lippert, Roxie
Newpher, Franklin O'Dell, Glen Redden, and Wallace Read
From the foregoing it is apparent that on August 28 the Union had received authorization
cards from at least 40 of the employees, or 7 more than the 33 required for a majority. 29
By October 1, the Union had obtained a total of approximately 50 cards. so
3. Concluding findings
From the above it is apparent that on August 28 when Le Blanc met with company repre-
sentatives the Stone Workers represented a majority of the employees in an appropriate
unit . There is no dispute that the Respondent neither then , nor later , recognized or dealt
with the union representative as requested . Throughout that period, and to the present, the
Respondent has argued that until the Union was certified the Act imposed no obligation on it
to recognize or bargain with the Stone Workers.
It is, of course , clear that in the event an employer has an honest doubt as to the union's
purported majority or the unit which the Board would find appropriate he can insist on a
formal representation proceeding and a Board -conducted election to resolve such doubts
before being obligated to bargain. Joy Silk Mills , Inc, 85 NLRB 1263 , enfd . as mod. 185 F.
2d 732 (C. A. D. C.), cert . den. 341 U. S. 914. On the other hand , such a position on the part
of an employer is not tenable should the evidence develop that he did not entertain any real
doubts of the union ' s majority and that the demand for certification was motivated largely
by a desire to gain time to destroy the union ' s support . N. L. R B v W . T. Grant, 199 F.
2d 711 (C A. 9), cert . den. 344 U. S . 928; N . L R. B v. Star Beef o , 193 F. 2d 8 C. A. 1);
N. L. R. B v. Ken Rose Motors, 193 F 2d 769 (C. A. 1); Stilley Plywood Co., Inc., 94 NLRB
932, 968 , enfd 199 F. 2d 319 (C. A. 4), cert . den. 344 U. S. 933, Everett Van Kleeck &
Company, Inc., 88 NLRB 785, enfd . 189 F. 2d 516 (C. A. 2), Globe Products Corp., 102
NLRB 278 Sargent & Co , 99 NLRB 1318
There are a number of significant factors to be considered in resolving the question pre-
sented here as to the Respondent ' s good faith.
First , on August 28, neither Hamer Tate nor Mr . Smith questioned the Union 's assertion of
a majority . Le Blanc's suggestion that any issue as to whether the Union had such a majority
be resolved by a check of authorization cards was declined by company counsel . In fact, the
claim that the Union held a majority appears never to have been questioned . At the subse-
quent representation hearing held on October 15, no issue was raised as to majority or the
appropriateness of the unit sought by the petitioning Stone Workers , the only major contention
of the Respondent at that time being that the Union was not qualified as a labor organization
to represent cheese plant employees.
Secondly , in determining the question of good faith in a case such as is here presented, the
Board has considered significant an employer's refusal to consent to an election (J. C.
Lewis Motor Company, Inc., 80 NLRB 1134 , 1141- 1142) and the character of any attack made
on the union's attempt to organize the plant . Joy Silk Mills , Inc., supra Artcraft Hosiery
Company, 78 NLRB 333, 334 E. A. Laboratories , Inc., 80 NLRB 625, 684. Here the course
of interrogation as to the union attitudes and sympathies of the employees , the threats
voiced by supervisorial personnel that the plant might be moved and Christmas bonuses
eliminated if the Stone Workers organized the plant , and the open efforts of Foreman Imler,
on company time and premises , to launch an inside union , all cast a cloud over the purported
good faith of an employer who, in such a situation , refuses recognition to a union which in
fact represents a majority of his employees.
Z8Referred to in the complaint only as Sylvia Rowles, her maiden name.
E9 In its brief the Respondent concedes that on October 17, at least 44 of its employees,
considerably more than a majority, went out on strike.
90 In addition to the names listed in the foregoing paragraph, the cards of Harry Ardary and
Vivian Keller were received in evidence. Although counsel stipulated that the signatures were
authentic, since there was no specific testimony as to when either signed these authorizations
their cards have not been included in the above tabulation.
CLEARFIELD CHEESE COMPANY, INC. 441
Thirdly, the Respondent ' s discharge of its employees for striking , its refusal to reinstate
them at the conclusion of the strike except upon application as new employees , its refusal to
discuss with the Union any aspect of a strike settlement , and its solicitation of individual
employees to return to work , provide additional evidence of an adamant determination on the
part of the Respondent to refuse to recognize and bargain with the Stone Workers.
In the light of the foregoing it is my conclusion , and I find , that on August 28 the Respond-
ent did not have such a good - faith doubt of the Union's majority standing with the employees
as would support the Respondent ' s insistence upon a Board - conducted election before it
would recognize and treat with the union representatives In consequence , by its continuing
refusal to recognize and to bargain with the Stone Workers then , and during the subsequent
months, the Respondent violated Section 8 (a) (5) of the Act.
D. Conclusions with respect to alleged violations of
Section 8 (a) (3)
It was the Respondent 's contention that on October 17 the employees went out on a strike
for recognition which was no more than an economic strike and one for which the Respondent
was in no way responsible This contention must be rejected . The strike was indeed moti-
vated in large measure by the desire of the organized employees for union recognition.
There were additional reasons, such as the belief , albeit unfounded as I have held above, that
their coworker , Gearhart, was being discriminatorily treated . But the basic cause of the
unrest was the refusal of the Respondent to recognize and bargain with he Union as the
designated representative of a majority of the employees , which latter action on the part of
the Respondent I have already found to be a violation of Section 8 (a) (5) of the Act The
strike , therefore , was an unfair labor practice strike and those employees who joined in it
were unfair labor practice strikers , entitled , upon application , to reinstatement regardless
of whether they had been replaced.
The strike, arising as the result of an unlawful refusal to recognize and bargain with the
Union , was also prolonged by further unfair labor practices on the part of the Respondent
Thus, William Tate not only rejected several efforts on the part of the union organizer to
discuss a settlement , on October 19 the Respondent discharged all those on strike, Si and
thereafter solicited individual strikers to return to work
The employees having banded together on October 17 and left their jobs en masse to seek
a recognition which until then the Respondent withheld, unlawfully, as I have found above,
their conduct was protected concerted activity under Section 7 of the Act N. L. R. B. v.
Greensboro Coca Cola Co , 180 F. 2d 840 , 843-844 (C. A. 8), N. L. R. B. v Globe Wireless,
Ltd., 193 F. 2d 748, 750 (C. A. 9), Kallaher and Mee, Inc., 87NLRB 410, 411-413 As a
result , the Respondent was not free to discharge them for such activity and by doing so it
violated Section 8 (a) (3) and (1) of the Act
E. The alleged misconduct of the strikers ; conclusions
with respect thereto
1 The conduct of the strikers as they left their jobs
At the hearing the Respondent endeavored to prove that when the strikers quit work on the
morning of October 17 they left the plant in such a state of chaos and confusion that by reason
of this alone they had disqualified themselves for reinstatement . The evidence developed
shows that shortly after the walkout , Hamer Tate and the foremen made a tour of inspection,
then organized a crew of about 30 employees and supervisors , who had remained on duty, to
complete the work - in-process and to place the plant in a state of readiness for the resump-
tion of production This task was completed by a crew considerably smaller than the regular
Si The Respondent has at no time contended that these discharges were merely tactical. Its
position has been that those who left the plant were economic strikers . Then, relying on
Kansas Milling Company v. N. L. R. B., 185 F. 2d 413, 419-420 (C. A. 10), it contends that it
was free not only to replace them at the first opportunity but also to notify them of such an
intention as was set forth in the letter of October 19. In any event, any doubts as to whether
the last -mentioned letter constituted notice of termination are resolved by reference to the
subsequent letters of October 29 and November 6 and the Respondent 's notice to all the
strikers on November 13. In this, latter notice the strikers were advised that if they were
rehired it would only be as new employees.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operating crew 32 and composed in large part of office clericals , laboratory technicians,
maintenance men, and others not experienced in production operations , before noon on the
same day No evidence of substantial loss or damage was offered and it is clear that the
only complaint which the Respondent registered arose out of the inconvenience which neces-
sarily developed with the cessation of plant activiti,'i when the employees walked out.
The General Counsel correctly argues that to hold such conduct sufficient to deprive the
strikers of their employee status is to deny them their right to strike.
2 Misconduct on the picket line
a The facts
The same conclusion, however, cannot be drawn with respect to the evidence submitted as
to the subsequent behavior of numerous strikers during the course of their picket line duty.
It is clear from the evidence in the record that on several occasions striking employees
blocked all access to the plant by gathering before the entrances and refusing to move, and
by parking cars and spreading railroad ties and logs across the driveways. Most of the
witnesses produced by the General Counsel, when cross-examined by the Respondent, pro-
fessed no knowledge of any untoward conduct on the part of the pickets throughout the entire
strike. In the light of the credible testimony of the numerous witnesses called by the Re-
spondent however , these general denials were most unpersuasive . In addition , a number of
the General Counsel ' s witnesses admitted that early in the strike the plant entrances were
completely blocked. Jack Knepp, one of the strikers, testified that "a couple of days after we
started the strike, we shut them off completely I mean, the workers didn't work." Robert
Russell, another one of the pickets, testified that there were days when he saw the roadways
blocked and "We had the plant shut up," and Paul Smith and Orpha Scheeder conceded that
on at least two mornings the nonstriking employees were unable to enter the plant . Gaston
Le Blanc conceded that he thought there were times when the pickets at the plant gates did
not move
On October 18 and 19, the first days that organized picketing began, some 50 to 60 pickets
were in front of gates Nos 8 and 12, the 2 main entrances to the plant, 83 but it appears that
all who cared to work were free to do so
On Saturday morning, October 20, from 60 to 150 pickets were gathered before the plant
and spread ih front of and between entrances 8 and 12 sa Many of them were employees of the
Company but some were not. Shortly before the main groups of nonstrikers sought admit-
tance to the plant that morning, Foreman Charles Duke, while alone, drove along Meadow
Street intending to enter the plant at gate No 8 The size of the crowd about that entrance,
however, compelled him to stop in the street before turning into the plant Not being able to
go any further, he called out to Buford Smith, who was among the pickets, to ask if they
would allow him to enter. Smith shook his head in the negative Duke then asked Smith, whom
he had known for a long while, to get in the car for a discussion of the matter As Smith did
so, Herschel Owens, who was standing nearby, threatened to upset Duke's car Smith then
frankly told the foreman, "Charley, if you try[ to drive through the picket line] I am telling
you, we will upset it." Smith then stepped out of the car and Duke made no further effort to
enter the plant that day $
Shortly, thereafter, a procession of six cars, containing management personnel, office
clericals , and nonstriking production workers, was led up to the picket line at No. 12 by
Joseph Riddle, chief of police for the Borough of Curwensville. Riddle stopped near the
entrance and told the pickets they would have to permit access to the company premises.
Imler, who was driving the next car, and who was accompanied by Hamer Tate and Snyder,
then sought to enter the plant As he did so, several of the strikers, including Floyd Lippert,
grabbed the handles on the car doors and sought to open them As Lippert jerked at the han-
$Approximately 50 of the production and maintenance employees went out on strike the
first day
33There were five entrances to the plant On charts and diagrams introduced at the hearing,
all of which appear in the record, these entrances were numbered 8, 9, 10, 11, and 12, and
referred to by those designations throughout the transcript For ease of reference here, the
entrances will be designated by the same numbers throughout this report
3This was an overall distance of approximately 140 feet.
The foregoing is based upon the credited, undenied testimony of Duke Buford Smith,
called in rebuttal, made no effort to deny Duke's version of this incident
CLEARFIELD CHEESE COMPANY, INC. 443
dle on one side of the car he called out "You yellow ----- we will come in and get you " At
the same time Anthony Feola and Roxie Newpher, on another side of the car, called out that
they would upset it and LeRoy Rowles stood before one of the windows and shook his fist at
the occupants After some minutes had passed Imler was able to move slowly through the
line and into the plant 36 No other cars in the group , however, entered the plant that morning.
The next car in the line was driven by Edward Caldwell As Caldwell moved forward, several
pickets came alongside his car and tried to upset it Buford Smith, James Robbins, and
Robert Russell were among those who crowded around the automobile. As they did so,
Smith told Caldwell that neither he nor any one else would be permitted to enter the plant.
Caldwell then yielded and withdrew 37 William Tate was driving the next car. As Tate
waited behind Caldwell, Smith came up to tell him that because the plant had been in produc-
tion the day before "There will be nobody going in except you and Hamer [Tate] and
Charlie [Eshelman] 38 At that moment, however, since Tate had several nonstrikers with
him, the pickets would not permit him to proceed any further Police Chief Riddle asked the
pickets around Tate's car, which group included Owen Stewart, Oral and Ray Bauman, and
LeRoy Rowles, to let Tate through They refused to do so and after a few minutes Tate with-
drew and returned his passengers to their homes. 39
In the meantime, Imler, Snyder, and Hamer Tate, who had managed to get through the line,
remained in the plant for several hours.40 While Imler and Snyder were working in the clean-
ing department, Clifford Read and several other pickets were standing about 35 feet outside
one of the rear exists The door was open and only a screen covered the opening. While
Synder was working near this open door one of the pickets, whom neither Snyder nor Imler
knew, came up to Read to ask "How is it going?" Read replied, "Pretty good, Sneezy [a
plant nickname for Snyder] is in there, a yellow ----- He'll be out of there in a couple of
weeks." To this his associate replied, "Well there's one way to fix him ... cut[him] open
and put him under six feet of ground "41
On the following Monday, October 22, from 100 to 150 pickets were standing before en-
trances 8 and 12, railroad ties had been laid end-to-end in front of both gates and cars were
parked behind them. Again the management personnel made an unsuccessful effort to bring
the office clericals and some of the nonstriking production workers into the plant Shortly
before 8 a m , Hamer Tate, accompanied by 4 female employees, drove up to No. 8. From 35
to 40 pickets were before the entrance and railroad ties lay across it In addition, a small
truck owned by Edward Duke and a car owned by Elton and Vivain Painter were parked in
front of the entrance As Tate drove up to the line, Le Blanc called out "Nobody is getting
through this line to work this morning " After pausing there for a short while Tate abandoned
his efforts to enter and drove away Not long thereafter Thomas Eshelman drove up to the
same entrance and sought admittance When Eshelman stopped, Buford Smith told him he
could not get into the plant. Paul Smith, another picket at this entrance, then said "If we
don't work, no one works ' With this Eshelman left the plant area and made no further at-
tempt to get in until the following day
Within the next hour the management personnel and a number of employees, in a proces-
sion of 5 cars, likewise approached gate No 8 Some 65 to 70 pickets were before that
particular entrance and on the street leading up to it Le Blanc was among the pickets and as
the cars drew near he called out "There will be nobody going into the plant today except
management [and] maintenance " Again the supervisory personnel and the nonstrikers made
no effort to force their way into the plant but remained at the entrance for only a few minutes
36These findings are based on the credited, undenied testimony of Imler, Hamer Tate,
and Snyder.
a+The foregoing is based on the credited, undenied testimony of Riddle, Caldwell, William
Tate, and Melvin B. Mann
38Charles Eshelman was a maintenance man who tended the heating equipment.
39Later in the morning Tate returned to the entrance by himself and was granted ingress
by the pickets. Apart from Iniler and Snyder, no foreman or rank-and-file employee was
permitted to enter the plant that day.
4OThe incident described hereinafter was placed on October 20 by LeRoy Snyder. He was
corroborated by Imler as to all particulars except the date Imler's recollection was that it
occurred on November 3 However, as to this aspect of the matter I believe Snyder's recol-
lection to be the more accurate
4i0n the night of October 17, Read telephoned Snyder, who had remained on duty that day
while the strikers walked out, to tell him "You know, the fellows down there don't like
you. . If you go back we will get you "
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then withdrew Almost all of the dischargees named in the complaint were identified in
the crowd of pickets at No. 8 this time. 42 About 9 a. m., William Tate, accompanied by his
brother Hamer and Ross B. Eshelman, returned to the plant. At this time 1 car and 1 tie
had been removed at No. 8 and the pickets allowed them to drive through. None of the other
plant personnel , however , were permitted to enter the premises that day.43
On October 23 the pattern of the previous day was repeated. The principal entrances to the
plant remained blocked with railroad ties and cars44 and some 100 to 150 pickets were
standing across entrances 8 and 12. The plant officers, foremen, office clericals, and several
others, led by William Tate, drove to No. 8, where the pickets, formed in a body across the
entrance, were 4 to 5 persons in depth. As the contingent arrived, Le Blanc called out to
Tate "There will be nobody go in" and at the same time declared, "Mr. Tate, you recognize
my Union and the people will be back 'to work tomorrow." Tate declined to engage in any
conversation with him and after the nonstrikers had waited a few minutes without avail for
the pickets to permit their entry, Tate and his group withdrew. Later that day the 3 corpo-
rate officers, William and Hamer Tate and Ross Eshelman, returned to the plant and re-
moved certain files, records, and office equipment which they carried to the homes of 2 of
the office employees From then until October 26, the office personnel worked on company
correspondence at these private dwellings On Tuesday, October 23, apart from the above
3 company officials and Charles Eshelman, the maintenance man, the pickets permitted no
nonstriking employees to enter the plant 45
On the morning of October 24, the management made another unsuccessful attempt to lead
a caravan of nonstrikers into the plant Again, cars, railroad ties, and pickets blocked the
entrances. Le Blanc and Buford Smith told all in the group who sought admittance that no one
would be permitted to enter Le Blanc went up to the car driven by Thomas Tate and said
, how many times we got to tell you you're not coming in here?" When Tate replied
"Every morning," LeBlanc declared " , we told you this morning, now get going." On
the following morning, however, the management and office personnel were permitted to
enter and the next day a number of production workers were able to return through gates 8
and 12
In the meantime, however, roadblocks were maintained at the other entrances to the plant
as they had been on October 20 and on each day thereafter. Throughout most of the strike, the
automobiles of certain strikers were parked diagonally across entrances 9, 10, and 11 A
gray Plymouth car which Sheeder had used for driving to work prior to the strike was used
to block No. 9, and a maroon colored Ford owned by Clair Williams was parked across No
10 in such a way as to bar that driveway. At No 11 a car owned by John Bailey was placed
crosswise in the road on several days during the first 2 weeks of the strike. There was also
testimony that a car owned by Alexander Bacchieri was similarly parked at entrance No 9,
along with Sheeder's Bacchieri was called in rebuttal and credibly testified that he had
parked along the roadway at this entrance for a period of about 4 hours on one particular day.
He also testified that Mrs Le Blanc drove a Hudson car very similar in model and color to
42Imler testified that he saw Paul Smith, Elton Painter, Ray Bauman, Oral Bauman, and
Edward Duke According to Charles Duke, Milton Williamson, Orpha Sheeder, Vivian Painter,
Floyd Lippert, LeRoy Rowles, and Anthony Feola were also there Krolick named most of
the others who the General Counsel alleged were discriminatees
43At about 4 o'clock that afternoon, 2 employees of the Williams Grove Clay Products
Company sought to enter the plant area to deliver a load of coal. According to the credible
testimony of Blair Irwin, the driver, railroad ties were still across No. 8. Le Blanc told
Irwin and his associate, Reuben Harris, "We are not allowing any trucks or anyone in here
except the owners of the company and the maintenance man. For over five days we haven't
allowed anyone in here " Le Blanc, however, gave Irwin permission to dump his load of coal.
"Edward Duke's truck and the Painters' car were again in front of entrance 8
45The foregoing findings are based on the credited testimony of the Tates, Imler, Charles
Duke, Nawrocki, Krolick, and several others. Charles G. Ammerman, high sheriff of Clear-
field County, called as a witness for the General Counsel, testified that on this morning there
were from 40 to 50 pickets "right at the entrances" in front of the plant [Nos 8 and 12].
Ammerman also testified that when he was there he, too, saw railroad ties laid across the
entrances and that he ordered Le Blanc to remove them. That evening Charles Duke stopped
at the picket line in front of the plant where Ray Bauman and Edward Duke, a brother of the
foreman, were on picket duty. Charles Duke asked the pickets "When are you going to let us
in to work? " His brother answered, "We are never going to let you in" and Bauman added,
"Unless you recognize the Union."
CLEARFIELD CHEESE COMPANY, INC. 445
his, although he could not remember seeing her automobile parked at this entrance. None of
the others , Williams , Sheeder, or Bailey, were recalled. All 3, however , had testified during
the presentation of the General Counsel's case-in chief, and no explanation was offered for
the General Counsel's failure to call them in rebuttal.
The plant did not open on Saturday, October 27. Foreman Imler, however, proceeded to the
plant for the purpose of taking an inventory . Seeking to enter at No. 11 he found a large log
across the entrance and several pickets standing there. Imler explained to the striking em-
ployees the reason for his desiring to enter the plant. Read, one of the pickets in the road-
way, replied "There will be nobody in here today.... Let Hamer Tate take inventory."
Harzinski, also present, added "Nothing doing, nobody is getting in." With this, Imler did
not attempt to go any further but abandoned his plan and withdrew.
The railroad ties and logs disappeared from the 2 principal entrances over the week end
of October 26 to October 29, 46 but a log remained across entrance 11 and cars blocked 9 and
10 until the end of the strike. About 7 o'clock on the morning of October 29, Daisy Russell
and 4 of her fellow employees drove up to No. 11. In addition to the log across the en-
trance, 3 pickets, Ray Bauman, Walter Scipione, and James Robbins were standing in the
roadway. As she drew to a stop Scipione jumped on the front bumper of her car and told her
"If you try to go through, we will upset the car." After this Barrett made no further effort
to go forward but turned around and left the plant area. 47
Shortly after 8 o'clock on the evening of November 2. Charles G. Bell and his brother,
William P. Bell, 2 employees hired by the Company after the strike began, were reporting
for work on the night shift. They parked their conveyance, a farm truck, some distance from
entrance 11, then started walking to the plant , about 150 yards away. It was dark and both set
about making their way along the drive with the aid of flashlights which they were carrying.
A moment later, alerted by the sound of footsteps. Charles turned and flashed his light back-
wards where he saw a man he recognized as Jack Knepp at the head of a group of 5 others
coming toward him. Charles called out a warning to his brother. At that moment he heard
Knepp say "Get that -----." In another instant both he and his brother were being assaulted
and beaten by their pursuers. Charles was struck from behind, knocked to the ground and
kicked about the head and body. Apart from bruises, his injuries did not prove serious; his
brother, however, was hospitalized for a week.
The General Counsel attacked the Respondent's identification of Knepp as the assailant on
various grounds: that Charles Bell had not known Knepp prior to the assault; that Knepp
denied any participation in the affray; and that two witnesses, Paul Smith and Floyd Lippert,
were produced to testify that Knepp had spent most of that evening in question at a picket
shack located on the other side of the plant. Bell testified that the man he saw in the beam of
his flashlight was wearing a red and black, plaid hunting shirt or jacket. Later that evening,
after the Bells were hospitalized, Charles Duke went to the picket headquarters where he
saw Knepp wearing the same type jacket as that described by Bell. Paul Smith, a witness
called by the General Counsel, gave similar testimony as to the type of clothing Knepp was
wearing on that particular evening. Knepp conceded that he had a jacket of this description
and he did not deny that he was wearing it on the night in question. Knepp was not a persua-
sive witness, in his own behalf. Smith, whose testimony was offered to establish an alibi for
Knepp, was neither consistent nor convincing . Neither was Lippert, who was also offered as
a rebuttal witness by the General Counsel. Bell, on the other hand impressed the undersigned
as being thoroughly credible. Although Bell's identification of Knepp must be subjected to
great scrutiny before acceptance , in view of the unconvincing character of Knepp 's denials
and those of his fellow pickets, I am satisfied and find that Knepp was a participant in the
assault and beating of the Bell brothers.
On the morning of October 25, Thomas Eshelman, accompanied by his father, Ross Eshel-
man, and several employees, drove up to entrance No. 12. About a dozen pickets, including
Robert Russell and LeRoy Rowles, were standing in the roadway. Eshelman stopped for a
moment as he reached the entrance, then moved forward in low gear. All the pickets stepped
out of the way except Russell who maintained his position in the middle of the road until the
car bumper pushed him off to the side. That evening while Eshelman and his wife and daugh-
ter were in their car , parked on a street in the business section of Curwensville , Russell
On October 26, the Company filed a bill of complaint seeking injunctive relief in the
Court of Common Pleas for Clearfield County. On November 5, that court entered a tempo-
rary restraining order against the Union and several named individuals.
47 Later that morning Barrett and some of these same passengers entered the plant at No.
8, being escorted at that time by Hamer Tate.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came up to them. There he accused Eshelman of having tried to run over him that morning,
stated that he was not hurt but that Eshelman would be, although he would do nothing at the
moment because Eshelman's wife and child were in the car, and concluded with the remark
"It doesn't matter if it takes a year or two years, I will get you for what you tried to do this
morning." 49
Two employees who worked on October 17 and did not join in the strike credibly testified
that that evening a delegation called on them at their homes. Thus, according to Maxine
Gardlock, Gearhart and Sheeder came to her home that night to ask whether she proposed to
work the following day. When Gardlock answered in the affirmative, Gearhart told her "It
was all right for you to work today but don't go in tomorrow, and if you do, you'll be sorry.
Anything can happen." That same evening, Sheeder, Gearhart, and Ray Bauman went to
the home of Marie Barrett. When asked, the latter told her visitors that she planned to work
the next day. Sheeder then declared to her "Well, you may go to work ... if you wish,
but . . . you will just have to go at your own risk and take what you get." Bauman added
"Yes, that's right, Marie, you will just have to go at your own risk and take what you get "49
b. Concluding findings
The General Counsel argues that (1) the evidence adduced by the Respondent fails to sup-
port the allegation of widespread picket line misconduct during the strike; and (2) in any
event, by its actions subsequent to the strike, the Respondent condoned the conduct of the
pickets and is no longer in a position to raise it as a bar to their reinstatement.
Contrary to the position of the General Counsel, it is plain that the record in this case
abounds with credible evidence that on at least 4 days, October 20, 22, 23, and 24, the
strikers physically barred all entrances to the plantin such a manner that for the nonstrikers
there was "an effective implied threat of bodily harm ... should they risk entering the
plant" Socony Vacuum Oil Company, Inc., 78 NLRB 1185, 1186. In the light of the credited
testimony, set forth above, that on several days early in the strike the plant gates were
blocked with railroad ties, automobiles, and a large number of pickets, it would be totally
unrealistic to conclude that the nonstrikers failed to enter the plant, as the General Counsel
argues, only because of the "natural discouraging effect of a picket line." The General
Counsel's further statement in his brief that the existence of any plan to debar the non-
strikers "is belied by the continued operation of the plant throughout most of the strike with-
out a single, serious picket line incident of threat or violence" is also without support in the
record. The plant was not in continued operation. From October 20 to October 25 it was not
in operation at all and for several days during that period an emergency office outside the
plant area had to be established because the clerical personnel were barred from the plant.
That the early days of the strike were not marked by violence in no way supports the asser-
tion that the picketing was peaceful and protected. "The result accomplished, intentionally
and designedly, was no different than if the strikers had bolted the entrance doors to re-
spondent's plant." N. L. R. B. v. Indiana Desk Company, 149 F. 2d 987, 995 (C. A. 7). The
Act does not require the nonstriking employees to risk violence when reporting for work or
that the management do so in order to secure possession of its property.
The General Counsel argues that since at the time the strike was terminated the Respond-
ent did not refer to picket line conduct and subsequently reinstated a number of the strikers
it must be held to have condoned any misconduct in which the pickets engaged. This argu-
ment, however, ignores the fact that such offers as the Respondent made were made to the
individuals concerned as new employees. It was undisputed that on November 13 when the
employee committee came to the plant to announce that the strike was over and that the
strikers were ready to work, William Tate told them "The only thing I can offer you are
application cards to be filled out the same as we do with any new employee coming to the
plant when we do not have work immediately available." 50 The situation here is similar to
"The foregoing findings are based upon the credited testimony of Thomas, Verna, and
Ross Eshelman Russell denied that he had accosted Thomas Eshelman on the evening of
October 25 In the light of the clear and convincing testimony to the contrary, Russell's
denial is totally implausible
49 The findings in this paragraph are based upon the credited, undenied testimony of
Gardlock and Barrett.
50Walter Scipione, one of the three employees on the committee, testified that Tate told
them " . . everybody will have to fill out an application and if we can take them back we will,
but we won't have room for everybody "
CLEARFIELD CHEESE COMPANY, INC. 447
that in Longview Furniture Company, 100 NLRB 301, where the Board held that there had
been no condonation. There the employer did not reveal a decision not to reinstate the
strikers who had engaged in misconduct when the Union applied on their behalf, but relied on
its representation that it had no job vacancies. The Board held that this did not preclude the
employer from asserting at a later date that misconduct on the picket line was a further
reason. A similar situation is presented here and it is my conclusion that the Respondent
waived none of its rights in this connection. Union Carbide and Carbon Corp., 100 NLRB 689,
footnote 9.51
It is my conclusion that the following named strikers, because of the acts described above,
engaged in such unprotected concerted activity during the strike as would free the Company
of any obligation to reinstate them: Herschel Owens, because of his threat to upset Charles
Duke's car; Buford Smith, for his participation in the same incident, as well as those other
occasions, on October 22, 23, and 24, noted above, when he prevented ingress to the plant;
Floyd Lippert, Anthony Feola, Roxie Newpher, and LeRoy Rowles, for their participating in
the attempt to block Imler from entering the plant on October 20; Robert Russell and James
Robbins for their part in preventing Caldwell from crossing the picket line on October 20;52
Owen Stewart, Oral Bauman, and Ray Bauman, for their refusal to let William Tate enter
gate No. 8 on the same morning, t2Clifford Read and Raymond Harzinski, for their refusal
to let Imler enter the plant on October 27; Elton and Vivian Painter, Clair Williams, John
Bailey, and Orpha Sheeder for the use to which they lent their automobiles in blockading the
plant throughout the strike;54 Paul Smith, for his part in preventing Thomas Eshelman from
entering the plant on October 22; Elsie Gearhart for her participation, along with Sheeder
and Bauman, in the calls upon Gardlock and Barrett at their homes during which the two
nonstrikers were impliedly threatened with bodily harm to discourage their reporting for
work; and Jack Knepp, for his assault on Charles Bell. Of the remaining employees named in
the complaint, I feel that none was identified with any of the acts of misconduct mentioned
above or in any other picket line violence. Krolick testified that he had seen some of them
on picket duty on October 22 and 23 but he gave no testimony of overt conduct on their part
that was unprotected. "Unauthorized acts of violence on the part of individual strikers are
51 See also, N. L. R. B. v Fansteel Metallurgical Corporation, 306 U. S. 240, at 259,
where the court said.
The important point is that Respondent stood absolved by the conduct of those engaged in
the "sitdown" from any duty to reemploy them, but Respondent was nevertheless free to
consider the exigencies of its business and to offer reemployment as it chose. In so doing
it was simply exercising its normal right to select its employees.
52 Buford Smith also participated in this incident. Of further significance in connection with
Robbins is the fact that Hamer Tate credibly testified that on October 30 he saw Robbins,
while on picket duty at No. 8, throw a stone at the car of a nonstriker reporting for work.
Robbins' denial of this imputation was unconvincing My finding that Russell forfeited his
reinstatement rights is also based on his barring Imler from the plant on October 27, his
attempt to keep the Eshelmans out on October 25 and his subsequent threats to Thomas
Eshelman
On October 29, Ray Bauman was with Walter Scipione and James Robbins when the three
of them prevented Daisy Russell and several other nonstrikers from going through gate
No 11 Bauman was also with Gearhart and Sheeder on the night of October 17 when the lat-
ter three called at the home of Marie Barrett and made an implied threat that harm would
befall her if Barrett persisted in working during the strike.
14There was extensive testimony about the consistent presence of these cars across cer-
tain of the plant gates during the first 2 weeks of the strike Although all of these employees
had appeared to testify during the General Counsel's case-in-chief, not one was called in
rebuttal
In his brief, the General Counsel urges that Edward Duke, although not included on the
list of alleged discriminatees set forth in the complaint, should be included in any recom-
mended order for reinstatement There was uncontroverted testimony that Duke's car was
used to block entrances No 8 on October 22 and several subsequent days Consequently,
apart from the question as to whether the status of this employee, who was not named in
either the charges or the complaint, was fully litigated at the hearing, I would find Duke in-
eligible for inclusion in an order of reinstatement for the same reason applicable to the
Painters, Bailey, Sheeder, and Williams
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not chargeable to other union members in the absence of proof that identifies them as partic-
ipating in such violence." N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645 (C. A. 6).
Consequently, it is my conclusion, and I find, that on the present record the following strikers
did nothing to disqualify themselves for reinstatement: Ardary, Alexander Bacchieri, Baskin,
Margaret Duke Blowers, Duttry, Frankhouser, Martha Lippert, Marshall, Pearce, Poole,
Redden, Perry Rowles, Silvia Rowles, Selfridge, Shaffer, Wapple, Wilkinson. and Wisor.
F. The alleged coercion of Newpher to compel withdrawal
of the charges; conclusions with respect thereto
On December 6, Hamer Tate called Newpher to offer her a job in the cheese-cleaning
department at the same rate of pay she had before the strike. Newpher accepted and started
to work on the next day. On December 10, according to Newpher: In-der asked if she was
interested in steady work and when she answered in the affirmative, he suggested that this
would be possible if they both saw Hamer Tate. The two then went to Tate's office where the
latter asked her the same question and then inquired whether she had made many charges
against the Company. When she declared that she had not, Tate observed "Then, Roxie, this
must have been forged on you" and showed her a piece of paper he described as charges she
and Gearhart had made against the Respondent.Z Newpher told him that her charges were
solely against Krolick but Tate responded that the charges would hurt only the Company,
not Krolick, and asked that she sign a withdrawal. Newpher declined and Tate suggested
"would you care to take this paper with you and think it over for a couple of days and maybe
consider signing it." Newpher, however, refused to do so. Tate said nothing further, but 2
days later Imler approached her while at work and suggested "Roxie, between you and me,
there is a little piece of paper down in the office. If you would just sign it would make it
better for everyone concerned and ... it would save you--Johnny from making a lot of
embarrassing moments for him." According to Newpher she again refused to do so
Hamer Tate denied that he offered Newpher any benefits if she would withdraw her charges
However, his testimony as to the meeting in question was not substantially different from that
of Newpher. According to Tate, he told her on this occasion, "We would like to see all of
these employees back, and to that end we are wondering whether or not you might feel that
you want to let bygones be bygones." (Emphasis supplied ) Tate testified that he then showed
her the charges which the Regional Office had sent him and that she said, "I did not make
those charges. I have nothing against you or Bill You have always been gentlemen and fair to
me, but I don't like Johnny Krolick The charges I made were against John Krolick, and as far
as I am concerned, they are going to stand." According to Tate, at this point, he concluded the
conversation with, "That is your privilege, Roxie. If that is the case, let's just forget the
whole thing." (Emphasis supplied.) Tate testified that Imler was present at this conversation.
Imler, however, professed an inability to recall any details of the meeting He did, however,
deny generally that he had promised Newpher steady work if she would withdraw her charges
As noted in a preceding section of this report, I have not considered Newpher a completely
reliable witness. Here, however, it is apparent that her version of the meeting with the man-
agement has been corroborated in large measure by Tate. On the other hand, Imler's ex-
pressed inability to recall the conversations attributed to him was not persuasive . Because
of these factors, I am convinced that Newpher's account of her discussions with Imler and
Tate are credible and that both Imler and Tate sought to induce withdrawal of her charges
with a promise of continued employment. Such conduct was a further violation of Section 8
(a) (1) of the Act.
G. The Respondent's offers of reemployment; conclusions
with respect thereto
Subsequent to the termination of the strike the Respondent reemployed several of the
strikers and made offers of reemployment to a number of others which most of the offerees
declined . The Respondent contends , apart from the question as to whether any of the strikers
are entitled to be made whole, that, in any event, those to whom such offers were made
should receive no back pay after the date of such offers. This raises the question of whether
the Respondent did, in fact, offer to make the discriminatees whole.
55On December 7, 1951, the Union filed its second amended charge with the Sixth Regional
Office
CLEARFIELD CHEESE COMPANY, INC. 449
The question must be answered in the negative From the day the strike ended the Re-
spondent made clear to the strikers that those whom it recalled would return individually
and as it needed them as new employees. Only a few of the employees whom it hired were
given their former jobs. 56 None of the offers contemplated any back pay or included any
provision for accumulation of vacation or seniority benefits which employees dismissed on
October 19 and thereafter refused reinstatement would have earned but for their discrimi-
natory treatment. Consequently, it is my conclusion that the Respondent made no valid offer
of reinstatement to any of the employees whom I have in this report found eligible and en-
titled to reinstatement. It is, therefore, my conclusion, and I find, that the rights of the
strikers to be made whole for the discrimination practiced against them were unaffected by
such offers of reemployment as the Respondent made subsequent to the termination of the
strike
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection with
the operations of Respondent described in section I, above , have a close, intimate , and sub-
stantial relation to trade , traffic , and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices , it will
be recommended that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent engaged in certain acts of interference , restraint,
and coercion, it will be recommended that Respondent cease therefrom. It having been found
that from August 28, 1951 , and thereafter , Respondent refused to bargain collectively with
the Stone Workers, it will be recommended that Respondent, upon request, bargain collec-
tively with said Union.
It having been found that Respondent discriminatorily discharged, on October 19, 1951, all
its employees who were on strike and that it thereafter refused to reinstate said employees,
it will be recommended that Respondent offer to each of said employees listed in appendix A
immediate and full reinstatement to his former or substantially equivalent position (The
Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827),
without prejudice to his seniority or other rights and privileges, and make each of them whole
for any loss of pay that they may have suffered by payment to each of a sum of money equal
to that which he normally would have earned as wages from the respective dates of the dis-
crimination against each of them to the date of Respondent ' s offer of reinstatement , less net
earnings during said period. Cf. Crossett Lumber Company, 8 NLRB 440, 497-8.57 Said loss
of pay shall be computed on the basis of each separate calendar quarter or portion thereof
during the period from November 13, 1951, the date of the employees' application for rein-
statement, sa to the date of a proper offer of reinstatement The quarterly periods, herein
For example, subsequent to the strike, Duttry, Sheeder, and Vivian Painter were offered
part-time jobs in the cheese-cleaning department which they tried for a few hours and then
quit. Prior to the strike these employees had been in the packing unit and had done little, if
any, cheese cleaning
The record establishes that the following striking employees involved in this action had
been reemployed at the time of the hearing: Maxwell Ardary, Anthony Feola, Roxie Newpher,
Clifford Read, Robert Russell, John Shaffer, Jesse Waple, and Floyd Wisor In addition to
these individuals, Martha Lippert was reemployed in January 1952 but quit of her own voli-
tion in May. Of these employees only Ardary, Lippert, Shaffer, Waple, and Wisor have been
found entitled to mandatory reinstatement rights As to these last named, since the Respond-
ent's offer of reemployment, as found above, section III, F, was insufficient, it must make a
new and valid offer of reinstatement to them as well as making each of them whole for any
loss of pay suffered as a result of the Respondent's discrimination
581n his brief the General Counsel argues that back pay be computed from October 19, the
date of the discriminatory discharges. The Board has consistently held, however, that
"where, as here, striking employees have been discharged during the course of an unfair
labor practice strike, it is Board policy to provide for back pay, not from the date of their
discharge, but from the date of their application for reinstatement." Wheatland Electric
Cooperative, Inc., 102 NLRB 1119.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called "quarters," shall begin with the first day of January, April, July, and October. Loss of
pay shall be determined by deducting from a sum equal to that which each said employee would
normally have earned for each such quarter or portion thereof his or her net earnings, if any,
in other employment during said period Earnings inoneparticular quarter shall have no effect
upon the back-pay liability for any other quarter. F. V1. Woolworth Company, 90 NLRB 289
Respondent offered uncontroverted testimony that George Marshall had entered the Armed
Forces of the United States shortly after the strike It will therefore be recommended that
Respondent, upon application by Marshall within 90 days after his discharge from the Armed
Forces, offer him immediate and full reinstatement to his former or a substantially equiva-
lent position, without prejudice to his seniority and other rights and privileges, and that
Respondent make Marshall whole for any loss of earnings he has suffered or may suffer by
reason of Respondent's discrimination against him by payment to him of a sum of money
equal to the amount which he normally would have earned as wages during the period (1)
from November 13, 1951, to the date of his entry into the Armed Forces of the United
States; and (2) from a date 4 days after his timely application for reinstatement, if any, to
the date of the offer of reinstatement by the Respondent, less his net earnings during said
period American Steel Foundries, 67 NLRB 27
With respect to the employees listed in appendix B it will be recommended that reinstate-
ment and back pay be denied for the reasons hereinbefore stated
It will also be recommended that the Respondent, upon reasonable request, make available
to the Board and its agents, all payroll and other records pertinent to an analysis of the
amount due as back pay
It has further been found that Respondent, by various acts, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in the Act. Because Respond-
ent's discriminatory discharges "go to the very heart of the Act" (N. L. R. B. v. Entwistle
Manufactu ring Co., 120 F. 2d 532,536(C. A. 4)) and indicate a purpose to defeatself-organization
of its employees, I am persuaded that the unfair labor practices committed are related to
other unfair labor practices proscribed and that the danger of their commission in the future
is to be anticipated from Respondent's conduct in the past. Accordingly, in order to make
effective the interdependent guarantees of Section 7 and thus effectuate the policies of the
Act, it will be recommended that Respondent cease and desist from in any manner infringing
upon the rights of employees guaranteed by the Act. May Department Stores v. N. L. P. B.,
326 U. S. 376, 386-392.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
have reached the following:
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2 All of Respondent's production and maintenance employees excluding all office and
clerical employees, over-the-road truckdrivers, watchmen and guards, professional em-
ployees, and supervisors within the meaning of the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3 At all times since August 28, 1951, the Union has been and now is the exclusive rep-
resentative of all the employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act
4 By failing and refusing at all times since August 28, 1951, to bargain collectively with
United Stone and Allied Products Workers of America, CIO, as the exclusive representative
of the employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) and (1) of the Act
5 By discriminating in regard to the hire and tenure of employment of the individuals who
are referred to under the preceding section entitled "The Remedy," thereby discouraging
membership in United Stone and Allied Products Workers of America, CIO, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) and (1) of the Act
6 By interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication.]