Ekco Products Co.

National Labor Relations Board - Board Decisions

Jan 30, 1957

117 N.L.R.B. 137 (N.L.R.B. 1957)

EKCO PRODUCTS COMPANY 137
However, we regard the instant clause as more nearly analogous to
a provision rendering the contract terminable at will. Asa contract
terminable at will, the 1954 contract operated as a bar for 2 years,"
and the 1955 supplement is equivalent to a "premature extension" as
it was executed during the initial 2-year period and carried forward
the contract's term as modified into a further period when the original
contract would not otherwise have been a bar. Accordingly, we find
no contract bar here.12
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's Tilla-
mook, Oregon, plant, excluding office clerical employees, professional
employees, guards, and supervisors as defined in the Act 13
[Text of Direction of Election omitted from publication.]
a Rohm c& Haas Company, 108 NLRB 1285.
is In view of our decision herein, we find it unnecessary to pass upon other grounds urged
by the Petitioner for holding that there is no contract bar.
&' The unit finding conforms to a stipulation of the parties.
Ekco Products Company (Sta-Brite Division) and United Steel-
workers of America , AFL-CIO.' Case No. 8-CA-640. January
30,1957
DECISION AND ORDER
On June 15 , 1955, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above -entitled proceeding , finding 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. Thereafter, the Respondent,
the General Counsel, and the Charging Union filed exceptions to the
Intermediate Report, and the Respondent and the General Counsel
filed supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby aff irmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs , and the entire record in
the case and hereby adopts the findings , conclusions , and recommen-
dations of the Trial Examiner with the exceptions , additions, and
modifications noted herein.
i The AI+L and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of. the Upion's affiliation.
117 NLRB No. 31.
135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1950, upon the petition of United Steelworkers of
America, AFL-CIO, herein called the Steelworkers, the Board con-
Aucted a representation election among production and maintenance
employees at the Respondent's Byesville, Ohio, plant. The Steel-
workers lost the election. The following June, United Mine
Workers of America, herein called the Mine Workers, began an or-
ganizing campaign at the plant. Subsequently, it notified the Re-
-spondent that it represented a majority of the plant's employees and
requested a private election to prove its majority. The Mine Workers
-was not entitled to use the Board's processes because it was not in
compliance with the filing requirements of Section 9 (f), (g), and
(h) of the Act. The Respondent refused the Mine Workers' request
for a private election and insisted that it would not accord recognition
to an uncertified union. Thereupon the Mine Workers called a strike
which became effective on August 13, 1951. A few days later, the
Respondent sent letters to all strikers setting deadlines by which the
:strikers were to return to work or be considered as having quit their
jobs. When employees failed to report to work as requested they were
terminated. The picketing ended about September 1, 1951, although
the Mine Workers never formally ended the strike. Some of the
strikers requested reinstatement to their former jobs during August
and September, but were refused reemployment.
In October, two of the strikers called upon a Steelworkers represent-
ative and asked for assistance in getting the strikers back to work.
At the suggestion of the Steelworkers, a considerable number of cards
authorizing the Steelworkers to act as bargaining representative were
signed by strikers. By November 15, 1951, the Steelworkers had noti-
fied the Respondent that it represented a majority of the employees,
requested recognition as bargaining representative, filed a represen-
tation petition with the Board which was later withdrawn, and un-
conditionally offered to return 155 named strikers to their former
jobs. After the Respondent refused to extend the recognition re-
,quested or to reinstate the strikers, the Steelworkers filed the unfair
labor practice charges which are the basis of the present complaint.
The General Counsel alleged in his complaint that the Respondent
:had restrained and coerced its employees by certain conduct of its
supervisors and had discriminatorily discharged and refused to rein-
state certain named employees. In its answer, the Respondent denied
-the allegations of the complaint and raised a number of affirmative
defenses, of which the principal ones are as follows :
(a) The Steelworkers was not in compliance with the requirements
of Section 9 (h) of the Act because certain of its "officers" as well as
-subordinate labor organizations had not filed the necessary non-Com-
munist affidavits.
EKCO PRODUCTS COMPANY 139
(b)• The Steelworkers was "fronting" for the noncomplying Mine
Workers and its District 50.
(c) The strike called by the Mine Workers was unprotected because
called for an unlawful purpose, i. e., to' compel the Respondent to rec-
ognize a noncomplying union, and to recognize the Mine Workers
during the year following the previous election which the Steelworkers
had lost.
The Trial Examiner rejected the affirmative defenses of the Re-
spondent, and found that the Respondent had violated Section 8 (a)
(1) by threats of economic reprisals made by supervisors and non-
supervisory leadmen on instructions of the supervisors, and Section 8
(a) (3) by discharging certain of the strikers. He further found that
certain of the "laid-off" employees 'had not been unlawfully dis-
charged. In providing a remedy, the Trial Examiner rejected the
contention of the Respondent that all alleged discriminatees should
be denied reinstatement and back pay because of alleged widespread
violence during the strike, but he did disqualify certain of them be-
cause of individual misconduct and alleged failure to make a proper
application for reinstatement. The General Counsel, the Respondent,
and the Charging Union excepted to some findings and recommenda-
tions of the Trial Examiner.
1. Before the hearing, the Board had administratively determined
that the president, the secretary-treasurer, and the vice president were
the only "officers" • of the Steelworkers and as these "officers" had filed
the necessary non-Communist affidavits, the Steelworkers was in com-
pliance with the filing requirements of the Act. At the hearing, the
Respondent sought to prove that district directors also are "officers"
of the Steelworkers. As these individuals admittedly had not filed
non-Communist affidavits, the Respondent contended that the Steel-
workers was not in compliance with Section 9 (h). The Trial Ex-
aminer refused to permit litigation of the compliance issue. We
agree, as this is a matter to be handled in a collateral proceeding,'
and the Respondent never requested the holding of such a proceeding.
Moreover, even if the issue had been so raised, we would still find that
the district directors are not "officers" under the constitutional test
approved by the Supreme Court.' This follows from an examination
of the Steelworkers' constitution in effect when the complaint in this
case was issued.
Article IV of the constitution is entitled "International Officers,
International Tellers, International Executive Board and Delegates
* Desaulniers and Company, 115 NLRB 1025.
a N. L R B v Coca -Cola Bottling Co of Louisville , 350 U. S 264 Even assuming
,aroaendo that the issue was litigable in the unfair labor practice proceeding , we would
reach the same result on the basis of the Steelworkers ' constitution which is in evi-
dence The Trial Examiner's ruling refusing to permit litigation of the compliance issue
was not , therefore , prejudicial
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Conventions of the Congress of Industrial Organizations." It
concerns itself with tenure, qualifications, duties, and vacancies among
officers, tellers, executive board,4 and delegates. Article V is entitled
"Nominations and Elections of International Officers, International
Executive Board Members, and Delegates to the Conventions of the
Congress of Industrial Organizations." It deals with procedures for
selecting the officials listed in the heading.
Article IV, sections 1 and 2 read as follows:
Section 1. The International Officers of the International
Union shall be the International President, the International
Secretary-Treasurer, and the International Vice-President.
There shall be one District Director for each District, three Inter-
national Tellers, and a National Director for Canada.
Section 2. The term of office of the International Officers, Inter-
national Executive Board members, International Tellers and
Delegates to the Conventions of the Congress of Industrial Or-
ganizations shall be four years.
In these and other sections of the constitution there is specific differ-
entiation between the three international officers and all other officials.5
Nowhere in the constitution are tellers, delegates, district directors, or
executive board members referred to as "officers," and wherever the
term "officer" is used, it is clear from the context that only the inter-
national president, secretary-treasurer, or vice president is meant.6
The court decision in Goodman Manufacturing Company v.
N. L. R. B.° has interpreted the Coca-Cola case as meaning that an
office is "identified" in a Union's constitution even though its incum-
bent is not designated as an officer if he is selected in the manner by
which admitted officers are selected or if he wields influence in the
formation or execution of union policy. We respectfully express
our disagreement with so broad an interpretation of the Coca-Cola
decision. The Goodman decision continues to rely on criteria for
determining who is an officer which the Supreme Court has said are
not relevant. Not every agent or official of a union is an officer. The
term, according to the Supreme Court, is used in the statute as a
word of familiar usage, and "is therefore to be understood according
to the sense of the thing, as the ordinary man has a right to rely on
ordinary words addressed to him. Addison v. Holly Hill Co., 322
U. S. 607, 618." When, as here, a union constitution expressly limits
* The executive board consists of the international officers, the district directors, and the
national director for Canada Article IV , section 19
See article IV, section 24 and article V, sections 1 and 2
e We do not consider the reference in the index to the constitution under which district
directors are listed under " Officers , International" as a substantial variance from the clear
import of the substantive provisions of the constitution that the only officers are the presi-
dent, the secretary -treasurer , and the vice president
7 234 F. 2d 775 (C, A. 7).
EKCO PRODUCTS COMPANY 141
the designation of its officers to president, secretary-treasurer, and
vice president, it would be a fanciful extension of the term, unwar-
ranted by its ordinary meaning, to hold that tellers, delegates to CIO
conventions, the national director for Canada, and district directors
are also officers because they too are elected or perform prescribed
duties. Furthermore, to rely on the scope of an official's duties, as
the Goodman decision does, is to substitute, under another name, the
"functional" test for determining who is an officer, for the "constitu-
tional" test, which the Supreme Court has said is a "reasonable, if
indeed not a compelling construction of the statute."
We agree with the Trial Examiner that neither District 27 of the
Steelworkers nor the employees who signed Steelworkers authoriza-
tion cards constituted labor organizations, and that, in any event, as
subordinates of the Charging Union they were not required to meet
the requirements of Section 9 (f), (g), and (h).
As for the Respondent's contention that the Steelworkers was
"fronting" for the Mine Workers because of a supposed alliance be-
tween the two, the most reasonable inference from the evidence is
that the employees who signed Steelworkers authorization cards
meant to repudiate the Mine Workers' sponsorship of the strike when
it became clear that the latter could no longer aid them in obtaining
their jobs. There is no evidence of communication between officials
of the two unions, and the course of conduct which the Steelworkers
adopted indicates that it was following a separate and completely
independent campaign for the reinstatement of the strikers, the termi-
nation of the strike, and to attain recognition as bargaining repre-
sentative in its own right.
Accordingly, we find that the Charging Union was in compliance
with Section 9 (f), (g), and (h) at all times material herein, and was
not fronting for a noncomplying union in filing the charges herein.
2. The Respondent contends that the employees who participated in
the strike called by the Mine Workers were not entitled to the protec-
tion normally accorded under Section 7 to employees who engage in
concerted activities. Concisely stated, the Respondent's argument is
that the strike was unprotected because: (a) It was called by a union
not in compliance with Section 9 (f), (g), and (h) ; (b) the Act
incorporates a presumed legislative intent to remove the protection of
Section 7 from employees who strike for recognition of an uncertified
union; (c) the Respondent and its employees were deprived of the
benefits of "quiet enjoyment" of a respite from union organizational
efforts during the 12-month period following the October 1950 Board
election when the employees voted against representation; and (d) it
has not been established that the strike had the uncoerced support of
a majority of the employees. Similar contentions were raised at the
hearing and, except for the last point, were fully considered by the
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner who concluded, contrary to the Respondent's argu-
ments, that the strike was protected and the strikers were entitled to
the remedies provided for employees discharged in violation of
Section 8 (a) (3). We agree with the Trial Examiner's reasoning
and conclusions.
(a) Since the issuance of the Intermediate Report, the Supreme
Court has held, in United Mine Workers of America v. Arkansas Oak
Flooring Company," that a strike for recognition conducted by a.
noncomplying union is protected by Section 7. The decision, more-
over, reaffirms the Board's position that voluntary recognition of a
union is an acceptable alternative to a Board election and that the
guarantees of Section 7 are available to members of a union which is
ineligible for certification."
(b) The Respondent contends that a primary strike by an uncerti-
fied union for recognition is an unprotected concerted activity even
though it is not an unfair labor practice under Section 8 (b). In
the absence of any statutory support for its argument, the Respondent
relies on alleged legislative history and on proposals which failed to
win congressional approval. Section 12 (a) of H. R. 3020, 80th Cong.,
1st Sess., Report No. 245,1° made certain union actions, including a,
primary strike for recognition in the absence of a certification, un-
protected activity. The Respondent argues that the doctrine of the
unprotected strike, first formulated in the Fansteel case," now includes
the types of union actions (with one exception not relevant herein)
which were proscribed in H. R. 3020. These contentions were fully
considered in the Intermediate Report and, in our opinion, were
completely refuted. It is sufficient merely to add that the Arkansas
Oak Flooring case is the most recent expression of judicial approval of
the Board's position that a primary strike for recognition, except in
the face of another union's certification, is protected.
(c) The Respondent's third contention, that Section 9 (c) (3),
which bars the Board from conducting more than 1 representation
election in a particular unit during any 12-month period, creates a
right in an employer to be free of organizational efforts during the
year following a Board election, is based on a supposed analogy to,
the Board rule that a certification of representatives ordinarily re-
mains effective for 1 year. However, as the Supreme Court has,
pointed out in the Brooks case,12 the presumption of continued ma-
8351U S 62.
8 David G. Leach and Doyle H Wallace, d/b/a Brookville Glove Company, 114 NLREL
213, affd. 234 F. 2d 400 (C. A. 3).
10 This was the bill introduced in the House by Mr. Hartley. The Senate substituted its
own bill, S. 1126, as an amendment to H R. 3020. The substance of Section 12 (a) was
not retained in H. R 3020 as it passed the Senate nor was it included in the conference-
bill.
11 N. L R. B v Fansteel Metallurgical Corp., 306 U S 240
22 N. L. R. B. v. Ray Brooks, 348 U S. 96.
EKCO PRODUCTS COMPANY 143:
jority following upon a certification of representatives was applied
by the Board long before Section 9 (c) (3) was incorporated in the.
Act, and does not depend for its validity on that statutory provision.
Further, the Respondent's argument might have cogency only if a
Board election were the sole means by which a union could validly
secure recognition as bargaining representative. But, as the Supreme
Court noted in the Arkansas Oak Flooring case, supra, this is not the
fact.
In its brief before the Board, the Respondent argues in effect that,
in prescribing a 12-month interval between Board elections, Congress
intended to guarantee employers a period of respite from the disrup-
tion of normal operations incident to an election campaign. It is
urged that^we infer from this a congressional policy against the even
more disruptive strike for recognition during the 12-month postelection
period, and that we find such a strike unprotected because contrary
to this policy. However, for the reasons stated below, we do not
believe that such a finding would be in harmony with other provisions
of the Act or with Board and court precedents.
(1) Under existing Board and court precedents strikes have been
held unprotected either because the tactics employed in carrying out
the strike were considered seriously objectionable 13 or because the
strikes were for a purpose which brought them into conflict with
other statutes or with the underlying policy of the Act.l' A strike to
compel recognition is not in conflict with any other statute. Is it,
however, in conflict with the language or the policy of our Act? No
provision of the Act specifically forbids an employer to recognize
a union during the 12-month period during which a representation
election is barred, nor may such a prohibition be implied from the
language of Section 9 (c) (3). As to the latter, the only legislative
policy which is claimed to be violated by a strike for recognition
during the 12-month postelection period is, as already stated, the
policy allegedly implicit in Section 9 (c) (3) of insuring to employers
a respite from disruption of operations during that period by election
campaigns or strikes for recognition. However, this policy which is
sought to be implied is certainly no stronger nor more clearly expressed
than the general statements of policy in the introductory sections of
the Act, which unequivocally declare that one of the objectives of the
Act is to eliminate interruptions to commerce stemming from indus-
trial strife. Although every strike, including strikes for recognition,
necessarily conflicts with this policy, that fact has not heretofore
13N. L. R . B. v. Fansteel Metallurgical Corp , supra ; International Union, U. A. W,
AFL, Local 232 v. Wisconsin Employment Relations Board, 336 U. S. 245, N. L. R. B v
Local Union No. 1229, International B,otherhood of Electrical Workers, 346 U. S 464.
14 Southern Steamship Co. v. N. L. R. B, 316 U S. 31; N L. R B. v. Sands Mfg. Co.
306 U. S 332; Hoover Company v N. L R B., 191 F. 2d 380 (C A 6) ; The American
News Company, Inc., 55 NLRB 1302; Thompson Products, Inc ., 70 NLRB 13, 72 NLRB.
886; 'W. L Mead, Inc, 113 NLRB 1040.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been considered sufficient cause to deny to such strikes the protection
of the Act. There seems in our opinion even less warrant for denying
such protection to the strike in the instant case because it conflicts with
what is at best an implied disapproval of resort to strikes for recogni-
tion, during a particular period.
Nor are we shaken in our conclusion by the statement of Senator
Taft, cited by the Respondent, that the purpose of Section 9 (c) (3)
was to prevent a "constant stirring up of excitement by continual elec-
tions.715 It seems to us that this statement quite clearly expresses
the sole purpose of Section 9 (c) (3)-to prevent the stirring up of
industrial unrest through misuse of the very means provided to en-
hance industrial peace.
(2) In a report on the operations of the Board under the amended
Act, the Joint Committee' on Labor-Management Relations, of
which Senator Taft was a member, discussed the advisability of
amending the Act so as to outlaw primary strikes for recognition
during the 12-month postelection period. It seems reasonable that
while the Committee had the Section 9 (c) (3) provisions under con-
sideration, it would have given expression to the view that it deemed
a strike during the period unprotected if that had been the consensus
of the Committee, as a limitation on such strikes would have a mate-
rial bearing on the need for an amendment of the Act declaring the
same type of strike unlawful. We deem it significant that no such
view is expressed by the Committee in this report; and we find strong
indication of the opposite viewpoint in the Committee's statement
that such strikes are "legal" and that "present law in no way limits
the primary strike for recognition except in the face of another union's
certification." 16
(d) The Respondent's final unprotected strike argument is that
the General Counsel failed to allege and prove that at the time it called
the strike the Mine Workers represented a majority of employees in
an appropriate unit. In its answer, the Respondent asserted, as an
affirmative defense, "on information and belief" that the Mine Workers
at no time represented a majority of its employees. However, it of-
fered no evidence to support this defense." Because of this, and as
in any event, we find from this record that the Mine Workers repre-
sented a majority, we need not pass on the question whether a strike
for recognition by a minority union is a protected concerted activity-"
At the outset we note that before calling the strike the Mine Workers
informed the Respondent that it represented "an overwhelming ma-
'-' 93 Cong Ree 3954
1e Report of the Joint Committee on Labor-Management Relations , 80th Cong, 2d Sess,
Report No 986, part 3, page 71
11 Cf Stewart Die Casting Corp v N L. R. B , 114 F 2d 849, 856 (C A 7)
18 Compare N L R B v. Buzza-Cardozo, 205 F 2d 889 (C. A. 9) with N L R, B. v.
Brashear Freight Lines, Inc., 119 F. 2d 379 (C A. 8)
EKCO PRODUCTS COMPANY 145
jority of your employees" and that it stood ready to substantiate this
claim with proof. The Respondent refused, however, to submit to
a private election, insisting upon a Board-conducted election which
it knew was impossible both because of the noncompliance status of
the Mine Workers and because 12 months had not elapsed since the
previous election. Although the Mine Workers did not submit its
authorization cards to the Respondent, there is no reason for believing
that, in view of its rejection of a private secret election, the Respondent
would have accepted a cardcheck as a valid means of proving the Mine
Workers' maj ority.
The evidence indicates that at the commencement of the strike there
were approximately 235 active employees; this is an increase over
the` 217 employees eligible to vote in the Board election conducted 10
months previously.19 There were also five employees from the laid-
off employees list who, before the start of the strike, had agreed to
return to work. According to Personnel Manager Wargo, 160 to 170
employees were either on the picket line or stayed away from work
because of the strike.20 That this figure substantially reflects the
number of strikers is attested by the fact that 3 months later the Steel-
workers attorney named 155 strikers on whose behalf he made an
unconditional offer to return to work; in addition 5 other "active"
employees were named in the complaint as strikers and testified to that
effect at the hearing. Therefore, we are satisfied, and we find, that
the Mine Workers did represent a majority of employees when it asked
the Respondent for recognition and called the strike.
3. Shortly after August 13, 1951, the day the strike began, the Re-
spondent took measures to restaff its plant. On August 16, it sent the
following letter to the employees who had been at work in the week
preceding the strike :
You have not reported for work since August 10, 1951.
We shall await your return to work on the first shift on Monday
August 20, 1951, at 7: 00 a. m.
Your failure to report to work at that time will be taken to
mean that you have quit your job and we will therefore replace
you.
On August 20, the Respondent entered on its personnel records for
those employees who had not returned the notation, "quit-reason un-
known," and canceled their group insurance coverage. On the same
19 This is the figure shown on the tally of ballots in Ekco P,oducts Company ( Sta-Write
Division ), 91 NLRB No 36 (not reported in punted volumes of Board Decisions and
Orders ) as the approximate number of eligible voters in a production and maintenance
unit at the Byesville plant in October 1950 The Board takes official notice of its ov.n
records
208ecen- Up Bottling Company of Miami , Inc, 92 NLRB 1622 , 1623 , enfd 196 F 2d
424 (C A S). Anialgnmated Meat Cutters and Iluicher l[ortmen of Noitlb America
(The Gi eat Atlantic a nd Pacific Tea Company ), 81 NLRB 1052, 1060
423781-37-N of 117 11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date, the Respondent sent the following letter to the employees who
had been on layoff status just preceding the strike :
We are now in a position to rehire you to work on the day shift.
Will you please call at the personnel office at your earliest con-
venience, so that we might discuss your return to work.
If we do not hear from you before Friday, August 24, 1951, 1
will assume that you cannot or do not wish to return. If this
should be the case, your name will be removed from the lay-off
list.
We agree with the Trial Examiner that the August 16 letter to
`'active" employees constituted a threat to discharge those employees
who continued to strike after August 20, and that the recipients of the
letter who failed to return to work by the latter date were actually
discharged, all in violation of Section 8 (a) (3) and (1) of the Act.a1
We also agree generally with the Trial Examiner's findings with
respect to "laid off" employees. However, five of these employees-
Dolan, Hannon, Kusma, Pucky, and Tipton-although on "laid off"
status on the day of the strike had previously been instructed to re-
port for work and had promised to do so on or before August 15.
Because the strike intervened they did not do so, nor did they notify
the Respondent of the reason for their failure to report. The Trial
Examiner treated these five individuals like the "laid off" employees
who failed to respond to the August 20 recall letters and to give any
reason for their failure. However, Dolan, Hannon, Kusma, Pucky,
and Tipton had already notified the Respondent that they would be
back to work by August 15. It is clear to us that they were in exactly
the same position as "active" employees who joined the strike, but did
not specifically notify the Respondent that they were absent from
work for this reason. Accordingly, we find that the Respondent dis-
eriminatorily discharged Dolan, Hannon, Kusma, Pucky, and Tipton
and shall order them reinstated with back pay.
4. We disagree with the Trial Examiner's finding that the mass
application for reinstatement made by the Steelworkers was 'in-
effective.
Picketing at the Respondent's plant ceased after the State court
issued a restraining order against picketing on August 31, 1951. The
Mine Workers made an unsuccessful effort to have the State court
proceeding removed to the Federal court. But after this attempt
failed, it lapsed into inactivity. In October, two of the most active
strikers, Slifko and Trenner, called on Steelworkers Representative
Turner seeking his assistance in returning the strikers to their jobs.
Turner offered to help if the strikers' representative would produce a
reasonable number of s^gned cards designating the Steelworkers as
21 Broolville Glove Company , supra.
EKCO PRODUCTS COMPANY 147
representative and applying for membership in that organization.
After a substantial number of such signed cards were submitted,
Turner called a meeting of the strikers at which he told them of the
possibilities for reinstatement . At this meeting additional strikers
signed the Steelworkers authorization and membership -application
cards. A week later, the Steelworkers wrote the Respondent a letter
in which it claimed to represent a majority of the employees and re-
quested recognition as bargaining representative. Shortly thereafter,
on November 15, the attorney for the Steelworkers wrote the Re-
spondent that he represented 155 employees whom he listed by name
and that : -
This letter is further to advise you on behalf of each of such
employees, that they are and have been ready, willing. and able
to return to their jobs and you may regard this letter as an un-
qualified offer to accept reemployment . Your failure to accept
them and each of them will be regarded as a further unfair labor
practice and proceedings will be brought to compel their rein-
statement for full restitution of lost wages.
The Trial Examiner held that this mass application for reinstate-
ment was ineffective upon the ground that, as the Steelworkers had
not initiated the strike , it had no implied authority to call it off or
commit the strikers to return to work. He did not consider that the
combined membership -application and authorization cards signed by
strikers in October and November 1951 conveyed authority to the
Steelworkers to make an unconditional offer to return to work in be-
half of the strikers. We find merit in the General Counsels exceptions
to these conclusions. -
After the strike had failed, strikers Trenner and Slifko sought the
aid of Steelworkers Representative Turner specifically for the pur-
pose of securing the reinstatement of the strikers . The first meeting
which Turner held with the strikers was devoted to reinstatement
possibilities . Before he would take action in the strikers ' behalf,
Turner insisted that they sign authorization and membership cards.
In these circumstances , it seems incongruous to say, as did the Trial
Examiner, that the strikers did not authorize the Steelworkers to
commit them to return to work or to make a mass application for
reinstatement . There is not the slightest evidence that the strikers
did not approve of the Steelworkers ' action or that they considered
that organization to have exceeded its authority . Nor is there any
evidence that the Respondent ever questioned the right of the Steel-
workers to proclaim the end of the strike and to apply in behalf of the
strikers for reinstatement . On the contrary , the record shows that
Superintendent Jason treated the Steelworkers ' letter as effective to
call off the strike . Had the Respondent then questioned the authority
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Steelworkers to apply for reinstatement, that Union could
immediately have brought in evidence of its majority. Finally, in
designating the Steelworkers to act as their bargaining representa-
tive, the strikers conferred on the Steelworkers all the authority they
had theretofore lodged in the Mine Workers to bargain about their
conditions of employment. That included the authority to continue
the strike or to terminate it, to negotiate for the restoration of their
jobs, and to commit the strikers to return to work. The authority was
unqualified and unrestricted. Accordingly, we find, contrary to the
Trial Examiner, that the November 15 letter from the Steelworkers'
attorney to the Respondent was a valid notice of the termination of
the strike and of the willingness of the named strikers to return to
work.
5. We agree with the Trial Examiner's recommendations for the
reinstatement and award of back pay to discriminatorily discharged
strikers 22 except as noted below :
(a) The Trial Examiner recommended denying reinstatement and
back pay to strikers Mary Trenner and Verneda Oliver because,
during the Mine Workers' organizing campaign which preceded the
strike, these two employees had told other employees whose member-
ship they solicited that if the latter did not sign up then it might cost
them more later and they might lose their jobs. We agree with the
Trial Examiner's recommendation for withholding the normal rein-
statement and back-pay remedy from Trenner and Oliver. However,
we base our action not on the above statements, which we consider too
remote in time from the events connected with the strike, but on the
misconduct discussed hereinafter.
(b) Mary Trenner and her husband went to employee Andrew
Gress' home during the second week of the strike. She asked Gress
why he was continuing to work, told him about a number of acts of
violence which had occurred, and asked him how he would like it if
some night somebody would jump out of an alley at him. Gress took
the hint and did not return to work.
(c) 'About a week after the strike began, Gaylord Gattrell, accom-
panied by four other strikers, drove to the home of employee Merritt
Groves. Gattrell asked Groves if he had returned to work. When
Groves admitted he had, Gattrell said to him, "You are going to get
hurt," and Groves replied, "Well, by God, you'd better start to
hurting, because I am going back to work."
The Trial Examiner considered that these remarks of Trenner and
Gattrell conveyed no implied threat that the speaker would personally
=' Since the issuance of the Intermediate Report, the Court of Appeals for the Distract
of Columbia set aside that part of the Poaid's order in the B V D case (110 NLRB
1412) upon winch the Respondent relies to support its contention that because of wide-
spiead Violence all strikers should be denied reinstatement and back pay Intei national
Ladtes' (Iaimeet il"o;Aers Union, AFL v N L R B, 225 F 2d 923 (C A, D C) The
Board has decided that it will not ask for certioian in that case
EKCO PRODUCTS COMPANY 149
support or commit any acts of violence , that they were merely friendly
warnings in order that the listener might avoid injury at the hands of
others, and that the nonstrikers so regarded them. We do not agree
with this interpretation of the conversations . The two visits were
not social calls. Trenner and Gattrell both had as a primary objec-
tive of their trips to ask Gress and Groves why they had returned to
work. Strikers certainly have the right to urge nonstrikers to refrain
from working during a strike , but Trenner and Gattrell went much
further than merely urging Gress and Groves to join the strike. They
accompanied their remarks with pointed references to what might
otherwise happen to the nonstrikers . Both Gress and Groves, more-
over, seem to have had no doubt about what might follow if they
persisted in crossing the picket lines, since Gress immediately decided
not to return to work, and Groves emphasized that he was ready for
any trouble . Under these circumstances , we are satisfied that Trenner
and Gattrell threatened Gress and Groves with bodily harm if they
continued to work, and that this is sufficient to bar them from the right
to reinstatement and back pay.23 . ' -
(d) We affirm the finding of the Trial Examiner that remarks
made by Albert Spurrier to fellow employees who were riding in his
car just prior to the strike were not threats , but a mixture of reminis-
cences about acts of violence which had occurred at other plants, and
forebodings about what might happen at the Ekco plant if a strike
broke out.
(e) We also agree with the Trial Examiner that David Sills, 1Ter-
neda Oliver , Mike Slifko , William Sichina , Robert Gaton , and Michael
Koval forfeited their right to reinstatement and back pay by their
threats, acts of violence , and obstructive picketing during the strike.
6. More than a year after the strike ended, the Respondent rehired
some of the former strikers . The first eight were rehired as new em-
ployees and were not credited with their previous length of service.
The Respondent later mailed to an additional 16 former employees
"an unconditional offer of reemployment with this Company with all
your legal rights and privileges respected ." Nine of these sixteen
were reemployed after Personnel Manager Wargo told them that they
would be coming back as new employees , pending the results of the
present proceeding , but without jeopardy to back-pay rights "and so
forth." Of the remaining 7 employees , 1, Raymond Yoho , refused
the offer because he had a job elsewhere which he did not wish to give
up unless he was assured that the Respondent would restore his senior-
ity. The Respondent refused to grant this assurance . The other six
employees either failed to respond to the offer or refused it for personal
reasons unconnected with the terms of the offer.
23 Intertown Corporation (Michigan ), 90 NLRB 1145, 1150
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner recommended that seniority be restored to the
employees hired before the "unconditional offer of reemployment."
As to the others he found that the "unconditional offer" was in fact
conditional because the Respondent did not intend to recognize their
full seniority. He therefore recommended that all employees who
had made individual applications for employment be reinstated and
that they receive back pay from the date of application to the date the
Respondent shall have offered them reinstatement with all accumu-
lated rights and privileges. We do not agree entirely with the Trial
Examiner's recommendations. As to all employees who accepted re-
employment, whether before or after the "unconditional offer of re-
employment," we shall recommend that their seniority be restored to
them, together with back pay from the date of application for re-
employment. As to Yoho, we shall order the Respondent to offer him
reinstatement together with accumulated seniority and back pay be-
cause the offer of reemployment was in fact conditional, and Yoho
refused the offer for this reason. We shall not order the reinstate-
ment of the other employees nor award them back pay beyond the
date of the Respondent's offer because these employees either rejected
employment for personal reasons or made no response to the offer.
There is no evidence that any of these individuals were aware that the
offers of reemployment, unconditional on their face, were in fact con-
ditional, or that they were motivated in their refusal by this
circumstance .14
THE REMEDY
Like the Trial Examiner, we have found that the Respondent dis-
criminatorily discharged the active employees and discriminatorily
removed from its layoff list those employees who notified the Respond-
ent that they were not returning to work because of the strike. We
have also found that in reemploying some of the active and laid-off
employees after the strike ended, the Respondent refused to credit
them with their prestrike seniority, insisting that they be treated as
newly hired employees. As to all the above categories of employees,
we adopt the remedies recommended by the Trial Examiner, which
provide generally for :
(1) Offers of reemployment to discriminatees who were active em-
ployees at the time of the strike, with all the rights and privileges
previously enjoyed, and restoration of discriminatees on layoff status
at the time of the strike to the layoff list.
(2) Compensation to the discriminatees (computed on a quarterly
basis in accordance with the formula set out in F. W. Woolworth Com-
pany, 90 NLRB 289) for any loss of earnings which they may have
suffered by reason of the Respondent's discrimination against, them.
2 L. Ronney & Sons Furniture Manufacturing Co, 97 NLRB 891.
EKCO PRODUCTS COMPANY 151
(3) Restoration to discriminatees who have been reemployed of
previously accrued seniority.
(4) Reinstatment and indemnification of those discriminatees, if
any, who were reemployed by the Respondent either before the close
of the hearing or since that time, but who may thereafter have been
laid off because of the Respondent 's failure to credit them with pre-
viously accrued seniority.
The modifications of the Trial Examiner's findings which are dis-
cussed in our Decision require corresponding changes in the Trial
Examiner's categories as set out in the attached appendixes; and in
a few cases, our reversal of the Trial Examiner 's findings calls for
a different remedy. The changes are noted below :
(1) The Trial Examiner found that all discriminatees who had not
applied for reinstatement in person before the close of the hearing
were entitled to back pay only from the date of any reinstatement
application made since the close of the hearing or from a date 30 days
after service of the Intermediate Report upon the Respondent, to the
date of the Respondent 's offer of full reinstatement . As we have
found that the Steelworkers ' mass application for reinstatement, which
the Respondent received on November 16, 1951, is the equivalent of
a personal application by those named therein, we provide one and
the same remedy for all discriminatees who were active employees and
who advised the Respondent of their willingness to return , either by
an application in person or through the agency of their selected repre-
sentative , the Steelworkers . ( Appendix B-1.)
(2) Stanley Jerles, Billy McElfrish , and Albert Spurrier were
active employees who did not make personal applications for rein-
statement and were not included in the Steelworkers ' mass applica-
tion for reinstatement . As discriminatees they are, however , entitled
to reinstatement and back pay in the manner recommended by the Trial
Examiner.15 ( Appendix B-7.)
(3) We have found that Dolan , Hannon, Kusma, Pucky, and Tipton
were active employees , as they had agreed before the strike began to
return to work during the week of August 13. We have , therefore,
included them in Appendix B-1, as being entitled to reinstatement and
back pay from the earliest application date, which was, for each of
them, November 16,1951. However, as the Trial Examiner had recom-
mended dismissal of the complaint as to them, we shall toll any back
pay to which they might otherwise be entitled , for the period between
the dates of service upon the Respondent of the Intermediate Report
and this Decision and Order.
(4) The Trial Examiner found that Robert Blancett had told
Personnel Manager Wargo, late in August 1951 , that he was not inter-
ested in further employment with the Respondent . The Trial Exam-
2 Po, to Rico Container Go) pw aioon, 89 NLRB 1570, 1581.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner recommended against reinstatement or back pay for Blancett,
despite the fact that 2 months later Blancett did make a personal
application for work. Blancett also signed a Steelworkers bargaining
authorization card, and was included in the mass application dated
November 15, 1951. We disagree with the Trial Examiner's recom-
mendation. Blancett indicated his disinterest in further employment
with the Respondent while the strike was still active, and at a time
when it is clear that the Respondent had no intention of permitting
those who wished to abandon the strike to return to work. As
Blancett's disclaimer of interest in further employment played no
part in the Respondent's refusal to reinstate him, we believe the Re-
spondent should not gain an advantage therefrom, once Blancett
clearly indicated that he was genuinely interested in returning to his
former position with the Respondent. We include Blancett in Appen-
dix B-1, tolling, however, any back pay to which he might otherwise
be entitled for the period between the service of the Intermediate
Report and this Decision and Order.
(5) As we have found, contrary to the Trial Examiner, that Gaylord
Gattrell threatened bodily harm to a fellow employee, we shall not
order reinstatement or back pay for him. (Appendix B-8.)
(6) The Trial Examiner found that the "unconditional offers of
reinstatement" made to 16 former strikers about March 1953 were
actually conditioned on the surrender by the strikers of their pre-
strike seniority. He recommended restitution of their prestrike status.
Our disagreement with the Trial Examiner, detailed in our Decision
above, requires that we change his proposed dispositions. Shirley
Barnes, Pauline Cozart, Mary Veselenak, Edna Watson, and Veronica
Woyansky failed to return to work for reasons unconnected with the
conditional offer. They are denied reinstatement, but are entitled to
back pay from the dates of their earliest reinstatement applications
to March 17, 1953, the date of the Respondent's offer of reinstatement.
(Appendix B-6.) Raymond Yoho, however, who also received a
reinstatement offer on March 17, 1953, and who refused it because it
would have meant an immediate loss of his prestrike seniority, is en-
titled to full restitution, including reinstatement and back pay. (Ap-
pendix B-1.)
The other recommendations of the Trial Examiner contained in the
section of the Intermediate Report entitled "Specific Recommenda-
tions" are all adopted with only the changes which follow from our
renumbering of the appendixes.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ekco Products
EKCO PRODUCTS COMPANY 153
Company (Sta-Brite Division), Byesville, Ohio, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization by dis-
criminatorily discharging employees who engage in, or are believed
by the Respondent to be engaged in, a strike; by removing employees'
names from its layoff list because they refuse to report for work be-
cause of, and during, a strike; by rehiring strikers only as new em-
ployees and thereby refusing to credit them with their full prestrike
seniority; or by discriminating in any other manner against its em-
ployees in regard to their hire and tenure of employment or any term
or condition of employment.
(b) Threatening employees with discharge if they should engage
in a strike.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist any 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, and to refrain from any or all of such activities, ex-
cept to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, 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 each of the persons named in Appendixes B-1 and B-7
immediate and full reinstatement to his or her former position or a
substantially equivalent position, with all rights and privileges of em-
ployment, including seniority, previously enjoyed.
(b) Immediately restore to each of the persons named in Ap-
pendixes B-2, B-5, and C-2 all rights and privileges as an employee of
the Respondent, including seniority, previously enjoyed, and also (if
any such individual has been laid off due to the Respondent's failure
to credit him or her with such full seniority) offer such individual im-
mediate and full reinstatement to his or her former position or a sub-
stantially equivalent position, with all rights and privileges, including
seniority previously accumulated.
(c) Restore the names of the individuals set forth in Appendix C-1
to the layoff list and fill vacancies therefrom in accordance with its es-
tablished recall practice, according to every person thus taken from
this layoff list all privileges and rights of employment, including sen-
iority, previously enjoyed.
(d) Make whole the persons named in Appendixes B-1, B-2, B-3,
B-4, B-5, B-6, B-7, C-1, C-2, and C-3 for any loss of earnings they
may have suffered or may suffer by reason of the Respondent's dis-
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crimination against them or its failure promptly to comply with this
Order, in the manner and to the extent set forth in these appendixes
and in the section of this Decision entitled "The Remedy."
(e) 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 rec-
ords necessary to analyze the amounts of back pay and the rights of re-
instatement under the terms directed in this Decision and Order.
(f) Post at its office in Byesville, Ohio, copies of the notice hereto
attached and marked "Appendix D." 26 Copies of said notice, to be fur-
nished by the Regional Director for the Eighth Region, shall, after
being duly signed by the Respondent or its representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for 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.
(g) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed so far as it alleges that the Respondent discriminated against
the persons named in Appendix C-4 of this Order.
MEMBER RODGERS , dissenting :
In my opinion, the record in this case will not -support a finding
that the strike sponsored and conducted by the Mine Workers was
an activity protected by Section 7 of the Act.
In deciding unfair labor practice cases, the Board may not ignore
fundamental precepts of the law. One such precept is that the burden
of proving a violation of the Act rests at all times on the General
Counsel and that, in order to sustain such burden, the General Counsel
must prove each material element upon which a violation is predi-
cated. In this particular case, in view of the nature of the strike
against the Respondent, namely, a strike for recognition, it was in-
cumbent upon the General Counsel to prove that the Mine Workers
was the actual representative of an uncoerced majority of the Respon-
dent's employees.27
20 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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."
sr A recognition strike by a union that does not represent a majority of the employees
concerned has an unlawful purpose as its ultimate end-namely , the coercion of an em-
ployer into recognizing and dealing with a minority union, which , under the law, is an
employer unfair labor practice . Employees who engage in such a strike forfeit the Act's
protection . See Hoover . Company v . N. L R. B, 191 F . 2d 380, 385 , 386 (C. A. 6) ;
Thompson Products, Inc., 72 NLRB 886; The American News Company, Inc., 55 NLRB
1302. See also N. L. R. B. v . Brashear Freight Lines, Inc, 119 F. 2d 379 (C. A. 8) ;
EKCO PRODUCTS COMPANY . 155
Although the issue of majority status was squarely raised by the
Respondent both in the pleadings and in the testimony," the General
Counsel introduced no competent evidence on that point nor does
the record contain any such competent evidence. Indeed, the Trial
Examiner did not even allude to, much less make any finding with
respect to, majority status as, indeed, he could not on this state of the
record.
Despite the foregoing, however, my colleagues have seen fit to "find"
that the Mine Workers enjoyed a majority status. This finding is
based on three inconclusive and self-serving premises: (1) That the
Mine Workers "advised" the Respondent that it represented the
majority; (2) that the Mine Workers offered to go to a "private
election"; 29 and (3) that a majority of the employees were on the
picket line or stayed away from work during the course of the strike.
Now to infer majority status from a self-serving claim to such
status, or from an offer to prove such status by a private election is,
I submit, a simple substitution of conjecture for proof. And to at-
tribute majority status to the Mine Workers because of the number of
employees absent from work during a strike is to ignore the realities
of strike situations. The Board's experience has repeatedly demon-
strated that such absences may be attributable to many factors other
than support for the striking union. Included among such factors
are illness, layoff status, and fear of reprisal, at least two of which
were of some significance in this case.so
N. L. R B. v Draper Corp, 145 F . 2d 199 ( C. A. 4) ; N. L. R. B. v. Indiana Desk
Co., 149 F. 2d 987 (C. A. 7).
av The matter of the Respondent 's majority status was placed in issue by the Respond-
ent's answer to the complaint . At the hearing , moreover, the Respondent elicited testi-
mony showing that various employees had been coerced into signing Mine Workers author-
ization cards . ( I note in passing that my colleagues in the majority apparently have
not weighed the probative effect of the latter testimony upon the status they now attrib-
ute to the Mine Workers )
In the majority opinion herein, my colleagues note that the matter of the Mine Workers'
majority status was raised by the Respondent as an "affirmative defense" ; and they imply
that it was incumbent upon the Respondent to prove that the Mine Workers was not the
majority representative. I cannot agree with the latter proposition. Because the law has
in effect placed a barrier between employers and the organizational activities of em-
ployees, to require an employer , in the kind of situation here presented , to prove, or to
disprove , the majority status of a claimant union is to place too onerous a burden upon
the employer . The Board itself has recognized the employer 's inherent disability in this
respect For to defend successfully in a refusal -to-bargain situation, an employer need not
prove that the claiming union actually lacked majority status ; it is enough if the em-
ployer shows that it maintained a good -faith doubt as to the union's majority status.
Blue Flash Express , Inc, 109 NLRB 591, 595. See N L R. B. v. Hollywood-Maxwell
Co., 126 F. 2d 815 (C. A. 9 ) ; N. L. R. B. v. Jackson Press, 201 F. 2d 541, 545 (C. A. 7).
29 Because of its failure to comply with the filing requirements of the Act , the Mine Work-
ers could not appear on the ballot in a Board -conducted election This is so whether
it itself petitioned the Board , or whether it was named in a petition filed by the Respond-
ent See Darling and Company, 116 NLRB 374. Moreover, since, the Board had within
the period of 1 year already conducted 1 election among the Respondent 's employees, the
Board was powerless to conduct another election at the time because of the statutory
prohibition contained in Section 9 (c) (3) of the Act.
11 In addition to the testimony relating to the coercion referred to in footnote 28, it ap-
pears that a substantial , though indefinite , number of employees were in layoff status prior
to and during the time of the strike.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, since I view the proof of majority status as a vital
element in this case, and since the General Counsel failed to carry
the burden of such proof, and since the Trial Examiner made no
finding whatsoever with respect thereto, and since the present record
does not support any such finding, I would dismiss that portion of
the complaint which alleges that the Respondent discriminatorily
refused to reinstate the striking employees. As I would decide the
case on this basis, I do not deem it necessary to pass upon the other
matters urged by the Respondent in its defense.
APPENDIX A
Employees named in the amended complaint with (1) summary of
findings as to their employee status at the beginning of the strike
and the dates of their initial applications for reinstatement (if any) ;
and (2) an index to the principal ultimate findings and conclusions
concerning each of them
Immediate prestrike status First application
For dis-
position
see ap-
pendix
below
Thelma Adams_______________ Laid off----------------------- Sept 4,1951___________________ C-2
Floyd C Arthurs_____________ Active----------------------- Sept 10, 1951 __________________ B-1
Helen A Bailey______________ ----- do- - ------------- ------- Nov 16,1951 ------------------ B-1
Paul Bailey ------------------- -----do------------------------ ----- do------------------------ B-1
Andrew P Balik_____________ -----do------------------------ ----- do------------------------ B-1
Arthur Ball__________________ ----- do----------------------- ----do------------------------ B-1
Margaret Bamfield___________ -----do------------------------ ----- do- ---------------------- B-1
Sarah Barnes _________________ Laid off----------------------- Oct 17,1951___________________ C-4
Shuley Barnes________________ Active------------------------ Nov 16,1951 ------------------ B-6
Bonnie Barnett_______________ -----do------------------------ ----- do------------------------ B-2
Carrie M Barnett ___--_______ -----do------------------------ ----- do------------------------ B-1
Shirley Barnett_______________ Laid off----------------------- Nov. 27,1951 ------------------ C-4
Albert S Batyk______________ Active------------------------ Between Aug 20 and 31,1951__ B-1
Hubert Bayly________________ ----- do------------------------ Nov 16,1951__________________ B-1
Robert Blancett______________ ----- do- ---------------------- Last week in October 1951_____ B-1
George Brier__________________ Laid off----------------------- Sept 14,1951 ------------------ C-1
Toney Bumbuhs_____________ Active------------------------ Nov 16,1951 ------------------ B-1
Charles Cale__________________ -----do------------------------ ----- do------------------------ B-1
Charles Callahan_____________ -----do------------------------ -----do----------------------- B-1
Ernest M. Chalfant---------- -----do------------------------ -----do------------------------ B-1
Florence Champlin----------- Laid off----------------------- Aug 27,1951__________________ C-4
Ons Channell________________ Active------------------------ Nov 16,1951 ------------------ B-1
Doris L Chippi______________ Laid off----------------------- ----- do ------------------------ C-4
Dorothy Church_____________ ----do------------------------ Sept 4 or 5, 1951 ______________ C-2
Pauline E Cozart____________ Active------------------------ Nov 16,1951 ------------------ B-6
Daniel Dearth________________ -----do------------------------- Sept 10,1951__________________ B-1
James Dolan__________________ Laid off but recalled for Aug Nov 16,1951 ------------------ B-1
13, 1951
Dorothy Dolney______________ Laid off----------------------- ----- do------------------------- C-1
Andrew E Dragos____--____-_ Active------------------------ -----do----------------------- B-1
Orpha Droltz_________________ ---- do------------------------- ----do------------------------- B-2
Charles Dudley_______________ ----- do------------------------- ----- do------------------------- B-1
Charles Dyer_________________ ----- do----- ------------------- -----do------------------------- B-1
Frank Eibel__________________ -----do------------------------ -----do------------------------- B-1
Harry J. Ellison, Jr___________ -----do------------------------ -----do------------------------- B-1
Carl A. Fannin______________ -----do------------------------- -----do------------------------- B-1
EKCO PRODUCTS COMPANY 157
Immediate prestrike status First application
For dis-
position
see ap-
pendix
below
Grover H Farrar------------- Active ------------------------ February or March, 1952_____- B-1
Mary Gall -------------------- Laid off----------------------- Sept 4, 1951___________________ C-4
Robert F Gaton______________ Active------------------------ Nov 16,1951 ------------------ B-8
Gaylord Gattrell______________ -----do------------------------ ----- do------------------------- B-8
Elizabeth Gawne_____________ -----do------------------------- -----do------------------------- B-2
Margaret Geordt_____________ Laid off----------------------- -----do----------------------- C-4
Paul Golmitz_________________ -----do---------------------- -----do----------------------- C-1
Charley Gresh________________ Active------------------------ Sept 5,1951__-_______________ B-1
Andrew Gress________________ -----do------------------------ Nov 16,1951__________________ B-1
Paul P Hall_________________ ----do------------------------- ----- do----------------------- B-1
Jack Hannon, Jr______________ Laid off but recalled for Aug -----do------------------------- B-1
13, 1951
Madelyn J Harmon ---------_ Active ------------------------ ----- do------------------------- B-2
Arthur R Hannum_---_______ ----- do------------------------- ----- do------------------------- B-1
George Haschak______________ ----- do------------------------- ----- do------------------------- B-1
Inc Belle Hatcher------------- ----- do----------------------- ----- do----------- ------------- B-3
William H Haynes -.-________ - -do------- ----------------- -----do------------------------ B-1
Alta M Heady_______________ Laid off----------------------- ----- do----------------------- C-1
Elma La Wanda Hogan ------ Active---- ----------------- -----do------------------------- B-2
Marjorie R Holdren-____-____ ----do------------------------ -----do------------------------- B-2,
George Holub ----------------- ----do------------------------ ---- -do----------------------- B-1
Paul Holub------------------ ----do------------------------- ----do------------------------- B-I
Andrew Hronec_______________ ----do------------------------- ----do------------------------- B-1
Eleanor Hronec_______________ ----do----------------------- ---'-do------------------------- B-1
John Hronec__________________ ----do------------------------ ----do ----------------------- B-1
Robert Hudson_______________ --- -do ------------------------- Aug 25,1951 ------------------ B-1
Donald B Janusz_____________ ---- do ----------------------- Sept 4, 1951___________________ B-1
StanleyJerles_-__ __ -do----------------------- None-------- ---------------- B-7
Ann E Jones_ --------------- -do---------- ------------- Nov 16,1951 ------------------ B-1
Pete J Journey_______________ -----do------------------------- -- -do----- ------------------- B-1
Emil Kochera________________ ---- do------------------------ Aug 27, 1951__________________ B-1
Dorothy F Koshock____-____- -do-- --------------------- Nov 16,1951__________________ B-2
Mike Kosuth_________________ -do--------------------- --- ---- do------------------------- B-1
Michael E Koval -__-__-___- -do------------------------- -do------------------------ B-S
John Kusma, Jr________-___ Laid off but recalled for Aug --do------------------------ B-1
13, 1951
Mary Lonca__________________ Active------------------ ----- -----do------------------------- B-2
Mike Lukas.___=_--------_ -do------------------------ -----do -------- --------------- B-1
Joseph'Lycyak_____________ _ -do------------------------- Sept 4, 1951___________________ B-1
Margaret Lyons______ ------ -do------ --------------- Nov 16,1951 ------------------ B-1
Earl Mallett__ _____________ -do------------------------- -do--------------------- --- B-1
Hettie Delores Mason -------- ----- do------------------------- -do ---- ------------------- B-2
Joseph Ma%in____ ----------- ----- do-------------- ------- - Sept 4,1951 ------------------- B-1
Alice Jean McCall ----------- -do------------------------- Nov 16,1951 ------------------ B-1
John McCall ----- --------- -do------------------------ -do------------------------ B-1
Kenneth D McConahay_ _ __ -do------------------------- -do------------------------ B-1
Billy D McElfrish-.-________ -do----- ------------------ None----- ------------------ B-7
Helen Mehalko_ ------------ ---do------------------------- Nov 16,1951 ------------------ B-1
Joseph Merva_______________ -do------- ----------------- -do----- ------------------- B-1
Millard L Moore _.___-____ -do ----- --- --------------- -do------------------------ B-1
Peter Message - _-____'-- -do ---- ------------------- -do--------------- --------- B-1
Georgie Ann Novotny-_-__ - -do----- ---------- ----- -do------- ---------------- B-1
John O'Karma -do----- ----------------- -do------------------------ B-1
Delia JaneOliver_ ___ -__ _ -do----- ------------------ -do------------------------ B-1
Verneda L Oliver -do ------- ---------------- -do------------------------- B-S
Margaret Olsocsky___"______- -do --- ----------- --- -do------------------------ B-1
Alberta Peun_ --------- ---- -do ---- -- --------------- -do--------- --------------- B-3
John Petruna_ ------ ---- -do -- - ---------------- Sept 25,1951__________________ B-1
Jack C Phillips---- _ ----- -do---- -- ------------- Nov 16,1951------------------ B-1
Edward Polasky -__ ---- -do---.- - -------------- - -do------------------------- B-1
Katherine Polen _-_-__---_ -do-.-- ------------ ---do------------------------- B-1
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediate prestrike status First application
For dis-
position
see ap-
pendix
below
Joe Pucky--------------- Laid off but recalled for Aug Nov. 16, 1951 ----------------- B-1
13, 1951
Leander F . Ray-------------- Active- ----------------------- Sept 5,1951 ------------------- B-1
Anna S. Rushin -------------- -----do----------------------- Nov. 16, 1951 ------------------ B-1
Fred W. Scott ---------------- ----- do------------------------- Dec. 4, 1951 ------------------- B-1
Emil Scrapchansky----------- -----do------------------------- Nov. 16,1951 ------------------ B-1
James D. Solders ------------- -----do------------------------- ----- do ------------------------- B-1
Roberts Shampel------------- -----do------------------------ -----do ------------------------- B-5
Andrew C . Shedlock ---------- -----do------------------------- Oct 21, 1951 ------------------- B-1
William Sichina-------------- -----do----------------------- Nov.16, 1951 ------------------ B-8
Helen Sikora------------------ -----do------------------------ -----do------------------------- B-2
David L . Sills---------------- -----do------------------------ Dec 1, 1951 ------------------- B-8
Thomas Sills------------------ -----do------------------------- Nov. 16, 1951 ------------------ B-1
Michael Slifko---------------- -----do------------------------ -----do------------------------- B-8
Mildred Slentz --------------- -----do------------------------- -----do------------------------ B-1
Donald L Spiker------------- ----- do--------------- -------- Sept 4,1951 ------------------- B-1
Albert H Spurrier -.---------- ----do------------------------ None -------------------------- B-7
Louis Stahovec --------------- -----do------------------------- Nov. 16, 1951 ------------------ B-1
Steve Stats ------------------- -----do------------------------- ----- do------------------------- B-1
Marcella Stevens ---_-----__ ----- do---------------------- ----- do------------------------- B-1
Henry Szuber ----------------- -- -do------------------------- ----- do------------------------- B-1
Maxine Thompson ----------- Laid off- -------------- --- 1 C-3
Orval Tipton ----------------- Laid off but recalled for Aug. Nov. 161951 ----------------- B-1
15, 1951.
Mary Trenner . -------------- Active------------------------ ----- do------------------------- B-8
Kenneth L Trott ------------- ---- do--------- ------------- ---- do------------------------- B-1
Ann Vasko ------------------- ----- do------------------------- ----- do------------------------- B-1
Mary Veselenak -------------- ----- do------------------------- ----- do------------------------- B-6
Steve Veselenak ------------- -----do------------------------- ----- do------------------------- B-1
Donald Lee Vincent---------_ Laid off- ---------------------- ----- do------------------------- C-1
Mike Voytko----------------- Active------------------------ ---- do----------- ------------- B-1
Edna Watson----------------- -----do------------------------- ----- do------------------------- B-6
Maxine Watson -------------- Laid off- ---------------------- ----- do-------------------- C-4
John West--------------------
'
Active--------- ----- do------------------------- B-1
Homer H Williams ----------- -----do------------------------ ---- do------------------------- B-1
Chester Wisenberger ---------- ----do------------------------- Oct. 11, 1951 ------------------- B-4
Veronica Woyansky ---------- -----do------------------------- Nov. 16,1951 ----------------- : B-6
Raymond A . Yoho------------ ----- do------------------------- ----- do------------------------- B-1
APPENDIX B-1
Active employees-
(a) who applied for, but were refused, reinstatement;
(b) who the Board finds were discriminatorily discharged; -
(c) who (so far as the record discloses) were not rehired even as
new employees, up to the end of the hearing; and
(d) in whose cases the Board orders that
(1) the Respondent offer each of them immediate and full rein-
statement to his or her former position or a substantially equiva-
lent position, with all rights and privileges of employment, in-
cluding seniority, previously enjoyed; and
(2) the Respondent make each of them whole for any loss of
earnings which he or she may have suffered by reason of the Re-
EKCO PRODUCTS COMPANY 159
spondent's discrimination, by payment to each of a sum of money
equal to that which he or she would normally have earned in the
employ of the Respondent, from the date of the Respondent's
rejection of his or her application for reinstatement to the date
of the Respondent's offer of full reinstatement, less his or her net
earnings during said period.
Date of rejected applicateon for
reinstatement
Floyd C. Arthurs________________ September 10, 1951.
Helen A. Bailey__________________ November 16, 1951.
Paul Bailey ---------------------- November 16, 1951.
Andrew P. Balik_________________ November 16, 1951.
Arthur Ball_____________________ November 16, 1951.
Margaret Bamfield_______________ November 16, 1951.
Carrie Barnett___________________ November 16, 1951.
Albert S. Batyk__________________ Between August 20 and 31, 1951.
Hubert Bayly____________________ November 16, 1951.
Robert Blancett*_________________ Last week in October 1951.
Toney Bumbulis_________________ November 16, 1951.
Charles Cale_____________________ November 16, 1951.
Charles Callahan_________________ November 16, 1951.
Ernest M. Chalfant______________ November 16, 1951.
Oris Channell____________________ November 16, 1951.
Daniel Dearth___________________ September 10,1951.
James Dolan*____________________ November 16,1951.
Andrew E. Dragos---------------- November 16,1951.
Charles Dudley__________________ November 16,1951.
Charles Dyer____________________ November 16,1951.
Frank Eibel_____________________ November 16,1951.
Harry J. Ellison, Jr-------------- November 16,1951.
Carl A. Fannin___________________ November 16,1951.
Grover H. Farrar---------------- November 16,1951.
Charley Gresh___________________ September 5,1951.
Andrew Gress____________________ November 16,1951.
Paul P. Hall_____________________ November 16, 1951.
Jack Hannon, Jr.*________________ November 16,1951.
Arthur R. Hannuin_______________ November 16, 1951.
George Haschak------------------ November 16,1951.
William H. Haynes_______________ November 16,1951.
George Holub____________________ November 16,1951.
Paul Holub______________________ November 16,1951.
Andrew Hronec------------------- November 16,1951.
Eleanor Hronec__________________ November 16,1951.
John Hronec_____________________ November 16,1951.
Robert Hudson ------------------- August 25,1951.
* See footnote on page 160.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Date of rejected application for
reinstatement
Donald B. Janusz ----------------- September 4,1951.
Ann E. Jones____________________ November 16,1951.
Pete J. Journey__________________ November 16,1951.
Emil Kochera____________________ August 27,1951.
Mike Kosuth_____________________ November 16,1951.
John Kusma, Jr.* ---------------- November 16,1951.
Mike Lukas______________________ November 16,1951.
Joseph Lycyak___________________ September 4,1951.
Margaret Lyons ------------------ November 16,1951.
Earl Mallett--------------------- November 16,1951.
Joseph Maxin____________________ September 4,1951.
Alice Jean McCall________________ November 16, 191,51.
John McCall_____________________ November 16,1951.
Kenneth D. McConahay___________ November 16,1951.
Helen Mehalko------------------- November 16,1951.
Joseph Merva____________________ November 16,1951.
Millard Moore___________________ November 16,1951.
Peter Mossage___________________ November 16,1951.
Georgie Ann Novotny ------------- November 16,1951.
John O'Karma___________________ November 16,1951.
Delia Jane Oliver----------------- November 16,1951.
Margaret Olsovsky_______________ November 16,1951.
John Petruna____________________ September 25,1951.
Jack Phillips____________________ November 16,1951.
Edward Polasky_________________ November 16,1951.
Katherine Polen_________________ November 16,1951.
Joe Pucky*---------------------- November 16,1951.
Leander F. Ray__________________ September 5,1951.
Anna S. Rushin__________________ November 16,1951.
Fred W. Scott____________________ November 16, 1951.
Emil Scrapchansky_______________ November 16,1951.
James D. Selders_________________ November 16,1951.
Andrew C. Shedlock______________ October 21,1951.
Thomas Sills --------------------- November 16,1951.
Mildred Slentz___________________ November 16,1951.
Donald L. Sp 1ker----------------- September 4,1951.
Louis Stahovec___________________ November 16,1951.
Steve Stats______________________ November 16,1951.
Marcella Stevens----------------- November 16,1951.
Henry Szuber____________________ November 16,1951.
Orval Tipton*___________________ November 16,1951.
Kenneth Trott___________________ November 16,1951.
*Back pay tolled foi pet iod between set vice of Intei mediate Repot t and this Decision
urd 01 dei
EKCO PRODUCTS COMPANY 161
Date of rejected appl i cation for
reinstatem ent
Ann Vasko______________________ November 16,1951.
Steve Veselenak------------------ November 16,1951.
Mike Voytko--------------------- November 16,1951.
John West ----------------------- November 16,1951.
Homer H. Williams--------------- November 16,1951.
Rayniolid'A. Yoho---------------- November 16,1951.
APPENDIX B-2
Active employees-
(a) who applied for, but were refused, reinstatement;
•(b) who, the Board finds, were discriminatorily discharged;
(c) who were rehired by the Respondent as new employees and
(so far as the records shows) were still employed by the Respondent at
the time of the close of the hearing; and
(d) in whose cases the Board orders that
(1) the Respondent immediately restore to each of them all
rights and privileges as employees of the Respondent, including
seniority, previously enjoyed;
(2), the Respondent also immediately offer full reinstatement
to her former or a substantially equivalent position (with all
rights and privileges, including seniority) to any of these persons
if, since her rehire as a new employee, she has been laid off due
to the Respondent's failure to credit her with such full seniority;
and
(3) the Respondent make each of them whole for any loss in
earnings which she may have suffered by reason of the Respond-
ent's discrimination, by payment to her of a sum of money equal
to that which she normally would have earned in the employ of
the Respondent, absent any discrimination against her, from the
date of her rejected application for reinstatement to the date of
the Respondent's compliance with these recommendations, less
her net earnings during said period.
Date of
rejected
application
for rein-
statement
Date of
s' bseq'•ent
rehire as
new einplovee
Bonnie Barnett ------------------- --------------------------------- Nov 16,1951 Mar 23, 1953
Orpha Droltz ------- --------- ----------------------------------------- -do--- Mar 16,1953
Elizabeth Gawne------------------------------------------------------- -do---- Mar 23,1953
Madelyn J Hannon ------- ------------------------------------------- --- -do---- Jan 28,1953
Elma La Wanda Hogan ---------- ----- -------------------------- ------- -do------- Mar 23, 1953
Marlorie R Holdren ------------------------------------ ----------- -- -do------ Do
Dorothy F Koshock --------------- ------------------------ -------- ----do------- Mar 9,1953
Mary Lonca---- - ---------------------------------------------- -- -do------ Mar 23,1953
Hettie Delores Mason -------------- -------------------- --------------- -do--- Jan 28.1953
Helen Sikora ----- ---- ---- --- --------------------------------------- -do-- - Do
I
423784-57-vol 117-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B-3
Active employees Ina Belle Hatcher and Alberta Penn-
(a) who applied for but were refused reinstatement on November
16,1951;
(b) who, the Board finds, were discriminatorily discharged;
(c) who were rehired by the Respondent as new employees (Hatcher
on March 23 and Penn on March 24, 1953), but were thereafter dis-
charged on April 7, 1953, because of their refusal to perform the work
assigned each of them by her foreman ; and
(d) in whose cases the Board orders that each of them be made
whole for any loss of earnings which she may have suffered by reason
of the Respondent's discrimination, by payment to her of a sum of
money equal to that which she normally would have earned in the
employ of the Respondent from November 16, 1951, to the date of
her rehire as a new employee, less her net earnings during said period.
APPENDIX B-4
Active employee Chester Wisenberger-
(a) who applied for, but was refused, reinstatement on October
11, 1951;
(b) who, the Board finds, was discriminatorily discharged;
(c) who (so far as the record shows) was not rehired even, as a
new employee up to the end of the hearing;
(d) whose poststrike conduct as evidenced by his plea of guilty and
his conviction on a criminal charge on July 7, 1953, was of such a
nature as to render him unsuitable for further employment by the
Respondent; and
(e) in whose case the Board orders that the Respondent make him
whole for any loss of earnings suffered by him by reason-of'the Re-
spondent's discrimination, by payment to him of a sum of money
equal to that which he normally would have earned in the employ
of the Respondent from October 11, 1951, to July 7, 1953, less his net
earnings during said period.
APPENDIX B-5
Active employee Roberta Shampel-
(a) who applied for reinstatement on November 16, 1951;
(b) who, the Board finds, was discriminatorily discharged;
(c) who was rehired by the Respondent as a new employee in May,
1953 and (so far as the record discloses) was still employed by the
Respondent at the time of the close of the hearing; and
(d) in whose case the Board orders that
(1) the Respondent immediately restore to her all rights and
privileges as an employee of the Respondent, including seniority,
previously enjoyed;
EKCO PRODUCTS COMPANY 163
(2) the Respondent also offer her immediate and full rein-
statement to her former or a substantially equivalent position
(with all rights and privileges, including seniority, previously
enjoyed if, since her rehire as a new employee in May 1953 she has
been laid off due to the Respondent's failure to credit her with
such full seniority; and
(3) the Respondent make her whole for any loss of earnings
which she may have suffered by reason of the Respondent's dis-
crimination, by payment to her of a sum of money equal to that
which she would normally have earned in the employ of the
Respondent, from the date of the Respondent's rejection of her
application for reinstatement to the date on which she was re-
hired as a new employee, and also for any loss of earnings which
she may have suffered in the event that, before the Respondent's
compliance with this Order, she has been laid off due to the
Respondent's failure to credit her with the seniority previously
enjoyed.
APPENDIX B-6
Active employees-
(a) who applied for, but were refused reinstatement;
(b) who, the Board finds, were discriminatorily discharged;
(c) who individually received offers of reemployment with the
Respondent which was, so far as each knew, an unconditional offer;
(d) who rejected the offers for personal or unstated reasons; and
(e) in whose cases the Board does not order reinstatement, but
orders the Respondent to make each of them whole for any loss of
earnings she suffered by reason of the Respondent's discrimination,
by payment to her of a sum of money equal to that which she nor-
mally would have earned in the Respondent's employ -from, the. date
of her initial application for reinstatement, November 16, 1951, to
the date of the Respondent's unaccepted offer of reemployment, March
17, 1953, less her net earnings during said period.
Shirley Barnes Mary Veselenak Veronica Woyansky
Pauline Cozart Edna Watson
APPENDIX B-7
Active employees-
(a) who made no application for reinstatement before the close of
the hearing;
(b) who, the Board finds,'were discriminatorily discharged;
(c) who (so far as the record discloses) were not rehired even as
new employees, up to the end of the hearing; and
(d) in whose cases the Board orders that
(1) the Respondent offer each of them immediate and full re-
instatement to his former position or a substantially equivalent
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position, with all rights and privileges of employment, including
seniority, previously enjoyed;
(2) the Respondent make each of them whole for any loss of
earnings which he may have suffered or may suffer by reason of
the Respondent's discrimination by payment to him of a sum of
money equal to that which he normally would have earned in the
employ of the Respondent either from the date of any 'reinstate-
ment application made by such individual since the close of the
hearing, or, if no such application has been made, from a date
thirty (30) days after the' service upon the Respondent of the
Intermediate Report, until the date of the Respondent's offer of
full reinstatement, less such individual's net earnings during said
period.
Stanley Jerles
Billy D. McElfrish
Albert H. Spurrier
APPENDIX B-8
Active employees-
(a) who applied for, but were refused, reinstatement;
(b) who, the Board finds, were discriminatorily discharged;
(c) who (so far as the record discloses) were not rehired even as
new employees, up to the end of the hearing; and
(d) who engaged in improper conduct which, the Board concludes,
should bar them from reinstatement and back pay.
Robert F. Gaton William Sichina
Gaylord Gattrell David Sills
Michael E. Koval Mike Slifko
Varned i Oliver Mary Trenner
APPENDIX C-1
Laid-off employees-
(a) to whom the Respondent sent recall notices during the strike;
(b) who advised the Respondent in substance that they would not
report during the strike because of the presence of the picket line, be-
cause of fear of violence, or because of the "labor trouble" ;
(c) the removal of whose names from the layoff list the Board finds
to have been discriminatory under the circumstances and violative
of Section 8 (a) (3) of the Act; and
(d) in whose cases the Board orders that
(1) the . Respondent restore, the , names of these individuals to
the layoff list;
(2) the Respondent fill vacancies from this layoff list in ac-
cordance with its established recall practice , and in filling each
EKCO PRODUCTS COMPANY 165
vacancy, accord to the person taken from the layoff list all privi-
leges and rights of employment, including seniority, previously
enjoyed ; and
(3) the Respondent also make whole each of the individuals
listed in this Appendix C-1 for any loss of earnings which he
or she may have suffered or may suffer
. (A) by reason of the Respondent's failure to recall such in-
dividual because of its removal of his or her name from the lay-
off list;
(B) by reason of a failure by the Respondent promptly to com-
ply with directions (1) and (2) above; and/or
(C) in the case of any such individual who may have been re-
hired since the close of the hearing in this case, by reason of any
subsequent layoff resulting from the Respondent's failure to credit
the individual with the seniority previously enjoyed.
George Brier
Dorothy Dolney
Donald Lee Vincent
Paul Golmitz
Alta M. Heady
APPENDIX C-2
Laid-off employees Thelma Adams and Dorothy Church-
(a) to whom the Respondent sent recall notices during the strike;
(b) who advised the Respondent in substance that they would not
report because of the strike;
(c) the removal of whose names from the layoff list, the Board finds
to have been discriminatory under the circumstances and violative of
Section 8 ( a) (3) of the Act;
(d) who were thereafter rehired by the Respondent as new em-
ployees on October 6, 1952, and (so far as the record shows) were still
employed by the Respondent at the time of the close of the hearing;
and
(e) in whose cases the Board orders that
(1) the Respondent immediately restore to each of them all of
her rights and privileges as an employee of the Respondent,
including seniority, previously enjoyed;
(2) the Respondent also offer each of them immediate and full
reinstatement to her former or substantially equivalent position
(with all rights and privileges, including seniority, previously
enjoyed) if, since her rehire as a new employee, she has been laid
off due to the Respondent's failure to credit her with such full
seniority ; and
(3) the Respondent make each of them whole for any loss of
earnings which she may have suffered
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(A) by reason of the Respondent's failure to recall her earlier
than October 6, 1952, because of its removal of her name from the
layoff list; and/or
(B) by reason of any layoff since October 6, 1952, due to the
Respondent's failure to credit her with the seniority previously
enjoyed.
APPENDIX C-3
Laid-off employee Maxine Thompson-
(a) to whom the Respondent sent a recall notice during the strike;
(b) who advised the Respondent that she would like to return to
work but that she did not think that she "should go through the
pickets";
(c) the removal of whose name from the layoff list the Board finds
to have been discriminatory under the circumstances and violative of
Section 8 (a) (3) of the Act;
(d) who was thereafter rehired by the Respondent as a new em-
ployee on October 6, 1952, but-who resigned on December 26, 1952;
and
(e) in whose case the Board orders that
(1) the Respondent make her whole for any loss of earnings
which she may have suffered by reason of the Respondent's failure
to recall her earlier than October 6, 1952, because of its removal of
her name from the layoff list; and
(2) the Respondent also make her whole for any loss of mater-
nity benefits she may have suffered on her resignation on Decem-
ber 26, 1952, by reason of the Respondent's failure to accord her
the full benefits of an employee, with seniority, previously en-
j oyed.*
*During the hearing, the General Counsel stated specifically that he did not contend
that Maxine Thompson ( who had become Mrs. Wheeler since the strike ) should be rein-
stated, in view of her resignation . During her direct examination by the General Counsel,
the Trial Examiner sustained an objection to questions put to her for the purpose of show-
ing that she stopped working because of pregnancy , and that she was therefore entitled
to maternity benefits under the Respondent 's insurance plan. The Trial Examiner sus-
tained this objection on the ground that the question whether she had been deprived of
benefits ordinarily accorded employees with her seniority was a question properly to be
determined only at the compliance stage of these proceedings if the Board should find
there was discrimination. The Board affirms the Trial Examiner 's ruling
APPENDIX C-4
Laid-off employees-
(a) to whom the Respondent sent recall notices during the strike;
(b) who did not report for work, nor advise the Respondent that
the strike was the reason for their failure to do so;
EKCO PRODUCTS COMPANY 167
(c) whose removal from the Respondent's layoff list by the Re-
spondent the Board finds not to have been discriminatory under the
circumstances, and therefore not an unfair labor practice; and
(d) as to whom the Board orders that the complaint be dismissed.
Sarah Barnes Mary Gall
Shirley Barnett Margaret Geordt
Florence Champlin' Maxine Watson
Doris L. Chippi
*Florence Champlin was rehired as a new employee on October 6, 1952, but had quit
before the close of the hearing because she and her husband moved to Akron . So far as the
record shows , none of the other persons named in this appendix have been rehired by the
Respondent even as new employees
APPENDIX D
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in any labor organi-
zation by discriminatorily discharging employees who engage
in, or are believed to be engaging in, a strike ; by removing em-
ployees' names from our layoff list because they refuse to report
for work because of, and during, a strike; by rehiring strikers
only as new employees, and refusing to credit them with their
full prestrike seniority; or by discriminating in any other manner
against our employees in regard to their hire and tenure of em-
ployment or any term or condition of employment.
WE WILL NOT threaten our employees with discharge if they
should engage in a strike.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join, or assist any 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, and to refrain
from any or all of 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 author-
ized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees entitled thereto under the
Board's Decision and Order, reinstatement, back pay, and restora-
tion of their names to our layoff list with the seniority each pre-
viously enjoyed, in the manner and to the extent provided for in
Appendixes B-1 through B-7, and C-1 through C-3.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or refrain from
becoming or remaining members of any 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 labor organization.
EKCO PRODUCTS COMPANY
(STA-BRITE DIVISION),
Employer.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
NOTE : Any of the employees named in the various appendixes of this Order to which
reference is made in this notice who are presently serving in the Armed Forces of the
United States will be immediately made whole to the extent provided by this notice, and,
upon application in accordance with the Selective Service Act after discharge from the
Armed Forces , will then be offered the opportunity to resume his employment with the
Company under the terms of the above offer.
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an amended charge filed on November 10, 1952 ,' by United Steelworkers
of America , CIO, herein called the Steelworkers, the General Counsel for the Na-
tional Labor Relations Board ,2 by the Regional Director for the Eighth Region
(Cleveland, Ohio ), issued a complaint dated November 28, 1952, alleging that Ekco
Products Company ( Sta-Brite Division ), herein called the Respondent , has engaged
in and is engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and ( 3) and Section 2 ( 6) and (7) of the National Labor
Relations Act, as amended ( 61 Stat . 136), herein referred to as the Act. Copies of
the complaint , the amended charge, and a notice of hearing were duly served upon
the Respondent and the Steelworkers.
With respect to the unfair labor practices , the complaint as amended at the hear-
ing alleges in substance that:
(1) By various specified acts of its agents and supervisors on dates from August
8 through September 1, 1951, the Respondent interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed by Section 7 of the Act, and
thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
(2) Between August 20 and 30, 1951 , and during the course of a strike of its
employees which began on August 13, 1951 , the Respondent ( a) discharged and
terminated the employment of 130 of its employees 3 and has since refused to rein-
state them or to hire them as new employees because they had, or the Respondent
believed that they had, assisted and become members of United Mine Workers of
America, District 50 (herein called Mine Workers ) or the Steelworkers , and had
participated in the strike ; and (b ) by these acts discriminated and is discriminating
against these employees in regard to their hire or tenure or terms or conditions of
employment , thereby discouraging membership in the Mine Workers and in the
I The original charge was filed on November 20, 1951, and duly served on November 24,
1951
2 The General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the Geneial Counsel; the National Labor Relations Board is referred to as
the Board.
9 The names of these employees are set forth in Appendix A. The original complaint
alleged discrimination against 140 employees . By various amendments to the complaint
permitted by the Trial Examiner at the hearing, the number was reduced to 130.
EKCO PRODUCTS COMPANY 169
Steelworkers, and committing unfair labor practices within 'the meaning of Section
8 (a) (3) and (1) of the Act.
The Respondent, in its answer as amended during the course of the hearing, denies
each and every allegation made in the complaint with respect to unfair labor prac-
tices, and, in addition, asserts the following matters by way of affirmative defense: 4
(1) That findings by the Board of unfair labor practices based upon any of the
acts of the Respondent alleged in the complaint are barred by the 6-month limitation
provided by Section 10 (b) of the Act
(2) That at the time of the issuance of the complaint herein, the Steelworkers
(the charging labor organization) and an alleged local thereof had failed to comply
with the requirements of Section 9 (f), (g), and (h) of'the Act.
(3) That in filing the charge basic to the present complaint, the Steelworkers was
"fronting" for two other noncomplying labor organizations, I. e., the Mine Workers
and District 50.
(4) That the complaint should be dismissed because its purpose is "to coerce the
Respondent to recognize the United Mine Workers, and/or District 50" and there-
by to deprive the Respondent's employees of their free choice of bargaining repre-
sentative.
(5) That the employees who engaged in the strike which began on August 13,
1951, all subjected themselves to discharge and loss of any right to reinstatement
because the strike was a strike for illegal objectives in that
(a) The puipose of the strike was to compel the Respondent to recognize the
Mine Workers as the exclusive bargaining representative of its employees.
(b) The demand for recognition made by the Mine Workers was made within
a year following a Board election which the Steelworkers had lost.
(c) The Mine Workers did not, in fact, represent a majority of the Respondent's
employees.
(d) The Mine Workers, not having complied with the filing requirements of
Section 9 (f), (g), and (h) of the Act, could not secure a determination of its
status as exclusive bargaining representative of the Respondent's employees by filing
either a petition for certification or charges of unfair labor practices against the
Respondent.
(e) The Mine Workers in presenting its demand for recognition informed the
Respondent that it "would not observe nor be deterred by the National Labor Rela-
tions Act" and that "unless the Respondent yielded . [it] would prevent the
Respondent from continuing its operation at Byesville, Ohio."
(6) That certain employees themselves directly participated in, or aided and
abetted, the commission of acts of force or violence, or committed other improper
acts, and thereby subjected themselves to discharge and loss of their right to
reinstatement.
Pursuant to notice, a hearing was held in Cambridge, Ohio, on various dates from
January 19 to December 9, 1953, and at Washington, D. C., on January 26, 1954,
before the Trial Examiner duly designated by the Chief Trial Examiner. The Gen-
eral Counsel, the Respondent, and the Steelworkers appeared by counsel and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the, issues. On January 26, 1954, the General
Counsel and counsel for the Respondent presented oral argument upon the issues.
On March 8, 1954, they submitted briefs for the consideration of the Trial Examiner.
In the course of his oral argument and in his brief, counsel for the Respondent has
moved upon various grounds, including the alleged unprotected nature of the
strike, for a dismissal of the complaint. The motion is denied for the reasons here-
inafter stated.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ekco Products Company (Sta-Brite Division), a Maryland corporation, is engaged
at a plant in Byesville, Ohio, in the manufacture, sale, and distribution of can
openers, eggbeaters, and stainless steel flatware. In the course of its operation of
4 This summary of the Respondent's affirmative defenses omits several asserted defenses
which the Trial Examiner, upon the General Counsel's motion and upon consideration of
briefs submitted by counsel, struck from the Respondent's answer as insufficient in law.
This ruling was made in a wutten ,memorandum dated February 19, 1953, and is part of
the present record
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its Byesville plant , the Respondent annually purchases raw materials of a value
exceeding $100,000, more than 50 percent of which is purchased, delivered, and
transported in interstate commerce from and through States of the United States
other than the State of Ohio to its Byesville, Ohio, plant. Respondent annually pro-
duces at its Byesville plant goods of a value exceeding $ 100,000, more than 50
percent of which is sold , delivered , and transported in interstate commerce to and
through States of the United States other than the State of Ohio from its Byesville,
Ohio, plant.
Respondent admits, and the Trial Examiner finds, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Mine Workers of America, District 50, and United Steelworkers of
America, CIO, are labor organizations within the meaning of Section 2 (5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The character of the strike and the fronting defenses
1. The facts
a. The Mine Workers' strike and the setting in which it occurred
On October 11, 1950 , the Board , on a petition filed by the Steelworkers under
Section 9 (c) of the Act, conducted an election among the Byesville employees of
the Respondent to determine whether or not they desired to be represented by the
Steelworkers for the purposes of collective bargaining . By a vote of 159 to 51,
the employees voted against representation by the Steelworkers . On October 18,
1950, the results of the election were certified to the parties.
In the latter part of June or the beginning of July 1951, the Mine Workers, which
had not complied with the filing requirements of Section 9 (f), (g), and (h) of
the Act up to the time of the conclusion of the hearing in the instant case, began
soliciting applications for membership from the Respondent 's Byesville employees.
At one of several weekly meetings held by the Mine Workers for these employees
on Thursday nights at Troyan's Hall in Byesville, the employees elected from their
number the following "temporary officers": Bill Larrick , president ; Jack Phillips,
vice president; and Verneda Oliver, secretary.5
On July 19, 1951, Joseph Di Stefano, regional director for the Mine Workers,
wrote and mailed a letter to Jerry Jason , superintendent of the Respondent's Byes-
ville plant, containing the following request:
In accordance with the provisions of the Labor -Management Relations Act
of 1947, the undersigned union and its representatives have been selected by
an overwhelming majority of your employees working in your plant located
in Byesville , Ohio , to represent them in collective bargaining with reference
to wages, hours, and working conditions.
It is our desire to meet with you and discuss the question of union recogni-
tion and a contract covering the above -mentioned employees . We stand ready
to substantiate with proof our claim that we do represent the above-mentioned
employees of your company.
6 The Trial Examiner makes this finding upon the testimony of striker Robert Gaton,
although nonstriker Pauline Vahala testified that "as far as I remember," Mary Mehok
Trenner was elected "secretary-treasurer " The Trial Examiner regards as too unreliable
for the basis of any finding contrary to the instant finding and the specific, direct testi-
mony of Gaton, evidence that, according to the transcript of the record of an Ohio Bureau
of Unemployment Compensation hearing on January 14, 1952, Steelworkers Staff Rep-
resentative George Turner testified, upon information he said he had received from striker
Mike Slifko, that in addition to Larrick as temporary president, the employees had elected
Robert Gaton as temporary vice president and "Mary Mills" as temporary recording secre-
tary of the Mine Workers group In this connection, it should be noted that the Respond-
ent's personnel records for August 10, 1951 (the last working day before the strike began),
disclose no "Mary Mills" among its employees, nor is there any other evidence in the
record concerning any person of that name Furthermore, in the hearing in the instant
case Slifko, who certainly knew Gaton and Mary Trenner, was not asked by any of the
counsel whom he might have understood to have been elected as the Aline Workers group's
"temporary officers," but testified, in response to questions put to him, merely that he had
not been present at any meeting during which such an election had been held.
EKCO PRODUCTS COMPANY 171
We shall appreciate an immediate reply stating your position in the matter
and as to when it will be most convenient for you to meet with us, thereby
stating the time and place for such a meeting to be held in Byesville, Ohio.
The Mine Workers also made several oral requests upon the Respondent for
recognition , up to and including Friday, August 10, 1951. The Trial Examiner
finds that in these conversations
(1) The Mine Workers claimed that it represented a majority of the Respondent's
employees.
(2) The Respondent refused ",to deal with any union that was not certified by
the National Labor Relations Board."
(3) The Respondent further stated that it was "quite surprised" to receive the
request of the Mine Workers for recognition because there had been an election held
by the Board among the employees about 8 months previously and the Respondent
understood that, as a matter of law, it had "a grace period of one year " in which the
National Labor Relations Board could not conduct another election.
(4) The Mine Workers, with an unmistakable reference to its inability to secure
a Board election in view of its noncompliance with Section 9 ( f), (g), and (h) of
the Act,' requested the opportunity to establish its majority status by a private
These findings as to the material substance of the conversations are made upon a com-
posite of the consistent portions of the testimony of Plant Superintendent Jerry Jason and
Joseph Di Stefano, the Mine Workers ' regional director , the only witnesses as to the con-
tent of the conversations , although from their testimony it appears that Mine Workers
Representatives Joseph Mellish and Frank Strauss , and Frank Leyshon, the Respond-
ent's local attorney , also engaged in one or more of the conversations . It is undisputed
that the first of the conversations occurred between Mellish, Strauss , and Superintend-
ent Jason . Items 2 and 3 of the findings in the text are based solely upon Jason's
uncontradicted testimony concerning this initial conversation which he had with these
two men
As to the remaining findings, Jason 's and Di Stefano 's testimony differed only in im-
material respects . The principal point of difference was that, according to Jason's tes-
timony, he informed not only Mellish and Strauss in the first conversation but also
Di Stefano ( in their later conversations ), of the Respondent 's position with respect to
the Mine Workers ' recognition request, as summarized by the findings made in the text,
whereas, according to Di Stefano's testimony , Jason disclaimed authority to answer the
Mine Workers ' request and Attorney Leyshon, whom Di Stefano visited at his office,
later informed Di Stefano of the Respondent 's position . As the Trial Examiner pointed
out to counsel during the hearing, it appears to him to be immaterial to the issues in the
present case whether Jason or Leyshon stated the Respondent 's position to the Mine
Woi kers.
Another point of difference in the testimony of Jason and Di Stefano relates to the
strike warning which Di Stefano gave to Jason in their telephone conversations Jason
testified , but Di Stefano denied, that Di Stefano told him that " it wouldn 't cost the
company a dime as long as he agreed to sign a contract with them, providing that all
the people signed up with them 100 percent" ; that " if we do strike , we are going to
make it plenty rough on you and force you into a contract and an increase in wages for
the people if and when we do get the contract in there, and we are going to sign the
people up-have to sign the people up 100 percent , and that is the only way we can
control them if we don't get them an inciease in pay. If you want to hold them up and
give us trouble on this, we will run you out of business in Byesville completely" ; and
that a strike would "cost the company a lot of money , a wage increase for the people,
and that [if the company ] . . . didn't see things [Di Stefano's ] way, . . . be would just
make things rough on [the company ] and force [ it] out of business in this area." Even
assuming that such threats were made by Di Stefano, it is clear that they did not become
strike objectives known to, and supported by, the employees who later engaged in the
strike, and therefore that they could not affect either the strikers ' possible rights to rein-
statement or back pay , or any, of the other issues in the case. The Trial Examiner accord-
ingly finds it unnecessary to resolve this particular conflict in the testimony and makes
no finding as to whether any such alleged threats or remarks were made by Di Stefano
7 Jason testified that, in his conversation with Mine Workers Representatives Mellish
and Strauss , they told him, "We can ' t use the services of National Labor Relations Board
because we do not recognize the Taft-Hartley Board and they in turn do not recognize us."
Di Stefano testified that in his conversations with Attorney Leyshon he explained to
Leyshon that "we did not use the services of the National Labor Relations Board," and
that it was "purely a matter of principle ." Whether either or both of these versions
of separate conversations between different persons is accepted , and despite the differ-
ences in the phrasing of the remarks attributed to the Mine Workers representatives
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election among the employees, conducted by a priest, minister, or the chief of
police, which election it claimed would constitute a valid election for the purposes
of the Act.
(5) The Respondent rejected this suggestion of a private election and insisted
upon a Board-conducted election.
(6) In a telephone call made on Friday, August 10, 1951, by Mine Workers'
Regional. Director Joseph Di Stefano to Superintendent Jerry Jason, the Mine
Workers:advised the Respondent that the employees would strike if it were necessary
to secure Fecognition of the Mine Workers.
While the Mine Workers were thus conferring with the Respondent, its repre-
sentatives informed those of the Respondent's employees who attended its meetings
of the Respondent's refusal to grant the Mine Workers recognition as their bar-
gaining representative. None of the Mine Workers representatives testified as to
the substance of these meetings. Upon the testimony of several of the employees,
the Trial Examiner finds that at these meetings there were discussions of the Mine
Workers' inability to secure a Board election, with mention of the fact, in this
connection, that the Mine Workers, had not filed the non-Communist affidavits
which were prerequisite to such an election,8 and also of the possibility of the Mine
Workers establishing its status as their bargaining representative through a pri-
vately conducted election. Upon the testimony of the same group of witnesses,
the Trial Examiner further finds that at the last of these prestrike meetings held on
Thursday night, August 9 (the day before Di Stefano made his last telephone call to
Superintendent Jason), the Mine Workers representatives proposed that if a further
attempt by them to secure recognition failed, the employees should strike for recog-
nition on Monday, August 13, and invited the employees to express their opinions.
Upon the somewhat confusing and contradictory evidence before him, however, the
Trial Examiner does not believe there is substantial evidence and therefore does
not find that, as the testimony of several of the witnesses suggested, there was any
clear-cut vote in favor of the Mine Workers' strike proposal at this meeting.9
On Monday, August 13, 1951, the Mine Workers representatives, Di Stefano,
Mellish, and Strauss and employees Bill Larrick and Robert Gaton appeared out-
side Respondent's plant before working hours and posted pickets at each of the
plant's entrances. Out of a current working force of 235 employees, a large num-
ber (estimated at 160 or 170 by Paul Wargo, the Respondent's plant personnel
and the absence therefrom of any specific reference to pertinent statutory provisions,
it seems clear, and the Trial Examiner accordingly has found, that, in the course of
these conversations with Respondent's representatives, the Mine Workers representative
suggested a private election because, having failed to comply with Section 9 (f), (g),
and (h) of the Act, the Mine Workers could not secure a Board-conducted election
as insisted upon by the Respondent.
8 Thus employee Robert Blancett testified that he learned at the meeting on August 9,
1951, that the Respondent had refused to recognize the Mine Workers because its offi-
cers had not signed non-Communist affidavits And employee Robert Gaton testified that
the Mine Workers representatives told the employees that "on account of the United
Mine Workers' president not signing that affidavit, that they couldn't use the Labor
Board " To substantially the same effect, employee Kenneth McConahay testified that
the Mine Workers representatives told him that the Mine Workers was not, recognized
by the Board, having refused to file non-Communist affidavits. On the same point, em-
ployee Millard Moore testified that the Mine • Workers representatives said something
about the Mine Workers not being recognized by the Boai d and that the matter was then
discussed at various meetings. Finally, employee Kenneth Trott testified that, while
he did not believe that anything was said about the Mine Workers not being able to hold
an election because they had not filed non-Communist affidavits, "there was something
said similar to that, but I just don't recall what it was" except that somebody asked the
representatives about the Mine Workers not having signed these affidavits and the rep-
resentatives replied that "this was the United States, and they didn't believe that it was
anybody's business."
2 Employee Kenneth McConahay testified that there was no strike vote, and employee
Millard Moore testified that he could not recall that any strike vote was taken. Em-
ployees Robert Gaton and Kenneth Trott both testified that they believed a strike vote
was taken, although Gaton said that "I don' t remember for sure" ; and Trott stated
"there might have been ; I'm not definite " Only employee Andrew Dragos testified
that there had been a vote at the August 9 meeting in favor of striking, although even
he qualified this assertion by saying that "no one announced the result . . . [exceptl
the people themselves," i. e , apparently by their own estimate of the strength of the voice
vote
EKCO PRODUCTS COMPANY 173
manager ) failed to report to work that morning and stood around outside the
plant most of the day.io t
Shortly after the plant's starting time that morning , a meeting was held for the
striking employees by the Mine Workers representatives , Joseph Mellish and Frank
Strauss, outside the Green Lantern, an eating and drinking place referred to by the
witnesses as a "beer garden" or a "beer joint" which was located diagonally across
the road from the plant. Later in the morning, another meeting was held at
Troyan's Hall in Byesville. At these meetings, the Mine Workers representative
told the employees that the Respondent had refused to meet with the Mine Workers
because the Mine Workers had not filed non-Communist affidavits with the
Board; that, because the Mine Workers had not signed these affidavits, it "was not
recognized by," nor did it "do business with, the Board"; and that the legal and only
way in which the employees could obtain the Respondent's recognition of the
Mine Workers as their representative was for them to persist in their strike." The
Mine Workers representatives , in answer to a question by one of the employees
as to whether any of them or their families might starve, assured them that anyone
in real need would be taken care of. Finally, the Mine Workers representatives ap-
pointed employees Bill Larrick, Jack Phillips, and Robert Gaton to act as picket
captains, and Regional Director Di Stefano cautioned them against the use of
violence.
A number of the employees who attended the Mine Workers meetings on August
13 were questioned by Respondent's counsel as to whether the Mine Workers repre-
sentatives told the employees in substance that if the Mine Workers was successful
in the strike for recognition, it would impose a "union shop," or, suggesting it
differently in some of the questions, that it would make it necessary for employees
to join the Mine Workers to keep their jobs. Eight of the employees thus ques-
tioned either stated that they could not recall any such statements (Homer Williams)
or flatly denied that they were made (Albert Batyk, Leander Ray, Joseph Merva,
Kenneth McConahay, Millard Moore, Roberta Shampel, Donald Spiker). The
five other witnesses on the point (Donald Janusz, Joseph Maxin, Ina Belle
Hatcher, Mildred Slentz, and Pauline Cozart) first stated that the Mine Workers
representatives said that the strike was for a "union shop," but then, either immedi-
ately or later in their testimony, they explained that the term "union shop" was not
used by the Mine Workers representatives, and that they had used the term in
their testimony in response to its use in counsel 's questions to describe the Mine
Workers representatives' statements that their purpose was to organize the em-
ployees and to secure recognition from the Respondent. This being all the evidence
io The testimony relating to their conduct on that morning and the rest of that day,
and the conduct of striking employees at or aiound the plant for the next several weeks,
is discussed in subsequent portions of this i eport
ii The Mine Workers representatives did not testify concerning these meetings The
testimony of employees who attended the meetings, while differing somewhat in phrase-
ology and reflecting the Mine Workers' natural use of lay rather than technical% language
in addressing them, clearly and consistently sets forth the material import of the Mine
Workers representatives' statements, as summarized by the finding in the text This
testimony, upon which the instant finding is based, was to the effect that the Mine Workers
representatives told the employees that
(1) The Respondent would not recognize the Aline Workers as the employees' bargain-
ing representative (testimony of Emil Scrapchansky and Millard Moore).
(2) The reason given by the Respondent for its refusal to recognize the Mine Work-
ers was that the Mine Workeis had not signed and filed non-Communist affidavits (testi-
mony of Millaid Moore).
(3) "We don't do business with the Board" (testimony of Joseph Merva)
(4) The Mine Workeis was "not backed up by the Government" (testimony of Alike
Williams).
(5) The Mine Workers was "not recognized" by the Board (testimony of Donald
Janusz, Kenneth McConahay, George Puzika, Pat McCullough)
(6) The Mine Workers was "not recognized" by the Board because it had not filed
non-Communist affidavits (testimony of Kenneth McConaliay).
(7) Since the Mine Workeis as "not recognized" by the Boaid, it "must fight its own
battles" (testimony of George Puzika)
(8) The employees should continue then strike for the recognition of the Aline Work-
ers as their bargaining representative (testimony of Leander Ray, Millard Moore, Joseph
Merva, Kenneth AlcConahay, Roberta Shampel, William Sichina, Robei t Gaton, Homer
Williams, Pauline Cozart, and Mike Williams)
(9) Such a strike for recognition was legal (testimony of Roberta Shampel).
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the point , the Trial Examiner credits the explanations given by these witnesses
and finds no basis for believing that the employees were informed by the Mine
Workers that the purpose of the strike was to make membership in the Mine Workers
a condition of employment by the Respondent either through a "union shop" or
through any other illegal arrangement . As the record stands, therefore , the Trial
Examiner finds that the purpose of the employees ' joining the strike was to secure
recognition of the Mine Workers as their representative.
The striking employees ' picketing of the Respondent 's plant was first limited, and
then , after 3 weeks , was forbidden , by a temporary restraining order issued in an
injunction proceeding by the Respondent in the Court of Common Pleas of Guern-
sey County, Ohio. The initial order was issued by the court on August 14, 1951,
the second day of the strike, and temporarily restrained the Mine Workers and "the
officers and members thereof ," and Representatives Di Stefano , Mellish , Strauss, and
Albert Sabbatino, from "establishing pickets of more than two in number at any
one entrance to the property of . . . [the Respondent ] or a total of more than
12 at all entrances to the property . . . [of the Respondent], at any one time."
On August 31, 1951, the court, on the Respondent's further application and
upon notice to the Mine Workers and the other defendants in the injunction pro-
ceeding, amended the provision of the temporary restraining order limiting picketing,
by prohibiting any picketing "on or about the premises" of the Respondent and
ordering them "forthwith to withdraw any and all pickets from, on, or near . .
[Respondent's] property." A certified journal entry of this order was thereupon
served on the same day, August 31, 1951, upon Representatives Frank Strauss
and "Andrew" Mellish.
On August 30, 1951, the Mine Workers filed a petition in the United States
District Court for the Southern District of Ohio, Eastern Division, for the removal
of the injunction proceeding from the Guernsey Common Pleas Court to the district
court. On September 6, 1951, the district court issued an order of removal.
Motions were then made in the district court, first by the Mine Workers to dismiss
the petition for injunction and to vacate the temporary restraining order, and then
by the Respondent in the present case to remand the cause to the common pleas
court . Briefs on these motions were filed by the parties in the district court by
October 3 , 1951. From the record of docket entries in both the district court and
the common pleas court, it appears that no further action was taken in these
proceedings until , on January 23, 1952, the district court remanded the cause to the
Guernsey County Common Pleas Court. Final hearing has never been 'held in
the injunction proceeding and the temporary restraining order issued by the common
pleas court on August 31, 1951 , remains open of record.
In accordance with this order, the picketing of the Respondent 's plant stopped
on August 31, 1951 , and has not been resumed . There is uncontradicted credible
testimony , however, that a number of the strikers ( i. e., Bill Sichina , Mike Slifko,
Bill Larrick , Charles Dudley, and Charles Dyer ) and a Mine Workers representa-
tive still stood around the Green Lantern across the road from , and in view of,
the plant for some time thereafter . Upon consideration of the testimony , it appears
to the Trial Examiner not only that these men who hung around the plant after
August 31 , 1951, did not speak to, nor make any attempt to interfere with , working
employees as they entered or left the plant ( except , according to the credited testi-
mony of employee Merritt Groves , that they "would holler `scab ' at us once in
a while" during the 2 or 3 weeks following the cessation of picketing ), but also
that the evidence does not warrant a finding that they hung around the plant after
October 3 , 1951 , 12 the date the motions in the removal proceedings were submitted
on briefs.
32 In making this finding , the Trial Examiner relies upon the testimony of Personnel
Manager Paul Wargo that these men stood in the Green Lantern parking lot until "the
first week in October ," and the consistent estimates of such loitering for 3 or 4 weeks
after the cessation of picketing (given by witness Merritt Groves ), and for 1 month
(given by witness Clay Jirrels ) The Trial Examiner regards as less reliable the respec-
tive and widely varying estimates given by other witnesses that this loitering lasted for
several days after the end of the picketing ( witnesses Mary Endley and Goldie Weber),
for a week or so ( witnesses Henry Foremand and Melvin A Tolliver), for several weeks
(witness' Herbert Swartz), for,2 weeks (witness Anna Bianhani), for 2 or 3 weeks (wit-
ness Hazel Yaw), for some time (witness'Sarah Heddleson). "until cold weather"'(wit-
ness Dorothy Yank), for 11/2 months ( witness Agatha Blakeslee ), and for 3 months (wit-
ness Pauline Vahala)
EKCO PRODUCTS COMPANY 175
b. The Steelworkers' renewal of interest in representing the Respondent's employees
and its filing of the charges in the present case
The Steelworkers renewed its interest in the Respondent 's employees as the result
of telephone calls made to George Turner, its staff representative in Cambridge,
Ohio, by striker Mary Trenner early in October 1951, and by striker Mike Slifko
later the same month. Both Trenner and Slifko asked Turner if he could do
anything "about getting the people their jobs back at Ekco." Turner informed both
of them that he "wasn't interested as long as there was another labor organization
involved." Slifko, in the later of these two conversations, told Turner that they were
"done with District 50," whereupon Turner informed Slifko that, if Slifko could
produce a reasonable number of signed applications for membership in the Steel-
workers, he would see what he could do.
In a few days, Slifko brought Turner approximately 60 signed Steelworkers mem-
bership applications. Sometime later in October 1951, Turner visited Bill Gazey,
the manager of the Respondent's plant at Massillon, Ohio, and asked Gazey (who
told him he was the superior of Byesville Plant Manager Jason) to intercede with
the Respondent "to try to get them to take these hundred and thirty-odd people
back to work " Gazey promised to "see what he could do about it." Thereafter,
Turner had no further direct contact with Gazey but was informed through the
Steelworkers representative in the Massillon area that Gazey could do nothing about
'the matter.
On November 6, 1951, upon notice given by newspaper advertisement, the Steel-
workers held a meeting for the Respondent's employees at the Columbia Hotel in
Byesville. At the meeting, Representative George Turner informed the employees
of his conversation with Gazey in the attempt to secure their reinstatement, and
obtained more of their signatures to Steelworkers membership applications. He
also advised them concerning their claims for unemployment compensation and
told them that the Steelworkers intended to file charges against the Respondent.
By letter dated November 13, 1951, and addressed to Plant Superintendent Jerry
Jason, I. W. Abel, director of District 27 of the Steelworkers, told the Respondent
that a majority of its employees had "indicated their desire to have the United
Steelworkers of America represent them as their bargaining agent on matters of
wages, hours of work and conditions of employment," and requested that the
Respondent advise him "of a suitable time and place for a meeting between your
representatives and our union for the purpose of discussing future relations."
.On the following day, November 14, 1951, the Steelworkers filed with the Board's
Regional Director at Cleveland, Ohio, a petition for certification as the exclusive
bargaining representative of the Respondent's Byesville production and maintenance
employees.
On November 15, 1951, Herschel Kriger, the Steelworkers' attorney, informed
the Respondent by letter that he represented-155 named employees of the Respondent
(including 121 of the persons named in the amended complaint) who had not
been restored to theii jobs, and that:
This letter is further to advise you on behalf of each of such employees,
that they are and have been ready, willing and able to return to their jobs.
You may regard this letter as an unqualified offer to accept reemployment.
Your failure to accept then and each of them will be regarded as a further
unfair labor practice and proceedings will be brought to compel their rein-
statement with full restitution of lost wages.
On November 20, 195 1,. the Steelworkers filed the unfair labor practice charges
against the Respondent, which, after amendment on November 10, 1952, led to the
issuance of the complaint in the present case on November 28, 1952.
Since the first meeting it held for the employees on November 6, 1951, and the
filing of the charges on November 20, 1951, the Steelworkers, through Staff Repre-
sentative Turner, has held meetings for the Respondent's employees at the Columbia
Hotel in Byesville. All expenses for these meetings, including the November 6
meeting, were paid by Turner in cash, and he in turn was reimbursed by the Steel-
workers. At one such meeting in December 1951, because of the difficulty of main-
taining contact with,the group in Turner's absences, the group elected Mike Slifko
as "temporary" president; Bill Sichina as "-`temporary" vice president, and Verneda
Oliver as "temporary" secretary. On January 12, 1952, Turner and Slifko appeared
and gave testimony before a referee in an Ohio Bureau of Unemployment Compen-
sation case involving the claims of the strikers.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At no time, according to the uncontradicted testimony of Turner, which the Trial
Examiner credits, did Turner have any talks or discussions with any Mine Workers
representatives regarding the Ekco situation.
c. Facts pertinent to the Respondent's contention that strikers Trenner and Slifko
were "the two most active protagonists of the Mine Workers"
As has already been found, the Steelworkers' endeavors to secure the reinstate-
ment of the strikers began with the requests made by strikers Mary Trenner and
Mike Slifko to Staff Representative George Turner in October 1951, and led eventu-
ally to the Steelworkers' filing of the charge upon which the present complaint was
issued. In its brief, the Respondent contends that Trenner and Slifko were "the two
most active protagonists of the Mine Workers," and, citing several court decisions,13
makes this contention the partial basis of its argument that the Steelworkers was
fronting for the Mine Workers in filing the instant charges.
According to the Respondent's argument, Trenner's and Slifko's roles as "chief
protagonists" of the Mine Workers are shown not only by evidence of their activity
in soliciting Mine Workers applications from the Respondent's employees and by
their testimony allegedly to the effect that they had "never quit the Mine Workers,"
but also by evidence which, according to the Respondent, shows that Trenner "was
elected to an office in the Mine Workers," and coerced employees to sign Mine
Workers membership applications with threats of "economic retribution," and which
further shows that Mike Slifko was "described as having been on the [Mine Workers']
strike committee," was "inordinately active in picket line activities," and, after the
court's injunction of all picketing, was one of a group, including Mine Workers
representatives, which "maintained a vigil at the Green Lantern Tavern across from
the entrance to the Respondent for several weeks."
The Trial Examiner finds, upon credible evidence and in full or partial accordance
with some of these factual contentions of the Respondent, that: (1) A prestrike
meeting of a Mine Workers representative with a small group of the Mine Workers
adherents, including the "temporary officers," was held at Trenner's home, (2)
Trenner solicited Mine Workers membership applications from the Respondent's
employees; (3) Trenner, in soliciting Mine Workers applications from some of the
Respondent's employees, informed them that it they did not sign the applications
then, it would cost them more later and they might lose their jobs,14 (4) Slifko was
frequently present on the Mine Workers' picket line; and (5) to repeat a finding al-
ready made, Slifko and several other strikers, together with a Mine Workers repre-
sentative, stood around the Green Lantern across the road from, and in view of,
the plant for several weeks after August 31, 1951, the date upon which the common
pleas court forbade picketing of the Respondent's plant.is
But this is the extent to which the Trial Examiner can, and does, find that the
Respondent 's factual contentions respecting Trenner's and Slifko's alleged positions
as "chief protagonists of the Mine Workers" are, supported by credible, evidence.
-For, as the Trial Examiner has already found," the evidence does not warrant the
finding urged b the Respondent that Mary Trenner "was elected to an office in the
Mine Workers., Nor, in the opinion of the Trial Examiner, does it support the
Respondent's contention that Slifko was a member of the Mine Workers "strike
committee." " Finally, the Trial Examiner finds no justification in the evidence
either for the Respondent's assertion in its brief that Trenner and Mike Slifko "never
quit the Mine Workers" or for the apparently intended implication therefrom, that
13N L R B v Alside, lice, 192 F. 2d 678 (C. A. 6) ; N. L R B v Happ Brotheis,
196 F 2d 195 (C. A 5).
14 In her testimony, Trenner admitted telling employees before the strike that if they
did not sign Mine Workers cards, it might cost them more later Upon the testimony
of employees Doiothea Hamilton, Sarah Heddleson, Agatha Blakeslee, Helen Holub,
Delsie Haugh, and Ann Lisak, and in spite of Trenner's denials, the Trial Examiner
also finds that she told these employees that failure to sign the Mine Workers applications
might result in the loss of their jobs.
is See text and footnote 12. sepia
1e See text and footnote 5, sepia, setting foith the finding and the evidence as to the
identity of the "temporary officers" of the Mine Workeis
"Although striker Millard Moore testified that he believed that Slifko was a member
of the strike committee which assigned pickets, the Tnal Examiner credits Slifko's denial
as well as the testimony of Robert Gaton, already mentioned flu ciedited, that theie
were three picket captains appointed, viz. Gaton, Bill Lai rick, and Jack Phillips
EKCO PEODUCTS COMPANY 177
they continued their support of the Mine Workers in spite of their seeking the
assistance of, and joining, the Steelworkers.18
d. The status of District 27 of the Steelworkers
The Respondent contends, among other things, that District 27 of the Steelworkers
(of which I. W. Abel was district director and George Turner, a staff representative)
was, and is, a labor organization subject to the filing requirements of Section 9 (f),
(g), and (h) of the Act; that, up to and including the date of the issuance of the
complaint in the present case, District 27 had not complied with these requirements;
and that, in filing the charges in the instant case, the Steelworkers was "fronting"
for District 27. We turn briefly to the provisions of the Steelworkers' constitution
and other evidence which bears upon the question of whether District 27 was a
labor organization, as the Respondent contends, or whether, as the General Counsel
argues, it was merely an administrative subdivision of the Steelworkers.
With respect to its various districts, the Steelworkers' constitution provides only
the general territorial boundaries for 38 districts (article X), each with a district
director elected by members in the district and serving as their member on the
executive board of the International Union (article IV, section 19; article V). No
provision is made for ,the chartering of a district as is done in the case of a "local
Union" (article VII), nor for the duties of a district director except as a member of
the general executive board of the International Union (article IV, sections 19-26).
Moreover, the representation of union members is entrusted directly and exclusively
to the International Union and its local unions, and no power or independent
function is accorded to the district or its director by the constitution. For, according
to the provisions of article XVII, all contracts are to be made in the name of "the
International Union" (section 1), and "The International Union and the Local
Union to which the member belongs shall act exclusively as his agent to represent
him in the presentation, maintenance, adjustment and settlement of all grievances
and other matters relating .to terms and conditions of employment arising out of
the employer-employee relationship" (section 3).
The testimony given by Staff Representative George Turner is the only evidence
in the record which sheds light on the role played by the district, through its director
and staff representatives, in the business and operations of the Steelworkers. Upon
this testimony, the Trial Examiner finds that the staff representatives operate under
the supervision of the district director, and that they organize local unions, nego-
tiate contracts, handle grievances above local union levels, represent local unions
in arbitration proceedings, represent individuals in unemployment and workmen's
compensation hearings, and check local unions' observance of the provisions of the
Steelworkers' constitution and of State and Federal laws.
From the breadth of this activity of the district's staff through its district director
and its staff representatives, it cannot be assumed, however, that the district per-
forms any functions or has any powers, except as the agency of the International
1 Although counsel for the Respondent state in their brief that Trenner and Slifko so
testified, they give no record reference for their statement, and no such testimony on
the part of Trenner or Slifko appears in the official transcript of the hearing. Trenner
neither testified, nor was she questioned, upon the subject in her two appearances as a
witness, first during the General Counsel's case-in-chief and then during the General
Counsel's rebuttal. Slifko's testimony was given during his single appearance as a
witness in the course of the Generai Counsel's rebuttal, for which he was called by the
General Counsel to testify, and did testify, only about allegedly improper strike con-
duct on his part. However,' Slifko was asked by the Respondent's counsel on cross-
examination whether he ever advised the Mine Workers that he was no longer a member.
But this question was not answered, because the Trial Examiner sustained an objection
by the General Counsel on two grounds : first, that Slifko's failure to notify the Mine
Workers that he had withdrawn or was withdrawing from membership was immaterial
to the "fronting" issue or any other issue in the case ; and second that, by the question,
the Respondent sought to go into matters beyond the scope of the direct examination
(At a much earlier point in the lengthy hearing, the Trial Examiner, over the objection
of the Respondent, but after lengthy discussion with all counsel upon the record and for
reasons which he set forth in full upon the record, invoked the familiar rule limiting
the scope of the cross-examination to the scope of the direct examination, and theieafter
consistently applied it throughout the hearing, not only to the Respondent' s cross-
examination of the General Counsel 's witnesses on the General Counsel's case - in-chief
and its rebuttal, but also to the General Counsel's cross-examination of the Respondent's
witnesses )
423784-57-vol. 117-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and subject to its absolute control. For, with respect to all agents of the
International Union and of the local unions "or other subordinate body," section 5
of article XVII of the Steelworkers' constitution provides:
No Local Union or other subordinate body, and no officer, agent, representa-
tive, or member thereof shall have the power or authority to represent, act for,
commit or bind the International Union in any matter except upon express
authority having been,granted therefor by this Constitution or in writing by
the International President or the International Executive Board.
2. Conclusions as to the defenses asserted under Section 9 (f), (g), and (h)
of the Act
In all, the Respondent advances three arguments to support its general contention
that, under the provisions of Section 9 (f), (g), and (h) of the Act, the complaint
was improperly issued on the Steelworkers' charges and should therefore be
dismissed:
(1) The Steelworkers was not in compliance since Staff Representative Turner
and District Director Abel were officers of the Steelworkers and, at the time of
the issuance of the complaint, had not filed non-Communist affidavits as required by
Section 9 (h) of the Act.
(2) In filing the instant charges, the Steelworkers was "fronting" for two subor-
dinate noncomplying labor organizations, i. e., District 27 and the informal group
of the Respondent's employees who elected "temporary officers" in December
1951.11
(3) In filing the instant charges, the Steelworkers was "fronting" for the Mine
Workers, a noncomplying labor organization.
For the reasons which follow, the Trial Examiner rejects each of these arguments
and also the Respondent's general contention that the complaint be dismissed under
the provisions of Section 9 (f), (g), and (h) of the Act.
Contrary to the first of these arguments made by the Respondent, the Trial Ex-
aminer believes he is bound by the administrative decision of the Board that at the
time of the issuance of the complaint the Steelworkers was in compliance. For the
Board has repeatedly held that the question of whether a charging union is in com-
pliance at the time of the issuance of a complaint is a matter for administrative
determination and is not to be litigated in complaint or representation proceedings; 20
but that if such a question be raised and "the Board has reasonable cause to believe"
that the filing requirements are being purposely evaded, the Board will hear and
determine the matter in a collateral proceeding.21 This was the position taken by
the Trial Examiner whenever the problem arose during the hearing. As a result,
the question of the Steelworkers' compliance was not litigated in the hearing before
the Trial Examiner,22 and the Trial Examiner (following the Board's precedents
19 See section III, A, 1, b of this report.
20 American Rubber Products Corp v. N. L R B , 214 F. 2d 47 (C A. 7) ; N. L R. B, v
Vulcan Furniture Mfg Corp, 214 F. 2d 369, cert denied 348 U. S 873; Coca-Cola Bot-
tling Company of Louisville, Inc., 108 NLRB 490; General Furniture Corporation, 109
NLRB 479; General Shoe Corporation, 109 NLRB 618; Chicago Rawhide Manufacturing
Company, 105 NLRB 727-728; Valley City Furniture Company, 110 NLRB 1589; Flor-
ence Manufacturing Co, 92 NLRB 185
Since this portion of the report was written, the Court of Appeals for the Sixth Cir-
cuit reversed the Board's decision in the Coca-Cola case, supra (N. L. R. B v. Cocu-
Cola Bottling Co. of Louisville, Inc, 219 F 2d 441.) On May 13, 1955, the Board filed
its petition in the Supreme Court for a writ of certiorari, pointing out, among other
things, a conflict with the decisions of the Seventh Circuit in the American Rubber Prod-
ucts case and of the Fifth Circuit in the Vulcan Furniture case, supra . The petition is
pending at the time of the issuance of this report
21 See Section 102 13 (b) (3) of the Board's Rules and Regulations, Series 6, as amended ;
Coca-Cola Bottling Company of Louisville, Inc., 108 NLRB 490; General Shoe Corpo-
ration, 109 NLRB 618
22 In passing, it should be noted not only that various rulings made it clear to counsel
that the question of the Steelworkers' compliance (as distinguished from the "fronting"
defenses) would not be litigated, but also that the record neither supports nor conflicts
with the Respondent's assertion in its brief that neither Staff Representative Turner
nor District Director Abel filed an affidavit under Section 9 (h) of the Act. For the
Trial Examiner sustained an objection to a direct question put to Turner as to whether he
had filed such an affidavit and District Director Abel did not testify. The only other
evidence touching the point was that of Esther Goldberg, Abel's secretary , who testified
merely that she believed Abel had filed a non-Communist affidavit in 1951.
EKCO PRODUCTS COMPANY 179
cited in the footnotes) now denies the Respondent's motion to dismiss the complaint
because of the alleged failure of the Steelworkers to comply with Section 9 (h) of
the Act.
Nor can the Trial Examiner agree with the Respondent's second argument that
the complaint should be dismissed because, in filing the instant charges, the Steel-
workers was "fronting" either for an informally organized "local" among the Re-
spondent's employees or for District 27. The informal organization of the employee
group, through the election of "temporary officers," occurred in December 1951
and thus after the Steelworkers had filed its charges in November 1951. Further-
more, the election of their "temporary officers" was undertaken simply to maintain
contact between the employees in the group and Staff Representative Turner and
not for the purpose of representing employees in any dealings with the employer.
Their informal organization for these limited purposes clearly did not constitute them
a distinct and separate labor organization within the meaning of the Act so that
they, as a group, would be subject to the requirements of Section 9 (f), (g), and (h) 23
Upon the facts found with respect to District 27 and under applicable precedents,
District 27, too, was not a labor organization within the meaning of the Act but
merely a geographic, administrative subdivision of the Steelworkers 24 In any
event, even if the local employee group and District 27 be considered as labor or-
ganizations within the meaning of the Act, they were subordinate affiliates of the
Steelworkers and, as the Board has held, the Act does not require compliance by
subordinate units of a charging labor organization as a condition precedent to the
issuance of a complaint on a charge filed by the parent.25
The Trial Examiner also rejects the Respondent's third and last contention that,
in filing the instant charges, the Steelworkers was "fronting" for the Mine Workers.
The Respondent rests this contention apparently upon two bases: first, that the Steel-
workers' reawakened interest in the Respondent's employees was prompted by re-
quests for help for the strikers made by strikers Trenner and Slifko, whom the Re-
spondent describes as "the two most active protagonists of the Mine Workers"; and
second, that, by filing the charges seeking the reinstatement of the strikers through
the present proceeding, the Steelworkers approved the strike for the recognition of
the noncomplying Mine Workers and assisted that noncomplying organization in
protecting the persons who had engaged in its activities. However, the decisions
upon which the Respondent relies in making the first branch of this argument 26 dealt
with charges filed by individuals who were the chief protagonists of a noncomplying
labor organization and not, as in the instant case, with charges filed by another labor
organization which has no affiliation or other connection with the noncomplying
union. And both branches of the Respondent's argument also ignore all the facts
which are plainly shown by the evidence and which, in the opinion of the Trial Ex-
aminer, are diapositive of the Respondent's argument. Thus, the evidence shows
that: (1) The Steelworkers was a competitor, rather than in any sense an ally, of
the Mine Workers in seeking to organize and represent the Respondent's employees;
(2) the Steelworkers had been the first to attempt to do so, even before the advent of
the Mine Workers, but had lost a Board election on October 11, 1950, and had
thereby been barred from a further attempt to secure certification until at least
October 18, 1951; (3) in endeavoring to secure the reinstatement of the strikers
beginning in October 1951, the Steelworkers had no contact with any of the Mine
Workers officials and no prior or contemporaneous agreement with them that the
Steelworkers would file charges if it were necessary; (4) in organizing the Respond-
ent's employees, the Steelworkers proceeded with complete independence and neither
asked for, nor received, any contributions from the Mine Workers toward the expense
which was involved in advertising and holding the necessary employee meetings; and
(5) finally, in view its campaign for bargaining authorizations and its filing of a
28 See American Service Bureau, 105 NLRB 485; General Box Company, 89 NLRB 1439,
1441
2 R. H. 09brlnk Manufacturing Company, 106 NLRB 16 (and cases cited in footnote 2,
p. 18) ; Grand Central Aircraft Co., Inc., 103 NLRB 1114, 106 NLRB 358, enforced in
N. L R B v. Grand Central Aircraft Co , Inc, 216 F. 2d 572 (C. A. 9).
w Chicago Rawhide Manufacturing Company, 109 NLRB 589; Northern Crate and
Lumber Company, 105 NLRB 218; Lime Electric Products, Inc., 104 NLRB 344; Atlanta
Metallic Casket Company, 91 NLRB 1225, 1237; General Armature !& Manufacturing
Co . 89 NLRB 654, 661, enfd 192 F. 2d 316 (C. A. 3) ; Cuff man Lumber Company, Inc.,
82 NLRB 296.
44 N. L R B. v Alside, Inc, 192 F. 2d 678 (C A. 6) ; N L. R B v Ilapp Brothers
Company, Inc, 196 F. 2d 195 (C A 5).
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition with the Board for certification on November 14, 1951, the Steelworkers
was obviously interested in again seeking to establish itself as the exclusive, statutory
bargaining representative of the Respondent's employees and not in giving assistance
to the Mine Workers, which it must naturally have regarded as its rival. Upon these
facts, the Trial Examiner finds that, in filing the instant charges, the Steelworkers
did not "front" for the Mine Workers but, instead, acted solely for its own interest
and that of the employees whom it sought to represent. Accordingly, he denies the
Respondent's motion to dismiss the complaint under Section 9 (f), (g), and (h) of
the Act.
3. Conclusions as to the character of the strike as a protected or unprotected
concerted activity
One of the most keenly contested issues in the case is whether the employees'
participation in the strike was a concerted activity protected by the guarantees of
Section 7 of the Act. The General Counsel contends that it was, and upon this
contention bases his claim that the Respondent illegally discriminated against the
employees named in the amended complaint because they engaged in the strike or
because the Respondent believed that they had done so. On the other hand, the
Respondent contends that the strike was not protected because (it asserts) a number
of the strike objectives were highly improper and in conflict with the purposes and
policies of the Act, and even illegal.
Several of the Respondent's arguments on this branch of its case may be dealt
with rather briefly in view of the preceding discussion of the evidence and the factual
findings already made. Thus, the Trial Examiner rejects arguments made by the
Respondent that the strike was unprotected because, among other things, it was
called for the purpose of driving the Respondent out of business in Byesville or
compelling it to enter into an illegal union-security contract with the Mine Workers.27
For whatever statements or threats to this effect may have been made by any
representative of the Mine Workers to Superintendent Jason,28 the evidence does
not show that the employees knew of any such statements or of such an intention
on the part of the Mine Workers, nor, consequently, that they engaged in the strike
for these purposes. Indeed, in the absence of such a showing, the Trial Examiner
has specifically found that the only strike objective which was made known and
stressed to the employees and then supported by them in the strike was the recog-
nition of the Mine Workers as their representative. The Trial Examiner cannot
find, as the Respondent in effect urges, that other possible, undisclosed, illegal strike
objectives on the part of the Mine Workers-that is, objectives which may have
been entertained by the Mine Workers but which were not revealed to the strikers
and therefore certainly not supported by them-should either make the employees'
participation in the strike illegal or remove it from the protection of the Act.29
The Respondent's remaining arguments for holding its employees' participation
in the strike to be unprotected are based upon the undisputed facts, known generally
to the strikers, that the strike was a strike for the recognition of the Mine Workers,
a union which was not in compliance with the filing requirements of Section 9 (f),
(g), and (h) of the Act, and that the Steelworkers had lost the representation elec-
tion conducted by the Board in the same bargaining unit less than a year before.
27 Support of an illegal security demand was not set forth by the Respondent in its
answer as one of the grounds for holding the strike unprotected However, the issue was
litigated without objection and the Respondent presses the point in its brief
29 In footnote 6, above, the Trial Examiner has set forth the squarely conflicting testi-
mony of Jason and Regional Director Di Stefano of the Mine Workers as to whether
Di Stefano made any such statements or threats, and has already generally stated his
reasons for believing it unnecessary to resolve this particular conflict.
29 See the Board's decisions in the American News Company case (55 NLRB 1302)
and'the Mackay Radio and Telegraph Company case (96 NLRB 740), in which the Board
first established and has since continued the line of precedents upon which the Respond-
ent now apparently relies. In the American News case, the Board held a strike to be il-
legal and unprotected upon the ground that it was "a strike knowingly prosecuted to
compel an acknowledged violation" by the employer. [Emphasis supplied ; 55 NLRB
1302, at p. 1312 1 In the Mackay case, a majority of the Board in finding a strike for
an illegal security clause to be unprotected, explained that they regarded decisions
cited by their dissenting colleague as limiting as the American News doctrine to be "in-
applicable to a case such as this, in which the record clearly demonstrates the strikers'
determination to compel the Respondents to violate the Act." [Emphasis supplied ; 96
NLRB 740 at p. 742, footnote 7.]
EKCO PRODUCTS COMPANY 181
The Respondent rests this line of its argument , in part , upon the fact that it was
impossible for it or its employees to secure a Board election to determine whether
the Mine Workers actually represented a majority of the employees ( as it claimed),
because Section 9 (f), (g), and (h) prohibited the Board 's holding such an election
to resolve the claim of a noncomplying union,30 and Section 9 (c) (3) also forbade
the Board 's holding an election within 12 months after the last valid election con-
ducted by the Board and lost by the Steelworkers 31 However, as the essential
foundation , upon the soundness of which the entire line of its argument must stand
or fall, the Respondent relies upon three general propositions , which it asserts are
to be found in the language of Section 7 and Section 9 (c) (1) and (3) of the Act,
if they are properly construed in the light of their legislative history as part of the
Taft-Hartley amendments of 1947.
The first of these basic , general propositions urged by the Respondent is that Sec-
tion 9 (c) (1) of the present Taft -Hartley Act 32 in its amendment of Section 9 (c)
30 In the following language appearing in both subsections , Section 9 ( f) and (h) provide
that:
No investigation shall be made by the Board of any question affecting commerce
concerning the representation of employees , raised by a labor organization under sub-
section (c) of this section . . . and no complaint shall be issued pursuant to a charge
made by a labor organization under subsection ( b) of section 10, . . .
unless such labor organization and any national or international labor organization with
which it is affiliated has complied with certain conditions
The pei tinent language of Section 9 ( g) is that :
. . . No labor organization shall be eligible for certification under this section as
the reps esontative of any employees . . . and no complaint shall issue under sec-
tion 10 with respect to a charge filed by a labor organization. . . .
unless there has been compliance with the conditions set forth in Section 9 (f).
The conditions proscribed in Section 9 (f) are that , within the preceding 12 months,
the labor organization in question and any national or international labor organization
with which it is affiliated shall have filed with the Secretary of Labor a statement in
specified detail, relating to its constitution and structure and a current annual financial
report, and shall also have furnished copies of this financial report to all their respective
members.
The conditions prescribed in Section 9 (h) are that there be on file with the Board in-
dividual "non-Communist" affidavits, executed within the preceding 12 months by each
of its officers and the officers of any national or international labor organization with
which it is affiliated
81 The pertinent language of Section 9 (c)'(3) is the following
(3) No election shall be directed in any bargaining unit or any subdivision within
which, in the preceding twelve-month period , a valid election shall have been
held....
32 The language of Section 9 (c) (1) which bears upon this argument of the Respondent,
is the following
(c) (1) Whenever a petition shall have been filed , in accordance with such regu-
lations as may be prescribed by the Board-
(A) by an employee or group of employees or any individual or labor organ-
ization acting in their behalf alleging that a substantial number of employees (i)
wish to be represented for collective bargaining and that their employer declines
to recognize their representative as the representative defined in section 9 (a),
or (n) assert that the individual or labor organization , which has been certified
or is being currently recognized by their employer as the bargaining represent-
ative, is no longer a representative as defined in section 9 (a) ; or
(B) by an employer, alleging that one or more individuals or labor organ-
izations have presented to him a claim to be recognized as the representative
defined in section 9 (a) ;
the Board shall investigate such petition and if it has reasonable cause to believe
that a question of representation affecting commerce exists shall provide for an
appropriate hearing upon due notice . . . . If the Board finds upon the record of
such hearing that such a question of representation exists, it shall direct an elec-
tion by secret ballot and shall certify the results thereof.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the original Wagner Act,33 has created and conferred upon both the employer and
the employees either (a) the right to a determination of exclusive bargaining repre-
sentatives in a Board-conducted election as the only permissible method by which
such a representative may be selected; or (b) the right to procure such a determina-
tion of exclusive bargaining representatives through a Board-conducted election by
filing a petition of the type described in Section 9 (c) (1).34
The Respondent's second basic, general proposition is that, by forbidding the
Board to conduct more than 1 election in a bargaining unit in any 12-month period,
Section 9 (c) (3) of the Act has not only recognized the conclusive presumption of
the Board under the Wagner Act that the statutory status of any certified exclusive
bargaining representative shall continue for a year, but has also created an additional
conclusive presumption that there is no labor organization entitled to recognition as
exclusive bargaining representative for a year following a valid election in which
the Board has certified that a majority of the employees have voted against repre-
sentation by the labor organization or labor organizations whose names had appeared
on the ballot.
The Respondent's third basic, general proposition is that, as a matter of policy
and in order to attain the objectives sought by Congress in passing the Taft-Hartley
Act, the Board should insist that employees and unions use the peaceful procedures
created by Section 9 (c) (1) of the Act for the determination of questions of repre-
sentation, rather than resort to recognition strikes.
Applying the Act's provisions as it has thus construed them, the Respondent argues
in substance that, as a recognition strike by an uncertified union (and, a fortiori, as
a recognition strike by a noncomplying union within 12 months after the employees'
rejection of union representation in a Board election), the Mine Workers strike in
the instant case was unprotected, because
(a) It deprived the Respondent and its employees of their right to a determination
of the employees' exclusive bargaining representative in a Board-conducted election,
or at least of an opportunity to procure such a determination, contrary to the policy,
provisions, and intent of the Act as set forth in Sections 7 and 9 (c) (1).
(b) Its object was to compel the Respondent to commit an unlawful act by
recognizing, and thus assisting, the Mine Workers in violation of Section 8 (a) (1)
and (2) of the Act, not only without the assurance of a Board-conducted election
that the Mine Workers was the free choice of a majority of the employees, but also
in the face of a conclusive presumption raised by Section 9 (c) (3) of the Act that
there was then no labor organization entitled to the status of exclusive bargaining
representative.
The General Counsel makes his counterarguments in similar detail, under what,
in substance, are the following broad points:
(1) He relies upon the language of Section 13 of the Act,35 as well as its legislative
history and the decisions of the Board and the courts, as clearly establishing the
The full text of Section 9 (c) of the Wagner Act was the following •
Whenever a question affecting commerce arises concerning the representation of
employees, the Board may investigate such controversy and certify to the parties,
in writing, the name or names of the representatives that have been designated or
selected. In any such investigation, the Board shall provide for an appropriate
hearing upon due notice, either in conjunction with a proceeding under section 10
or otherwise, and may take a secret ballot of employees, or utilize any other suitable
method to ascertain such representatives.
34Although its brief stresses (b), the Respondent apparently urges (a), as well. This
is indicated by the broad argument (which Respondent's counsel has made in the brief
and in his oral discussion of the issues ) that the substance of the provision of section
12 (a) of the House bill (H. R 3020), which would have expressly removed any recog-
nition strike by any uncertified union from the protection of the Act, became part of
the Taft-Hartley Act under Sections 9 (c) (1) and 7, although section 12 (a) of the
House bill and its language were dropped from the conference bill which became law.
See also the following statement in footnote 4 of the Respondent's brief :
Section 9 of the National Labor Relations Act provides that representatives se-
lected by the employees as bargaining agent shall be selected through the medium of
secret elections to be conducted among the employees through procedures set up in
the Act; and such representatives, when selected, shall be the exclusive bargaining
agent
ss "Sec 13 Nothing in this Act, except as specifically provided for herein, shall be
construed so as either to interfere with or impede or diminish in any way the right to
strike, or to affect the limitations or qualifications on that right."
EKCO PRODUCTS COMPANY 183
general proposition that "all . . . parts of the Act which otherwise might be read
so as to interfere with, impede or diminish the union's traditional right to strike,
may be so read only if such interference, impediment or diminution is `specifically
provided for' in the Act." (N. L. R. B. v. International Rice Milling Co., 341
U. S. 665.)
,(2) He disputes the construction limiting the right to strike and the protection
thereof afforded under the Act, which the Respondent would place upon Section
9 (c) (1) and (3), on the grounds that:
(a) Such construction is improper in view of Section 13, since it is not supported
by the language of Section 9 (c) (1) and (3) which, on their face, affect procedural
matters and not substantive rights, as both the Board and the courts have held.
(b) In any event, the legislative history of Section 9 (c) (1) and (3) not only
does not warrant, but on the contrary precludes, the construction which the Re-
spondent urges.
(3) He denies that the strike deprived the employees of their opportunity to
make a free choice of bargaining representative since it is undisputed that the
Mine Workers offered to establish their claim in a private election conducted by
a minister, priest, or the chief of police, but that the Respondent refused to
accept this suggestion.
(4) Finally, in square opposition to the ultimate conclusions which the Respondent
wants the Board to draw, the General Counsel contends that, consistent with his
foregoing arguments, the decisions of the Board and the courts which have any
bearing on these questions all hold or clearly indicate that neither an uncertified
union's recognition strike, a noncomplying union's recognition strike, nor a recog-
nition strike within 12 months after a valid Board election in which no union had
been certified, is illegal or contrary to general public policy or to the public policy
and purposes embodied in the Act.
As the General Counsel points out in the course of this argument, the Board
has already held in four cases 36 that a recognition strike by a noncomplying union
is lawful and participation therein is protected under the Act. The propriety
of the rule thus established by the Board has not been expressly passed upon
by the courts. In enforcing the Board's orders in Sue-Ann and the Luzerne Hide
& Tallow cases,37 the courts did not refer to this issue. In the Rubin Brothers
case,38 the Court of Appeals for the Fifth Circuit did not refer to the Board's
holding that the strike was protected but, tacitly assuming that it was, rejected
the Board's finding that there had been any discrimination against the strikers. In
reversing the Board's decision that the strike in the Ohio Ferro case was a pro-
tected activity, the Court of Appeals for the Sixth Circuit 39 did so, not upon
the ground that a noncomplying union's strike for recognition is illegal or unpro-
tected, but instead upon the ground that the recognition strike in that case occurred
during the pendency of a petition for certification filed by a rival union.
Although the Board has thus already ruled against the Respondent's present
contention that participation in a recognition strike on behalf of a noncomplying
union is unprotected, its decisions do not indicate whether it considered the argu-
ments which are now forwarded by the Respondent as a common base for both
of its contentions that a noncomplying union's strike for recognition and a recognition
strike within the 12-month period after a valid Board election are unprotected. In
dealing with the second of these contentions for the first time, the Board is there-
fore being called upon in the present case to pass upon arguments which it may
not have previously considered and which may lead it to reconsider, and either
affirm or reverse the rule which it has already laid down in the four cases which
have been mentioned. For these reasons-and even though he believes the Board's
rule concerning noncomplying unions' recognition strikes is sound and that the
reasons justifying it also dispose of the Respondent's detailed argument based upon
the 12-month period-the Trial Examiner has felt it necessary to set forth, and
now believes it necessary to consider, the entire line of the Respondent's argument
and the General Counsel's counterarguments.
3, Rubin Bros Footwear, Inc, 99 NLRB 610, 619; Ohio Ferro Alloys Corporation,
104 NLRB, 542. 543, 554-555. Irving Lambert et at. d/b/a Sue-Ann Mfg. Co, 98 NLRB 848,
864- Fredrica Clausen. d/b/a Luzerne Hide & Tallow Co., 89 NLRB 989
31 N L. R B v Irving Lambert et at d/b/a Sue-Ann Mfg. Co., 211 F. 2d 91 (C A. 5) ;
N L R. B. v Fredrica Clausen, d/b/a Luzerne Hide & Tallow Co, 188 F. 2d 439 (C. A 3).
38 Rubin Bros Footwear Inc. v. N L R B., 203 F 2d 486 (C. A. 5).
3 Ohio Ferro Alloys Corp v. N L R B., 213 F 2d 646 (C. A. 6).
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's argument, as we have seen, depends upon its construction of
Section 9 (c) (1) and (3) and 9 (f), (g), and (h), which became part of
the Act in 1947 as amendments made by the Taft-Hartley Act to Section 9 of
the original Wagner Act. But the particular amendatory subsections upon which
the Respondent relies constitute only a portion of Section 9 which deals generally
with the representation rights of employees and various Board proceedings relating
thereto. Consequently, an evaluation of the Respondent's arguments requires not
only a consideration of the language of the particular subsections which the Re-
spondent says support its contentions, but also a consideration of the substance
of Section 9 in its entirety, and the extent to which it has been changed in the
Taft-Hartley Act. Furthermore, since the Respondent's arguments for holding
the strike unprotected are based entirely upon the provisions of the Act, the General
Counsel is undoubtedly correct in his basic observation that, under Section 13 of
the Act, the strike was legal and the employees' participation therein was protected,
unless the asserted employer and employee rights and the asserted conclusive pre-
sumption against statutory representative status (which the Respondent claims were
-violated by the strike) are "specifically provided for" in the Act.
Upon consideration of the opposing arguments of the parties with these general
guides in mind, the Trial Examiner has concluded that the various constructions
of the provisions of the Act urged by the Respondent are not supported by the
statutory language nor by the legislative history of the Act, and also that, as
the General Counsel contends, the strike was a concerted employee activity pro-
tected by the guaranties of Section 7. The Trial Examiner has reached these con-
clusions for the following reasons:
(a) Section 9 (a) and (b) of the present Taft-Hartley Act define the substantive
rights of employees to be represented by an exclusive bargaining representative.
Section 9 (c) through (h) provide for Board proceedings and elections relating to
these rights, and the circumstances and conditions upon which they may be invoked
by interested parties. The broad provisions of Section 9 (c) (1) for representation
proceedings upon petition are thus qualified by the provisions of Section 9 (c) (3)
and 9 (f), (g), and (h), which forbid the Board's conducting proceedings or holding
elections under certain circumstances and which thereby withhold from all interested
parties the procedural rights that otherwise might have been granted to them by the
language of Section 9 (c) (1), without affecting, however, the substantive rights
of the labor organizations to represent the employees, nor the substantive rights of
the employees to form, join, or assist, or be represented by, such labor organizations,
except so far as certain rights and obligations of labor organizations are expressly
conditioned by other provisions of the Act, either upon a Board certification or
upon compliance with Section 9 (f), (g), and (h).4°
This has been the interpretation placed upon the various provisions of Section 9
of the present Taft-Hartley Act, both by the Board and the courts " in view of the
clear division of the subsections between substantive and procedural provisions, a
general pattern which incidentally appeared in, and has apparently been continued
40 Thus, the proviso to Section 8 (a) (3), as amended in 1951, permits union-security
contracts only with complying unions ; Section 8 (b) (4) (P,) prohibits a strike by the
employees of one employer foi the purpose of compelling another employer to iecognize
and bargain with an uncertified union as the representative of the latter's employes ;
Section 8 (b) (4) (C) prohibits a strike to compel an employer to bargain with one
labor organization as the exclusive bargaining representative of its employees, when an-
other labor organization has been ceitified as their exclusive bargaining representative;
and Section 8 (b) (4) (D) prohibits a strike to compel an employer "to assign particular
work to employees in a particular labor organization or in a particular trade, craft, or
class rather than to employees in another labor organization or in another trade, craft, or
class, unless such employer is failing to conform to an order or certification of the Board
determining the bargaining representative for employees performing such work. . "
See American Communications Association V. Douds, 339 U. S. 382 (footnote 6 and re-
lated text)
41 American Communications Association v Douds, supra; N. L. R. B v Dant & Russell,
Ltd, 344 U. S 375; West Texas Utilities Company, Inc. v. N. L. R. B., 184 F. 2d 233
(C A, D. C ) ; N L R B. v. Tennessee Egg Co, 201 F 2d 370 (C. A. 6), setting aside
199 F. 2d 95 on rehearing, and enforcing 93 NLRB 846, 848-849 ; N. L. R. B v. Reed &
Prince Mfg. Co, 205 F 2d 131 (C A. 1) ; N L. R. B. v. Pecheur Lozenge Co, 209 F 2d
393 (C. A 2), enforcing 98 NLRB 496, 497, 523; New Jersey Carpet Mills, Inc, 92 NLRB
604, 606-613.
EKCO PRODUCTS COMPANY 185
from, Section 9 of the Wagner Act 42 Moreover, the principles thus recognized by
the Board and the courts as being dictated by the provisions of Section 9 of the
present Act have received a wide variety of applications which have a bearing upon
the problems in the present case, as the General Counsel points out in his brief.
On the one hand, the Board has recognized the sweeping effect of Section 9 (c)
(3) and (f), (g), and (h) in withholding any procedural right on the part of inter-
ested parties (employers as well as employees and labor organizations) to a so-
called "certification" proceeding and election under Section 9 (c) (1), for the pur-
pose of testing either the representation claim of any labor organization within 12
months after a valid Board election,43 or the representation claim of a noncomplying
union a4 Only in the cases of so-called "decertification" petitions filed by employees
42 In both the Wagner Act and the Taft-Hartley Act, Section 9 and its subdivisions have
been devoted to the subject "Representatives and elections " Section 9 (a) of both Acts has
provided that "Representatives designated or selected for the purposes of collective bar-
gaining by the majority of the employees in a unit appropriate for such purposes, shall
be the exclusive representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or other
conditions of employment . . , only the proviso relating to the handling of grievances
was changed in Section 9 (a) of the Taft-IIartley Act. Section 9 (b) of both Acts has also
provided that the Board shall decide what unit shall be appropriate for the purposes of
collective bargaining, with Section 9 (b) of the Taft-Hartley Act providing new limita-
tions affecting professional employees, craft units, and guards. Section 9 (c) of both
Acts has dealt with the representation proceedings which are to be conducted by the
Board, with Section 9 (c) of the Taft-Hartley Act broken down into several subdivisions
to permit a more specific description of the Board's conduct of these proceedings than
was contained in the Wagner Act, and also adding new limitations upon the Board's
exercise of this function Section 9 (d) of both Acts has made identical provision for
the inclusion of the record of the representation proceeding, when relevant, in any subse-
quent unfair labor practice case taken into the courts under Section 10 (e) of both Acts.
Although Section 9 of the Wagner Act contained only these four subsections (with Section
9 (c) alone devoted to representation proceedings before the Board), the additional
provisions of the Taft-Hartley Act in Section 9 (e) through (h) have in effect simply
supplemented Section 9 (c) with new provisions which also deal with Board proceedings.
Thus, Section 9 (e) of the Taft-IIartley Act has provided a new type of union-security
election, and subsections (f), (g), and (h) have foibidden the Board to permit access
to its piocesses under ceitain specified circumstances.
43 When the pieceding valid election is one which resulted in the certification of no rep-
resentative, the Board applies Section 9 (c) (3). In such a case, it has held that Sec-
tion 9 (c) (3) bais the holdinq of another election (and not the filing of another peti-
tion) within 12 months after the date of the preceding valid election. Accordingly, the
Board has entertained representation petitions filed at or near the close of the year after a
valid election in which no representative was selected (in at least 2 instances during the
10th month), but has directed that the next election, if any, beconducted only after the 12-
month period has expired (Igleheart Brothers Division, General Foods Corporation,
96 NLRB 1005; Coastal Drydock it Repair Corp., 107 NLRB 1023; Fruitvale Canning
Company, 85 NLRB 684; Palmer Manufacturing Corporation, 103 NLRB 336.)
But when the preceding election is one which resulted in the certification of a rival
union, the Board has applied its administratively established presumption of the con-
tinuing status of the certified representative for a year after certification, rather than
the more lenient provision of Section 9 (c) (3) prohibiting another election within 12
months after the pieceding election (See Rail Brooks v. N. L R B , 348 U. S. 96 (foot-
note 9 and related text) ; Globe Automatic Spatnkler Co , 95 NLRB 253; Celanese Corpo-
ration of Ame) ica, 95 NLRB 664, 672-674; Centr-O-Cast it Engineering Company, 100
NLRB 1507, Zenith Radio Coi poration, 95 NLRB 1156; Central Truck Lines, Inc., 98
NLRB 374 ) In such cases, in order to avoid interference with the established bargaining
relationship for the desirable, muunnum period of a year, the Board has comparatively
recently decided to dismiss all petitions filed within the certification year (see the
Centr-O-Cast case and also Coastal Drydock it Repair Corp , supra), rather than, as was
its previous practice, to disiniss only those petitions filed before the 12th month and to
retain later petitions for processing when the certification year had expired. (See the
Zenith Radio and Central Truck Lines cases, supra )
44 That petitions by employees or noncomplying labor organizations for the certification
of such noncomplying labor organizations are barred, is, of course, perfectly clear from
the language of Section 9 (f), (g), and (h). However, the published decisions of the
Board, so far as the Trial Examiner knows, reveal no occasion wherein the Board has
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under subdivision ( ii) of Section 9 (c) (1) (A) has the Board recognized a pro-
cedural right on the part of the employees to a possible determination, through a
Board election, that a currently recognized noncomplying union is no longer their
exclusive bargaining representative. The Board entertains these petitions ap-
parently because the question of representation to be determined in the "decertifica-
tion" proceeding is not raised by a claim on the part of the recognized noncomplying
union and is, therefore , not "a question . concerning the representation of em-
ployees raised by a labor organization under subsection (c) .," within the mean-
ing of the prohibitions of Section 9 (f) and (h) of the Act. However, in directing
such a "decertification" election, the Board has observed the express prohibition
of Section 9 (g) and the clear intent of Section 9 (f) and (h) 45 by providing that,
if the noncomplying union should win the election, only the numerical or arithmetical
results will be certified, and not the continuing bargaining status of the noncomply-
ing union.46
At the same time, the Board (with substantial judicial approval) has recognized
the following substantive rights as being unaffected by the provisions of Section 9 (c)
(3) or Section 9 (f), (g), and (h):
(1) The substantive right of a labor organization (notwithstanding Section 9 (c)
(3)) to establish its right as exclusive bargaining representative, by proof of majority
other than in a Board election, even within a year after a valid Board election in
which no representative had been certified.47
(2) The substantive right of a noncomplying union to continue as exclusive
bargaining representative under an existing contract with an employer, which right
eliminates any question of representation and requires the dismissal of a Section
9 (c) (1) petition filed by a rival union.48
(3) The substantive right of a noncomplying union to act as exclusive bargaining
representative , in the absence of a rival union's conflicting certification , valid contract-
status, or pending representation petition, and upon its own showing of a majority
designation other than in a Board election . This right ( a) raises an obligation on
the part of the employer to bargain in good faith with such noncomplying union,
even though the obligation becomes enforceable-and the employer's breach thereof
during the period of the union's noncompliance may be remedied-only upon the
union's subsequent compliance and the Board's then issuing a complaint against
the employer; 49 and (b) justifies an employer's recognizing such noncomplying
been called upon to apply the statute to such petitions, possibly because they have been
screened before going to hearing and have never knowingly been accepted and docketed
Early in its administration of the provisions of the Taft-Hartley Act, the Board held,
and it has since adhered to its ruling, that a petition filed by an employer to investigate
the recognition claim of a noncomplying union is barred by Section 9 (f), (g), and (h)
of the Act. (Herman Loewenstein, Inc., 75 NLRB 377; H. N Thayer Company, 99
NLRB 1122, 1127, enfd 213 F. 2d 748 (C. A 1) ; Staten Island Cleaners , Inc, 93 NLRB
396; Federal Refractories Corporation, 100 NLRB 257; Law Tanning Company, 109 NLRB
No. 46 (not reported in printed volumes of Board Decisions a`nd Orders) ) In the
Thayer case, incidentally the Board suggested that the employer might resolve its un-
certainty as to the majority status of the noncomplying union by insisting on some rea-
sonable proof of majority other than in a Board-conducted election (99 NLRB 1122,
1127.)
The Board has permitted intervention by a noncomplying union in a Section 9 (c) (1)
proceeding only upon the basis of a contractual interest, and when such contract is found
by the Board not to be a bar to an election, the name of the noncomplying union is not
placed upon the ballot (Heyden Chemical Corporation, 85 NLRB 1181 ; Aluminum
Company of America, 85 NLRB 915; New Indiana Chair Company, Inc., 80 NLRB 1686;
The Kinsman Transit Company, 75 NLRB 150 )
45 See the pertinent language of these sections, quoted in footnote 30, above
4e American Smelting & Refining Co, 80 NLRB 68; Ives-Cameron Company, Inc, 81
NLRB 287; Hygrade Food Products Corporation, 82 NLRB 428; Hercules Powder Com-
pany, 89 NLRB 52; Sterling Tool & Mfg Co., 89 NLRB 142.
47 See Ray Brooks v N L R. B , 348 U. S 96
48 Northern Indiana Public Service, 91 NLRB 172 (footnote 1) ; California Walnut
Growers Association, 77 NLRB 756 See also Heyden Chemical Corporation, 85 NLRB
1181 (footnote 2) ; Aluminum Company of America, 85 NLRB 915
49 West Texas Utilities Company, Inc v. N L. R. B., 184 F. 2d 233 (C. A., D C
N L R. B v Tennessee Egg Co, 201 F. 2d 370 (C A 6), setting aside 199 F 2d 95 on
rehearing, and enforcing 93 NLRB 846, 848-849; N L R B v. Pecheur Lozenge Co,
209 F 2d 393 (C A 2) enfg. 98 NLRB 496, 497, 523; Irving Lambert it at , d/b/a Sue-Ann
Manufacturing Company, 98 NLRB 848, 862, enfd. 211 F 2d 91 (C A 5) ; New Jersey
EKCO PRODUCTS COMPANY 187
union without thereby committing an unfair labor practice within the meaning of
Section 8 (a) (1) or (2) of the Act 50
(4) The substantive rights of employees to join, assist, or designate a noncom-
plying union as their bargaining representative, as rights protected under Section 7
of the Act, in the exercise of which rights the employees are accordingly protected
against discrimination by the employer in violation of Section 8 (a) (1) and (3)
of the Act.51
(5) The substantive rights of employees to engage in an economic or unfair labor
practice strike led by a noncomplying union, as rights protected under Section 7 of
the Act, in the exercise of which, employees are accordingly protected against dis-
crimination by the employer in violation of Section 8 (a) (1) and (3) of the Act.52
(6) Finally, as found by the Board in the four cases to which reference has
already been made,53 the substantive rights of employees to engage in a strike for the
recognition of a noncomplying union in the absence of a conflicting certification,
valid contract status, or the pendency of a representation petition of a rival union,
as a right protected under Section 7 of the Act, in the exercise of which right the
employees are accordingly protected against discrimination by the employer in
violation of Section 8 (a) (1) and (3) of the Act.
(b) Contrary to the Respondent's contention, the language of Section 9 (c) (1)
of the present Taft-Hartley Act, when properly read in the context furnished by
other provisions of Section 9, creates and confers no general employer or employee
right to procure a Board election for the determination of any question of repre-
sentation simply by the filing of a petition for investigation. It merely creates a
procedural right which exists only when the Act permits the Board to conduct such
an election. Therefore, the right to procure an election does not exist under circum-
stances such as those in the present case, when Section 9 (c) (3) and Section 9 (f),
(g), and (h) forbid the Board's conduct of an election.
It is true that the language of Section 9 (c) (1) of the present Taft-Hartley Act,
if considered only upon its face and independently of the other provisions of Sec-
tion 9, has made certain changes from Section 9 (c) of the Wagner Act, which
provide a colorable basis for the Respondent's argument that this subsection created
a general employer and employee right to procure a Board election to determine
Carpet Mills, Inc, 92 NLRB 604, 606-613; I B S Manufacturing Company, 96 NLRB
1263, 1270, set aside on other grounds 210 F. 2d 634 (C. A 5).
In concurring with the majority of the Board in finding a refusal to bargain in the
New Jersey Carpet Hills case, Chairman Herzog stated in effect that, in order to encourage
compliance he would suspend the employer's obligation to bargain with a noncomplying
union, if the employer notified the union that the refusal was based upon the union's
noncompliance (92 NLRB at 612-613 ) In the other Board cases cited in this foot-
note, the employers' refusals to bargain were found to be unfair labor practices in the
absence of such notices from the employer For a discussion of the import of these de-
cisions, see the portion of the text related to footnotes 65 through 68, below, in connection
with step (e) of this analysis
so The substance of proposition (b) is, of course, necessarily implied by the Board's and
the courts' decisions cited in the preceding footnote. See also the holding of the Board in
the Thayer case, supra, that a respondent-employer's recognition of 1 of 2 competing
noncomplying unions was evidence of the employer's illegal support of the recognized
union and a violation of Section 8 (a) (1) and (2), in view of the "Respondent's refusal
to suggest, as requested, some . . method [other than a Board-conducted election] by
which [the rejected claimant] could establish its claimed majority." (99 NLRB 1122,
at•1126-1127, enfd. 213 F. 2d 748 (C. A. 1) )
51 Dant & Russell, Ltd, 92 NLRB 307, 95 NLRB 252, enfd 207 F. 2d 165 (C. A. 9), in -
accordance with remand by the Supreme Court in 344 U. S. 375; Southein Furniture
Mfg Co v N. L. it. B , 194 F 2d 59 (C. A 5), enfg 91 NLRB 1159; N L it. B. v Augusta
Chemical Go, 187 F. 2d 63 (C. A. 5), enfg. 83 NLRB 53; N. L. it. B v. Ronney & Sons
Furniture Mfg. Co , 206 F. 2d 730 (C. A 9), enfg 93 NLRB 1049, 97 NLRB 891; N. L R. B.
V. Clausen (Luzerne Hide & Tallow Company), 188 F. 2d 439 (C A. 3), enfg 89 NLRB
989; The Sun Company of San Bernardino, California, 103 NLRB 359, enfd as mod.
in another respect, 215 F. 2d 379 (C. A 9) ; Wood Parts, Inc., 101 NLRB 445, 446.
52 N. L. R. B. v Clausen, supra; N. L R. B v. Electronics Equipment Go, Inc., 205
F 2d 296 (C. A. 2), remanding 94 NLRB 62 for a necessary subsidiary finding; Globe
Wireless, Ltd., 88 NLRB 1262, enfd 193 F 2d 748 (C. A 9) ; H. N. Thayer Company,
99 NLRB 1122, 1128, enfd. 213 F 2d 748 (C. A 1).
51 See footnotes 36 through 39, above.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions of representation by simply filing a petition for investigation 64 Thus,
Section 9 (c) (1) makes the Board's investigation of these questions mandatory
upon the filing of a petition, whereas Section 9 (c) of the Wagner Act provided
merely that the Board "may investigate." Again, Section 9 (c) (1), in apparently
attempting to round out and equalize the rights of employees, labor organizations,
and employers so far as it seemed practicable, permits the employer to file, and
requires the Board to process, petitions upon the basis of a single claim of represen-
tation, whereas, according to the Board's Rules under the Wagner Act, an employer
might file a petition only when two or more such claims had been made 66 And
finally, Section 9 (c) (1) makes a Board election by secret ballot the only method
by which the Board may determine questions of representation in a Section 9 (c)
(1) proceeding, although Section 9 (c) of the Wagner Act permitted the Board
to resolve these questions either in an election by secret ballot or "by other suitable
method."
But, as the Trial Examiner has already pointed out in the preceding step of this
analysis, the language of Section 9 (c) (1) must be read together with that of the
other subsections of Section 9 of the Act. And, when so read, it becomes perfectly
clear that, notwithstanding the comparatively broad language of Section 9 (c) (1),
the Act does not grant to employers, employees, or labor organizations the right to
secure a Board proceeding and election under circumstances such as those in the
present case, when Section 9 (c) (3) and Section 9 (f), (g), and (h) forbid the
Board's conduct of an election.
(c) The language of Section 9 (c) (1) of the present Taft-Hartley Act, whether
considered solely on its face or in conjunction with the substance of the other provi-
sions of Section 9, refutes rather than supports the Respondent's extreme position
that this subsection created a right to a Board election as the only way in which
the status of a labor organization as exclusive bargaining representative may be
established.
Section 9 (c) (1) provides merely that the Board shall investigate a question of
representation and hold an election in the course thereof "whenever a petition shall
have been filed," and does not make any provision relating to, nor therefore does
it by its terms exclude, the possible establishment of a valid representative status in
some other satisfactory manner, if no petition has been filed. Moreover, subdivi-
sions A (i) and (ii) quite clearly imply that certification via the Board-election
route is not to be regarded as the only way in which a labor organization may
establish its exclusive bargaining status.
Subdivision A (i) provides that petitions filed by employees and by labor organiza-
tions shall state that a substantial number of employees "wish to be represented for
collective bargaining and that their employer declines to recognize their representa-
tive as the representative defined in Section 9 (a)." [Emphasis supplied.] And
subdivision A (ii) provides that employee or union petitions for "decertification"
shall state "that the individual or labor organization, which has been certified or is
being currently recognized by their employer as the bargaining representative is no
longer a representative as defined in Section 9 (a)." [Emphasis supplied.]
Certainly, the emphasized language just quoted from subdivision A (i) indicates
that a union which has established its majority status in a satisfactory manner other
than by a Board election may properly be recognized by the employer as exclusive
bargaining representative, and that in such case, a representation petition by the
employees or the union raises no question of representation within the meaning of
Section 9 (c) (1) as to require the Board to entertain the petition and hold an
54 For a comparison of the language used in Section 9 (c) (1) of the Taft-Hartley Act
and that used in Section 9 (c) of the Wagner Act, see footnotes 32 and 33, above. From
the outset, the Trial Examiner eliminates from consideration certain changes which are
apparent rather than actual, in view of the fact that Section 9 (c) (1) has incorporated
the substance of some of the Rules and Regulations which the Board had developed
under the general language of Section 9 (c) of the Wagner Act. For example, with refer-
ence to general practice in representation proceedings, it can be said only that Section 9
(c) (1) has furnished the first statutory provision that representation proceedings shall
be initiated by petition, and that petitions by employers, as well as by employees and
labor organizations, shall be entertained by the Board For such general provisions
were to be found in the Board's Rules which were in effect at the time of the passage
of the Taft-Hartley Act (See Sections 203.46 and 203.47, Board' s Rules and Regulations,
Series 4, as amended September 11, 1946 )
55 See the Board's Rules under the Wagner Act, cited in the preceding footnote.
EKCO PRODUCTS COMPANY 189
election58 Similarly, the emphasized , quoted language from subdivision A (ii)
obviously assumes that, in addition to a "certified " union , any union "being cur-
rently recognized by [the ] employer" ( i. e. one whose status is based upon a
majority showing other than in a Board -conducted election ) may have been the
statutory bargaining representative although it "is no longer a representative as
defined in Section 9 (a)." [Emphasis supplied.]
Were there still any doubt , in spite of this language of Section 9 (c) (1) itself,
that a labor organization might become the exclusive bargaining representative
of employees by a majority designation other than in a Board election , it is dissipated
by the substance and pattern of the provisions of Section 9, considered as a whole,
and their clear meaning as found both by the Board and the courts. As has been
pointed out, the general pattern of the substantive and procedural provisions of
Section 9 in both the Wagner Act and in the Taft-Hartley Act is the same.57 Thus
the present Taft-Hartley Act, like the Wagner Act , makes general provisions in
Section 9 (a) and (b) that a representative selected by a majority of the employees
in an appropriate bargaining unit shall be the exclusive bargaining representative of
the employees in that unit , with no direction as to the manner in which the employees
may select this representative , and then devotes Section 9 (c) and the later subsections
of Section 9 to the types of proceedings in which the Board may or may not deter-
mine whether a particular labor organization has been selected by a majority of the
employees in an appropriate unit . Upon the identical arrangement of the provisions
of Section 9 of the Wagner Act, the Board and the courts held that, in view of
the general language of the provisions of Section 9 (a) and (b) placing no limitations
on the method of selection of a bargaining representative , Section 9 (c) provided
only one of the permissible methods, i. e., through a Board representation proceed-
ing, and that a labor organization might therefore also be selected by a majority
of the employees in a bargaining unit and become their exclusive bargaining repre-
sentative , through some other suitable method.58 And, for the same general reasons,
the Board and the courts have placed the same interpretation upon Section 9 (c)
(1) of the present Taft-Hartley Act.59
(d) Contrary to the Respondent's contention, the language of Section 9 (c) (3)
of the present Taft-Hartley Act does not create a "conclusive presumption" against
there being any labor organization entitled to status as exclusive bargaining repre-
sentative for a year after a valid Board election which resulted in the certification of
no representative.
5e Although not required by Section 9 (c) (1) to entertain such a petition and hold an
election, the Board does so when the petition is filed by the recognized union in older
to obtain the statutory advantages of a certification (See footnote 40, above; General
Box Company, 82 NLRB 678, W. & W. Pickle & Canning Co, 85 NLRB 262; Atlas Cork
Works, Inc ., 88 NLRB 574 ; Reuben Gordon Shoe Co ., Inc., 89 NLRB 301 ; Singer Manu-
facturing Company, 89 NLRB 1659; The Plumbing Contractors Assn . of Baltimore, Md,
93 NLRB 1081 , 1089-1090 ; Evening News Publishing Co., 93 NLRB 1355, 1356 ; and see
also the Fourteenth Annual Report of the National Labor Relations Board (1949), p. 20 )
This exceptional doctrine, however, is not inconsistent with, nor does it therefore negate,
the clear implication in the language of subdivision A (i) of Section 9 (c) (1) that a
valid exclusive bargaining representative status may be established without a Board rep-
resentation proceeding and election.
57 See footnote 42, above
58 Lebanon Steel Founds y v. N. L R B , 130 F 2d 404, 407 (C. A, D. C ), enfg 33
NLRB 233, cert. denied 317 U. S. 659; N. L R B v. Consolidated Machine Tool Corp,
163 F 2d 376, 378 (C A 2), enfg as mod. 67 NLRB 737, cert. denied 332 U. S. 824;
N. L. R B v Dahlstiom Metallic Door Co, 112 F 2d 756, 757 (C. A. 2), enfg 11 NLRB
408; N. L. B. B. v. Fedei bush Co, 121 F 2d 954, 956 (C A 2), enfg. 24 NLRB 829.
59 Ray Brooks v. N. L. R. B , 348 U. S. 96 ; N. L. R. B. v Kobritz, 193 F. 2d 8 (C. A. 1)
N. L R. B v Standaid Steel Spring Company, 180 F. 2d 942 (C. A. 6) setting aside 80
NLRB 1082 and holding that a union, which the Board has found to have been improp-
erly recognized by the employer , had validly established its representation claim by cards
submitted to the employer and that its recognition was proper despite the pendency
of another union's representation petition before the Board; Joy Silk Mills, Inc. v.
N L R B, 185 F. 2d 732 (C A, D. C ) ; D. H Holmes Company, Ltd v N L R B, 179
F 2d 876 (C. A. 5) ; Everett Van Kleeck and Company, Inc., 88 NLRB 785, enfd. 189 F. 2d
516 (C A 2) ; H N. Thayer Company, 99 NLRB 1122, 1127, enfd 213 F. 2d 748 (C. A. 1) ,
Sunbeam Corporation, 99 NLRB 546, 552; Harry Epstein ( Top Mode Manufacturing
Co.), 97 NLRB 1273, 1274, 1297-1298, enfd. 203 F. 2d 482 (C. A. 3) , Graham County
Electric, Cooperative, Inc, 96 NLRB 684, 709; and see also, passim , the cases cited in
footnote 49, above, holding that an employer is under an obligation to bargain with a
majoiity , though noncomplying union.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will be recalled that the Respondent contends that Section 9 (c) (3) has not
only recognized and codified the "conclusive presumption" of the Board under the
Wagner Act that the statutory status of any certified exclusive bargaining representa-
tive shall continue for a year, but has also created an additional "conclusive pre-
sumption" that there can be no labor organization entitled to recognition as exclusive
bargaining representative for a year following a valid election which resulted in the
certification of no representative.
But the language of Section 9 (c) (3) alone certainly cannot be regarded as
having the effect which the Respondent says it has. The mere prohibition of more
than one election a year obviously does not preclude the possible establishment of
a new exclusive representative status within the critical year after a valid election
upon a majority showing made otherwise than in a Board election. It does no more
than withhold from the parties who may be concerned, the possibility of procuring
a determination of status by the particular route of a Board election. The language
of Section 9 (c) (3), therefore, gives no indication that Congress thereby recognized
the Board's conclusive presumption of the continuing status of a certified exclusive
bargaining representative under the Wagner Act, which incidentally was for a year
after certification and not after the election, a point of dissimilarity recently noted
by the Supreme Court in pointing out in the Brooks case 60 that Section 9 (c) (3)
has not incorporated the Board's presumption which still continues as a rule adminis-
tratively established by the Board, consistent with the objectives and general pro-
visions of the Act, and the Board's powers thereunder, but without specific statutoiy
direction.61 Nor, for the same reasons, can the language of Section 9 (c) (3), if
given independent, literal significance, be taken to have created the negative "con-
clusive presumption" against representative status for a year after a valid Board
election which has resulted in the certification of no representative.
Of course, if the Respondent were correct in its argument that Section 9 (c) (1)
has created an employer and employee right to a Board election as the only way in,
which an exclusive bargaining representative may be selected, then this right under
Section 9 (c) (1) and the prohibition by Section 9 (c) (3) of more than one Board
election a year would preclude a labor organization's qualifying as exclusive bargain-
ing representative within the year following a Board election in which the employees
had rejected representation by the labor organizations on the ballot. But we have
already examined the language of Section 9 (c) (1) and have found that, neither
on its face nor in context, does it have the meaning urged for it by the Respondent.
Indeed, it has just the opposite meaning.
It seems clear therefore that, contrary to the Respondent's argument, Section 9
(c) (3) does not create a "presumption" either of the continuing status of a certi-
fied bargaining agent for a year following the election in which it was chosen by the
employees, or of the absence of an exclusive bargaining representative for a year
following a valid Board election in which no representative was selected by the
employees.
(e) Contrary to the position taken by the Respondent, there is no basis in the
provisions of the Act for the Board's declaration and application of a policy re-
moving the strikers in the present case from the protection of Section 7, and in
view of this fact, Section 13 forbids any such rule of policy or of law.
In its brief, the Respondent argues in substance that, in order to foster industrial
peace in accordance with the objectives of the Act, the Board should, as a matter
of policy, insist that the parties employ the peaceful procedures created by Section 9
(c) (1) for the determination of questions of representation, rather than resort to
self-help through strikes or lockouts. As set forth in the oral argument presented
by its counsel, the Respondent also contends that the Board's adoption of such a
policy is necessary for the protection of its processes under Section 9 (c) (1).
Upon both these bases, therefore, the Respondent argues that the Board should gen-
erally hold recognition strikes to be unprotected and certainly should do so when,
like the strike in the present case, they are engaged in for the purpose of securing
the recognition of a noncomplying union and occur within a year after a valid
election which resulted in no certification.
As we have already seen , it is apparent from the language of all the provisions of
Section 9 that Section 9 (c) (1) does not provide an unlimited right on the part of
employees, employers, or labor organizations to petition for a Board representation
proceeding and election. Furthermore, as we have also seen, Section 9 (c) (3) and
Section 9 (f), (g), and (h) prohibit the Board's holding an election or entertaining
a representation petition under the circumstances which they describe, and in those
e0 Ray Brooks v. N. L. R. B , 348 U. S. 96.
61 See also the cases cited in footnote 43, above.
EKCO PRODUCTS COMPANY 191
situations withhold from interested parties all procedural rights to a Board election
as part of a representation proceeding. They do not (as they might easily and
clearly have done if Congress so intended ) prohibit other methods of establishing,
and then procuring the recognition of, an exclusive bargaining representative's status,
even though such methods obviously include strikes for recognition. Nowhere does
the Act provide, or even suggest in any fashion , that the right of employees to
strike for the recognition of a union as their representative may be extinguished
by the Board in order to encourage the use of its representation proceedings, except
in the limited, specific situations described in Section 8 (b) (4) (B ) and (C ), which
are quite different from that in the present case. Certainly, no such basis for gen-
erally limiting the statutory protection afforded to strikers , and for extinguishing it
so far as the strikers in the present type of case are concerned , can be said to be
"specifically provided for" in the Act, as Section 13 requires. The Trial Examiner
accordingly rejects the Respondent 's first argument as to policy.
For somewhat the same reasons as well as for additional reasons, the Trial Ex-
aminer also rejects the Respondent's second argument that protection of its repre-
sentation processes justifies a Board policy rule which would remove the participa-
tion of employees in a recognition strike from the protection of the Act. It is true
that when the right to secure a representation proceeding and election exists and
has actually been invoked, the Board has the power, implied by the provisions of
Section 9 , to make sure that its resolution of the question of representation is ob-
served, that the freedom of the employees in the election is unimpaired , and that
the invocation of its representation processes is not abused. This is apparently
what Congress had in mind when it enacted only Section 8 (b) (4) (B ) and (C)
affecting recognition strikes. This is also the apparent basis for the decisions which
the Respondent cited in its oral argument and in which the Board either granted a
union 's application to withdraw its representation petition only with prejudice to the
filling of another petition within a year 62 or has barred the filing of a union peti-
tion within 6 months after the same union had withdrawn a previous petition 6a
And this is also the basis for the holdings of the courts that a strike for the recogni-
tion of one labor organization during the pendency before the Board of another labor
organization 's representation petition , is unprotected 64
But these reasons did not exist in the present case. Not only was there no repre-
sentation petition pending before the Board when the strike for the recognition of
the Mine Workers occurred, but there was no rival claim of any other labor organi-
zation. It can scarcely be said on the basis of anything that is to be found in the
Act that, under these circumstances, the Board as a matter of policy should find
the strike unprotected in order to protect its representation 'processes, since Section
9 (c) (3) and Section 9 (f), (g), and (h) excluded the Mine Workers' claim from
the Board 's jurisdiction and no other recognition claim was either before it or, for
that matter, was even in existence. Obviously, Section 13 of the Act applies, there
is no basis "specifically provided for" in the Act for extinguishing the protection of
the strikers in the present case in order to protect the Board's processes , and the
Board is accordingly forbidden by the Act to do so.
Several observations should perhaps be made at this point concerning the effect
of the prohibition of Section 13 that "Nothing in this Act, except as specifically pro-
vided for herein," shall be regarded as limiting or diminishing the right to strike.
From this language, it is clear that Section 13 deprives the Board of the same latitude
in policy determinations restricting the right to strike, which it has with respect to
the scope of other emplcyee rights under Section 7 of the Act.
As we have noted, nothing in the language of Section 9 (f), (g), or (h), or in
any of the other provisions of the Act,, suggests that the right to strike for recognition
or any other objective shall be, or may be, conditioned upon the striking union's
compliance.65 Furthermore, we have also noted that the Board's rulings are to the
effect that the employer may recognize a noncomplying, but otherwise qualified,
union bargaining representative, without thereby committing an unfair labor prac-
tice 66 and, therefore, that a strike to compel him to do so cannot be regarded as a
63 Am-C-Chrome Company , 106 NLRB 1265.
63 Little Rock Road Machinery Company, 107 NLRB 715; Sears , Roebuck & Company,
107 NLRB. 716; Campos Dairy Products , 107 NLRB 715.
64 The Hoover Company v. N. L. R. B., 191 F. 2d 380 ( C. A. 6) ; Ohio Ferro -Alloys
Corp. v. N. L. It. B., 213 F. 2d 646 (C. A. 6) ; N. L. R. B. v. Electronics Equipment Co.,
Inc., 205 F. 2d 296 (C. A. 2). Cf. N. L. R. B. v. Standard Steel Spring Company, 180 F. 2d
942 (C. A. 6) ; N. L. R. B. v Buzza-Cardozo, 205 F. 2d 889 (C. A. 9).
a: This is certainly recognized in the Board 's and the courts ' decisions which are cited in
footnotes 36 and 52, above.
N See footnotes 49 and 50, above.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike to compel the commission of an unlawful act, nor, for that reason, as being
illegal or unprotected.
The special prohibition of Section 13 against any diminution of the right to strike
"except as specifically provided for" in the Act, therefore; applies squarely to strike
situations like the one in the present case, even though the Board in .a number of
cases 67 has indicated a belief that, in order to permit the employer to encourage
compliance as a matter of general policy, it has the power to hold that the obligation
of the employer to bargain with a noncomplying union is suspended when the em-
ployer has expressly refused to bargain until the union complies. For the language
of the Board's opinions in these cases indicates not that the employer has such a right
to refuse to bargain as might make illegal a strike to compel him to do so, but rather
that the employer has an excuse for refusing to bargain, or perhaps more accurately, a
defense against a possible charge that he has committed an unfair labor practice by
refusing to bargain. But even if, by some loose interpretation, the Board's language,
were to be taken to indicate a "right" on the part of an employer to refuse to bargain
with a noncomplying union, such a "right" would find no support in the provisions of
the Act, and, in view of Section 13, its "violation" by a recognition strike could not
be made the basis for holding the strike to be either illegal or unprotected.
The net result is that in view of Section 13 of the Act, the Board must hold that
the participation of employees in a strike for the recognition of a noncomplying union
is protected since the Act has not "specifically provided" a basis for holding the strike
to be unprotected, although the Board has also indicated that, as a matter of general
policy (which Section 13 prevents the Board from extending to recognition strikes),
it would hold that the employer had not committed an unfair labor practice by re-
fusing to bargain if he had informed the union that the reason for the refusal was
the union 's noncompliance.
While such a result may not be desirable, it does not seem to the Trial Examiner
to be within the Board's power to avoid it and, at the same time, to observe both
the strict, clear mandate of Section 13 with respect to strikes, and a policy rule
permitting employers to refuse to bargain with noncomplying unions in order to
encourage compliance. In any event, it is certainly not within the Board's power
to disregard the blunt prohibition of Section 13. If that is to be changed, it must
be done by Congress.68
(f) The legislative history of the Taft-Hartley Act is consistent with the interpre-
tation of the provisions of the Act which has just been set forth. It does not support
the construction of the Act which the Respondent urges.
Upon the foregoing consideration of all the provisions of the Act which might
conceivably bear upon the issues in this case, it appears to the Trial Examiner that
their meaning is clear; that no basis is "specifically provided for" in the Act for
holding the strike in the present case to be illegal or unprotected; and therefore that
such ^a holding would be improper in view of Section 13 of the Act, regardless of
what the legislative history of the Act might show. However, the Trial Examiner
has examined the legislative history-particularly those portions to which the General
Counsel and the Respondent have directed him-and believes that it is consistent
rather than in conflict with his interpretation of the Act.
The present Taft-Hartley Act resulted from the passage of a bill 'agreed upon by
conferees from the House of Representatives and the Senate in the 80th Congress,
after the House had passed H. R. 3020 and the Senate, having substituted the language
of S. 1126, had passed H. R. 3020 as so amended. The provisions of the Taft-Hartley
Act are substantially those of Senate 1126 as it was passed by the Senate.
As the General Counsel points out, both Senate Report No. 105 (on the original
submission of S. 1126) and House Conference Report No. 510 stated that:
It is to be observed that the primary strike for recognition (without a Board
certification) is not proscribed.69
In addition, the General Counsel directs attention to the Senate's defeat of a motion
by Senator Ball to amend S. 1126 by inserting a specific provision which would have
made it unlawful for any person to engage in, or to induce or encourage any other
person to engage in, a strike for the recognition of an uncertified union. (93 Daily
Congressional Record 4887 (May 8, 1947), 5049 (May 9, 1947).)
To support its opposing constructions of the provisions of the Act, the Re-
spondent relies upon certain other statements made in House Report No. 245 (on
67 See footnote 49, above.
See Colgate-Palmolive-Peet Co. v. N. L. R. B , 338 U. S. 355.
00 The quotation is from Senate Report No. 105, at page 22. The same statement is
found in the House Conference Report No. 510, at page 43, except that the terminal phrase
"was not prohibited" was substituted for "Is not proscribed."
EKCO PRODUCTS COMPANY 193
the original submission of H. R. 3020), in Senate Report No. 105 (on the original
submission of S. 1126), in House Conference Report No. 510, and by Senator Taft
in supporting the Conference bill in the Senate. The Respondent's broad con-
tention is that these statements show a congressional intent, through the use of the
language eventually adopted as Section 9 (c) (1) and (3) and Section 7 of the
Act, that employees and labor organizations should be required to use the peaceful
procedures of the Board under the Act for the determination of questions of
representation; that Section 9 (c) (3) was to raise a conclusive presumption against
exclusive representative rights for a year after a valid election resulting in the
certification of no bargaining representative; and that recognition strikes by uncer-
tified unions were to be unprotected by the Act.
To show that Section 9 (c) (3) of the Act was intended to create a conclusive
presumption against the establishment of an exclusive representative status for a
year after a valid election in which no representative was certified, the Respondent
relies upon the following two statements, the first taken from Senate Report No.
105 and the second from Senator Taft's remarks in the debates:
In order to impress upon employees the solemnity of their choice, when
the Government goes to the expense of conducting a secret ballot, the bill
also provides that elections in any given unit may not be held more frequently
than once a year. [Sen. Report No. 105 at page 12.1
The bill also provides that elections shall be held only once a year so that
there shall not be a constant stirring up of excitement by continual elec-
tions. . . . [93 Daily Congressional Record 3954, April 23, 1947.1
The Trial Examiner cannot agree with the Respondent as to the significance of
these quotations. In his opinion, all they do is explain the basis for a provision
prohibiting a second Board election within any given year. The Supreme Court
referred to the same statements in the Brooks decision (supra). The Court held,
in substance, that these congressional statements furnished no reason for believing
that Section 9 (c) (3) was intended to change the Board's existing, adminis-
tratively established principles, including the right of employees to select and
establish a union as their exclusive bargaining representative immediately after
they had rejected union representation in a Board election, except to the extent
that it prohibited the Board's holding a second election for that purpose within
any given year. (348 U. S. 96, at p. 100, footnote 8 and related text.)
The heart of the Respondent's argument, however, is that statements made in
House Report No. 245, in the House Conference Report No. 510, and by Senator
Taft show that the substance of the provisions of section 12 (a) of the House
bill which would expressly have made unlawful any recognition strike by an un-
certified union,70 became part of the Taft-Hartley Act under the language of Section
7° Section 12 (a) of H. R. 3020, as originally passed by the House, contained four main,
separately numbered subdivisions describing various types of concerted activities which it
proscribed as unlawful. The first of these subdivisions related to the use of force, violence,
or threats thereof; the second, to picketing in the absence of a labor dispute with the
employer ; the third, to sympathy, jurisdictional, monopolistic, sit-down, illegal boycott,
and featherbedding strikes as well as recognition strikes by uncertified unions, strikes to
remedy practices for which the Act provides an administrative remedy, and strikes to
compel the employer to violate any law ; and the fourth and last subdivision, to certain
types of "conspiracy" or "collusion" between employers.
The Respondent rests its argument upon section 12 (a) (3) (C), the full language of
which was the following :
Sec. 12 (a) The following activities, when affecting commerce, shall be unlawful
concerted activities
(3) Calling, authorizing, engaging in, or assisting-
( * * * * * *
(C) any strike or other concerted interference with an employer's operations, an
object of which is (i) to compel an employer to recognize for collective bargaining
a representative not certified under section 9 as the representative of the employes,
or (ii) to remedy practices for which an administrative remedy is available under
this Act, or (iii) to compel an employer to violate any law or any regulation, order, or
direction pursuant to any law.
423784-57-vol. 117-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 (c) (1) and Section 7 of the Act, although section 12 (a) of the House bill and
its language were dropped from the Conference bill which became law. Here again,
examination of the passages in the legislative history to which the Respondent refers
reveals that they do not support the Respondent's contentions.
The Respondent's quotation from House Report No. 245 71 simply sets forth
the purpose of the House sponsors in submitting section 12 (a) (3) and, of course,
sheds no light on the significance of the later elimination of that provision from the
Act in its eventual form.
A second quotation is taken by the Respondent from a passage in the House
Conference Report No. 510 72 to support the Respondent's argument that resort
to the Board's representation procedures, rather than to strikes, was to be required
under the Conference bill in spite of the omission of Section 12 (a) of the original
House bill. But the language quoted by the Respondent in its brief was actually
a statement by the House conferees of the position taken by 1 of the 3 Board
members in an earlier case, and was set forth by the House conferees in a passage
of their report explaining why they consented to an elimination from the Conference
bill not of section 12 (a) of the original House bill but of some of the language
of Section 2 (3), by which the Board would have been required to treat unfair
labor practice strikers in the same manner as economic strikers rather than give
them the protection against replacement approved by the Supreme Court in the
Mackay Radio case 73 In substance, the House conferees merely expressed a hope-
certainly with no indication that it was to be construed as a direction-that, although
this feature of Section 2 (3) of the House bill had been deleted from the Con-
ference bill, the Board in the exercise of its continuing discretionary powers would
adopt the view once expressed by a minority member with respect to'unfair labor
practice strikers.
Still other quotations are submitted by the Respondent from the House Conference
Report and from an analysis of the Conference bill presented by Senator Taft to
the Senate,74 to support the Respondent's argument that it was the intention of
71 The language to which the Respondent refers deals with section 12 (a) (3) and is the
following :
Strikes and other concerted activities in lieu of using peaceful procedures for
settling disputes that the National Labor Relations Act provides are unjustifiable
on any grounds. Congress has provided elaborate machinery for handling disputes
over recognition, bargaining rights, and alleged unfair labor practices Those
who turn to striking instead of using the procedures that Congress has provided
certainly are not entitled to the immunity that they now enjoy under the Labor Act
and other laws. [House Report No 245, page 44.]
72 The full passage with emphasizing of the language quoted by the Respondent in its
brief is the following :
(C) The conference agreement does not contain the specific provisions of the House
bill dealing with the status of "unfair labor practice" strikers Since the different
treatment of unfair labor practice strikers and economic strikers is simply a practice
of the Board which the Board can change within the framework of the existing law,
it was thought by the House manageis that the Board should be given an opportunity
to change this practice itself rather than needlessly complicating the definition of
the term "employee "
In the National Silver Company case (71 NLRB 87) (1946), at least one member
of the Board thought that the Board's policy should be to so use its powers as to
encourage employees and their organizations to use the peaceful procedures under
the Act instead of resorting to the strike weapon. Such a policy would seem to be
more in accord with the stated purpose of the Act. [House Conference Report No.
510, at page 33 1
73 N L R B V. Mackay Radio & Telegraph Co , 304 U S 333.
74 As the Respondent points out, Senator Taft's analysis was in substance the same as
that presented by the House Conference Report Both noted that there were early de-
cisions of the Board "to the effect that the language of Section 7 protected concerted
activities regardless of their nature or objectives," but that later decisions of the courts
and the Board itself had started a withdrawal from this position in cases involving sit-
down strikes, mass picketing, strikes to compel violations of law, and strikes in breach
of contract (House Conference Report, at pp 38 and 39; 93 Daily Cong. Rec., 6600,
June 5, 1947 )
The quotations upon which the Respondent now primarily relies are found in the passage
immediately following this common foundation, in which the House conferees and Sena-
EKCO PRODUCTS COMPANY 195
Congress to incorporate the substance , although not the language , of section
12 (a) of the House bill in the Conference bill which became law. But the passages
from which these quotations have been taken state merely that the substance of
all of section 12 (a) (1) of the House bill and of some portions of other paragraphs
of section 12 (a) had already been adopted by the courts and the Board in their
decisions ; that, to this extent, the provisions proposed in section 12 (a) needed no
statutory enactment ; and that it might be unwise to attempt an enumeration of various
types of unprotected concerted activities lest it be regarded as a limitation upon the
Board 's power to find that other activities were also unprotected . These passages
do not even suggest that Congress intended to incorporate in the Conference bill
the substance of all the provisions of section 12 (a), nor, particularly , the provi-
sion of section 12 (a) (3 ) (C) which would generally have removed recognition
strikes from the protection of the Act. Indeed, that this was not the congressional
intent is clearly shown by the statements in Senate Report No . 105 and the House
Conference Report, which have already been set forth , to which the Respondent
tor Taft discussed and explained Section 7 of the Conference bill in almost identical
language. The basic passage from the House Conference Report was the following :
By reason of the foregoing, it was believed that the specific provisions in the House
bill excepting unfair labor practices, unlawful concerted activities, and violation of
collective bargaining agreements from the protection of section 7 were unnecessary.
Moreover, there was real concern that the inclusion of such a provision might have
a limiting effect and make improper conduct not specifically mentioned subject to
the protection of the Act.
In addition, other provisions of the conference agreement deal with this particular
problem in general terms. For example, in the declaration of policy to the amended
National Labor Relations Act adopted by the conference committee, it is stated in
the new paragraph dealing with improper practices of labor organizations, their
officers and members, that the "elimination of such practices is a necessary condi-
tion to the assurance of the rights herein guaranteed." This in and of itself
demonstrates a clear intention that these undesirable concerted activities are not
to have any protection under the Act, and to the extent that the Board in the past
has accorded protection to such activities, the conference agreement makes such
protection no longer possible. . . [House Conference Report at pages 38-39; see
also 93 Daily Cong Rec. 6600, June 5, 1947.7
Other quotations taken by the Respondent from the House Conference Report occur in
the following passages :
Under the new section 8 (b) of the Senate amendment, the following unfair labor
practices on the part of labor organizations and their agents were defined:
(1) To restrain or coerce employees in the exercise of rights guaranteed in section
7, or to restrain or coerce an employer in the selection of his representatives for col-
lective bargaining or the adjustment of grievances.
This provision of the Senate amendment in its general terms covered all of the
activities which were proscribed in section 12 (a) (1) of the House bill as unlawful
concerted activities and some of the activities which were proscribed in the other
paragraphs of section 12 (a). While these restraining and coercive activities did
not have the same treatment under the Senate amendment as under the correspond-
ing provisions of the House bill, participation in them as explained in the discussion
of section 7, is not a protected activity under the Act. . . . [Emphasis supplied.]
[House Conference Report No. 510, at p. 42 7
Many of the matters covered in section 12 of the House bill are also covered in
the conference agreement in different form, as has been pointed out above in the
discussion of section 7 and section 8 (b) (1) of the conference agreement. Under
existing principles of law developed by the Courts and recently applied by the Board,
employees who engage in violence, mass picketing, unfair labor practices, contract
violations, or other improper conduct, or who force the employer to violate the law,
do not have any immunity under the Act and are subject to discharge without right
of reinstatement. The right of the employer to discharge an employee for any such
reason is protected in specific terms in section 10 (c). Furthermore, under section
10 (k) of the conference agreement, the Board is given authority to apply to the
district courts for temporary injunctions restraining alleged unfair labor practices
temporarily pending the decision of the Board on the merits.
The provisions of section 12 treating "monopolistic strikes" as unlawful concerted
activities involved the matter of industry-wide bargaining, and this subject matter
has been omitted from the conference agreement. [House Conference Report No.
510, at page 59.1
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not refer, and which state bluntly that Congress did not intend to prohibit
or proscribe the primary strike for recognition by an uncertified union.
Upon his examination of the legislative history of the Act, therefore, as well
as upon the clear meaning of the language used in the Act with respect to these
problems, the Trial Examiner finds no support for the various grounds urged by
the Respondent for holding that the strike in the present case was not protected by
the Act. On the contrary, the legislative history states quite clearly that primary
recognition strikes by uncertified unions were intended by Congress to remain within
the protection of the Act.
Summary and Conclusion
In the foregoing discussion, the Trial Examiner has concluded that neither upon
their face nor in the light of their legislative history have the provisions of the present
Taft-Hartley Act raised such employee or employer rights, nor such a presumption
against possible exclusive representative status, nor such a public policy requiring
resort to the Board's representation procedures, as the Respondent claims were
violated by the strike in the present case. He has also concluded that the objective
known to the strikers-i. e., the recognition of the Mine Workers by the Respond-
ent-was not unlawful and, therefore, that the strike was not a strike to compel the
Respondent to commit an unlawful act. He has found no basis in the provisions of
the Act, either upon their face or in the light of their legislative history, for with-
holding the protection of the Act from employees who engage in a primary strike
for the recognition of an uncertified union-even when, as in the present case, it is
a strike for the recognition of a noncomplying union within a year after a valid
election in which the employees rejected representation by another union. In addi-
tion , he agrees with the General Counsel that, in view of the Mine Workers' offer to
prove its majority in a private election and the Respondent's rejection of this offer,
the Mine Workers and the striking employees did not infringe upon the rights of
the Respondent's employees freely to select their exclusive bargaining representative.
In short, the Trial Examiner has found no reason for holding that the strike in the
present case was not protected by Section 7 of the Act.
In conclusion, therefore, the Trial Examiner finds, in accordance with the General
Counsel's contention, that the participation of the Respondent's employees in the
strike in the present case was a concerted activity protected by Section 7 of the Act.
B. Interference, restraint, and coercion
1. The representatives, agents, or supervisors for whose conduct the
Respondent was responsible
The General Counsel submitted the testimony of a number of employees to sup-
port the allegation of the complaint that, just before the strike, Personnel Manager
Paul Wargo, Foreman James Cantor, Chief Guard Millard Christian, Chief Inspector
Paul McJessy, and Leadmen Kermit Eubanks, Peter Modock, and Edward Kish
warned employees not to go on strike and threatened them with loss of their jobs if
they did so. The details of this testimony and the extent to which it was contradicted
are discussed in the next section of this report.
It is undisputed, and the Trial Examiner finds, that Wargo and Foreman Cantor
had such managerial or supervisory authority that the Respondent is chargeable with
responsibility for any statement made by them and affecting the employees' exercise
of their rights to engage in organizational and concerted activities under the Act.
The parties are in disagreement, however, as to whether the Respondent should also
be held responsible for any such statements which may have been made by the chief
guard, the chief inspector, or the leadmen.
The Respondent argues that the chief guard, the chief inspector, and the leadmen
were not supervisors within the meaning of Section 2 (11) of the Act, and therefore
that it cannot be held responsible for their acts or statements. With respect to the
leadmen, it relies in part upon the Board's decision on September 13, 1950, in the
representation case, that the Respondent's leadmen were not supervisors and were
therefore to be included as employees in an appropriate bargaining unit.75 But the
General Counsel contends that the Respondent should be held responsible not only
for the prestrike statements of the chief guard and the chief inspector (who he
asserts are clearly supervisors), but also for the statements of the leadmen. Con-
cerning the leadmen, the General Counsel argues that the evidence shows that: (1)
75 Ekco Products Company (Sta-Brtte Division), 91 NLRB No. 36 (not reported in
printed volumes of Board Decisions and Orders).
EKCO PRODUCTS COMPANY 197
The Respondent increased the authority of leadmen after the 1950 representation
hearing and thus left no doubt as to their supervisory status in 1951; (2) the Re-
spondent held out leadmen to their employees as persons who were qualified to
inform the employees of the viewpoint of management; and (3) the Respondent
issued specific instructions to the leadmen, as well as to the foremen, to make the
statements to the employees which interfered with the employees' exercise of their
organizational rights under the Act.
Upon the evidence before him, the Trial Examiner believes it clear, and there-
fore finds, that Chief Guard Millard Christian and Chief Inspector Paul McJessy
were supervisors within the meaning of the Act. For Personnel Manager Wargo
testified that the chief guard not only arranged the shifts of the watchmen and
assigned work to the janitors and sweepers, but had authority to recommend rate
increases, which were normally followed. And Wargo also testified that the chief
inspector was responsible for the performance of the workers in the inspection de-
partment, which had no foreman; that the chief inspector made recommendations
directly to the plant superintendent concerning promotions, transfers, rate increases,
and disciplinary action, including discharge; and that these recommendations were
normally followed.
The Trial Examiner also finds that the Respondent was responsible for statements
by the leadmen to the employees before the strike, but for a different reason. The
evidence shows no material change in the authority or the functions of the leadmen
after the Board's decision in the representation case that they were not supervisors.
Nor is the evidence given by various employees that they regarded their leadmen as
supervisors, sufficient to support the General Counsel's argument that the Re-
spondent was responsible for this impression and, therefore, for their conduct affect-
ing the employees' exercise of their rights of self-organization. The Respondent's
responsibility rests, instead, upon what the Trial Examiner regards as credible
evidence that the Respondent, through Superintendent Jason, instructed them to
make these statements in an effort to prevent the strike or minimize its effect.
The basis for this conclusion is presented by the testimony of Cecil Beatty, a fore-
man at the time of the strike, whom the Respondent subsequently discharged.
Beatty testified that, in the latter part of the week preceding the strike, Superintendent
Jason called a meeting in his office where he spoke to Beatty, Personnel Manager
Wargo, Foremen James Cantor and Edward Bossick, Chief Guard Millard Christian,
Chief Inspector Paul McJessy, and Leadmen Kermit Eubanks, William Brown,
George Lackney, and Edward Kish; that Jason told these men that there had been
rumors of a strike, that he thought it was going to take place the following Monday,
and that they should "circulate around through the departments" the story that "there
would be a chance of some [of the strikers'] losing their jobs . . . and also a great
possibility of the plant moving out if they [the employees] did strike," (although
Jason assured the group that, as far as he knew, the Respondent had no intention of
moving the plant); and that, following the meeting, Beatty relayed these instructions
to Leadman Peter Modock who had not been present at the meeting.
Beatty's testimony that a meeting of foremen and leadmen was held just before
the strike is supported by the testimony of employees Helen Sikora, Margaret
Bamfield, and Hettie Mason. Each of these employees testified, in substance, that
on Friday afternoon, August 10, the last working day before the strike, they saw
.the foremen and the leadmen walk from the working area of the plant toward the
cafeteria and the superintendent's office at the front of the building and that, upon
their return later in the afternoon, Leadman Kermit Eubanks made the various
statements concerning the coming strike and its likely consequences, which are dis-
cussed more fully in the next section of this report. In addition, Sikora testified
that, upon meeting Leadman Peter Modock that night, she asked him whether it
was true that they would lose their jobs if they did not cross the picket line, and
Modock replied, "'Yes, that's what the big shots' had told them upstairs."
The Trial Examiner credits Beatty's testimony concerning Jason's meeting with
Wargo, the foremen, and the leadmen just before the strike, in spite of Cantor's
and Superintendent Jason's denials that there had been any such meeting preceding
the strike or that, at any meeting, Jason had instructed the foremen and the leadmen
that they should circulate rumors among the employees that there was a chance
that the employees might lose their jobs or that the plant might be moved. Although
Wargo testified at the request of both the General Counsel and the Respondent, he
was not asked about any such meeting and none of the other persons named by
Beatty as having attended the meeting was called as a witness.
In sum, the Trial Examiner concludes that: (1) The Respondent is responsible for
any statements which -Personnel Manager Wargo may have made to employees
concerning their organizational activities; (2) Foreman James Cantor, Chief Guard
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Millard Christian , and Chief Inspector Paul McJessy were supervisors within the
meaning of the Act, and the Respondent is therefore responsible for any statements
which may have been made by these men to employees concerning their organiza-
tional activities ; and (3 ) in view of Superintendent Jason's instructions to the
leadmen, the Respondent is also responsible for any statements made to the
employees by Leadmen Eubanks, Modock, and Kish , in which these leadmen
warned the employees that, if they struck, they might lose their jobs or that the
Respondent might move its plant.
2. Prestrike statements in violation of the Act
The testimony given by employees as to prestrike warnings and threats of discharge
covered I or more statements allegedly made by each of the 7 men whose status we
have just considered . Most of these statements were attributed to Foreman Cantor
who denied having made any of them except one, as to which he was not asked to
testify. In addition , the employees testified concerning what the General Counsel
contends were 2 such statements made by Leadman Eubanks , and 1 each by
Personnel Manager Wargo, Chief Guard Christian, Chief Inspector McJessy, and
Leadmen Modock and Kish. Wargo denied having made the statement with which
he was charged . But neither the chief guard , the chief inspector , nor any of the
three leadmen testified and the testimony concerning the statements allegedly made
by them is , therefore , uncontradicted.
The General Counsel's contention that Personnel Manager Wargo warned
employees not to go on strike and threatened them with discharge if they did so is
based solely upon the testimony of employee Ann Vasko. Vasko testified that:
During the week preceding the strike , she heard employees Carrie Barnett, Helen
Holub, Marion Oliver , and Mary Trenner talking about the possibility of a strike;
on Friday, August 10, these girls stopped and talked to Wargo in the plant; the girls
said something to Wargo but Vasko did not hear what they said; Wargo then said
(according to Vasko's paraphrase ): "If we didn 't report to work , we would all lose
our jobs." Wargo, in his testimony, denied having made any such remark.
In his lengthy testimony concerning the numerous factual details about which he
was asked , Wargo appeared to be a candid and generally reliable witness , under-
standably subject to some apparent errors in a comparatively few details and a
frankly admitted inability to recall other specific details. The Trial Examiner
accordingly credits Wargo's denial of Vasko's testimony . Moreover , even if
Vasko's testimony were credited , it would present only a portion of Wargo's conver-
sation with the other employees , none of whom testified as to the incident . Conse-
quently, the Trial Examiner not only credits Wargo's denial of Vasko's testimony,
but also finds that even if credited, her testimony would furnish no reliable basis
for the finding urged by the General Counsel that Wargo threatened employees with
discharge if they remained away from work because of the strike.
In another case, the Trial Examiner is also of the opinion that the testimony of
employee Millard Moore cannot be regarded as reliable support for the General
Counsel's contention that Foreman Cantor in substance threatened or warned Moore
that employees would be discharged if they engaged in the strike. Moore testified
(but Cantor denied ) that, in the week before the strike, Cantor told Moore, "What
is going to happen, [is that] the company is just going to send out letters and fellows.
that don't come back to work is going to automatically lose their jobs. . . To go
further than this, the company will probably move clean out of Byesville."
Upon consideration of all the evidence in the case , the Trial Examiner believes it
extremely unlikely that Cantor could have made such a remark before the strike
began . For, as the Trial Examiner hereinafter finds, it seems clear that the
Respondent did not consider sending letters to the strikers until the following
Wednesday , August 15. Whether Moore was confused in his testimony as to the
timing of some remark actually made by Cantor to him or whether in fact such
a remark was never made by Cantor to Moore, Moore's testimony appears to the
Trial Examiner to be too unreliable a basis to make a finding . The Trial Examiner
therefore credits Cantor's denial that, in speaking to Moore before the strike, he
made any of the remarks attributed to him by Moore.
There remains for consideration the evidence concerning the other prestrike
statements allegedly made by Foreman Cantor, Chief Guard Christian, Inspector
McJessy, and Leadmen Eubanks, Modock, and Kish, acting as the Respondent's
supervisors or agents . Upon this evidence, the Trial Examiner makes the following
findings:
(1) On Friday, August 10, 1951, Leadman Kermit Eubanks told employees
Margaret Bamfield, Hettie Mason, and Helen Sikora that they had better come to
EKCO PRODUCTS COMPANY 199
work on the following Monday or they wouldn't have any jobs, that he had a new
car, and if anyone got in his way that morning, he would run over them.
(2) A week or so before the strike, Leadman Eubanks told employee Mildred
Slentz, "You better not go out on strike, for, Mildred, you won't have no job."
(3) On Friday, August 10, Chief Guard Millard Christian asked employee
James Shedlock whether he had been approached "about this union"; upon Shedlock's
affirmative answer, Christian remarked, "This is going to be a wildcat strike; better
watch what you are doing; somebody is going to lose their jobs, like they did at
Kingston-Connally, Cambridge . you come out to work Monday . there is
work for you"; Shedlock then said, "I'm not going through the picket line"; and
Christian replied, "You needn't be afraid, you won't lose your job."
(4) As has already been found, Leadman Peter Modock told employee Helen
Sikora on Friday, August 10, that the "big shots" had said that the employees
would lose their jobs if they did not cross the picket line.
(5) On Friday, August 10, before quitting time, Leadman Edward Kish told
employee Chester Wisenberger that the men who went on strike would be fired on
a 3-day notice.
(6) Before the strike, Chief Inspector Paul McJessy told employee Joe Merva
that it probably would be a foolish thing to go on strike and the rumor was that
the strikers would all lose their jobs.
(7) A week before the strike, Foreman James Cantor told employee Joe Merva
that he had heard from Alexander Dewey, the Respondent's assistant vice president
in charge of industrial relations, that employees would lose their jobs if they
went on strike 76
(8) The week before the strike, Foreman Cantor told employee Andrew Hronec
not to "go out or be affiliated with the union" or he might lose his job.
(9) On Friday, August 10, Foreman Cantor asked employee George Haschak
whether he was coming to work on Monday; Haschak said, "No"; and Cantor
then said, "When you come in, go on buffing arms, but if you don't come in, you
don't have to worry about buffing arms any more."
(10) A week before the strike, Foreman Cantor told employee Louis Stahovec that
if the men went out on strike they would lose their jobs.
(11) Three days before the strike, Foreman Cantor, in answer to employee Charles
Callihan's question as to what would happen if the men struck and "we didn't do
any good," Cantor told Callihan that he would probably lose his job.
(12) On Friday, August 10, Foreman Cantor told employee Arthur Hannum that
(as Hannum paraphrased it): "It would probably be too bad for the guys if they
went out on strike, because the company just wouldn't have a union."
(13) Just before the strike, Foreman Cantor told employee Mike Voytko that (as
Voytko put it in his testimony) : "If we would sign the union card or come out on
strike, we would lose our job."
The Trial Examiner finds that, by the aforesaid statements made by its super-
visors or agents, the Respondent warned its employees not to strike, threatened
them with discharge if they did so, and, in violation of Section 8 (a) (1) of the
Act, thereby interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. Discrimination
1. Preliminary findings as to the Respondent's layoff and recall practices, and
the insurance and profit-sharing rights of its employees
Consideration of the instant charges of discrimination and the evidence with
respect thereto requires a preliminary understanding of the employee status of the
persons involved, and their insurance and profit-sharing rights as employees of the
Respondent. As has already been noted, the complaint as amended alleges that the
Respondent discriminatorily discharged and terminated the employment of 130
persons, and has also discriminatorily refused to reinstate them or to hire them
as new employees. Although most of these people were on the Respondent's active
payroll at the time the strike began, others were on "lay-off" status. With respect
to the alleged discharge or termination of employment of those who were on the
active payroll, the General Counsel contends, in substance, that the Respondent dis-
criminatorily discharged them for persisting in the strike beyond a "dead-line" set
by the Respondent in a letter sent to them during the first days of the strike, as
76 This finding is based upon the uncontradicted testimony of Merva. Cantor was not
asked, and so did not testify, whether he made the statement in question, although he
specifically denied having made any of the other statements which are the subjects of the
instant findings.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears not only from the language of the letter itself , but also from the Respondent's
action in uniformly rejecting their applications for reinstatement , and in terminat-
ing their group insurance and profit -sharing rights. With respect to the alleged
termination of the employment of those of the persons who were on layoff status,
the General Counsel contends , in substance , that , as a result of their failure to report
for work during the strike in response to a recall letter sent to them by the Respond-
ent, each of them was discriminatorily removed from the Respondent 's layoff list
and thus refused such further employment by the Respondent as he would other-
wise have received in accordance with the Respondent 's established layoff and recall
practices.
The Respondent 's Byesville employees are hired by Personnel Manager Paul
Wargo upon determinations of need and requisitions made by Plant Superintendent
Jerry Jason. Comparatively few jobs are skilled in the sense that they require any
considerable degree of training . The other jobs are unskilled , require but little time
for the normal worker to learn and adapt himself to the requirements , and permit
considerable interchange of employees between jobs.77
Since 1949 , when the Respondent opened its Byesville plant, it has followed the
layoff and recall practice in existence at its other plants. Under this practice, the
persons to be laid off are determined within general job groupings in which the
workers are interchangeable , in the inverse order of the employees ' length of service
with the Respondent . The laid-off employees are then placed on a layoff list in the
order of their seniority and remain on the list until they are recalled . When the
Respondent again adds to its working staff, persons on the layoff list are recalled
before any new employees are hired. Recall is by letter, on the basis of seniority
within broad , interchangeable job groups . Upon recall and resuming his work, the
employee retains his original seniority . In accordance with the Respondent 's state-
ment regularly made in its recall letters , the person recalled is removed from the layoff
list if he fails to report and resume work on the date set by the Respondent.
Under a group insurance plan, the Respondent furnishes and pays the full premium
for life, accident , health, and hospital insurance covering each of its employees.
With respect to termination of the coverage of each employee , the policy makes
the following provision:
The insurance of any Employee under a Group policy shall cease automatically
upon the occurrence of any of the following events:
(a) the termination of the policy, (b) the cessation of premium payments
on account of the Employee 's insurance thereunder , (c) the termination of his
employment in the classes of employees insured thereunder.
Note: In case of cessation of active work, the Employee should consult the
Employer to see what arrangement , if any, can be made to continue the
insurance.
In addition to this insurance covering each employee, he is also given the option
of obtaining , but must himself pay for, hospitalization insurance for his dependents.
This optional policy covering dependents is issued by the same insurance company
in conjunction with the group policy furnished by the Respondent for each of the
employees and provides that its coverage shall "cease automatically" upon "the
termination of the Employee's insurance under said Group policy."
The Respondent also issues profit-sharing certificates to those employees.with 2
or more years ' service with the Company . Contributions to the profit-sharing fund
are made by the Respondent and the employee may further increase his interest in
the fund, but is not required to do so, by making additional contributions. The
profit-sharing certificate issued to the employee provides:
Each Participant shall cease to be a party hereto and shall cease to participate
herein except for the purpose of receiving distributions under Article XIII
hereof, upon whichever of the following events shall first occur.
(a) Retirement, or
(b) Termination of employment by reason of resignation or dismissal, or
(c) Death.
In the following discussion of the evidence , the Trial Examiner will refer to those
persons named in the amended complaint who were on the active payroll of the
Respondent at the beginning of the strike , as the "active employees," and to those
who were then on layoff status, as the "laid -off" employees . As will be seen, a
number of factors in varying combinations affect the factual findings, conclusions,
77 These findings , as well as the other findings with respect to the Respondent's layoff
practice and its insurance and profit -sharing plans , are made principally upon the testi-
mony of Personnel Manager Paul Wargo
EKCO PRODUCTS COMPANY 201
and recommendations which the Trial Examiner makes. The groupings of employees
dictated by these considerations, with a summary of the principal findings, conclu-
sions, and recommendations common to each group, are set forth in Appendixes B
through E. In order to provide a convenient general summary and basis for reference,
the Trial Examiner has also listed in Appendix A all the employees named in the
amended complaint, with his findings as to their employee status at the beginning
of the strike and the dates of their respective initial applications for reinstatement
(if any), and an index to the appendix in which the principal findings, conclusions,
and recommendations relating to each of them may be found.
2. The Respondent's acts with respect to the employees named in the
amended complaint
a. The Respondent's acts relating to its removal of the active employees
from the payroll
With only 7 exceptions, none of the 110 active employees named in the amended
complaint (see Appendix A) worked for the Respondent after Friday, August 10,
1951 (the last working day before the strike began), until, beginning on January 28,
1953, some of them were rehired as new employees (see Appendixes B-2, B-3,
C-2, and C-3). The exceptions were Mary Trenner and Charley Gresh (who
worked only on August 13 and not thereafter); Andrew Gress (who worked only
on August 15 and not thereafter); Hubert Bayly and Joseph Merva (who worked
only on August 17 and not thereafter); Marjorie Holdren (who worked only on
August 20 and not thereafter until she was hired as a new employee on March 17,
1953); and Leander Ray (who worked on August 21 and not thereafter).
On August 16, 1951, the Respondent sent the following registered letter to all
the active employees named in the amended complaint, except Mary Trenner, Ann
E. Jones, Andrew C. Shedlock, and Andrew Gress:
You have not reported for work since August 10, 1951.
We shall await your return to work on the first shift on Monday, August 20,
1951, at 7:00 A.M.
Your failure to report for work at that time will be taken to mean that you
have quit your job and we will therefore replace you.
On August 16, 1951, the Respondent also sent an identical letter to Mary Trenner,
except that it referred to her having failed to report for work since August 13, 1951.
On August 21, 1951, the Respondent sent the following letter to Ann E. Jones
and Andrew Shedlock, to whom it had inadvertently omitted sending the letter of
August 16:
Since you have not reported for work since Friday, August 10th, we assumed
that you had quit and we are therefore replacing you.
On August 21, 1951, the Respondent wrote the following letter to Andrew Gress,
to whom it had not sent the letter of August 16, and also to Hubert Bayly and
Joseph Merva:
You have worked only one day since August 10th. and we are therefore
removing you from the payroll because of poor attendance.
On or about August 22, 1951, the Respondent made notations on its personnel
records for all the active employees named in the amended complaint, in a column
with the printed caption "Cause for leaving." In the cases of Gress, Bayly, and
Merva, the notation was "8-21-51-Poor attendance." For Leander Ray, the
entry was "8-22-51-Voluntary quit"; and for Robert E. Blancett, it was "8-20-51-
Another job." For all the other active employees named in the amended complaint,
the entry was "8-20-51-Quit. Reason unknown," although Personnel Manager
Wargo testified that none of the active employees, except Ray and Blancett, had
informed the Respondent that he or she was quitting.
As to Ray, Wargo testified that: Ray told him on August 18 that he had not
been at work because he was fixing a broken gasline at his home; Wargo agreed he
might report for work later; and Ray, after returning to the plant and working on
August 21, telephoned Wargo that night and said that he was afraid to work, that
he was through, and that Wargo should "pull his time card from the rack." Ray
testified that he told Wargo on August 21 that "he might just as well remove my
card until the trouble was over." [Emphasis supplied.] The Trial Examiner
credits Ray's testimony as furnishing the full substance of his statement to Wargo
on August 21, and finds that Ray did not inform Wargo that he was quitting, but
stated simply that he would not report to work until the strike was over.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Robert Blancett , Wargo testified that Blancett telephoned Wargo on either
August 17 or 20 that he had another job and was quitting. Blancett denied that he
so informed Wargo, but did testify that on August 21, 1951, he began working for
another employer by whom he was employed steadily until May 1953, except for a
strike period in 1952. The Trial Examiner credits Wargo's testimony and finds that
Blancett told him on August 17 or 20, 1951, that Blancett had another job and
was quitting.
In addition to making the notations of August 20 on the employment records
of the active employees named in the amended complaint, Personnel Manager Wargo
at the same time terminated their group insurance coverage and notified the
Respondent's home office in Chicago that the profit-sharing certificates held by
20 of these employees should be terminated. As a result, on September 17, 1951,
the Respondent sent these people notices of termination of their interests in the
profit-sharing fund, together with checks covering the balances in their accounts.
In the latter part of September and the beginning of October, the Respondent also
wrote letters to these employees, requesting them to return their locker keys.
b. The Respondent's acts relating to its removal of the laid-off employees from
the layoff list
Five of the twenty laid-off employees named in the amended complaint (i. e.,
James Dolan, Jack Hannon, Jr., John Kusma, Jr., Joseph Pucky, and Orval Tipton)
had been sent recall letters before August 13, 1951, the day the strike began, and,
before that date, 4 of them had arranged with the Respondent to return to work
on August 13 and I had agreed to return on August 15 78 However, none of them
reported on the agreed date, nor communicated to the Respondent any reason for
his failure to do so. The Respondent, thereupon, on August 16 or 17, sent each
of them another letter, referring to the employee's failure to report on the agreed
date and notifying him, in substance, that if he failed to report before August
22 (in the case of Tipton) or before August 20 (in the cases of the other four),
his name would be removed from the layoff list. On or about August 24, the
Respondent, still having had no report from any of these five men, removed them
from the layoff list and marked their personnel records "Never reported for work."
In the meantime, on August 20, 1951, the Respondent sent the other 15 laid-off
employees who are named in the amended complaint 79 the following recall letter
which was in the form regularly used by the Respondent:
We are now in a position to rehire you to work on the day shift. Will
you please call at the Personnel Office at your earliest convenience so that
we might discuss your return to work.
If I do not hear from you before Friday, August 24, 1951, I will assume
that you cannot or do not wish to return. If this should be the case, your
name will be removed from the layoff list.
None of these 15 employees reported for work on or before August 24. Five
of them (Sarah Barnes , Doris L. Chippi, Mary Gall, Margaret Geordt, and Maxine
Watson) did not even communicate with the Respondent on or before August 24;
and two of them (Shirley Barnett and Florence Champlin) notified the Respondent
on or before August 24 that they would not return but gave no indication that
it was because of the strike. Thus Shirley Barnett telephoned Personnel Manager
Wargo on August 24 and said that she was in the middle of remodeling her
kitchen, which would take about 2 or 3 weeks. Wargo then told her that her
name would be taken off the layoff list, and Florence Champlin informed Wargo
by letter of August 20 that she had been sick and was unable to report by the
deadline given to her in the Respondent's letter but expected to be able to report
on the following Monday.
Each of the remaining 8 of the 15 laid-off employees who were sent recall notices
on August 20 (i. e., Thelma Adams, George Brier, Dorothy Church, Dorothy Dol-
ney, Paul Golmitz, Alta M. Heady, Maxine Thompson, and Donald Lee Vincent)
informed the Respondent on or before August 24 that they would not report
during the strike because of the presence of the picket line, because of fear of
violence, or because of "the labor trouble." 80 Brief references to the evidence will
indicate the bases for this finding. Thus, according to her uncontradicted testimony,
Thelma Adams told Frank Leyshon, the Respondent's attorney, that she did not want
78 See Appendix E-1.
70 See Appendixes D-1, D-2, D-3, and E-2
80 See Appendixes D-1, D-2, and D-3.
EKCO PRODUCTS COMPANY 203
to cross the picket line, whereupon Leyshon agreed to inform Personnel Manager
Wargo. It also appears from both his and Wargo's testimony that George Brier
told Wargo on August 24 that he did not want to come to work because he feared
violence. According to Wargo's testimony, Dorothy Church, too, informed him by
letter dated August 23 that she was afraid to return to work but would be available
"after the strike, with or without a union ." Although Wargo testified that Dorothy
Dolney told him on August 24 merely that she was undecided as to whether
she would return to work and would let him know on August 27, the Trial Examiner
credits Dolney's testimony that she told Wargo that she was afraid and would
not cross the picket line, whereupon Wargo told her to let him know if she changed
her mind. Paul Golmitz testified, and the Trial Examiner credits his testimony despite
Foreman James Cantor's denial, that, during a visit made to his home by Cantor
on or about August 24, Cantor asked him if he were coming back to work and
Golmitz said he would not cross the picket line.81 Alta M. Heady informed Wargo
by letter dated August 20 that "I would like to have work but do not care to
return while there is labor trouble at the plant. If you can use me after the
trouble is settled, please notify me." Although Wargo testified that Maxine Thomp-
son telephoned him on August 21 to say merely that she was undecided about re-
porting for work and that he did not recall her giving "any particular reason," nor
her referring to the strike or the picketing, the Trial Examiner credits Thompson's
positive testimony that she told Wargo that she would like to be back at work
but that she did not think that she "should go through the pickets." Finally, the
Trial Examiner credits Donald Lee Vincent's testimony that Foreman Cantor visited
him a week after he received his recall letter from the 'Respondent and that, to
Cantor's question as to whether he wanted to come back to work, he replied that
he did not want to cross the picket line.82
Within a few days after August 24, 1951, the Respondent, without further notice,
removed from its layoff list all 15 of the laid-off employees to whom it had sent
the recall letter of August 20. (See Appendixes D-1, D-2, D-3, and E-2.)
c. The Respondent's rejection of applications for reinstatement
Evidence was received concerning not only individual applications for reinstate-
ment made after August 20, 1951, by active and laid-off employees named in the
amended complaint, but .also an asserted "mass application" made on behalf of most
of these employees by the Steelworkers in its letter of November 15, 1951, which
has been quoted in section III, A, 1 of this report.
A striking labor organization certainly has the implied, actual authority on behalf
of its striking members and adherents to call off its strike and to make an effective
offer to the employer that the strikers will return to work. But, in the opinion of the
Trial Examiner, such authority cannot be implied in favor of a labor organization
which enters upon the scene to protect the interests of employees who have struck
under the leadership and in support of another labor organization. In such case, as
in the case of the Steelworkers in the present situation, the authority must be specific
and commit the erstwhile striking employees to return to their jobs if the offer is
accepted by the employer. Furthermore, in the opinion of the Trial Examiner, such
specific authority must be brought to the attention of the employer.
The Steelworkers based its authority to make the "mass application" of November
15, 1951, which was received by the Respondent on the following day, upon undated
Steelworkers membership applications and bargaining authorizations, which many
of the persons named in the complaint and in the "mass application" testified they
had signed. Although these cards had apparently been signed in the course of the
Steelworkers' renewal of its organizational drive beginning in October 1951, when
the Steelworkers sought to procure reinstatement of the strikers, there was no evi-
dence on the face of the cards, or otherwise, that each of the persons named in the
81 Cantor denied having talked with Paul Golmitz since August 13, 1951. He testified
that, during the strike, he did visit Golmitz' home to see Andy Golmitz, Jr., who was
Paul's brother ; that Andy Golmitz, Jr., who had also been employed by the Respondent,
asked him about the possibility of returning to his drophammer job; that he (Cantor)
told Andy Golmitz, Jr., to see Wargo ; and that Paul Golmitz was not present during this
visit. Andy Golmitz, Jr., however, denied that Cantor visited him at any time at Golmitz'
home.
82 Cantor denied only that he visited Vincent at his home during the strike, although
he admitted talking with Vincent when he (Cantor) visited his mother at Lore City in
the strike period. Cantor did not testify concerning the substance of this admitted
conversation with Vincent in Lore City.
204 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
"mass application," who may also have subscribed a Steelworkers card, intended to
commit himself definitely to return to the Respondent's employ nor to authorize the
Steelworkers to make such a binding offer to the Respondent on his behalf. The
Trial Examiner finds, therefore, that the "mass application" made by the Steel-
workers on November 16, 1951 (the date of the Respondent's receipt of the letter)
was ineffective.83
The evidence, however, shows that many individual applications for reinstatement
were made and rejected by the Respondent. In Appendix A the Trial Examiner
sets forth his findings concerning the dates of initial applications (if any) made
by persons named in the complaint as amended. Most of these findings are based
upon the uncontradicted testimony of Personnel Manager Paul Wargo and the sub-
stance of these findings is apparently not in dispute. In the cases of 12 of the
persons, however, it is necessary to indicate the basis of the findings in view of
various problems raised by the evidence or by the positions taken by the parties
with reference thereto.
Although the complaint, as originally served upon the Respondent and also as
amended during the course of the hearing, asserts merely that Shirley Barnett made
application for reinstatement on November 16, 1951 (presumably through her inclu-
sion in the Steelworkers' "mass application" of that date, which the Trial Examiner
has ruled to have been ineffective), Personnel Manager Wargo testified that she
applied for, and was refused, employment on November 27, 1951. In all but one
of the other cases (that of Charley Gresh) in which Wargo's testimony supplied a
date of application not given in the original complaint, the General Counsel re-
quested, and the Trial Examiner permitted, an amendment of the complaint adding the
additional date thus given by Wargo. In spite of the General Counsel's failure to
request such an amendment in the case of Shirley Barnett, the Trial Examiner finds,
upon the testimony of Wargo, that Shirley Barnett applied for, and was refused,
employment on November 27, 1951.84
The complaint alleges an application by Hubert Bayly on August 23, 1951, but
Personnel Manager Wargo testified, and the Trial Examiner credits his testimony
and finds, that Bayly made no application. Bayly testified that, on a visit to Wargo
within a few days after August 21, he asked Wargo "how our chances were of
getting back to work when you were settled." He further testified that he would
not have gone to work while the existing picket line was at the plant. Even assuming
the substance of Bayly's testimony, the Trial Examiner would not hold this to be such
an application for immediate reinstatement as would affect the decision of any of
the issues in the case.
George Brier testified that he applied to Wargo for a job in the first week in Sep-
tember 1951, Wargo then rejected his application, and a few weeks later Brier again
talked to Wargo about unemployment compensation. Wargo testified that he did
not remember a visit from Brier in the first week in September, but that Brier did see
him in the middle of September and asked some questions about unemployment
compensation. The complaint as amended alleges that Brier made application on
September 14, 1951. On this state of the record, the Trial Examiner believes, in
spite of Wargo's failure to recall it, that Brier made application for employment on
or before September 14, 1951, as alleged in the complaint as amended.
Wargo testified that, according to his recollection, Florence Champlin's first ap-
plication for a job following receipt of a recall notice from the Respondent on August
17, 1951, was on October 29, 1951, at which time he told Champlin there was
nothing available. The Trial Examiner finds upon the positive testimony of Cham-
plin, however, that she also applied for, and was refused, employment by Wargo
on Monday, August 27, 1951.85
Personnel Manager Wargo testified that the first time after the beginning of the
strike that Grover H. Farrar got in touch with Wargo was in February or March 1952,
87 Upon this basis, the Trial Examiner refused during the hearing to admit in evidence
the various Steelworkers cards signed by persons named in the complaint, for the purpose
of showing the Steelworkers' authority to make the "mass application" on their behalf,
but intead limited the admission of these cards to their relevance to the "fronting" issue,
1. e , the good faith of the Steelworkers in actually seeking to represent the employees for
general bargaining purposes rather than merely to "front" for the Mine Workers
84 As will later appear, this finding will be of no ultimate importance if the Board should
adopt the Trial Examiner's full appraisal of the case so far as it relates to Shirley Barnett,
because he finds hereinafter that the Respondent did not discriminate against her. (See
Appendix E-2 )
85 As in the case of Shirley Barnett, the finding as to Champlin is unimportant if the
Board agrees with the Trial Examiner's ultimate finding that the Respondent did not
discriminate against Champlin. (See Appendix E-2 )
EKCO PRODUCTS COMPANY 205
and that Farrar then asked for employment and was told by Wargo that the Respond-
ent was not hiring at that time. The Trial Examiner credits this testimony and
Wargo's square denial of Farrar's testimony that Farrar applied for reinstatement
on September 15, 1951, and accordingly finds that the earliest time at which Farrar
applied for, and was refused, reinstatement was in February or March 1952.
Both Margaret Geordt and Wargo testified concerning a visit made by her to
Wargo on September 4 or 5, 1951, after her receipt of a recall letter from the Re-
spondent. Geordt testified that Wargo told her that there was no job for her; that
she then asked Wargo for a job for her husband; that Wargo gave her an application;
and that, upon her husband's filing the application, he was called by the Respondent
to go to work but did not do so because he took another iob. Wargo testified that
Geordt told him that she did not want a job for herself but that her husband wanted
employment, whereupon he offered her husband a job which the husband rejected.
The Trial Examiner credits Wargo's testimony and finds not only that Geordt made
no application for herself on September 4 or 5, 1951, but that, so far as the record
shows, Geordt made no application at all after the beginning of the strike.
Charley Gresh testified on direct examination that he made telephone calls to
Personnel Manager Wargo on August 21 and September 5, 1951, in which he asked
Wargo about going back to work and that Wargo refused to take him back, but on
cross-examination, Gresh testified that, in fact, the telephone calls were made by
friends of his, although in his presence. Wargo testified that the only application
made by Gresh was made by Gresh in person at the plant on September 5, when he
told Gresh there was nothing available. The Trial Examiner credits Wargo's testi-
mony and finds that the only application made by Gresh was on September 5, 1951.
Dorothy Koshock and Wargo agreed in their testimony that Koshock applied for
reinstatement on November 23, 1951, and the Trial Examiner so finds. Koshock
further testified that she also applied for reinstatement on August 24, 1951, but that
Wargo told her she had been replaced. Wargo, however, testified that Koshock
told him on August 24 that, while she was interested in her job, she did not want
to cross the picket line. The Trial Examiner credits Wargo's testimony and finds
that Koshock's statement to him on August 24, 1951, was not such an application for
immediate reinstatement as would affect any of the issues in the case.
The evidence presents another conflict as to whether Joseph Lycyak applied to
Wargo for reinstatement on August 27, 1951. Lycyak and Emil Kochera testified
that they made applications together on that date and were refused jobs by Wargo.
Wargo admitted that Kochera did apply on August 27, but testified that Lycyak
made no application, simply saying that he had been afraid to come through the
picket line because he had been told that his home would be dynamited, and that
he and his family would be sent to "the old country." Wargo did testify, however,
as did also Lycyak, that Lycyak applied for and was refused reinstatement on
September 4, 1951. In accordance with Wargo's testimony the Trial Examiner
finds that the earliest application made by Lycyak for reinstatement was on Septem-
ber 4, 1951.
Wargo testified that the earliest application made by Joseph Maxin was on
September 4, 1951. Maxin, after testifying on direct examination that he first
applied on September 5, then stated on redirect examination that it was August 21,
1951. In accordance with Wargo's testimony, the Trial Examiner finds that Maxin's
earliest application was made on September 4, 1951.
John Petruna testified, and Joseph Maxin corroborated his testimony, that on
September 25, 1951, they visited Wargo together and both applied for, but were
refused, reinstatement. Wargo agreed that Maxin applied on September 25, but
testified that he could not remember Petruna's having applied on that date, nor,
for matter, until November 23, 1951. The Trial Examiner finds,- in accordance
with Petruna's and Maxin's positive testimony, that Petruna applied for, and was
refused, reinstatement on September 25, 1951.
Andrew Shedlock and Wargo agreed in their testimony that Shedlock applied for,
and was refused, reinstatement by Wargo in October 1951. Shedlock fixed the date
as October 29, and Wargo, as October 21, 1951. The Trial Examiner finds that
the Respondent rejected Shedlock's application on October 21, 1951. Shedlock
and Wargo further agreed in their testimony that Shedlock came to see Wargo at
the plant on August 23 or 24, 1951, when, as the Trial Examiner has found, the
picket line was still at the plant. This was several days after the Respondent had
sent a letter to Shedlock informing him that, because he had not reported for work
since August 10, it "assumed" he had quit, and that it was therefore replacing him.
According to Wargo, Shedlock made no application to return to work on August
24, but told him merely that he had not worked because he feared violence and
did not want*to cross the picket line. According to Shedlock, he asked Wargo on
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 23 whether he was discharged, and Wargo said he had quit, whereupon
Shedlock asked for his job and Wargo told him that he was no better than "the
rest of them" who had gone through the picket line and that "there was no job"
for Shedlock "right now." Although Shedlock thus testified that he asked for his
job, he admitted that he would not have crossed the existing picket line. Upon this
state of the record, the Trial Examiner cannot find that Shedlock made an applica-
tion for immediate reinstatement on August 23 or 24, 1951.
d. The reasons generally given by the Respondent to employees named in the
amended complaint for rejecting their applications for reinstatement
As Personnel Manager Wargo testified, the Respondent filled out its working staff
after August 20, 1951, first by recalling laid-off employees and then, having exhausted
its male layoff list on September 4, 1951, and its female layoff list on October 15,
1951, by hiring new employees until by November 19, 1951, it had again reached
a full working complement.
As summarized in Appendix A, it has been found that the Respondent rejected
applications made before November 19, 1951, by 15 of the active male employees
named in the amended complaint.86 In the cases of all of them except John Petruna,
these findings, that such applications were made on the dates given, are based upon
Personnel Manager Wargo's testimony. In testifying as to two of these applications
(those of Robert Blancett and Leander Ray), Wargo stated in effect that, because
they had voluntarily announced that they were quitting,87 he told Blancett in the
last week in October 1951 that "we had nothing available for him," and Ray, on
September 5, 1951, that "I didn't have any requisitions for the job he had been on."
In the case of Donald Spiker's application on September 4, 1951, Wargo testified
that he told Spiker that "I had no requisition and no work for him," relying upon the
fact that, at his request, Spiker, a shaper hand, had been reclassified as a toolmaker
"B," as of August 13, 1951, but, because of the intervention of the strike, had
never worked in the toolmaker classification, and also upon the additional facts
that, prior to November 19, 1951, the Respondent hired no new employee as a tool-
maker "B" and that, although he hired a shaper hand after September 4 and before
November 19, 1951, Wargo had not received any requisition from Superintendent
Jason to hire a shaper hand up to September 4, the date of Spiker's application.
In the cases of the other 11 admitted applications made by active male employees
before November 19, 1951, Wargo testified that he told each of them either that
"I did not have his job for him"; 88 that "We had no employment for him"; 89
that "at the present time, we have no job for you"; 90 that "we had nothing avail-
able for him at that time"; 91 or merely that "we had nothing available for him." 92
Although these were the replies which Wargo made to the active employees who
made applications for reinstatement before November 19, it does not appear from
the evidence that any of them had been replaced at the itimes of their respective ap-
plications. As to four of them (i. e., Robert Blancett, a machine repairman; Rob-
ert Hudson, a production worker; Joseph Lycyak, a stool grinder; and Andrew Shed-
lock, a general laborer), the record does not show that the Respondent hired new
employees in their job classifications, although perhaps it may be assumed from
Wargo's testimony concerning the general job-interchangeability which prevailed in
the operation of the plant, that their work may have been performed by other em-
ployees holding different job classifications. As to the remaining 11, however, the
record shows clearly, and the Trial Examiner accordingly finds, that none of them
had been replaced at the time of his application. Indeed, Wargo himself testified
that: (1) Before November 19 but after his rejection of the applications of Floyd
Arthurs and Albert Baityk (who were buffers), Wargo received requisitions, and hired
new employees, for buffing jobs without considering Arthurs or Batyk for these jobs;
86 Floyd Arthurs, Albert Batyk, Robert Blancett, Daniel Dearth, Charley Gresh, Robert
Hudson, Donald B. Janusz, Emil Kochera, Joseph Lycyak, Joseph Maxin , John Petruna,
Leander Ray, Andrew C. Shedlock, Donald Spiker, and Chester Wisenberger.
17 The Trial Examiner has found, in accordance with Wargo's testimony, that Blancett
dsd quit on August 17 or 20, 1951, but, contrary to Wargo's testimony, that Ray did not
quit.
sa Donald B. Janusz
Emil Kochera.
Daniel Dearth.
Charley Gresh.
12 Floyd Arthurs, Albert Batyk, Joseph Lycyak, Joseph Maxin, Robert Hudson, Andrew
C. Shedlock, and Chester Wisenberger.
EKCO PRODUCTS COMPANY 207
(2) before November 19 but after his rejection of the application of Daniel Dearth
(a buffer-grinder), Wargo received requisitions, and hired new employees, for buffing
jobs without considering Dearth for any of these jobs; (3) before November 19
but after his rejection of the application of Charley Gresh .(a wheel dresser), he
hired men in jobs for which Gresh was qualified; and (4) before November 19 but after
his rejection of the application of Donald Janusz (a die sinker "B"), he hired new
employees for the type of work Janusz had performed, As to the other six appli-
cants in this group, concerning whom Wargo did not testify in 'the same detail on
these specific points, the Respondent's personnel records also show the hire of such
a number of new employees for jobs in their classifications after their repective ap-
plications but before November 19, to demonstrate clearly that none of them had
been replaced at the times of their applications.93
The Respondent also rejected applications made before November 19, 1951, by
seven of the laid-off employees named in the amended complaint,94 including Thelma
Adams, George Brier, and Dorothy Church who had notified the Respondent before
the return date given in their recall letters that they were not reporting for work be-
cause of the strike. Only in the case of George Brier did Wargo deny that zany of
these seven people had made ,such an application before November 1995,
In his testimony concerning his replies to these applications, Wargo stated that he
told Thelma Adams on September 4 ,that "I had no requisitions for female help at
that time"; he told Sarah Barnes on October 17 that he "would make a note of her
application"; he told Florence Champlin on October 29 that "I had nothing avail-
able for her at that time"; he told Dorothy Church on September 4 or 5 that "at
that time I had no jobs for female help"; he told Mary Gall on or about September
4 that "we weren't doing any female hiring because we had satisfied our needs for
female help"; and he told Maxine Thompson on September 5 that "I was not doing
any female hiring." However, Wargo further testified that, although he had no
requisitions from Superintendent Jason for the hire of female employees at the times
each of these 6 women made their applications, he did hire new women employees
after October 15, and before November 19, without considering the applications of
these 6 laid-off employees for these jobs. Moreover, the Respondent's personnel
av In making this finding, the Trial Examiner holds that Donald Spiker, considered as
an economic striker (even assuming that he had not been discriminatorily , discharged),
would have been entitled to reinstatement under established principles, as a shaper hand,
if not replaced before his application , rather than to have his right to reinstatement
depend upon the availability of a job as a toolmaker "B," in which he had never served.
As Wargo admitted , a shaper hand 's job was filled by a new employee after Spiker had
made his application . Consistently , the Respondent 's personnel records show the hire
of Delbert MacFadyen , a new employee , on October 25, 1951.
With respect to applicants Emil Kochera, Joseph Maxin , John Petruna , and Chester
Wisenberger, who were buffers , the personnel records show the following hires of new
employees who, unless otherwise indicated, were still employed as buffers on November
19,1951:
David E. Scholick, hired August 27, 1951.
Lawrence G. Willey, hired August 27, 1951.
Ralph B. Kirkman, hired August 28, 1951.
James Kish , hired August 23, 1951; transferred to another job on August 28, 1951.
John Adamic , Jr., hired August 29, 1951 ; quit October 16, 1951.
Henry Burton King, hired August 29 , 1951; transferred to another job, October 15,
1951.
James Brown , hired September 10, 1951 ; transferred to another job, October 15, 1951.
Edwin Dettra , hired September 10, 1951; transferred to another job on October 1,
1951.
William Archer, hired September 10, 1951; transferred to another job on November
5,1951:.
Dale Selders , hired September 10, 1951.
William Selders , hired September 10, 1951.
James E. Cox, hired October 11, 1951.
With respect to Leander Ray, an H & W setup man and operator, the personnel records
show the transfer of Roy Robertson , who had been hired on August 29 , 1951, as a receiv-
!rig helper , to the job of II & W setup man and operator on October 23, 1951.
"Thelma Adams , Sarah Barnes, George Brier , Florence Champlin, Dorothy Church,
Mary Gall , and Maxine Thompson.
w The Trial Examiner has found , contrary to Wargo's testimony, that Florence Cham-
plin made an application on August 27. Wargo admitted , however, that Champlin made
application on October 29, 1951.'
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records show that during the period from October 15 to November 19, 1951, 12 new
female employees were hired in general production jobs in the assembly and pack-
ing department which had been performed by Thelma Adams and Florence Cham-
plin before their layoffs; 96 and that, during the same period, 10 new female employees
were hired for the jobs of press operator and stacker, which had been performed by
Sarah Barnes, Dorothy Church, Mary Gall, and Maxine Thompson.97
As to the applications made by persons named in the amended complaint after
November 19, 1951 (see summary in Appendix A), Wargo testified that he told the
applicant in each case that "We were not hiring at the time."
e. The Respondent's subsequent employment of some of the persons named in the
amended complaint, and its offers of employment to others
As noted in the appendixes,98 17 of the women employees named in the amended
complaint were reemployed by the Respondent before the close of the hearing, i. e.,
on various dates from October 6, 1952, to May 1953.
In the first eight of these rehires, occuring up to and including March 9, 1953,99
Personnel Manager Wargo either telephoned the person to be rehired and informed
her that the Respondent was "in a position to hire her," or sent her a letter to that
effect. Wargo testified, and the Trial Examiner finds, that all eight of these em-
ployees were hired as "new employees" rather than "reinstated," i. e., their length
of service with the Respondent was to be computed from their respective dates of
rehire rather than from their original prestrike hiring dates, for the purpose of
determining their retention and recall rights in connection with possible layoffs, and
also their rights to participate in the Respondent's profit-sharing plan.
The remaining nine women employees whom the Respondent rehired after March
9, 1953,100 were sent letters by Wargo on or about March 16 or 17, 1953, informing
them that:
This is an unconditional offer of re-employment with this company, with all
your legal rights and privileges respected.
Please get in touch with me immediately because we want you to start work
on March 25, 1953.
In the event that we do not hear from you, and you fail to report on March
25, 1953, we shall assume that you are not interested in work with this
company.
The Trial Examiner finds, however, upon Wargo's testimony as to his interview with
Bonnie Barnett and also upon a stipulation between counsel, that, before any of
these nine women returned to work, Wargo informed each of them that
she was coming back as a new employee, pending whatever the result of
this litigation is, and that by her accepting the job, she in no way jeopardizes
anything that may be due her in the way of back pay and so forth, as the result
of this litigation.
Accordingly, the Respondent's "personnel change forms" for these employees were
marked to show that they were classed tentatively either as a "new employee" or
as "reinstated." Upon this evidence, the Trial Examiner finds that the nine employees
98 With their respective dates of hire, these new employees were : Catherine Headley,
October 15; Helen Morris, October 15; Dorothy Miller, October 16; Kathleen Miser,
October 22; Lila Wilson, October 22 ; Jacqueline McCullough, October 23 ; Pauline Yunk,
October 23; Margaret Davala, October 29; Irene George, October 29; Anita Headley,
November 12; Betty A. Holub, November 12; and Mary Oiler, November 12.
97 These new employees, with their respective dates of hire, were : Virginia, Willis,
October 29; Grace Herzog, November 5; Helen Ray, November 5; Pearl Yakubik, No-
vember 5; Gracie Saribok, November 12; Joan C. McHenry, November 19; Olga Pavlik,
November 19; Esther Rayner, November 19, Margaret Rusnak, November 19; and Hazel
Watson, November 19.
98 See Appendixes B-2, B-3, C-2, C-3, D-2, D-3, and E-2 (footnote).
9 I. e, the rehires on October 6, 1952, of Thelma Adams, Dorothy Church, Maxine
Thompson, and Florence Champlin ; the rehires on January 28, 1953, of Madelyn J.
Hannon, Hettie Delores Mason, and Helen Sikora ; and the rehire on March 9, 1953, of
Dorothy F. Koshock.
100 I. e., Orpha Droltz (who was rehired on March 16, 1953) ; Bonnie Barnett, Elizabeth
Gawne, Ina Belle Hatcher, Elma La Wanda Hogan, Marjorie R. Holdren, and Mary
Lonca (who were rehired on March 23, 1953) ; Alberta Penn (who was rehired on March
24, 1953) ; and Roberta Shampel (who was rehired in May 1953).
EKCO PRODUCTS COMPANY 209
named in the amended complaint who returned to work on and after March 16,
1953, were not unconditionally reinstated and that, should the Board find that the
Respondent had discriminated against them either by discharging them or by re-
moving their names from the layoff list in 1951, the appropriate remedy in their
cases would include a provision for the restoration of all their rights of employ-
ment, including seniority from the dates of their original prestrike hire by the
Respondent.
In addition to these offers of employment which were accepted by 17 employees,
the Respondent made similar offers to other employees named in the amended com-
plaint, who either rejected or failed to reply to the offers. Thus, on September 15,
1952, the Respondent suggested to Mary Gall, in a letter of that date, that she
report for an interview "regarding employment." And on March 17, 1953, the
Respondent, by letters identical to those sent on that date to the persons who accepted
the offers and returned to work, informed Shirley Barnes, Pauline E. Cozart, Mary
Veselenak, Edna Watson, Veronica Woyansky, and Raymond A. Yoho of the Re-
spondent's "unconditional offer of re-employment with this company, with all your
legal rights and privileges respected." Edna Watson- never replied to this letter.
Mary Gall saw Wargo and, although she said she was "interested," did not reply
to a subsequent letter sent by Wargo offering her employment. Mary Veselenak
and Veronica Woyansky rejected the offer because they had young children re-
quiring their presence at home. Pauline E. Cozart informed Wargo by letter that it
was "impossible" for her to return to work because she had moved from Cambridge.
Shirley Barnes, too, rejected the offer in 'a letter which she sent to Wargo. Finally,
Raymond A. Yoho refused the job offer because, according to Wargo's testimony,
"he felt that since he was not getting his length of service included in that offer, that
he would stay on his present job in Cleveland."
Upon this evidence, the Trial Examiner is of the opinion that (should the Board
find discrimination by the Respondent against these six people who rejected the
Respondent's offer of March 17, 1953), these offers were not such offers which
would have restored to these people their rightful prestrike status, because the
Respondent, as shown -by its explanation to, and treatment of, other employees who
accepted such an offer, did not in fact intend to recognize their full seniority.
3. The explanations given in the testimony of the Respondent's representatives for
the Respondent's acts with respect to the persons named in the amended complaint
On Friday, August 10, 1951, Alexander Dewey, the Respondent's assistant vice
president in charge of industrial relations at all 15 of its plants, arrived in Byesville
from the home office in Chicago, and remained in Byesville until Friday, August 24,
1951. Dewey, Plant Superintendent Jason, and Personnel Manager Wargo testified
that, in the course of discussions and conferences between the 3 of them during these
first 2 weeks of the strike, Dewey made the decisions which shaped and controlled
the Respondent's treatment of the employees named in the amended complaint.
Through the testimony of these three witnesses, the Respondent has offered its
explanations of
(1) The letters of August 16 and 20 sent respectively to the active and laid-off
employees named in the amended complaint.
(2) Its notations on the personnel records of those active employees who did not
return to work by August 20, that they had "quit-reason unknown."
(3) Its removal from the Respondent's layoff list of the names of those laid-off
employees who did not report for work by August 24.
(4) Its cancellation of the insurance and its termination of the profit-sharing
certificates held by these employees.
(5) Its refusal to reinstate or rehire any of these employees until after Novem-
ber 19, 1951, by which time it had replaced all of them.
Jason testified in substance that on August 15, the Respondent decided to send
its letter of August 16 to the active employees and its letter of August 20 to the
laid-off employees, for the purpose of enabling the Respondent to maintain a suffi-
cient working staff to keep its plant running in spite of the strike, and that, as a
matter of fact and as the Trial Examiner has already found, recall letters had been
sent to laid-off employees before the strike to meet generally increasing production
requirements. As to the letter of August 16 informing the active employees that
failure to report for work on August 20 would be " taken to mean that you have
quit your job and we will therefore replace you," Wargo denied that this letter
was intended to be "a discharge letter," and Jason testified that "We thought we
might be able to get them to abandon the strike and at the same time give them
423784-57-vol. 117-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preference over somebody else that we called back before we would replace them."
Jason and Wargo further testified (as the Trial Examiner has found) that the recall
letter of August 20 to the laid-off employees was in the form regularly used for that
purpose and, in accordance with Respondent's usual policy and practice, contained
the regular notice that failure to accept rehire by the specified date would result
in removal of the person's name from the layoff list.
Dewey and Wargo testified that, in the cases of the active employees who failed
to report for work on or before August 20 as they were requested in the Respondent's
letter of August 16, it seemed necessary to make some notation on their personnel
records "to show that they were no longer on the payroll and no longer entitled
to any pay," and also to enable the Respondent to cancel their insurance which
"terminates when they are no longer on the payroll." 101 Wargo testified that
Dewey pointed out to him in their discussions of the matter, that they did not know
whether some of these people had secured employment elsewhere nor "whether they
had not reported to work because of fear of violence or intimidation." Dewey and
Wargo testified that they therefore concluded that, "in fairness to all these people," 102
the record entry best adapted to the purpose was "quit-reason unknown," the
entry which was customarily used by the Respondent when employees failed to
report for work for more than 3 days, without notice or explanation. Further sup-
plementing Dewey's testimony on these matters, Wargo testified that an additional
reason for making these entries was the Respondent's hope that they would become
known to the strikers and perhaps induce some of them to abandon the strike.
Accordingly, on August 21, the Respondent made the notation "quit-reason
unknown," on- the personnel record of each of the active employees named in the
amended complaint to indicate (as Wargo put it in his testimony) "his status at
that particular time." And, within the next few days, as we have already noted,
the Respondent also canceled not only their insurance but also their profit-sharing
certificates.
Upon the basis of this testimony given by Dewey and Wargo, the Respondent con-
tends that the entries on the personnel records were made, and the Respondent
canceled the insurance and the profit-sharing certificates, not because these people
were on strike, but merely because they were not actively working for the Respond-
ent and it could not be forecast if, or when, they might return to work. At one point
in his testimony, Dewey likened the situation of these people in some respects to
that of employees on indefinite layoff. But, although he testified that as a matter
of regular practice the insurance of employees was terminated on their being in-
definitely laid off, he could recall no instances of layoffs of employees holding profit-
sharing certificates and therefore could testify as to no parallel precedent for the
cancellation of profit-sharing certificates on indefinite layoff.
All three of the Respondent's representatives testified to Dewey's issuance of
instructions to Wargo and Jason concerning a "day-to-day" policy to be followed
when and if any of the active employees applied for reinstatement or rehire after
August 20. In brief, Wargo was to refuse to reinstate or rehire any of these people
unless, and until, there was a sufficient number of such applications to indicate an
abandonment of the strike, and even then he was not to reinstate or rehire any of
them until, upon Wargo's report of the number involved, Dewey approved their
reinstatement or rehire. According to Dewey, Wargo, and Jason, Wargo was to
report to Dewey the number, but not the identity, of the applicants. All three of
the Respondent's representatives agreed in their testimony that the "day-to-day"
policy was subject to review and change by Dewey, and that the ultimate decision
as to,when reinstatement applications might reach such proportions as to indicate
that the strike was over, was to rest with Dewey. Wargo further testified, but
Dewey could not recall, that Dewey instructed Wargo that he was to tell each of
the applicants that the Respondent "did not have his job for him." Neither Jason
nor Wargo testified (and Dewey, when specifically questioned, said he could not
recall) whether Dewey gave instructions to Wargo, or discussed with him what
Wargo should do if any of the active employees named in the amended complaint
told Wargo that they had not reported for work because of the strike or their
unwillingness to cross the picket line.
As we have seen, the Respondent adhered to this "day-to-day" policy by refusing
to reinstate or rehire 15 of the active employees named in the amended complaint,
between August 20, 1951, and November 19, 1951, and, in the meantime, filled
all vacancies on its production staff . Then, according to the testimony of Jason,
101 The quoted language appears in Wargo's testimony and its substance is corroborated
in Dewey's testimony.
102 The quoted phrase is to be found in Wargo's testimony.
EKCO PRODUCTS COMPANY 211
upon the Respondent's receipt of the Steelworkers' "mass application" for the'
reinstatement of all the strikers named in the amended complaint on or about
November 19, 1951, Dewey informed Jason that, since the strike was apparently
over, the "day-to-day" policy against reinstatement or rehire was to be discontinued.
But, of course, by this time there were no vacancies to fill. Upon this basis, the
Respondent contends that the applications for reinstatement made after Novem-
ber 19, 1951, by active employees named in the amended complaint, were properly
rejected because, as economic strikers, they had already been replaced.
With respect to when and why Dewey issued his instructions concerning this
"day-to-day" policy, Wargo testified in substance merely that "after August 20 and
during the week ending August 26th," he was instructed by Dewey to report the
number and not the identity of the applicants, and not to take back any of the active
employees until Dewey was satisfied that the number of applications indicated the
end of what Dewey said was "an illegal strike." Dewey and Jason, however,
testified that they and Wargo discussed a number of strike incidents which caused
them to fear that, if any of the strikers were taken back before the strike was
over, they might sabotage the plant, and that Dewey then formulated the "day-to-
day" policy to avoid this possibility. Jason was not at all clear in his testimony as
to when this decision was made by Dewey. He testified in succession that it
"could be" that the decision was reached on August 18; then, that "as I remember,
it was August 18th, after the Merva-Bayly incident"; then, that it "could have been
on the 17th"; and finally, "as I remember it was after the 20th," and before the
30th, but "I don't remember it was on, or before, or after the 24th." Dewey, on
the other hand, testified that he reached his decision and gave his instructions to
Wargo and Jason on either August 23 or 24, just before he left Byesville on the
latter date.
According to Dewey's testimony, his fear of plant sabotage from a trickling return
of the strikers was based upon the following occurrences or incidents , some of which
he had personally observed and the remainder of which had been reported to him:
(1) Reports that striker Mary Trenner (Mehock) had worked briefly on August
13, the first day of the strike, and had then left the plant and joined the strikers at
midday, and that strikers Joe Merva and Hubert Bayly had worked on Friday, August
17, had urged working employees to join the strike, and had themselves quit work
for the duration of the strike at the end of the day. (There is no direct testimony
that Mary Trenner, while working in the plant on August 13, urged working em-
ployees to leave work and to join the strike or the picket line. Employee Mary
Foraker, however, testified that on August 17, Bayly had said to her while she was
working in the plant that "We want all of you out on that picket line this afternoon."
But the Trial Examiner credits Merva's and Bayly's denials that they made any such
statement to Foraker or to any other employee, ; and also their explanations that they
had come to work on August 17 believing that the strike was about over, and, finding
that not to be so, informed Chief Inspector Paul McJessy at the end of the day that
they were not going to work until the strike was over.)
(2) A report of an incident by employee Sarah Heddleson, during which she
showed Dewey "where she was hit by a bottle or something ." (This is apparently
a reference to a report made by Heddleson concerning an incident in which, accord-
ing to her uncontradicted and credited testimony, a window in her home was smashed
early in the morning during the first week of the strike, by a bottle thrown by an
unknown person and accompanied by a note, "Keep out of the Ekco.")
(3) Dewey's observation of glass from broken bottles which was strewn in the
Respondent's plant driveway. (The Trial Examiner finds, not only upon Dewey's
uncontradicted testimony but upon the corroborating testimony of Personnel Manager
Wargo and that of employees Clay Jirrels, Delsie Haugh, Katherine Swogger, and
Russell Wilson, that during the first week of the strike there was a considerable
amount of glass and roofing nails in the plant 's driveways.)
(4) Reports received by Dewey from a person or persons whom he did not name,
that automobile tires had been punctured. (There seems to be no dispute that several
such incidents occurred early in the strike and the Trial Examiner so finds upon the
uncontradicted testimony of employee Clay Jirrels that his tire was punctured by a
roofing nail of the type found in the plant driveway; the uncontradicted testimony of
employee George Puzika that one of his tires was slashed while he was attending a
meeting at a, school in the town of Buffalo on Wednesday, August 22; and the uncon-
tradicted testimony of Earl Branham , the son of employee Anna Branham, that he
drove his mother to work during. the strike, that he had a flat tire while his car was
parked at the Sohio gasoline station next to the Respondent 's plant during the first
week of the strike, and that while he was fixing the tire , a group of the strikers came
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over to him and striker David (Imey) Sills asked him "how I'd like to have a couple
of broken arms and how I'd like to have some more flats.")
(5) Reports which women employees made to Dewey, supported by his own
observation of stains on their dresses, that strikers had thrown tomatoes at nonstrikers
as the latter came to work. (The evidence leaves no doubt that strikers David (Imey)
Sills and Bill Larrick did throw tomatoes at employees as they were going to work
during the first and second weeks of the strike. The Trial Examiner so finds upon
the uncontradicted testimony of employees Beulah Rogers, Beryl Allen, Agatha
Blakeslee, Virginia Karas, Goldie Weber, and Peter Mnich.)
(6) Dewey's observation of an incident on the second or third day of the strike,
in which striker Verneda Oliver. in attempting to make employee Dorothea Hamilton
stop to talk with her as Hamilton was entering the plant, grabbed Hamilton's arms.
(The Trial Examiner finds, upon Dewey's testimony and that of Mrs. Hamilton, em-
ployee Pauline Vahala, and Personnel Manager Wargo, that the incident occurred
substantially as it has just been described, although Verneda Oliver, while admitting
that she questioned Hamilton as to why Hamilton was going to work, testified that
she could not recall having touched or held Mrs. Hamilton.)
(7) Dewey's observation of a striker carrying a shotgun outside the plant, with
"everybody running up and down the street." (There is no dispute as to this inci-
dent. The Trial Examiner finds that it occurred as thus described in the testimony
of Dewey and Earl Branham, the son of one of the employees. He further finds,
upon the testimony of employee Mike Voytko, that the striker carrying the shotgun
was a man named Frank Johnson.)
(8) A report from Foreman James Cantor that strikers Bill Larrick and David
(Imey) Sills pounded on the door of Cantor's home at about 11 o'clock one night
during the second week of the strike. (Upon Cantor's uncontradicted testimony, the
Trial Examiner finds not only that this incident occurred as it was reported to Dewey,
but also that during the preceding afternoon, Larrick had told Cantor, "I'll come up
and blow you off the side of that hill.")
(9) A report from a woman employee "that somebody had threatened to kill her
children." (The Trial Examiner finds a basis in fact for such a report to Dewey in
the uncontradicted, credible testimony of Isabel Walker, and the corroborative testi-
mony of employee Betty Ann Stalter, that during the first week of the strike an un-
known person among the pickets said to Mrs. Walker, "If you go in there and go to
work, we'll kill those two boys of yours.")
(10) A report by one of the "watchmen on the daytime" that he had been threat-
ened and was therefore reluctant to continue at work. (So far as the Trial Examiner
can discover, the testimony of none of the witnesses furnishes any direct evidence of
the occurrence of any such incident involving a watchman on either of the day shifts.)
(11) Reports to Dewey from an unnamed person or persons that rocks had been
thrown through the windows of the plant. (The Trial Examiner finds that Dewey
was in error in thus testifying that such a report was made to him before August 24
and was relied upon by him as a basis for the "day-to-day" instructions. For the
only direct evidence relating to any breaking of a plant window was given in the
testimony of employee Joe Seresun and Personnel Manager Wargo and in the stipu-
lated testimony of watchman Frank Smith and night guard Ray Deeren, all of which
fixed the time of this incident as approximately midnight of August 30, 1951.)
In his testimony concerning the basis of the Respondent's fear of plant sabotage,
Superintendent Jason (like Dewey) referred to the fact that Mary Trenner, Joe
Merva, and Hubert Bayly each worked a single day during the strike and then went
"back on the picket line," and also to reports from Chief Inspector Paul McJessy that,
during their day at work Merva and Bayly "were roaming around the plant talking to
people and trying to get them to go out on strike." In addition, Jason testified that
he feared the possibility of sabotage because of reports from the guard on the night
shift that "there were cars running up and down the [plant's] driveways at night and
people around the acid storage tanks." Jason further testified without contradiction
and was corroborated in the stipulated testimony of night guard Ray Deeren, that
as a result of these reports, the Respondent erected floodlights at the entrance of the
plant on the second night of the strike so that they illuminated the side of the building
where the storage tanks were located.
Dewey, Jason, and Wargo all testified that the "day-to-day" policy and instructions
were to apply only to the active employees.103 With respect to the laid-off employees
=This was Wargo's ultimate, clear testimony, although at earlier points in his testi-
mony his answers had indicated that the "day-to-day" policy applied to laid-off em-
ployees as well. Thus, when first questioned as to whom the "day-to-day" policy was to
EXCO PRODUCTS COMPANY 213
named in the amended complaint, Jason and Wargo testified that the Respondent's
refusals to rehire them were in accordance with its usual practice with respect to
laid-off employees who had failed to respond to a recall letter, and were not in any
way connected with the strike.
4. Conclusions
a. As to the active employees named in the amended complaint
With respect to the active employees named in the amended complaint, there are
two main problems presented by the evidence. The first problem is whether the
Respondent,discharged these people by the letters which it sent to them on and after
August 16, or whether it merely refused to reinstate those of them who applied
for reinstatement on the dates set forth in Appendix A. The second problem is
whether the Respondent, by either discharging these people or refusing to reinstate
those who applied for reinstatement (as the case may be), discriminated against them
in regard to their hire and tenure of employment, thereby violating Section 8
(a) (1) and (3) of the Act.
The answer to the question of whether the Respondent discharged the active em-
ployees among the strikers lies in the significance of the various letters sent to them
by the Respondent on August 16 and, in a few instances, within the following week.
These letters stressed to all ,these employees the Respondent's "assumption" that they
were quitting or had quit their jobs by failing to report to work. The letters of
August 16, which were sent to all but Ann Jones and Shedlock [(who were over-
looked) and Gress (who had worked 'the preceding day), told these people, "Your
failure to report to work ... [on August 20] will be taken to mean that you have
quit your job and we will therefore replace you." The letters of August 21 to Jones
and Shedlock informed them that "Since you have not reported for work since Fri-
day, August 10th, we assumed that you had quit and we are therefore replacing you."
Only the Respondent's follow-up letters of August 21 to Gress, Bayly, and Merva
omitted specific reference to the Respondent's "assumption" and stated bluntly:
"You have worked only one day since August 10th and we are therefore removing
you from the payroll because of poor attendance." [Emphasis supplied.]
The sense of these letters to the active employees was that, by remaining away
from work during the strike, they were quitting or had quit their lobs and would be
replaced. In its brief, the Respondent refers to the course thus taken by it as "part
of a strategic maneuver designed to obtain the abandonment of the strike by those
striking employees," but denies that the letters constituted a discharge of the em-
apply, Wargo testified that Dewey had given him the "spec ific names" of these people.
Upon being asked by the General Counsel to give their names, Wargo suggested that,
to do so, it might be necessary for him "to go all through" the individual personnel
records. Whereupon the Trial Examiner , commenting that "We may [be able to] shorten
this," asked Wargo in succession whether the persons in question were "the people to
whom you had sent the letters of the type of General Counsel's Exhibit 8-A," and "also
the people to whom you had sent letters of the type of General Counsel's Exhibit 5."
Neither of these questions referred to the fact that General Counsel's Exhibit 8-A was
the type of letter sent by the Respondent to the active employees on August 16, nor to
the fact that General Counsel's Exhibit 5 was the type of letter sent to the laid-off
employees on August 20. Wargo answered both of these questions in the affirmative
and the matter was then dropped for the time being. On the following day of the hear-
ing, Wargo testified that the "day-to-day" policy "applied to those individuals who had
received the letter of August 16, 1951, and who had presented themselves for employ-
ment from August 27th to November 15th." [Emphasis supplied.] Within the next few
questions, however, the General Counsel asked Wargo, "Was there any individual to whom
General Counsel's Exhibit 8-A or 5 was sent, who presented themselves for employ-
ment between August 27, 1951 and November 19, 1951, to whom that instruction did
not apply?" And Wargo answered, "No, sir." Then, several days later, while Wargo
was still being questioned by the General Counsel, he testified that the "day-to-day"
instructions did not apply to the laid-off employees and that, if he had testified to the
contrary, it was because "I was confused with the 8 and 5 that the Trial Examiner
mentioned ." Finally, under further questioning by the General Counsel on the next day
of the hearing, Wargo testified that he had'read the transcript of his previous testi-
mony, that he had discussed it with counsel, and that ". . . the day to day instruc-
tions that I was receiving with regard to the employees who were on the payroll at the
time of the strike, did not apply to those people who were on the lay-off list."
The Trial Examiner accepts Wargo's explanation that he was confused by the ques-
tions originally put to him on these matters and finds the intended essence of his testi-
mony on the point to be what has been stated in the text above.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. (Respondent's brief, p. 23.) From the oral argument of its counsel at
the close of the hearing, it further appears that the Respondent contends that, in
effect, these letters merely pointed out to the active employees among the strikers
that they might be replaced under the doctrine of the Mackay Radio case.104
,In pressing this argument, the Respondent would have the Board ignore the state-
ment in its letters to the effect that it would regard the striking employees as having
quit if they did not report for work on August 20. But the Board has held that such
statements to striking employees, even when coupled with references to "replace-
ment," are notices of discharge violative of Section 8 (a) (1) of the Act, and, when
thereafter apparently adhered,to by the employer, are to be regarded as constituting
discharges violative of Section ^8 (a) (3) as well as Section 8 (a) (1) of the Act.105
The following passage taken from the Board's decision in the United States Cold
Storage case (96 NLRB 1108 at 1109-1110), clearly states the applicable principles
and the reasoning of the Board:
. . . The Trial Examiner reasoned that because the strike was economic in its
inception, the Respondent had the right to advise the strikers that it intended to
replace them if they did not return to work within 24 hours. [Citing N. L. R. B.
v Mackay Radio & Telegraph Co, 304 U. S. 333.] The Trial Examiner was of
the opinion that the telegram did no more than this and that the Respondent
was therefore merely restating the law.
The telegram, however, did not accurately restate the law. [Citing The Texas
Company, 93 NLRB 1358.] In the first place, the telegram characterized the
strike as "illegal." This was certainly incorrect. But more important, the tele-
gram states that if the individual striker does not report to his job within 24
hours, "we will consider that you are terminating your employment and a re-
placement will be hired." Failure to work during the pendency of a strike can-
not be construed as a termination of employment. Without notice of severance
on the part of the striking employee, a termination can be effected in these
circumstances only by the Respondent. Hence, conditioning the termination of
the strikers upon their failure to act at the Respondent's request, stands as a
specious attempt to shift the responsibility of termination from the Respondent
to the striking employees. The telegram appears to us to be a notice of discharge
to the employees because of their concerted strike activity. That the telegram
did effect the discharges of the striking employees on April 7, 1950, is amply
substantiated by the Respondent's letter of April 24 addressed to each of the
strikers. The pertinent part of that letter reads as follows:
On April 6, we notified you by telegram to return to work within 24 hours,
from the receipt of the message or we would terminate the employment.
You did not return to work; and consequently we consider you are no
longer employees of this Company. [Emphasis supplied.]
It is clear from this letter not only that the Respondent intended to terminate the
strikers' employment as per the April 6 telegram, but also that the Respondent
did in fact terminate their employment.
Applying these principles to the present case, the Trial Examiner has noted that
in the cases of Gress, Bayly, and Merva the letters sent by the Respondent to them
on August 21 stated quite clearly that their employment had been terminated by the
Respondent , i. e., that they had been discharged. This, the Trial Examiner believes,
was also the import of the letters of August 21 which were sent to Jones and
Shedlock, although in these letters the Respondent still attempted to maintain the
fiction that they had quit. Accordingly, the Trial Examiner finds that, in accordance
with the letters sent to them, the Respondent discharged Gress, Bayly, Merva, Jones,
and Shedlock on August 20. Concerning the letters of August 16 sent to all the
106 N. L R B. v. Mackay Radio cf Telegraph Co , 304 U. S 333. The Respondent's
reliance upon this particular argument is indicated by counsel's quotation of a passage
from the opinion of the Court of Appeals for the Tenth Circuit in Kansas Milling Com-
pany v. N L R. B. (185 F 2d 413)-a case which he described as being "on all fours
with the facts here with respect to the letter of the respondent" in the present case.
However, the employer's letter to the strikers in the Kansas Milling case made no claim
that the strikers had apparently quit, as did the Respondent ' s letters in the present case,
but simply stated that after a specified date, the employer would begin to hire replace-
ments (86 NLRB 925, 942)
105 United States Cold Storage Corp , 96 NLRB 1108, enfd . 203 F. 2d 924 (C A. 5)
Kerrigan Iron Works, Inc., 108 NLRB 933, Knickerbocker Plastic Co ., Inc., 104 NLRB
514, 520; Clearfield Cheese Company, Inc., 106 NLRB 417, 418-419.
EKCO PRODUCTS COMPANY 215
active employees named in the amended complaint, except Jones and Shedlock, the
Trial Examiner concludes, for the reasons which are hereinafter set forth and in
accordance with the holding of the Board and the Court of Appeals for the Fifth
Circuit in the United States Cold Storage case, not only that these letters constituted
notices of discharge to these employees if they continued in their concerted strike
activity on and after August 20, but also that they effected the discharge of these
people as of August 20 because they did not report to work on that date.
The evidence and the findings already made thereon amply support -this con-
clusion. On or about August 22, in accordance with Vice-President Dewey's instruc-
tions, entries were made in the Respondent's personnel records for all the active
employees named in the amended complaint to show as the date and "Cause for
leaving," either "8-21-51-Poor attendance," in the cases of Gress, Bayly, and
Merva; "8-22-51-Voluntary quit," in the case of Leander Ray; or "8-20-51-Quit.
Reason unknown," in the cases of all the others, although as the Trial Examiner has
found, none of these employees, except Robert Blancett, had informed the Re-
spondent that they had quit. Then, on or about August 23 or 24, Dewey, in con-
ferences with Personnel Manager Wargo, and Superintendent Jason, decided (and
Wargo was instructed) that, if any of these persons applied for reinstatement, Wargo
should not take them back to work; that under the so-called "day-to-day" policy, he
should tell each of them that the Respondent "did not have his job for him"- that
Wargo should report the number of such applicants to Dewey in Chicago but not
their names; and that none of these active employees, who had been sent the letter
of August 16 but had not reported to work on August 20, should be taken back by
Wargo until Dewey, having decided that a sufficient number had applied to indicate
an abandonment of the strike, instructed Wargo that he might then take them back.
In the meantime, on September 17, the Respondent canceled the profit-sharing cer-
tificates held by 20 of these employees, an action which would have been justified by
the terms of the certificates only if these people had retired, died, resigned, or been
dismissed. And, in the same general period and pursuant to Dewey's instructions,
all 14 of the active employees who applied to Wargo for reinstatement before No-
vember 19, the date on which the Respondent completed its "replacement' of all
the strikers, were told by Wargo, in substance, that the Respondent had no jobs for
them, although at the times of their respective applications, the evidence shows that
11 of these applicants had not been "replaced" by the Respondent and there is no
proof that the other 3 had been "replaced."
From the manner in which the Respondent thus dealt with the active employees
who are named in the amended complaint and who did not report to work on August
20 as requested by the Respondent in the letters of August 16, only one conclusion
can be drawn: By refusing to reinstate 11 and possibly all 14 of the applicants who
had not been "replaced" before November 19, and by otherwise consistently treating
the employment of all these people as having been terminated by reason of their
persistence in refusing to work during the strike, the Respondent must be held to
have discharged them on August 20, 1951, in accordance with the notices of dis-
charge contained in the letters of August 16.106
All the evidence and findings which have just been briefly reviewed also bear
directly upon the second question of whether the discharges were discriminatory
and in violation of Section 8 (a) (1) and (3) of the Act. For, upon these
findings, without more, it seems clear that the Respondent discharged the active
employees named in the amended complaint because they refused to work during
the strike, i. e., because they were engaged in, or the Respondent believed they were
engaged in, the strike. That it was the intent of the Respondent throughout the
history of the case to break the strike, first by threats of discrunination if employees
308 See the cases cited in footnote 105, above. In making this finding that the Re-
spondent discharged these people , the Trial Examiner does not rely upon the fact that
the Respondent canceled their insurance, nor upon the fact that, in letters sent to some
of them in the beginning of October , the Respondent requested them to turn in their
locker keys . Although these acts were not inconsistent with the present finding that these
people were discharged, they would also be equally consistent with a finding that the
Respondent regarded them as continuing , though striking , employees . An employer is
not required to continue insurance payments for strikers any more than it is required
to pay them any other element of their compensation during the strike and, as the Trial
Examiner has found , none of the strikers attempted to arrange a continuation of their
insurance as their insurance certificates indicated they might have. And an employer's
requesting striking employees to turn in their locker keys is also consistent with the
employer's exercise of its unquestionable right, in the ordinary situation, to replace strik-
ers with new employees for whom it would need the locker space.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should engage in a strike , and then , when that failed , by actual discrimination re-
sulting in the termination of the Respodent 's employment of all the strikers, is
shown not only by the fact that the employment of all strikers was terminated
upon the pretext that they had "quit" by failing to work during the strike, but also
by the following additional facts peculiar to the present case:
(l) Superintendent Jason 's prestrike instructions to the supervisors and the lead-
men that they should circulate rumors among the employees that if there were
a strike, the employees might lose their jobs or the Respondent might move its
plant.
(2) The prestrike warnings to this effect given by the supervisors and leadmen
to the employees, pursuant to these instructions.
(3) Superintendent Jason's explanation that, in sending the letters of August 16
(which the Trial Examiner has found were notices of discharge), "We thought we
might be able to get them to abandon the strike and at the same time give them pref-
erence over somebody else that we called back before we would replace them."
(4)Personnel Manager Wargo's admission that one of the reasons for marking
the personnel records of the striking active employees "Quit. Reason unknown"
was that the Respondent hoped that these entries would become known to the
strikers and perhaps induce some of them to abandon the strike.
(5) The Respondent's "day-to-day" policy, under which none of the active em-
ployees among the strikers were to be taken back until Dewey was convinced that
the number of applicants for reinstatement indicated that the strike had been
abandoned, and which, in actual operation, resulted in the termination of the em-
ployment of even those among the active employees who applied for reinstatement
before they had been "replaced."
When weighed against all this evidence indicating a discriminatory intent on the
part of the Respondent throughout the history of the case, Dewey's and Jason's
explanation of the "day-to-day" policy as being based upon the fear of sabotage
in the plant is unconvincing, and appears to the Trial Examiner to be merely an
attempt to justify the Respondent's closing the door to the return of the strikers
upon a basis which actually had never even occurred to it at the time. The strike
incidents, which Dewey claimed were reported to him and led him, in consultation
with Jason and Wargo, to formulate the "day-to-day" policy on August 23 or 24,
have been set forth at legnth in this report. In the opinion of the Trial Examiner,
none of these incidents which occurred on or before August 24, were such as might
reasonably be regarded as either inspiring a fear of sabotage in the plant if strikers
were permitted to return to work, or as justifying the sweeping, strict rule that
none of the 110 persons were to be reinstated until Dewey had reason to believe
that the strike had been abandoned. To the Trial Examiner, this seems to have
been an unnecessarily drastic rule for the Respondent's asserted purpose, particularly
since most, if not all, of the active employees seem to have been well known to
both Jason and Wargo and it must have appeared that the rule imposed by Dewey
was likely to result, as in fact it did, in a number of clearly inoffensive applicants
being rejected by the Respondent for any further employment upon the ground that
after their applications, but before the strike had been clearly "abandoned," they
would, unfortunately, all have been "replaced."
There are also other reasons why the Trial Examiner is not persuaded by
Dewey's and Jason's testimony that the "day-to-day" policy was based upon a fear
of plant sabotage rather than an intention to follow through in its discrimination
against the strikers. Thus, although Dewey, Jason, and Wargo all testified that
the policy was decided upon by Dewey in the course of their consultations, not
once did Wargo in his testimony refer to a fear of sabotage as being the basis for
the policy, but ascribed it simply to Dewey's belief that the strike was "illegal."
Furthermore, according to Wargo's uncontradicted testimony, which the Trial Ex-
aminer has credited, Wargo followed Dewey's instructions that, until further notice,
he was merely to tell each applicant for reinstatement that the Respondent "did not
have his job for him," and did not give any reason for this statement. Certainly,
neither in his testimony nor in his statements to applicants before November 19 did
he refer to any such fear of sabotage as Dewey and Jason would have the Board
believe was the reason for the Respondent 's action. Nor does the record show that
the Respondent made any attempt to inform the strikers or the Mine Workers
that, because it feared injury to its plant, it would not reinstate any of the
strikers until the strike had been abandoned. To the Trial Examiner it seems
that, if this had been the reason for the "day-to-day" policy, not only would
such a notice have been the logical, forthright method for the Respondent to have
accomplished its purpose, but its failure or reticence to do so contrasted strangely
with its direct, aggressive approach in giving warnings to the employees before the
EKCO PRODUCTS COMPANY 217
strike and in notifying the strikers in the letters of August 16 that, if they failed
to report to work, they would be regarded as having quit.
In sum , the Trial Examiner concludes that Dewey's and Jason 's explanation
of the "day-to-day" policy is unacceptable in view of:
(1) The apparent disposition of the Respondent, throughout the events in the
case , to discriminate against the strikers and thus to break the strike.
(2) The nature of the strike incidents which Dewey and Jason claimed to have
inspired the "day-to-day" policy for the purpose of avoiding sabotage to the plant.
(3) The unnecessarily sweeping effect of the rule as applied to all 110 of the
active employees among the strikers, which in itself indicates to the Trial Examiner
that it was punitive rather than protective.
(4) The fact that Wargo's testimony does not support Dewey's and Jason's
testimony that the basis of the rule was to prevent sabotage.
(5) The fact that no notice or explanation was ever given to the employees that,
because of the Respondent's fear of sabotage by returning strikers, the Respondent
was refusing to reinstate applicants until it was clear that the strike had generally
been abandoned, but, instead, told those of the strikers who applied for reinstatement
even before the Respondent had "replaced" them merely that their jobs were
unavailable.
Upon the foregoing consideration, the Trial Examiner finds that on August
20, 1951, the Respondent discharged the active employees named in the complaint
(i. e., those persons whose names are set forth in Appendixes B-1 through B-6 and
C-1 through C-4) because they engaged in the strike, or the Respondent believed
that they had engaged in the strike; and that, in discharging these people, the
Respondent discriminated against them in regard to their hire and tenure of em-
ployment, thereby discouraging membership in the Mine Workers, a labor organi-
zation, and thus committed unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
b. As to the laid-off employees named in the amended complaint
The pertinent facts concerning the 20 laid-off employees named in the amended
complaint are comparatively few and have been set forth in detail in section III, C, 2
(b) of this report. The questions presented by these facts are:
(1) Whether, by sending the laid-off employees its usual recall letter on August
20, 1951, the Respondent interfered with their right to join the strike, and thus
violated Section 8 (a) (1) of the Act.
1(2) Whether the Respondent discriminated against these laid-off employees in
violation of Section 8 (a) (3) and (1) of the Act by removing their names from the
layoff list on August 24, 1951, after their failure to report to work by that date as
requested by it and its usual recall letters.
The right of the Respondent's laid-off employees to be placed on the layoff list
and to be recalled with accrued seniority when jobs again become available for them
is a special right conferred by the Respondent under its established practice, and is
earned by the laid-off employees during the course of their previous active employ-
ment. This right ordinarily continues only until, having been recalled, the laid-off
employee either returns or fails to return to work by the date specified by the Re-
spondent. However, the Respondent's customary recall letter (which provides the
clearest and most reliable indication of the duration of the right) does not arbitrarily
preclude an extension of the right by the Respondent if the recalled laid-off employee
should request it and give the Respondent an acceptable or compelling reason.107
The rule this laid down by the Respondent as to the normal duration of the recall
right and its possible extension only upon application and statement of reasons, was
obviously reasonable and necessary since it affords the certainty which is essential to
the practicable operation of its layoff and recall system.
The laid-off employee's right to eventual recall places him in a unique position
with respect to the continuing relationship between the Respondent and its active
employees as well as its other laid-off employees. Anticipating a return -to active em-
ployment by the Respondent, he has an undeniably real, continuing, and legitimate
interest in the terms and. conditions of employment which may, in the mean-
time, be established for the Respondent's employees through collective bargaining
with the Respondent and, therefore, also in the choice of an exclusive bargaining
107 The pertinent language of the Respondent's usual letter, which is taken from the
letter of August 16, 1951, is the following :
If I do not hear from you before Friday, August 24, 1951, •I will assume that you
cannot or do not wish to return . If this should be the case, your name will be
removed from the lay-off list.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative. Before being recalled, of course, his role in the concerted activities of
the Respondent's employees is necessarily limited, since his vote or other designation
of a bargaining representative may not be counted. But upon being recalled, the
laid-off employee, like the active employee, must be held to possess and to be pro-
tected in the exercise of all the rights of employees guaranteed by Section 7 and
protected by Section 8 (a) (3) of the Act, including the right to join an existing strike
by his fellow employees (whether it be an economic, recognition, or unfair labor
practice strike), or to go to work and refrain from joining the strike.ios
Although the protected rights of active employees and recalled laid-off employees
either to remain away from work and thus participate in a strike or to go to work
and refrain from striking are identical, there is an important difference in the signifi-
cance which an employer must normally be held to attribute to an unexplained
failure of an active employee to continue working during a strike and a similarly un-
explained failure of a recalled laid-off employee to ,return to work, In ,the absence of
some reasonable basis for a contrary belief, the employer must be held to the logical,
normal assumption that an interruption of the generally regular attendance of an ac-
tive employee during a strike, is due to the strike and the employer must therefore
be prepared to reinstate such an employee upon his application unless, if the strike
be an economic strike, the employee has by that time been replaced.109 But, in the
case of unexplained failure of a recalled laid-off employee to report to work on the
date specified by the employer, such an assumption would be illogical in view of the
equally likely (and perhaps more likely) possibility that the laid-off employee failed
to report because, for some reason or other such as the acquisition of another job
during his layoff, he was no longer interested in returning to his old job.
Applying the foregoing principles to the present case, the Trial Examiner concludes
that the Respondent did not violate the Act by sending its usual recall letters to its
laid-off employees during the strike. For these letters, using the Respondent's custom-
ary phraseology, were sent to the laid-off employees in observance of the Respond-
ent's clear obligation to recall them before hiring new employees ,and, as has been
noted, did not preclude an extension of the right of recall if the laid,off employee
gave a satisfactory or compelling reason, for example, that they were unwilling to
return to work during the strike.
The Trial Examiner also concludes that the Respondent did not discriminate
against those of its recalled laid-off employees who failed to report for work and
did not inform the Respondent that their failure was due to the strike ( i. e., those
laid-off employees whose names are listed in Appendixes E-1 and E-2). For the
reasons which have already been set forth, the Trial Examiner does not believe that,
having observed ,the laid-off employees' right 'to be recalled, the Respondent was re-
quired to speculate why these people might not have reported for work and, on that
basis, either to retain or remove their names from the layoff list, much less to assume
that ,the existence of the strike was their reason for not reporting. If they had in fact
failed to report because of the strike, they could easily have resolved the uncertainty
by so informing the -Respondent, and thus have protected their right to remain on
the layoff list for recall.after ,the strike was over. For, under the Respondent's estab-
lished and reasonable practice, and upon the logic of the situation, the right of the
laid-off employees to have their special layoff status extended was dependent upon
their making such reason known to the Respondent. Having failed to do so, they
are not in a position to claim that the Respondent discriminated against them.
On the other hand, it also follows from the principles which have been discussed,
and the Trial Examiner accordingly finds, that:
fl) The Respondent did discriminate against those laid-off employees who in-
formed it that they were not reporting on the date suggested in the recall letter, be-
cause of the strike (i. e., those persons named in Appendixes D-1, D-2, and D-3).
1(2) The Respondent's discrimination consisted of removing their names from the
layoff list on August 24, 1951, and thereby depriving these persons of such further
employment with ,accrued seniority as they would otherwise rightfully have received
under the Respondent's recall practice.
(3) By such discrimination the Respondent interfered with, restrained, and co-
erced its employees in the exercise of their rights, guaranteed by Section 7 of the Act,
to engage in the existing strike, thereby committing unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
108 Certainly the protected rights of a recalled laid-off employee rest upon an even
broader and stronger foundation than those of a stranger-applicant for a job, which the
Supreme Court held to be protected by Section 8 (3) of the Wagner Act. Phelps Dodge
Corp . v. N L. R. B., 313 U. S. 177.
105 See the holdings in the preceding section of this report and the cases therein cited.
EKCO PRODUCTS COMPANY 219
(4) By such discrimination , the Respondent also discriminated against these per-
sons in regard to their hire and tenure of employment, thereby discouraging member-
ship in the Mine Workers, a labor organization, and committing unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section I, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, the Trial Examiner will
recommend that it cease and desist therefrom and take certain affirmative action in
order to effectuate the policies of the Act.
The Trial Examiner has found that: (1) The Respondent discriminatorily dis-
charged the active employees named in Appendixes B-1 to B-6, inclusive, and C-1
to C-4, inclusive; and (2) by removing their names from the layoff list, the Respond-
ent also discriminatorily deprived the laid-off employees named in Appendixes D-1,
D-2, and D-3 of such further employment as they would otherwise have received
under the Respondent's recall practice. It will therefore be recommended that the
Respondent remedy the injury suffered by these persons because of this discrimination
to the extent that it appears to be necessary to the effectuation of the policies of the Act.
A. The conduct of the strikers
The Respondent contends that, as a matter of policy, all or many of the discrimi-
natees should be barred from the benefits of the ordinary remedies because of im-
proper conduct. In all, its amended answer contains 227 specifications of such
alleged misconduct on the part of unknown persons as well as named discriminatees,
and most of its evidence was offered to support these specifications. In its brief,
however, the Respondent states that it "does not deem it necessary to detail each
act of misconduct," and, with but few record references, points out only "some [of
the] activities which we regard as constituting unprotected misconduct on which the
present state of law is unsettled." Then, to avoid any misunderstanding of its inten-
tion, the Respondent further states that, in spite of this "brief mention of some of the
acts of misconduct . . . it is not to be regarded that the Respondent has waived any
of its views with respect to misconduct on the part of individuals named in [the
amended answer] . . . and/or those persons whose misconduct was developed in
this record."
In the absence of any substantial assistance from the Respondent in the form of
specific references to the evidence, the witnesses, or even the asserted instances of
improper conduct upon which it presumably still relies , the Trial Examiner has, upon
his own initiative, made a detailed study and analysis of the maze of evidence as the
basis of his following findings.
1. Threats to other employees of loss of their jobs or increased union fees
It has already been found that, in soliciting Mine Workers membership applications
from other employees before the strike, striker Mary Trenner told these employees
that, if they did not sign the Mine Workers application then, it would cost them more
later and they might lose their jobs.iio The Trial Examiner also finds, upon the
testimony of employee Dorothea Hamilton, despite the denial of striker Verneda
Oliver, that Verneda Oliver also made substantially the same statements to Hamilton
in soliciting Hamilton's membership. On the other hand, the Trial Examiner credits
the denials made by strikers Mildred Slentz and Marcella Stevens of employee
Eileen Conner 's testimony that , in soliciting memberships before the strike , Slentz
and Stevens told Conner that if she signed then, she would pay nothing but that
otherwise she would be out of a job.
The threats made by Mary Trenner and Verneda Oliver that employees might
lose their jobs if they did not join the Mine Workers were made in the course of
soliciting Mine Workers applications and were obviously intended to coerce the em-
ployees not to exercise their right under the Act to refrain from joining the Mine
Workers or engaging in such concerted activities as the Mine Workers might propose.
210 See section III, A, 1 (c) of this report.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner believes that, because of this intentionally coercive act on their
part, the benefits of the usual remedies of reinstatement and back pay should not,
as a matter of policy, be extended to Mary Trenner or Verneda Oliver. Therefore
the Trial Examiner will not recommend that the Respondent reinstate or make whole
either Mary Trenner or Verneda Oliver for the losses which they may have suffered by
reason of their discriminatory discharge.
There was also testimony given by the Respondent's witnesses that other strikers,
in conversations with fellow employees (although not in soliciting their applications
for Mine Workers membership), made remarks to the general effect that holding
their jobs would depend upon their joining the Mine Workers or that the Mine
Workers would penalize them for every day they worked during the strike. In this
connection, the Trial Examiner credits the testimony of the Respondent's witnesses
concerning remarks made by striker Steve Veselenak and Mike Shfko. Specifically,
the Trial Examiner finds upon employee John Foraker's uncontradicted testimony
that, in an argument with Veselenak at a "beer parlor" 2 or more weeks before the
strike, Foraker told Veselenak that the Mine Workers was "not recognized," that
Veselenak then said that Foraker and another employee by the name of Puzika
would lose their jobs if the Mine Workers should succeed in "getting organized," but
that a few days later Veselenak came to Foraker, apologized for his "beer talk," and
asked Foraker to forget it. And the Trial Examiner also finds upon employee Mar-
garet Roederer's testimony, despite Slifko's denial, that a week or two before the
strike, when her machine was being repaired, she walked over to help on the stacking
table where Slifko was working, and Shfko "just casually said that you had to belong
to the union to work back there."
On the other hand, the Trial Examiner credits two other strikers' denials that
they made remarks attributed to them by the Respondent's witnesses. Thus the Trial
Examiner credits striker Ernest Chalfant's denial Hof employee Susie Morse's testimony
that during the strike Chalfant told her that, if the strike succeeded, the employees
who continued to work would no longer have their jobs. And the Trial Examiner
also credits striker Floyd Arthurs' denial of employee Robert Albright's testimony
that during the strike Arthurs told Albright that Albright would have to pay $10 for
each day he worked during the strike.
The Trial Examiner does not believe that the remarks which he has found were
made by strikers Veselenak and Slifko (nor, for that matter, even the remarks
attributed to strikers Chalfant and Arthurs by the Respondent's witnesses) are proper
grounds for denying to them the benefits of the usual affirmative remedies for the
Respondent's discrimination against them. None of these remarks was made in the
course of soliciting other employees' applications for membership in the Mine
Workers and cannot on that basis be ascribed to an intimidatory motive on the
part of the speaker. They occurred, instead, during the usual type of conversations
which take place between employees who are mutually concerned and puzzled about
the course which they should individually take during an organizational campaign
and strike. In such conversations there is obviously considerable speculation as
to what might happen to them, and each is interested in what the others think
about the matter. Frequently, one of the employees may state in positive terms, and
with or without basis from hearsay or any direct knowledge, the substance of a
belief or fear which has crept into his own mind and for which he actually seeks
only confirmation or denial by his fellow employees. Under these circumstances,
remarks passing between employees about dire possibilities are ordinarily either
"casual" (as Slifko's remark was characterized by the witness, Roederer), or ap-
parently prompted by the uncertainty, timidity, or imagination of the speaker. Cer-
tainly they cannot be sensibly regarded as intended to coerce the listeners, and should
not be held to bar the speakers from the benefits of the usual remedies for an
employer's discrimination against them.
In still other cases, employees appearing as witnesses for the Respondent testified
that strikers Helen Sikora, Delia Oliver, and Margaret Bamfield told them before
the strike that if they did not joint the Mine Workers immediately, they would
have to pay more later. The Trial Examiner credits this testimony despite Sikora's,
Oliver's, and Bamfield's denials, and finds that they made the remarks attributed
to them by the Respondent's witnesses.
In making these remarks, the strikers threatened neither the continued employ-
ment nor any of the other rights of the persons to whom they spoke. On the
contrary, they did no more than prophesy action which might properly have been
taken by the Mine Workers pursuant to its right as a labor organization, recognized
and preserved by the proviso to Section 8 (b) (1) (A) of the Act, "to prescribe
its own rules with respect to the acquisition or retention of membership therein."
For the statements of the three strikers were merely to the effect that membership
EKCO PRODUCTS COMPANY 221
in the Mine Workers would cost much more at a later date and, perhaps inferentially,
that late applicants might for all practical purposes be excluded from membership
by a requirement of an excessive or prohibitive fee. There was no suggestion that
the Mine Workers would cause or attempt to cause the employer to discharge or
otherwise discriminate against employees who failed or were unable to become
members, in such a manner as would constitute a violation of Section 8 (a) (3)
of the Act on the part of the employer, or of Section 8 (b) (2) on the part of
the Mine Workers. Nor was there any suggestion that the Mine Workers would
secure, or attempt to secure, an agreement with the employer making membership
in the Mine Workers a condition of employment, so that charging an excessive or
discriminatory entrance fee would violate the prohibition of Section 8 (b) (5) of
the Act and thus infringe the employees' rights which are implied by that section of
the Act. In short, the threat, if any, was simply that membership in the Mine
Workers might later be more difficult and even practically impossible to obtain,
and not that nonmembers would be discharged or otherwise subjected to discrimina-
tion in regard to their hire, tenure, terms, or conditions of employment.
Since the full substance of their remarks was permissible, the Trial Examiner
finds no reason why Helen Sikora, Delia Oliver, or Margaret Bamfield should be
disqualified as a beneficiary of the usual affirmative remedies of reinstatement and
back pay.
2. Violence and threats thereof
There was a considerable amount of testimony given by the Respondent's witnesses
concerning acts of violence and threats thereof during the strike. In most of these
cases, the Respondent's witnesses were unable to identify the persons who committed
these acts. Thus, upon uncontradicted testimony, the Trial Examiner can find only
that an unknown person or persons:
(a) Cruised about the street in an automobile near employee George Bailey's home
on the night of August 14 and fired a shot.
(b) "Coasted" in a car at 11 o'clock one night to the entrance of employee George
Chesor's home, where Chesor saw two men leave the car with bottles in their hands,
and then drop the bottles and reenter the car, when Chesor made a noise at his
window blinds.
(c) Fired a gun and threw a rock through a window of employee Blanche Hedges'
home at about 3 o'clock one morning.iii
(d) Threw a bottle through the window of the home of employee Sarah Heddle-
son, with a note warning her "to keep out of the Ekco."
(e) Broke a window of the Respondent's plant and cut the telephone line leading
into the plant, at some time around midnight of August 30 or early in the morning of
the next day.
(f) Threatened employee Isabel Walker as she went to work through the picket
line and the strikers standing near the plant during the first week of the strike
that "If you go in there, we'll kill those two boys of yours."
(g) Scattered nails, tacks, and broken glass in the driveway leading to Re-
spondent's plant.
(h) Slashed a tire on employee George Puzika's car on August 22, when Puzika
attended a meeting in a school in the nearby town of Buffalo and left his car outside.
But there is credible testimony upon which the Trial Examiner finds that strikers
David Sills, Verneda Oliver, Mike Slifko, and Michael Koval committed the following
acts and should therefore be excluded from the benefits of the usual affirmative
remedy for the Respondent's discrimination against them:
(1) Strikers David Sills and William Larrick 112 threw tomatoes at employees
as they were going to work during the first and second week of the strike.
"'Hedges, upon whose testimony this finding is based, said that after the rock broke
her window, she saw a man of striker Mike Slifko's height enter and drive away in Slifko's
car, which had been parked nearby without its lights turned on. However, she could
not say definitely from this man's appearance that he was Slifko. Slifko denied partici-
pating in this incident or having any knowledge of it. Upon this state of the evidence,
the Trial Examiner does not find that Slifko was the man who threw the rock which
broke Hedge's window. His recommendation that Slifko be excluded from the benefits
of the reinstatement and backpay order rests upon another incident in which, as is here-
inafter found, Slifko threatened employee Ann Merva.
»a Although William Larrick was one of the strikers originally named in the complaint
as a discriminatee, his name was struck from the complaint on motion made by the
General Counsel during the hearing. Therefore, no finding of discrimination against Lar-
rick has been made.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) One afternoon during the strike, Larrick told Foreman James Cantor, "I'll
come up and blow you off the side of that hill." At about 11: 30 that night, Larrick
and Sills came to Cantor's home and pounded on his window.
(3) During the first week of the strike, Earl Branham, a young man who had been
driving his mother to work at the Respondent's plant, was having a flat tire fixed at
a service station next to the plant. Sills came over with a group of about 15 men
and asked Branham how he'd like to have a couple of broken arms and some more
flat tires.
(4) On the second or third day of the strike, striker Verneda Oliver attempted to
talk with employee Dorothea Hamilton as Hamilton was going to work, and, as
Hamilton tried to ignore her, she grabbed Hamilton by the arms.
(5) On the morning of the second day of the strike, employee Ann Merva, with
employee Betty Weaver as a passenger, drove her car into the plant. Before going
in, Merva stopped the car at the Green Lantern across from the main entrance of
the plant. Striker Mike Slifko came up to the car and told her he would shoot at her
if she went into the plant.113
(6) One day during the strike, striker Michael E. Koval followed employee
Harold Willey from the plant when Willey went to lunch at his parents' home.
When Willey came out after lunch and entered his own car, Koval was there, sitting
in another car with a Mine Workers organizer. Koval said to Willey, "If you get
out, I'll break every bone in your body." When Willey refused, Koval urged him
to join the strike.
The Respondent also presented evidence of what it contends were other threats
made by strikers Albert Spurrier, Gaylord Gattrell, and Mary Trenner against fellow
employees who did not join the strike. The full findings which the Trial Examiner
believes are warranted by the evidence in each of these cases may be stated briefly:
While driving these three women employees and a fellow male employee home
from work on the Friday afternoon preceding the strike, Spurrier stopped to attend
a Mine Workers meeting in Byesville, and then, upon rejoining his passengers whom
he had left in his car, told them that he believed there would be a strike; that a girl
who crossed a picket line during a strike at a place where he had previously worked
had the clothes torn off her back; and that he knew "that was just what they were
going to do here." 114
During a visit with her husband to the home of employee Andrew Gress in the
second week of the strike, striker Mary Trenner asked Gress why he was continuing
to work; told him that someone had thrown a bottle through Sarah Moore's win-
dow,115 and that "they" had torn down the porch of a girl who lived in nearby
Buffalo; and finally asked Gress "how would you like to go uptown some night and
v3 This finding is based upon the testimony of Weaver. Slifko denied'having threatened
to shoot at Merva. He testified that he told Merva merely that she should stay home
and take care of her 3 children ; that he was 40 or 50 feet away from her at the time ;
and that the incident occurred at the east entrance to the plant and away from the high-
way. However, counsel stipulated that on August 16, 1951, Slifko plead guilty to a
complaint of Ann Merva based upon threats allegedly made by him to her and was
placed under a peace bond of $500.
114 This finding is based upon the testimony of Marjorie German, one of Spurrier's
passengers, who testified as a witness for the Respondent. Katherine Swogger, another
passenger who also appeared as a witness for the Respondent, testified that Spurrier told
her in the presence of German that if she did not go on strike, she and her children would
be hounded, her clothes would be torn off her, and her windows would be broken. At first,
her testimony was apparently to the effect that Spurrier said that he himself would do
these things. But then she testified that she could not say whether it was Spurrier or
someone else who said her windows would be broken and that, as to the other prophecies
of harm, "he (Spurrier] didn't say he was going to do it himself, because he is not that
kind of a man. I never got no impression that he would go out all by himself, and do all
that harm " Dorothy Koshock, the third woman passenger who testified as a witness
for the General Counsel, said she had never heard Spurrier make any remarks such as
those attributed to him either by German or Swogger. In his testimony, Spurrier
'admitted having attended the Mine Workers meeting and driving Swogger, German,
and Koshock home, but he denied having made the remarks with which he was charged
by the other witnesses.
175 "Sarah Moore" was not identified. It may, of course, have been the maiden name
of Sarah Heddleson whose window (it has been found) was broken by a bottle thrown
by an unknown person' '
EKCO PRODUCTS COMPANY 223
be walking down the street and somebody jump out of the alley and get ahold of
you?" 116
On,or about August 20, striker Gaylord Gattrell, accompanied by strikers Helen
Mehalko, Margaret Olsavsky, William Sichina, and Louis Stahovec, drove to the
home of employee Merritt Groves, with whom Gattrell was friendly since Groves'
wife was the sister of Gattrell's brother's wife. Parking his car and leaving his
passengers, Gattrell asked Groves if he had gone back to work, and when Groves
said that he had returned to work, Gattrell remarked, "You are going to get hurt." 117
On their face, these remarks made by Spurrier, Trenner, and Gattrell were not
threats. They dealt solely with what had been done or might still be done by unruly
elements of the striking group other than the speakers. They did not inform the
listener that the speaker had taken, or would take, any part in planning, initiating,
assisting, supporting, or committing any acts of violence or harassment of nonstrikers.
They gave no ground for believing that the speakers approved of, or were in sympathy
with, any of these acts. Nor did they indicate that the speakers, in forecasting
possible injury to nonstrikers, were motivated by a desire to coerce their listeners
to stop working, rather than by a desire to give a friendly warning so that the listeners
might avoid injury at the hands of others.
Nor does the record furnish any ground for otherwise interpreting Spurrier's,
Trenner's, or Gattrell's remarks. They were apparently part and parcel of calmly
conducted conversations between employees who were friendly and mutually con-
cerned with what might happen. None of the remarks was made under circumstances
which would indicate that the listener was in danger from the speaker or from any
associates with whom or for whom the speaker was acting, as might have been the
case, for example, if any of the statements had been made on the picket line. There
is no indication in the record, either, that any 1 of the 3 strikers participated in
any of the acts of violence or the direct threats thereof which have already been
found, nor that, through a general dissemination by any of them of reports or
rumors of terror, they were seeking to capitalize upon the acts of violence com-
mitted by others and the fears of the nonstriking employees. In short, there seems
to have been nothing in the remarks (either upon their face or in the light of
any evidence which might affect their significance) to support the Respondent's
argument that they were threats of violence designed to interfere with the non-
strikers' right to continue to work during the strike. Indeed, with the possible ex-
ception of Swogger, it does not appear that any of the nonstrikers so regarded them.
Upon these considerations, the Trial Examiner believes that Spurrier's, Trenner's,
and Gattrell's remarks did not render them unsuitable for further employment nor,
therefore, that they should bar these strikers from the benefits of the remedy of
reinstatement and back pay.
Thus far, the Trial Examiner has recommended that the usual remedies of rein-
statement and back pay be withheld only from those strikers (i. e., David Sills, Ver-
neda Oliver, Mike Slifko, and Michael Koval) whom he has found 'to have engaged
in acts of violence or to have made threats thereof. In view of the recent decision
by,a majority of the Board in the B. V. D. case 116 (which, of course, was issued since
the hearing in the present case), there still remains the question of whether rein-
statement and back pay should, as a matter of policy, also be withheld from the
other striking discriminatees named in the complaint, even though there is no ground
for finding that any of them engaged in any of the acts of violence or made any
threats of violence.
In essence, this was one of the contentions forwarded by the Respondent in its
answer to the complaint, but rejected by the Trial Examiner during the hearing. For,
on motion made by the General Counsel at the beginning of the hearing, the Trial
ne This finding is made upon the testimony of Andrew Gress, who appeared as a witness
for the General Counsel and who stopped working after this visit from Trenner. Trenner
admitted having visited Gress and having urged him to stay away from work. She
testified, however, that Gress said he needed the money, and that all she said was that
the other strikers needed money, too, and that employees with 7 or 8 children stayed away
from work.
117 Groves and Gattrell both testified that Gattrell made this visit. The finding as to
what Gattrell said is based upon Groves' testimony. Gattrell testified that he asked
Groves how he felt about the Mine Workers and about going back to work ; that Groves
explained that he thought he should go back to work to support his family; and that
Gattrell agreed that Groves should do what he thought proper " and everything will be
all right." Gattrell specifically denied having told Groves he would get hurt if be went
back to work.
its B . V. D. Company, Imo., 110 NLRB 1412, issued on December 16, 1954.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner struck from the Respondent's answer those allegations which in substance
asserted that the use of violence and force during the strike by the Mine Workers or
by various strikers deprived all "employees who engaged in, or aided and abetted the
strike and the striking employees" of the protection of the Act against discharge
or refusals to reinstate them, and not merely those employees who themselves en-
gaged in such acts of violence or force or aided and abetted the commission of such
acts.119
However, during the hearing, the Trial Examiner received not only evidence of
violence and threats by identified discriminatees, but also all evidence proffered by
the Respondent concerning acts of violence committed by unknown persons-
both for the purpose of furnishing a relevant background and for the purpose of
keeping open throughout 'the development of the evidence the possibility of identify-
ing the hitherto unknown persons who committed some or all of these acts.120 As a
result, the issue as to the extent of strike violence-by unknown persons as well as by
identified persons-was fully litigated at the hearing, and the Trial Examiner has
already summed up the evidence and made all the factual findings which he believes
are justified by the evidence.
In the B. V D. case the Board found, upon the particular state of facts (which
it set forth in detail), "that widespread violence of the most lawless character accom-
panied the strike" in that case; that it continued over a period of 4 or 5 months; that
the employer's plant was dynamited, causing serious damage; that the Governor of
the State found it necessary to call out the National Guard to keep order; and that,
"Whether or not the strikers expressly authorized such conduct, it remains true that
they invited and accepted the benefit of it and took no steps to discourage or repudi-
ate it. The fair inference is that at least those strikers who continued to picket dur-
ing the violent strike welcomed, approved, and ratified such conduct." The Board
concluded, therefore, that "in the context of violence in this case," it would not be con-
sistent with the policies of the Act to require the employer to reinstate with back pay
those strikers who continued to picket in spite of the violence, even though it was not
shown that they had participated in the unlawful acts.
A careful reading and rereading of the Board's decision in the B. V. D. case has
convinced the Trial Examiner that the Board intended to limit the rule of disqualifi-
cation to the most flagrant cases of continued lawlessness and violence, but otherwise
to adhere to the well-established, general rule that only actual participation or com-
plicity by strikers in acts of lawlessness should lead 'to their individual disbarment
from reinstatement and back pay.121 Upon a comparison of the facts found in the
present case and those found by the Board in the B. V. D. case, the Trial Examiner
notes that some of the same types of acts were common to both cases, but that the
most serious in the B. V. D. case (such as the dynamiting of the plant) had
no parallel, either in degree or number, in the present case. Nor were the periods
either of lawlessness or of the strikers' persistence in picketing after violence became
known to them comparable in the two cases. Furthermore, in te present case, the
incidents of violence reached no such magnitude or generally threatening character
that they could be regarded as necessitating the calling out of the National Guard to
preserve order, as was done by the Governor of the State in the B. V. D. case. The
Trial Examiner therefore does not believe that the exceptional principles laid down
by the Board in the B. V. D. case are applicable to the present case. Accordingly,
he rejects the contention of the Respondent that the acts and threats of violence found
in the present case furnish a basis for disqualifying any of the discriminatees other
than those who participated in such acts.
3. "Mass picketing"
In the amendment to its answer, the Respondent asserts that the strikers named
in the complaint should be barred from any possible order of reinstatement and
I" See paragraph II, C of the "Memorandum and Ruling of the Trial Examiner," filed
in the instant record as Trial Examiner's Exhibit 3, and the court decisions therein
cited for the general rule thus applied by the Trial Examiner.
1w On this theory, the Trial Examiner denied a motion made by the General Counsel to
strike from the Respondent's amended answer a number of allegations that certain acts of
violence were committed by "unknown persons."
123 See, for example, N. L R. B. v. Deena Artware, Inc, 198 F. 2d 645, 652 (C. A. 6) ;
N. L R. B. v. Clinchfield Coal Corp., 145 F. 2d 66, 72 (C A. 4) ; N. L. R. B. v. Quality and
Service Laundry, Inc, 131 F. 2d 182, 183 (C. A. 4), cert. denied 318 U S. 775; N. L. R. B.
v. Kentucky Fire-brick Co, 99 F. 2d '89, 92-93 (C. A. 6) ; Stewart Die Casting Corp v.
N. L. R. B., 114 F. 2d 849, 856 (C. A. 7) ; N. L. R. B. v. Marshall Car Wheel and Foundry
Co. of Marshall, Texas, Inc . 218 F. 2d 409 (C. A. 5).
EKCO PRODUCTS COMPANY 225
back pay because, among other things, they blocked entrance to the plant and stopped
persons from leaving on August 13, 1951. On this issue, evidence was produced to
show the location of the Respondent's plant and its "entrances," the general picketing
situation, and the occurrence of a number of incidents at the various "entrances"
on August 13 and 14, 1951.
Respondent's property is located on the north side of route 21, a State high-
way which is about 50 feet wide at that point and leads eastward to the main
section of the town of Byesville and, in the other direction, to the town of Cam-
bridge. The Respondent's highway frontage extends from the property line of a
"Sohio" service station on the west to the line of Palmer's "Esso" Service Station
on the east. Its property not only extends directly back from the highway between
these two service stations, but also includes a parking lot which lies behind Palmer's
Service Station. The Green Lantern and its parking lot, where many of the strikers
gathered and listened to the Mine Workers organizers on the morning of August 13,
is on the opposite side of route 21 from the Respondent's plant, but not directly
across the highway. The Green Lantern parking lot is opposite the eastern side of
Palmer's Service Station and the Green Lantern building is immediately to the
east, and thus farther away from the Respondent's plant.
The Respondent's plant building stands about 175 feet back from route 21, and
is roughly 100 feet in width and 1,000 feet in depth. It is bordered on its east
side by a driveway, which is approximately 25 feet wide and extends from route 21
on, and along, the eastern edge of the Respondent's property past Palmer's Service
Station, and then between the plant building and the Respondent's parking lot, to
the rear of the building. In the front the building is separated from route 21 by
a lawn and another driveway. This front driveway begins at the western corner of
the Respondent's property at the juncture of route 21 and the property line of
the Sohio Service Station. From that point, the front driveway runs to the western,
front corner of the Respondent's building, and then along the entire front of
the building to its eastern corner, where it joins the other driveway from route 21.
The Respondent's office is in the front of the building on the first floor. Above
it (on a second floor and also in the front of the building), there is a cafeteria for
the employees. Behind the office and the cafeteria lies the production area of
the plant. The doorway through which the employees enter the building is located
at the guard's office on the east side of the building, directly across the side drive-
way from the Respondent's parking lot. This building entrance is approximately
100 feet from the front of the building and 275 feet from route 21.
The employees and the Respondent's officials speak of the various points of
entry upon the Respondent's property as the "plant entrances." Thus, they talk of
the entrance to the driveway from route 21 at Palmer's Service Station as "the
main entrance" or the "Palmer Service Station entrance." They refer to the en-
trance to the driveway from route 21 at the Sohio Service Station as "the west
entrance." And one other so-called "plant entrance" is known as "the east entrance."
It is located on the east side of the Respondent's parking lot, where an alley
coming from route 21 around the eastern and northern sides of Palmer's Service
Station gives access to the Respondent's property through its parking lot.
None of these "plant entrances" is marked by a fence or a gate. Coming to
work, employees either drive their cars through these entrances to the Respondent's
parking lot and then walk to the building entrance at the guard's office, or walk
through the entrances along the driveways directly to the guard's office.
As has been noted, the strike began on Monday morning, August 13, 1951,
with the posting of pickets at the plant entrances. As the employees came to the
plant shortly before 7 o'clock, their normal starting time, they were informed that
there was a strike. Many of them who decided not to go to work stayed in the
vicinity of the plant during the rest of that day and during the next day, August 14.
At most times during these first 2 days of the strike, there were approximately
160 or 170 nonworking employees standing in separate groups at or near each
of the entrances to the plant and also on the Green Lantern parking lot.122 There
was a considerable amount of walking back and forth between these groups, includ-
ing the group at the Green Lantern parking lot across route 21. But, except for
an hour or so during the morning of the first day when most of the people attended
the meeting held by the Mine Workers representatives on the Green Lantern parking
12i The estimates given by different witnesses varied somewhat as to the total number and
the number in each group . The Trial Examiner believes the estimates given by Personnel
Manager Wargo to be reliable and accordingly makes them the basis of these particular
findings.
423784-57-vol. 117-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lot, the number of persons in each of the groups remained fairly constant during
the first 2 days.
The members of the largest group , numbering from 75 to 100 , stood or moved
around in an area embracing the main entrance and the near corner of the Palmer
Service Station property . Another group of 8 or 10 persons stood at the west
entrance , as did a group of similar number at the east entrance . There were also a
few individuals on route 21 directly in front of the plant, and a few pickets were
posted in back of the plant at the junction of the Respondent 's railroad spur and
the main track . The remaining strikers in the vicinity of the plant were gathered on
the Green Lantern parking lot.
Most of the evidence produced by the Respondent to show mass or obstructive
picketing related to what happened at the main entrance when nonstriking em-
ployees entered and left the plant on August 13 and 14. There was also testimony
concerning two other incidents which occurred on the east side of the plant.
Finally, there was testimony which, according to the Respondent , shows that after
August 14 and in violation of the limitations of the temporary restraining order issued
by the Guernsey County Court of Common Pleas on that day, more than two
strikers continued to picket at each of the plant entrances.
As the Trial Examiner has already noted, the Respondent claims the benefit of
all of this evidence although , in its brief, it has not furnished the Trial Examiner
with any substantial assistance in the way of specific references to the evidence, the
witnesses , or the particular incidents upon which it purports to rely. It makes
two contentions : (1) that strikers engaged in obstructive or mass picketing during
the first week of the strike ; and (2 ) that, in violation of the court 's order, there
were more than two pickets at each plant entrance after August 14.
On the other hand , the General Counsel contends in his brief simply that "The
evidence is clear that there was no unlawful mass picketing that debarred employees
from the plant ." His argument is that "The record is silent as to anyone being
physically prevented from entering the plant . Though there were crowds around
the vicinity of the plant at times, practically all of the witnesses presented by Re-
spondent stated that they had no difficulty in going in or out of the plant , although
they did testify as to numerous incidents of name calling."
The Trial Examiner cannot agree entirely either with the General Counsel or
the Respondent in their respective opposing views of the significance of the evi-
dence. If the evidence shows anything clearly, it is that, at times , the strikers
physically obstructed the passage of nonstrikers through the plant entrances , although
at other times, nonstrikers were permitted to pass without interference . There was
thus no constant pattern of obstruction , either in the actions or positions taken by
the strikers, as the Respondent seems to assert through the testimony of its witnesses.
On the other hand , contrary to the General Counsel 's position , there were a number
of incidents in which strikers did physically obstruct nonstrikers in their going into
and coming out of the plant.
In reaching these general conclusions , the Trial Examiner has considered all of
the pertinent evidence which he has been able to find through his independent comb-
ing of the entire record , and has classified it and his findings , according to their sub-
stance and significance , as falling into 1 of 3 general types. The substance and
significance of the evidence can therefore be most clearly set forth by summarizing
the testimony of the various witnesses in connection with the type or class in which
the Trial Examiner believes it falls.
Of the first type, there was the following testimony , which the Trial Examiner
credits:
(1) Personnel Manager Paul Wargo testified that during August 13 and 14 strikers
were strung across the main entrance.
(2) Employee Charles Wilson testified that he came to the plant to go to work on the
second shift at 3:30 p . in. on August 13; he saw a large crowd with picket signs around
the main entrance ; he stayed in the crowd for about half an hour before going home;
strikers "were all across the drive"; he saw no one go into the plant at that time, but
some people from the day shift came out through the crowd ; and when he did go to
work on the following day, the crowd separated for him to pass through.
(3) Employee Marjorie Burt testified that shortly after entering the plant through
the west entrance without interference on the morning of August 13 , she'looked out
of one of the plant windows and saw "an awful big crowd" at the main entrance;
the crowd left room for only one car to pass through , but although cars slowed down,
they did go through.
(4) Employee Mike Williams testified that on the morning of August 14, strikers
narrowed the path for his car through the main entrance , so that he had to drive
'almost" on the lawn.
EKCO PRODUCTS COMPANY 227
(5) Employee Virginia Karas testified that, as her brother drove her to work
through the main entrance on August 13, all but 1 of 7 strikers who were standing
in a line across the driveway stepped aside; and that striker Mike Slifko, who stood
at the end of the line, "started to step out" but her brother drove his car through.
(6) Employee Mary Endley testified that, on August 13 and 14, there were strikers
"all across the driveway"; on August 13 she entered the plant by walking around
the crowd across the lawn; and on August 14 she entered by driving around the crowd
"off the driveway."
(7) Employee Evelyn Davis testified that when she and employee June Berry
were driven to the plant by employee Dean Cale on the morning of August 13, she
noticed a crowd of people at the main entrance; she and Berry got out of the car,
walked to the plant across the grass and around "several people," including strikers
Emil Scrapchansky, James Dolan, and Robert Gaton, who were "standing in the
entrance," ,and "they didn't stop us because we just went in on the grass. They might
have, if we had come down through the driveway."
(8) According to the credible portions of employee Sarah Heddleson's and em-
ployee Agatha Blakesley's testimony, strikers Verneda Oliver and Mary Trenner
were standing at the side of the east entrance as Heddleson drove Blakesley to work
on the third morning of the strike; Verneda Oliver approached so close to the side
of Heddleson's car that, as Heddleson drove through the entrance, the car brushed
Oliver's clothing; and Verneda Oliver and Trenner thereupon called Heddleson a
"dirty son-of-a-bitch." 123
From its submission of this type of testimony, the Respondent seems to believe
that picketing is physically obstructive, and should disqualify the participating strikers
from reinstatement and back pay, when it consists only of:
(a) The presence of strikers in a line across a plant entrance at starting or quitting
time, even though there may be adequate room for employees on foot to pass through
the entrance, between or around the pickets, and even though the pickets voluntarily
part to make way for nonstrikers as they approach on foot or in automobiles; or
(b) The approach of a striker to a nonstriker in the plant entranceway, with a
request or signal that the nonstriker stop, even though the striker does not step into
the direct, immediate path of the nonstriker, and adequate room for passage is left
for the nonstriker, should he decide not to comply with the striker's request.
If this be its, belief-as apparently it is-the Respondent is in error. For, in cases
of these types, it cannot be said that the strikers physically obstruct the nonstrikers
or threaten to do so. On the contrary, their conduct constitutes an exercise by them
of their right to attempt peaceably to persuade their fellow employees to join the
strike, and certainly presents no ground for withholding the Act's remedies from the
strikers. The Trial Examiner accordingly concludes that the evidence and factual
iza This finding is made upon a consideration of the testimony of Heddleson, Blakesley,
Verneda Oliver, and Trenner.
Heddleson's testimony was that Mary Trenner just stood at the side of the building
and did not do anything; that Verneda Oliver "stepped in In the middle of the road and
made the remark that she didn't intend to get out for me to pass through" ; and that
Heddleson stopped her car before driving through. Blakesley testified that Trenner and
Verneda Oliver "were standing there and more or less got in front of the car" ; and that
"they weren't going to let us through. They were going to string across the highway
and she [Heddleson] just kept on going and she brushed Verneda Oliver's clothing. She
was that close to her." Both Heddleson and Blakesley agreed that Oliver and Trenner
both called out the epithet set forth in the text.
On the other hand, Verneda Oliver testified that she was "standing along the side"
when Heddleson drove in that morning and brushed against her with the car ; she
denied that she stood in front of Heddleson's car, or that she told Heddleson she did not
intend to get out of her way. Both Verneda Oliver and Trenner also denied that either of
them called Heddleson the name given in the text, although at an earlier point in her
testimony Trenner admitted that she did not remember whether she had done so or not.
Faced with these differing versions of the incident, the Trial Examiner cannot rely
completely upon the version of any 1 of the 4 witnesses. In view of Blakesley's failure to
give Heddleson support on several points, he credits Verneda Oliver's denials of Heddle-
son's testimony that Oliver and Trenner stood in the middle of the road and that Oliver
told Heddleson she did not intend to move aside to permit Heddleson to pass through.
On the other hand, In accordance with the substance of Blakesley's testimony, the Trial
Examiner finds that Verneda Oliver did approach so close to the side of Heddleson's car
that the car brushed her clothing. Finally, the Trial Examiner finds, in accordance with
Heddleson's and Blakesley's testimony, and in spite , of Verneda Oliver's and Trenner's
denials, that Oliver and Trenner called Heddleson a "dirty son-of-a-bitch." "
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings summarized up to this point, although relevant to the general picture, would
not support holding that any of the strikers engaged in obstructive or mass picketing,
or that they thereby forfeited their rights to reinstatement and back pay.
The substance of the second, general type of testimony given by the Respondent's
witnesses, is quite different. Of this type, there was the following testimony, which
the Trial Examiner credits:
(1) Employee Robert Allbright testified that on August 13, although nonstrikers
entered the plant both on foot and in cars, the strikers "would crowd around the
cars trying to come in," and thus would try to stop the nonstrikers from coming to
work.
(2) Office employee Clay Jirrels testified that from the office window he observed
that, as employees were going home at 3:30 p. in. on August 13, the "crowd seemed
to encircle [the] cars and used the word `scab"" ; and that, at quitting time on August
14, there were "25 or 30 people in the main driveway."
(3) Employee Andrew Stoney testified that he did not go to work on the morning
of August 13 because a group of 45 or 50 persons, including strikers Robert Gaton
and William Sichina, "were lined across" the main entrance, and, for about 5
minutes, blocked a car which had reached the entrance ahead of Stoney's car.
Stoney further testified that he drove into the plant the next day without incident.
(4) Employee Beryl Allen testified that as her husband drove her and 3 other
women employees up to the main entrance on the morning of August 13, strikers
stepped in front of the entrance; that she and the 3 other women walked into
the plant; and that she saw 10 or 12 other cars stopped that morning.
(5) Employee Peter Mnich testified that employee Dick Burt drove him "at
normal speed" through the main entrance and into the plant on August 13, although
strikers jumped in front of the car, held up their hands, and then jumped back.
(6) Employee Charles Ruby, who worked on the second shift, testified that upon
his being driven to work by employee Ed Wetherholt at 3:30 p. in. on August 13,
they found a crowd of approximately 40 or 50 people standing in the driveway
at the main entrance; some of these people stepped in front of Wetherholt's car,
stopping it, and these men asked Ruby and Wetherholt to "stay out"; Ruby and
Wetherholt said they were going in, and the strikers then stepped back and permitted
the 2 nonstrikers to pass through and into the plant.
(7) Employee Mabel Oliver testified that on the mornings of both August 13
and 14, "close to 100" strikers were "grouped across the road, blocking the [main]
entrance to the plant"; she had to "walk around to the yard" on August 13, but
she walked through the group on August 14.
(8) Employee Pauline Vahala testified that one morning about 4 days after
the strike began, she and employee Stella Wonicz were about to enter upon the
plant property through a gap in a fence "about twenty-five feet to the left of the
parking lot"; striker David Sills asked them where they thought they were going,
and blocked their way so that they had to walk around and go in the side entrance.
It is no answer to this block of the Respondent's evidence for the General
Counsel to point out, as he does, that, so far as the record shows, no nonstrikers
were "physically prevented" from eventually entering the plant. For a temporary
physical obstruction or restraint upon nonstrikers' ingress or egress, or even an
unsuccessful attempt thereat, is also repugnant to the policies of the Act, and should
result in the loss by the participating strikers of their rights to reinstatement and
back pay. The Trial Examiner accordingly finds that, on the occasions mentioned
in the testimony just summarized, strikers did obstructively picket the Respondent's
plant, and that, because of their participation in these incidents, strikers Robert
Gaton, William Sichina, and David Sills (the only persons whom the Respondent's
witnesses identified) forfeited their rights to reinstatement and back pay. Following
the generally established rule, the Trial Examiner finds no ground for extending this
forfeiture to the strikers generally.
We come now to a consideration of the last type of Respondent's evidence
relating to picketing by more than two strikers at each plant entrance after August 14,
the date the court issued its restraining order.
It seems clear from the testimony of Personnel Manager Wargo and employee
Clay Jirrels, and the Trial Examiner accordingly finds, that more than two strikers
did picket each of the Respondent's entrances at starting or quitting time after August
14 and until August 31. But the evidence furnishes no basis for a finding as to the
identity of any striker who picketed at any time during this period when there were
more than two pickets at the entrance which he or she was picketing.
Wargo testified simply that on August 15, and for the remainder of the first week
of the strike, there were about 50 people at the main entrance at starting and quitting
times; that thereafter the number diminished and that during the second and third
EKCO PRODUCTS COMPANY 229
weeks of the strike, there were always at least 3 pickets at each entrance, and at
limes as many as 10 or 12 at the main entrance and 6 at each of the other entrances.
He did not name any of the pickets.
Jirrels testified that there were about 25 or 30 people in the driveway in the main
entrance, and 6 to 8 people in the driveway of the west entrance throughout the
first week of the strike; during the second week, the numbers "dwindled, but not
too much"; and, on August 13 and 14, and throughout the strike, the people in
these groups chanted "scab" at the nonstrikers as they left the plant. Upon a
question by the Respondent's counsel as to whether he could identify any of the
people whom he saw "chanting during the strike," 124 Jirrels answered that he could.
Counsel then asked Jirrels in his next two questions whether "between August 14th
and August 31st," he saw "these people in the driveway," and could identify them.
In reply, Jirrels said that, although "it has been more than two and a half years,"
he could name some of them, and gave the names of 17 of the strikers.125
Upon consideration of this setting in which Jirrels gave his answer to these
last two questions, the Trial Examiner does not believe that he realized that these
questions, unlike the immediately preceding question, excluded the first and possibly
also the second day of the strike, when there was no order limiting the number
of pickets. Nor, therefore, does the Trial Examiner believe that Jirrels intended
by his answers to say that he saw every one of the 17 people in the plant driveway
at some time or times on or after August 15. That this was apparently not
his intention is also affirmatively shown by his testimony on cross-examination, which
indicated that he was understandably uncertain as to the "exact days" on which he
observed the acts of various strikers concerning whom he testified, and, for example,
that in the case of one of them (Anna Rushin), his recollection was merely that
he may have seen her at the plant entrance only once, and that it might have been
on August 13 or 14.
Furthermore, Jirrels did not testify as to whether he saw any 3 or more of the 17
strikers or other strikers, either in the plant's driveway or at a plant entrance, at the
same time during the period of 17 days from August 15 to 31, inclusive.
Upon his consideration of the evidence, therefore, the Trial Examiner finds no
reliable basis in the record for concluding that any specific striker or strikers engaged
in the picketing which violated the court's restraining order, nor, under established
principles, for recommending that the reinstatement and back-pay rights of any of
the strikers named in the amended complaint be withheld because of participation
in a course of picketing forbidden by the court's order.
4. "Scurrilous name-calling"
A great portion of the Respondent's case was devoted to testimony of nonstrikers
that, as they went to and from work and even while they were "downtown" in
Byesville, they were called "scabs" and other "scurrilous names" by the strikers.
In all, the Respondent's witnesses charged 37 of the strikers listed in the amended
complaint with having indulged in this name-calling. In view of the possible bear-
ing of the decision of the Court of Appeals for the Fourth Circuit in the Longview
Furniture case,126 which was issued on July 27, 1953, at roughly the midpoint in the
hearing in the present case, the Trial Examiner received this testimony and deferred
ruling upon the General Counsel's motion to strike those allegations of the Re-
spondent's amended answer which asserted that "scurrilous name-calling" constituted
a ground for withholding the remedies of reinstatement and back pay.
So far as any name-calling by strikers appears to have occurred away from the
vicinity of the plant, the probative evidence justifies a finding only that various
strikers called nonstrikers "scabs." Thus, with respect to these incidents, the Trial
Examiner finds, upon the testimony of various witnesses for the Respondent, only that,
during the strike, strikers Charles Dudley, Bill Larrick, David Sills, Mike Slifko, Mary
Trenner, and Mike Voytko called nonstrikers "scabs" upon the streets of Byesville,
either downtown or in the neighborhood of the nonstrikers' homes; and that strikers
Emil Scrapchansky and James Dolan, upon meeting nonstriker George Puzika at a
"A Emphasis is supplied in this and the next quotation in the text. Both quotations
are taken from questions put to Jirrels by Respondent's counsel.
5 Bonnie Barnett, Eleanor Hronec, Georgie Novotny, William Sichina, Verneda Oliver,
Frank Johnson, Bill Larrick, Mike Slifko, Charles Callihan, Charles Dudley, George
Haschak, Ina Belle Hatcher, Margaret Olsavsky, Jack Phillips, Anna Rushin, David Sills,
and Louis Stahovec
126 206 F. 2d 274
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restaurant in Buffalo during the strike, suggested that Puzika get a job as a "baby-sitter"
and called him "a scab." 127
There is credible evidence, however, that, while in the vicinity of the plant, various
strikers called nonstrikers names which were stronger than "scab." A considerable
portion of this evidence relates to strikers Verneda Oliver and Mary Trenner. Upon
the testimony of the nonstriker concerned in each incident and despite Oliver's and
Trenner's specific denials and their general denials that they ever swore or cursed
at anyone, the Trial Examiner finds that:
(1) Verneda Oliver and Trenner called employee Sarah Heddleson a "dirty son-
of-a-bitch" when Heddleson drove through the east entrance to the plant on the
second or third day of the strike.128
(2) In separate incidents, Verneda Oliver and Trenner together called employees
Helen Holub and Betty Ann Stalter a "God damn scab."
(3) Verneda Oliver called employees Dorothea Hamilton and Pauline Vahala
"sons-of-bitches."
There is also credible evidence that other strikers used stronger terms than "scab"
in the vicinity of the plant. Upon this evidence, the Trial Examiner finds (in spite of
denials by those of the strikers in question who testified on rebuttal) that:
(1) Striker Mike Slifko called employee George Bailey a "one-eyed son-of-a-
bitch."
(2) Striker William Sichina called employee Mary Endley a "God-damned yellow-
bellied scab."
(3) Strikers Mike Slifko and Edward Polasky called employee Peter Mnich a
"Yellow-belly."
(4) Strikers Verneda Oliver, Eleanor Hronec, Bill Larrick, and David Sills called
employee Betty Ann Stalter "a God-damn scab" and "yellow." 129
(5) Striker Charles Dudley called employees Melvin Tolliver and Pat McCullough
yellow-bellied scabs" or "yellow scabs." 130
Finally, testimony ,was given by a large number of Respondent's witnesses to the
general effect that many of the strikers standing around the plant simply called "scab"
at the nonstriking employees as they went to or from work. Some comment as to .the
general nature and substance of this testimony is necessary. That "sca'b"-calling was
common seems clear, and the Trial Examiner so finds. However, in face of point-
blank denials by a number of the strikers, the difficulty lies in determining which of
1w This finding is based upon the consistent portions of the testimony of Puzika, Scrap-
chansky, and Dolan. Neither their demeanor nor the substance of their testimony or of
any other testimony relating to the conduct of any of these three witnesses affords any
basis for a reasonable resolution of certain other points of conflict in their testimony.
Since the Respondent has the burden of proof as to misconduct affecting the remedy, the
Trial Examiner makes no finding that (as Puzika testified but both Scrapchansky and
Dolan denied) these two strikers also called Puzika "dirty son-of-a-bitch" and accused
him of "taking food from [their] kids' mouths."
For the same reason, the Trial Examiner makes no finding that (as nonstriker Virginia
Karas testified but strikers William Sichina and Andrew Balik denied) Sichina stepped
up to Balik as Balik was dancing with Karas at a New Year's party at the end of 1952,
and asked Balik if he was going to dance with a "damn scab."
ize Although both Verneda Oliver and Trenner denied having called out this name,
Trenner admitted at another point in her testimony that she didn't know whether she
did or not
iri The Trial Examiner makes this additional finding with respect to Verneda Oliver in
spite of her denial that she ever cursed or swore at anybody during the strike Neither
Larrick nor David Sills testified at all. Eleanor Hronec (who, Stalter testified, also
accused her on this occasion of "tattling" to the Respondent) did not testify as to this
incident nor, therefore, deny it.
Stalter testified that striker Margaret Bamfield was also in the group and called her
these names. The Trial Examiner, however, credits Bamfleld's testimony that, although
she heard others use such terms as "damn scab," she herself engaged in no name-calling of
any sort.
130 Employee Pauline Vabala testified as to another alleged name-calling incident in-
volving five other strikers . Alice McCall, Hettle Mason, Helen Sikora, Bonnie Barnett,
and Georgie Novotny. According to, Vahala's testimony on direct examination, on the
morning of the first day of the strike, these five people called her a "scab," a "dirty
scab," and a "dirty bitch." On cross-examination, however, she testified that she could
remember only that they called her "scab" and "damn scab." In view of this uncer-
tainty in her own testimony, and the specific denials by each of the five strikers, the Trial
Examiner credits the denials.
EKCO PRODUCTS COMPANY 231
the strikers participated, and the extent to which they did so. Some of the strikers
were named as participants on only one occasion, and by only a single witness.
Others were identified as "scab"-callers by more than 1 of the nonstrikers and by as
many as 8. Moreover, the bases given by the Respondent's witnesses for their identi-
fication of particular strikers as "scab"-callers varied from positive testimony given
by some of these witnesses on close-hand observation and recognition of the voices
of the strikers in question, to apparent conclusions by -other witnesses that the strikers
whom they identified as calling "scab" were doing so merely because, although their
voices were indistinguishable, they were in the group from which the cry issued. Ex-
treme examples of testimony of this sort were furnished by employees Clay Jirrels and
Michael Jamiel, the witnesses who named the greatest number of "scab"-callers-
many of whom were mentioned by none of the other witnesses. For the testimony
of both these witnesses was based upon their observation of the striking group of
75 or more persons on route 21 during the first 2 days of the strike, from positions
taken by them at windows of the Respondent's plant that were at least 175 feet from
the point where the strikers stood. Yet, according to their testimony, from these two
remote points they were not only able to hear ia constant repetition of the word
"scab," but were also able to ascertain and identify the specific persons who were call-
ing out the name from the movements of their mouths.
Upon his appraisal of all this 'testimony, the Trial Examiner finds that 21 of the
strikers called "scab" at nonstrikers in the vicinity of the plant during the strike.
Specifically, he credits the testimony of the Respondent's witnesses involving (a) 4
strikers who admitted having engaged in "scab"-calling; 131 (b) 6 strikers who did
not testify at all; 132 .(c) 8 strikers who testified, but only on other points; 133 and
(d) 3 strikers, in spite of their denials that they had engaged in name-calling.134 On
the other hand, the Trial Examiner credits,the denials of 15 other strikers that they
had engaged in any name-calling, in spite of the contrary testimony of 1 or more of
the Respondent's witnesses.135
Since the close of the hearing in the present case, the Board has issued its decision
pursuant to the remand by the Court of Appeals for the Fourth Circuit in the Long-
view Furniture, case.136 It appears from its decision that the Board, rather than seek
Supreme Court review of the court's remand, has applied "the principle laid down
by the Court [of Appeals] in its decision as the rule of law for this case only" [em-
phasis supplied]; and that the Board in other cases will still follow the previously
established rule that name-calling by strikers is not sufficient to bar them from re-
instatement or back pay.137 Accordingly, the Trial Examiner concludes that the
lname-calling by strikers in the present case does not affect their rights to these
remedies.
5. "Economic threats and coercion"
In its amended answer, the Respondent asserts that some of the strikers named in
the amended complaint should be barred from reinstatement and back pay because
they made "economic threats" against nonstrikers or engaged in "economic coercion."
In its brief, the Respondent characterizes these alleged acts as "engaging in or threat-
ening to engage in acts akin to a secondary boycott."
Upon the General Counsel's objection, the Trial Examiner rejected offers by the
Respondent to prove a number of -these alleged economic threats or actual reprisals
by hearsay rather than by direct testimony.138 However, in the absence of objection,
the Trial Examiner received direct evidence of:
13i Strikers Charles Dudley, Georgie Ann Novotny, Verneda Oliver, and Mary Trenner.
'33 Strikers Mary Lonca, Margaret Olsavsky, Jack C. Phillips, Edward Polasky, David
L. Sills, and Edna Watson.
'm Strikers Robert Blancett, Carrie M. Barnett, Albert S. Batyk, Robert F. Gaton,.
George Haschak, Eleanor Hronec, Louis Stahovec, and Mike Voytko
134 Strikers Emil Scrapchansky, William Sichina, and Mike Slifko.
136 Strikers Helen A. Bailey, Paul Bailey, Andrew P. Balik, Margaret Bamfield, Bonnie
Barnett, Charles Callihan, Oris Channell , Ina Belle Hatcher, Elms, La Wanda Hogan, Paul
Holub, John Hronec, Hettie Delores Mason, Alice Jean McCall, Anna S. Rushin, and
Helen Sikora
133 110 NLRB 1734.
137 See the court and Board decisions cited in the dissenting opinion of Member Murdock.
18 Thus, the Trial Examiner rejected the Respondent's offers to prove
(1) By the testimony of nonstriker Beryl Allen that, according to her husband,
striker Mike Slifko visited her husband at his barbershop with the business agent of her
husband's union, and sought to have her husband's union card revoked.
(2) By the testimony of nonstriker Lucille Henry that, according to her husband
and her brother , the agent of a union representing the employees where the husband and
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) A threat made by striker Verneda Oliver to nonstriker Mabel Oliver that the
strikers would not patronize Oliver's husband's shoe repair shop nor ,the barbershop
of the husband of nonstriker Beryl Allen.
(b) Notice given by striker Elma La Wanda Hogan to the son of one of the non-
strikers that Hogan was terminating his delivery of the local newspaper to her home,
because his mother had not joined the strike.
(c) A refusal by striker Kenneth Trott, during the strike, to permit nonstriker
Susie Morse to harvest a crop of corn which Morse had planted with Trott's consent
on Trott's land.
Only the evidence as to (c) was contradicted. If the Trial Examiner believed it to
be material, the Trial Examiner would find (a) and (b) and credit the denial of
Kenneth Trott as to ^(c). But the Trial Examiner does not believe any of these inci-
dents have any bearing upon the question of whether the particular strikers should
be reinstated or awarded back pay. Withholding business or favor from nonstrikers
or their relatives was certainly the right of the strikers and was therefore lawful. If
Trott did anything improper, it was a breach of contract for which Morse had a
remedy in the courts. Short of breaches of the peace and interferences with em-
ployee rights, the Board cannot, as a practical matter, undertake-and, as a matter
of policy, should not undertake-the policing and regulation of the purely personal,
day-ito-day relationships between strikers and nonstrikers.
6. Poststrike conduct
The Respondent asserts that the poststrike conduct of three of the strikers named
in the amended complaint has rendered them unsuitable for further employment and
that they are not entitled to reinstatement or back pay. The Trial Examiner agrees
that, in view of striker Chester Wisenberger's plea of guilty and his conviction in the
Cambridge police court on July 7, 1953, on a charge of indecent exposure, the
Respondent should not be required to reinstate him to his former or a substantially
equivalent position. In Wisenberger's case, therefore, the Trial Examiner recom-
mends only that the Respondent make him whole for any loss of earnings suffered
by him by reason of its discrimination against him, from the date of his application
for reinstatement to July 7, 1953.
As to strikers Charles Gresh and John McCall, the Respondent urges that the
remedies of reinstatement and back pay be withheld because their testimony at the
hearing was "patently false." Gresh testified on direct examination that in a tele-
phone call to Personnel Manager Wargo on August 21, 1951, he asked Wargo whether
he could work the next day and was told by Wargo that if Wargo "accepted" Gresh,
he would have to ",accept them all." On cross-examination, however, he testified that
Mrs. Mary Stone, a neighbor, made this telephone call on his behalf and then told
Gresh of Wargo's answer. McCall testified that he received a registered letter "some-
what similar" (although he "wouldn't say it was identical") to the letter in which
the Respondent advised its striking employees on August 16, 1951, that if they did
not report for work by August 20, it would be assumed that they had quit their jobs.
However, the Respondent produced an envelope addressed to McCall which was still
sealed and bore not only the usual post office stampings indicating that it had been
sent to McCall by registered mail, but also the post office notation, "Refused." With
the consent of counsel, the Trial Examiner opened this envelope during the hearing.
Enclosed was the Respondent's letter of August 16, addressed to McCall.
Upon this state of the record, it is clear that both Gresh and McCall gave erroneous
testimony. However, it is not at all clear that, in doing so, they were conscious of
their error and thus exhibited the "lack of candor" 139 which would bar them from
reinstatement and back pay. On the contrary, from his examination of Gresh's testi-
mony and his recollection of Gresh's demeanor on the stand, the Trial Examiner
would ascribe Gresh's error to an honest belief on his part that a telephone call
brother worked told them that the husband would be "blackballed" and that both the
husband and brother would lose their jobs, if Mrs. Henry continued to work during the
strike
(3) By the testimony of nonstriker Iva Marie Scholik that according to a neighbor
and also nonstriker Ann Merva (neither of whom testified on the point), striker Harry
Ellison told the neighbor that Scholik's husband's pension from the Mine Workers was
to be taken away.
(4) By the testimony of nonstriker Alberta Martin that, according to Otis Callihan
(one of her neighbors), Callihan was told by one Hashman (another neighbor and the
father of striker Delia Oliver) that because Martin was a "scab," Hashman would no
longer permit her access to his water supply, upon which she depended for drinking water.
119 O'Donnell's Sea Grill, 55 NLRB 828.
EKCO PRODUCTS COMPANY 233
made by a friend for him and in his presence was in sulstance a telephone call made
by him and might therefore be properly so described. Nor, in view of the tricks which
memory plays, can the Trial Examiner conclude that McCall's testimony was not only
erroneous, but deliberately false. For it related to a letter which the Respondent had
sent to all the striking employees 2 years before McCall gave his testimony. The Trial
Examiner therefore rejects the Respondent's contention that by reason of patent
falsities in their testimony, Gresh and McCall should be barred from reinstatement or
back pay.
B. Specific recommendations
In Appendixes B, C, D, and E of this report, and their various subdivisions, the
Trial Examiner has formulated the recommendations affecting the persons named in
the amended complaint, which he believes are necessary to effectuate the policies
of the Act. These recommendations have been worked out (1) to provide for the
dismissal of the complaint as to those persons against whom the Trial Examiner has
found that the Respondent did not discriminate (see Appendixes E-1 and E-2);
and (2) to provide, with respect to the other persons named in the amended com-
plaint, and consistently with pertinent considerations of general policy, "a restoration
of the situation as nearly as possible, to that which would have obtained but for the
illegal discrimination." 140 (See Appendixes B, C, and D.)
The Respondent's discrimination against the persons named in Appendixes B, C,
and D has resulted in several different general kinds of injury to these persons. The
Respondent's discriminatory discharge of the active employees terminated their em-
ployment by the Respondent and deprived them of the earnings which they would
otherwise have received in the course of such employment. (See Appendixes B and
C and the subdivisions thereof.) The Respondent's discriminatory removal of the
laid-off employees from the layoff list deprived them of such further employment
by the Respondent and their normal earnings in the course thereof, as they would
otherwise have received under the Respondent's layoff and recall practice. (See
Appendixes D-1, D-2, and D-3.) Finally, in reemploying some of the active and
the laid-off employees named in the amended complaint, the Respondent took the
position that these persons would be treated as new employees (i. e., without benefit
of their prestrike seniority) unless the Board should order otherwise. (See Appen-
dixes B-2, C-2, and D-2, and section III, C, 2 (e) of this report.)
Accordingly, in order to remedy these injuries to the discriminatees and thus to
effectuate the policies of the Act, the Trial Examiner makes the various recommen-
dations set forth in Appendixes B, C, and D, which provide generally for:
(1) A resumption of the active employment of the discriminatees by the Re-
spondent, with all their rights and privileges as employees, through an immediate
offer of reinstatement to those discriminatees who were active employees at the
time of the strike (see Appendixes B-1 and C-1), and through the operation of the
Respondent's established layoff and recall practice in the cases of the discriminatees
who were on layoff status at the time of the strike (see Appendixes D-1 to D-3,
inclusive).
(2) The restoration to the discriminatees of their seniority from their respective
original prestrike hiring dates.
(3) The compensation of the discriminatees (computed on a quarterly basis in
accordance with the Woolworth case formula) 141 for any loss of earnings which
they may have suffered by reason of the Respondent's discrimination against them.
(4) The reinstatement and indemnification of any of the discriminatees who were
reemployed by the Respondent either before the close of the hearing or since that
time, but who may thereafter have been laid off due to the Respondent's failure to
credit them with full seniority from the dates of their original, prestrike hire.
In working out the details of his recommendations to accomplish these general
purposes, the Trial Examiner has taken into account the various facts which affect
the reinstatement and back-pay rights of particular discriminatees.
Thus, he has recommended back pay in the case of the discriminatorily discharged
active employees (who the Trial Examiner has found were strikers) only from the
dates of their respective applications for reinstatement 142 or, in the cases of such
discriminatees who have failed to apply for reinstatement, from a date 30 days after
the service of this report, during which period the Trial Examiner has recommended
that the Respondent correct its discrimination against them by offering them re-
instatement. (See Appendixes B-1 and C-1.)
140 Phelps Dodge Corp v. N. L. R B., 313 U. S. 177, 194.
141 F. W. Woolworth Company, 90 NLRB 289.
142 See Kallaher and Mee, Inc, 87 NLRB 410; 413; Kitty Clover, Inc, 103 NLRB 1665;
Cowles Publsshing Company, 106 NLRB 801.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has also treated the back pay and reinstatement rights of
two of the persons named in the amended complaint ( i. e., Ina Belle Hatcher and
Alberta Penn) as terminating with their discharge for cause on April 7, 1953.143
(See Appendixes B-3 and C-3.)
The Trial Examiner has further found that, because of poststrike conduct render-
ing him unsuitable for further employment by the Respondent, the back pay and
reinstatement rights of still another discriminatee terminated on the date of his
criminal conviction by an Ohio court for his misconduct. (See Appendix B-4
and section V, A, 6 of this report.)
Finally, the Trial Examiner has recommended neither back pay nor reinstatement
for 8 of the discriminatees-in the case of Robert Blancett, because it has been
found that, in a statement made by him to Personnel Manager Wargo, he volun-
tarily disclaimed interest in further employment by the Respondent before he made
his one and only application for reinstatement (see Appendix B-5 and section III,
C, 2 (a) and (b) of this report), and, in the cases of the 7 other persons, because
of improper conduct on their part before, or during, the strike. (See Appendixes
B-6 and C-4, and also section V (A), subsections 1, 2, and 3, of this report.)
In formulating his recommendations, the Trial Examiner has also considered
the special problems which are raised in the cases of the laid-off employees. (See
Appendixes D-1, D-2, and D-3.) Had it not been for the Respondent's discrimina-
tory removal of their names from the layoff list, it is possible that, in the Respondent's
normal application of its layoff and recall practice, they would have been recalled
and would perhaps be still actively employed by the Respondent. On this supposi-
tion, they would now be entitled to immediate employment by the Respondent, with
full seniority, and also to reimbursement for loss of earnings resulting from the
Respondent's failure to recall them. But the present record does not present enough
facts to determine whether, even in the normal course of the Respondent's practice
and absent the discrimination which has been found, these laid-off employees would
have been recalled.144 On the basis of the present record, therefore, the Trial
Examiner can make only the specific recommendation that the laid-off employees be
restored, with full seniority, to the layoff list for the purpose of filling vacancies,
and the additional broad recommendation, to be dealt with in the compliance stage,
that the Respondent also make the laid-off employees whole for any loss of earnings
suffered by them as a result of the Respondent's failure to recall them earlier, due
to the discriminatory removal of their names from the layoff list.
In addition to the various other affirmative recommendations set forth specifically
in the various appendixes, the Trial Examiner will also recommend that, upon
request, the Respondent 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 analyzing the amounts of
back pay and the right to reinstatement under the terms recommended in this report.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 50, and United Steelworkers of
America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act.
143 Following their rehire as new employees in the press department on March 23, 1953,
they were discharged on April 7, 1953, for refusing to operate a press of a different type
from those which they had previously operated. The General Counsel makes no con-
tention that these discharges were a continuation of the Respondent's discrimination
against these employees. He argues merely that, since their duties were changed, they
were not reinstated to their former positions. However, in the absence of a contention
that the discharges were discriminatory and in view of the fact that the separations
were not due to the Respondent's failure to credit these two employees with their pre-
strike seniority, the Trial Examiner finds that the discharges were for cause and ter-
minated any reinstatement or back-pay rights which either of these employees may have
had.
194 The record shows hires of new employees only up to November 19, 1953 It cannot
reasonably be assumed that, in the absence of the Respondent's discrimination, any of
the laid-off employees named In Appendixes D-1, D-2, and D-3 would have been re-
called to the jobs filled by new employees. For some, if not all, of these new employees
were hired to replace the discriminatorily discharged active employees , whose rights to
reinstatement certainly had priority over those of the laid-off employes.
EKCO PRODUCTS COMPANY 235
2. By discriminating in regard to the hire and tenure of employment of the
-employees named in Appendixes B-i to B-6, inclusive, C-1 to C-4, inclusive, and
D-1 to D-3, inclusive, thereby discouraging membership in United Mine Workers
of America and District 50 thereof, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act. -
3. By the above unfair labor practices and by otherwise interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
Employees named in the amended complaint with (1) summary of findings as to
their employee status at the beginning of the strike and the dates of their initial
applications for reinstatement (if any); and (2) an index to the principal ultimate
findings, conclusions, and recommendations concerning each of them
Immediate prestrike status First application
For dis-
position
see ap-
pendix
below
Thelma Adams_______________ Laid off----------------------- Sept. 4, 1951___________________ D-2
Floyd C. Arthurs_____________ Active------------------------ Sept. 10,1951__________________ B-1
Helen A Bailey______________ ---- do------- .----------------- Nov. 26, 1951__________________ B-1
Paul Bailey___________________------- ----- do------------------------- Nov. 24,1951__________________ B-1
Balik_____________ ----- do------------------------- Nov. 26,1951 ------------------ B-1
Arthur Ball___________________ ----- do------------------------- Nov 23,1951__________________ B-1
Margaret Bamfield___________ ----- do------------------------- -----do------------------------- B-1
Sarah Barnes_________________ Laid off----------------------- Oct. 17, 1951 ------------------ E-2
Shirley Barnes________________ Active- ---------------------- Nov. 27,1951 ------------------ B-1
Bonnie Barnett_______________ ----do------------------------ Nov. 2.3, 1951__________________ B-2
Carrie M. Barnett____________ -----do---- ---------- None- - - - - - - - - - - - - - - - - - - - - - - - - C-1
Shirley Barnett_______________ Laid off----------------------- Nov. 27, 1951______________ ___ E-2
Albeit S. Batyk______________ Active------------------------ Between Aug 20 and 31, 1951__ B-1
Hubert Bayly________________ -----do------------------------ None-------------------------- C-1
Robert Blancett______________ -----do------------------------- Last week in October 1951_____ B-5
George Brier__________________ Laid off----------------------- Sept 14,1951 ------------------ D-1
Toney Bumbulis_____________ Active------------------------ Nov. 23, 1951_____________-___ B-1
Charles Cale__________________ ----- do----------------------- Jan 3, 1952- ------------------- B-1
Charles Callahan_____________ ----- do-- ---------------------- None-------------------------- C-1
Ernest M Chalfant----------- ----- do- ----------------------- Nov. 19, 1951__________________ B-1
Florence Champlin ___________ Laid off----------------------- Aug. 27, 1951__________________ E-2
Oris Channel] _________________ Active----------------------- None-------------------------- C-1
Doris L. Chippi______________ Laid off----------------------- Mar 14, 1952------------------ E-2
Dorothy Church______________ -----do------------------------- Sept. 4 or 5, 1951______________ D-2
Pauline E. Cozart____________ Active------------------------ Nov. 23,1951 ------------------ B-1
Daniel Dearth________________ -----do------------------------- Sept. 10,1951__ ________________ B-1
James Dolan__________________ Laid off but recalled for Aug. Nov. 26,1951__________________ E-1
13, 1951.
Dorothy Dolney______________ Laid off----------------------- Nov 27, 1951__________________ D-1
Andrew E Dragos____________ Active------------------------ Nov 23,1951------------------ B-1
Orpha Droltz_________________ ----- do------------------------- ----- do------------------------- B-2
Charles Dudley_______________ -----do------------------------- ----- do------------------------- B-1
Charles Dyer_________________ ----do------------------------- Nov. 19,1951 ------------------ B-1
Frank Eibel__________________ -----do------------------------- None-------------------------- C-1
Harry J. Ellison, Jr___________ -----do------------------------- -----do------------------------- C-1
Carl A. Fannin_______________ ----- do------------------------- Nov. 26, 1951 __________________ B-1
Grover H. Farrar ............. -----do------------------------- February or March 1952_______ B-1
Mary Gall -------------------- Laid off----------------------- Sept. 4,1951 ------------------- E-2
Robert F. Gaton______________ Active------------------------ None------------------------- C-4
Gaylord Gattrell______________ ----- do------------------------- -----do------------------------- C-1
Elizabeth Gawne_____________ ----- do------------------------- Nov. 23,1951 ------------------ B-2
236 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediate prestrike status First application
For dis-
position
see ap-
pendix
below
Margaret Geordt_____________ Laid off----------------------- None ----- -------------------- E-2
Paul Golmitz_________________ --- -- do-- ---------------------- ----- do ------------------------- D-1
Charley Gresh________________ Active------------------------ Sept 5,1951 ------------------- B-1
Andrew Gress________________ -----do------------------------- Jan 4, 1952____________________ B-1
Paul P . Hall__________________ -----do------------------------- Dec. 10. 1951__________________ B-1
Jack Hannon , Jr______________ Laid off but recalled for Aug. Nov 27, 1951__________________ E-1
13, 1951
Madelyn J Hannon ---------- Active------------------------ Nov. 23,1951 ------------------ B-2
Arthur R. Hannum___________ -----do------------------------- ----- do------------------------- B-1
George Haschak______________ ----- do------------------------- None-------------------------- C-1
Ina Belle Hatcher_____________ ----- do------------------------- Nov 26, 1951__________________ B-3
William H Haynes___________ -----do------------------------- Nov 23,1951__________________ B-1
Alta M. Heady_______________ Laid off----------------------- Dec 5,1951____________________ D-1
Alma La Wanda Hogan______ Active------------------------ Nov. 23,1951__________________ B-2
Marjorie R Holdren__________ -----do------------------------- ----- do------------------------- B-2
George Holub_________________ -----do------------------------- None-------------------------- C-1
Paul Holub___________________ ----- do------------------------- -----do------------------------- C-1
Andrew Hronec_______________ ----- do------------------------- Nov 27, 1951_ _________________ B-1
Eleanor Hronec _______________ -----do------------------------- Nov 23,1951__________________ B-1
John Hronec__________________ -----do------------------------- -----do------------------------- B-1
Robert Hudson_______________ -----do------------------------- Aug 25,1951__________________ B-1
Donald B Janusz _____________ -----do------------------------- Sept. 4,1951___________________ B-1
Stanley Series _________________ -----do------------------------- None-------------------------- C-1
Ann E. Jones_________________ -----do------------------------- Nov 26,1951__________________ B-1
Pete J. Journey_______________ -----do------------------------- Nov. 23,1951__________________ B-i
Emil Kochera________________ -----do------------------------- Aug 27,1951__________________ B-1
Dorothy F. Koshock-_-_______ -----do------------------------- Nov. 23,1951__________________ B-2
Mike Kosuth_________________ ----- do------------------------- None-------------------------- C-1
Michael E Koval____________ -----do------------------------- ----do------------------------- C-4
John Kusma, Jr______________ Laid off but recalled for Aug
13,1951. Nov 26,1951__________________ E-i
Mary Lonca__________________ Active ------------------------ ----- do------------------------- B-2
Mike Lukas__________________ ----- do------------------------- None-------------------------- C-1
Joseph Lycyak_______________ ----- do------------------------- Sept 4,1951___________________ B-1
Margaret Lyons______________ ----- do------------------------- Nov. 30,1951__________________ B-1
Earl Mallett__________________ ----- do------------------------- Dec 3,1951____________________ B-1
Hettie Delores Mason________ ---- do------------------------- Nov. 23,1951__________________ B-2
Joseph Maxin_________________ ----- do-- ---------------------- Sept 4,1951___________________ B-1
Alice Jean McCall ____________ -----do------------------------- Mar 26,1952__________________ B-1
John McCall___________ -----do------------------------- Nov 26,1951__________________ B-I
Kenneth D. McConahay_____ -----do------------------------- Nov 23, 1951__________________ B-1
Billy D. McElfrish___________ -----do------------------------- None-------------------------- C-1
Helen Mehalko_______________ -----do------------------------- Nov 26, 1951__________________ B-1
Joseph Merva________________ -----do------------------------- Nov 23, 1951__________________ B-1
Millard L Moore_____________ ----- do------------------------- None------------------------- C-1
Peter Message________________ ----- do------------------------- Nov. 23, 1951__________________ B-1
Georgie Ann Novotny________ -----do------------------------- ----- do ------------------------- B-1
John O'Karma________________ ----- do------------------------- Dec. 17, 1951__________________ B-1
Delia Jane Oliver_____________ -----do------------------------- Nov 26, 1951__________________ B-1
Verneda L. Oliver____________ ----- do------------------------- Nov 28, 1951__________________ B-6
Margaret Olsovsky___________ -----do------------------------ ----- do------------------------ B-1
Alberta Penn_________________ -----do------------------------- None____________ C-3
John Petruna_________________ ----- do------------------------- Sept. 25,1951 ------------------ B-1
Jack C. Phillips______________ --do------------------------- None-------------------------- C-1
Edward Polasky______________ -----do------------------------- -----do------------------------- C-1
Katherine Polen______________ -----do------------------------- Nov 23, 1951__________________ B-1
Joe Pucky-------------------- Laid off but recalled for Aug. None-------------------------- E-1
13, 1951.
EKCO PRODUCTS COMPANY 237
Immediate prestrike status First application
For dis.
position
see ap-
pendix
below
Leander F. Ray______________ Active------------------------ Sept . 5,1951 ------------------- B-1
Anna S Rushin______________ -----do------------------------- Nov. 26,1951 ------------------ B-1
Fred W Scott________________ -----do------------------------- Dec. 4,1951 ------------------- B-1
Emil Scrapcbansky___________ -----do------------------------- Nov. 26, 1951__________________ B-1
James D. Selders_____________ -----do------------------------- None-------------------------- C-1
Roberta Shampel_____________ ----- do------------------------- -----do------------------------- C-2
Andrew C. Shedlock__________ -----do------------------------- Oct 21,1951 ------------------- B-1
William Sichina______________ -----do------------------------- Nov. 26,1951 ------------------ B-6
Helen Sikora__________________ -----do------------------------ Nov. 23,1951 ------------------ B-2
David L Sills________________ -----do------------------------- Dec 1, 1951------------------- B-6
Thomas Sills__________________ -----do------------------------- None -------------------------- C-1
Michael Slifko________________ ----- do------------------------- Nov. 19,1951 ------------------ B-6
Mildred Slentz_______________ ----- do------------------------- Nov. 26,1951 ------------------ B-1
Donald L. Spiker_____________ ----- do------------------------ Sept. 4,1951 ------------------- B-1
Albert H. Spurrier____________ -----do------------------------ None------------------------- C-1
Louis Stabovec_______________ -----do------------------------ -----do------------------------ C-1
Steve Stats___________________ -----do------------------------ Nov. 26,1951 ------------------ B-1
Marcella Steven_____________ -----do------------------------ Nov. 30,1951__________________ B-1
Henry Szuber________________ -----do------------------------ Nov. 26,1951 ------------------ B-1
Maxine Thompson----------- Laid off----------------------- Sept. 5,1951 ------------------- D-3
Orval Tipton_________________ Laid off but recalled for Aug. Nov. 27,1951 ------------------ E-1
15, 1951.
Mary Trenner________________ Active ------------------------ Nov. 28,1951 ------------------ B-6
Kenneth L. Trott____________ ----- do------------------------ None------------------------- C-1
Ann Vasko___________________ ----- do------------------------ Nov 26,1951 ------------------ B-1
Mary Veselenak______________ ----- do------------------------ ----- do ------------------------ B-1
Steve Veselenak______________ -----do------------------------ Nov. 23,1951 ------------------ B-1
Donald Lee Vincent__________ Laid off----------------------- None------------------------- D-1
Mike Voytko_________________ Active------------------------ Nov. 26,1951. ----------------- B-1
Edna Watson_________________ -----do------------------------ None------------------------- C-1
Maxine Watson_______________ Laid off---------------------- Nov. 28,1951 ------------------ E-2
John West____________________------ Active------------------------ Nov. 26,1951__________________ B-1
Williams__________ -----do------------------------ -----do------------------------ B-1
Chester Wisenberger__________ -----do------------------------ Oct. 11, 1951------------------- B-4
Veronica Woyansky__________ -----do------------------------ None ------------------------- C-1
Raymond A. Yoho___________ -----do------------------------ Nov. 23,1951 ------------------ B-1
APPENDIX B-1
Active employees-
(a) who applied for, but were refused, reinstatement;
(b) who the Trial Examiner finds were discriminatorily discharged;
(c) who (so far as the record discloses) were not rehired even as new employees,
up to the end of the hearing; and
(d) in whose cases the Trial Examiner recommends that
(1) the Respondent offer each of them immediate and full reinstatement to
his or her former position or a substantially equivalent position, with all rights
and privileges of employment, including seniority from his or her prestrike date
of original hire; and
(2) the Respondent make each of them whole for any loss of earnings which
he or she may have suffered by reason of the Respondent's discrimination, by
payment to each of a sum of money equal to that which he or she would normally
have earned in the employ of the Respondent, from the date of the Respondent's
rejection of his or her application for reinstatement to the date of the Respond-
ent's offer of full reinstatement, less his or her net earnings during said period.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Date of re-
'jected applica.
Lion for rein-
statement
Floyd C. Arthurs------- Sept. 10, 1951.
Helen A. Bailey_______ Nov. 26, 1951.
Paul Bailey------------ Nov. 24, 1951.
Andrew P. Balik-------- Nov. 26, 1951.
Arthur Ball ------------ Nov. 23, 1951.
Margaret Bamfield------ Do.
Shirley Barnes----- ----- Nov. 27, 1951.
Albert S. Batyk________ Between Aug. '
20 and 31,
1951.
Toney Bumbulis-------- Nov. 23, 1951.
Charles Cale___________ Jan. 3, 1952.
Ernest M. Chalfant----- Nov. 19, 1951.
Pauline E. Cozart------- Nov. 23, 1951.
Daniel Dearth ---------- Sept. 10, 1951.
Andrew E. Dragos------ Nov. 23, 1951.
Charles Dudley________ Do.
Charles Dyer__________ Nov. 19, 1951.
Carl A. Fannin________ Nov. 26, 1951.
Grover H. Farrar------. February or
March, 1952.
Charley Gresh--------- Sept . 5, 1951.
Andrew Gress ---------- Jan. 4, 1952.
Paul P. Hall ----------- Dec. 10, 1951.
Arthur R. Hannum_____ Nov. 23, 1951.
William H. Haynes ----- Do.
Andrew Hronec________ Nov. 27, 1951.
Eleanor Hronec________ Nov. 23, 1951.
John Hronec ----------- Do.
Robert Hudson--------- Aug. 25, 1951.
Donald B. Janusz------- Sept . 4, 1951.
Ann E. Jones_______ ___ Nov. 26, 1951.
Pete J. Journey--------- Nov. 23, 1951.
Emil Kochera---------- Aug. 27, 1951.
Dateofre-
jected applica-
tion for rein-
statement
Joseph Lycyak_________ Sept. 4, 1951.
Margaret Lyons________ Nov. 30, 1951.
Earl Mallett___________ Dec. 3, 1951.
Joseph Maxin__________ Sept. 4, 1951.
Alice Jean McCall ------ Mar. 26, 1952.
John McCall ----------- Nov. 26, 1951.
Kenneth D. McConahay_ Nov. 23, 1951.
Helen Mehalko--------- Nov. 26, 1951.
Joseph Merva---------- Nov. 23, 1951.
Peter Massage --------- Do.
Georgie Ann Novotny__. Do.
John O'Karma--------- Dec. 17, 1951.
Delia Jane Oliver------- Nov. 26, 1951.
Margaret Olsovsky______ Nov. 28, 1951.
John Petruna__________ Sept. 25, 1951.
Katherine Polen-------- Nov. 23, 1951.
Leander F. Ray________ Sept. 5, 1951.
Anna S. Rushin________ Nov. 26, 1951.
Fred W. Scott ---------- Dec. 4, 1951.
Emit Scrapchansky_____- Nov. 26, 1951.
Andrew C. Shedlock____ Oct. 21, 1951.
Mildred Slentz--------- Nov. 26, 1951.
Donald L. Spiker ------- Sept. 4, 1951.
Steve Stats____________ Nov. 26, 1951
Marcella Stevens------- Nov. 30, 1951.
Henry Szuber__________ Nov. 26, 1951.
Ann Vasko___________- Do.
Mary Veselenak_____-_ Do.
Steve Veselenak--------- Nov. 23, 1951.
Mike Voytko__________ Nov. 26, 1951.
John West____________ Do.
Homer H. Williams____. Do.
Raymond A. Yoho_____ Nov. 23, 1951.
APPENDIX B-2
Active employees-
(a) who applied for, but were refused, reinstatement;
(b) who, the Trial Examiner finds, were discriminatorily discharged;
(c) who were rehired by the Respondent as new employees and (so far as the
record shows) were still employed by the Respondent at the time of the close of
the hearing; and
(d) in whose cases the Trial Examiner recommends that
(1) the Respondent immediately restore to each of -them all of her rights
and privileges as an employee of the Respondent, including seniority from her
original, prestrike hiring date;
(2) the Respondent also immediately offer full reinstatement to her former
or a substantially equivalent position (with all rights and privileges, including
seniority from her original, prestrike hiring date) to any of these persons if,
since her rehire as a new employee, she has been laid off due to the Respondent's
failure to credit her with such full seniority; and.
1(3) the Respondent make each of them whole for any loss in earnings which
she may have suffered by reason of the Respondent's discrimination, by pay-
ment to her of a sum of money equal to that which she normally would have
earned in the employ of the Respondent, absent any discrimination against her,
from the date of her rejected application for reinstatement to the date of the
Respondent's compliance with these recommendations, less her net earnings dur-
ing said period.
EKCO PRODUCTS COMPANY
Date of
rejected
application
for rem-
statement
239
Date of
subsequent
rehire as
new em-
ployee
Bonnie Barnett------------------------------------------------------------- Nov 23,1951 Mar. 23,1953
Orpha Droltz --------------------------------------------------------------- -----do-------- Mar 16, 1953
Elizabeth Gawne----------------------------------------------------------- -----do-------- Mar 23,1953
Madelyn J Hannon------------------------------------------------------- ----- do-------- Jan 28,1953
Elma La Wanda Hogan---------------------------------------------------- -----do-------- Mar 23,1953
Marjorie R Holdren------------------------------------------------------- -----do-------- Do
Dorothy F Koshock- ----------------------------------------------------- -----do------- Mar. 9,1953
Mary Lonca---------------------------------------------------------------- Nov 26, 1951 Mar 23,1953
Hettie Delores Mason ------------------------------------------------------ Nov 23, 1951 Jan 28,1953
Helen Sikora --------------------------------------------------------------- ---- do-------- Do.
APPENDIX B-3
Active employee Ina Belle Hatcher-
(a) who applied for, but was refused, reinstatement on November 26, 1951;
,(b) who, the Trial Examiner finds, was discriminatorily discharged;
(c) who was rehired by the Respondent as a new employee on March 23, 1953,
but was thereafter discharged on April 7, 1953, because of her refusal to perform
the work assigned to her by her foreman; and
(d) in whose case the Trial Examiner makes no recommendation for reinstate-
ment but does recommend that she be made whole for any loss of earnings which
she may have suffered by reason of the Respondent's discrimination, by payment
to her of a sum of money equal to that which she normally would have earned in
the employ of the Respondent from November 26, 1951, the date of her application
for reinstatement, to March 23, 1953, the date of her rehire as a new employee,
less her net earnings during said period.
APPENDIX B-4
Active employee Chester Wisenberger-
(a) who 'applied for, but was refused, reinstatement on October 11, 1951;
(b) who, the Trial Examiner finds, was discriminatorily discharged;
,(c) who (so far as the record shows) was not rehired even as a new employee
up to the end of the hearing;
(d) whose poststrike conduct as evidenced by his plea of guilty and his con-
viction on a criminal charge on July 7, 1953, was of such a nature as to render
him unsuitable for further employment by the Respondent; and
(e) in whose case the Trial Examiner makes no recommendation for reinstate-
ment but recommends merely that the Respondent make him whole for any loss
of earnings suffered by him by reason of the Respondent's discrimination, by pay-
ment to him of a sum of money equal to that which he normally would have earned
in the employ of the Respondent from October 1.1, 1951, to July 7, 1953, less his
net earnings during said period.
APPENDIX B-5
Active employee Robert Blancett-
(a) who, the Trial Examiner finds, was discriminatorily discharged;
(b) who, although he applied for reinstatement in the last week in October 1951,
had previously told Personnel Manager Wargo in substance, on August 17 or 20,
1951, that he was not interested in further employment by the Respondent; and
(c) in whose case the Trial Examiner recommends neither reinstatement nor
back pay.
APPENDIX B-6
Active employees-
(a) who applied for, but were refused, reinstatement;
^(b) who, the Trial Examiner finds, were discriminatorily discharged;
(c) who (so far as the record discloses) were not rehired even gas new employees,
up to the end of the hearing; and
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) who engaged in improper conduct which , the Trial Examiner has concluded,
should bar them from reinstatement and back pay.
Verneda Oliver Mike Slifko
William Sichina Mary Trenner
David Sills
APPENDIX C-1
Active employees-
i(a) who made no application for reinstatement before the close of the hearing;
(b) who , the Trial Examiner finds, were discriminatorily discharged;
i(c) who (so far as the record discloses ) were not rehired even gas new employees,
up to the end of the hearing; and
t(d) in whose cases the Trial Examiner recommends that
,(1) the Respondent offer each of them immediate and full reinstatement to
his or her former position or a substantially equivalent position , with all rights
and privileges of employment including seniority from their respective prestrike
dates of original hire; and
(2) the Respondent make each of them whole for any loss of earnings which
he or she may have suffered or may suffer by reason of the Respondent's dis-
crimination or its noncompliance with these remedial recommendations, by
payment to him or her of a sum of money equal to that which he or she normal-
ly would have earned in the employ of the Respondent either from the date of
any reinstatement application made by such individual since the close of the
hearing, or , if no such application has been made , from a date thirty (30)
days after the service upon the Respondent of this report , including the instant
recommendations , until the date of the Respondent 's offer of full reinstatement,
less such individual's net earnings during said period.
Carrie M. Barnett
Hubert Bayly
Charles Callahan
Oris Channell
Frank Eibel
Harry J. Ellison, Jr.
Gaylord Gattrell
George Haschak
George Holub
Paul Holub
Stanley Jerles
Mike Kosuth
Mike Lukas
Billy D. McElfrish
Millard L. Moore
Jack C. Phillips
Edward Polasky
James D. Selders
Thomas Sills
Albert H. Spurrier
Louis Stahovec
Kenneth L. Trott
Edna Watson
Veronica Woyansky
APPENDIX C-2
Active employee Roberta Shampel-
(a) who made no application for reinstatement before the close of the hearing;
I(b) who, the Trial Examiner finds, was discriminatorily discharged;
,(c) who was rehired by the Respondent as a new employee in May 1953 and
(so far as the record discloses) was still employed by the Respondent at the time
of the close of the hearing; and
(d) in whose case the Trial Examiner recommends that
(1) the Respondent immediately restore to her all of her rights and priv-
ileges as an employee of the Respondent , including seniority from her original,
prestrike hiring date;
(2) the Respondent also offer her immediate and full reinstatement to her
former or a substantially equivalent position ( with all rights and privileges in-
cluding seniority from her original, prestrike hiring date ) if, since her rehire
as a new employee in May 1953, she has been laid off due to the Respond-
ent's failure to credit her with such full seniority; and
(3) the Respondent make her whole for any loss of earnings which she
may have suffered in the event that, before the Respondent 's compliance with
these recommendations , she has been laid off due to the Respondent's failure to
credit her with full seniority from the date of her original, prestrike hiring
date.
APPENDIX C-3
Active employee Alberta Penn-
(a) who made no application for reinstatement;
(b) who, the Trial Examiner finds,-was discriminatorily discharged;
EKCO PRODUCTS COMPANY 241
i(c) who was rehired by the Respondent as a new employee on March 24, 1953,
but was thereafter discharged on April 7, 1953, because of her refusal to perform
the work assigned to her by her foreman; and
,(d) in whose case the Trial Examiner makes no recommendation either for re-
instatement or reimbursement for loss of earnings.
APPENDIX C-4
Active employees Robert Gaton and Michael Koval-
i(a) who made no application for reinstatement before the close of the hearing;
i(b) who, the Trial Examiner finds, were discriminatorily discharged;
(c) who (so far as the record discloses) were not rehired even as new employees,
up to the end of the hearing; and
(d) who engaged in improper conduct which , the Trial Examiner has con-
cluded, should bar them from reinstatement and back pay.
APPENDIX D-1
Laid-off employees-
i(a) to whom the Respondent sent recall notices during the strike;
(b) who advised the Respondent in substance that they would not report dur-
ing the strike because of the presence of the picket line, because of fear of violence,
or because of the "labor trouble";
,(c) the removal of whose names from the layoff list the Trial Examiner finds to
have been discriminatory under the circumstances and violative of Section 8 (a)
(3) of the Act; and
(d) in whose cases the Trial Examiner recommends that
(1) the Respondent immediately establish a layoff list containing the names
of these individuals in the order of their prestrike seniority;
'(2) (after reinstating those of the active employees who accept the offers
of reinstatement which are also recommended in this report) the Respondent
fill vacancies from this layoff list in accordance with its established recall
practice, and in filling each vacancy accord to the pei son taken from the layoff
list all privileges and rights of employment, including seniority from the re-
spective dates of their original, prestrike hire; and
(3) the Respondent also make whole each of the individuals listed in this
Appendix (D-1) for any loss of earnings which he or she may have suffered
or may suffer
(A) by reason of the Respondent's failure to recall such individual because
of its removal of his or her name from the layoff list;
(B) by reason of a failure by the Respondent promptly to comply with
recommendations (1) and (2), above; and/or
(C) in the case of any such individual who may have been rehired since
,the close of the hearing in this case, by reason of any subsequent layoff re-
sulting from the Respondent's failure to credit the individual with full seniority
from his or her original, prestrike hiring date.
George Brier Alta M. Heady
Dorothy Dolney Donald Lee Vincent
Paul Golmitz
APPENDIX D-2
Laid-off employees Thelma Adams and Dorothy Church-
(a) to whom the Respondent sent recall notices during the strike;
(b) who advised the Respondent in substance that they would not report because
of the strike;
(c) the removal of whose names from the layoff list the Trial Examiner finds
to have been discriminatory under the circumstances and violative of Section 8 (a)
(3) of the Act;
(d) who were thereafter rehired by the Respondent as new employees on October
6, 1952, and (so far as the record shows) were still employed by the Respondent
at the time of the close of the hearing; and
(e) in whose cases the Trial Examiner recommends that
(1) the Respondent immediately restore to each of them all of her rights
and privileges as an employee of the Respondent, including seniority from her
original , prestrike hiring date;
(2) the Respondent also offer each of them immediate and full reinstate-
ment to her former or substantially equivalent position (with all rights and
423784-37-vol 117-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges, including seniority from her original, prestrike hiring date) if, since
her rehire as a new employee, she has been laid off due to the Respondent's
failure to credit her with such full seniority; and
(3) the Respondent make each of them whole for any loss of earnings which
she may have suffered
(A) by reason of the Respondent's failure to recall her earlier than October
6, 1952, because of its removal of her name from the layoff list; and/or
(B) by reason of any layoff since October 6, 1952, due to the Respondent's
failure to credit her with full seniority from the date of her original, prestrike
hire.
APPENDIX D-3
Laid-off employee Maxine Thompson-
(a) to whom the Respondent sent a recall notice during the strike;
(b) who advised the Respondent that she would like to return to work but that
she did not think that she "should go through the pickets";
(c) the removal of whose name from the layoff list the Trial Examiner finds
to have been discriminatory under the circumstances and violative of Section 8
(a) (3) of the Act;
(d) who was thereafter rehired by the Respondent as ,a new employee on October
6, 1952, but who resigned on December 26, 1952; and
(e) in whose case the Trial Examiner recommends that
(1) the Respondent make her whole for any loss of earnings which she may
have suffered by reason of the Respondent's failure to recall her earlier than
October 6, 1952, because of its removal of her name from the layoff list; and
(2) the Respondent also make her whole for any loss of maternity benefits
she may have suffered on her resignation on December 26, 1952, by reason
of the Respondent's failure to accord her the full benefits of an employee with
full seniority from her original, prestrike hiring data. *
w During the hearing, the General Counsel stated specifically that he did not contend that
Maxine Thompson (who had become Mrs. Wheelei since the strike) should be reinstated, in
view of her resignation. During her direct examination by the General Counsel, the Trial
Examiner sustained an objection to questions put to her for the purpose of showing that
she stopped working because of pregnancy, and that she was therefore entitled to maternity
benefits under the Respondent's insurance plan. The Trial Examiner sustained this objec-
tion on the ground that the question whether she had been depiived of benefits ordinarily
accorded employees with her seniority was a question properly to be determined only at
the compliance stage of these proceedings, if the Board should find there was discrimination
Laid-off employees-
APPENDIX E-1
(a) who, on receiving recall notices from the Respondent prior to the strike, noti-
fied the Respondent that they would report for work on specific dates, by which
dates the strike was in progress;
(b) who did not advise the Respondent that their failure to report for work
was due to the strike or the presence of pickets at the plant;
(c) whose removal by the Respondent from the layoff list the Trial Examiner
finds was not discriminatory and not an unfair labor practice; and
(d) as to whom the Trial Examiner recommends that the complaint be dismissed.
Agreed date for
return to work
James Dolan----------------------------------------------- Aug. 13, 1951
Jack Hannon, Jr------------------------------------------- Do.
John Kusma,Jr -------------------------------------------- Do.
Joe Pucky----------------------------------------------- -
Do.
Orval Tipton ---------------------------------------------- Aug. 15, 1951
Laid-off employees-
APPENDIX E-2
(a) to whom the Respondent sent recall notices during the strike;
(b) who did not report for work, nor advise the Respondent that the strike was
the reason for their failure to do so;
(c) whose removal from the Respondent's layoff list by the Respondent the Trial
Examiner finds not to have been discriminatory under the circumstances, and there-
fore not an unfair labor practice; and
THE SUMMERS FERTILIZER COMPANY, INC. 243
(d) as to whom the Trial Examiner recommends that the complaint be dismissed.
Sarah Barnes Mary Gall
Shirley Barnett Margaret Geordt
Florence Champlin * Maxine Watson
Doris L. Chippi
* Florence Champlin was rehired as a new employee on October 6, 1952, but had quit
before the close of the hearing because she and her husband moved to Akron. So far as the
record shows , none of the other persons named in this appendix have been rehired by the.
Respondent even as new employees.
The Summers Fertilizer Company, Inc. and American Federation
of Labor-Congress of Industrial Organizations and the Com-
mittee, Party to the Contract
Northern Chemical Industries , Inc. and American Federation of
Labor-Congress of Industrial Organizations and The Com-
mittee, Party to the Contract . Cases Nos. 1-CA-2008 and
1-CA-2031. January 31,1957
DECISION AND 'ORDER
On May 21, 1956, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications
and exceptions.
1. The Trial Examiner found that the Respondents Northern and
Summers dominated the formation of the Committee at their respec-
tive plants and assisted and contributed financial and other support
to these Committees in violation of Section 8 (a) (2) and (1) of the
Act. We agree with the Trial Examiner insofar as he finds unlawful
assistance to, and support of, these Committees but not domination.
In finding that the Respondent Northern unlawfully dominated the
Northern Committee, the Trial Examiner relied principally on the
fact that Rivers, Ellis, and Plourde, whom he found were supervisory
employees, participated in the formation of this Committee. We,
1 We have carefully examined the record and find no merit in the Respondents ' allegations
of bias and prejudice on the part of the Trial Examiner.
117 NLRB No. 34.