Craw & Son

National Labor Relations Board - Board Decisions

Dec 28, 1976

227 N.L.R.B. 601 (N.L.R.B. 1976)

CRAW & SON
Leroy W. Craw, Jr., Vernon E. Craw and Daniel G.
Leonard, d/b/a Craw & Son and Sheet Metal
Workers' International Association, Local Union
No. 19, AFL-CIO. Cases 6-CA-7845 and 6-RC-
6950
December 28, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On October 22, 1975, Administrative Law Judge
Samuel Ross issued the attached Decision, in this
proceeding. In his Decision the Administrative Law
Judge found that Respondent has engaged in certain
unfair labor practices and recommended that it take
specific action to remedy such unfair labor practices.
He further recommended that the election held on
October 25, 1974, in Case 6-RC-6950, be set aside
and that the said case be dismissed.
Thereafter, on December 1, 1975, Respondent filed
with the National Labor Relations Board two docu-
ments entitled, respectively: "Exceptions to the
Administrative Law Judge's Decision" and " 'Bur-
den of Proof Information." The Board rejected the
aforesaid documents, fmding that they failed to
comply with the filing requirements of the Board's
Rules and Regulations, Series 8, as amended. Ac-
cordingly, on December 11, 1975, the Board adopt-
ed 1 the findings, conclusions, and recommendations
of the Administrative Law Judge, as contained in his
Decision.
On April 21, 1976, the United States Court of
Appeals for the Third Circuit denied the Board's
petition for summary judgment and remanded this
proceeding to the Board for consideration of the
merits of Respondent's exceptions and " `Burden of
Proof' nformation,"2 further specifying, on May 11,
1976, that the materials included in the latter docu-
ments are to be considered properly a part of the
record in this case.3 The Board has accepted the
remand from the court as the law of this case.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and the
" `Burden of Proof Information" and has decided to
affirm the rulings, findings,4 and conclusions5 of the
Administrative Law Judge and to adopt his recom-
mended' Order.6
227 NLRB No. 75
ORDER
601
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Leroy W. Craw,
Jr., Vernon E. Craw and Daniel G. Leonard, d/b/a
Craw & Son, Altoona, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the recommended Order of the Adminis-
trative Law Judge, except that the attached notice is
substituted for that of the Administrative Law Judge.
IT is FURTHER ORDERED that the election conducted
in Case 6-RC-6950 on October 25, 1974, be, and it
hereby is, set aside, and that the petition in said case
be, and it hereby is, dismissed.
1 Not-printed in NLRB volumes ofdecisions.
2 Sub nom . N.LR.B. v. Leroy W. Craw, Jr., Vernon E Craw and Daniel G.
Leonar4 d/b/a Craw & Son, unpublished order in Case 76-1382, dated April
21, 1976.
3 Id, dated May 11, 1976.
4 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all ofthe relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
5 We agree with the Administrative Law Judge's conclusion that the strike
here in question was an unfair labor practice strike . Accordingly, we find it
unnecessary to pass on his additional holding that the Respondent's failure
to reinstate employees when they sought to return to work would have
violated the Act in the circumstances of this case even if the strike were
deemed to be an economic one.
6 In considering the record in this proceeding , we have carefully
examined the materials submitted by Respondent as apart of its " `Burden
of Proof Information" and find nothing therein which is inconsistent with
the facts found or the conclusions reached by the Administrative Law Judge
in support of his recommended Order. Indeed, in at least one respect the
materials support the aforesaid findings and conclusions . Thus, they reveal
that the Respondent advised employees that wage increases, which were
customarily given to them at regular intervals, would be discontinued"... if
we hold an election and we start negotiating in good faith and don't come to
an agreement over a two year period ...:. See The Gates Rubber Company,
182 NLRB 95(1970).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had an opportuni-
ty to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
WE WILL NOT do anything that interferes with
these rights.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against you for engaging in
a protected strike or any other of the activities
listed above which are protected by Section 7 of
the National Labor Relations Act.
WE WILL NOT threaten you with layoffs, loss of
your periodic wage increases, or any other reprisal
to discourage your support for or adherence to
Sheet Metal Workers' International Association,
Local Union No. 19, AFL-CIO, or any other
labor organization.
WE WILL NOT photograph you while you are
engaged in peaceful picketing or in any other
concerted activity protected by Section 7 of the
National Labor Relations Act.
WE WILL respect your rights to self-organiza-
tion, to form, join, or assist a labor organization,
and to bargain collectively through a representa-
tive of your choice, or to refrain from such
activity, and WE WILL NOT interfere with, restrain,
or coerce our employees in the exercise of those
rights.
Since it was decided that we violated the Act by
failing and refusing to reinstate and reemploy
John D. Vance, Frank E. Hebler, Michael P.
McDonough, and, George R. Ivory on October 4,
1974, when they unconditionally applied for
reinstatement, WE WILL offer them full reinstate-
ment to their former jobs or, if such jobs no longer
exist, to substantially equivalent jobs and WE WILL
pay them with interest for any loss they suffered
by reason of our failure to reinstate them then.
WE WILL on request, bargain collectively with
Sheet Metal Workers' International Association,
Local Union No. 19, AFL-CIO, as the exclusive
representative of the employees in the unit de-
scribed below with respect to rates of pay, wages,
hours of employment, and other conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All mechanics, mechanic helpers, and plant
clerical employees employed by us at our
Altoona, Pennsylvania, facility, excluding all
other employees and guards, professional
employees, and supervisors as defined in the
Act.
LEROY W. CRAW. JR.,
VERNON E. CRAw AND
DANIEL G. LEONARD,
D/B/A CRAW & SON
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: Case 6-CA-
7845 is based on a charge filed by Sheet Metal Workers'
International Association, Local Union No. 19, AFL-CIO,
on October 21, 1974, which was amended on November 19
and 29, 1974, and on a complaint which issued on May 29,
1975, against Leroy W. Craw, Jr., Vernon E. Craw and
Daniel G. Leonard, d/b/a Craw & Son (herein called
Respondent or the Company) which alleges that Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(axl) and (3) and Section 2(6) and (7) of the Act
by engaging in various acts of interference with, and
restraint and coercion of, employees in the exercise of rights
guaranteed in Section 7 of the Act, which caused and
prolonged a strike by the employees, and by failing and
refusing to reemploy or reinstate the striking employees
when they unconditionally offered to return to work
because they had engaged in the said strike. Respondent
filed an answer to the complaint which denies the substan-
tive allegations of the complaint and the commission of
unfair labor practices.
Case 6-RC-6950 is based on a petition filed by the Union
for certification as the collective-bargaining representative
of Respondent's employees pursuant to which an election
was conducted by the Board on October 25, 1974, which
resulted in one vote for the Union, five against, and eight
challenged ballots. The Union thereafter filed timely
objections to the election which in substance, as amended,
alleged that Respondent interfered with the holding of a
fair election by the conduct alleged as unfair labor practices
in Case 6-CA-7845, and by the hiring of allegedly
"permanent replacements" for the employees who struck
and picketed in protest of Respondent's unfair labor
practices. Inasmuch as the Union's objections to the
election encompassed the same conduct on which the
Regional Director issued the complaint in Case 6-CA-
7845, on May 29, 1975, he issued an order consolidating
both cases for hearing and deferred disposition of the
challenges to the ballots of the strikers and their replace-
ments pending the resolution of the alleged unfair labor
practices.
These consolidated cases were heard before me in
Hollidaysburg and Altoona, Pennsylvania, on August 4 and
5, 1975. Upon the entire record, including my observation
of the witnesses' and their demeanor, and after due
consideration of the briefs filed by the parties, I make the
following:
FINDINGS OF FACT
1. COMMERCE
Respondent is a copartnership whose sole place of
business is located in Altoona, Pennsylvania, where it is
engaged in the fabrication, installation, and nonretail sale
of heating and ventilation systems. During the 12-month
period preceding the issuance of the complaint herein,
Respondent sold goods and materials valued in excess of
$50,000 to employers who are directly engaged in interstate
CRAW & SON
commerce . Upon the foregoing undisputed data , Respon-
dent admits and I find that it is engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent also admits and I fmd that Sheet Metal
Workers' International Association, Local Union No. 19,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Short Summary of the Basic Facts
On September 9, 1974,1 following an antiunion speech
and talk to all his employees by Vernon E. Craw, one of
Respondent's partners who is known as Mike, 5 of
Respondent's 10 employees went out on strike and com-
menced picketing the Company's office and shop located a
block apart from each other. During the strike, Respondent
took photographs of the striking employees while they were
engaged in peaceful picketing, Mike Craw allegedly threat-
ened to physically assault the Union's business agent, and
Respondent, by letter, notified four of the striking employ-
ees that they had been permanently replaced and that their
employment had been terminated. The strike ended on
October 3, and on the following day, all five of the striking
employees applied for reinstatement to their jobs, but only
one was put back to work, and the others were told to file
written applications for employment, a requirement to
which- they had not been subjected-when they were hired
originally by Respondent.. All four filed the required
applications, but none of them has ever been recalled to
work.
B. The Issues Presented for Determination
The issues thus presented for-resolution in this case are as
follows: Whether Craw's speech and talk to the employees
on September 3 violated Section 8(a)(1) of the Act. Wether
Respondent's photographing of the peaceful picketing of its
employees violated Section 8(a)(1) of the Act. Whether
Craw threatened to physically assault the Union's business
agent, and if so, whether the said threat violated Section
8(aXI) of the Act. Whether the strike of Respondent's
employees which commenced on September 9 was motiva-
ted in part by unfair labor practices of Respondent.
Whether Respondent's letters to four of the striking
employees which stated that they had been permanently
replaced and that their employment had been terminated
violated Section 8(a)(1) of the Act. Whether an order
requiring Respondent to recognize and bargain with the
Union as the collective-bargaining representative of its
employees is warranted under the circumstances of this
case.
All dates hereinafter refer to 1974 unless otherwise noted.
? G. C., Exh. 2 to 7. The six who signed cards at this meeting were.
William Victor Davis, Paul Farber, John D. Vance, Frank E. Hebler,
Michael P . McDonough, and George R. Ivory.
603
C. The Union's Demand for Recognition
In August 1974, Respondent had 10 employees, including
Jay Moran, who works in Respondent's office and is the
husband of the Craws' sister. On August 12, six of
Respondent's employees attended a union meeting at the
Holiday Inn in Altoona, Pennsylvania, with Richard L.
Steward, Jr., a business representative of the Union. At the
conclusion of the meeting, all six of the employees signed
cards authorizing the Union to represent them as their
collective-bargaining representative.2 About a week later, a
seventh employee (Joseph F. Bumberger) signed a like card.
On August 21, Union Representative Steward visited
Respondent's place of business and met with Mike Craw,
his brother Leroy W. Craw, Jr. (who is known as Steve),
and with Jay Moran who was introduced to Steward "as the
office manager." Steward told the Craws that he had union
authorization cards signed by all their employees - this
admittedly "wasn't entirely true" - and he asked the
Craws to recognize the Union and to "sign a letter of intent
to begin negotiations." Mike Craw refused to look at the
union authorization cards which Steward proffered, and he
also refused to look at any agreement unless Robert Tabit,
the regional executive director of the Associated Builders
and Contractors, was present to counsel him in the matter.
Steward told Craw that he didn't want to meet with Tabit,
and he again asked Craw to look over an agreement. Craw
again refused to do so without having "an independent
opinion" from Tabit. Steward said, "You realize, Mr. Craw,
we can put a picket line around your place tomorrow."
Craw rejoined, " . . . you are making threats, typical union
threats, and when somebody holds a club over our head, we
fight." Craw explicated that the club to which he had
referred was not "a physical club," but rather Steward's
threat of a picket line, and he added, "we don't take threats
lying down. We fight legally or by whatever means we have
to." Steward then agreed to meet with Craw and Tabit on
the following Tuesday (August 27), and after he was given a
tour of the Respondent's shop by Craw, they parted "in a
friendly situation." 3
Following the Union's August 21 demand for recogni-
tion, Respondent retained counsel and, acting on his
advice, Craw sent a telegram to the Union canceling the
meeting for the following Tuesday, and he thereafter
refused to further discuss the subject of negotiations with
Steward and referred him to his attorneys.
D. Craw's Antiunion Speech and Talk to
Respondent's Employees
On September 3, Respondent called a meeting of all of its
employees for the purpose of discouraging their selection of
or continued adherence to the Union as their collective-
bargaining representative. The meeting took place in
Respondent's shop and lasted for 4 hours. During the first
part of the meeting, Mike Craw read a 22-page speech
which had been furnished to him by Respondent's counsel.4
Then, after "a Coke break," Craw responded extemporane-
3 The findings in the foregoing paragraph are based on the testimony of
both Steward and Mike Craw whose versions of this meeting were not
materially different , and I credit them in these respects.
4 Resp. Exh. 1.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously to questions from the employees which his speech had
evoked. During the speech, and/or in the informal ques-
tion-and-answer session which followed, Craw told the
employees, inter alia:
1. That another company, R. D. Goss, had negotiated
with the union which represented its employees for 2 years;
that he similarly "could drag out" the negotiations with the
Union for "as many years as possible" until he achieved "a
contract which suited him," as long as he bargained in good
faith; and that, during these long negotiations, "there
would be no pay raises given out." 5
2. That there had never been a layoff at Respondent's
shop; that he had given his employees "steady work -
week in and week out, 52 weeks every year, regardless of
business conditions"; 6 however, if the Union came in,
"there would be a lot more layoffs because these small jobs
that he had in the shop - that these small customers would
not be able to afford to pay the union rate for jobs; and,
therefore, there would be more layoffs in our shop."
Furthermore, if the Union came in, welding and painting
work (which currently was being done by some of the
employees and by one of the partners) would have to be
done by a union welder and painter, and while waiting for
them to come in and do that work, the employees would be
laid off if there was no other work for them to do in the
interim.7
E. The Strike Vote on September 4
On the evening of September 4, following Craw's antiun-
ion speech, eight of the Respondent's nine production
employees attended a union meeting with Union Represen-
tative Steward's At this meeting, the employees reported to
Steward what Craw had said in his speech and in his
answers to questions on September 3, including his state-
ments that, if the Union came in, its restrictive work rules
and classifications (which allegedly required welding and
painting to be done only by union welders and painters)
might result in layoffs and unemployment, and that
negotiations would be protracted and there would be no
wage increase during the pendency of the negotiations. The
employees also told Steward that the number of Respon-
dent's work orders had decreased substantially during the
past 8 days, and that they were concerned that Craw was
deliberately refusing to accept orders in order to strengthen
Respondent's position in respect to the Union. At the
conclusion of the discussion, Steward conducted an infor-
mal strike vote by asking each of the employees individual-
ly what he thought about going on strike. The employees
voted to strike, but decided to wait until the following
Monday before doing so in order to first get their pay on
Friday which was payday. Respondent's employees, who
testified regarding this subject matter at the hearing, stated
their reasons for voting to strike and for striking as follows:
5 The findings above are based on the credited testimony of Vance,
McDonough Davis, Ivory, and Hebler. Craw's written speech stated in this
respect; " n the meantime, during this long negotiation period your wages
would be frozen by law " and "we would never agree to the type of contract
this Union wants! " Resp. Exh.1, p. 9.
6 Id at 15.
7 The findings above are based on the credited testimony of Vance,
McDonough, Davis, Ivory, and Hebler.
1. It was mostly a little bit of everything. It was
primarily the fact that - he [Craw] did mention it
that as long as there would be - that he would
bargain, that there would be no pay raise.9
2. At that time, what we thought was that the
workload was going down and a lot of things that
were said at the meeting the day prior, that
negotiations could go on for a couple of years and
there would be no pay increases; and, at that time,
we already had an increase coming and nobody
had seen it as of then. Just things, then, didn't look
right, or in our favor at all.lo
3. ... mainly because of-that the company wouldn't
recognize the union as the bargaining agent even
after we all signed union cards, showing that we
wanted the business agent to represent us - the
union to represent us.
Mostly because of there weren't going to be any pay
raises, we were going to have to pay fines. You know,
the way Mike talked about it, it sounded like a threat or
something, you know. We aren't going to get any pay
raises, that negotiations could drag out; Mike said that
they had a year to negotiate in good faith and that
negotiations could drag out this long. And he gave as an
example of R. D. Goss, that their negotiations drug out
for two years."
4. At the union meeting, we discussed everything that
was said at the meeting the previous day at Craw
& Son; and we discussed all of the false state-
ments that was made about the union as far as
who was allowed to do what and whether we got
fined if we didn't attend union meetings and
whether we got fined if we didn't attend - or
contribute to these certain political funds and so
forth.
We discussed Mike Craw's negative attitude towards
the union and not even wanting to even sit down and
talk to Richard Steward. He didn't even want to listen
to his [Craw's ] misconceptions about the union. And we
talked about these threats, mostly if they were going to
negotiate the contract, we were not going to get any
raises , who knew how long, maybe a year, maybe two
years; and we discussed the workload coming into the
shop. That was my primaryjob, in the shop, and I could
see that - I mean, I've seen it go up and down quite a
few times, but I've never seen it go to just about nothing
in a matter of eight days. We were figuring that maybe
Mike Craw was cutting down his workload so that he
8 Willis Gibson was the only production employee of Respondent who
did not attend-
9 Employee Vance so testified.
10 These quotes are from the credited testimony of employee McDo-
nough.
11 The foregoing are quotes from employee Davis' credited testimony.
CRAW & SON
could lay us off before we had a chance of maybe even
having an election. -
And, at this meeting, we decided to go on strike because
from what we could see, Mike Craw's negative attitude
plus all the threats that we got about the union, false
statements , we seen things were just at a standstill and
we decided to go on strike because - well, just what I
told you, that things looked very bad, as far as any
negotiations coming up on their own, you know.12
Union Representative Steward summarized the reasons
expressed at the September ,4 meeting for going on strike as
follows:
Mike Craw's attitude in decreasing the workload, the
meeting with the men where it was alleged that they
would be subject to excessive dues, fines and assess-
ments from the Union, that restrictive work rules and
classifications might mean unemployment to the men,
of possible lengthy -negotiations at which time there
would be no raise ... and his Craw's refusal to talk
with me.
F. The Events on September 6
Following the strike vote meeting on September 4,
Steward again tried to contact Mike Craw by telephone,
and, after a number of unsuccessful attempts, he finally
reached Craw on September 6 and asked to meet with him
to correct some of Craw 's "misconceptions" regarding the
Union's work classifications, its work rules, fines, assess-
ments and Steward's alleged commissions . 13 Craw refused
to meet with Steward, and `he told Steward that he would
have to talk to his attorney. According to Craw, Steward
then said, "We don't have to hit you over the head, do we,
Mike?"
That same day, Craw learned that his employees planned
to strike on Monday, September 9, and he assembled them
just before the end of the workday. Craw testified:
We told them that we heard that there was going to be a
strike on Monday, that they had a perfect right to strike,
that they had a perfect right to lapse their health
insurance; but we had a perfect right to operate our
business and we had a perfect right to replace any man
who didn't report to work on Monday, that our doors
12 The foregoing are quotes from employee Ivory's credited testimony.
13 In his September 3 speech, Craw had told his employees that "the
organizers get credit for the dollarsyou pay for union membership dues and
union assessments and union fines," and that the reason "why these high
paid union organizers have been courting you ... is very simple - their
salaries depend on the union dues dollars they collect from their members."
Resp. Exh.1, p. 2.
14 The five who struck and picketed on September 9 were Vance,
McDonough , Davis, Ivory, and Hebler. Union Representative Steward also
picketed, but only on the first day of the strike. -
15 See G. C. Exh. 13.
16 Craw denied that he had any knowledge that Moran took a picture of
Farber, but I regard his denial as unworthy ofbehefandIplaceno credence
therein for the following reasons : (a) Unless he did it for Respondent, there
was no reason for Moran to take a photograph of Farber, the only picket
whose picture had not previously been taken by Mike Craw . (b) According to
Farber, a witness for Respondent , his picture was taken with a camera which
Respondent used in its shop for taking pictures of "things that they made."
(c) At the time Moran took Farber's picture, he made a comment to Farber
605
will be open to you, your jobs will be here, but you still
have a perfect right to strike.
G. The Strike and Events - Which Occurred While
It Was in Progress
On Monday, September 9, five of Respondent's nine
production employees struck and commencedpicketing the
Company's office and shop with picket signs which stated
"CRAW & SON ON STRIKE." 14 -A sixth production
employee, Paul Eugene Farber, joined the strike about a
week after it started and participated in the picketing for a
period of 2 weeks before he abandoned it and returned to
work. The strike was terminated by. the Union by a letter
which was hand delivered to Mike Craw on October 3 at
1:30 p.m.15
1. The photographing of the pickets
On the-first day of the strike, shortly after the picketing
commenced, Mike Craw took a number of photographs of
his employees while they were peacefully picketing Respon-
dent's shop and office. One of the striking employees,
Michael McDonough, turned his back and walked away
from the camera when his picture was taken, but Craw
followed him, snapped his picture again, and said, "That's
all right, we can identify you anyway." When Farber joined
the strike and picketed the Respondent's office I week later,
his picture was taken by Jay Moran, the brother-in-law of
the Craws.16
2. The threat to assault Steward
On the second or third day of the strike, while Vance and
Hebler were picketing the Respondent's office, Mike Craw
approached and told them that they were "doing Dick
Steward's dirty work," that "he didn't like the way that
Dick Steward had come in and broken up the family," and
that he didn't want to be quoted but if Steward was there
and he had a club, "he would use the club on Dick
Steward." 17
3. The Union's petition for certification
On September 11, 2 days after the strike began, the Union
filed a petition in Case 6-RC-6950 for certification as the
about his participation in the picketing . (d) According to Farber's uncontro-
verted testimony, which I credit , about one-half hour later, Mike Craw came
out of the office and apologized for Moran s comment and said in substance,
"I'm sorry, Mr. Moran shouldn't have said what he said ." All of the
foregoing, including Craw's knowledge of Moran's comment to Farber,
persuade me, contrary to Craw's denial, that the photograph of Farber was
taken with Craw's full knowledge, and that Moran did so as an agent of
Respondent
17 I base the finding above on the credited testimony of Vance and
Hebler. Craw admitted telling them that they were "doing Steward's dirty
work for him while he's basking in the sun," but he denied saying that if he
had a club and Steward was there , he would use it on him I do not credit
Craw's denial. He admitted that he might have told the two employees that
"when somebody holds a club over our head, we fight.' He also conceded
that he did not believe that "any of the [his ] men would deliberately he or
fabricate a story." In the light of the undenied testimony of Vance and
Hebler that Craw said he did not want to be quoted , and my agreement with
Craw's assessment of the credibility of these employees , I regard their
testimony as more reliable than Craw's denial.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of the Respondent's
employees.
4. The hiring of so-called replacements and the
termination of strikers
On September 10, Respondent hired D. Earle Summers,
an over-65-year-old retired sheet metal worker. On Septem-
ber 12, Respondent hired Walter O'Donnell, another over-
65-year-old retired-machinist. The next so-called perma-
nent replacement hired by Respondent was Walter Von
Gehr, a 60-year-old retiree. He was hired on September 23
and started to work for Respondent on September 24. All
three of these hires were retirees from employment by the
Pennsylvania Railroad. The final so-called replacement
hired by Respondent was Jim Nail who started to work on
September 25. The record does not disclose any informa-
tion regarding Nail's age, background, or the nature of the
work he was hired to perform by Respondent.
On September 13, Respondent sent identical letters
signed by Mike Craw to striking employees Michael
McDonough and George Ivory which stated:
This will inform you we have hired a permanent
replacement for your position at Craw & Son, effective
September 13, 1974.
We have notified your Health and Accident Insurance
Carrier of your termination. Forms to convert the
policy to individual coverage, at your option will be
forthcoming.
Questions you may have in this regard should be
directed to:
ABC INSURANCE TRUST FUND
P. o. Box 8733
BALTIMORE, MD. 21240
On September 20, Respondent sent an identical letter to
Frank Hebler advising him that his employment had been
terminated as of that date.18 On September 30, Respondent
sent the same letter to John Vance notifying him of his
termination on that date.
H. The Failure and Refusal of Respondent To
Reinstate Four of the Strikers
On October 3 at 1:30 p.m., the Union terminated its
strike against Respondent by a letter which was hand
delivered by Steward to Mike Craw. On the following
morning, Vance, McDonough, Davis, Ivory, and Hebler,
who had been out on strike since its inception on Septem-
ber 9, reported to the Respondent's office and told Mike
Craw that they were ready to go back to work. Only Davis
was reinstated. The other four were told by Craw that they
had been permanently replaced, that they would have to fill
out applications for employment, and that they would be
recalled if and when they were needed. None of these
employees had previously been required, to fill out an
application for employment when he was first hired by the
Respondent. Davis was not required to fill out an applica-
tion when he was reinstated. The four subsequently
received application forms from the-Respondent by mail,
filled them out, and returned them to the Company.19
Although two of the so-called permanent replacements
have not worked for Respondent since November 1, 1974,
and another had a heart attack on December 31, none of
the four strikers has been offered reinstatement.
I. Concluding findings
1. The threats of layoffs if the Union became the
employees bargaining representative
As found above, in Craw's speech and -talk to his
employees on September 3, he told them,' inter alia, that
there had never been a layoff in Respondent's shop, -and
that he had given them "steady work - week in and week
out, 52 weeks every year, regardless of business conditions,"
but that if the Union came in, "there would be a lot more
layoffs" because the "small customers would not be able to
afford the union rate for jobs."
The standard for predictions which an employer may or
may not make in resisting the unionization of his employees
was stated by the Supreme Court in N.LRB. v. Gissel
Packing Co., Inc., as follows: 20
... An employer is free to communicate to his
employees any of his. general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat of
reprisal or force or promise of benefit" He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's belief
as to demonstrably probable consequences beyond his
control ....
At the time Craw made his statement regarding layoffs to
his employees, he admittedly had not seen any of the
Union's contracts. Even assuming that Craw then knew the
wage rates which the Union would request for his employ-
ees, he knew, however, that he was under no compulsion to
agree to pay those rates, and (as he told'his employees) that
he could bargain for years until he was offered a contract
with wage rates which suited the nature of his business. It
therefore is quite clear that Craw's statement that, if the
Union came in, there would be layoffs due to loss of
business was not a prediction based on "demonstrably
probable consequences beyond his control," nor one
"based on available facts, but a threat of retaliation ...
and coercion, and as such without the protection of the
First Amendment." 21 I therefore ' find that by the said
statement Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights under
15 As noted above, Von Gehr was not lured by Respondent until
September 23 Hebler was thus notified of his termination before his so-
called permanent replacement was hired
19 G. C. Exh. 9, 11,14, and 16.
20 395 U.S. 575,618 ( 1969).
21 Id
CRAW & SON 607
the Act; and that it thereby - engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.22
In his September 3 speech and-talk, Craw also told his
employees that, if the Union came in, welding and painting
work which they currently performed would have to be
done by outside union welders and painters, and that, while
they were waiting for that work to be done, they would be
laid- off if there was no other work to done in the interim.
This statement, like the one about layoffs which would
result from the loss of small jobs, was not based on
"objective fact," but rather on, a` misconception of the
Union's work rules and classifications. Moreover, although
Craw's statement was a prediction of a result which would
occur only if the Respondent so agreed in negotiations with
the Union, 'it was presented to the employees as an
automatic consequence of unionization.23 It therefore was
neither a prediction based on "demonstrably probable
consequences beyond his control," nor one "based on
available, facts," but rather a threat of retaliation' if the
employees, contrary to ' Craw's wishes, designated the
Union as their representative. As-such it was not protected
by Section 8(c) of the Act. I therefore-find that, by this
statement, Respondent` further restrained and coerced its
employees in the exercise of rights guaranteed by the Act,
and thus engaged in further unfair labor practices within
the meaning of Section 8(a)(1) of the Act 24 -
2. The threat to "drag out" negotiations and to
withhold wage increases if the Union came in
It has been Respondent's consistent practice for many
years-to give all its employees a wage increase twice a year.
In recent years, these raises were given on February 15 'and
August 15, and, when given late, they were made retroac-
tive to those dates. The- amount of the increase given to
each employee varied in accordance with the formula by
which Respondent computed them. All of the employees
received an identical cost-of-living increase., To -this, Re-
spondent added an amount based on thelabor costs which
the employee had saved Respondent by performingjobs in
the previous 6 months in less time than the Company had
estimated.
On August ` 15, Respondent's employees were not given
their usual periodic increase in wages, but they were told by
Mike ' Craw that when he -had the time to compute the
raises, they would be made retroactive to August 15. -On
September 3, Mike Craw told the employees in his speech
and talk that if they designated the Union as their
collective-bargaining representative, he, like the R. D. -Goss
Co. which he cited as an example, could "drag out" the
negotiations for as many years as possible, as long as he
bargained in good faith, and that, "during this, long
negotiation period, your wages would be frozen by law,"
Mink-Dayton, inc., 166 NLRB 604, 608-609, enfd. in relevant part 416
F.2d 327 (C.A. 6, 1969); Jimmy-Richard Co Inc., 210 NLRB 802,805 (1974).
23 The Great Atlantic & Pacific Tea Co., Inc., 194 NLRB 774,778 (1971),
enfd. 80 LRRM 2902,68 LC ¶ 12, 770 (CA. 4, 1972).
24 Mink-Dayton, Inc., supra
25 As noted above, when the Umon's strike ended on October 3,
Respondent reinstated only one of the five striking employees although all of
them applied for reinstatement. On October 25, Respondent gave all its old
employees (those who were employed before the strike began) a wage
increase in their pay envelopes just before they went in to vote at the Board
and "there would be no pay raises given out." On
September 6, just before the Union's strike began, and
again on September 15, while on the picket line, employee
John Vance asked Mike Craw "when we would be getting
our back pay," and he was told that "we,would not get it
until.all this was-settled." -
- The receipt by Respondent's employees of semi-annual
wage increases clearly was a condition'of their employment
by Respondent. Respondent was therefore under no legal
restraint from giving its employees the wage increase it had
promised them retroactive to August 15, and it did, infact,
give them the increase on October 25, albeit-without
retroactivity.25 Moreover, Respondent also had a -legal
obligation to continue existing conditions of employment,
including ' semi-annual wage increases to its employees.26
I therefore find that Craw's statement,to employee Vance
that the employees' backpay would be withheld "until all
this was settled," and his statement to all the employees that
their wages would be frozen and that there would be no
wage increases during the protracted negotiations with the
Union, clearly interfered with, restrained, and coerced
employees in the exercise of their rights under the Act, and
Respondent thereby further violated Section 8(a)(1).27
I likewise regard Craw's statement to the employees that
he "could drag out" the negotiations with the Union for "as
many years as possible" as long as he bargained in good
faith as a further trespass of his employees' rights under the
Act. A threat to protract negotiations is inconsistent and
incompatible with the obligation of an employer under the
Act to-bargain in good faith with the representative of his
employees. In the contextof_Craw's threat that "during this
long negotiation period, your wages would be frozen,"
Craw clearly disclosed-to his employees that their designa-
tion of the Union as their representative would be an
exercise in futility, and his statement thus, obviously was
intended to undermine and-dissipate.employee support of
the Union. I therefore fmd that by this, threat to protract
negotiations, Respondent further trenched on employee
rights under the Act, and engaged in-unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The photographing of the pickets,
It is undisputed that on September 9, the first day of the
strike, Mike Craw took a number of still photographs of all
of Respondent's employees while they were peacefully
picketing-its shop and office, including two photographs of
employee Michael McDtonough- who, tried- to .void being
photographed. As found above, l week later when employ-
ee Paul Farber joined the, strike, Respondent also photo-
graphed him while he was peacefully picketing its office.
It is well established that photographing employees while
they are peacefully picketing is , coercive and violates
election , but it failed to make the increases retroactive to August-] 5 as
previously promised . Respondent offered no explanation , either for the
failure to make the increases retroactive, or for the-tmnng of the payment of
the increase on the same day as the Board election. The so-called
replacements for the strikers were not included in this wage increase.
26 General Motors Acceptance Corporation, 196 NLRB 137 (1972), enfd.
476 F.2d 850, 854 (C.A. 1, 1973); Liberty Telephone & Communications, Inc,
204 NLRB 317 (1973); JFB Manufactunng, Inc, 208 NLRB 2 (1973).
27 JFB Manufacturing, Inc., supra- General Motors Acceptance Corpora-
tion, supra
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act unless the employer has a
legitimate and substantial reason for taking the pictures.28
Respondent contends that its photographing of the pickets
was justified because, as Craw testified, "we weren't sure
whether there was going to be violence or not." According
to Craw, a second reason for taking the pictures was to
make a record of the date that the picketing began so that, if
the strike, and picketing continued for 30 days without the
Union filing a petition for certification, Respondent could
file an unfair labor practice charge against the Union for
violation of Section 8(b)(7)(C) of the Act. I regard both of
these reasons for photographing the employees while they
were peacefully picketing as specious.
According to Craw, his uncertainty regarding possible
violence was based on a statement which Union Represen-
tative Steward made to him during their September 6
telephone conversation . As previously noted, Craw testified
that when he refused Steward's request for a meeting which
Steward sought to'correct Craw's misconceptions about the
Union and its work rules, Steward said, "We don't have to
hit you over the-head, do we, Mike?" I do not believe that
Steward's statement was a threat of physical violence or
that Craw so understood it.
I note in this regard that in the first conversation between
Steward and Craw on August 21, when Steward told Craw
that he could put a picket line around Respondent's place
the following day, Craw replied that "when somebody
holds a club over our head, we fight." Craw conceded that
he had not been threatened by "a physical club," but that
he so regarded the` threat of picketing. Craw also admitted
that his one and only meeting with Steward had ended on
friendly terms. In this context, I am persuaded that
Steward's statement, on September 6, like Craw's similar
reference to one on August 21, was to the metaphorical club
of picketing, and that Craw so understood it. Moreover,
since all the pickets excepting only Steward were employees
of Respondent and were personally known by Craw, I fail
to see how taking their pictures while they were peacefully
picketing could serve any useful purpose if violence later
occurred. In any event, even assuming that Craw feared
violence (and I do not believe that he did), since none in
fact occurred, the photographing of the pickets was not
justified.29
I likewise place no credence in the second reason offered
by Craw for photographing the pickets, to record the date
that picketing commenced. Obviously a picture of the
pickets was not required to record the date when picketing
started. Taking the pictures of all of them certainly was not
necessary for that purpose. Moreover, although the Union
filed its petition for certification on September 11, Respon-
dent subsequently took a photograph of Paul Farber when
he later joined the strike and began to picket. This picture
clearly could not have been taken for the purpose of
recording the date when the Union began to picket, nor for
documenting evidence of unlawful activity when none had
occurred nor was occurring.
28 Flambeau Plastics Corporation, 167 NLRB 735 743 (1967), enfd. 401
F.2d 128 (C.A. 7,1968).
29 Farah Manufacturing Company, Inc., 204 NLRB 173, 176 (1973).
Russell Sportswear Corporation, 197 NLRB 1116, 1117-18 (1972);
Sackett's Welding, 207 NLRB 1030 (1974).
31 Walter Kidde, Inc. (Globe Security Systems), 185 NLRB 1011, 1013
(1970).
As evidenced by McDonough's reluctance to be photo-
graphed, picture taking creates a fear in employees that the
record of their concerted activities might be used for some
future reprisal against them. Absent the occurrence of
actual violence or coercive conduct on the picket line, the
taking of pictures of the pickets by Respondent was
unwarranted.m I therefore conclude that by photographing
the employees while they were engaged in peaceful picket-
ing of the Respondent's shop and office, Respondent
further restrained and coerced its employees in the exercise
of their rights under the Act, and that it thereby engaged in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
4. The threat to club Union Representative
Steward
As found above, on the second or third day of the strike,
Mike Craw told employees Vance and Hebler while they
were picketing that he did not want to be quoted, but if
Steward was there and he had a club, "he would use the
club on Dick Steward." Craw's threat ofhis desire to inflict
physical harm on the union 'representative clearly is
coercive of employee rights under the Act and. violated
Section 8(a)(1).31
5. The nature of the Union's strike
It is well settled that a strike which is prompted in part by
unfair labor practices is an unfair labor practice strike even
though some of the other reasons for striking are economic
in nature.32 In the light of this well-established principle, it
is quite evident that the Union's' strike which began on
September 9 was motivated in part by the unfair labor
practices of Respondent which I have found above, and
that it therefore was an unfair practice strike. I base this
conclusion on the following considerations:
The decision to strike on September 9 was made at a
union meeting which was held on September 4, the day
after Craw's antiunion speech and talk to the employees.
The meeting was devoted principally to a discussion of
what Craw had told the employees the previous day,
including his threats that, if the Union came in, he would
"drag out" negotiations with the Union for as long as
possible until he obtained a contract which suited him; that
during these protracted negotiations, which could last for as
long as 2 years, the employees' wages would be "frozen"
and 'there would be no periodic wage increases as thereto-
fore; and his threats that the Union's advent, contrary to
Respondent's prior practice of providing full-time employ-
ment whether business was good or bad, would cause
layoffs because of the alleged loss of jobs from small
customers, and because of the alleged necessity for hiring
union welders and painters to perform work which the
employees were then doing themselves. According to the
uncontroverted and credited testimony of the employees,
the decision to strike was prompted by these statements and
32 General Drivers and Helpers, Local 662, Teamsters [Rice Lake Creamery
Co.] Y. N.LR.B., 302 F.2d 908, 911 (C.A.D.C., 1962); N.LR.B. v. Stackpole
Carbon Co., 105 F.2d 167, 175-176 (C.A. 3), cert. demed 308 U.S. 605;
Lifetime Door Company, 179 NLRB 518,523 (1969).
CRAW & SON 609
threats in Craw's speech, as well as by the refusal of
Respondent to recognize the Union as their collective-
bargaining representative. Accordingly, inasmuch as the
strike was motivated in part by Craw's threats which, as
found above, were unfair labor practices, I find that the
Union's strike which commenced on September 9 was an
unfair labor practice strike, and that the employees who
participated in the strike were unfair labor practice strikers.
6. The termination of the strikers' employment
The law is well established that unfair labor practice
strikers are entitled to reinstatement on their unconditional
application even if this necessitates the discharge of
replacements who were hired to fill their positions.33 As
previously noted, Respondent notified four of the striking
employees during the strike that their positions had been
filled by permanent replacements and that their employ-
ment by Respondent had been terminated. Inasmuch as an
employer may not even threaten to permanently replace
unfair labor practice strikers,34 its letters to the four strikers
that they had been permanently replaced and terminated
further violated Section 8(a)(1) of the Act.
On October 3, the Union made an unconditional applica-
tion for the reinstatement of the striking employees in its
notice to Respondent that it was terminating the strike. On
October 4, each of the five striking employees made his own
unconditional application for reinstatement. Respondent
reinstated only one of the strikers, William Victor Davis.
The other four were told that Respondent had no need for
their services because their positions were filled by perma-
nent replacements, and that they would have to fill out
applications for employment. By failing and refusing to
reinstate the four unfair labor practice strikers upon their
unconditional application for reinstatement, Respondent
engaged in further unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act 35
Moreover, even if it is assumed that the Union's strike
was an economic one, I would still regard the failure of
Respondent to reinstate any of the four striking employees
when the strike ended as unlawful. I base this conclusion on
the following considerations:
The burden of proving that economic strikers have been
permanently replaced at the time they applied for reinstate-
ment is on the employer.36 None of the so-called permanent
replacements was called by Respondent to testify about
what he was told when he was hired regarding the tenure of
his employment, and Respondent offered no other testimo-
ny in this regard. Although Respondent paid its prestrike
employees in cash, the replacements were paid by check.37
Three of the replacements were of advanced age and were
retirees from other jobs. Two of the so-called permanent
replacements worked for Respondent less than 2 months
when they were requested to take layoffs. These two have
not worked for Respondent since November 1, 1974, 1
week after they cast challenged ballots at the Board election
33 See, e.g, KPRS Broadcasting Corporation, 181 NLRB 535, 536, fn. 4
(1970).
34 Tommy's Spanish Foods, Inc., 187 NLRB 235, (1970) enfd. in relevant
part 463 F.2d 116 (C.A. 9,1972).
35 KPRS Broadcasting Corporation, supra.
36 Trinity Valley Iron and Steel Company, 158 NLRB 890, 896 (1966),
enfd. in relevant part 410 F.2d 1161,1170 -71 (C.A. 5, 1969).
on October 25. One of these two worked for the most part
only 2 or 3 days a week during his less than 2-month tenure
with the Respondent. A third replacement worked for
Respondent for about 3 months when he had a heart attack,
and with the exception of only "a few days," he has not
worked since December 31, 1974. Since January 1, 1975,
Respondent has operated with only seven employees, three
less than its normal complement, and it has not recalled any
of the striking employees notwithstanding that its monthly
sales since that date frequently exceeded those before the
strike when it regularly gave its employees "steady work -
week in and week out, 52 weeks every year, regardless of
business conditions." 38
I conclude from all the foregoing that Respondent has
failed to sustain its burden of proving that the replacements
it hired during the strike were permanent replacements. I
therefore conclude that even assuming, arguendo that the
Union's strike was an economic one, Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act by failing and refusing to reinstate
all of the striking employees when they applied uncondi-
tionally for reinstatement on October 4, 1974.
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 substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having further found that Respondent on October 4,
1974, unlawfully denied reinstatement to their former jobs
to employees John D. Vance, Frank E. Hebler, Michael P.
McDonough, and George R. Ivory on their unconditional
application, I will recommend that Respondent be ordered
to offer them immediate reinstatement to ' their former
positions, or, if they no longer exist, to 'substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and to make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by the payment to each of
them of a sum of money equal to the amount he normally
would have earned from the date of Respondent's denial of
reinstatement on October 4, 1974, to the date of the offer of
reinstatement, less his net earnings during the said period,
37 According to Craw, this was done "to mdicate" permanent employ-
ment."
38 The quotes above are from Craw's September 3 speech to the
employees . Resp. Exh. 1, p. 15.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with backpay computed on a quarterly basis in the manner
established by the Board.39
I will also recommend that Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social securi-
ty payment records, timecards, personnel records and
reports, and all other records necessary to analyze and
determine the amounts of backpay due under the terms of
this recommended remedy.
There remains for consideration the contention of the
General Counsel and the Charging Party that an order
requiring Respondent to recognize and bargain with the
Union is necessary to remedy Respondent's unfair labor
practices. I find merit in this contention and I will
recommend the issuance of such an order for the following
reasons:
On August 21, when the Union demanded recognition
from Respondent and offered to prove its majority status, it
clearly represented a majority of seven of Respondent's 10
employees. The Respondent reacted to the Union's demand
by instituting a campaign to dissipate and undermine the
Union's majority support, and to persuade its employees of
the futility of representation by the Union. In furtherance
of that objective, Respondent unlawfully threatened em-
ployees with layoffs and the loss of customary wage
increases if the Union became their representative, and it
also threatened to protract the negotiations with the Union
for years. In addition, when the employees struck in part in
response to these unfair labor practices, Respondent further
coerced its employees by photographing them while they
were picketing peacefully, it hired so-called permanent
replacements for- the quite apparent purpose of voting
against the Union in' the forthcoming Board election,40 it
notified four of the unfair labor practice strikers that their
employment by Respondent had been terminated, and it
refused to reinstate them when they terminated their strike
and unconditionally applied for reinstatement, and it has
not since then offered any of them reinstatement notwith-
standing that almost a year has elapsed since the strike
ended and Respondent has been operating with three fewer
employees than its normal complement. Respondent's
unfair labor practices quite evidently has had its intended
effect of undermining and dissipating the Union's former
majority status, for it received only one vote at the Board
election on October 25 41 -
In the, light of Respondent's extensive and pervasive
unfair labor practices which were calculated to destroy the
Union's majority status and included the termination of
four of the Union's five staunchest supporters, I am
persuaded that the application of traditional remedies
cannot eliminate their lingering coercive effects to permit
the holding of a fair and reliable rerun election. In these
circumstances, I regard the employees' signed authorization
cards as a more reliable measure of their representational
desires. I will therefore recommend the issuance of an order
requiring the Respondent to recognize and bargain with the
in 3 F. W. Woolworth Company, 90 NLRB 289 (1950); backpay shall
clude the payment of interest at the rate of 6 percent per annum to be
computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
90 It laid off two of the so-called permanent replacements 1 week after the
election.
Union as the collective-bargaining representative of its
employees.42
RECOMMENDATION IN CASE 6-RC-6950
I have found above that following the Union'-s demand
for recognition, Respondent engaged in unfair labor
practices both before and after the Union filed a petition
for certification for the purpose of dissipating and under-
mining the Union's majority status, and I have recommend-
ed in the unfair labor practice proceeding that in the light of
the said extensive and pervasive unfair labor practices of
Respondent, a bargaining order should issue. In view of the
said findings and recommendation, I further recommend
that the election which was held on October 25, 1974, be set
aside, and that Case 6-RC-6950 be remanded to the Board
for dismissal or other appropriate action.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Leroy W. Craw, Jr., Vernon E. Craw,
and Daniel G. Leonard, d/b/a Craw & Son, is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers' International Association,
Local Union No. 19, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By denying unfair labor practice strikers John D.
Vance, Frank E. Hebler, Michael P. McDonough, and
George R. Ivory reinstatement on their unconditional
application on and since,October 4, 1974, because of their
union and concerted activities, Respondent has discrimi-
nated and is, discriminating, against them to discourage
membership in a labor organization in violation of Section
8(a)(3) of the Act.
4. By the foregoing conduct, by threatening its employ-
ees with layoffs, loss of periodic wage increases and
protraction of the negotiations if they designate the above-
named Union as their representative, by photographing its
employees while they were engaged in peaceful picketing of
its premises, by threatening to inflict physical harm on the
Union's representative, and by notifying unfair labor
practice strikers Vance, Hebler, McDonough, and Ivory
that their positions had been filled by permanent replace-
ments and that their, employment had been -terminated,
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of their guaranteed right to engage in
union and concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and it thereby
violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
41 It is thus fairly obvious that two of the employees who signed union
cards voted against the Union at the election.
42 NLRB. v. Gissel Packing Co., Inc., 396 U.S. 575, 613-614 (1969),
Steel-Fab, Inc., 212 NLRB 363 (1974); Trading Port, Inc., 219 NLRB 298
(1975).
CRAW & SON 611
All mechanics , mechanic helpers and plant clerical
employees employed by the Respondent at its Altoona,
Pennsylvania , facility, excluding all other employees
and guards, professional employees and supervisors as
defined in the Act.
7. On August 21, 1974, the above-named Union repre-
sented a majority of the employees in the aforesaid unit for
the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER43
The Respondent, Leroy W. Craw, Jr., Vernon E. Craw,
and Daniel G. Leonard, d/b/a Craw & Son, Altoona,
Pennsylvania, their agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with layoffs, loss of periodic
wage increases , protraction of negotiations, or any other
reprisals, to discourage support of, or adherence to, a labor
organization.
(b) Photographing employees while they are engaged in
peaceful picketing, or any other concerted activity protect-
ed by the Act.
(c) Notifying employees who are engaged in a strike to
protest unfair labor practices that their positions have been
filled by permanent replacements and/or that their employ-
ment has been terminated.
(d) Discouraging membership in, or activities on behalf
of, Sheet Metal Workers' International Association, Local
Union No. 19, AFL-CIO, or any other labor organization,
by refusing to reinstate them because of -their union or
strike activities, or in any other manner discriminating
against -them in regard to their hire or tenure,of employ-
ment or any other term or condition of employment in
order to discourage union membership or other concerted
activities.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self.
organization, to form labor organizations, to join or assist
Sheet Metal Workers' International Association, Local
Union No. 19, AFL-CIO, or any other labor organization,
to bargain collectively- through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities,
43 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules I and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer John D. Vance, Frank E. Hebler, Michael P.
McDonough, and George R. Ivory immediate and full
reinstatement to their former positions or, if they no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights previously enjoyed,
and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them in the
manner provided in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary - to analyze and determine the amounts of
backpay due under the terms of this recommended Order.
(c) Upon request, bargain collectively with Sheet Metal
Workers' International Association, Local Union No. 19,
AFL-CIO, as the exclusive collective bargaining represen-
tative of the employees in the appropriate unit described
below, and if an understanding is reached, embody such
understanding in a signed agreement . The appropriate unit
is:
All mechanics, mechanic helpers and plant clerical
employees employed by the Respondent at its Altoona,
Pennsylvania, facility, excluding all other employees
and guards, professional employees and supervisors as
defined in the Act.
(d) Post at its place of business located at Altoona,
Pennsylvania, copies of the notice marked "Appendix." 44
Copies of the said notice, on forms provided by . the
Regional -Director -for Region 6, after being duly signed by
Respondent, shall be posted by it for 60 consecutive' days
thereafter, in all conspicuous places, including all - places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
44 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board." -