H. N. Thayer Co.

National Labor Relations Board - Board Decisions

Jun 21, 1956

115 N.L.R.B. 1591 (N.L.R.B. 1956)

H. N. THAYER COMPANY 1591
H. N. Thayer Company and Herve J. Bourque, et al. and H. N.
Thayer's Workers Council
Thayer Company and Robert A. Sidman, et al. and Thayer's
Workers' Council . Cases Nos. 1-CA-341 and 1-CA-355. June
21,1956
SUPPLEMENTAL DECISION AND DETERMINATION
On June 30, 1952, the Board issued a Decision and Order in these
cases,' in which it found that the Respondent Companies, H. N.
Thayer Company and Thayer Company, had engaged in a number
of actions which restrained and coerced their employees in violation
of Section 8 (a) (1) 2 of the Act; that they had dominated and assisted
a company union in each of their 2 plants, thereby violating Section
8 (a) (2) ; and that they had unlawfully discharged 17 employees ac-
tive on behalf of United Furniture Workers of America, Local 154,
CIO, in violation of Section 8 (a) (3). The Board ordered, among
other things, the reinstatement with back pay of 103 persons. Of
these, 17 were the employees whom the Respondent had unlawfully
discharged; the others were employees who had participated in an
unfair labor practice strike to protest the unlawful discharges.
In its Decision and Order the Board considered, and rejected, a
number of contentions advanced by the Respondent Companies.
Among these was the contention that certain incidents of strike mis-
conduct warranted the Respondent Companies' refusal to reinstate
the participants therein. - In rejecting this contention, the Board
noted that it had appraised each incident without regard to the length,
nature, physical, or psychological setting of the strike, and found
that none of the approximately 60 individual incidents in question
"involved actual restraint, violence, or coercion, or conduct which
exceeded the animal exuberance and mutual harassment characteristic
of such strike situations" (99 NLRB 1122; 1128). For this reason, the
Board concluded that the incidents were insufficient either to justify
the Respondent Companies' refusal to reinstate the individuals in-
volved, or to warrant a failure by the Board to order them reinstated.
Thereafter, the case was considered by the United States Court of
Appeals for the First Circuit upon the Board's petition for enforce-
ment of its Order. On June 3, 1954, the court handed down its opin-
ion. -N. L. R. B. v. Thayer Company and H. N. Thayer Company,
199 NLRB 1122.
f The Board found that the Respondent Companies had, in violation of Section 8 (a) (1),
engaged in the following acts : Instructing foremen to survey the union activities of
employees ; threats of reprisal , including threats to close down the plant ; promises of
benefits ; infliction of reprisals for assisting United Furniture Workers of America, Local
154, CIO, and for engaging in strike activity ; and circulating a contract with the
assisted union among employees for their individual signatures.
115 NLRB No. 260.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
213 F. 2d 748. The court accepted the version of the facts as found
by the Board; and, except as indicated hereinafter, the court found
without merit the various objections advanced by the Respondent
Companies to the enforcement of the Board's Order, holding that the
Board's Order was proper with respect to most of the individuals or-
dered reinstated with back pay.
The court held, however, that 8 of the individual incidents of alleged
misconduct which the Board deemed insufficient to justify Respond-
ent's refusal to reinstate certain strikers "were coercive in nature and
calculated to instill fear of physical harm in the non-striker victims,
and are therefore not activities protected under § 7" (213 F. 2d 748,
757). The court construed the Board's reinstatement order as to the
strikers involved in these incidents as turning exclusively on whether
the employees' conduct was within the protection of Section 7, and
then stated that a mere finding that the strikers' conduct was outside
the scope of Section 7 was not, of itself, sufficient to bar their reinstate-
ment. For this reason the court remanded the case to the Board to
make the additional "primary administrative determination" of
"whether under the circumstances there was cause for the respondents'
refusal to rehire the particular strikers involved in the non-section 7
activity, and if not, whether reinstatement of these employees would
effectuate the policies of the Act" 3 (213 F. 2d 748, 755, 757).
As to the manner in which the court thought the Board should
proceed on the remand, the court indicated that in deciding not only
8 The specific terms of the remand appear to be predicated upon a distinction the court
drew between the status of economic and unfair labor practice strikers. The court
said (213 F. 2d 748, 752-753) :
If an economic strike as conducted is not concerted activity within the protection of
§ 7, then the employer is free to discharge the participating employees for the strike
activity and the Board is powerless to order their reinstatement . . . This is so
because, if the particular collective action is not a protected § 7 activity, the em-
ployer commits no unfair labor practice by thus terminating the employment rela-
t1on. He has not interfered with, restrained or coerced employees in the exercise
of their rights guaranteed in 1§ 7. . . . Therefore , since the power of the Board
to order reinstatement under § 10 (c) is dependent upon Its finding that an unfair
labor practice has been committed, and since by hypothesis the economic strike was
not caused by an unfair labor practice, it becomes crucial to the question of re-
Instatement of an economic striker to Inquire whether the strike as conducted
constituted concerted activity within the protection of § 7.
On the other hand where , as In the instant case , the strike was caused by an
unfair labor practice , the power of the Board to order reinstatement Is not neces-
sarily dependent upon a determination that the strike activity was a "concerted
activity" within the protection of § 7. Even If it was not , the National Labor
Relations Board has power under § 10 (c) to order reinstatement if the discharges
were not "for cause" and if such an order would effectuate the policies of the Act.
Of course the discharge of strikers engaged in non -Section 7 activities often may
be for cause , or their reinstatement may not effectuate the policies of the Act, but In
certain circumstances it ' may. The point is that where collective action is pre-
cipitated by an unfair labor practice; a finding that the action is not protected
under § 7 does not, ipso facto , preclude an order reinstating employees who have been
discharged because of their participation in the unprotected activity [court 's footnotes
omitted].
H. N. THAYER COMPANY 1593
whether the strikers' discharge was for cause 4 but also whether their
reinstatement would effectuate the Act's policies, it was "proper" to
take into consideration the fact that the strike resulted from the Re-
spondent Companies' unfair labor practices. In this connection, the
court said (213 F. 2d 748, 755) :
It ordinarily may be assumed that the Board, as a part of the
process of determining whether reinstatement would effectuate
the policies of the Act, will balance the severity of the employer's
unfair labor practice which provoked the industrial disturbance
against whatever employee misconduct may have occurred in the
course of the strike: Thus in reaching its decision the Board
weighs two groups of facts. Such a decision has little value as a
precedent in a subsequent Labor Board case because of the nuances
of fact inevitable in the later situation.
The Board did not seek certiorari in this case. The Respondent
Companies' petition for certiorari was denied. N. L. R. B. v. Thayer
Company and H. N. Thayer Company, 348 U. S. 883.
The incidents which the court held to be "coercive in nature" and
"not activities protected under Section 7" consisted of visits by car-
loads of strikers to the homes of nonstrikers, and an assault by pickets
on a nonstriker. The incidents, in more detail, are as follows :
1. Visit to the home of George Andrews: The home of George
Andrews, a nonstriker, was visited sometime during the strike by a
group of strikers. The strikers arrived in five cars, each car carry-
ing a number of passengers. The cars stopped in front of the An-
drews residence with some of the passengers remaining in the cars,
and others alighting and standing on the sidewalk. Joseph Theodore,
the strikers' spokesman, walked up to Andrews' front door and was
met by Andrews who emerged carrying an_iron pipe in his hand.
Andrews inquired as to the group's intentions and Theodore replied
that he wanted to show Andrews the group which was assembled-
there; that they were respecting the picket line and were asking
Andrews to do likewise. Andrews replied he had already decided
not to work further.
The following strikers are identified 6 as participating in the An-
drews incident : Paul Ballantine, Dominic Daddario, Edgar J. Gal-
lant, Joseph Theodore, Herbert Savoie, and Thaddee LeBlanc.
A With respect to the term "for cause," the court said (213 F. 2d 748, 753, footnote 6) :
a determination that an employee is not engaged in a § 7 activity does not
necessarily mean that, if he is discharged for his participation in the unprotected
action, the discharge is "for cause." That depends on the surrounding circum-
stances. What is cause in one situation may not be in another.
e The finding that Thaddee LeBlane participated in the Andrews incident is based on
Andrews' uncontradicted testimony to this effect. That Andrews' testimony was not
credited on another point is not controlling. "It is no reason for refusing to accept
everything that a witness says, because you do not believe all of it; nothing is more
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Visit to the home of James Thompson: Nonstriker James Thomp-
son's home was also visited by the five carloads of strikers. Some
of them alighted and walked along the street while striker Joseph
Theodore went to the door. Theodore- asked Thompson if he were
reporting for work on the following week.
The following strikers are identified as participating in the Thomp-
son incident : Dominic Daddario, Edgar J. Gallant, Joseph Theodore,
Herbert Savoie, and Leo Charest.
. 3. The two visits to the home of Zigmund Maliska: Zigmund
Maliska's home was visited twice by the strikers. One morning 5
cars containing 25 or 30 strikers pulled up to Maliska's home.- The
majority of the strikers got out of their cars and three of the strikers
went up to the door just as Maliska came out to meet them. Joseph
Theodore informed Maliska that the strikers wanted Maliska to join
them. Maliska replied that he would not run the risk of going into
work-and having his car turned over; whereupon, Theodore stated
he was not threatening Maliska but that things of that nature have
happened during strikes. Maliska then stated that he had already
decided to stay out of work.
The same afternoon Maliska was again visited by a group of strik-
ers who asked him to stay out of work. Maliska told them of the
morning visit and stated that he had already decided to stay out.
The following strikers are identified 6 as participating in the visits
to Maliska's home : Bertha Anderson, Paul Ballantine, Dominic
Daddario, Albert Gallant, Edgar J. Gallant, Joseph Theodore, Arthur
Ares, Herbert Savoie, Laurie Gallant, Mallet Robichaud, and Alyre
Gallant.
4. The two visits to the home of Joe Tatro: On the first visit of
the strikers to nonstriker Tatro's home, three cars pulled up. Theo-
dore spoke to Tatro and asked him to join the strike and to stop driv-
ing his (Tatro's) truck.- Tatro agreed and the group left. A second
common in all kinds of judicial decisions than to believe some and not all." N. L. R. B. v.
Universal Camera Corp ., 179 F. 2d 749, 754 (C. A. 2). See also Bruns Coal Company,
Inc., 106 NLRB 590, 600; Elgin Standard Brick Manufacturing Company, 90 NLRB
1467, 1468 ; Wigmore, Evidence , sees. 1008-1015 ( 3d ed.).
Andrews' testimony that Joseph LeBlanc and Bertha Anderson also participated in
this incident was contradicted by the testimony of Joseph LeBlanc and Anderson, re-
spectively . LeBlanc's testimony was credited on other points . In view of the contra-
diction in the evidence , we do not find that Joseph LeBlanc and Bertha Anderson
participated in the Andrews incident.
9 The finding that Alyre Gallant participated in the Maliska incident is based on
Maliska's uncontradwted testimony to this effect . Maliska's testimony was credited
only in part , but this fact , is not controlling . See cases cited in footnote 5.
Maliska's testimony that Hector Henry also participated in this incident was, in
effect, contradicted by Henry. For this reason we do not find that Henry was a participant.
Our finding that Bertha Anderson participated in the Maliska Incident is based on
her own testimony that she arrived at Maliska 's home, and "There was a couple of cars
there, and they were about ready to leave, so we didn't even get out of the car." See
Rubin Bros. Footwear, Inc., at al. v . N. L. R. B., 203 F. 2d 486, 488 (C. A. 5) ; N. L. R. B. v.,
Longview Furniture Co., 206 F. 2d 274 , 277 (C. A. 4).
H. N. THAYER COMPANY 1595
trip was made to Tatro's home several weeks later. On this occasion
Tatro's wife opened the door and told the strikers that Tatro, who
apparently had continued to work, did not want to see them. A local
police officer was called to the scene but the strikers had departed by
the time he arrived.
The following strikers are identified as participating in the visits to
Tatro's home : Edgar J. Gallant, Joseph Theodore, Arthur Ares,
Herbert Savoie, Robert Desolier, Amos Fontaine, and Robert Sidman.
5. Visit to the home of Theodore Raffa: When the strike was 2
weeks old, nonstriker Theodore Raffa was visited by some strikers. At
approximately 6: 30 one morning, as Raffa was walking down the
street on an errand, a_ car containing five strikers pulled up near Raffa.
The strikers shouted "scab" and "rat" at Raffa and told him not to go
to work. Later, when Raffa returned, he found the strikers' car parked
in front of his home. Two of the strikers emerged from the car, again
called Raffa a "scab" and a "rat" and urged Raff a, his wife, and an-
other employee, who was at Raffia's home awaiting her ride to work, to
join the strike.
The following strikers are identified as participating in the Raffa
incident: Thomas Earnest Martin, Paul Hamel, Arthur Leger, and
Rene J. Hamel.
6. The attack on Cornelius Magner: After leaving the plant one
afternoon during the strike, Magner had walked'about 200 yards when
a group of 17 or 18 people from the vicinity of the picket line ran
after him. An unidentified member of the group struck Magner a blow
in the lower rear and others called him a "scab" and a "traitor." An-
other unidentified person stated that Magner would be injured if he
went to work again.
The following strikers are identified as participating in the Magner
incident : Paul Ballantine, Albert Gallant, and Mallet Robichaud.
This remand is predicated upon the fact that the court disagreed
with the Board's conclusion that the incident remanded for further
consideration did not involve "restraint, violence, or coercion," and
also upon an analytical distinction drawn by the court in construing
the Act, which distinction the court itself termed "subtlety." That the
Board did not seek Supreme Court review of the remand does not mean
that the Board agrees with the circuit court's treatment of this aspect
of the case. Nor is it pertinent here to set forth the reasons which
induced the Board not to seek such review. The fact is that as the
Board accepted the remand, the views of the circuit court, and its con-
struction of the Act, must control the disposition of this case. In that
sense then, we apply the principles announced by the circuit court as
the law of this case.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As instructed, we have carefully considered the incidents of mis-
conduct described above in conjunction with the Respondent Com-
panies' unfair labor practices that promoted the strike by their em-
ployees. We have essayed to weigh the one against the other. In so
doing, we have recognized the fact that the unfair labor practices
committed by the Respondent Companies were unfair labor practices
of the most serious kind. We have also been mindful not only of our
obligation to act in the public interest, but of the basic policies of the
Act as well, particularly its purpose to settle industrial strife "by
orderly and peaceful procedures," and to protect the "rights of indi-
vidual employees."
Our decision has not been an easy one to achieve. But, having
considered and weighed all the various factors, including the impor7
tant fact that the court determined that the acts of misconduct "were
coercive in nature and calculated to instill fear of physical harm in
the non-striker victims," and were, in short, acts of violence, we have
concluded that the reinstatement of the individuals who participated
in these incidents would not effectuate the Act's policies. In this
category are the following strikers who were identified as being
among such participants : Bertha Anderson, Paul Ballantine, Dominic
Daddario, Edgar J. Gallant, Joseph Theodore, Herbert Savoie, Leo
Charest, Albert Gallant, Arthur Ares, Laurie Gallant, Mallet Robi-
chaud, Robert Desolier, Amos Fontaine, Robert Sidman, Thomas
Earnest Martin, Paul Hamel, Arthur Leger, Rene J. Hamel, Thaddee
LeBlanc, and Alyre Gallant .7
In a beginning portion of their separate opinion, our dissenting
colleagues quote the court's decision that the incidents here involved
were "coercive in nature and calculated to instill fear of physical
harm" in the nonstrikers. With respect to that decision, our dissent-
ing colleagues state : "In deciding the issue remanded, we accept the
Court's appraisal of the incidents." Later in their opinion, however,
in discussing the same incidents, our dissenting colleagues state :
"There is nothing to show that the purpose of the visits was to do
or threaten violence to the nonstrikers. Nor does it appear that the
4 Paragraph 2 (b) of the court 's decree, in substance , required the Respondent
Companies to offer reinstatement to the persons named in the Board's order, but
specifically excluded "the particular strikers involved in the following incidents [the
incidents we have considered in this remand]." Paragraph 2 (c) of the decree re-
quired the Respondent Companies to "make whole the above-named individuals who are
to be offered reinstatement... ."
The effect of this Supplemental Decision and Determination , taken in conjunction with
the above-quoted provisions of the decree , is to deny back pay to the individuals whom
we have found to have participated in the incidents here in question . Some of these
individuals , however, were unlawfully discharged before their participation in these
incidents . We do not think that it will effectuate the Act 's policies to deny the latter
persons back pay covering the period from the time of their unlawful discharge to the
time they engaged in the incidents under discussion . See Nutone, Inc., 112 NLRB 1153,
1156, 1173 . We note our position on this point so that the General Counsel may take
appropriate action to seek a modification of the court 's decree in this respect.
H. N. THAYER COMPANY 1597
purpose of the strikers who ran after Magner was to do him bodily
harm...." We are unable to reconcile our dissenting colleagues'
two statements. We do suggest nevertheless that had our dissenting
colleagues attached significance to the court's characterization of the
incidents as "coercive" and "calculated to instill fear of physical
harm," the area of their disagreement with us would be considerably
lessened.
Our dissenting colleagues in effect also state that our decision not
to order the reinstatement of the strikers who were involved in the
instant acts of misconduct permits the Respondents to enjoy the suc-
cess of their unlawful campaign to rid themselves of union adherents.
In answer, we need only point to the Board's original order in this
case, which, as enforced by the court and as modified herein, requires
the Respondent Companies among other things : (1) To reinstate and
make whole some 83 discriminatorily discharged employees; (2) to
cease and desist from discouraging membership in any labor organi-
zation of their employees; (3) to cease and desist from threatening
their employees, or in any manner interfering with their union activi-
ties; and (4) to withdraw and withhold recognition from a domi-
nated and assisted labor organization.
Our conclusion that the Act's policies would not be effectuated by
the reinstatement of the above-named strikers, has rendered it un-
necessary for us to decide whether or not there was "cause," as the
court used that term, for the Respondent Companies' refusal to rehire
these strikers. -
MEMBERS MIIRDOCK and PETERSON, dissenting :
We disagree strongly with this decision of our colleagues not to
remedy the Respondents' unfair labor practices with respect to some
20 employees. They conclude that such a decision effectuates the
policies of the Act. We reach a contrary conclusion. After a careful
examination of the facts of this case in the light of the court's remand,
we conclude that there was not cause for the Respondents' refusal to
reinstate these employees and that their reinstatement would effectuate
the policies of the Act.
Before setting out the reasons for our conclusion, we must refer to
what appears to be a more basic disagreement between our views and
those of our colleagues. The majority opinion specifically points out
that the Board's failure to seek Supreme Court review of the remand
in this case does not mean that the Board agrees with the circuit court's
treatment of the issue remanded. If this statement signifies that the
majority does not accept, other than for purposes of this case, the
court's view that the Board has authority in certain situations to
order the reinstatement of strikers who have engaged in conduct not
protected by Section 7 of the Act, we must note our disagreement. In
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our judgment the court of appeals correctly holds that Section 10 (c)
of the Act grants such authority to the Board,' and the Board has a
duty to exert that authority in appropriate circumstances.
Whatever the views of the majority members may be, however, as
to the Board's authority in this respect, they have accepted the court's
interpretation of the Act as conferring this authority for purposes
of the remand. Our dissent is therefore directed to their application
of the authority in this case.
The authority conferred upon the Board by Section 10 (c) to fashion
a• remedy for unfair labor practices is broad and accompanied by
comparable responsibility. Its exercise requires the Board to employ
considerable discretion and to draw upon its administrative experience
and specialized knowledge.' We.therefore regret that our colleagues
have not seen fit to set forth in other than the most general terms the
factors upon which they rely in making the important administrative
determination that it would not effectuate the purposes of the Act
to order an affirmative remedy with respect to the employees involved
in the remand. We shall attempt to discuss in more detail the consid-
erations which impel our conclusion that there was not cause for
the failure to reinstate these employees and that their reinstatement
would effectuate the policies of the Act.
We consider first the unfair labor practices committed by the
Respondents. The severity of these unfair practices is an element
which the court assumed the Board would estimate in framing the
appropriate remedy; and the majority acknowledges the significance
of this element.
The Respondents here violated Section 8 (a) (1), (2), and (3) of
the Act, each of the provisions designed to protect initial organiza-
tional efforts of employees. Their endeavors to thwart self-organ-
ization embraced a variety of unlawful acts of most grave consequence.
Thus the Respondents threatened to shut down the plants if the Union
was successful. They supported and dominated a Workers Council
as a rival to the Union. They threatened to withhold a bonus from
employees of one plant unless a contract was executed with the domi-
nated Council, and they carried out the threat. They required em-
8 Mr. Justice Frankfurter has also pointed out the existence of such authority in
connection with an argument made in his dissenting opinion in N. L. R. B. v. Mastro
Plastics Corp., and French-American Reeds Mfg Co. Inc., 350 U. S 270, 296. After
noting that a strike in breach of a no-strike clause would not be a Section 7 activity,
he says : "However, even if the strike is not a Sec. 7 activity, the Board in the unfair
labor practice strike situation as distinguished from the economic strike situation, may
in its discretion order the discharged participants reinstated. This is so because of
the antecedent employer unfair labor practices which caused the strike, and which gave
employees rights under Sec. 8. If the Board finds that reinstatement of such strikers
is a remedy that would effectuate the policies of the Act, it has the power under Sec.
10 (c) to issue the necessary order." See also N. L. R. B. v. Wallick and Schwalm
+Company, et at., 198 F. 2d 477, 484 (C. A 3).
See Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 194.
H. N. THAYER COMPANY 1599
ployees individually to sign contracts with the Council. Finally the
Respondent for discriminatory reasons discharged 17 active union
adherents. When the employees then struck in protest, the Respond-
ents engaged in further illegal activities. They declared a policy that
any striker seeking reinstatement after a certain date would, if re-
hired, lose all seniority; and they put such a policy into effect. Upon
the conclusion of the strike they refused to reinstate one employee be-
cause he had made a radio address on behalf of the Union during the
strike, and they unlawfully denied reinstatement to other strikers.
The nature and extent of these acts reveal a wilful and flagrant
disregard by the Respondents of their obligations under the Act. They
demonstrate a deliberate campaign by the Respondents to defeat the
oranization of their employees by foisting on the employees a labor
organization which the Respondents controlled, by subjecting em-
ployees to loss of benefits, by threatening employees with loss of jobs,
and by discharging the leaders of the Union. In short, the unfair
labor practices are, as the majority describes them, "of the most serious
kind" which the Board is called on to remedy among the many cases
which it receives. Ordinarily the appropriate remedy for such se-
rious unfair labor practices would be an order to the Respondents to
cease and desist their unlawful conduct, to withhold recognition from
the dominated organization, and to make whole the employees injured
by the unfair labor practices by restoring their employment and
their loss of wages. The remand requires the Board to determine
whether the customary affirmative remedy of reinstatement and back
pay should be modified in this case with respect to certain employees
who participated in eight incidents of misconduct during the strike.
We examine next these incidents of misconduct. Before attempting
to weigh them, however, we must point out the weakness of some of
the majority's factual findings. The majority opinion describes the
incidents involved in the remand generally in accord with, the Trial
Examiner's findings adopted by the Board in its original decision in
this case. In identifying the strikers who participated in the inci-
dents, however, the majority departs from the Trial Examiner's
credibility findings and relies upon the testimony of witnesses the
Trial Examiner did not consider reliable. Thus the majority finds
that Thaddee LeBlanc participated in the group visit to the Andrews
home (incident No. 1) solely on the testimony of George Andrews and
finds that Alyre Gallant was present when the group visited Maliska
(incident No. 3) solely upon the testimony of Zigmund Maliska.
Andrews and Maliska were both discredited by the Trial Examiner
with respect to certain of their testimony describing the very incidents
in which they identified LeBlanc and Gallant as participating. While,
as the majority states, the testimony of a particular witness may be
accepted in part and rejected in part, it is unreasonable here to accept
1600 DECISIONS OF NATIONAL LABOR , REI:ATIONS BOARD
the unsupported testimony of either Andrews or Maliska as to which
strikers participated in the incidents involving them.10 The Trial
Examiner described Andrews as an "excitable individual with a tend-
ency to exaggerate." The soundness of this characterization, reflect-
ing upon Andrews' capacity to observe and report accurately what he
observed, is demonstrated by Andrews' actual words, in addition to
whatever his demeanor may have revealed to the Trial Examiner.
Andrews testified that he was not in good health and that "the least
little thing" got him excited; he admitted that both at the time of the
strikers' visit to him and at the time he was testifying he was "riled
up." His very testimony identifying Thaddee LeBlanc indicates
uncertainy of the facts. Andrews was asked to name some of the
strikers present. He named 4 or 5 and was then asked : "Tell us the
names of anybody else you remember." Andrews then testified as
follows :
A. I think Mr. LeBlanc here was up there.
Q. What is his first name?
A. Theodore, Thaddeus.
Q* Anybody else?
A. Gallant.
Q. What Gallant?
A. Neri Gallant. There was so much excitement there, I
couldn't tell anyway. [Emphasis supplied.]
Concerning Maliska's credibility, the Trial Examiner rejected his
testimony that certain remarks were made when the strikers visited
him and pointed out that Maliska not only changed his testimony
"but, in addition, was vague concerning the groups that visited him
on that day and uncertain as to who was there in the morning and
afternoon, respectively." Maliska's testimony that Alyre Gallant
was present when the group visited him is of this "vague" quality.
After Maliska had named 3 or 4 persons among the group who visited
him, and indicated difficulty in distinguishing those present in the
morning and in the afternoon, he was asked to name as many others
as he could remember that were in either group. He testified : "As
I said before, I know some that were. There was Neri Gallant and
Alyre Gallant-I believe, I think it's Alyre." [Emphasis supplied.]
We submit that the majority's finding that Thaddee LeBlanc and
Alyre Gallant participated in the incidents of the remand, based
solely on the obviously uncertain testimony of witnesses discredited
10 we would also note , in general , that "in the determination of litigated facts, the
testimony of one who has been found unreliable as to one issue may properly be accorded
little weight as to the next" (N. L. R. B. v. Pittsburgh Steamship Co., 337 U . S. 656,
659) ; and further , that the "mere assertion of any witness does not of itself need to be
believed even though he is unimpeached in any manner " (Wigmore, Evidence , sec. 2034
( 3d ed. ) ; see also sec . 2498).
H. N. THAYER COMPANY 1601
by the Trial Examiner on other details of the same incidents, is not
supported by substantial evidence. The majority's conclusion that
Bertha Anderson participated in the group visits to Maliska likewise
does not find substantial support in the record. As the majority
states, Anderson testified that when she arrived at the Maliska home,
there were a couple of cars with strikers there about ready to leave,
so she and the others in the car in which she was riding did not get
out. We fail to see how arrival on the scene as the group who mis-
conducted themselves were leaving constitutes participation in their
misconduct. In order to complete the picture of the remand- in-
cidents and to show more particularly the nature of the visits to
nonstrikers and what was said to Maliska, we would add to the factual
description of the incidents the following testimony of Joseph Theo-
dore, found by the Trial Examiner to be forthright, honest, and
reliable :
Q. What conversation took place at that point between you or
any of the other two and Mr. Maliska?
A. As I walked up to him, I says, "Hello, Ziggy." He says,
"Hi Joe." He says, "What's this?" I says, "Ziggy, there's quite
a few boys have been telling me that you fellows here in Win-
chendon are undecided or don't know whether there is an actual
strike going on, or just a wild cat strike, and that you fellows
weren't sure whether you'd be the only ones that would stay out
of work, or be out on strike, if you did, or not, and that's why you
have been going into work. But I have brought this group
along to show you who is going to stay out; some of the boys that
are going to stay out, and we'd like to have you join us so that
you won't go into work Monday." . . . And he says, "Joe, you
don't think that I'd take a chance in going in and having my car
turned over, or something of that nature?" I says, "Ziggy, we
are not here to threaten you, but things like that have happened in
strikes, I know, but we're not here for that purpose. We're just
here to show you that we are all staying out of work, and we'd
like to have the same thing with you fellows." He says, "We have
already made up our minds that we are going to stay out Mon-
day." I says, "Okay, I'll see you later."
Summarized, the misconduct involved in the remand consists of 7
visits by groups of strikers to homes of nonstrikers in an attempt to
persuade the nonstrikers to observe the strike, and 1 incident in which
a number of persons from the vicinity of the picket line ran after a
nonstriker as he left work. They called him names, and one uniden-
tified member of the group struck the nonstriker a "blow in the lower
rear." The General Counsel's brief points out that this so-called blow
390609-56-vol. 115-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears to have been nothing more than an open handed slap at the
buttocks, well protected by his winter clothing. The circuit court-
apparently because of the large number of strikers participating in
the incidents and their loud manner-decided that the incidents were
"coercive in nature and calculated to instill fear of physical harm"
in the nonstrikers. In deciding the issue remanded, we accept the
court's appraisal of the incidents." For purposes of determining the
,appropriate remedy in this case, however, such misconduct must be
evaluated in the light of other circumstances.
For example, it is significant that the strike was an unfair labor
practice strike conducted in an atmosphere of considerable provoca-
tion. From the beginning of their organizational efforts the strikers
had suffered the constant harassment of the Respondents' unfair labor
practices. Their attempts to deal with the Respondents in a peaceful
and orderly fashion had failed due to the Respondents' hostile at-
titude and unlawful acts. They had been threatened with economic
reprisal because of their union sympathies. Seventeen of their most
active members, including three members of their organizing commit-
tee, had been discharged because of adherence to the Union. When
the employees struck in support of those who had been discriminated
against and in an attempt to force the Respondents to observe the pro-
visions of the Act, they were subjected to additional provocation.
The Respondents made overtures to the strikers to abandon their pro-
test and were successful in causing defections in the strikers' ranks.
The Respondents further attempted to break the strike by illegally
depriving strikers of seniority rights and by continuing support to
the dominated Council which served as a divisive influence among
employees .12
In view of the provocation causing and accompanying the strike,
the daily frustrations which the strikers met in unsuccessfully protest-
ing the Respondents' unlawful acts, and the discomfort they experi-
enced in opposing their fellow workers who under the Respondents'
coercion clung to the dominated Council, it is not surprising that the
strikers' conduct fell short of the desired standard on these few oc-
casions. Yet despite the irritations, the strike which lasted approxi-
mately 7 weeks was conducted as a whole in an orderly manner.
Pickets were obedient to the orders of police, and as the court points
out "nonstriking employees were able to enter and leave the plants
without serious incidents." The objectionable conduct involved in
"We note that the majority states that "the Court determined" that such incidents
"were, in short, acts of violence ." The court did not use this expression and insofar as
it suggests that there was physical harm rather than threats and coercion it overstates
the court 's appraisal of the incidents.
12 It might be noted that employee Magner , the nonstriker involved in one of the
incidents , was the brother of the president of the illegal Council 1.
H. N. THAYER COMPANY 1603
the remand- was incidental and of a kind which might be anticipated
-during a long and bitter labor struggle produced by unfair labor
practices. It is to be expected that during a strike the striking em-
ployees will attempt to persuade others not to work and will impose
social pressures upon nonstrikers. Such moral persuasion is usual
and not improper. Indeed several instances of attempts by individual
strikers or small groups of strikers to influence nonstrikers not to
work by visiting them and asking their support were not condemned
by the court. It is also to be expected that strikers will act together
in their efforts to sustain the strike. Such group action serves to
bolster the morale of the strikers and to make a show of unity and
strength to others.
The strikers' purpose in making the group visits covered by the re-
mand-a relevant consideration in determining the appropriate rem-
edy 13-was a proper one. The record indicates that the purpose of
the visits was simply to demonstrate to certain nonstrikers that the
strike was not a wildcat one but was supported by a large number
of responsible workers and to ask the nonstrikers to join the strike.
There is nothing to show that the purpose of the visits was to do or
threaten violence to the nonstrikers. Nor does it appear that the
purpose of the strikers who ran after Magner was to do him bodily
harm; the single "blow in the lower rear" given Magner was from an
unidentified individual. Our conclusion that the purpose of the strik-
ers' visits was proper is not inconsistent with the court decision as the
majority suggests. While the court found the incidents involved in
the remand to be coercive and calculated to instill fear in the non-
strikers, this is not the equivalent of a finding that the strikers who
engaged in such incidents actually intended these results. The court in
characterizing the strikers' conduct as coercive was making a finding
as to the nature of the conduct and its probable consequences in order
to determine whether the conduct was protected by Section 7 of the
Act. The test for determining whether conduct constitutes coercion
under Sections 7 or 8 is, of course, whether such conduct as a matter of
expert interpretation of the statute is likely to, or tends to, produce
a coercive effect, regardless of the specific motivation of the conduct.14
Although the foreseeable results of conduct may be legally attributed
to persons who participate in such conduct in finding that they have
violated the Actor engaged in unprotected conduct, it does not neces-
sarily follow that those persons intended in a factual rather than a
legal sense such results. In fashioning an appropriate remedy for
unfair labor practices and determining whether it would effectuate
'? See N. L. R. B. v. Cambria Clay Products Co., 215 F. 2d 48, 54 ( C. A. 6).
14 See N. L. R . B. v. Illinois Tool Works, 153 F. 2d 811, 814 ( C. A. 7) ; Radio Ofcers'
Uncon of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17, 44-45.
1604 DECISIONS OF NATIONAL LABOR., RELATIONS BOARD
the purposes of the Act to order reinstatement of persons-who partici-
pated in unprotected conduct, the Board should in our opinion con-
sider the actual rather than the legal intent of such persons. We
suggest that if our colleagues, who profess an inability to understand
our position in this respect, had attached due significance to the
court's holding that the Board may under appropriate circumstances
order the reinstatement of persons who have engaged in conduct not
protected by Section 7, the area of their disagreement with us, to use
their words, would be considerably lessened.
In assessing the gravity of the eight incidents involved in the re-
mand, the members of the majority have apparently considered the
incidents removed from the vexations of the strike situation and with-
out recognition of the purpose of the participants or the actualities
of industrial conflict. Any realistic estimate of the incidents, in our
view, must take into account the extent of provocation accompanying
the strike, the general nature of the strike and its conduct, the mo-
tives of the employees who engaged in the incidents, and the common
occurrence of such incidents during periods of industrial strife when
some disorder is quite usual and minor acts of violence are not
infrequent.15
Judged in the light of all the circumstances surrounding it, includ-
ing the Respondents' unfair labor practices, the misconduct revealed
in the eight incidents of the remand was, in our opinion, clearly not
cause for the Respondents' refusal to reinstate the employees in-
volved. The misconduct was not of such a character as would render
the employees unfit for further employment.16 The employees' acts
were not disloyal or insubordinate to the Respondents. The em-
ployees manifested no purpose to commit or incite violence. And it
does not appear that their reemployment would cause strife , hamper
production, or discourage harmonious labor relations and free col-
lective bargaining. The Respondents' action in refusing to reinstate
employees on the basis largely of hearsay reports of such misconduct
demonstrates, moreover, that the Respondents were not concerned
with the suitability of the employees for further service but rather
with consummating their unlawful design to rid themselves of the
Union. Thus the Respondents in many instances had no evidence
specifically to relate misconduct to particular strikers; they made no
attempt to evaluate the seriousness of the misconduct; and in dis-
qualifying strikers for reemployment they relied upon the most flimsy
information of misconduct which they solicited from leaders of the
1" See Republic Steel Corp . v. N. L. R . B., 107 F. 2d 472 , 479 (C . A. 3) ; N. L. R. B. v.
Elkland Leather Co., 114 F. 2d 221 , 225 (C. A. 3).
16 See N. L. R. B. v. Illsnois Tool Works, 153 F . 2d 811 , 815-16 ( C. A. 7) ; N. L. R. B. v.
Cambria Clay Products Co., 215 F. 2d 48, 54 ( C. A. 6) ; Horn Mfg. Co , Inc., 83 NLRB
1177 , 1179 ; Kansas Milling Co., 86 NLRB 925, enfd . In part 185 F. 2d 413 , 420 (C . A. 10).
H. N. THAYER COMPANY 1605
dominated Council whom they admittedly believed were biased; and
in almost every instance they gave the strikers no opportunity to con-
tradict the charges against them. Obviously the misconduct did not
constitute a genuine barrier to reinstatement.
Finally, in determining the remedy which will best effectuate the
purposes of the Act, we would emphasize the Board's responsibility
to act in the public interest." In exercising its authority under Sec-
tion 10 (c) the Board's concern is not simply to balance equities be-
tween private employers, labor organizations, and employees, but
to devise a remedy which will remove obstructions to commerce for
the public benefit. Congress in drafting the Act and establishing
the Board's functions declared its conviction that certain unfair prac-
tices of employers and labor organizations are sources of friction and
industrial strife burdening commerce, and that such conflict can be
avoided or substantially minimized if these practices are eliminated
and collective bargaining encouraged. Thus, we conceive that the
Board's primary responsibility in fashioning a remedy is to uproot
as effectively as possible the unfair labor practices which cause
industrial discord and unrest with attendant impetuous action by
individuals.
While the Board must not countenance individual acts of mis-
conduct and should use its influence to discourage unseemly behavior
during strikes, it must not in so doing weaken the sanctions of the Act
as to unfair labor practices. By withholding an affirmative remedy
for the Respondents' unfair labor practices as to 20 employees here,
our colleagues have, we fear, in their fervor to condemn the miscon-
duct of certain strikers, failed in their overall responsibility to correct
violations of the Act. They have fashioned a remedy more effective
in defeating the private remedial claims of strikers than in vindicat-
ing the public wrong implicit in the Respondents' defiance of the Act.
They have disqualified certain strikers for reinstatement and back
pay without substantial evidence that those strikers participated in
objectionable conduct. A decision, such as the one the majority has
reached in this case, can but encourage employers who would ignore
the provisions of the Act and must demonstrate to them that they
may successfully avoid the detriment of a reinstatement and back-
pay order if employees during a strike, either by chance or provoca-
tion, engage in less than proper conduct.
While we are in positive agreement with the purpose of our col-
leagues to discourage intemperate conduct by strikers, we doubt that
the remedy they have framed will achieve this purpose. Withholding
14 See National Licorice Co. v. N. L. R. B., 309 U. S. 350 , 364; Phelps Dodge Corp. v.
N. L. R. B., 313 U. S. 177, 193. -
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement and back pay from the strikers who engaged in mis-
conduct will be of little significance in deterring strikers from the rash
acts which commonly arise in the heated atmosphere of a labor
dispute, while ordering such affirmative relief would in no wise jus-
tify the improper conduct. A reinstatement and back-pay order does,
not grant a reward to employees; it rather restores the jobs and wages
which unfair labor practices caused them to lose. Such an order in
this case would merely attempt to put the employees in the position
they would have occupied had the Respondents obeyed the Act. It
would also serve as a vivid reminder to other employees that the em-
ployer cannot violate the Act with impunity, and would restore to
them a freedom of action which has been impaired by the coercive
effect of reprisals visited on some employees. Failure to order rein-
statement and back pay, however, significantly lessens the effectiveness
of the Board's order in remedying the extensive unfair labor practices
which occurred here. It permits the Respondents to enjoy a partial
success in their unlawful campaign to rid themselves of union adher-
ents by allowing them to continue to withhold employment from 20,
union advocates, 8 of whom (including the Union's chief spokesman
and some members of the organizing committee) they discriminatorily
discharged. The cease-and-desist order issued to the Respondents
forbids a repetition of their unlawful acts and may serve to present
future violations of the Act. It has no effectiveness to correct the
wrongs already done. Only an affirmative order of reinstatement
and back pay would, to the extent possible, reestablish the situation
which would have obtained in the plants but for the Respondents' il-
legal acts and publicize to all employees that the Respondents' unfair
labor practices have been removed and their rights to self-organization
protected. Without such an order, the unfair labor practices are im-
perfectly remedied. Such an imperfect remedy does not in our view
effectuate the policies of the Act.
So, in reaching our decision in this case, we have attempted to evalu-
ate the gravity of the Respondents' unfair labor practices and the
seriousness of the strikers' misconduct in the light of all the circum-
stances of this case and the realities of industrial life as evidenced in
the Board's long administrative experience. We have been ever mind-
ful of the Board's significant responsibility to administer the declared
public policy of eliminating unfair labor practices which induce strife
and of encouraging free collective bargaining. In our judgment these
considerations lead to only one conclusion-that an adequate remedy
in this case which will effectuate the purpose of the Act must include
reinstatement with back pay of the employees who participated in the
eight incidents involved in the remand. -