Harowe Servo Control, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1980

250 N.L.R.B. 958 (N.L.R.B. 1980)

D)ECISIONS ()I NA FIONAI. I.ABOR RELATIO()NS H()OARD
Harowe Servo Controls, Inc. and United Electrical,
Radio Machine Workers of America, Local 145.
Cases 4-CA-7215, 4-CA-7348, and 4-CA-
7627
July 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On March 29, 1978, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and supporting briefs, and the General
Counsel and the Charging Party, hereinafter called
Local 145 or the Union, filed cross-exceptions, sup-
porting briefs, and briefs in answer to the Respond-
ent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein. '
1. In its exceptions the Respondent asserts, inter
alia, that the Administrative Law Judge's bias and
prejudice warrant reversal of her Decision and dis-
missal of the complaint. In the alternative, the Re-
spondent argues that this proceeding should be re-
manded for a hearing de novo.
Specifically, the Respondent asserts that the Ad-
ministrative Law Judge conducted the hearing held
in this proceeding in a partisan manner, and
showed partiality toward union witnesses, crediting
their testimony against overwhelming documentary
evidence to the contrary. Further, the Respondent
claims that it is prejudiced by the Administrative
Law Judge's Decision itself, which by its very
length and content "created a web of complexity
so dense" as to be impenetrable.
The Respondent's assertion of partisanship on
the part of the Administrative Law Judge is not
I Pursuant to the unopposed request for correction made by the Gen-
eral Counsel. the name "Harowe Systems, Inc." is hereby substituted for
"Aero Systems. Inc." at all places in the record and in the Decision of
the Administrative Law Judge where the name of that company has erro-
neously appeared.
At the hearing, the parties stipulated that Harowe Systems is a wholly
owned subsidiary of Harowe Servo Controls. Inc. The Respondent now
seeks to repudiate that stipulation asserting that it is not totally accurate
Based on the facts set forth in fn 458 of the Administrative Law Judge's
Decision, we find it unnecessary to consider the merits of this assertion as
we find no basis for modification of the Administrative Law Judge's rec-
ommended remedy or Order predicated on the current legal status of
Harowe Systems.
250 NLRB No. 120
borne out by our examination of the entire record
herein. And criticism of the Administrative Law
Judge's handling of this case must be tempered by
the fact that it is a complex case raising myriad
issues. Furthermore, if the record in this case is
marked by excessive argument and bickering by
counsel (which the Administrative Law Judge al-
lowed to be placed upon the record), the Respond-
ent is not entirely blameless in this regard. Also,
the Respondent's repeated attempts to obtain by
pretrial discovery information clearly exempted
under the Freedom of Information Act (e.g., all
recommendations made by members of the General
Counsel's staff in the prosecution of this case) and
its persistent efforts to compel testimony by a Fed-
eral mediator who had attended bargaining sessions
between the Respondent and the Union, which is
clearly prohibited by public policy, 2 resulted in
substantial delays in setting this case for hearing. In
these circumstances, the Respondent can hardly
claim prejudice as a result of conditions which it
helped to create. Indeed, if the length of time taken
in the prosecution of this case was prejudicial to
anyone, it was to the employees whose rights
under the Act we find herein to have been violat-
ed.
The Respondent's allegation that the Administra-
tive Law Judge showed partiality toward union
witnesses by crediting their testimony against over-
whelming documentary evidence to the contrary
and by unfairly weighing demeanor as a deciding
factor is likewise without merit. We have consist-
ently stated that the demeanor of witnesses is a
factor of consequence in resolving issues of credi-
bility and that we will attach great weight to an
administrative law judge's findings insofar as they
are based on demeanor, as he or she, not the
Board, has the advantage of observing the wit-
nesses while they testified. Thus, it is the Board's
established policy not to overrule an administrative
law judge's resolutions with respect to credibility
unless the clear preponderance of all the relevant
evidence convinces us that the resolutions are in-
correct. 3 After careful examination of the record
we find, with one limited exception discussed infra,
no grounds for reversing the Administrative Law
Judge's findings insofar as they are based on her
resolutions of credibility questions. The exception
herein noted does not, in any event, materially
affect the outcome of this case, much less reveal
bias or prejudice on the part of the Administrative
Law Judge.
2 See Tomlinvon of High Point, Inc., 74 NLRB 681, 684 685 (1947); The
,Imercwan Laundry Machinery Company, 76 NLRB 981. 982. fn 3 (1948)
3 Standard DLv Wall Products. Inc, 91 NLRB 544 (1950), enfd. 188
F.2d 62 (.ld Cir. 1951)
958
HAROWE SERVO CONTROLS, INC
Finally, the Respondent claims that the inordi-
nate length and complexity of the Administrative
Law Judge's Decision prejudiced its ability to
defend against the findings of unlawful conduct
therein made. We are constrained to agree that the
interests of all the parties to this proceeding would
have been better served by a more succinct and ex-
peditious handling of this case by the Administra-
tive Law Judge. Similarly, one might question the
need for the exhaustive recital of details and for the
lengthy discussions in which, at times, the Admin-
istrative Law Judge indulged. Nevertheless, we
conclude that the Respondent's claim of prejudice
is unsupportable. Thus, the Respondent has, in its
own exceptions and briefs, adequately raised and
extensively argued, and we have considered fully,
all relevant issues of fact and law.
2. On the facts and for the reasons set forth in
the Administrative Law Judge's Decision, we find
that the Respondent took reprisal action against
employees because a majority voted for union rep-
resentation in the Board-conducted election held
on August 23, 1974. Likewise, we find that such
acts of reprisal, i.e., cancellation of the 1974 wage
program, discontinuation of Christmas bonuses and
turkeys, and dismantling of the women's lounge,
were visited upon employees without prior notice
to the Union, with which the Respondent had a
duty to bargain over changes in terms and condi-
tions of employment and, accordingly, constitute
violations of Section 8(a)(5), (3), and (1) of the Act.
3. Similarly, in agreement with the Administra-
tive Law Judge, we find that the Respondent vio-
lated Section 8(a)(5) of the Act, in certain in-
stances, by failing to furnish information requested
by the Union in the course of contract negotiations
(a copy of the updated pension plan booklet which
the Respondent distributed to employees, economic
data in justification of the Respondent's bargaining
position, all relevant data used in establishing pay
scales for each employee classification and the in-
ternal policies governing the placement of employ-
ees within the established pay structure, wage in-
creases programmed for each employee from 1974
through 1976 under the Respondent's 1974 wage
program), and, in other instances, by unreasonably
delaying in doing so (a copy of the Respondent's
existing pension plan, all job descriptions, and a list
of foremen and their departments).
However, we reject, as contrary to a clear pre-
ponderance of all the relevant evidence, the uncor-
roborated testimony of Union Representative
George Stevens, who was credited by the Adminis-
trative Law Judge notwithstanding the contrary
testimony of J. A. Messina, attorney and chief
spokesman for the Respondent, to the effect that
the Respondent did not furnish the Union certain
requested documents prior to or during their first
bargaining session. This session was held on Sep-
tember 18, 1974, some 3 to 4 weeks after the re-
quest was made and approximately 2 weeks after
the Union was certified as the collective-bargaining
representative of the Respondent's employees.
Prior to the commencement of the hearing in
this proceeding, Stevens furnished the Board an af-
fidavit, with attachments, including minutes of the
September 18 meeting which were prepared by
union member Thompson. Contrary to his testimo-
ny, these minutes state: "George Stevens asked for
and received materials-job classifications, compa-
ny policies, list of employees (date of hire and
wages and labor grades)." The Administrative Law
Judge did not consider this affidavit as probative of
the issues raised on the ground that Stevens did not
prepare the minute itself nor indeed remember
reading its contents. Accordingly, she concluded
that Stevens could not be held accountable for any
alleged inconsistency contained therein. We dis-
agree. The minute was prepared under union aus-
pices and made a part of the affidavit furnished by
Stevens in support of the allegations contained
therein. We deem it to be an admission against in-
terest of overriding significance, especially when
viewed in the light of Stevens' rebuttal testimony
during the closing days of the hearing wherein he
stated, less convincingly: "I don't remember receiv-
ing any documents prior to the September 18 meet-
ing. I do not remember getting them at the Septem-
ber 18th meeting either [emphasis supplied]." In
these circumstances, we find that the conduct com-
plained of has not been proved. Nor do we adopt
the Administrative Law Judge's further conclusion
that, even if the documents in question were given
to the Union at the first bargaining session, this
would have constituted unreasonable delay.
4. We agree with the Administrative Law
Judge's conclusion that the Respondent also violat-
ed Section 8(a)(5) and (1) of the Act by attempting
to bargain directly with employee Sloane concern-
ing her grievance when, in November 1974, she
went with employee Copella, her union representa-
tive, to see Personnel Manager Hinnegan in an
effort to resolve the matter. We disagree, however,
with the Administrative Law Judge's further con-
clusion that the Respondent's subsequent reprimand
of Copella for tardiness, on January 23, 1975, was
motivated by her involvement in the Sloane griev-
ance, which we find to be too remote in time to
have been a significant factor, or because of her
other union activities. Hence, we find no 8(a)(3)
violation in this incident. Concededly, Copella,
who had a prior history of tardiness, was 2 minutes
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
late for work and that fact was assigned as the
reason for her having been issued a warning slip.
However, by that time the Respondent had, with-
out prior notice to the Union, already reduced the
length of the grace period allowed employees on
late arrival from 6 to 2 minutes, contrary to the un-
derstanding reached by the parties during the De-
cember 10 bargaining session. This unilateral reduc-
tion in the length of the grace period constitutes an
additional violation of Section 8(a)(5). It follows
that the Respondent likewise violated Section
8(a)(5) and (1) of the Act by disciplining Copella
because her late arrival fell beyond the protection
of its new, more stringent, grace period, and we so
find.
5. In addition to the unfair labor practices found
above, and in agreement with the Administrative
Law Judge, we also find other convincing evi-
dence that the Respondent negotiated in bad faith
with the Union in violation of Section 8(a)(5) of
the Act. In this respect, we rely upon the follow-
ing conduct of the Respondent as additional evi-
dence of its bad-faith bargaining:
(a) Unlawfully granting wage increases to select-
ed employees, without notice to the Union, not-
withstanding the cancellation of the 1974 wage
program and the purported wage freeze because of
adverse economic circumstances.
(b) Unjustifiable, frequent, and inordinately late
arrival of the Respondent's negotiators at bargain-
ing sessions.
(c) Repudiating the agreement to bargain about
and settle noneconomic matters before negotiating
the economic provisions of a collective-bargaining
agreement.
(d) Insisting that "pro-company" employees be
permitted to participate in the selection of union
stewards.
(e) Refusing to agree to a checkoff provision in
any agreement reached in order to "protect" the
interests of "pro-company" employees.
(f) Refusing to negotiate over the pay of group
leaders, who comprise a part of the bargaining unit.
(g) Widening the gap between the parties in ne-
gotiations by offering, without explanation, less fa-
vorable provisions in the Respondent's December
17, 1974, proposal, and assuming a "take-it-or-
leave-it" posture with respect to that proposal, not-
withstanding the admission of the Respondent's
chief negotiator, Messina, that he was authorized
by management to offer more favorable terms than
those contained therein.
(h) Failing to revise its proposed management-
rights clause in accordance with the interpretation
of that clause which the Respondent gave to the
Union.
(i) Announcing to employees that it was imple-
menting unilateral changes in their terms and con-
ditions of employment, prior to the actual break-
down in negotiations in January 1975.
(j) Failing to cost out the Union's January 24
proposal before rejecting it.
(k) Following the so-called January 1975 dead-
lock, unilaterally increasing wage rates of unit em-
ployees in excess of those offered by the Respond-
ent in its December 17 proposal.4
However, we do not adopt the Administrative
Law Judge's conclusion that the Respondent evi-
denced bad faith in negotiations merely by seeking
to impose a contractual limitation on the number of
stewards available for the handling of grievances,
which the Union deemed inadequate. This limita-
tion was tied to the expressed willingness on the
part of the Respondent to pay stewards for time
lost while attending to grievances during work-
time. On the other hand, the Union never departed
from its formal demand that, in addition to being
paid for time lost during the investigation and
processing of grievances, departmental stewards be
accorded "top seniority" for purposes of layoff and
recall within their respective departments and be
permitted to "investigate problems as they occur"
and "to move in their departments to investigate
problems or grievances." These factors, when
coupled with the Union's further demand that the
chief steward and the local president be given the
"right . . . to go into any department at any time
to investigate a problem or grievance," do not sup-
port the conclusion that the Respondent exhibited
bad faith by insisting on fewer stewards than the
number sought by the Union. Neither is there suffi-
cient evidence that representatives of management
were not reasonably available for the purpose of
settling grievances, as suggested by the Administra-
tive Law Judge. Accordingly, her conclusion that
this likewise evidenced the Respondent's bad faith
must be rejected.
Finally, in the circumstances of this case, we find
it unnecessary to pass on the Administrative Law
Judge's additional finding that the Respondent ex-
hibited bad faith by failing to apprise union repre-
sentatives of the location of restrooms in a building
where bargaining first took place; by designating as
its attorney-spokesman, for the purpose of attend-
ing two bargaining sessions, an individual without
final authority to bind the Company; or by the
I In this cnneclior we lnote iour agrcment with the Admnistrative
Law Judge that the Respondent iolalted Sec (a)(5) alnd (1) hy unilater-
ally changing terms and conditions of employment in January. even if the
Respondent h;argained in good faith and the unilateral changes made
were im aiccrd with those previously offrcrd to the Union Thus. as
found hy the Admnliistrative l.aw Judge, lno impase in negotiations in
fact, had occurred before the chalnges were instituted
960
HAROWE SERVO CONTROLS, INC.
means taken to advise the Union of the departure
from the Company's "anti-nepotism" policy, neces-
sitated by the ensuing strike.
6. We agree with the Administrative Law Judge
that the conduct herein found unlawful caused and
prolonged the strike by employees which began on
January 27, 1975, 5 and ended on March 25, 1975,
when the Union made an effective unconditional
offer on behalf of all striking employees to return
to work.6
As unfair labor practice strikers, the Respond-
ent's employees are entitled to reinstatement to
their former jobs, absent a showing that they en-
gaged in unprotected activity warranting their ter-
mination, even if their reinstatement would ad-
versely affect the tenure of striker replacements.
Accordingly, we conclude, as did the Administra-
tive Law Judge, that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by failing to offer
those individuals named in Appendix A, attached
to the Administrative Law Judge's Decision, imme-
diate reinstatement, or by requiring, as a precondi-
tion to reinstatement, that employees fill out and
return the "availability" forms which the Respond-
ent mailed to them after receipt of the Union's
offer.
A fortiori, we find that the Respondent violated
Section 8(a)(1) by not granting vacation pay to
strikers who were not recalled by April 30, 1975,
since those employees concededly would have
been eligible to receive such pay had they been re-
instated by that date. In this connection we note
that as of May 1, 1975, the date on which the strik-
ers would have become eligible for that benefit had
the Respondent not acted unlawfully to deprive
them of their entitlement thereto, the Respondent
had not determined which, if any, of the strikers
should be terminated for misconduct. Accordingly,
entitlement to such benefits vested on that date. In
passing, we disavow the Administrative Law
Judge's gratuitous comments concerning the ap-
proach to the issue she would take in the absence
of decisions such as Knuth Bros., Inc. 7
7. We agree that, following onset of the strike,
the Respondent continued to evidence bad faith in
its dealings with the Union. Specifically, we adopt
the Administrative Law Judge's conclusion that the
' However, in so deciding, we disavow any reliance upon the Admin-
istrative Law Judge's apparent suggestion, appearing in the paragraph im-
mediately preceding part II of her Decision, that the presence of eco-
nomic objectives inherent in the strike decision buttresses her conclusion
that the employees embarked on an unfair labor practice strike
I Having atffrmed the Administrative Law Judge's finding that the ap-
plication for reinstatement made hy the Union on behalf of striking em-
ployees was unconditional, we find it unnecessary to pass upon her fur-
ther observations that the aforesaid application is "effective even assum-
ing it were 'all-or-none' in character," or that the Respondent should be
estopped from asserting otherwise.
7 229 NLRB 1204 (1977)
Respondent's refusal to meet with the Union be-
tween February 12 and March 4, 1975, purportedly
because the parties had reached impasse and be-
cause of picket line misconduct, which concededly
occurred, evidences such bad faith.
Furthermore, contrary to the Administrative
Law Judge, we find that the Respondent also evi-
denced continuing bad faith, some 2 months after
the strike was terminated, by withdrawing propos-
als previously tendered and agreements previously
reached. As the Administrative Law Judge found,
after the unsuccessful strike, the Respondent had
reason to believe that the Union no longer pos-
sessed whatever economic strength it had hitherto
enjoyed and that this factor was behind the Re-
spondent's withdrawal of its prestrike concessions.
The Administrative Law Judge erred, however, in
holding that the Respondent was free to take ad-
vantage of the Union's weakened condition even
though the strike itself was motivated by the Re-
spondent's unfair labor practices. The aforesaid
conduct inexorably follows events previously set in
motion by the Respondent's unfair labor practices
and clearly demonstrates a course of conduct cal-
culated to fulfill the Respondent's earliest predic-
tions-that employees would be better off without
union representation. In these circumstances, we
conclude that the Respondent also evidenced bad
faith by withdrawing its prestrike proposals and re-
pudiating prestrike agreements.8
However, we do not agree that the Respondent
withdrew recognition from the Union on and after
July 17, 1975, when its chief spokesman advised
the latter that, in view of a decertification petition
filed on the previous day, he questioned the Re-
spondent's legal obligation to continue to recognize
and bargain with the Union. Specifically, in light of
the facts that the Respondent met with the Union
on two subsequent occasions and continued to pro-
vide it with employee information until late Sep-
tember 1975, we find insufficient evidence that rec-
ognition was in fact withdrawn.
8. The Administrative Law Judge held that the
Respondent unlawfully refused to offer reinstate-
ment to certain unfair labor practice strikers,9 re-
jecting the Respondent's claim that those individ-
uals were terminated because they had engaged in
picket line misconduct so serious as to remove
them from the protection of the Act. Among other
things, the Administrative Law Judge found that
R In the absence of exceptions, we adopt pro firma the Administrative
Law Judge's holding that, because there was no evidence that this was in
fact done, the Respondent did not violate Sec 8(a)(5), (3), and (I) of the
Act by advising nonstrikers and striker replacements that probationary
periods applicable to initial employment would he shortened.
I Appendix C, attached to the Administrative Las Judge's Decision
961
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
the Respondent had in fact condoned the miscon-
duct here in question.
Specifically, she found that, in two notices sent
to all strikers on March 11 and 21, 1975, respec-
tively, the Respondent made it "perfectly clear"
that they would be reinstated, irrespective of any
picket line misconduct attributable to them, if they
would abandon the strike. In further support of this
finding, the Administrative Law Judge refers to the
testimony of the Respondent's personnel manager,
Hinnegan, who, in connection with the "request to
turn" forms sent to the former strikers on March
28, is quoted as having stated: "At this point every-
body on that list was, as far as we were concerned,
eligible to return." We disagree with certain of the
Administrative Law Judge's conclusions on this
issue.
Threats directed against nonstriking employees
and incidents involving damage to personal proper-
ty accompanied the strike from its inception. The
Respondent reacted immediately by obtaining a
temporary injunction. Several days after the strike
began, the Respondent sent all strikers their pay-
checks covering the preceding period, also enclos-
ing a notice, dated January 31, which stated in
part:
For some of you, the enclosed pay check will
be your last one. For employees on strike who
have not acted illegally we hope this is not
your last pay check for a long time.
After a partisan attack upon the Union's leadership,
the notice concluded with a thinly veiled warning:
For those of you who deserve better, Good
luck. For others, Good Riddance ....
Indeed, by the Administrative Law Judge's own
account, the likelihood that discipline would be
meted out to those who engaged in misconduct
was subsequently raised by the Respondent in
meetings held with union representatives. The first
such meeting occurred on March 11, 1975. On that
date, the Respondent's representatives stated that
"there might be some people whom it would be
disciplining but did not say how much or whom."
On the same date, the Respondent followed up
with a notice to all strikers, to which the Adminis-
trative Law Judge referred, advising them that, in
accordance with notice given to the Union that
day, it was proceeding immediately with the re-
placement of strikers and encouraging employees
desiring to return to work to notify the Company.
At the hearing, Hinnegan explained the reason
for sending the March 11 notice to all employees:
Well, at that point, everybody on that list
was, as far as we were concerned, eligible to
return.
We had thoughts about possible discipline for
some of them; but we were still in the investiga-
tive part of the thing and we were still studying
the actions of some of them on the picket line,
and we hadn't determined the degree of disci-
pline at that time. So we felt that it was only
fair that they all be contacted and given this
opportunity [emphasis supplied]. '
Thereafter, at a meeting held on March 19, Ste-
vens, an International representative, advised Mes-
sina, counsel and chief spokesman for the Respond-
ent, that the Union might end the strike and asked
what the Respondent's position would be on re-
turning the strikers to work. When Stevens raised a
question concerning unemployment compensation
eligibility for those not immediately reinstated,
Messina indicated no objection except for those
whom the Respondent might want to discipline. At
least one individual was specifically mentioned by
name. On the following day, the Respondent di-
rected another notice to employees, to which the
Administrative Law Judge also referred. In addi-
tion to underscoring its position that the striking
employees were engaged in an economic, rather
than an unfair labor practice, strike, and distin-
guishing between reinstatement rights accorded
employees, depending upon the nature of the
strike, this notice did no more than reaffirm the
message contained in the notice of March 1.
The Respondent's warning was repeated to Ste-
vens on March 24, and again on the next day,
when the parties met, following the decision to call
off the strike. At this meeting the Respondent
promised to furnish the Union a list of the individ-
uals it intended to discipline. Such a list was in fact
given to the Union on April 7. It contained the
names of 32 individuals, including the 12 discharg-
ees identified in Appendix C, attached to the Ad-
ministrative Law Judge's Decision.
Meanwhile, on March 28 the Respondent sent a
letter to all strikers inviting them to complete and
return an enclosed form signifying their interest in
returning to work. This letter contained the follow-
ing admonition:
Certain employees will not be recalled imme-
diately or placed on the "preferential hiring
list" because their illegal strike activities are
sufficient to warrant suspension or discharge
under the controlling National Labor Rela-
"' The Administrative Law Judge erred insofar as she found any con-
nection between Hinnegan's ahboe-quoted testimony and the "request to
return" flrms sent to employees on March 28, mentioned infra
962
HAROWE SERVO CONTROLS. INC
tions Act law [sic]. Those employees found to
have violated the law will be so notified fol-
lowing the Company's receipt of their request
to return to work.
Subsequent discussions between the parties did
not lead to agreement on the question of discipline,
and the 12 individuals considered by the Respond-
ent to be the greatest offenders were ultimately dis-
charged for their misconduct on the picket line.
The foregoing facts hardly reveal an intention on
the part of the Respondent to forgive the miscon-
duct here in question. Indeed, we find, contrary to
the Administrative Law Judge, that the Respond-
ent did not at any time condone the activities
which it now asserts removes the individuals in-
volved from the protection afforded unfair labor
practice strikers under the Act.
9. The Administrative Law Judge concluded
that, even if the Respondent had not condoned the
picket line misconduct of the 12 dischargees, such
conduct, when balanced against the severity of the
Respondent's unfair labor practices which pro-
voked and prolonged the strike, was not so egre-
gious as to remove them from the protections af-
forded unfair labor practice strikers. Accordingly,
she concluded that the Respondent violated Sec-
tion 8(a)(3) and (1) by refusing to reinstate the 12
named discriminatees.
On the facts and for the reasons set forth in her
Decision, we agree that the misconduct of employ-
ees Barnett, Boyer, Collins, Copella, Hughes, Pask-
ings, Murrey, and Roundtree was insufficient to
justify their discharge and therefore that the Re-
spondent unlawfully refused to reinstate them. '
However, contrary to the Administrative Law
Judge, we find that the Respondent did not unlaw-
fully refuse to reinstate Grayson, Hilliard, O'Flynn,
and Rossi. In this respect, we find merit in the Re-
spondent's contention that no violation may be
found by reason of its refusal to reinstate the afore-
said individuals unless it can be shown that their
misconduct was in fact condoned by the Respond-
ent.
Concededly, the General Counsel dismissed a
charge filed in this proceeding insofar as it alleged
that these individuals were unlawfully discharged,
as the evidence established that they were terminat-
ed "because of their misconduct during the strike,
and not because of their activities on behalf of the
union." It is also conceded that, subsequently, on
reconsideration of an appeal filed by the Union, the
" Accordingly, we place no reliance on the Administrative Law
Judge's further discussion insofar as she finds that the Respondent was
motivated by discriminatory reasons in refusing to reinstate the aforesaid
individuals. or concludes that, in any event, reinstatement and backpay
are required to remedy the unfair labor practices which caused and pro-
longed the strike
names of these individuals were added to the Gen-
eral Counsel's complaint solely because "the evi-
dence that the employer condoned the alleged mis-
conduct of all the strikers, presented issues war-
ranting Board determination...." Further, at the
hearing, and subsequently in his brief to the Ad-
ministrative Law Judge, the General Counsel un-
equivocally asserted that he was relying solely on a
theory of condonation, in alleging that these indi-
viduals were unlawfully terminated.
We note that Section 3(d) of the Act affords the
General Counsel "final authority, on behalf of the
Board, in respect of the investigation of charges
and issuance of complaints . . . and in respect of
the prosecution of such complaints before the
Board." Thus, under our statutory scheme, the
General Counsel has discretion to refuse to pro-
ceed on any charge he deems to be without merit
and the Board may not interfere with the General
Counsel's exercise of that discretion. As the Gener-
al Counsel restricted the scope of the complaint
with respect to these four individuals, we hold
that, as to them, there is before us only the ques-
tion of condonation.
Having previously found that the Respondent
did not condone any of the picket line misconduct
which occurred in this case, we find that it did not
unlawfully refuse to reinstate the individuals here
involved.
10. The Administrative Law Judge found that,
subsequent to the termination of the strike and the
Union's unconditional offer on behalf of all strikers
to return to work, II named individuals, who were
never offered reinstatement, 2 either resigned or
otherwise informed management that they were
unavailable for further employment. To remedy the
Respondent's failure to offer these employees rein-
statement, the Administrative Law Judge recom-
mended that the Respondent be ordered to do so,
notwithstanding the employees' stated intention to
sever their employment relationship with the Re-
spondent. The Administrative Law Judge also rec-
ommended that backpay liability to these individ-
uals "recommence" 5 days after the Respondent re-
ceived its copy of the Administrative Law Judge's
Decision, unless by that time the Respondent had
offered reinstatement to these employees. For the
following reasons, we revise this aspect of the Ad-
ministrative Law Judge's recommended Order.
As noted, while the Administrative Law Judge
apparently found that the 11 individuals had effec-
tively resigned their employment, she also ordered
recommencement of backpay for them after her
' Hirely. HBo yer. Cam,i Clas . .Goldshbolugh. ' John,,on. I.eC.ale. L oane.
LXster. Mar.ll. MeItaddenl. Miller. M P'aLskilgs, Rochester, RoN, Scar-
fo,,ss, Skidmore. I C Smilh. Starkey, Steele an. d 1 , 'allacc
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
availability for recall. 294 In addition, Hinnegan testified
that Respondent also concluded that strikers had "re-
signed" if they so advised Respondent by letter or tele-
phone; if they sent their badges in; if "by some concrete
method [they] indicated that they were no longer
coming back"; and if Respondent learned, by hearsay or
otherwise, that they were "working somewhere else,"
particularly if they had failed to send in an availability
slip. Also, Hinnegan testified that people were taken off
the preferred hiring list if Respondent offered them a job
and they turned it down, or if they retired. The cases of
particular individuals named in the complaint whom Re-
spondent removed from the preferred hiring list are dis-
cussed infra, part IV.
Hinnegan testified without objection that, by the end
of the strike, Respondent "had hired" between 135 and
140 new permanent employees. About 32 of them were
terminated before the end of the strike, and about 10
more were terminated before April 10. As of March 25,
the end of the strike, between 250 and 255 employees
were on the active payroll. As previously noted, be-
tween the end of the strike and April 7, 1975, about 18
strikers, none of them named in the complaint,
2 95 were
recalled to work. 29 6 Hinnegan testified that no replace-
ments were terminated to make room for returning strik-
ers. There is no claim and no evidence that any of the
strikers named in the complaint could not have been re-
instated immediately following the end of the strike if
Respondent had discharged the appropriate number of
replacements. By letter dated July 21, 1975, beginning
"To whom it may concern," Hinnegan stated, "During
the course of the strike, a number of jobs were filled by
the hiring of replacements and by internal transfer of em-
ployees on the active payroll."
The pleadings establish that between April 28, 1975,
and April 6, 1976, Respondent offered jobs to 44 of the
employees named in the complaint. Hinnegan credibly
testified that strikers who were offered and accepted re-
instatement were given the respective seniority dates
they had before going on strike. Between March 25,
1975, the end of the strike, and March 25, 1976, 4 days
before the hearing opened, Respondent hired about 100
new employees for bargaining unit positions, all but 4 of
which the General Counsel contends should have been
offered to unreinstated strikers even on the assumption
that Respondent acted lawfully in failing to offer them
reinstatement at the end of the strike.
2 9 7 Of these 96
294 Namely, M Battle. P. A. Becker, T. N Beulah, B L. Chandler. P.
C Condit, E F Copes, D. L Eddis, T. G. Fightmaster, S A. Frail, K.
L. Garneski, B Gigetts, M. R. Goldsborough, W. Johnson. D. C Jones,
E. M. Korth. D. Long, D. M. Marvin, T. M. McFadden, M. Paskings,
M Reeves, J. Rivera, and J. N. Wallace. Hinnegan testified in April 1976
that "for a while" Respondent had not terminated anyone for not sending
in these forms, "because almost everybody is back to work: and it's aca-
demic at this point."
295 As previously noted, for administrative reasons the complaint does
not name anyone who was reinstated before April 10.
296 This finding is based on Resp. Exh. 44 and the statements made on
the record in connection therewith. Resp Exh. 117, which purports to
set forth some additional recalls, was not offered into evidence to prove
the truth of the matter asserted.
9a7 All parties stipulated that the strikers do not claim positions in,
inter alia, the classifications of laboratory technician B (P Polka), and
toolmaker (A H. Jackson and W J. Meegan). The General Counsel's
brief makes a like concession as to G. DiMeglio, who returned on Octo-
new hires, about 69 were for positions at labor grade 1,
the entry level. As previously noted, when the Union
asked on October 22, 1974, for a weekly list of transfers
by the approximately 300 employees in the bargaining
unit, Respondent refused on the ground that it was
having "hundreds of transfers and moves." Also, when 8
to 10 employees had been laid off in November because
the work had disappeared from their area, Respondent
recalled to jobs different from their prelayoff jobs all the
employees who wanted to come back, and Hinnegan tes-
tified that Respondent "tried to fit them into jobs com-
mensurate with their seniority" because "they were all
good workers and we didn't want to lose them."'
2s In
addition, as previously noted, Messina testified that when
Respondent arranged for performance of overtime work,
there was "a great deal of flexibility in taking people
from other areas who could do the work"; and Hinnegan
testified that when a non probationary employee was
unable to do a particular job, Respondent usually tried to
find another job for him. Parsons credibly testified that
as to most of the bargaining unit jobs, it was difficult to
find applicants who had experience therein, and as to
some jobs (e.g., a rotor assembler who was to do rotor
stacking) Respondent did not look for experience in that
job.2 9 Parsons further credibly testified that depending
on the job, employees took between I week and 6
months to learn it, and from 3 months to 2 years to get
good at it. Still according to Parsons' credible testimony,
once an employee has been fully trained, he retains the
skills "quite well" for at least 3 months. Parsons credibly
testified that as to just about every job in the plant, Re-
spondent would have been anxious at all material times
to hire an applicant who had had prior experience in that
job with another employer. Still according to Parsons'
credible testimony, the employees hired during the 2-
month strike took from I to 6 months to really get to the
point where they understood the job, and as of the time
the 2-month strike ended, the plant was having quality
(but not quantity) problems because of their inexperi-
ence.
On April 21 through 23, 1975, about a month after the
strike ended, Respondent advertised for operator, assem-
bler, in planet or final assembly.
300 Respondent hired A.
M. Zieger as "OPD fin asy sychr" on April 24, S. Arm-
her 13, 1975. from a medical leave of absence whose duration is not
shown by the record. His payroll number indicates that he was hired
sometime after October I18 1974, but before December 17. 1974. His
name does not appear on the active payroll for the latter date.
2a8 Parsons credibly testified that employees in drill and mill transfer
back and forth within drill and mill and infrequently out into the rest of
the machine shop. He further credibly testified that he (although not all
members of management) thought it practicable to transfer workers from
the machine shop to other jobs, but that in his opinion the reverse was
not true. The jobs in Respondent's machine shop are listed in G.C. Exh.
18, Item I The other jobs are listed in Items II-111
299 The only striker replacement as to whose skills and hiring inter-
view the record contains specific evidence is Thomas Riale, whom Re-
spondent hired, as a production worker on the assembly line, in disregard
of its prestrike nepotism policy. Hinnegan asked Riale if he had ever
worked in a plant before, he said no; Hinnegan asked if he would like to
be trained to work, he said yes because he needed a job, and he was
hired
:300 The description in the text is couched in terms of Respondent's
own internal job descriptions, not in the terms used in the advertisement.
1066
HAROWE SERVO CONTROLS, INC
brester asc "OPC assem planet" on April 28, and G. A.
Newman as "OPC final asy M & MC" on September 8,
all of them at labor grade 1.3 O' Hinnegan testified that as
of April 23, 1975, nobody on the preferred hiring list had
the skills called for by the foregoing help-wanted adver-
tisement of that date. I do not credit his testimony in this
respect in view of the following evidence: The April 10
preferred hiring list describes M. Malinowski, L. A.
Sloane, D. Coppick, and M. Rochester as "OPD Fin
asy," D. Marvin as "OPC Fin asy," L. Loane as "OBP
Fin asy," and E.M. Korth as "OPD Planet asy." Also, T.
O. Palmore was listed on the December 17, 1974, com-
puter runout as "OPA Fin Asy M & MC."302 So far as
the record shows, Marvin and Loane were never offered
a job. Sloane was not offered a job until May 27, 1975;
Malinowski (although 9 years senior to Sloane and with
the same prestrike department, position, and pay rate)
was not offered a job until October 6, 1975; Korth was
not offered a job until November 1975; Palmore was not
offered a job until February 1976; and Coppick and
Rochester were not offered jobs until March 1976.
L. M. Belmonte appeared on the April 10, 1975, pre-
ferred hiring list as "OPC Insert Stator." On August 18,
1975, Respondent hired employee Engle for the job
"OPD Insert Stator," a job which according to Hinne-
gan requires the same or lesser skills (supra, part 1,J,4,g).
The next day, August 19, Respondent terminated Bel-
monte. Hinnegan testified that she was not put on the
preferred hiring list because Respondent believed she
had resigned to take another job. There is no evidence
that she had in fact done so.
When asked what kinds of workers Respondent
needed just before the end of the strike, Hinnegan testi-
fied, "Any kind of setup people." Parsons testified that
training a setup man takes at least 2 years. Employee R.
H. Erskine appears on the April 10 hiring list as "SUA
setup"-that is, a setup man with the highest degree of
skill who sets up drill presses and milling machines. On
an undisclosed date before the strike, he individually re-
quested a wage increase. A wage increase during the
"freeze" was approved by a personnel status report
which states, "Employee has not had an increase for I
year. We can not take any chance of losing any more
mechanics. He is setting up machines, plus training a new
man, and watching over three other employees." Erskine
was not offered a job until November 3, 1975, when he
was called back into another position which paid him $1
an hour less than his prestrike job and from which he re-
signed in December 1975. Nobody with the classification
"SUA setup" was hired between the end of the strike
and March 25, 1976, a few days before the hearing; but a
"TRX trainee setup" was hired on October 13, 1975, and
two employees classified as "TRX setup mach" were
hired on June 16, 1975.303
301 Newman was a "rehire."
301 For reasons unexplained in the record, she is not on the April 10,
1975, preferred hiring list. From her eventual February 1976 receipt of a
job offer, and from the parties' stipulation that employees were not re-
called once they were removed from the preferred hiring list, I infer that
she was added thereto after April 10.
303 An employee classified as "SU mach" sets up different machines
from an employee classified as "SUA setup."
In view of the facts set forth in the five preceding
paragraphs, which facts are largely established by Re-
spondent's records, I do not believe Hinnegan's testimo-
ny that in filling vacancies which arose after the end of
the strike he initially offered the job to the unrecalled
strikers who had occupied that particular job before the
strike, in the order of such strikers' seniority, or (particu-
larly in view of the large number of new employees
hired at the entry level while many strikers were unre-
called) his additional testimony that, before hiring new
employees, he tried to find unrecalled strikers who were
qualified to do the work.3 0 4
10. Contacts between Respondent and the Union
between May 16, 1975, and the March 1976 hearing
The Union and Respondent met on several occasions
between May 16 and July 10, 1975, inclusive.30° At the
May 16 session, the parties discussed the fact that some
of the strikers had not yet received their unemployment
compensation checks. In addition, the parties discussed,
but failed to reach agreement on, the discipline of the 20
undischarged strikers on Respondent's tentative list of
strikers to be disciplined for strike misconduct.3 06
By letter to Stevens dated May 21, 1975, Messina spec-
ified certain contract clauses which Respondent was still
proposing "without change" from its proposal of Decem-
ber 17, 1974. The letter stated, "All of the areas covered
at our negotiations and omitted from this letter must
remain open and subject to further discussions . . .. Of
course, the company is prepared to bargain about any
proposal and/or area." The "omitted" clauses consisted
of Respondent's December 17 proposals regarding se-
niority (supra, part I,D,12,r), holidays (supra, part
1,D,12,hh), vacations (supra, part l,D,12,ii), group insur-
ance (supra, part I,D,12,11 and mm), pensions (supra, part
1,D,12,oo), sick leave (supra, part 1,D,12,jj), overtime
(supra, part G,3,a), personal leaves of absence for union
business (supra, part I,D,12 o), access to the plant by
union representatives to service the contract (supra, part
l,D,12,pp), recognition of and payment to shop stewards
(supra, part 1,D,12,qq), and duration (supra, part
I,D,12,c), with Respondent proposing a I-year rather
than a 3-year contract.
By the time of the next meeting, on May 23, most of
the unemployment compensation problems had been re-
solved. The Union asked Respondent to do some "actual
negotiating." Respondent said that it would not negotiate
without the presence of the Federal mediator.
During a meeting sometime in June, Stevens told Mes-
sina that the Union wanted a long-term agreement be-
As found infra Erskine was not a striker, and was absent during the
strike for medical reasons. The evidence as to him has been summarized
because of its relevance to the administration of the preferred hiring list
301 In any event, for the reasons set forth infra, part II,C,2, the result
herein would be the same even if I credited Hinnegan's testimony in this
respect
30I In his capacity as an attorney, Messina objected to the character-
ization of at least the May 16 and 23 meetings as negotiations, on the
ground that "that has some kind of legal meaning, and I don't hear any
evidence to substantiate that " Opposing counsel accepted this
3sn As previously noted, 1 week's suspension was eventually imposed
on 4 of these 20. The others were not disciplined at all
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause he was worried about what would happen at the
end of the contract if it were a I-year agreement. Fur-
ther, Stevens proposed a union-shop clause which ap-
plied only to employees hired after the beginning of the
strike.
During a July 10 meeting in the mediator's presence,
the Union asked Respondent to tell it what contract
issues the parties still agreed on and which ones they had
differences on. Messina said that he would go back
through the list and tell the Union.
On July 16, 1975, an employee, group leader Marshall
Wells, filed a petition with the Regional Office seeking
to decertify the Union as the employees' collective-bar-
gaining representative. Respondent was advised of this
action by letter from the Regional Office dated that same
day. The Union and Respondent had previously sched-
uled a meeting for July 17. Messina received the petition
on the morning of July 17, and brought it with him to
the meeting that day. On direct examination, he testified
that he told the Union, "I think the legal implications of
this [are] that I may not be able to continue to bargain
with you without falling into an unfair labor practice
charge." On cross-examination, Messina's version was, "I
was uncertain as to whether or not I could continue to
meet with the Union and, therefore, I would not meet
that day." Hinnegan testified that Messina said there was
a question of majority status. According to Stevens, Re-
spondent said that it was "not sure at that point what
[its] legal obligation was in relation to recognizing the
Union." For demeanor reasons, I credit Stevens. On an
undisclosed subsequent date, inferentially a few days
later, Messina advised the Union by letter that he did not
feel he could continue to bargain with the Union until
such time as the question of representation was resolved.
Messina testified that the July 17 meeting "was the last,
quote, 'bargaining session' I had."
Messina stated in his capacity as an attorney that Re-
spondent had taken "the position with the [Regional
Office] that we might possibly be subject to an unfair
labor practice filed on behalf of the majority of the em-
ployees since there was a petition filed. Since the [Re-
gional Office] indicated that the decertification petition
would be blocked, we felt that the best position was to
continue to bargain." About the first or second week in
August, the Union again met with Respondent, which in-
dicated that it had reviewed its legal situation and was
again willing to meet. The Union asked Respondent to
supply lists of employees who nad been recalled, hired
off the street, and terminated. This information was sup-
plied by letter dated August 29, with respect to the
period between July 7, 1975, and August 29, 1975.30 7 By
letter dated August 22, 1975, Messina again proposed the
management-rights clause in Respondent's December 17,
1974, proposal, but deleted from its arbitration proposal
some language to which the Union had objected (see
supra, part I,D,12,ss).
The complaint herein issued on August 29, 1975, 5
days before the close of the certification year. Shortly
before or (more likely) shortly after August 29, at the
:"07 Some (of this material may have been given during the August
meeting
suggestion of Board Agent Maclasky, Messina engaged
in discussions with Union Attorney Mauro in an effort to
settle the unfair labor practice case. Mauro said that any
agreement would have to be long term and include a
union-shop provision. After consulting the client, Mes-
sina advised Maclasky that Messina could not settle the
case on those grounds. Messina stated in his capacity as
an attorney that, after being advised that the decertifica-
tion petition would be blocked by the unfair labor prac-
tice case, Respondent "continued to bargain . . . specifi-
cally because the Company wanted to avoid any allega-
tion that it might be guilty of unfair labor practice; and it
was felt that it was safer to continue to bargain if we
could resolve it and get an agreement, that would have
been fine." Messina further stated, still in his capacity as
an attorney, that Respondent continued to extend formal
recognition to the Union until after the September 3,
1975, close of the certification year, and that as of the
end of March 1976, recognition had never been formally
withdrawn. He testified that, sometime after the certifica-
tion year had expired, he sent a letter to Stevens, which
is not in the record, that Messina did not know whether
he had a right to talk to the Union "during that period,"
that he felt it was "improper," and that Respondent had
no obligation to bargain because Stevens "did not waive
good faith doubt." On September 11, 1975, the Regional
Office dismissed the decertification petition on the
ground that, "In view of the outstanding Section 8(a)(1),
(3), and (5) complaint involving the same unit, no ques-
tion concerning representation exists." 30°
So far as the record shows, Respondent never met
with the Union after the decertification petition was dis-
missed. Toward the end of September 1975, and after the
issuance of the complaint, Respondent sent Stevens a list
of hires and terminations for the period August 25 to
September 11, 1975. By letter dated December 3, 1975,
Stevens asked Messina for a list of "all new hires, trans-
fers, quits, recalls, layoffs, etc. from 8/25/75 to the pres-
ent . . . an up-to-date list of all present employees with
their rates of pay, seniority dates, addresses, job classifi-
cations, shifts etc. [and] a meeting to handle shop prob-
lems" and to try to negotiate a contract. A letter from
Stevens to Messina dated March 5, 1976, about 4 weeks
before the hearing began, repeated these requests, and
added requests for information regarding the "old pro-
grammed wage increases" and for "up to date informa-
tion on all Company benefits, such as pensions, holidays,
vacations, insurance etc." The Union received no reply
to either letter.
When asked why he did not reply to these letters,
Messina testified, "Just simply it was my position that I
wasn't going to put anything in writing. The matter was
scheduled for trial at that time, and I felt that it would
not be proper." When I asked what he meant by "it
would not be proper," Messina initially replied, in part,
"Well obviously, today, the use of some of these docu-
:io It is unclear why the Regional Office wailed nearly 2 months to
dismiss this petition, The Agency will nolt normally entertain a decertifi-
cation petition filed within the certification year, which had about 6
weeks to run when the petition was filed. Centr-O-Cur d& Engineering
Company. I(X) NLRB 15017 (1952)
1068
HAROWE SERVO CONTROLS, INC.
ments [see supra, part 1,1] that were submitted indicates
to you the reason why I would be reluctant to send any-
thing after a complaint was issued." In objecting to the
receipt into evidence of the Union's March 1976 letter,
Messina stated in his capacity as an attorney that the
"filing of the petition with a sufficient showing of inter-
est for decertification" constituted "a clear indication
that there is evidence that a good faith doubt [of the
Union's continued majority] exists." He stated that a ma-
jority of the employees had signed the petition, which is
not in the record, but he did not recall whom he consid-
ered as employees for the purpose of making this calcula-
tion.3 0 9 Messina further stated, still in his capacity as an
attorney, that Respondent "took the position that there
was a good faith doubt at some point," which he did not
specify, and that "After we know that this Union does
not represent a majority of the employees, after the certi-
fication year, we are not allowed under the Board regu-
lations to bargain with someone who does not represent
the majority of the employees" (see infra, fn. 323). Mes-
sina went on to say that "there has been nothing formal-
ly done" with respect to withdrawal of recognition, and
". .. here we have the date of the issuance of the Com-
plaint, the trial is set and I'm getting letters in the mail.
. . . If anybody thinks that a decent lawyer . . . is going
to respond to something like this, no. Not after it's al-
ready set for litigation. Because if, in fact, you find the
Company has not committed any unfair labor practices
. . . we are going to have a decertification petition; and
we cannot bargain with anybody until that's resolved."
In late April 1976, the chief steward on the night shift.
employee Samuels, presented a grievance to her supervi-
sor, who said that he did not know whether she repre-
sented a majority and referred her to Hinnegan. Hinne-
gan told her that he was not sure whether the Union
"represented a majority status"; that there was "a ques-
tion of majority status" since September 3, 1975, which
was the close of the certification year; and that he would
get back to her with an answer. The record fails to show
what, if any, further contact occurred. On April 21,
1976, Samuels credibly testified that there had been no
grievance procedures since her recall to work on Febru-
ary 17, 1976.
11. The allegedly unlawful withholding of vacation
pay
At all times here relevant, Respondent afforded em-
ployees paid vacations which increased with length of
service. Respondent's 1975 vacation practice with re-
spect to employees who never participated in the strike
at all was essentially the same as its practice in prior
years. Thus, an employee who was hired before January
1, 1975, was entitled to take a paid vacation between
May 1, 1975, and April 30, 1976-its duration depending
309 Unrecalled strikers would be included in the electorate whether
the strike was an unfair labor practice strike or an economic strike Re-
placements for the strikers would he excluded if the strike was an unfair
labor practice strike, but included if it was an economic strike. NL R B
v. A. Sartorius & Co., Inc., 140 F.2d 203, 206 (2d Cir 1944); C H.
Guenther & Son. Inc. d/b/a Pioneer Flour Mil w. N. L.R. B., 427 F 2d 9R3,
986-987 (5th Cir 1970), cert. denied 400 U S 942; .V.L R.B. v Frick
Company, 423 F 2d 1327, 1334 (3d Cir 1970)
on his length of service as of May I, 1975-provided he
had continuous employment as of April 30, 1975, and
was on the active payroll as of April 30, 1975. If an oth-
erwise eligible employee resigned at any time before
April 30, 1975, he was not entitled to any vacation pay
at all. If an otherwise eligible employee was laid off on
April 15, 1975, but returned to work on July 1, 1975, he
was entitled to a paid vacation before April 30, 1976, and
his time on layoff status would be considered in deter-
mining the length of his paid vacation. Hinnegan testi-
fied, in effect, that an employee laid off on April 1, 1975,
probably would not be entitled to vacation pay for the
period between May 1, 1975, and April 30, 1976, if re-
called on January 1, 1976 (although "I have never had to
make that decision"), and would not be so entitled if re-
called on May I, 1976. Each employee's vacation pay-
check was based on his rate of pay at the time he took
his vacation.
All of the strikers who returned to work before April
30, 1975-including but not limited to strikers who re-
turned to work during the strike-and were actively
working on April 30, 1975, received paid vacations on
the same basis as employees who never struck at all.310
The period which each such striker spent on strike was
counted as length of service for the purpose of determin-
ing the length of the paid vacation to which he was enti-
tled. All strikers who returned to work after April 30,
1975, but before January 1, 1976, received vacation pay,
upon their return, calculated on the same basis as non-
strikers on the active payroll as of April 30, 1975, and as
strikers who were on the active payroll as of that date.
Except for Helen Weaver, discussed below, strikers who
did not return to work before January 1, 1976-a date
which Respondent selected solely because it was a new
calendar year-received no vacation pay for the period
May 1, 1974-April 30, 1975. The time which such strik-
ers spent on strike was included in determining the
length of their paid vacations for the period May 1,
1975-April 30, 1976. As to the strikers who came back
after January 1, 1976, Hinnegan testified on April 30,
1976, ". . . the full year for 1975 has gone by. So rather
than have them get pro rated, if we have such a thing,
for the short period of time they came back from Janu-
ary to April 30th, we counted their previous accumula-
tion of eligibility, called that a full year of eligibility
earning and will give them a full vacation." Hinnegan
testified that he regarded the employees on the preferred
hiring list as employees on layoff status.
On April 1, 1975, Respondent received a form from
Helen Weaver dated "9-3-75" and stating, "I am formal-
ly requesting to return to my former position." She was
second on Respondent's April 10 preferred hiring list.
However, after going out on strike, she never again per-
formed productive work for Respondent. On April 28,
1975, Weaver signed a document stating, "I wish to for-
mally request retirement from Harowe Servo Controls,
Inc. I also wish to make the effective date as soon as
possible." By memorandum dated that same day, Lukens
"", Respondent also gase accl-ued %acation pa> to emplo>ee Bob
Walker, who ceased \ork during the strike because of fear of siolence
and returned to stork right after the strike
1(69
DECISIONS OF NATIONAL I.ABOR RELATIONS HOARD
asked Hinnegan to process this request. On May 6, 1975,
Hinnegan mailed her a check to cover her "vacation pay
for 1974-1975," and advised her that she would soon be
receiving her pension check under Respondent's pension
plan. Hinnegan testified that she received vacation pay
because "she had to return to the active payroll in order
to go out under the terms of the pension plan; and, since
she did return, she was considered as having passed the
April 30th and qualified under the plan and was granted
her full vacation."
12. The change in the length of the grace period
Before the Union's advent, Respondent had a policy of
not "docking" employees for lateness of less than 6 min-
utes. On December 10, 1974, the parties agreed to con-
tinue this policy. Sometime in early January 1975, Re-
spondent told the Union that Respondent wanted to do
away with the 6-minute grace period. The Union object-
ed. It is undisputed that Respondent later reduced the
grace period to 2 minutes, and never told the Union that
this was being done. The evidence conflicts about when
Respondent took this action. Operations Vice President
Rado dated this action as November or December 1975,
supervisor Lantz as sometime in 1976, and Hinnegan as
1976 or, perhaps, late 1975. I leave this issue to compli-
ance proceedings.
C. Analysis and Conclusions as to Matters Other than
the Dischargees' Rights
I. The probationary period for nonstrikers and
replacements
I find unmeritorious Respondent's contention that no
unfair labor practice findings can be based on any al-
leged change between March 11 and 21, 1975, in the pro-
bationary period for nonstrikers because of the limita-
tions period set forth in Section 10(b) of the Act. Such
allegations are sufficiently supported by the Union's Jan-
uary 1975 charge alleging, inter alia, direct dealing with
employees and bad-faith bargaining; by the Union's Feb-
ruary 1975 charge alleging, inter alia, bad-faith bargain-
ing and unilateral changes in working conditions; and by
the Union's May 1975 charge alleging, inter alia, unilater-
al changes "Since on or about March 25, 1975." See
cases cited, supra. part I,J,4,a. Accordingly, I need not
and do not consider the question of when the 10(b)
period begins to run as to a change in working condi-
tions where the change is alleged to be unlawful at least
in part because of an alleged breach of a duty to give
notice of the change to the charging union. See AMCAR
Division, ACF Industries Inc., 231 NLRB 83, 84, fn. 2,
90-91 (1977).
However, I conclude that Respondent did not violate
Section 8(a)(l), (3), and (5) by advising nonstrikers
during the strike that they had completed a satisfactory
probationary period even though they had worked less
than the probationary period required before and after
the strike and at least some had worked for a shorter
period than any probationary period proposed by Re-
spondent during negotiations. I so find because there is
no evidence that any employee benefited at all by this
shortening of his probationary period.
2. Respondent's failure to honor the reinstatement
requests
As unfair labor practice strikers, the strikers were enti-
tled, on request, to offers of reinstatement to their pres-
trike jobs (or, if such jobs no longer existed, to substan-
tially equivalent jobs), even if their jobs had been filled
during the strike.3 " Further, Respondent failed to sus-
tain its burden (N.L.R.B. v. Fleetwood Trailer, Co. Inc.,
389 U.S. 375, 378, fn. 4 (1967)) of showing that it could
not have reinstated the strikers if it had discharged the
appropriate number of replacements.
I agree with the General Counsel and the Union that
on March 25, 1975, the Union made an unconditional ap-
plication for reinstatement which was effective as to all
the strikers named in the complaint. Respondent cannot
validly defend its refusal to honor this application on the
ground that it was made by the Union, rather than by
individual employees, and did not name the strikers. W.
C. McQuaide, Inc., 220 NLRB 593, 608-609 (1975), enfd.
in this respect 552 F.2d 519, 529; Kellwood Company, Ot-
tenheimer Division, 178 NLRB 20, 46-48 (1969), enfd. in
this respect 434 F.2d 1069 (8th Cir. 1970), cert. denied
401 U.S. 1009 (1971); Coca-Cola Bottling Works, Inc., 186
NLRB 1050, 1051-52 (1970), enfd. in this respect 466
F.2d 380 (D.C. Cir. 1972); Newspaper Production Compa-
ny v. N.L.R.B., 503 F.2d 821, 829 (5th Cir. 1974). 1 find
nothing in the Union's statements or conduct which
would tend to support Respondent's contention that the
application was conditioned on the reinstatement of all
strikers, including those whom Respondent was allegedly
not obligated to reinstate owing to their strike miscon-
duct, and hence was ineffective as to any of them.
Indeed, the Union affirmatively urged all the strikers to
fill out and return the request-to-return forms sent out by
Respondent. 3 t" Furthermore, because Respondent did
not advise the Union until May 1975 or later (that is,
until more than a month after the Union's application for
reinstatement) which strikers were going to be dis-
charged or otherwise disciplined, I would regard the
Union's application as effective even assuming it were
"all-or-none" in character. Respondent's procedures pre-
vented the Union and the strikers from forming a judg-
ment regarding the fairness of the exclusion (which, as
found infra, was as to some strikers motivated by a
desire to undermine the Union) and prevented the Union
from intelligently advising the strikers who were not to
be disciplined about whether to condition their own ap-
plication on Respondent's willingness to take back
others. Indeed, Respondent's procedures as a practical
:"' N.L.R.B. v. W C. McQuaide. Inc., 552 F2d 519, 528-529 (3d Cir.
1977): Valley Oil Co.. Inc., 210 NLRB 370 (1974), Saladmaoctr Corpora-
tion, 216 NLRB 769, 775-776 (1975); see also Fire Alert Company, 207
NLRB 885 (1973).
:"I After referring to, inter alia, the forms and covering letters sent out
by Respondent, Messina's April 7, 1975, letter to Stevens stated, inter
a/ia. "The Company has utilized the above procedures since the Unions
ofer on behalf 'of the employees to return to work was unqualified and in-
cluded a demand that even the employees that ,we propose to discipline
for illegal activities be returned to work immediately" In view' of the
context of the italicized words. I do not agree with the General Counsel
or the Union that such language concedes the Union's application to have
been unconditional
1070
HAROWE SERVO CONTROLS. INC
matter precluded the Union and the employees from pro-
tecting their solidarity by making an application which
was effective because it was conditioned on Respond-
ent's willingness to take back particular strikers whom
Respondent was obligated to take back, but not condi-
tioned on Respondent's willingness to take back others
whom it could lawfully refuse. For the foregoing rea-
sons, I conclude that the Union's application for rein-
statement was effective even assuming that the Union
failed to indicate in advance that every striker was will-
ing to return regardless of any subsequent decision by
Respondent to exclude fellow strikers because of (at least
in the returning strikers' opinion) the dischargees' union
leadership or other considerations which were unlawful,
arbitrary, or based on misinformation. Cf. Colecraft Man-
ufacturing Company, Inc. v. N.L.R.B., 385 F.2d 998, 1005
(2d Cir. 1967). In any event, Respondent is estopped
from now challenging the sufficiency of the Union's ap-
plication, in view of Respondent's refusal (supra, part
11,B,5) to accept applications from some individual strik-
ers and its insistence that they await receipt of return-to-
work forms drafted by Respondent. 13 Cf. Swearing Avi-
ation Corporation, 227 NLRB 228, 229, fn. 5 (1976).
Messina's April 7, 1975, letter to Stevens conceded,
and Company Counsel Oliver conceded at the hearing,
that the strikers who filled out and returned these forms
had "unequivocally offered to return to work." Howev-
er, I find that no striker's reinstatement rights was affect-
ed by any failure by him to return the March 28 or sub-
sequent written "continued interest and availability
forms." In the first place, the Union's March 25 applica-
tion was effective as to each of the strikers, and (at least
as to strikers who had not misconducted themselves) im-
posed on Respondent a duty to offer each of them imme-
diate reinstatement. When Respondent failed to make
such offers, thereby violating Section 8(a)(1) and (3) of
the Act, these unfair labor practice strikers' position
became indistinguishable from that of employees whom
Respondent had unlawfully refused to hire or unlawfully
discharged. Such employees' reinstatement rights do not
depend on their reiterating the reinstatement request
which their employer has already unlawfully dishonored.
See Spitzer Akron, Inc., 219 NLRB 20, 24 (1975), enfd.
540 F.2d 841 (6th Cir. 1976); see also N.L.R.B. v. Sunrise
Lumber & Trim Corp., 241 F.2d 620, 622, 625 (2d Cir.
1957), cert. denied 355 U.S. 818.314 In the second place,
313 Respondent does not appear to contend that a striker's signature on
this form effectively waived any statutory right, which he would other-
wise have had, to receive an offer of reinstatement to his old job In any
event, I would reject any such contention, particularly in view of the
statement in Respondent's cover letter, "Failure to complete and return
the form will constitute a voluntary resignation "
3l4 Cf. N.L.R.B. v. W C McQuaide, 552 F.2d at 532, holding that
economic strikers who had been advised that they had been permanently
replaced were not entitled to reinstatement unless they replied to a letter
stating, "If you are currently available and desire to fill a vacancy should
one occur, please notify me" by a specific date The Coun found that the
employer was thereby recognizing its Fleetwood obligation (389 U S at
381) to offer reinstatement, as jobs became available, to strikers who had
not found "other regular and substantially equivalent employment"
Unfair labor practice strikers are entitled to reinstatement offers on appli-
cation, and whether or not they have obtained other regular and suhstan-
tially equivalent employment N' L R.B v W C .UcQuaidie. 552 F 2d al
52S-529 In any event, Respondent never made any effort to find out
whether the strikers' job% with other employers met these criteria
ed to waive the signatory strikers' statutory right (supra,
fn. 311; Murray Products, Inc., 228 NLRB 268 (1977)) to
receive an offer of reinstatement to his old job (or, if it
no longer exists, a substantially equivalent job) and to a
reasonable time to accept or reject the offer. 3 '5 That
this was Respondent's intent in drafting this material is
shown by Hinnegan's testimony that people were taken
off the preferred hiring list if Respondent offered them a
job and they turned it down and by the specific evidence
that this happened to several strikers named in the com-
plaint, including one who was given only a day to accept
or reject the offer (see infra, part IV). Respondent can
hardly contend that any strikers waived all their job
rights by failing to execute a waiver of some of them
(see cases cited supra part l,J,f, infra, fn. 320). Finally,
the evidence shows that in deciding whether to offer the
strikers jobs, Respondent did not rely on whether or not
the strikers had filled out forms. Rather, Respondent of-
fered jobs to some strikers who did not fill out forms,
and failed to offer jobs to others who did fill out forms
(supra, part 11,B,7).
The question remains whether certain strikers' nota-
tions on their forms rendered the application ineffective
as to them.
a. W. Bazylewicz and L. A. Szeliga crossed out the lan-
guage, "1 wish to be considered for any job openings."
B. Birely, E. Clay, and L. Hoey checked or circled the
sentence, "I am requesting to return to work and am
available immediately." A. Copella changed the language
in the second sentence so that it read, "I wish to be con-
sidered for my job." R. Hillard, whose prestrike job title
was "IMB INSP MECH BNCH," underscored and put
in quotation marks the word "any" in the language, "I
wish to be considered for any job openings," and added
the words "ROTOR INSP." In addition to filling out a
form, 3A. J. Smith sent a note to Hinnegan, on a copy of
his March 11 letter advising strikers that Respondent was
proceeding with the replacement of strikers effective im-
mediately, saying, "Yes, I do wish to return to work, at
my old job." Apart from the March II date on Hinne-
gan's letter, the record fails to show when this note was
sent or received. I conclude that such changes did not
affect these employees' reinstatement rights, since, at
most, such changes indicated that they wanted to exer-
cise their statutory rights to reinstatement in their old
jobs. N.L.R.B. v. Valley Die Cast Corp., 303 F.2d 64, 66
(6th Cir. 1962). Moreover, Respondent put Bazylewicz,
Hoey, Smith, and Szeliga on the first preferential hiring
list, eventually offered jobs to all four of them, and dis-
charged Copella and Hillard consistent with Respond-
ent's statement in its covering letter that employees to be
discharged on the alleged ground of alleged strike mis-
conduct would be so notified following Respondent's re-
ceipt of their request to return to work.
b. J. A. Reeves, whose prestrike department was 55,
added the notation, "prefer rotor dept. (66) or molding
dept. (55)." I conclude that Reeves was merely express-
:"i Thus, a striker was expected to sign a form stating, "1 am request-
ing Ito return to work and am available immediately I wish to be clonsid-
ered for any job openings " The covering letter stated. inter alia. "Failure
to complete anid return the form will constitute a 'voluntary resignation
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a preference rather than indicating unwillingness to
accept any particular job, and that this notation did not
affect her reinstatement rights. I note that Respondent
put her name on the preferred hiring list.
c. H. M. Archie, who had been on the day shift before
the strike, stated on her form that she would return with
a week's notice, and on the second shift only. B. L.
Chandler circled the language, "I wish to be considered
for any job openings," and added thereafter "not the
same one." I regard Archie's "notice" requirement as not
affecting her reinstatement rights. Murray Products,
supra, I might conclude otherwise as to her shift require-
ment, and as to Chandler's seeming request for a job
other than her old job, if the record showed that these
specifications had affected Respondent's conduct with re-
spect to them. See Master Touch Dental Laboratories, 165
NLRB 585, 589 (1967), modified 405 F.2d 80 (2d Cir.
1968). However, there is no such evidence. Indeed, Re-
spondent put both of them on the preferred hiring list.
removed Chandler's name because she failed to advise
Respondent of her continued availability, and offered a
job to Archie on May 19, 1975. Accordingly, I conclude
that the entries on their forms did not affect their rein-
statement rights.
d. R. H. Erskine3 t 6 added the notation, "I am still
under a doctor's care. I will be able to return to work on
or about 5/1/75." Respondent put him on the April 10
preferred hiring list. However, Hinnegan testified that
Erskine was on medical leave of absence prior to the
strike, and was not cleared to return by his doctor until
after the strike had ended. Further, Messina stated on the
record, in his capacity as an attorney, that Erskine was
on a disability leave as of January 24. The General
Counsel stated that he accepted that clarification; union
counsel stated, "We accept it as a clarification. We have
no independent reason to believe that is not the case."
Thereafter, all parties stipulated that each of the persons
named in paragraph 19 of the complaint, which persons
include Erskine, "during part or all of the period be-
tween January 27, 1975, and March 27, 1975, .... failed
to work for reasons connected with the strike.... This
stipulation shall not be applicable to persons . . . affirma-
tively shown not to have been absent during the period
for such reasons." I conclude that Erskine failed to work
during the strike for medical reasons, and not because he
was a striker. I shall dismiss the complaint as to him.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by failing to offer
immediate reinstatement to the strikers, named in the
complaint, who are listed in Appendixes A and B at-
tached to this decision.3 t7 I find unmeritorious Respond-
ent's contention that this finding is procedurally barred
by the fact that on August 25, 1975, the Acting Regional
Director partly dismissed the charge in Case 4-CA-7348
on the ground, inter alia, that "there is no evidence to
int The complaint named "R H Erskine." At the hearing, it was
amended to read "R. M Erskine." However, his signature is "R. H Er-
skine," and Respondent's personnel records show him as "R H Er-
skine" He will be referred toi herein as R H Erskine
317 Appendix A lists the employees entitled to offers of reinstatement
and to hackpay. Appendix B lists the employees who, fior reasons dis-
cussed below, are entitled to backpay only 'The strikers as to whom a
misconduct defense is raised are listed elsewhere
support the allegation that the Employer is refusing to
recall employees from the preferential recall list because
they participated in the strike." In the first place, the
"preferential recall list" at least purportedly consisted of
the names of persons for whom there were no immediate
openings on Respondent's assumption that the strikers
were economic strikers and that, therefore, Respondent
was under no obligation to discharge replacements to
make room for strikers who sought to return. However,
the complaint alleges and I have found that the strikers
were unfair labor practice strikers who were entitled to
immediate reinstatement, and toward whom Respondent
did not discharge its legal obligations by merely putting
them on a preferred hiring list. These 8(a)(1) and (3)
complaint allegations are sufficiently supported by the
Case 4-CA-7348 charges alone, which initially alleged
(inter alia) a refusal to reinstate 32 named strikers "Since
on or about March 26, 1975" (the day after the Union's
application for reinstatement) because of their protected
union activities, and as amended on May 21, 1975, al-
leged (inter alia) that Respondent had "fail[ed] to recall
workers to their old jobs, or substantially similiar posi-
tion" because of their protected union activities. See
cases cited supra, part I,J,4,a, especially Radio Officers'
Union v. N.L.R.B., 347 U.S. 17, 34, fn. 30. That the
Acting Regional Director's August 28 letter did not con-
stitute a dismissal of all the foregoing refusal-to-reinstate
charge allegations is shown by his August 29 complaint
bearing the Case 4-CA-7348 docket number, which
complaint alleged that Respondent unlawfully failed and
refused to reinstate 10 named employees, all of them
named in the original charge, because they joined or as-
sisted the Union and participated in the strike. Moreover,
on October 2, 1975, the Union filed a charge in Case 4-
CA-7627, alleging that "Since April 1, 1975" Respond-
ent "has knowingly and intentionally refused, and contin-
ues to discriminatorily refuse to recall, reinstate and
rehire employees placed on the 'preferential recall list,'
and has otherwise discriminated against" them because of
their protected union activity. Thereafter, on January 15,
1976, the Regional Director issued an amended consoli-
dated complaint bearing the 7348 and 7627 docket num-
bers, and adding a number of employees to the 8(a)(l)
and (3) allegations. This charge in Case 4-CA-7627 not
only constitutes sufficient support for the allegation that
Respondent unlawfully administered the preferred hiring
list (not drawn up until about April 10, 1975) even as-
suming the strike was economic in character, but also
constitutes sufficient support for the 8(a)(l) and (3) refus-
al-to-reinstate allegations in the complaint as finally
amended, as to the vast majority of the strikers who after
April 2, 1975, individually filed applications to return. 318
In any event, a reinstatement and backpay order could
properly be based solely on my determination that the
strike was an unfair labor practice in character, and no
contention is made that Section 10(b) bars such a finding.
See J. H. Rutter-Rex Manufacturing Company, Inc. v.
:'" No different result is suggested by N.L.RB. v Textile Machine
H·Wrk,. Inc.. 214 F2d 929 (3d Cir 1954), which (unlike here) involved
applications foir reemployment bh strikers discharged more than 6 months
before the filing of the charges
1072
HAROWE SERVO CONTROI S. INC
N.L.R.B., 399 F.2d 355, 360-361 (5th Cir. 1968).311
While I need not and do not determine whether Re-
spondent was specifically motivated by the employees'
strike activity when Respondent failed to afford the em-
ployees on the preferred hiring list the employment
rights to which even economic strikers are entitled, I
note that much of the evidence on which the General
Counsel and the Union rely in support of their conten-
tion that Respondent was so motivated consists of con-
duct after the Acting Regional Director had issued his
dismissal letter. More specifically, during the 8 months
after the issuance of that letter, Respondent hired about
69 employees off the street for bargaining unit positions
and without justification removed a number of strikers
from the preferred hiring list (see infra, part IV).
I also find unmeritorious Respondent's contention that
the Union effectively waived any right the strikers may
otherwise have had to immediate reinstatement by its al-
leged agreement to Respondent's system for recalling
strikers. I have discredited much of the testimony on
which Respondent relies in support of this contention.
Neither the credited testimony nor the discredited testi-
mony relied upon by Respondent constitutes the clear
and unmistakable conduct required for the effective
waiver of a statutory right.320 Further, assuming ar-
guendo that the unfair labor practice strikers' reinstate-
ment rights are waivable and that the March 1975 con-
versations would have otherwise constituted a waiver, I
would find any such waiver ineffective in view of Re-
spondent's subsequent failure to afford the allegedly
agreed-upon (and statutorily required) preference to em-
ployees on the preferred hiring list. See Laher Spring &
Electric Car Corp., 192 NLRB 464, 465-466 (1971); Fire
Alert, supra, 207 NLRB 885. Accordingly, I need not and
do not consider whether the Union had the power effec-
tively to waive the reinstatement rights of unfair labor
practice strikers. See Laclede Metal Products Co., 144
NLRB 15 (1963); Erie Resistor Corp., 132 NLRB 621,
631, fn. 31 (1961), enfd. 328 F.2d 723 (3d Cir. 1964).
3. The change in the length of the grace period
In late 1975 or in 1976, Respondent changed from 6
minutes to 2 minutes the length of the grace period
within which employees could be late without being
docked. Respondent never tendered any such proposal to
the Union, and never told the Union that this was being
done. Because Respondent remained under a continuing
duty to bargain with the Union, its unilateral action with
respect to the grace period constituted a further violation
of Section 8(a)(5) and (1).
a~9 Employer's petition for cert denied 39 U S. 1117. rescrsed as to
matters immaterial here 396 U S 258 While I do not suggest that Re-
spondent is time-barred in contending that the Acting Regional Direc-
tor's August 25, 1975, letter effected a dismissal of all charges based upon
Respondent's refusal to reinstate the strikers. Respondent's failure to
tender this contention until filing its September 1976 post-hearing memo-
randum strongly suggests that the contelnlionl is an afterthought and Ihal
Respondent itself initially interpreted the letter as I have If successfully
tendered before or even during the hearing, a motion to dismiss that part
of the complaint would have substantillly shortened the 46-day hearing
2"a Leed & Norrthrup (Co v N\ R . 391 1 2d 874, 878,1 mtcild Stec/
woirker if 4rmeria. 4AFL-CIO [7hc Do, (c hmical Compant'] s V.. R R,
536 F. 2d 550. 555
4. The vacation pay attributable to the period
between May I, 1974, and April 30, 1975
Between May 1, 1974, and April 30, 1975, an undis-
closed number of the strikers named in the complaint
who did not return to the active payroll in 1975 worked
enough hours so that Respondent would have given
them paid vacations, based upon the May 1974-April
1975 period, if they had been reinstated between May
and December 1975. 1 agree with the General Counsel
and the Union that Respondent's failure to give vacation
pay to such strikers violated Section 8(a)(1) of the Act.
They failed to obtain such pay in consequence of not
having actively worked for Respondent between May I
and December 31, 1975, and such absence from the
active payroll was in consequence of their having chosen
to engage in protected concerted activity and their abili-
ty to return to the active payroll after abandoning this
strike activity in March 1975.321 In short, Respondent's
failure to pay them vacation pay attributable to the
period May 1974-April 1975 imposed on them an eco-
nomic loss in consequence of their protected strike activ-
ity. Such conduct violates Section 8(a)(l) of the Act, at
least if the employer has failed to come forward with
evidence of legitimate and substantial business justifica-
tions. Knuth Bros., Inc., 229 NLRB 1204 (1977); V.L.R.B.
v. Jemco, Inc., 465 F.2d 1148, 1152, fn. 7 (6th Cir. 1972),
cert denied 409 U.S. 1109 (1973); see also N.L.R.B. v.
Fleetwood Trailer Co., 389 U.S. 375: N.L.R.B. v. Frick
Co., 397 F.2d 957, 961-964 (3d Cir. 1970). Such "legiti-
mate and substantial business justifications" are not
shown by Respondent's application of the January 1,
1976, cutoff date purely for reasons of administrative
convenience. Knuth, supra: N.L.R.B. v. Frick Co., supra;
N.L.R.B. v. Duncan Foundry & Machine Works, Inc., 435
F.2d 612, 618-619 (7th Cir. 1970); see also Elmnac Corpo-
ration, 225 NLRB 1188 (1976).
But for Knuth, supra, I would find that Respondent's
conduct with respect to vacation pay also constituted
"discrimination in regard to [a] term or condition of em-
ployment to . . . discourage membership in [al labor or-
ganization" in violation of Section 8(a)(3) of the Act. I
would reason as follows: Participation in the instant bar-
gaining strike constituted union "membership" within the
meaning of Section 8(a)(3). Technitrol, Inc., 201 NLRB
74, 78 (1973); see also Frick, supra. The natural and fore-
seeable result of Respondent's action in withholding va-
cation pay from strikers who did not return to the active
payroll in 1975 was to discourage participation in such a
strike. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26,
32; Radio Officers' Union v. NIVL.R.B., 347 U.S. at 52.
Furthermore, because such strikers were treated differ-
ently from the way they would have been treated if they
had worked during rather than striking throughout the
strike, their failure to receive vacation pay constituted
"discrimination" within the meaning of Section 8(a)(3)
(whether or not such conduct violated that, see Radio
Officers Union v. V.L.R.B., 347 U.S. at 39, 42-43) not-
: i' 1 c1;lelst the 12 dichargees ere dischargcd after April t), 19'75
(/upru, part Ii 1Sth Iheilr aise.llc I'rm the ictlies palroill oiin ht ia;lle as
altrihttahle to pairtiipatill in protected strike Alctl it! e\cn ai ssltnllg the
e'C tliii.l ltrnillmli Olis \,ere Ir . fil
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withstanding Hinnegan's testimony that they would not
have been given vacation pay if their absence from the
active payroll had been due to layoff rather than to their
status as unrecalled strikers.3 2 2 Montgomery Ward & Co.
v. N.L.R.B., 107 F.2d 555, 563-564 (7th Cir. 1939);
N.L.R.B. v. Jemco, 465 F.2d at 1151-52; Allied Industrial
Workers, AFL-CIO, Local Union No. 289 [Cavalier Divi-
sion of Seeburg Corporation] v. N.L.R.B., 476 F.2d 868,
877 (D.C. Cir. 1973) (failure to show "unequal treatment
of strikers and nonstrikers [is not] dispositive. A practice
applied uniformly to all employees may be discriminato-
ry and violate the Act just as a discriminatory practice
may be held to be perfectly innocuous," citing, inter alia,
N.L.R.B. v. Frick Co., 397 F.2d 956, 962-963. Further, as
found supra, Respondent has failed to come forward
with legitimate and substantial business justifications for
its conduct. However, Knuth, supra, held that the vaca-
tion pay conduct there at issue did not violate Section
8(a)(3) because the economic strikers replaced by a par-
ticular date were treated in the same manner as other
employees terminated prior to that date in any particular
vacation year, and because there was no specific evi-
dence of an intent to discrimination against the strikers
because they engaged in strike activity. Further, I find
no evidence that Respondent's conduct with respect to
vacation pay was motivated by such retaliatory intent.
Accordingly, I find that Respondent's conduct with re-
spect to vacation pay did not violate Section 8(a)(3).
My finding as to this violation extends to all the strik-
ers (except Weaver, who received vacation pay for the
year preceding April 1975) who are named in the com-
plaint and who did not return to the active payroll in
1975, even though the General Counsel's motion to
amend the complaint as to the vacation issue was limited
to these strikers named in paragraph 20-namely, those
strikers not stipulated to have received job offers. The
basis for a striker's entitlement to vacation pay under the
paragraph added by the amendment is wholly unrelated
to whether he ever received a job offer (or, for that
matter, was entitled to one). Moreover, as found infra,
some strikers who were named in paragraph 20 of the
complaint and who did not return to the active payroll
in 1975 did in fact receive job offers in 1975 and 1976. It
would be wholly arbitrary to find a violation as to them,
but not as to those whose receipt of job offers was stipu-
lated rather than litigated. I am satisfied that the vacation
pay issue as to all the strikers was fully litigated. I note
that, because vacation pay would in any event be includ-
ed in Respondent's backpay liability to any striker named
in the order for reasons unrelated to the vacation pay al-
legation, my unfair labor practice finding under this alle-
gation will affect Respondent's liability only if I have
erred in finding that all but one of the employees named
in the complaint were entitled to reinstatement.
I regard as unmeritorious Respondent's contention that
the complaint allegations as to vacation pay are barred
by Section 10(b) of the Act. These complaint allegations
322 He testified that, if employees had been laid off in nid-April 1975.
they probably would not be entitled to vacation pay attributable to May
I, 1974-April 30, 1975. if not recalled until January I. 1976, and would
certainly not be entitled to such vacation pay if recalled as late as May I.
1976
are sufficiently supported by the April 16, 1975, charge
in Case 4-CA-7348 alleging that Respondent violated
Section 8(a)(1) and (3) by refusing to reinstate certain
employees (all named in the complaint) and by "other
acts"; and by the May 19, 1975, amended charge in that
case alleging that Respondent violated Section 8(a)(I)
and (3) by "establishing discriminatory conditions of em-
ployment and retaliating against" such employees be-
cause of their protected union activity, by "failing to
recall workers to their old jobs, or substantially similar
positions" because of their protected union activities, and
by "other acts." See the cases cited supra, part I,J,4,a.
5. Respondent's dealings with the Union during and
after the strike
The complaint alleged, inter alia, "Since on or about
September 18, 1974, and at all times material herein, Re-
spondent negotiated in bad faith with the Union and with
no intention of entering any final or binding collective
bargaining agreement." I agree with the Union that Re-
spondent evinced bad faith by its February 12, 1975, re-
fusal which continued until March 4, 1975, to meet with
the Union on the alleged grounds of strike misconduct
and prestrike impasse. Essentially for the reasons set
forth infra, part Il,D,8,c (1), I do not think that during
this period the strikers' misconduct, particularly because
it occurred during a strike caused and prolonged by Re-
spondent's unfair labor practices, was sufficient to excuse
its refusal to meet with the Union during the certification
year. See N.L.R.B. v. Ramona's Mexican Food Products,
531 F.2d 390, 394-395 (9th Cir. 1975); Donovan v.
N.L.R.B., 520 F.2d 1316 (2d Cir. 1975), cert. denied 423
U.S. 1053 (1976). For reasons set forth supra, part I,J,7, I
reject Respondent's impasse claim. Further, even assum-
ing there had been an impasse, Respondent remained
under a duty to meet with the Union during tbe certifica-
tion year for the purpose of discussing any new propos-
als the Union might choose to make, and could not law-
fully escape this duty by refusing to meet with the Union
unless it agreed to accept Respondent's prestrike offer.
N.L.R.B. v. Sharon Hats, Inc., 289 F.2d 628 (5th Cir.
1961). Because Respondent's unlawful refusal to meet
with the Union during this period substantially lessened
the possibility that the parties would reach or progress
toward an agreement, I conclude that Respondent's
unfair labor practices in this respect prolonged the strike,
and converted it into an unfair labor practice strike as-
suming the strike was economic at its inception. Cantor
Bros., Inc., 203 NIRB 774, 779-780 (1973), enfd. 86
LRRM 2572 (9th Cir. 1974); Automatic Plastic Molding
Co., 234 NLRB 681 (1978); Drug Package, supra; Randle-
Eastern, supra.
About 2 months after the end of the strike, Respond-
ent advised the Union that certain areas covered by the
prestrike negotiations "remain open and subject to fur-
ther discussions." As to most of these areas, Respond-
ent's action in withdrawing (in effect) from proposals
previously tendered and agreements previously reached
does not evince bad faith on its part. After the unsuc-
cessful strike, Respondent had reason to believe that the
Union no longer had (or never did have) all the econom-
1074
HAROWE SERVO CONTROLS, INC
ic strength which may have motivated Respondent in
making its prestrike concessions. I know of no cases sug-
gesting that Respondent's right to take this particular
kind of advantage during post-strike bargaining negotia-
tions was affected by the fact that the strike was caused
at least partly by Respondent's unfair labor practices,
and that the Union's post-strike strength had been further
undermined by Respondent's unlawful failure to take
back most of the strikers. Cf. H. K. Porter Co., Inc. v.
N.L.R.B., 397 U.S. 99 (1970). The fact remains that the
Union and the employees had voluntarily chosen to seek
a remedy for Responent's unlawful conduct through
striking as well as through the Board's processes, and a
decision to strike carries with it the risk that the strike
may be lost.
However, I do find evidence of continued bad faith in
Respondent's reopening of the areas of group insurance
benefits and pension benefits, because as to these matters
Respondent had been offering to continue existing cover-
age, and there is no evidence that Respondent intended
to change such coverage. I also find evidence of contin-
ued bad-faith bargaining in Respondent's failure to tender
new proposals to substitute for those which it had with-
drawn. In addition, I find a suggestion of bad-faith bar-
gaining motivation in Messina's objection at the hearing
to the characterization of the May 16 and 23 meetings as
"negotiations."
I further find the Respondent in effect withdrew rec-
ognition from the Union on and after July 17, 1975, the
day after the decertification petition was filed. Even as-
suming that Respondent had committed no prior unfair
labor practices, it nonetheless remained under a duty to
continue to recognize and bargain with the Union until
the September 3, 1975, close of the certification year,
and regardless of the filing of the decertification petition.
Brooks v. N.L.R.B., 348 U.S. 96 (1954); N.L.R.B. v.
Holly-General Company, Division of Seizler Corporation,
305 F.2d 670 (9th Cir. 1962); N.L.R.B. v. Frick Co., 423
F.2d 1327, 1330-31. However, on July 17 Messina
brought the July 16 decertification petition to the previ-
ously scheduled meeting and said that he was not sure at
that point what Respondent's legal obligation was as to
recognizing the Union. Moreover, by his own admission
he later advised the Union that he did not feel he could
continue to bargain with the Union until the alleged
question of representation was resolved. I conclude that
Respondent withdrew recognition from the Union on
July 17, 1975, 6 weeks before the close of the certifica-
tion year, and that such action violated Section 8(a)5)
and (1) of the Act without regard to whether Respond-
ent had otherwise violated the Act. While Respondent
did meet with the Union on two occasions thereafter,
and until late September periodically provided it with
certain employee information, I regard Respondent's
July 17 conduct as tantamount to a withdrawal of recog-
nition in view of Messina's testimony that the July 17
meeting "was the last, quote, 'bargaining session' I had";
his further testimony, as to his final meeting with the
Union about early September 1975, that "I don't know
whether I went in for a contract. I went in to settle the
unfair labor practice charges"; and Hinnegan's April
1976 statement to steward Samuels, when she tried to
present a grievance, that there was a question of major-
ity status since the September 1975 close of the certifica-
tion year. 323
Furthermore, Respondent could not lawfully with-
draw recognition from the Union unless Respondent
could establish either that the Union had in fact lost its
majority or that Respondent relied on a reasonable
doubt, based on objective facts, of such continued status.
Pioneer Inn Associates, d/b/a Pioneer Inn and Pioneer Inn
Casino, 228 NLRB 1263 (1977); N.L.R.B. v. Frick Co.,
423 F.2d 1327, 1330-31; Terrell Machine Company v.
N.L.R.B., 427 F.2d 1088, 1090 (4th Cir. 1970), cert.
denied 398 U.S. 929. Neither of these alternative criteria
is established by the evidence cited by Respondent-
namely, the extent of strike participation and the decerti-
fication petition. A majority of the prestrike unit struck
on January 27; and, in any event, the mere failure of em-
ployees to support a strike called by their bargaining rep-
resentative does not give rise to a presumption that these
employees have repudiated their bargaining representa-
tive. 324 Moreover, although Messina stated in his capac-
ity as an attorney that a majority of the employees in the
unit signed the July 1976 decertification petition, he did
not recall whom he considered as employees for pur-
poses of making this calculation (supra, part II,B, 10).
In any event, Respondent's pervasive unfair labor
practices, including bad-faith bargaining throughout the
certification year, precluded it from defending its with-
drawal of recognition on the basis of a doubt of major-
ity, or even on the basis of a de facto loss of majority.
Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 687
(1944); N.L.R.B. v. Frick Co., 423 F.2d 1327, 1334.
D. The Discharged Strikers
I. The state court injunctions
As described in greater detail below, the business plaza
on which Respondent's plant is located is accessible
through several driveways. Most if not all of Respond-
-"' Messina', discredited versions of his July 17 statements to the
Union, as well as his opening statement at the start of the hearing. mndi-
cate concern that Respondent would risk an unfair labor practice charge
if it continued to honor the Union's 10-month-old certification while the
decertification petition was pending I doubt the sincerity of Ibhis alleged
concern, in view of the fact that the Union's refusal-to-bargain charge
had been pending since January 1975. and Board Agent Maclasky had
told Messina more than 2 months before the filing of the decertification
petition that Maclasky was going to recommend issuance of a complaint
unless Messina promptly submitted a persuasive "legal position state-
ment" Furthermore, "The Board has on several occasions intimated that
even after the certification year has passed. the better practice is for an
employer with doubts to keep bargaining and petition the Board for a
new election or other relief" BrroAks S ,N'LLR B.. 348 U S 9h. 104. fn I1
Moreover. even in the absence of a certification. the burden of establish-
ing minority status would be on the General Counsel .4rerican Bi-I
Packers. Inc., 187 NLRB 996 (1971., affd 463 F2d 818 (DC Cir 19721
:12 C(x'u Cola. supra. 186 NLRB at 1053, James W Whirfield, d/h/u
Cutten Supermarket. 220 NLRB 507. 509 (19751: 7'.amsres I Loal .'rlion
769 [Peopl'i Gau Syvsem. Inc.] . L. R B... 512 F 2d 1385. 1 391. fn 10
(ID C Cir 197th) Further. newly hired employees. including those who
are hired and work during a strike. are presumed to support the Union in
the same ratiio as ihose whhom they have replaced Curttn Saup'rnurlrr.
supra. Psops Ga(;us Sys'lmn v .¥.L R.B In anlly event, the unit icluide
strikers and, because this was an unfair labor practice strike, excluded re-
placements (supru, fn 1(0)
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's employees drive to work. Late in the afternoon on
the first day of the strike, Company Counsel David Wil-
liams gave to O'Flynn, or to someone else in O'Flynn's
presence, a copy of a proposed injunction drafted by
counsel, and said that the Company was going to court
to get a judge to sign it. Hinnegan told O'Flynn and
Ledsome that the Company was going to court to file
for a preliminary injunction, and that they were free to
come and be represented. They did not go to court. That
same day, Respondent filed a complaint in the Court of
Common Pleas of Chester County, Pennsylvania (Civil
Action-Equity) naming as defendants the International,
the Local, Stevens, and employees O'Flynn, Barnett,
Roy, Copella, Thompson, Rossi, and Roundtree. Re-
spondent named these employees in its complaint because
they were union officers. All these employees are named
in the complaint herein, and all but Roy and Thompson
were dischargees. All were on the negotiating committee
except Barnett (who was a vice president and a steward,
see supra, fn. 126), Rossi (who was chief steward), and
Roundtree (who was the union sergeant-at-arms). Still
later that same day, the court found, "Upon considera-
tion of the complaint with notice, and it appearing that
the activity on the part of the defendants is unlawful,
and that defendants are seizing, holding or damaging the
property of the employer, with the intention of compel-
ling the employer to accede to the defendants' demands,"
that a preliminary injunction should issue restraining de-
fendants and, "all other persons acting in concert or par-
ticipation with them" with respect to, inter alia, picket-
ing "in front of, or at the mouth of, any of plaintiff's
gates, entrances or exits at its facility.... All picketing
within five yards of any of plaintiffs gates, fences, en-
trances, or exits leading to or on plaintiffs property or
entering upon any property of plaintiff . . picketing or
in any other fashion blocking or interfering at the en-
trances and exits so as to prevent the free ingress or
egress of persons or vehicles at plaintiffs West Chester
facility. .... Picketing any of the plaintiffs premises in
such a fashion as to obstruct and interfere with the plain-
tiff in the normal and ordinary use of its property. There
shall be no intimidation, molesting or accosting any per-
sons entering or leaving plaintiff's premises... . Threat-
ening or assaulting or directly or indirectly interfering
with Plaintiff's employees while engaged in or going to
and from their work . . . congregating in groups at any
point within 150 feet of any Picketed gate or plant site as
hereinabove described." Also, the order limited pickets
to six at one time "beside any of the gate or plant sites of
plaintiff' and required them to "keep in motion spaced
not less than seven feet apart." The Company was re-
quired to post a $1,000 security bond, and "Hearing is
scheduled at 9:30 a.m.... on Friday, January 31, 1975."
About 6 or 6:30 p.m. that same day, Messina and Hin-
negan drove back to the plant and gave a copy of this
injunction to Ledsome, who was not named in the Com-
pany's complaint. Stevens and O'Flynn were not there.
Nor is there any evidence that any of the dischargees, or
any of the other employees named as defendants, was
there. At 9:30 a.m. on the following day, January 28, the
sheriff read the injunction to Stevens and O'Flynn, and
served it on them, at a point across the street from the
picket line. At this time, dischargees Rossi and Barnett
(both defendants named in the Company's complaint)
and Hillard (who was not named in the Company's com-
plaint) were on the picket line. 325
Company counsel stated on the record that the forego-
ing injunction remained in effect until about March 7,
1975. Union counsel stated on the record that the injunc-
tion had been obtained on an ex parte basis of the Com-
pany's affidavits, that the case had been subjected to re-
moval proceedings immediately after the issuance of the
injunction, and that the injunction never had any legal
effect; but he submitted no evidence in this connection.
On February 28 and March 3, the Common Pleas Court
conducted a hearing on the final injunctive order and to
determine whether certain persons, including O'Flynn
and Copella but whose identity is not otherwise shown
in the record, should be held in contempt of this January
order. No contempt findings were made. Company coun-
sel stated on the record, but union counsel disputed, that
the contempt proceedings were continued indefinitely
and were still pending as of May 1976.
Company counsel stated that about March 7, 1975, a
stipulated order was entered upon consent of both coun-
sel. Hinnegan testified that the strikers "more or less"
obeyed this March 7 order. There is no evidence that
any contempt proceedings were ever brought in connec-
tion with this order.
Respondent's post-hearing memorandum contends that
most if not all of the discharged strikers disobeyed "the
injunction." However, in the absence of any finding by
the Common Pleas Court that any individual dischargee
engaged in any specific conduct which violated either
order, and in the absence of a copy of the March order,
I do not believe that disposition of the issues presented
to me calls for any finding by me about whether particu-
lar conduct violated either court order. N.L.R.B. v.
McQuaide, Inc., 552 F.2d 519, 526.
2. Conduct allegedly aggravating or mitigating any
misconduct in which the discharged strikers may
have engaged
a. Introduction
"It is fundamental that '[t]he acts of some of the strik-
ers cannot be imputed to all"' (Cast Optics, supra, 458
F.2d at 406) and that "Unauthorized acts of violence on
the part of individual strikers are not chargeable to other
union members in the absence of proof that identifies
them as participating in such violence" (N.L.R.B. v.
Cambria Clay Products Co., 215 F.2d 48, 53 (6th Cir.
1954)). See also N.L.R.B. v. Local No. 1229, International
Brotherhood of Electrical Workers [Jefferson Standard
Broadcasting], 346 U.S. 464, 470 (1953); Coronet Casuals,
:"' M) findings in Ihis paragraph are based primarily on Itinneganll
teSlimnony, which is o, siistenlll ith the fitct that Ihe in lutnclioll hears the
date January 27. 1975. the first daN ,rf the strike Accordingly, I do n~ot
accept Messina's testimiony that. ouside Responldenlt 's plant ont the
sculnd dclay of the strike, he asked Stevens who his altlrnrey would he ii
Messilla "n as glinlg It htate Itl get an iljuLtiol ," llb t sshich SIet enl re-
plied Ihat he si ls nol sure hut v oui;d Icl Me,'ina kinlo( Messila is associ
-
atcd with the same law firm :i, Atlorne!s VWilli;lms. s ho partlcipaled in
the C(ompany's s uvcessful efiort to ihltaiD the JanuLar 27 Inlultction
107h
HAROWE SERVO CONTROLS. INC
Inc., 207 NLRB 304, 305 (1973). Respondent contends
that the Union "engaged in an ongoing conspiracy to
deny nonstriking employees their protected Section 7
rights to refuse to participate in a work stoppage," that
"The misconduct of the striking employees and the inter-
national union representatives,3 26 clearly evidences a
pattern of activities which continued day after day, un-
equivocally establishing that their conduct was not pro-
voked but rather was planned, wilful and intentional ha-
rassment." Respondent seems to claim that the discharg-
ees' acts of misconduct were committed in conscious fur-
therance of this alleged conspiracy and, therefore, were
more serious than they otherwise would have been. Fur-
ther, Respondent alleges that, when engaging in strike
misconduct themselves, the dischargees must have
known about other strike related misconduct by other
strikers or unidentified third persons, that such third-
party misconduct gave the dischargees' misconduct more
threatening implications than it otherwise would have
had, that the dischargees must have known this, and that
to that extent such third-party misconduct aggravated
the seriousness of the dischargees' misconduct. Further,
Respondent's counsel stated on the record, ". . . we will
adduce evidence . . . that one of the particular reasons
behind what we consider to be an orchestrated attempt
on the part of the Union to threaten, coerce and intimi-
date employees coming in and out of the premises, in
part, resulted from the fact that there were such a great
number of employees who actually did report to work
during the strike and this was a particularly aggravating
fact with respect to these activities and, in our view, it
made them particularly serious." In addition to arguing
that any misconduct by the discharged strikers should be
weighed against Respondent's unfair labor practices (see
infra, part II,D,8,c (3)), the General Counsel and the
Union contend that the seriousness of strikers' miscon-
duct was diminished or overborne by the misconduct of
nonstrikers. The General Counsel and the Union rely
partly on a provocation theory, and partly on the theory
that, when nonstrikers engaged in misconduct against
strikers comparable to the dischargees' strike misconduct
against nonstrikers, Respondent did not seriously investi-
gate the incidents and took no action against the non-
strikers.
Some of the evidence in connection with these conten-
tions is summarized in parts II,D,2,(b) and (c), below.
b. Evidence relating to allegedly aggravating
misconduct
The January 9, 1975, officers' meeting mentioned pre-
viously was attended by, inter alia, Stevens, Jack Hart,
International Representatives Henry Unger and Led-
some, and 15 employees, including dischargees Barnett,
12s Respondent's post-hearing memorandum refers to Stevens, Ied-
some, Jack Hart. and "many imported international thugs" I can find no
evidence of the existence of such unnamed "thugs." Hinnegan's testilmon,
refers to a "Mr Dean" whom Hinnegan believed to he a UE official, hut
there is no other evidence about him (Hinnegan's testimony that during
the strike he did not know Dean's name makes it clear that he was not
referring to Ronald Dean, whose conversations with Hinnegan occurred
before the strike. supru, par li.G,7,f ) O'Flynn testified thai a "couple of
times. some people from other locals," including a Baltimore local.
"came down to help gise a little moral support."
Copella, Hughes, O'Flynn, and Rossi. A picket commit-
tee, a welfare committee, a publicity committee, and a
kitchen and food committee were set up. Hart stated
that, initially, picketing should continue around the
clock, that there should be one captain and one assistant
for each shift, and that there should be three shifts. Ste-
vens said that a picket's tour of duty should normally be
from 2 to 4 hours, that shifts should be set up around
part-time jobs, and that shift should be juggled around to
suit each situation. The committee agreed to 3-hour pick-
eting shifts between 6 a.m. and midnight (with the 6-9
a.m shift to be most active) and to less than full-time
picketing between midnight and 6 a.m. Dischargee Bar-
nett and (perhaps) Richard Slifer (not named in the com-
plaint) were named as chief picket captains. One or two
picket captains were also selected for most of the 3-hour
shifts. Among those so selected were dischargees Round-
tree and Collins (neither of whom attended the meeting)
and dischargee Rossi. Dischargee Hughes was named to
the welfare committee., 2 7
During a union meeting whose date is not shown by
the record, someone asked for volunteers to make picket
signs. About 8 or 10 employees, including Rossi, volun-
teered. At the January 25 meeting when the strike vote
was taken, someone said that there would be a mass rally
outside the plant at 6 or 6:30 a.m. on January 27.
Dischargee Copella credibly testified that, when she
reached the plant about 6 a.m. on that day, about seven
or eight people were there. By the time the 8 a.m. shift
normally drove into the parking lot, between 50 and 100
strikers were milling around in front of the plant. Dis-
chargees Rossi and O'Flynn credibly testified that most
of the employees had never been on strike before and did
not know what to do. Dischargee Collins credibly testi-
fied that she had never been in a strike before and that,
on the first day of the strike, nobody gave her any
instructions about how to picket. The employees who
had made picket signs at home passed them around. Ste-
vens, and perhaps Ledsome, sent strikers to each of the
gates to the West Chester Plaza. Nonstriker Grant (a
maintenance man who started work earlier than most of
the employees) credibly testified that the police were at
the plant when he arrived there at 6 a.m. Dischargee
Rossi credibly testified that, before the nonstrikers' cars
arrived at the plant for the first shift, the police came
and told the pickets that they would be arrested if the
police saw them stopping cars. The police made no ar-
rests that day. The record fails to show how long the
police stayed in the area.3 2 8
Ordinarily, Respondent's employees reach West Ches-
ter Plaza by using several different driveways, some but
not all of them from Westtown Road. Two of the West-
:27 My findings in this paragraph are based oin an unidentified indisid-
ual's conlemporaneous notes of this meeting In view of this document, I
do not credit dicwhargee Hughes' testimony that. before the strike sote.
there were no officers' meetings to talk about the picket line, or dicharg-
ecc Rossi's testimony that she was appointed picket captain about 3 days
hef,,re the January 25 strike vote
:2 lt vo weeks earlier. Respondent had advised the employees that the
police had been alerled to the po.ssibilits of a strike and had "reaslured"
Respondenl that "ans violence. intimidalionl unlawful picket line action,
or an, other illegal actisit a will hb dealt v ith immediately and severely
1077
I)FtCISIONS OF NATIONAL LABOR RELATIONS BOARD
town Road driveways which were used by Respondent's
employees are referred to in the record as the "company
driveway" and the "private driveway" (see infra, part
II,D,5). They are parallel to each other, are each about
25 feet wide, and are separated by a grass plot which is
10 or 12 feet wide (see supra, part 1,D,2,a).
Nonstriker Grant, who had arrived at 6 a.m., testified
that about 7:05 am., when "well over a hundred" pickets
were in the vicinity of the plant, he telephoned employee
Richard Smith, who was a friend and neighbor, that
there was a lot of picketers there and to just be careful
coming through the line... . But you can get through."
Grant based this report on the fact that various non-
strikers had been coming into the plant. However, Hin-
negan testified that, when he attempted to drive into the
plant through the company driveway shortly before 7
a.m., he was unable to drive through because a number
of unidentified pickets, not including any of the discharg-
ees, blocked, shook, lifted, and rocked his car. Still ac-
cording to Hinnegan, he then tried to drive in through
the private driveway, but the pickets there (also unidenti-
fied) banged, shook, rocked, and kicked his car. After a
period which Hinnegan described, at various times, as "a
couple," "three or four," or "five" minutes, he was al-
lowed through. The first morning, many cars were
blocked by a number of strikers who were milling
around, and Hinnegan credibly testified that, on that first
morning, the pickets stood in front of at least some cars
for 2 or 3 minutes ("it seems that it was quite lengthy. I
can't judge the time"). Hinnegan further credibly testi-
fied that, on that first morning, people were coming in as
late as an hour after the shift was supposed to begin, at
least partly because some cars blocked by a picket line at
one driveway were backing into cross-traffic and trying
to enter through another driveway. Striker Theresa
McFadden credibly testified that part of the confusion at
the picket line during the first 2 days of the strike was
due to "a multitude of people getting something to eat
and getting coffee."
Hinnegan credibly testified that, on that morning, dis-
chargees O'Flynn, Rossi, Hillard, and Barnett participat-
ed with the other pickets in grouping up and blocking
cars; but there is no evidence that Rossi, Hillard, and
Barnett did anything else, and no credible evidence that
O'Flynn did. Nonstriker Philomena Bruno, who worked
on the second shift, credibly testified that that day her
car was "kicked and banged" by unidentified pickets,
and "the car just shook the way they were pounding on
it." Hinnegan and Grant credibly testified that, by 6 or
6:30 that evening, 2 hours after the shift change, 10 or 12
strikers were standing around the 25-foot company
driveway and the 25-foot private driveway. Hinnegan
credibly testified that they did not stand in front of or
block his car, which at that time was the only car trying
to use the driveway.
Nonstriker Grant credibly testified that the police
were in the area on the following morning, the second
day of the strike, when he arrived at 6 a.m. Again, they
made no arrests, but there is no evidence about how long
they stayed. O'Flynn credibly testified that, by the time
the first shift arrived, about 40 employees were picket-
ing. The pickets that morning included dischargees Bar-
nett, Hillard, O'Flynn, Roundtree, Copella, Grayson, and
(perhaps) R. Paskings, and Murrey.3 29 Hinnegan credi-
bly testified that the first four of these individuals did es-
sentially the same things that they had done on January
27. He further credibly testified that, on that morning, 10
to 15 strikers were in front of each of the driveways,
that they usually walked across the driveways less than 2
feet apart, that they sometimes repeatedly walked back
and forth in front of a single car, and that sometimes
they would quickly pivot at a time when the driver
thought they had completed the activity directed at his
car. Hinnegan further credibly testified that all the pick-
ets in the area that morning did this type of thing. Hinne-
gan credibly testified that some unidentified pickets laid
their bodies against the side of cars and obscured the
drivers' vision by putting up picket signs against the win-
dows. He credibly testified that "the greater percentage"
of the employees who crossed the picket line on January
28 told him on that day that they were afraid and were
not sure they would want to go through the picket line
again. He further testified that, with the exception, "per-
haps," of the first day or two, he received no reports
that any nonstrikers turned away at the picket line and
went home.
That evening, at quitting time, fewer were picketing.
Six or seven strikers were actually picketing across the
company driveway, and the others stood to one side.
The strikers walked and stood in front of cars, and some-
times slapped them. The strikers present during these ac-
tivities included dischargees Barnett, Grayson, Hillard,
and Roundtree. Stevens and Ledsome were also
there. 33 0
O'Flynn credibly testified that, by the third day of the
strike, the strikers had set up schedules for people to
picket. Nonstriking employee Grant stood on the roof,
videotaping the picket line during periods when the two
shifts were entering the plant, every day from the fifth
day of the strike until about a week before the strike
ended, when Hinnegan "agreed that there was no use
filming it because there wasn't anything going on."
Grant credibly testified, with some corroboration from
dischargees Roundtree and Rossi as to the shift change
time,3 3 ' that, during this period, he saw 20 to 25 people
around the entrance to the 25-foot company driveway
(by this time, the only driveway used by nonstrikers)
with 5 to 7 people actually picketing.3 3 2 He credibly tes-
tified that most of the employees who were not actually
picketing were standing around the fire barrels which
the strikers had set up off the driveway, about a week
after the strike began, to keep them warm. Grant testi-
:'"' IThese findings are based on Hinnegan's testimony He testified that
Rossi was also there However, she credibly testified that she did not
picket that morning because, upon arriving at the picket line, she learned
that her mnice, employee McFadden, had been hit by a car while on the
picket line. and went to) the hospital to see her (see infra, part II.D,4).
':" My findings in this paragraph are based on Hinnegan's testimony
is estlimates of the total number it the area ranged from 10 to 30. In
view iif his breakdown htlween those in the driveway and those next to
it. I find that there were about 15
l Roundtree and Rossi picketed on alternate days between 3 anid 7
p it
I: : For denliallor reasonlls I rcjecl Hillard's Itesim lll to the extent it
is iniconlsileilt wtil his
1078
HAROWE SFRV() CON FROL S. INC
fied that, during this period, he never saw any violence
on the picket line; never saw a weapon; never saw any
physical damage done to a car; never saw a picket hit,
kick, or knock down a nonstriker; never saw a nonstriker
hit by a club or a chain; and never saw any pickets lie
down in front of a car. With the exception noted infra,
fn. 426, 1 credit his testimony in this respect. Dischargee
Hughes, whose picket shift was 9 a.m. to 3 p.m. (that is,
from after the first shift began to before it ended) credi-
bly testified, with some corroboration from dischargee
Boyer (on a 10 a.m. to 3 p.m. picket shift), that during
the early part of the strike, there were about six pickets
on the road and about six to one side.
Night Supervisor Houff testified that, toward the end
of February, some people who had been picketing on the
day shift began to picket at I a.m., and that, thereafter,
exit from the premises "became a little tougher. We had
a little bit more hostility than we had had previously."
Among the new group whom he named were discharg-
ees O'Flynn, Rossi, Grayson, and Hillard. He testified
about a February 27 picket-line incident involving (inter
alia) Rossi and Grayson (infra, part II,D,6), and about an
alleged mail-dropping incident involving Rossi and Hil-
lard (infra, part II,D,7,f), but did not otherwise elaborate
on the night-shift picketing after late February.
Grant credibly testified that, after the "court order"
(inferentially, the March 7 order) went into effect, only
five to six employees picketed in the morning and at
shift-change time, and "there wasn't any activity worth
filming." Dischargee Boyer credibly testified that at this
point her 10 a.m. to 3 p.m. shift was manned by no more
than five pickets. Dischargee Hughes credibly testified
that on a few occasions late in the strike, when she pick-
eted around quitting time, the pickets stepped off the line
at quitting time "to cut down on the humiliation."
Nonstriker Grant credibly testified that beginning
about the third day of the strike, continuing during the
fourth and fifth mornings, and a few mornings and after-
noons after that, the police helped traffic enter and leave
the plant. Also, Hinnegan credibly testified that, about
the third or the fourth day of the strike, the private
guards hired by Respondent began to direct traffic at the
only open driveway which Respondent's employees by
that time were permitted to use (see infra, part II,D,5).
Respondent had hired these guards primarily to maintain
the security of the property and to assist in identifying
the employees. However, Hinnegan testified that the
police were hardly ever at the picket line, and the guards
"gravitated [to directing traffic] because of the need."3 33
As to the periods when the police or sheriffs deputies
were directing traffic, Grant credibly testified that they
sometimes stopped traffic for periods ranging from 15
seconds to almost 2 minutes. Still according to Grant's
credible testimony, pickets sometimes walked in front of
cars which were so stopped, on occasion they took about
5 seconds or a little more to get out of the way after the
police or deputies would have permitted the cars to
enter traffic, and sometimes the police moved some un-
"I3 Di, hargee Roundiree credibly testified, however. that on one or
two occasions one of these private guards carried a gun oni the picket
line.
identified pickets oUt of the -tas by takinkg therm h\ il
arm.
From about the third or tfourih dwa of the strike uitil
early in the second week of the strike. Stevens ,Ir I. l-
some customarily stood during shift change time in at lo-
cation where he could see which nonlstrikers \wcre occu-
pying which cars, and ias ptarticular cars c:nle tc the
front of the driveway, would tell the pickets to let deisig-
nated cars go through without stopping, to let olihets go
through after the pickets had walkedi in front of therl for
a relatively short time, and to let other cars go thirugh
after the pickets had \walked in fr)ilit of thciln for ai r el.-
tively long time. The pickets usually did what Stevens or
Ledsome said, but sometimes they Aoiuld picket it partic-
ular car for a longer period. [)uring this period. until the
guard on duty knew that pickets did not intlcld It)o salk
or continue to walk in front of a particular carl, he m;adc
no effort to assist it to enicr traffic. lox.rc\ver. \w heti lic
did find this out, he would direct the car to renmain in the
driveway until there as ino cross-tlraffic, anld theni
wvould direct it into the road. Ordinarily, he wsould leall
about the pickets' intent from I.edsome or Ste-vens.
Early in the second 'setk of the strike, Union l'Itsi-
dent O'Flynn and Clyde KunIti. who wias in chiarge iof
the Kuntz Detective Agency guards at Respotldent's
plant, agreed that the pickets could picket in fiont ,of
nonstrikers' cars while the traffic \was mnosiing on \'iest-
town Road, but w'ould move out of the vsay ,shclil the
guards wanted to release cars into traffic. Therl iftlcr, thI
guards and the pickets ordinarily followed this practice
Sometimes the guards determinted how many cars xsould
go into traffic and sometimes I.cdsorne did Compain y
witness Grant, who observed most of tiis, actix ity. tc'sti-
fled that the effect of this conduct by the guards arid the
pickets was to speed up the rate a: which Ca ts could
leave the company dricx ay. iv lowevetr tilhe enimloytes
who were crossing the linc evcnItuall; cornipl nsied to
management that they were being held tip by thte. guards
as well as the pickets. By the second week in Mal;rch, Re-
spondent directed the guards to stop this activity. After
the guards were no longer at the picket line. Ledsome
directed the pickets which cars to picket ".: 4
Grant credibly testified that the pickets' conduct when
the guards stopped cars from coming out wais just like
their conduct when the police or the sheriffs deputies
stopped cars-namely, the pickets would resume picket-
ing, and stop the cars for about the same length of time.
To the extent that the pickets controlled or affected
when cars could cross the picket line, "management
people" and nonunit employees were permitted to go
through without being held up, and the greater number
of bargaining unit employees were held up. Employees
who were regularly delayed included employees (incluid-
ing Lyons and group leader Rosemary Shca): ': ' xtho
:':' My fildings in Ihe l1uo, precedine p.ragrlaphis :1 hata,d I .. i orn
posite of credihle parts of thie Ti eililr ln ot Illlgill , i1. ralt,r . () I I.*l,,
illnd Giralseol Inl in " C if O Hillntgall", Ic%11ni(1i1 r cgard gtil l n10n trlki'
compl.lnls bhoutil the igu.ard. I do aiot at:cpl piortion llof 1i [i% I. tllra ll
vwhich [tpl), At Ih i %.r? leat, that al .Ai Ii1icn Iec gI)ardn, dot'c[ i¢,d tlt1,
pickels
l':' iHsotc r. , Hnlll gieg.ll It'i ic l ili tht,. ustc r. anotwi itlh. ill ,irikcr
slii ,orl.pl,n i cdl i il ll bs lllg Ih el I fp hi i lt pi iadl as rf] .ai, - til. pi i. kt
i{)-,
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were driving a carload of nonstrikers, and the group
leaders (including John Butterfield), Richard Orkis, and
Michael Surplus.3 '6 However, dischargee Rossi credibly
testified without contradiction that Orkis customarily
paused at the picket line even when the pickets did not
try to delay him. 3 3 ' Also, dischargee Roundtree credibly
testified that on occasion, when leaving the plant, Butter-
field "would stop just to be stopping, just to see if any-
body is going to say anything."
When cars were preparing to leave in the afternoon,
dischargees Barnett, Rossi, Roundtree, and Grayson fre-
quently engaged in the kind of picketing activity de-
scribed in the last four paragraphs. Copella did this occa-
sionally, and Hillard on one occasion. 33 8 Union Repre-
sentatives Unger and Jack Hart were frequently present.
Normally, at the close of the first shift, employees leave
the plant sporadically, and 130 to 140 cars are able to
leave Respondent's parking lot in 5 or 6 minutes using
any of several driveways. Further, on occasions during
the strike when there was no picketing, but the non-
strikers were in a hurry to leave as soon as the shift was
over and the cars were leaving the parking lot through
the company driveway only, about 100 cars left the
parking lot in less than 10 minutes. When there was pick-
eting during the strike, the cars took 20 to 30 minutes to
leave. However, the extent to which this 10- to 20-
minute differential was attributable to delays caused by
the picketing at the company driveway during the strike
must be judged in light of certain additional factors
which were present while the picketing was continuous
(in the earlier part of the strike) but not when it became
sporadic, toward the end of the strike-namely, traffic
difficulties caused by strikers' cars parked in Westtown
Road,3 39 nonstrikers' use of the wrong traffic lanes in
the driveway, and a traffic light which malfunctioned for
a couple of days during the first week of the strike. The
record contains a number of different estimates as to
how long, on the average, a picketed car was delayed by
the picketing itself. As to the day shift, I accept Grant's
testimony on cross-examination of 15 to 20 seconds, a
figure which is consistent with the foregoing figures re-
garding the aggregate time involved. As to the second
shift, I accept nonstriker Philomena Bruno's estimate of
"about a half a second to a minute."
During the strike, one picket who was a "stranger"
was arrested on the picket line and almost immediately
:':' Lyons credibly testified that she was delayed for periods up to 2
minutes Group leader Shea credibly testified that she was once delayed 7
to 8 minutes, and the rest of the time was delayed I to 2 minutes
:'"? Rossi also testified that Shea "every day" and "from the first"
went through a "little act" of stopping her car at the picket line, throw-
ing her car into "park," and folding her arms Shea testified that "just
about every day I had to force my way in and inch my way in [a] little
hit at a time " She further testified that she turned her motor off on. at
most, one occasion. when she put her car in "park" after unsuccessfully
trying to cross the picket line. I conclude that Shea did have to drive her
car very slowly across the picket line until the latter part of the strike.
but that she somewhat dramatized her difficulties in this respect
:':" My finding as to Hillard is based on her testimony. I think Hinne-
gali was mistaken in testifying that she was "usually" there
':"' hi cllectioln with the early March injunction proceediig. Re-
spondelnt agreed to let the strikers park in its vacant lot oin the side of
Westtown Road across from the plant
released.3 4 ' No striker employed by Respondent was
ever arrested on the picket line or for anything that hap-
pened on the picket line. Nonstriker Grant, a witness
called by Respondent who regularly observed the day-
time picketing activities beginning the fifth day of the
strike, credibly testified that the picketing activities were
the same when the sheriffs were there as when they
were not.
During the strike, the following was done by unknown
persons: Sugar was added to the gas tanks of employee
Hagen and four or five other nonstrikers who are not
identified. 34 1 While nonstriker Shea's car was parked on
the company parking lot, the tires were slashed and the
car was spray-painted. Also, the company station wagon
in which (at Respondent's request) she was driving her-
self and others to work was spray-painted while it was
parked in the driveway of her parents' home, where she
lives. No damage was done to the car parked in front or
the car parked behind.3 4 2 The tires of one car were
slashed at a marshaling point where the unidentified non-
striking owner was picked up to be driven across the
picket line. Orange paint was put in two different spots
on the side of nonstriker Agness Bupp's house. While
nonstriker Grant's car was parked in front of his house, a
brick was thrown on the side of his car and oil was
thrown at it. Someone took out the floodlights on non-
striker McDonald's garage and smashed the garage win-
dows. Nails were regularly found on the company drive-
way. A number of these nails were of a type and in a
condition consistent with having been removed or left
over from wood being burned in the fire barrels, 34 3 but
a substantial number were brand new, and many of these
were roofing nails, of a kind which are not used in Re-
spondent's plant and can be left point upward on a flat
surface.3 4 4 None of the dischargees was ever arrested
for any of the foregoing damage to a house or a car.
I infer that the dischargees, all of whom picketed regu-
larly, and the nonstrikers knew about the presence of the
nails, the damage to Shea's car, and the spray-painting of
14n Hinnegan testified that this "stranger" was "threatening people as
they went through the line," stopped cars, and laid his hands on cars.
Hinnegan further testified that the stranger had his hands on a car when
he was arrested, but Hinnegan did not "really know" why the stranger
was arrested
:141 Hagen's car was parked in front of her house when the sugar was
added. The record fails to show the location of the other cars.
I2 During this strike, at Respondent's request, Shea used this station
wagon to drive herself and seven other production workers across the
picket line. Her own car, which she left on Respondent's parking lot
during the strike, could not accommodate more than six people The sta-
tion wagon was not labeled in any way, but Shea testified that the pickets
knew it was not her car and she assumed they knew it was Respondent's.
I4') The fire barrels were fueled largely by scrap wood, much of which
contained nails. Before putting the wood in the barrels, the strikers some-
times removed the nails and left them in the area Also, as the wood
burned, nails left in the wood sometimes dropped through the holes in
the barrels and onto the ground.
\44 Union counsel suggested on the record that Supervisor Houff may
have picked up some nails which were aluminum and, therefore, could
not have been picked up with a magnet. After union counsel had ex-
pressed reluctance to buy a magnet, I asked whether anyone would
object to my bringing one to the hearing. All counsel stated on the
record that they had no objection I brought a magnet to the hearing
room on the next hearing date and lent it to union counsel, who thereaf-
ter made no contention that any nails in evidence could not have been
picked up by a magnet
1080
HAROWE SERVO CONTROLS, INC
Shea's company station wagon. As to the remaining inci-
dents referred to in the foregoing paragraph, I infer that
some were known to some nonstrikers and some dis-
chargees, but the record fails to show which nonstrikers
(except the immediate victims) and which dischargees
knew about what incidents.
Nonstriker French, who had been elected a depart-
mental steward in September 1974 but resigned as such
before the strike, credibly testified that, about a week
and a half after the strike started, while her convertible
automobile was parked overnight in front of her house,
unknown persons cut out the car roof and stabbed the
tires. She reported this to the police and to Respondent,
and I infer that some of the other nonstrikers learned
about this incident, but there is no evidence of any kind
that any of the dischargees knew about it. French had
previously followed the practice of using her convertible
to drive her 5-year old daughter to "Kinder Care,"
where her supervisor, Glen Caine, picked Mrs. French
up and drove her in. The morning she found her con-
vertible damaged, Caine picked her up and drove her
across the picket line. As they came through, an uniden-
tified female picket said, ". . . how would you like your
daughter to live?" The car damage and the threat were
reported to Hinnegan. There is no direct evidence that
any of the nonstrikers learned about such matters, but I
infer from the probabilities of the situation that French
or Caine told some of them about these matters. There is
no evidence that any of the dischargees knew about
them. About 7 months later, when French had her
annual medical checkup, her doctor discovered that she
had cardiac arrhythmia. She was sent to the intensive
care ward the following day, and spent 6 days in the
hospital. When she testified in June 1976, she was still
being treated for this condition.
Nonstriker Rosemary Shea, who drove seven other
employees (mostly if not all female) to and from work
during the strike, credibly testified that her passengers
would not have come in if they had had to drive them-
selves in, because they were "scared." Nonstriker Elsie
McDonald credibly testified that she drove four female
nonstrikers to work because "we didn't want to go by
ourselves through the picket line." Supervisor Sweitzer
credibly testified that two female employees whom he
drove to work during the strike were "a little bit upset"
when going through the picket line, and often hid their
faces, because the pickets were taking their names and
perhaps later they would be "dealt with." Night Supervi-
sor Houff credibly testified that "several people" whom
he did not name were so wrought up by picket line inci-
dents, which he did not describe, that when they entered
the plant they were physically unable to go to their job.
Hinnegan credibly testified that, on a night whose date
he did not give, he stayed in the plant all night because
the night-shift employees felt they "had been getting har-
assed for a series of nights" and he hoped to calm them
down and to see what was going on. Supervisor
Sweitzer further credibly testified that one of his male
passengers was "a little bit upset" at some of the obsceni-
ties being used by strikers, "particularly so-called young
ladies"; and that one of his passengers who had returned
to work during the strike was "perturbed" because he
had heard that striker O'Flynn, whom he had always re-
garded as a "nice guy," had smashed up a Volkswagen
occupied by a nonstriker; as found infra, part 11.1).7,i,
O'Flynn was not in fact involved. Supervisor Houff cre-
dibly testified that about 90 percent of the strikers he
talked to would say that they wished the strike vwas over
and they could get back to normal again, and he inferred
from these remarks that they had a "little resentment" at
the pickets.
Nonstriker Grant credibly testified that he was not
"exactly happy" about crossing the picket line, "I had a
lot of concern for myself and my car going in and out."
After some prodding by Respondent's counsel, he testi-
fied that he was "afraid" and "often thought about" pos-
sible damage to his property or to himself; he attributed
his fear to "all the masses of people and . . . the
screaming and shouting." I am inclined to think his last
quoted testimony about his feelings was somewhat exag-
gerated, in view of his further testimony that on the first
day of the strike he told a friend it was all right to come
in even though there were well over a hundred pickets,
and the fact that the most active picketing was not being
conducted during the hours he entered and left the plant.
However, as found elsewhere, he did observe most of
the daytime picketing, and unknown persons damaged
his home and car during the strike.
c. Evidence relating to allegedly mitigating misconduct
(I) Picket line events
Hinnegan credibly testified that, while he was out on
the picket line, he heard nonstrikers curse pickets and
tell them "to get the heck out of the way and worse."
He further credibly testified that, every day of the strike,
he heard words being passed back and forth between the
strikers and the pickets. Dischargees Boyer, Copella,
Grayson, Hillard, and O'Flynn all credibly testified to
picket line curses and obscenities directed at them by
nonstrikers; dischargee Rossi credibly testified that, on at
least one occasion, Supervisor Bruno Thomas screamed
obscenities at her while she was picketing. Grayson cre-
dibly testified that nonstrikers frequently made obscene
gestures on the picket line. Dischargee O'Flynn credibly
testified that, on frequent occasions, nonstriker Orkis said
on the picket line that he was going to "get" O'Flynn.
Dischargee Rossi credibly testified that, on frequent oc-
casions when crossing the picket line, and sometimes in
Hinnegan's presence, Orkis called her a "slut" and more
profane things, and directed obscenities at her. Discharg-
ee Roundtree credibly testified to threatening gestures on
an unspecified date by another nonstriker. possibly Sur-
plus, and to an obscene threat by nonstriker John Butter-
field, toward the end of the strike, to "get" Roundtree.
Roundtree, who is black, further credibly testified to the
use of racial epithets by a man who regularly drove
through the picket line to pick up his nonstriking w ife.
Also, Roundtree credibly testified that, on an unspecified
date, a company truck bore a striker's address. Discharg-
ee Hillard credibly testified that on an unspecified date a
company truck crossing the picket line had an obscenle
reference to the Union written on it. She further credibly
II l I
I)'tCISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that on an unspecified date a company vehicle
had written on it, "How are things in Media?" (the city
where she and striker Thompson lived). Hillard further
credibly testified that she found new roofing nails in the
strikers' parking lot (supra, fn. 33q), inferentially after
early March. Dischargee Rossi and other strikers were
advised that nails had been found.
Dischargee Rossi credibly testified that on one occa-
sionl whose date she did not give, in Hinnegan's pres-
elice, Supervisor Thomnas pushed nonstriker Orkis' truck
across the picket line by driving into the truck. Dis-
chargec Roundtree credibly testified that, on one occa-
sion whose date hie did not give, a nonemployee's car
which was crossing the picket line pushed Roundtree
into the middle of Westtown Road, without, however,
hurtinlg him. Roundtree further credibly testified that, on
an undisclosed number of occasions, and once in Hinne-
gan's presence, a nonstriker's boy friend who was driv-
ing her across the picket line would stop, "rev" his car
up, "pop" his clutch, and drive through the line "like
running thrioough a barricade." Dischargee Hlillard credi-
bly testified that. the first 2 or 3 days of the strike, some
cars crossed the picket line so fast that the pickets practi-
cally had to run out of the way.
On February 11, Respondent hired Carol Monaghan.
Shite was driven home (and perhaps to work) by a man,
generally known as The Snake, who was in charge of a
three-county area of a motorcycle gang called The
Pagans, wlho had a reputation for violence. The Snake,
wearing his I'agaiis insignia, drove his van through the
picket line with his windows rolled down and a German
shepherd dog in the front seat, and directed four-letter
words at the pickets, who did not go near him.a 45 About
February 21, Hinnegan told The Snake "that it would be
best if he did not come through the line again. The
Snake said that, if there was going to be any trouble, he
would not cause it to Hinnegan or the line or at the line.
The Snake did not cross the line thereafter. Monaghan
resigned on February 28, for lack of transportation.
During the strike, -linnegan "barred ... from the
[company parking] lot" two nonemployees who were
diiving their w ives or girl friends across the picket line.
One of these drivers "would deliberately cut to the pri-
vate driveway"; the other one was displaying an iron bar
or pipe. On an undisclosed number of occasions, uniden-
tified pickets banged on the car of nonstriker Tom Costa,
because they thought he was deliberately swinging into
the picket line. Hinnegan told Costa to get his broken
turn signal fixed, to be "very careful" until he did so,
and to use it thereafter or be excluded from the company
parking lot. On several occasions, Hinnegan "talked to"
nonstrikers who (according to the pickets) were driving
too fast through the picket line. In late February, Hinne-
gan also "talked to" nonstriker Joe Kirkner, who was
fined by local authorities for causing a serious traffic jam
b)y stopping his car for 10 or 15 minutes on the street
near the driveways to Respondent's plant, but Hiinnegan
accepted Kirkner's statement that his home and his car
:4 Iis finding is based n Rossi's testlimonly I do ltrt awccept lilne-
gall tsCMilllolly til l till pickelts sld to hblock lihe Snake's lian. aid on
.0, mi.';i,1s , ic got our , f nIhe van to sa, "a frs voirds." which tlinne-
gua1 ( clcli ni( hear. to tIhe pic kcts,
had been damaged and, when pickets stepped out in
front of his car and then stepped back, "he was in fear of
his life, and he sat there petrified." Also, after nonstriker
Sweitzer told Hinnegan that Sweitzer was keeping his
car window rolled down "hoping that Jeff O'Flynn
would poke his fist through."3 4 6 Hinnegan told Sweitzer
not to do this. None of these nonstrikers was discharged
or disciplined for any of the foregoing conduct.
Dischargee O'Flynn credibly testified that the union
officers feared for the pickets' safety at night. Dischargee
Rita Hillard credibly testified that she was "concerned"
because of the "hate" in the eyes of nonstrikers who
were crossing the picket line; and got a "little worried"
about the "How are things in Media?" truck because
"the way they were screaming and carrying on with
each other and things I had heard about strikes, I didn't
know what would happen."
(2) Damage to strikers' property
Dischargee Hillard credibly testified that, on a date
she did not give, an unknown person stabbed two new
tires on her car while it was parked in the lot of her
apartment house. None of the other cars parked there
was damaged. Dischargee Roundtree credibly testified
that an unknown person dented his car, at a point where
another car could not have hit it in view of its location,
while he was visiting his girl friend on a date he did not
give. Dischargee Collins credibly testified that, toward
the beginning of the strike, her tires were slashed while
her car was parked in a bowling alley parking lot, and
gave substantial circumstantial and hearsay reasons for
believing a particular identified nonstriker was responsi-
ble.
(3) The bowling alley incident
On February 21, 1975, Union Representative Ledsome
drove striker Pat Becker, dischargees Barnett, Grayson,
and Rossi, and Rossi's I I-year-old son, Armand, to a
bowling alley in a local shopping center. Dischargee
Collins was bowling that night, and they wanted to make
sure that she got home safely. 3 47 Ledsome parked his
car in the adjacent parking lot, and all six went inside the
bowling alley and started to watch Collins finish her
game. Nonstrikers Richard Orkis, Michael Surplus, and
Richard Smith were there, but were not bowling. After
Ledsome and his passengers came in, Orkis, Surplus, and
Smith left. Mrs. Rossi sent her son out to find out where
they were going. He saw Surplus start toward Led-
some's car. When Armand failed to return at once, his
mother came out. She saw Orkis on his knees in fiont of
Ledsome's car, and Surplus with one knee on the seat
and leaning in. Mrs. Rossi sent Armand into the bowling
'4S S'eitLer wanted "legal action" to be taken against O'Flynn. Ac-
cordinlg to Seitzcr, his mnoive was resentment at O'Flynn's telling Joe
Joyce. ine of Sweizter's passengers. that Joyce was "stupid" for aban-
doning the strike and was "letting people down." To "provoke" O'Flynn,
S'seitzcr replied that O()'Flynn was the "stupid" one and should leave
Joyce alone.
:14 Mrs. Rossi's teslim(ony about Collins' replxrts that she had received
thrcats arid her lires had been slashed was not received to shoew that this
had in fact occurred Collins credibly testified that her tires had been
slashed in Ihe bowling alley parking lot (see suprua. part II.D,2,c (2)).
1082
HAROWE SERVO CONTROLS, INC.
alley to get Ledsome, and then ran toward the car yell-
ing, whereupon the two men ran away. The front tires of
Ledsome's car were flattened and the front seat was
slashed to pieces. Ledsome, Barnett, Grayson, Armand
Rossi, and Becker then came out of the bowling alley.
Armand went to the back of the building to try to find
the nonstrikers, but they were gone. As the other passen-
gers stood in the parking lot looking at Ledsome's car,
Orkis (who was drunk) returned to the scene, laughed,
and said, "How do you like your car?" He leaned
toward Mrs. Rossi, who pushed him back. During this
conversation, Armand returned and was put in the car.
Smith walked up behind Mrs. Rossi, spoke her address,
and said "Does that sound familiar?" whereupon she said
yes, spelled her name and said, "If you come down to
my house I'll turn the dogs on you." Surplus also re-
turned to the scene, and called Ledsome and his passen-
gers filthy names. Two carloads of Pagans were in the
parking lot. Becker, whose estranged husband is a Pagan,
went over to talk to them, and then reported to her
fellow passengers that the Pagans had said they would
not do anything to the passengers. They then tried to get
into the car, but Orkis and Surplus kicked Ledsome, and
Orkis hit him. Eventually, Ledsome and the four adult
strikers joined Armand in the car, whereupon Orkis got
on the trunk and pounded the roof. Mrs. Rossi got out of
the car and asked Orkis "Please" to get off the car and
let it leave, that he was upsetting her little boy. Orkis ut-
tered some obscenities, tried to kick her, told her to get
away, and said he was not getting off the car. Finally,
Rossi reentered the car and it drove off. After it started
to move, Orkis jumped or fell off the trunk.
Although slowed by the two flat tires, the car pro-
ceeded to the strike trailer. Mrs. Rossi was told to get
out and call the police by means of the telephone in the
trailer. She saw Orkis and Surplus coming out of the
trailer."48 The door of the trailer, which had been
locked when the strikers left it, was wide open. The
screens over the jalousie windows in the door had been
torn up enough to enable someone to reach the inside
doorknob and open the door, which "was busted" and
did not shut right. The typewriter was missing, and the
cash drawers had been broken into and rifled. Also,
papers were scattered around, and the lights had been
disconnected. Mrs. Rossi telephoned the police from the
telephone in the trailer. They came on the second call,
and inspected the trailer and Ledsome's car. Mrs. Rossi
took Armand home, and then returned to the trailer,
where all the adult passengers spent the night.
The following morning, when Mrs. Rossi was on the
picket line, Orkis told her not to be there at lunchtime
and that he was not afraid of her son. The pickets
laughed. That day or shortly thereafter, Orkis told
O'Flynn on the picket line, "The next time, you won't
get the radio back." Among the items in the trailer had
been a citizen's band radio.
:14. This finding is based on Mrs Rossi's testimtony. indirectly corrobo-
rated by Orkis' later remarks ()to lynn (scee nJru ) I do not regard her
testimony as impeached by the testimiony of Armand Rossi. who re-
mained inside a car parked Icxt to an unlighted trailer ahlbut 9 p m in
late Iehruary. that he did not see anly(lie around the trailer
Hinnegan testified that, on the morning after the inci-
dent in the bowling alley parking lot, the pickets
"screamed" at him that Orkis had "destroyed some-
body's car and a number of other things." According to
Hinnegan, Surplus' name was not mentioned. Hinnegan's
testimony at one point suggests that that same day he
spoke to both of them about the matter. In any event, he
testified that both said they had not done anything. Hin-
negan testified that he did not ask Surplus whether Orkis
was involved, and there is no evidence that Hinnegan
asked Orkis about Surplus. Nor did Hinnegan ever speak
to Ledsome about the matter. O'Flynn eventually swore
out warrants against both Orkis and Surplus. Both were
charged with breaking and entering and with stealing
money and equipment, and Surplus was charged with
damaging Ledsome's car. '49 On the basis of these non-
striking employees' representations to him, and without
conducting any investigation, Hinnegan took no action
against them. He testified that Respondent's local counsel
said that he had discussed the matter with Orkis and Sur-
plus and felt "the charges were not warranted and that
there would be no problem"; and that counsel had con-
ducted a "cursory examination" to see if Respondent was
potentially liable, and "deduced" that it was not, "So we
didn't get involved." The Union never asked Respondent
to discharge or discipline either Surplus or Orkis.
On an undisclosed subsequent date, Surplus was sepa-
rated from Respondent's employ under circumstances
not shown by the record. Respondent rehired him on
April 5, 1976, a few days after the beginning of the hear-
ing before me and before the receipt of any evidence
about the bowling alley and related incidents.
(4) Respondent's help-wanted advertisements during
the strike
On January 29, 1975, and again on March 14, 1975,
Respondent advertised for setup, Swiss-screw, Kummer,
and grinder machinists. Pennsylvania law provides (sec.
217.25 of Purdon's Statutes Annotated):
It shall be unlawful for any person, agency, firm or
corporation, or officer or agent thereof, knowingly
to recruit, solicit or advertise for employees in place
of employees involved in a labor dispute without
adequate notice to such person or in such advertise-
ment that there is a labor dispute at the place at
which employment is offered and that the employ-
ment offered is in place of employees involved in
such labor dispute.
On dates not shown by the record, the Union com-
plained to Messina about the fact that the foregoing ad-
vertisements did not reveal the existence of a strike at
Respondent's plant. However, the record fails to show
that Respondent failed to give "adequate notice" of the
strike, by means other than the advertisements, to per-
sons who responded to the advertisements. Accordingly,
I need not and do not determine the relevance to the
:"' Responldcnt\ counsel stated on the record that all these charges
had been droipped Uni.ionl counsel stated that this was not his understand-
lrg
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues before me of any breach of this statute by Re-
spondent. Cf. N. Y. Telephone Company v. New York
State Department of Labor, 96 LRRM 2921, 82 LC II
10,008 (2d Cir. 1977).
Other allegedly mitigating evidence is discussed infra.
3. Burden-of-proof issues
Respondent has at all times contended that the strike
was economic in character. If this were the case, the ap-
plicable rule would be that set forth in Rubin Bros. Foot-
wear, Inc., 99 NLRB 610, 611 (1952),350 where the
Board held:
. . . the honest belief of an employer that striking
employees have engaged in misconduct provides an
adequate defense to a charge of discrimination in re-
fusing to reinstate such employees, unless it affirma-
tively appears that such misconduct did not in fact
occur. .... once such an honest belief is established,
the General Counsel must go forward with evi-
dence to prove that the employees did not, in fact,
engage in such misconduct. The employer then, of
course, may rebut the General Counsel's case with
evidence that the unlawful conduct actually did
occur.
On the other hand, where the strikers are unfair labor
practice strikers (as I have found is the case here), an
employer's erroneous belief, however sincere, that a
striker has misconducted himself does not constitute a
defense to refusing to reinstate him. Rutter-Rex, supra,
158 NLRB at 1418, 1448-49. Further, Rutter-Rex indi-
cates (158 NLRB at 1418) that disqualifying misconduct
by an unfair labor practice striker must be shown by a
preponderance of the evidence. But see Farmers Co-Op-
erative Gin Association, 161 NLRB 887 (1966), enfd. and
affd. sub nom. Dallas General Drivers, Warehousemen and
Helpers, Local Union No. 745 v. N.L.R.B., 389 F.2d 553
(D.C. Cir. 1968); Coronet Casuals. supra, 207 NLRB at
305; Mosher Steel Company, 226 NLRB 1163, 1164, 1166-
67 (1976), modified 568 F.2d 436 (5th Cir. 1978).
In order to obviate burden-of-proof issues, I shall make
no effort to determine, as to each striker, whether Re-
spondent has met the "honest belief' requirement within
the meaning of Rubin Bros.;35' and, unless I specifically
state otherwise, shall make all my findings about the
commission or noncommission of each striker's alleged
misconduct on the basis of a preponderance of the evi-
dence.
4. Alleged hitting of pickets by nonstrikers' cars
The record contains a good deal of evidence regarding
the alleged hitting of pickets by nonstrikers' cars on the
picket line during the second day of the strike. The Gen-
eral Counsel and the Union contend that various pickets
350 Enforcement denied 203 F. 2d 486 (Sth Cir. 1953); followed,
N.L.R.B, v. Plastic Applicatorr, Inc., 369 F.2d 495, 498 (5th Cir 196h), see
also N.L.R.B. v. Burnup & Sim.s. Inc., 379 U.S. 21 (1964).
ad However, as to some strikers a finding that Respondent has not
done so is likely subsumed by the finding (infra, part II,D,8,c (3)) that
Respondent acted for the specific purpose of discouraging protected and
union activity. Cf K-D Laimp Division, Concord Control, Inc., 228 Nl.R
1484 (1977)
were in fact hit by nonstrikers' cars, that the nonstrikers
were to blame therefor, and that such incidents (together
with Respondent's allegedly insufficient investigation
thereof and its admitted failure to discipline any non-
strikers therefor), constituted legally cognizable provoca-
tion for misconduct in which the strikers may have en-
gaged. Respondent contends that the pickets were not
really hit by the nonstrikers' cars; that the strikers and
(perhaps) the Union conspired to make it appear that
these events occurred, and to procure legal proceedings
based thereon, in pursuance of an alleged plot to cause
the Union to prevail in the labor dispute by unlawful and
improper means; and that Copella's and Collins' alleged
claims of injury could be and were legitimately consid-
ered in Respondent's decision to discharge them.
Employee McFadden, who is named in the complaint,
testified that, while she was picketing across the compa-
ny driveway shortly before 8 a.m. on the second day of
the strike, January 28, 1975, she was struck by a car
which nonstriker Eva Chambers was driving into the
plant. According to McFadden, she was thrown onto the
hood of the car and then, as the car turned left, slid off
toward the passenger's side and onto the ground, where
she landed mostly on her right leg. Still according to
McFadden, when this incident occurred she and many
others screamed. McFadden went on to testify that she
said she wanted to go to the hospital, the police took her
there, and it transpired that she had sustained bruises and
a sprained right ankle and knee. McFadden further testi-
fied that, later, she went to a doctor complaining that
she had muscle spasms and that her feet got red after she
stood for a while. Still according to McFadden, he told
her that these symptoms were caused by her accident,
that she had poor circulation, and that she would never
again be able to remain standing for long periods.3 5 2
About 6 weeks prior to this alleged incident, she had
spent a week in the hospital being treated for whiplash
injuries to her neck in consequence of an automobile col-
lision off company premises and while she was on
leave.3a5 3
The testimony of Collins, who is also named in the
complaint and who Respondent claims was discharged
for strike misconduct, is consistent with that of McFad-
den. Collins testified that she was picketing the company
driving that morning; Chambers' car drove through the
picket line with its driver's side fender nearest to Collins;
Collins then heard others yell that McFadden had been
hit but did not see this happen; and after that, Collins
saw Chambers' car make a left turn and saw McFadden
for the first time, lying on the ground on the side of the
driveway opposite Collins. Collins testified that Copella
was right beside her.
Copella, who is named in the complaint and who Re-
spondent claims was discharged for strike misconduct,
testified that she did not see McFadden hit, but that
:"a' Her job with Respondent had not required her to stand a great
deal No contention is made that physical disability affects any reinstate-
ment rights she otherwise uwould have had
:'":' Dr Shields, vwho diagnosed her circulalory problems, was her hus-
band's dclor. He had not treated her for the whiplash injury, which oc-
curred immediately after she returned from her honeymoon
1084
HAROWE SERVO CONTROLS, INC.
upon hearing other pickets yell that she had been hit,
Copella turned to see that Union Representative Led-
some was picking up McFadden. Copella, unlike McFad-
den and Collins, testified that Chambers' car stopped in
the driveway before continuing ahead and then making a
left turn, and that McFadden was lying in the driveway
on the driver's side of the car rather than on the passen-
ger's side.35 4 Also, Copella testified that another car
turned into the driveway at or about the same time as
Chambers' car, whereas Collins testified that Chambers'
car was the only car coming in the driveway at the time.
McFadden did not picket again, but about 2 weeks
later she came on crutches to the picket line for a few
minutes.
Employee Evelyn Gould, who is named in the com-
plaint, testified that on January 28, the second day of the
strike, while she was picketing across the 25-foot private
drive, she stopped in the middle of the drive to let a car
drive out, whereupon she was spun around and knocked
down by another car, which was driving in. Employee
O'Flynn, a dischargee named in the complaint, testified
that, when he was picketing the private driveway that
day, nonstriker Michael Leys turned his car into the
picket line, brushed O'Flynn and other pickets aside, and
knocked Gould to the ground. Still according to
O'Flynn, Leys skidded turning right into the driveway;
fishtailed to the left and then back to the right; in trying
to turn left, skidded 15 or 20 feet sideways and bounced
off the grass barrier; and then "burned rubber" into the
plant. Collins testified that, while picketing at the compa-
ny driveway that day, she saw Leys drive a car through
the private driveway, that "it really came through fast"
(fast enough to bounce off the curb when turning from
the Plaza into the company parking lot), and that, right
after it came through, picket Flo Pishner (inferentially,
the F. N. Pishner named in the complaint) shouted that
"Evelyn had been hit." Collins testified that she did not
see Gould but that this was the only car in the area, and
that no other car was then turning from the private
driveway into Westtown Road in either direction. Gould
and Collins both testified that thereafter Gould was put
into a police car. Gould testified, with some corrobora-
tion from McFadden, that a couple of minutes later
McFadden was put into the police car; and that the
police thereupon took them to the hospital, where Gould
stayed for 3 hours and had x-rays taken for which her
medical insurance paid. Still according to Gould, she
was told at the hospital to lie down and put heat on her
hip, the police then drove her back to the picket line,
and at the urging of someone on the picket line she went
home. Gould testified that the doctors at the hospital
told her that she had a bruised bone, and that at the time
she testified (June 1976), her hip was still bothering her.
Copella further testified that, later that same day, she
was picketing across the company driveway, on the
right-hand side from the standpoint of someone going in,
and was walking south (that is, from the right-hand side
to the left-hand side from the standpoint of someone
going in), when nonstriker John Butterfield turned his
s'4 At one point. Copella testified that they were 2 feet away from
her. Elsewhere, she testified that they were on the other side of the
driveway, which is about 25 feet wide
car into the driveway and knocked her down. She testi-
fied that she was hit on her left side, fell on her right
side, and was bruised on the left side of her body from
the top part to the knee. She initially testified that she
was hit with the driver's side fender. Later, she testified
that she was hit with the passenger's side fender. Collins
testified that she was in the middle of the right-hand lane
from the standpoint of someone going in, that she was
walking north (that is, from the left-hand side to the
right-hand side from the standpoint of someone going
in), that Copella had been picketing behind her but she
did not actually see where Copella was at the time the
car allegedly hit them, that Butterfield's car brushed Col-
lins' left hip with the passenger's side fender, and that
after feeling this contact she turned around and saw Co-
pella on the ground. 3 55 Both Copella and Collins testi-
fied that Butterfield continued to drive into the Plaza al-
though picket Slifer yelled out at him to stop, he had hit
someone. However, Collins testified that Slifer got up on
the roof and Copella testified that he ran after Butter-
field. Collins testified that this incident occurred between
7:45 and 8 a.m., and after McFadden and Gould had
been taken to the hospital.
Copella testified that, after Butterfield hit her, she left
the picket line and went to her doctor, who told her to
have x-rays taken of her injuries. Copella went on to tes-
tify that she left the doctor about 10:05 a.m., went home,
and relayed this information to Stevens by telephone at
the trailer. That afternoon, according to Copella, her son
took her to the hospital for x-rays. Copella testified that,
for 3 or 4 weeks thereafter, she used a cane to take the
weight off her left leg. Hinnegan and Grant corroborated
her testimony in this respect.
On January 29, 1975, McFadden, Gould, Copella,
Ledsome, and Stevens went down to the office of a
Pennsylvania Justice of the Peace. McFadden, Gould,
and Copella swore out criminal complaints against
Chambers, Leys, and Butterfield, respectively. On Febru-
ary 3, 1975, the District Attorney's office approved
Gould's and Copella's complaints as to simple assault
charges only. All three of these charges were later dis-
missed because they had been pending for 180 days with-
out going to trail. On a date undisclosed by the record, a
union representative asked Gould to see Attorney
Sheller. Gould testified that a few days later she, Co-
pella, and "the other girl that was hit" went down to see
Sheller. The record fails to show the identity of this
third individual.35 s Sheller filed a civil damage suit
against Leys and the Company on behalf of Gould, who
paid Sheller no money therefor.3 57 Copella filed a civil
damage claim against Butterfield and the Company. The
record suggests that she may have been represented by
:I" Collins initially testified that the car "hit [Copella] on her right It
was the car's left, but it knocked her over onto the ground" However.
Collins' subsequent testimony shows that she did not see the car hit Co-
pella
:'6 McFadden testified that she did not know who Sheller was: Col-
lins that she had never told any attorney about her alleged injury; and
Copella that nobody ever told her that Butterfield's car hit Collins As
previously noted. OFlynn testified that Leys' car hit several pickets
:"7 Later. Attorney Rosen told Gould that he was taking over from
Sheller, and Gould acquiesced
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheller, whom she met before the alleged incident and
while he was acting as the Union's attorney. Also on an
undisclosed date, McFadden filed a civil damage claim
against Chambers and the Company. McFadden filed this
suit through an attorney different from the one who was
representing her in a suit based on her prestrike auto-
mobile collision. She testified that she got her new law-
yer's name from the Union, but that she did not know
who Sheller was, and that she paid no money to her new
lawyer. All of these civil suits were still pending as of
the time of the 1976 hearing before me.
35 8
Collins testified that, on January 28, when the car
driven by Butterfield allegedly brushed her and allegedly
knocked down Copella, the car had as passengers em-
ployee Mary Jane Prekup and another employee whom
Collins did not know. Prekup testified that she and em-
ployee Theresa Campbell drove in with Butterfield that
morning. Campbell testified that she and three other em-
ployees, whose names she was not asked, drove in with
Butterfield that day. Copella denied that Prekup was in
the car that day, and testified that nobody was then sit-
ting in the front passenger's seat. For demeanor reasons,
I find that Prekup was in Butterfield's car that day.
Prekup testified on direct examination that she was
riding in the front passenger seat on January 28, which
was a Tuesday; that she saw Collins and Slifer but not
Copella on the picket line; and that the only physical
contact between Butterfield's car and the pickets that
morning was that some pickets (including Collins) leaned
against it and Prekup heard (but did not see) a kick
which dented the car. On recross-examination, she could
not recall whether the events she described had occurred
on a Monday or on a Tuesday. All counsel stipulated
that Prekup had personal reason to be biased in favor of
Butterfield. Campbell testified that, on the morning of
January 28, she sat directly behind Butterfield, slightly
slouched, with her head down and hiding her head but
"more or less" looking through the windows, and that
she was "really scared." She further testified that she is 5
feet tall but could see the left-hand fender if she wanted
to and could see out the windshield. She testified that
she did not see Copella in the vicinity of the car. When
asked on cross-examination, "You don't know they didn't
hit Mrs. Copella, do you?" she replied, "I couldn't say
for sure, but I don't know that he did either." Campbell
further testified that she saw Slifer hit the car with his
fist.
Hinnegan testified that he was on the picket line pretty
solidly from 7 to 8:30 a.m. on January 28. He testified
that he was close enough to the picket line to hear talk-
ing in any kind of a loud voice. He further testified that
on January 28 he did not see Chambers hit McFadden
with a car, or Butterfield hit Copella or Collins with a
car. Hinnegan testified that he saw Leys' car in the
driveway that day and did not see that car hit Gould.
Hinnegan testified that he heard of the accusations
3aI Respondent's post-hearing memorandum asserts that on the same
day as McFadden's alleged accident, ". .. a letter was sent, signed by a
local attorney who was representing the Union, to Ms. Eva Chambers, in
which that union attorney asserted that he represented Mrs McFadden
for personal injuries sustained as a result of an alleged injury taking place
on the picket line (R. Exhibit No. 113)." See infra, fn 404.
against nonstrikers Leys, Chambers, and Butterfield, and
questioned them about the matter, 35 9 but did not ques-
tion the strikers about whether they were hit, and did
not himself ask their doctors (although Respondent's in-
surance company "could have") about whether the strik-
ers were injured. He further testified that none of these
nonstriking drivers was ever disciplined for allegedly hit-
ting a nonstriker with a car.
I do not accept Respondent's contention that McFad-
den, Gould, Copella, and Collins had no basis whatever
for any claim based upon being hit by a nonstriker's car
while on the picket line. Hinnegan testified that on the
first day of the strike Respondent began to take video-
tapes of the picket line, but no videotapes were pro-
duced.360 Moreover, for this and demeanor reasons, I do
not believe Hinnegan's wholly uncorroborated testimony
that he was near the picket line when such incidents al-
legedly occurred, and credit the testimony of McFadden
and Gould that he was not there.3
6t Finally, I credit the
testimony of McFadden, Gould, Copella, and Collins
that they were in fact hit by nonstrikers' cars crossing
the picket line. While the discrepancies between the wit-
nesses' testimony regarding the details of these events
might point to the conclusion that some or all of the
drivers did not commit criminal or tortious acts, I be-
lieve that the employees and the Union honestly thought
otherwise.3 62 Furthermore, the drivers' seemingly
blameworthy conduct was at least facially aggravated by
the drivers' failure to return to the scene to find out
whether anyone was hurt and to render any needed as-
sistance, although Chambers (on any version of the inci-
dent) must have known that she hit someone, and Butter-
field and Leys probably know.
5. The February 21 incident at the south gate
Respondent's plant is one of several business establish-
ments on the West Chester plaza. The Plaza is owned by
359 According to Hinnegan. le ys said "he didn't do it " He did not
relate what the other drivers sid
"Io See Goldemn Stat Bottling Co. v NL.R.B, 414 US. 168, 174.
N.L.R.B. v 1HalltcA, 198 F2d 477. 483 (Id Cir 1952); International
Union, United Aulormohbile., .4rospac and 4grwcultural Implrment Workers
(Gyrodynel v .V L.R.B.. 459 F2d 1129. 1335-41 (D C Cir. 1972)
:160 Company witness Grant could not recall seeing Hinnegan that
morning, although, if standing where he said he was, he would have been
directly in Grant's line of vision
:R0' As to what happened during these incidents, I accept McFadden's
and Collins' testimony over Copella's testimony as to the Chambers inci-
dent, for demeanor reasons, because McFadden and Collins gave mutual-
ly corroborative testimony which was inconsistent with Copella's, and
because Copella's testimony as to physical events was in general confused
and improbable I credit Gould and O'Flynn over Collins as to the Leys
incident. for demeanor reasons and because Gould and O'Flynn had a
better opportunity to observe it. As to the Butterfield incident, I find (I)
for demeanor reasons. that Colliins was hit under the circumstances she
described. (2) for demeanor reasons, and in view of partial corroboration
by Collins and by Hinnegan's and Grantis testimony that Copella later
walked with a cane. that Copella was in fact hit on her left side and
knocked to the ground on her right side, and (3) in view or Collins' testi-
mony. that Copella was hit by the driver's side front fender. Campbell
appeared to be ali honest witness. but she in effect admitted that she did
not really know whether Butterfield's car hit anyone In connectionl with
the credited testimony that Collins was brushed emi her left hip and Co-
pella was hit oni her left side. I note the testimony of nonstriker Grant.
who observed the picket line fir long periods while operating the video-
tape camera, that moslt of the car, entered the driveway at all angle.
1086
HAROWF SERVO CONTROl.S, INC
West Chester Plaza Associates, a partnership whose
members are Respondent's stockholders. The entire
south side of the plaza is occupied by a fenced area
within which Respondent's factory is located. The plaza
is otherwise bounded on the east by a public road, West-
town Road; on the north by another public road, Market
Street; and on the west by a driveway which leads north
into Market Street. Practically the entire plaza is paved.
Automobiles can enter the Plaza by using any of several
driveways. Ordinarily, an employee, tradesman, or other
person who wishes to enter one of the business buildings
in the plaza uses whichever driveway and parking area
are most convenient. Some of the driveways serving the
plaza lead directly or indirectly to Market Street, and
some lead to Westtown Road. These Westtown Road
driveways include (1) the so-called private driveway,
which is south of and relatively near a plaza building,
north of the Harowe plant, called the Darlington build-
ing, (2) the so-called company driveway, which is south
of the "private driveway" but north of the Harowe
plant; and (3) the so-called south gate, which is a gate
south of the Harowe building and which leads directly
into Westtown Road from the Harowe fenced parking
lot. There is no direct evidence in the record about the
extent of the South gate's prestrike use by Respondent's
employees and other visitors, or by persons who wished
to visit other establishments in the plaza. Because the
driveway from the Harowe parking lot to the south gate
slopes rather steeply upward, I infer that Respondent's
employees used it less often than the other means of
access to Westtown Road. Because the Harowe parking
lot is fenced and is at one corner of the plaza, I infer that
the South Gate was seldom, if ever, used by persons un-
connected with Respondent.
The south gate remained locked from the beginning of
the strike until February 21, 1975.363 Nor was it picket-
ed at all during this period.
Hinnegan testified that, "from the very first," Re-
spondent instructed employees to use the company drive-
way. However, during the first few days of the strike,
the Market Street driveways and the private driveway
(as well as the company driveway) were used by Re-
spondent's nonstriking employees and by visitors to Re-
spondent's plant (as well as by employees of and visitors
to other Plaza establishments). During the first week of
the strike, West Chester Plaza Associates and others, in-
cluding Harowe according to the General Counsel's
brief, filed secondary picketing charges against the
Union. About this same time, Respondent put up a sign
next to the company driveway stating that it was for the
exclusive use of Harowe personnel. Also, Respondent
posted signs at the private driveway, at a driveway to
Westtown Road near the Darlington and IRS buildings,
and at the Market Street driveways, stating that they
were private driveways and that Respondent's employees
should use the gates designated for them. By memoran-
dum to all Harowe employees dated January 31, 1975,
Hinnegan stated:
1a6 This finding is hased on the testimony of Hishler. Hainegan. Scott.
and O'Flynn For demeanor reasons, I do no accept Plant Managcr/Su-
pervisor Frank Cross' testimony that it ssas open during the first day or
two of this period
Everyone-drivers, walkers, and Harowe visi-
tors-must use the entrance to Westtown Road
closest to the Harowe fenced-in parking area-not
the entrance closest to the Darlington office building or
either of the entrances on the Market Street.
Barricades will be erected to restrict access to
the Harowe plant to this "Reserved" entrance.
This location is subject to 24 hour observation-
including guards, police, videotape camera, wit-
nesses, etc. to protect you.
The Company has given its word to the NLRB
that no Harowe related personnel will use these en-
trances-I know that we can count on you to keep
the Company's promise.364
Attorney Oliver, who represented Harowe during the
proceedings before me, represented West Chester Plaza
Associates as to its secondary picketing charges against
the Union. By letter to Oliver about this secondary pick-
eting case, dated February 6, 1975, the Union stated.
inter alia:
We understand that the Company has established a
"reserve gate" policy in respect to those entrances
on West Town Road and Market Street, and has
taken necessary measures to ensure that all Harowe
Servo employees, customers, vendors, subcontrac-
tors, job applicants, etc. will only go through the
West Town Road Gate which has been designated
for that purpose. Not only have we been assured
that appropriate signs, barricades and guards have
been placed at these entrances, but that people who
mistakenly use these entrances will be directed to
go out and return to the plant through the West
Town Road entrance specifically assigned for that
purpose. Finally, we understand that the above-enti-
tled [secondary-picketing charges] will be with-
drawn.
Consequently, we hereby agree not to picket any
gates other than that reserved for Harowe Servo
employees, etc., on West Town Road, so long as
the use of other gates and driveways on and to
West Chester Plaza by the general public is not sub-
stantially comingled with their use by Harowe
Servo employees, customers, vendors, job appli-
cants, etc. If at any time this occurs, we shall imme-
diately inform the Company, and reserve the right
to resume picketing at any or all of these other
gates.
Oliver stated on the record that he had solicited this
letter for the purpose of obtaining written assurances that
the Union would cease what counsel believed to be il-
legal secondary picketing, that counsel conditioned with-
drawal of the secondary picketing charge on obtaining
such written assurances, and that the charge was with-
drawn "in result of the fact that they ceased their illegal
picketing" and of the February 6 letter. He further stated
that the letter "was not received by me with the view in
'" Hlueser, the General Counsel stated on ihe record that no Btoard
representallste 'sas party to any such agrTeem nt
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind that there was any agreement between the parties."
No reply to this letter was written.
Because the south gate was not mentioned in Hinne-
gan's memorandum, had not been used or picketed
during the strike, was almost never used by personnel
unconnected with Respondent, and was not the gate
principally used by Respondent's personnel before the
strike, I agree with Respondent that any January 31 un-
dertaking by it not to let its personnel use particular
gates did not encompass the south gate. However, I
regard as honest and as not unreasonable the testimony
of various strikers and nonstrikers that they believed Re-
spondent had so agreed as of February 21.365 Further,
although Respondent may have acted obtusely in twice
opening the south gate on February 21 (see infra), and
although Hinnegan's explanations for such action are
somewhat confused, I do not think that the record pre-
ponderantly shows that Respondent acted with the spe-
cific purpose of provoking the pickets into misconduct-
ing themselves.
On February 21, an announcement was made on Re-
spondent's public address system that the south gate
would be open that evening. A few minutes before the
end of the shift which left at 4:30, one of the private
guards unlocked the padlock on the south gate and
opened the gate. This activity was observed by Grayson
and Copella (both dischargees named in the complaint)
from across Westtown Road, where Copella, who had
just given Grayson a lift to the picket line, was parking
her car. They yelled at the strikers who were then pick-
eting at the company driveway that the south gate was
being opened. Pickets Becker (who is named in the com-
plaint, but as to whom no misconduct defense is alleged),
Barnett, O'Flynn, and Roundtree (all three of them dis-
chargees named in the complaint), and perhaps others
then ran over to the south gate. Grayson also went to
the south gate. Copella stood to one side and took photo-
graphs.
Before a picket line had been established at the south
gate, several cars drove out. A car which was in front of
nonstriker Bob Bischler's car stopped at the picket line,
but drove out into the road after an undisclosed inter-
val. 36 6 Bischler then drove up to the gate, and stopped
when dischargee Barnett leaned for a couple of seconds
on the headlight near the passenger's side and motioned
for him to go back. His was the only car at the gate. 3 6 7
Barnett then stood in front of his car on the passenger's
side, made obscene gestures toward the occupants, and
yelled four-letter words at them. The front window was
half open,3 68 and the back window was closed. Non-
36s However, in so finding, I do not rely on O'Flynn's testimony that
the sheriff so advised him when serving the January 27 injunction. From
the sequence of events, I believe that any such conversation occurred
during the service of the March injunction.
386 My finding about the car in front of Bischler's car is based on his
testimony and that of nonstriker Leigh Bruton, the front seat passenger in
his car Because of their superior opportunity to observe and reason to
recall the events, I believe Barnett was in error when she testified that "I
think" Bischler's car was the first.
6'T This finding is based on his testimony. For the reasons indicated
supra, fn. 366, 1 believe Barnett was mistaken in testifying that Bob Leon-
ard's car (see infra), was immediately to Bischler's right
306 This finding is based on Barnett's testimony. Bruton, who was sit-
ting in the front passenger's seat, testified that the window was about
striker Krider, who was sitting behind the front passen-
ger's seat, leaned far forward, put her head a little out-
side the open window, and yelled at Barnett to get out
of the road and let the car out. 3 69 Barnett yelled that
Krider was a "scabbie" and should leave by the gate she
was supposed to use. During or immediately after this
exchange, Barnett walked over to a point less than a foot
from the front passenger window. Barnett told Krider to
"shut the hell up" and get back, and swung at her with a
bare and open hand, but without coming in contact with
her or the car. The car was then moving, at less than 5
miles an hour.3 7 0 The car turned right and pulled away
into the public road.3 7 ' Krider said to her companions
that Barnett had a "foul mouth" and "almost got my
face."3 7 2 Bruton laughed at her.3 7 3 Krider and Bischler
told Bruton not to leave the window open again while
the car was crossing the picket line, that it was only
asking for trouble. Bruton said that she would not, that
she had forgotten to take this precaution, that she was
sorry, and that she had rolled the window down so her
cigarette smoke would get out of the car.3 7 4 On the fol-
lowing day, Krider reported the incident to Company
President Hart's secretary. During this conversation,
Krider started to cry, and said that she had never had
anything happen to her like that. Barnett is younger,
taller, and more heavily built than Krider.3 7 5
one-quarter open, about 6 inches. For demeanor reasons, I do not credit
the testimony of Marie Krider, who was sitting behind Bruton, that the
front window was all the way open
369 This finding is based on Barnett's testimony. For demeanor rea-
sons, I do not credit Bischler's, Krider's, or Bruton's that Krider said
nothing, or these women's testimony that she did not lean forward.
3'0 This finding is based on Bischler's testimony As he was the driver,
I find his testimony in this connection more persuasive than that of
Bruton or Krider that the car was not moving.
371 This finding is based upon the occupants' testimony I believe Bar-
nett erred in testifying that the car stayed until the police came, and that
Grayson erred in testifying that no cars got out after the pickets got
there.
372 This finding is based on Krider's testimony For demeaner reasons,
I do not credit Bischler's uncorroborated testimony that Bruton asked
Krider whether Barnett had scratched her and Krider said, "No, she
didn't actually scratch me": or Bisihler's and Bruton's testimony that
Barnlett said, "That damn Debbie almost scratched my face."
3'' This finding is based on Bruton's testimony. For demeanor reasons,
I do not credit Krider's denials.
174 My finding in the last two sentences are based on Krider's testimo-
ny. For demeanor reasons, I do not credit Bischler's testimony that he
asked her why she had her window down, and she said she did not
know
"'s My findings as to this incident are based on a composite of credible
portions of the testimony of Barnett, Bischler, Bruton, and Krider
Bruton and Krider both denied that Krider's face was at the front
window Bruton is a rather slender woman who is 5 feet 4 inches tall,
and she testified that she was sitting with her back in the corner made by
the front passenger seat and the side of the car. Because of her superior
knowledge of her position. I credit her testimony in this respect, and con-
clude that Sweitzer was mistaken in testifying that she was several inches
to the left of the door Krider is no taller than 4 feet II inches, and Bar-
nett is a heavy-set woman whose height I estimate as 5 feet 5 inches and
who during this incident was wearing a bulky jacket. Accordingly, I
regard as almost physically impossible Krider's testimony that Barnett
reached into the front window of the car (a two-door sedan), reached
around the pillar post and over the front seat occupied by Bruton, and
came within 2 inches of Krider's face as she was leaning slightly forward
on the back seat, particularly in view of Bischler's credited testimony
that at that time the car was moving forward, although very slowly.
Indeed, Krider testified that this could not have occurred if the window
Continued
1088
HAROWE SERVO CONTROLS, INC
Immediately behind Bischler's car was a car driven by
nonstriker Bob Leonard. O'Flynn walked across the
front of Leonard's car, from the passenger's side fender
to the other front fender. Leonard repeatedly nudged
O'Flynn with the car, and O'Flynn repeatedly asked
Leonard either to stop or go back down the hill.
O'Flynn then hit Leonard's windshield with a flatjack,
without, however, damaging the windshield. 3 7 6 O'Flynn
then gave the flatjack to Barnett, and told her to put it
away. She put it in her pocket. As soon as she could, she
put it in her car. She then forgot about it, and did not
return it until shortly before the end of the strike. When
O'Flynn hit the windshield, the window was open on the
driver's side. 3 7 7
A car driven by nonstriker Phyllis Scott in the left
lane going out, and another car driven by nonstriker
Diane Johns in the other lane, reached the gate at about
the same time, and shortly after Leonard's car had
driven away. Scott intended to make a left turn at this
point. Barnett leaned against Scott's driver's side head-
light and Roundtree against the other headlight. Scott
did not attempt to do anything. O'Flynn then walked
over to the passenger's side of Scott's car and broke her
radio antenna (see infra, fn. 379). Meanwhile, another
picket jumped on the hood of Johns' car, beat the wind-
shield with her fist, and directed obscene language to the
driver. I find that the picket on the hood was Pat
Becker.
3 78
In the meantime, dischargee Anita Grayson
stood in front of Johns' car, near the fender on the pas-
senger's side, with folded arms. Union Representative
Unger stood in front of the other fender.
The record fails to show whether Johns eventually
exited through the south gate, or whether she backed up
had been only partly olpen. as I have found it was. Moreover, Krider in
effect denied Bruton's testimony that, when Barnett allegedly reached
into the car. Hruton leaned toward the driver to get out of the way For
these and demeanor reasons. I do not credit Bruton's and Krider's testi-
mony that Barnett reached her arm all the way into the car toward
Krider's face Also, for demeanor reasons. I credit Barnett's denial of
Krider's testimony that Barnett directed an obscenity at Krider and said.
"I'm getting you . The next time I will do it good "
3'6 A flatjack. also called a slapjack, is a flat leather pouch about 10 or
II inches long and 3-1/2 inches wide. The user puts the pouch on the
palm of his hand, to which the pouch is fastened by means of a small
strap The pouch then protrudes several inches beyond the hand The
protruding portion is filled with lead A flatjack is used with a slapping
motion The device is less dangerous and easier to conceal than a con-
ventional blackjack, which is longer and has a handle and a spring
:"' My findings as to the Leonard incident are based on Barnett's testi-
mony and on credited portions of O'Flynn's testimony For demeanor
reasons. I do not credit O'Flynn's testimony, credibly denied by Barnett.
that Leonard hit him so hard he spun around At the unemployment
compensation hearing. O'Flynn did not testiiy that Leonard's car made
any contact with him.
I'" Grayson and Barnett so testified. Nonstriker Scott, whom I regard
as an honest witness, testified that the woman on the hood had long
brown hair and, when she saw Grayson in the courtroom, testified that
she did not think Grayson was the woman on the car Copella's contem-
poraneous photographs show that Barnett and Grayson had shortish
blondish hair (as they also did when they testified) and that Becker had
long dark hair. Roundtree testified that the woman on the car had long
hair and Grayson was not on the hood In view of the foregoing evi-
dence and for demeanor reasons, I do not credit Supervisor Cross' testi-
mony on direct examination that Barnett and Grayson were each on the
hood of cars or a car, or his similar testimony oin cross-examination A with
respect to Barnett and Collins ("I think I testified to that") There is no
other evidence that Collins was there, and Respondent's brief does not
allege that she was.
and exited elsewhere. After O'Flynn broke Scott's anten-
na, the car behind her backed up so she could back up.
Scott then backed down the hill and went out via the
company drive. As she went out, she told Hinnegan that
O'Flynn had broken her antenna. During a recess in the
March 3 injunction hearing, O'Flynn told Scott that he
was sorry he broke her antenna, but "sometimes you
have to do things that you don't mean to do when you
get in situations like this." He did not offer to pay for the
antenna, which cost Scott about $4 to replace.3 7 9
After all cars had left the south gate (either by driving
out or backing up), dischargee O'Flynn and Union Rep-
resentative Unger closed the gate. At some point, the
padlock, which the guard had left hooked onto the gate,
fell to the ground. O'Flynn kicked it across Westtown
Road into the strikers' parking lot.3 8 0 Supervisor Cross,
who observed this conduct from the roof of the plant,
retrieved the padlock and locked the gate.381
Upon seeing the pickets proceed to the South Gate
when it was first opened, Hinnegan telephoned the
police. By the time police officer Loane arrived, Cross
had unlocked the gate.:'8 2 Some of the pickets gathered
at the gate, including Grayson, O'Flynn, and Barnett, but
not Hughes (see infra, part ll,D,7,g). Loane told the
pickets to get to the side and let the cars out. They made
a "big commotion" and tried to tell him to use the com-
pany driveway only. Loane repeated his instructions and
put his hand out without touching the pickets, who
moved aside. He extended one arm in front of a group
including most of the pickets, and waved the cars out
with the other arm. These pickets stayed behind his arm,
without touching him. The relatively few pickets who
were not behind his arm did not block the cars. 38 3
7:" My findings as to this soulh gate incident arc based on Scottl' tcsti-
mony. 0('Ilytln admitted that tic broke her antelnna I do not credit his or
Roundirec's icetitm.ny that ()'Flynit broke it accidentally, in vstiew of
Scoti's credited version of hi, apolog) som,ne 10 days later, the absence of
corroboration for Roundtree', testiliony that O'Flynn apologized imme-
diately after breaking the antenna. O)'Fl nn's explanation that he came in
contact with it because she crovided him by making a right turn from the
left lane (although her lane .corrohorates her credible testimony that she
intended to turn left), and demeanor considerations. For demeanor rea-
sons. I credit her and Rounditre's testimony that she did not lease by the
South Gate, and discredit O'Flynln's testimony otherwise
"Ro My findings in the last two sentences are based on O'Flynn's testi-
mony, partly corroborated by Grayson For demeanor reasons. I reject
Supervisor Cross' testimony that O'Flynn took the padlock off the gate
and threw it across the road. However. I regard the issue as unimportanit
:IHI My finding in this sentence is based on the testimony of Cross.
O'Flynn. Grayson. and Copella, partly corroborated by Copella's con-
temporaneous still photographs For demeanor reasons. I do not accept
Barnett's denial.
:t12 This finding is based ,on Copella's testimony, indirectly corrotbHtrat-
ed by Hinnegan Cross was not asked about this matter For demeanor
reasons, I do not accept Barnett's denial
a33 My findings as to the conduct of the pickets and officer Lioane are
based on Barnett's testimony and on credible portions of the testimony of
Grayson. O'Flyvnn, and Hinnegan I reject as highly improbable Gray-
son's testimony that she did not recall any noise from any of the pickets
On direct examination. Finnegan testified that when police officer Loane
arrived at the plant, "I saw . Randy Roundtree sitting on a car when
I was standing here talking to the patrolman." and that Hinnegan told the
patrolman that he was needed hecause, nrter alha. "they are sitting on
cars " Hinnegan further testified at that poiin that. while talking to the
patrolman. Hinnegan saw Hughes. (irayson, and O()'Flynn standing in the
driveway. Later, oin cross-examilnation, innegan testified that, when he
C 'ontinuled
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 3, in connection with the issuance of the
consent injunction, Respondent agreed not to use the
south gate. In mid-March, Respondent advised the Union
that Respondent wanted to use the south gate for a few
days because a local utility company had temporarily
dug up the area in front of the company driveway. The
Union agreed. The south gate was open for a day, while
the soft area in front of the company gate was being
covered with gravel. During this period, the nonstrikers
used the South Gate without incident. Except for this in-
terval, the south gate remained unused from February 21
until the end of the strike.
6. The February 27 picket line incident and
allegedly related matters
When the night shift left the plant on February 27, the
company driveway was being picketed by, inter alia,
Jeanette Samuels and Lee Hoey (both named in the com-
plaint, and as to whom no misconduct defense is ad-
vanced),3 84 Richard Slifer (who is not named in the
complaint),3 8 5 and Grayson and Rossi, both of whom
are dischargees as to whom a misconduct defense is al-
leged. About 25 to 30 cars lined up that night, in two
lines. Grayson and Rossi walked in front of the cars,
while Slifer walked around them slapping and kicking
them. Rossi and Grayson also slapped about five differ-
ent cars, Grayson using the side of her fist.3 86 One of
the drivers was nonstriker Mildred Seiple, who regularly
directed obscene gestures toward the pickets, including
Grayson. Grayson got in front of Seiple's car and told
her that she would not have a car the next day.3 87
When nonstriker Evelyn Hansel drove out her brand
new Pontiac, Grayson and Rossi walked from side to
arrived at the South Gate, he saw Grayson, Copella. Roundtree. Barnett.
and Hughes block two cars, and make them back up, before officer
Loane took over On later cross-examination, Hinnegan testified that he
first found out that Roundtree was allegedly sitting on cars when some-
one so reported to Hinnegan the next day, that he did not point out to
the patrolman that someone was sitting on a car. that Hinnegan could not
see what was going on, and that nothing was going on after Hinnegan
arrived in the area. Accordingly, I reject the testimony of Hinnegan pre-
viously summarized in this footnote about the alleged conduct of Round-
tree, Hughes, Grayson, O'Flynn, Copella, and Barnett. For demeanor
reasons, I discredit Hinnegan's further testimony that the pickets were
pushing against Loane's arm and he finally threatened to arrest them For
demeanor reasons and in the absence of corroboration, I discredit
O'Flynn's testimony that Loane yelled to the existing cars, "If they won't
move out of the way, run them down"; and accept Hinnegan's denial.
3a8 However, as to Samuels, see supra, part II,B,8. A telegram to the
parties from the Board's Office of Appeals, dated September 2, 1975,
states, inter alia, "With respect to the remaining alleged discriminatees
(... Samuels . .) it could not be established . . that they did not
engage in strike misconduct sufficiently serious as to warrant the disci-
plinary action that was undertaken."
as5 A partial dismissal letter from the Acting Regional Director dated
August 25, 1975, states, inter alia, ". . . Richard Slifer was discharged for
unsatisfactory performance of duty and not because of his activities on
behalf of" the Union.
318 This finding is based on a composite of credible portions of the
testimony of Grayson and Night Plant Manager Houff. Houff initially
testified that Grayson and Rossi "pounded" and "beat," on cars, conduct
which Grayson denied as to herself Later, however, he testified that
they "would slap" on the cars, conduct which Grayson admitted as to
herself
ap8 This finding is based on the testimony of Seiple and Night Plant
Manager Houff. For demeanor reasons, I do not credit Grayson's or
Rossi's denials.
side in front of it while Slifer dented a back fender by
kicking it with his work boots.
The last car in the line was driven by Bob Marburger.
Sitting in the front passenger seat was nonstriker Philo-
mena Bruno, who frequently directed obscene gestures
toward Grayson when Bruno was crossing the picket
line. When the left lane of the driveway was free of cars,
Marburger drove into the lane to make a left turn. Some
unidentified pickets jumped in front of the car and start-
ed hollering obscenities. Slifer leaned over the hood on
the driver's side, and then walked around the side and
slapped on the window. Grayson came over to Bruno's
side of the car, kicked the front fender on that side (but
without denting it), and repeatedly banged on the
window with the side of her fist (but without damaging
the window). 388 Grayson was wearing two pairs of
gloves at the time.389 When Marburger started to make
a left turn into northbound traffic, Samuels got in front
of the car and Slifer lay down on the hood, both of them
challenging Marburger to hit them. Marburger drove
onto Westtown Road to a point where the right front
bumper of his car was a little past the center line, with
Samuels and Slifer in front of his car on the driver's side.
At this point, an approaching northbound car swerved
onto the right shoulder in order to avoid a collision with
Marburger's car. Samuels and Slifer thereupon moved to
the side of the road, Slifer kicking a piece of chrome
loose from Marburger's car as Slifer went past. Mar-
burger then completed his left turn and drove away.39 0
Grayson was not in front of Marburger's car when it
moved forward from the picket line, and made no effort
to push it back into the driveway.391
Supervisor Houff testified that the 25 to 30 cars which
left that night took a total of about 20 minutes to leave,
and that some cars were held up for as long as 2 to 3
minutes each. For demeanor reasons, I credit his testimo-
ny in this respect, and do not accept employee Bruno's
testimony that every car was held up for 5 or 10 minutes
that night, and her further testimony suggesting that the
cars took 30 to 35 minutes longer to leave the parking
lot than was usual during the strike. Houff credibly testi-
fied that, on the following day, he reported to Hinnegan
the conduct on this occasion of Grayson, Hoey, Rossi,
and Samuels.
The foregoing events occurred about I a.m. on Thurs-
day, February 27. Later that morning, upon waking up,
Seiple found that the water hoses on her car had been
3a: Bruno testified that Grayson obscenely challenged Bruno to get
out of the car, whereupon Bruno thumbed her nose For demeanor rea-
sons, I credit Grayson's denial.
389 This finding is based on Grayson's testimony that she usually did
this while picketing, and on the fact that these events occurred about I
a.m, in a Pennsylvania February. For demeanor reasons. I do not credit
Bruno's testimony that Grayson was barehanded.
390ao My findings in this paragraph up to this point are based on a com-
posite of Houffs testimony and credible portions of Grayson's and
Bruno's testimony.
a39 My findings in this sentence are based on Houff's and Grayson's
testimony For demeanor reasons, I do not credit Bruno's testimony oth-
erwise Bruno also testified, without corroboration, that Barnett and Col-
lins were picketing at the time, and that Collins was trying to push the
car backwards I credit what was in effect a denial by Houff that they
engaged in such conduct. and Collins' denial that she did
1090
HAROWE SERVO CONTROL S. INC
cut, the heater switch and aerial had been broken, all
four tires were flat, and the car had been spray-painted.
That same day, Seiple had the car towed to a garage,
which by Friday put it in operating condition but did not
repaint it. 39 2 That Friday, when Seiple drove her own
car through the picket line, Grayson stood in front of it
and asked Seiple whether she wanted the car painted
again.3 9 3
The foregoing constitutes the only record evidence
connecting Grayson with the actual damage to Seiple's
car. Grayson denied effecting any damage to Seiple's
car. For demeanor reasons, I credit her denial.
7. The individual dischargees
a. Deborah Barnett
The Union's September 6 letter to Respondent stated
that Barnett had been elected a departmental steward.
She was also a picket captain, and the Union's vice presi-
dent. Hinnegan initially testified that Barnett was dis-
charged for "Banging on cars with [her] hands, blocking
cars and picketing in such a way as to block them from
entering or leaving," for making a threatening telephone
call to one employee (using her own name), and "prob-
ably" for other incidents which he could not then recall.
Later, he said that he believed she was "involved" in
marking a car with a Magic Marker, and still later, that
she was discharged partly for name-calling. Company
Counsel Oliver stated that Barnett was disqualified from
reinstatement because of threats and threatening gestures
to other employees, taking down license numbers and
other information about people who crossed the picket
line, and because "On numerous occasions, she was seen
. . . pounding on cars, jumping on cars, standing on
cars, sitting on cars. In one instance, she assaulted an em-
ployee by opening her car door when she was attempt-
ing to [enter] the premises." There is no record evidence
regarding any car door incident involving Barnett, and
the only evidence that she jumped, stood, or sat on cars
is summarized supra, part II,D,5 in connection with the
south gate incident. Respondent's May 1975 letter to
Board Agent Maclasky stated that Barnctt was dis-
charged partly because on several occasions she feigned
being injured by employees' cars, and because she tried
to tear a reflector or some other object from the rear of
the company van as it was attempting to cross the picket
line. There is no evidence that Respondent so contended
on any other occasion, that she engaged in any of this
conduct, or that Respondent had any reason to suppose
she had.
Barnett was usually on the picket line in the mornings
and in the afternoons. Until the March 7 consent order,
she walked slowly, and sonetimes stood, in front of cars
so as to hold up their ingress and egress for periods of up
to a minute each. On one occasion, Barnett and other
pickets blocked for 8 minutes a van being driven into the
plant by employee Shea, who reported this incident to
management. On a couple of occasions, when cars came
g92 The immediate repairs cost $400. which the insurance comp:ain
paid.
3e9 This finding is based on Seiple's testimony. partly corrolorated bs
Grayson.
into the picket line rapidly, B3arnett smacked them ws ith
her open hand.3 9 4 She called persons crossing the line
"scabs," sometimes cursed them, anlld commented lo
them, "We know where you live." :' '"
Nonstriker Grant credibly testified that, almost evcry
day before he stopped videotaping the picket line shortly
after March 7, the pickets lined up on the side of the
driveway all the way up to Westtov'n Road in such a
manner that an exiting driver would have to take the
whole front of the car out into the road before being
able to see whether there was cross-traffic. Grant credi-
bly testified that he reported these incidents to Iiinltegan
or to Company President hlart's secretary. Still accordl-
ing to Grant's credible testimony, most of the pickets did
this at one time or another, at the beginning of the strike.
the guards "would let the people knitow if it 'sas clear to
come out to make a right or left turn, because the'9
couldn't see"; and, when the police swere there, thei did
not make the pickets move, but instead stopped the
Westtown Road traffic to permit the nonstl-lkers to turn
into it. On direct examination, Grant testified that aimong
the pickets who engaged in this activity A ere Parrictt.
Grayson, Hillard, and Rossi. On cross-exaumination,
Grant added the names of Roundtrce, 0()'Flyln, Collins.
and Copella, each of whom he had been specificalll'
asked about on direct examination. I accept his testilmoill
as to all these individuals.
Hinnegan testified that he received a report that somce-
one had received a call in which the caller had identified
herself as Barnett and said that if the recipient of the
call, whose identity Hinnregan could not recall, cainie in
the next day "it could be a problem for you," or '"words
to that effect . . . threatening in nalure." Nobody testi-
fied that he had in fact received such a call I credit liar-
nett's denial that she made such a call
Nonstriker Margaret ("Peg") White lives with her
mother, an invalid with impaired speech who requires
almost constant care. One day during the strike, when
White came home, she found that her mother was upset
and crying, and kept pointing lo the telephone and
saying "bad." White credibly testified that she inferred
her mother had been disturbed by a telephone call. "'
On the following day, Barnett repeatedly hollered at
White, in a tone which was not friendly. "Hlow's your
mother, Peg White, how's your mother?"": 9 7 While re-
ported to Hinnegan that the previous day her mother
had been upset by a telephone call, that White did not
know who had called. that on the following day lilarnett
had said, "How's your mother'?"" in an unfrietndly tone,
and that White thought that Barnett either nmlde the call
or knew who called. I agree with White's inference.. iin-
301 Respondent's post-hearilmg mcm(ir:n ;lllr i dtIlies 1oiI r[iCLr I{1 IlleC
smacking incidents
:'9 My findings in this sentence are hased )XI crcdlhic pirll rlI iI ilar
newt's and Hinnegan's estirnlnon) tir dtrlc;lrllnr rc.i, ,lr . I 1, IIIi .redit
Balrnctt's denital of the ·'We knoIs. vh. h.re Su li ,. e remark
:qon White had receied thr.atellil ng Icleophione .ill l erself, ;. I cIitil
some frntl a m al ler, and hotlh heil Ilo lelCr 1iId hler nmitlerh r' ltrt.
had reported to .White iaboiut uch cal1.
; The lhnding is h:ied t ',, Nxahts',s t .TiII ll I t I dcrItIill rc.l.-'i.
I do lot credit in.rnlcttl' den ,l li. l r llar I , it! ! i lll.'dd thit hi . Ik . i
ahout Ihe situtitli of A, lIC', n[iillt r
10)91
DI)ECISIONS O()F NATIONAL LABOR RELATIONS BOARD
negan did not testify about this incident, and did not tes-
tify that Barnett was discharged therefor.
Employee Shea testified that almost every night, when
she was driving White across the picket line, Barnett hol-
lered to White, "... is your mother all right? . . . She
might not be okay tomorrow. You'd better watch out.
Don't leave her by herself." Shea further testified that
she told Hinnegan or her supervisor about these alleged
incidents. Barnett denied such remarks. White testified
that Barnett never made such remarks, except on the oc-
casion described in the preceding paragraph. I found
White a reliable witness. As to this issue, I discredit Shea
and credit White and Barnett. Hinnegan did not testify
that Barnett was discharged for the conduct discussed in
this paragraph.
Hinnegan testified that, on at least a dozen occasions
during the earlier part of the strike, Barnett leaned over
a nonstriker's car as it went through the picket line,
looked at the occupants of the cars, orally mentioned
their names, then moved to the rear of the car, and then
wrote something down. Barnett testified that, once or
twice, she made a note of the license plates of cars
which crossed the picket line at excessive speeds, in
order to try to induce Respondent to make these cars
slow down. Barnett, Hillard, and Grayson further testi-
fied that Barnett kept a written count of the number of
employees who crossed the picket line, in order to obtain
information regarding the size of the active work force;
Hinnegan corroborated this testimony as to the latter
part of the strike. I credit the foregoing testimony by
Hinnegan, and these three employees' testimony to the
extent it is consistent with his. I further credit the testi-
mony of Supervisor Sweitzer, and for demeanor reasons
discredit Barnett's denials, that on one occasion when he
was driving his car through the picket line with a full
load of passengers, Barnett said that she was getting their
name and number and "they were going to get theirs,"
or "we'll get you later." Hinnegan did not testify that
Barnett was discharged for the conduct summarized in
this paragraph. The evidence fails to show when
Sweitzer reported this incident to other members of man-
agement.
In connection with the foregoing events, Respondent
relies on the testimony of nonstriker Josephine Lyons,
who drove five production workers to work during the
strike. Before the strike she used her own car, which has
an automatic transmission, but for a period at the begin-
ning of the strike she used her daughter's car, which has
a manual shift. There is no evidence that Lyons drove
through the picket line at a particularly rapid pace, but
she did find it "very touchy" to avoid hitting pickets
while using the manual shift. She credibly testified that,
every day, the picket line stopped the car she was driv-
ing, and for longer periods than the cars in front of her.
Lyons testified that on several occasions while she was
still driving her daughter's car, Barnett said to her, "213,
isn't that right, Josie?" 213 being Lynns' apartment
number in a 300-apartment complex. Barnett denied
making this remark, but for demeanor reasons I credit
Lyons. Lyons further testified that, after she began to
drive her own car, Barnett walked behind Lyons' car,
wrote something down, and yelled "213." A few days
later, unknown persons vandalized Lyons' car while it
was parked overnight in the parking lot of her apartment
complex. Three tires were slashed and parts of the car
were sprayed with white paint. 398 The owner's apart-
ment number cannot be ascertained from the spot where
a car is parked. Lyons reported to Hinnegan Barnett's
"213" remarks and the vandalization of Lyon's car. He
did not testify that Barnett was discharged for the
cnduct summarized in this paragraph.
On the first day of the strike, as employee Elizabeth
Robinson was driving very slowly through the picket
line, she heard a scratching sound. While continuing to
move forward, she looked into her rear view mirror, saw
nothing, and then looked through her back window. She
saw Barnett standing near the end of and a foot or two
from the passenger's side of Robinson's car, and nearer
to the car than any other pickets on that side. Barnett
was holding her right hand straight out in front of her, at
hip level, with her thumb and forefinger together and a
little behind the rest of her hand. Robinson did not see
what, if anything, Barnett had in her hand. After park-
ing, Robinson found a passenger's side scratch the length
of her car (a year-old, two-door Matador), terminating a
foot or two before the end of the car. The scratch was
not very deep, but the paint was off. Robinson already
had a 4- to 6-inch dent in her passenger side door. She
had both the dent and the scratch repaired, at a total
cost of $70. She never bothered to ask Respondent to re-
imburse her for fixing the scratch. Robinson testified
that, when her car was scratched, Barnett was the only
person who was close enough to have done it. I con-
clude that Barnett scratched Robinson's car and discredit
Barnett's denial. Robinson reported this incident to Hin-
negan. He did not testify that Barnett was discharged
therefor, but (as noted) did testify, in effect, that she was
discharged partly for marking a car with a Magic
Marker, as to which there is no evidence.
Barnett's conduct during the south gate incident is
summarized supra, part ll,D,5.
b. Esther Boyer
So far as the record shows, Esther Boyer did not
occupy any union office.
Hinnegan testified that Respondent discharged Boyer
because he and Hart observed her "picketing in such a
fashion as to block cars from entering and leaving, stand-
ing in front of cars," and because on at least one occa-
sion he received a report that "she opened the car door
and attempted to get in and swing in and tried to grab or
reach for [a female occupant's] face, slapped at her face
. . . leaned in and reached for the occupant." a9 9 He tes-
tified that these were the only incidents which led to the
discharge decision. Company Counsel Oliver stated that
Boyer was disqualified from reinstatement because she
SAB" Respondent paid for the difference between what the insurance
company paid Lyons for the damaged tires, which payment took depreci-
ation into account, and what the new tires actually cost Lyons
:'19 He testified that he thought he received this report from employee
Krider, and that employee Bischler might have been the driver Krider
and Bischler both testified about a somewhat similar incident involving
employee Barnettl but neither of them testified about Boyer
0I()J2
HAROWE SERVO CONTROI.S INC
"was engaged in on numerous occasions attempting to
open car doors and on two occasions actually opening
the car doors and engaging in assault and battery with
respect to employees occupying those cars. Also, she
was observed assaulting employees either entering or
leaving the premises."
Boyer picketed just about every time she could make
it. She usually picketed between 10 a.m. and 3 p.m., and
sometimes picketed on Saturdays and at quitting time.
She picketed slowly in front of cars and impeded their
progress, and sometimes blocked them in concert with
others.
Employee McDonald testified that, on an unspecified
date during the strike, she drove two other female em-
ployees out across the picket line. Still according to Mc-
Donald, employee Boyer opened the car door on the
passenger side and said to employee Donna Taylor, who
was on the passenger side, "Is your door locked?" Ac-
cording to McDonald, Taylor did not reply, whereupon
Boyer and Taylor pulled the door back and forth about
three times. McDonald further testified that while this
was going on she told them to quit playing with the
door. Still according to McDonald, Taylor eventually
closed the door and McDonald drove off. McDonald
testified that this incident "upset" her because "You
don't know what they are going to do." On cross-exami-
nation by the General Counsel, McDonald credibly testi-
fied that she reported to Hinnegan that her car door was
opened, and Taylor and Boyer were "playing" with it
and "kept fooling" with it. On cross-examination by
union counsel, McDonald testified that she did not think
she remembered what conversation she had with Hinne-
gan. Boyer credibly testified that this incident occurred
during the second month of the strike. She further testi-
fied that when she opened the car door, she said, "Hello,
Donna. How are you?" that Taylor thereupon shut the
door and tried to lock it, that Boyer then reopened the
door, that Taylor then shut the door again, and that the
car then drove off. Boyer credibly denied trying to get
into the car. For demeanor reasons, to the extent that
Boyer's and McDonald's versions differ I credit Mc-
Donald.
Nonstriker Diane Smoyer testified as follows: On one
occasion during the middle of the strike, as she was leav-
ing the plant in her car with Janice Stover and Janet
Keiper as passengers, she was halted by the picket line.
Then, Boyer opened up the car door on the passenger
side, where Janice Stover was sitting.4 0 0 Boyer said a
sentence, but Smoyer could not remember what it was
or what tone of voice Boyer used. 40 ' Janice Stover
there upon asked Boyer if she wanted to come a long for
the ride, and then closed the door but did not lock it.
Smoyer drove away. Boyer did not try to get in to the
car, reach for Stover, or hit, bang, or kick the car. None
of the car occupants was up set by this incident. Janice
400 Boyer and Stover are about the same height. hut Boyer is more
sturdily built.
401 Smoyer initially testified that Boyer "threatened to drag Janice out
of the car," but did not remember "exactly" what she said When asked
what Smoyer meant by "threaten." she said. "I can't think of the exact
words" She then testified that Boyer "threatened to drag Janice out.'
but when asked whether Boyer used the word "drag." Smoler said. "I
don't know the exact words "
Stover "just laughed" about it, and Smoyer "probably"
did the same. Smoyer reported this incident to Supervi-
sor Bruno Thomas.
Boyer initially denied that the foregoing incident oc-
curred. However, after she credibly testified that either
Janice Stover or Janet Keiper (probably the former) had
directed obscenities to Boyer when riding through the
picket line, company counsel asked her, "On the day that
you opened Janet Stover's car door, did they say some-
thing to you before you did that?" and Boyer replied
"No." I credit Smoyer's account of this incident. How-
ever, I infer from the surrounding circumstances, and
particularly the fact that Janice Stover laughed about the
incident, that Boyer did not utter a serious threat to pull
her out of the car or otherwise to inflict physical harm
on her. At the very least, the record fails preponderantly
to establish such a threat. Moreover, in view of the sub-
stantial discrepancies between the discharge reasons
given by Hinnegan and the accounts of Boyer's conduct
given by Respondent's witnesses, I do not believe that
Respondent has sustained its burden of showing that it
acted in the good-faith belief that Boyer seriously said
she was going to forcibly remove Stover from the car.
Accordingly, the burden rested on Respondent to shoAw
that Boyer did this, and Respondent has plainly failed to
discharge that burden.
c. Brenda Collins
The Union advised Respondent by letter dated Sep-
tember 6, 1974, that Brenda Collins had been selected as
departmental steward.
Hinnegan initially testified that Respondent discharged
Collins because he and Company President Hart saw her
"picketing in such a fashion that she would block cars
from entering or leaving the plant and she would work
in concert with others to keep the cars held in place for
a period of time by parading in front of them and not
getting out of the way. She slapped cars a few times
with her open hand." Hinnegan also initially testified
that Respondent discharged her for the additional reason
that he had reports from other employees that she had
blocked their cars. Hinnegan further testified that on the
picket line Collins did a lot of shouting, leaning, and
looking in car windows, but he did not recall whether
such conduct had any connection with the discharge de-
cision. Later, he testified that she was also discharged
partly for banging on the door of nonstriker Harry
Otto's house, putting up a sign on his property saying
that he was a scab, and parading in front of his house.
The January 9 officers' meeting named Collins as a
picket captain. She picketed about 4 days a week. She
picketed quite frequently during the day and sometimes
during the night shift's departure. Grant and Hinnegan
credibly testified that, when picketing, Collins regularly
blocked cars by walking slowly in front of them. Grant
credibly testified that she obscured the drivers' side
vision by standing off to the side (see supra, part
II,D,7,a), and that she made obscene gestures. Hinnegan
credibly testified that she slapped cars a few times with
her open hand.
1093
I)I'LCISI()NS ()F NArIO)NAL I.AI()KR RKLLAI IONS BO()ARD
Inlmployce Blruno testified that, during the February 27
incident described previously, Collins was one of the
pi ckets u, ho allegedly tried to push Marburger's car
ba ck,l iard. Not-l of the other witnesses who teslified
1:it)o1 this illNl cid1 ll ilnionlTed Collins. I accept Collins'
den ial that she was involved ill this incident.
Iinploycr MlcDl)onald testified that, on an unspecified
daile, Collins tIlresC a snowball "pretty hard" at McDon-
ald's car as it w;as uioving "riot very fast" into the road.
(Collmis testified that she could not "'really" recall hitting
Mcl )onalld's car. I accept McDonald's testimony. Me-
I)onald coul(l iot recall whether the portion of the car
stlru k by the slowvball was the front door or the
WAindow above il. 'I hcre is rno evidence that any da;iage
was don.ll Nonstllrikc (irant credibly testified that Col-
lins rid Othlir pickets hit cars with snowballs, thrown
fronl 5 to 25 feet away, as tile cars were leaving, but that
lie nrvc r saw r ;aIy dalige d(lone. Ile testified that none of
tlie snowball, iihit the front windshield. lie further testi-
fied thi at aill undisclsed number hit the side window on
tite driver's side, butl did riot nale the picket or pickets
wlho were rsspon0sible. Collins credibly testified that she
threw snowhballs ilt cars conting through the picket line,
tlr;ia she hit them "every rance in a while" on the hack or
ont the side, tlhat she rrnev'r hit a car on the w indshield or
on the driver's side xwindow, arid that to her knowledge
slit: danll;lged io calr. She further credibly testified to
snowball fights aniolig the pickets,0'"2 and hetween pick-
els anld nonistrikcrs; ''Snowball fights are fun." On two
occasions, she threiew slush on the windshield of a car
which was stailidig still in the driveway. The slush was
lerinoved by tire car's windshield wipers. Hinnegan's tes-
linioliy does nuot refer to ally of tile incidents discussed in
this paragraph. It is unclear when Mcl)onald reported to
Respondent the inicident s whiich she saw. Grant credibly
testified that, within a few hours after he saw the snow'-
ball-throwinig incidents he testified about, he reported
threm to Ilinnegan or to presidenit Hart's secretary.
Comnpanly counsel stated that Collins was disqualified
for reinstatenlent partly because "one of [her] favorite
activities was to feignl injury by cars as they were leav-
ing the premises, which would be followed by various
threats of suits andl legal charges which were filed
ag!ainst the individuals." I-linnegan testified that Collins
was not discharged for filing a charge in connection with
her injury. IHe did not know whether she was discharged
hecauisc of reports fronm the "people who were involved"
that her injuries were faked. For reasons previously indi-
cated. I credit Collins' testimony that when picketing on
January 28, she was bruised when she was brushed by
nonstriker Iiluterfield's car. Her testimony that she never
spoke to an attoriney about this incident stands undenied.
Thele is no other record evidence even tending to show
thait she feigned injuries or threatened lawsuits (see infra,
fn. 404).
Around midday on an undisclosed date during the
strike, Union Representative Unger, Collins, and employ-
ee I ongacre came to the home of nonstriker Harry Otto.
lInger brought signs with him saying, "Harry Otto is a
" C op ella .. rtrA ,w ar s'i tr ih i r2..~im onyrrr urus Crr'dibIy icstirfi a ituh thu
p i 1k c l iih rc rr .u, r ts ll . r u nrim ir r.'p rcsrruiarirus L e ..r r arr
scab." The women knocked on his door and/or rang the
doorbell. but nobody answered. Then, Unger put one of
the signs on Otto's porch, and the other in a bush on the
side of his house. After leaving Otto's house, the three
went to the house of nonstriker Bowman, where they
walked up and down the block once, for about 5 min-
utes. with signs saying, "Lou Bowman is a scab." They
then left such a sign leaning against his porch. Collins
testified that they engaged in this action because Otto
and Bowman were bringing other people across the line.
Employee Bruno, who observed the Otto incident and
part of the Bowman incident, credibly testified that she
reported both of them to Company President Hart's sec-
rctary. Hinnegan testified that he received a report from
truno about the Otto incident. His testimony does not
refer to the Bowman incident.
d. Ann Copella
On September 6, the Union notified Respondent that
Copella had been selected as a member of the negotiating
committee and as a departmental steward. She served on
the committee and made one unsuccessful attempt to
process a grievance (supra, part II,E). As previously
found, 4 days before the strike, Respondent issued her a
warning notice which was really motivated by her union
activity (supra, part l,Ej,5.)
HIinnegan testified that Respondent discharged Copella
for "blocking the egress and ingress of vehicles trying to
leave the plant in concert with others; and she beat on a
truck three times that I saw, and one of the times it was
reported to me, and that's basically it. I believe there's
other testimony that I can't recall, now." Hinnegan fur-
tiher testified that Copella is "a fine person." Upon Co-
pella's request for a letter to assist her in looking for an-
other job, Hinnegan wrote a letter, dated July 21, 1975,
which read in part:
To whom it may concern:
During the course of the strike, a number of jobs
were filled by the hiring of replacements and by in-
ternal transfer of employees on the active payroll.
Employee Copella's job was one of the ones affect-
ed. She has not been called back to work as of this
date.
Hinnegan testified that Copella was discharged for will-
ful misconduct, and that the document did not so state
because "I didn't think it would be proper to put it on
there.... I just didn't think it was necessary in a docu-
ment of that type to put unsolicited information in
there."
Copella's picketing shift was 6 to 10 a.m., and she
picketed most mornings, but did not picket throughout
these hours. In addition, she occasionally picketed in the
I1((4
HAROWE SERVO CON1TROLS, INC
afternoon.40 3 She blocked cars on every day that she
picketed until the March 7 injunction, and when picket-
ing at shift-change time, obscured drivers' vision by
standing off to the side (supra, part II,D,7,a).
Respondent's May 1975 letter to Board Agent Ma-
clasky stated that Copella was discharged partly because
of "her feigning being injured by employees' cars on Jan-
uary 27 and 28, 1975 while they were trying to cross the
picket line. In one instance, this was followed by a letter
from her attorney to the driver requesting that he con-
tact his liability insurance carrier." Hinnegan's initial tes-
timony did not mention any of these considerations.
Later, he testified that Copella was not discharged be-
cause she filed a charge in connection with her injury.
He was unsure whether she was discharged because of
"reports of the people who were involved" that her inju-
ries were faked. There is no evidence that Copella
feigned any injury on January 27, nor does the record
contain any letter from her attorney to the driver. 40 4
For reasons previously indicated, I have found that
Copella was in fact hit by a car on the picket line on
January 28, and that in consequence of this injury, she
used a cane for 3 or 4 weeks afterward. I credit her testi-
mony that she did not like to use the cane,40 5 and con-
clude that this dislike partly motivated her using the
cane intermittently, rather than constantly.40 6 Moreover,
401 She testified that she came to the picket line "a few times" in the
afternoon, but the south gate incident aside, did not picket at such times
Hinnegan testified that she frequently picketed in the afternoon For de-
meanor reasons, I conclude that she understated the frequency of her
afternoon picketing, and Hinnegan overstated It.
404 Respondent's post-hearing memorandum states, after the sc-
currence of the alleged accident. John Butterfield. who allegedly hit Mr,
Copella with his car. received a letter dated the same day as the sup-
posed incident, January 28. 1975. from an attorney who represented that
he was representing Mrs Copella for the purposes of the accident That
attorney was a union attorney who represented the Union during the
strike. Mrs Copella by her own testimony shows that she was not in
touch with any lawyer that day or for some time after the alleged accl-
dent took place." No record references are cited for any of these asser-
lions. Copella's testimony about the circumstances under which she first
met Attorney Sheller warrants the inference that he was representing the
Union during this period Copella testified that she talked to Union Rep-
resentative Stevens about her accident on the day it allegedly occurred,
January 28, although she did not "think" she then talked to Sheller about
it. Respondent's counsel stated on the record that, on January 28, Sheller
sent letters to Butterfield. Leys. and Chambers stating that Sheller "rep-
resented certain individuals for personal injuries sustaited as a result of
striking of an automobile" on January 28. The General Counsel stated on
the record that he accepted this representation as to the contents of these
letters. Respondent's counsel then stated on the record that he intended
to introduce them into evidence, and that they came to "our" attention
"shortly after" January 28 Union counsel Mauro stated that he had no
involvement at all with the matter, and the record contains no statement
of position from him regarding January 28 letters At the request of Re-
spondent's counsel, a purported letter from Sheller to Butterfield on
behalf of Slifer, Copella, and Collins was marked for identification as
Resp. Exh 113. This document was bound by the court reporter into the
exhibit folder, but was never offered into evidence When shown this
document, Collins testified that she had never seen it before and had
never previously been aware of its existence Copella testified that she
did not remember reading this letter. When asked whether she asked
Sheller to write it, she replied that she did not remember seeing it
4oS She credibly testified that her husband insisted that she walk with
the cane.
406 She did not hase her cane with her at the time of the February 21
south gate incident, about 3-1/2 weeks after her injury. whenl she was
present at the picket line solely because she had given a lift to Graysron
just before the south gate was suddenly opened She credibly testified
the victim of bad bruises of the kind she suffered may
genuinely feel that she needs a cane on some days but
not others, on long walks but not short ones, late in the
day but not earlier, and shortly after the injury but not
after a lapse of time. Furthermore, although appearing to
be a vigorous woman, Copella also seemed to be in her
early 60's. Accordingly, I do not regard the intermit-
tence in her use of the cane on the picket line as im-
peaching her testimony that she was in fact injured, or as
pointing to an intention by her to use it as a weapon
rather than as assistance in walking. On the other hand, I
do infer from Grant's and Hinnegan's testimony that on
occasion she did seek to dramatize her injury, or justify
extending the period during which her picketing blocked
cars, by appearing somewhat lamer than she really was.
Hinnegan testified that one morning during the second
or third week of the strike (that is, between February 3
and 14), Copella used her cane to hit nonstriker Richard
Orkis' pickup truck "very hard," once on the side and
once in the rear, as it passed through the line. Still ac-
cording to Hinnegan, the cane made a loud noise but did
not dent the truck. Hinnegan further testified that, on
two occasions during the following week (that is, be-
tween February 10 and 21), Copella took "sideswipes"
or "slapped" at Orkis' truck with her cane, on one occa-
sion while it was moving through the picket line and on
the other while it was stopped by the pickets. Hinnegan
admitted that, when testifying on February 28 during the
contempt proceeding, he mentioned only the first inci-
dent. Grant testified that on one occasion he saw her hit
the bed portion of Orkis' truck once with her cane as the
truck started to go out the gate, but Grant did not re-
member her hitting Orkis' truck with a cane on any
other occasion. Copella testified that she might have hit
Orkis' car with her cane accidentally on one occasion,
but never did so deliberately. For demeanor reasons, and
in view of Hinnegan's admission that on February 28,
1975 (more than a year before the unfair labor practice
hearing), he testified only about the first alleged incident
and did not advert to the more recent incidents which
had allegedly occurred less than 3 weeks earlier, I credit
Grant's testimony; discredit Copella's testimony that her
single blow was unintentional; discredit Hinnegan's ver-
sion of the first incident he testified about, to the extent
it conflicts with Grant's; discredit Hinnegan's uncorro-
borated testimony as to the two subsequent alleged inci-
dents; and credit Copella's testimony that the latter two
alleged incidents did not occur.
Grant testified that, during the first 2 or 3 days of the
strike, he saw Copella running her hand along the side of
various cars as they were coming in. and right after that
he saw Magic Marker and scrape marks along the sides
of these cars. On cross-examination, he initially testified
that on the first or second day of the strike he saw her
marking on the passenger's side of Richard Smith's car.
Later on cross-examination, he testified that, when
Smith's car halted at the picket line, so many pickets
were around it that "You couldn't tell that there was a
car there," and Grant could not identify it as Smith's car
thatt after Fehruary 21 she used the cane "Once itn i while if I could
reslt my leg. I w as all right"
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until the pickets had moved out of the way. Grant fur-
ther testified that, when Smith's car came out of the
driveway into the parking lot, Grant could see a red
Magic Marker mark on the passenger's side of Smith's
gold-colored car, and when Grant inspected the car after
it had been parked, Grant saw for the first time that the
side of Smith's car also had a scratch less than an eighth
of an inch wide. He did not testify which kind of mark
he ascribed to Copella. Later on cross-examination,
Grant testified that picket Rossi had marked Smith's car
with a red Magic Marker, that Grant had seen this mark
before Smith's car left the driveway, and that the only
Magic Marker mark on Smith's car was a red mark,
which appeared to have been made continuously, on the
passenger's side of Smith's car. I accept Rossi's denial
that she did this. Grant further testified that Smith later
removed the Magic Marker mark with a polishing com-
pound. Respondent's brief states that Copella marked
cars with an "ink marking object." In view of the inter-
nal inconsistencies in Grant's testimony about the matter,
and for demeanor reasons, I accept Copella's testimony
that, except for her cane, she never caused anything
other than her person to come into contact with any ve-
hicle. Hinnegan did not testify that Copella was dis-
charged for any of the alleged conduct discussed in this
paragraph.
Company Counsel Oliver stated that Copella was dis-
qualified from reinstatement partly because of "threats of
violence." There is no evidence that she engaged in such
conduct, and she credibly denied it.
e. Anita Grayson
There is no evidence that Anita Grayson ever occu-
pied any union office. She ran for the executive board,
but was apparently defeated.
Hinnegan testified that Respondent discharged Gray-
son for picketing in concert with others in such a fashion
as to block the entering or leaving of cars, for banging
or slapping cars with her open hand, and for creating a
traffic hazard on several occasions by stepping out into
the street as cars were leaving and entering Respondent's
premises. Respondent's May 1975 letter to Board Field
Examiner MacLasky states that she was discharged be-
cause, inter alia, on several occasions she feigned injury
from nonstrikers' cars which were driving through the
picket line, and because she dropped nails on Respond-
ent's driveway. There is no evidence that Respondent
ever contended on any other occasion that she feigned
injury or dropped nails, and no evidence that she ever
did so or that Respondent ever had any reason to sup-
pose that she did.
Grayson was scheduled to picket every other day
from 10 a.m. to 3 p.m. However, almost every day
during the strike except weekends, she picketed at other
times as well. She blocked cars by walking slowly in
front of them as they were coming in. She directed ob-
scenities at nonstrikers as they cross the picket line, but
Hinnegan did not testify that such conduct entered into
the discharge decision.
On about six occasions, mostly in February, Grayson
and other pickets surrounded or tried to surround a car
which they thought was going through the picket line
too fast. Grayson and other pickets slapped the car
(Grayson with the side of her fist, usually with two
gloves on, and others with an open palm), sometimes
kicked it (Grayson did this on two occasions), screamed
at the driver to slow down, and screamed at Hinnegan
for not compelling the driver to do so. The occupants of
the cars were frightened and/or angry. The cars were
undamaged. Grayson testified that the pickets took this
action because "they were coming in too fast or ... too
close or making obscene gestures or whatever." Hinne-
gan initially testified that on two of these occasions he
himself thought the drivers had come too close to the
pickets, but he then said that he did not think the drivers
were in error at any time when Grayson was involved.
For demeanor reasons, I credit his initial testimony.
Hinnegan testified that, on two occasions during the
week beginning March 4, he saw Grayson step 4 to 6
feet from the curb in the middle of the right lane of
Westtown Road, a two-lane highway 25 to 30 feet wide,
at the point where nonstrikers' cars were making a right
turn from the company driveway, thereby forcing these
south-turning cars to turn into the northbound lane in
order to avoid hitting her. Still according to Hinnegan,
on the first of these occasions a northbound car uncon-
nected with Respondent had to swerve off the road onto
the shoulder, which is 6 feet wide and at that point is on
a slope. Hinnegan went on to testify that there were no
accidents as a result of these two incidents. Maintenance
department employee Grant, who on Respondent's
instructions videotaped cars coming in or out at the be-
ginning and end of daytime shifts throughout the strike,
testified as a company witness that he had never seen
Grayson on the road. In view of Grant's testimony and
demeanor reasons, I credit Grayson's denial of these two
incidents testified to by Hinnegan.
Grant credibly testified that she obscured drivers'
vision by standing off to the side (supra, part II,D,7,a).
Her conduct in connection with the south gate and the
February 27 incidents is summarized supra, part II,D,5-6.
f. Rita Hillard
There is no evidence that Rita Hillard in fact occupied
any union office, although Hinnegan testified that he
thought she did. Hinnegan testified that Respondent dis-
charged Hillard because "I saw her picket in such a fash-
ion as to block cars from moving in or out. She would
stand and dance in front of them and jump up and down
in front of them and effectively block them for periods
of time in concert with others and sometimes by herself.
She would move out in front and do a little jig and . . .
block the car." He further testified that Respondent dis-
charged Hillard for the additional reason that he had re-
ceived reports that she had damaged "a" car by scraping
it along the side with a metal object. Initially, he could
not recall any other incidents which led to the discharge
decision. Later, he testified that Hillard was discharged
partly for marking cars or a car with a Magic Marker.
As to her conduct on the picket line, Hillard testified
that, when a car drove in or out, she and the other pick-
ets on her picket shift (7 a.m. to noon on alternate
1096
HAROWE SERVO CONTROLS. INC
days) 407 would walk across the driveway and back at a
slow pace, and then would let the car go through. Her
testimony in this respect was substantially corroborated
by maintenance department employee Grant, who testi-
fied on Respondent's behalf, and by Hinnegan's testimo-
ny at one point, "She was in concert with others parad-
ing in front of cars and, on occasion, slow down and, on
other occasions, stop in front of cars and picket very
slowly and [on] some occasions block cars." To the
extent that her and Hinnegan's testimony differ, for de-
meanor reasons I credit her. Also, she credibly testified
that, on one occasion, she briefly put her hand on a car
that was using the "wrong driveway," but removed her
hand on the orders of a sheriffs deputy. Grant credibly
testified that she obscured drivers' vision by standing off
to the side (supra, part 11,D,7,a).
Employee Bob Bischler testified as follows: At noon
on a particular Saturday when he worked a half-day, he
saw Hillard next to the company driveway with a metal-
lic object in her hands. As he started to drive out into
the road, she turned her back to his car and he heard a
loud crack beside his ear and then a scraping noise.
When he got home, he found a very thin grayish mark
going down the left side of his car. The paint was unda-
maged and he could have removed the mark, but he did
not try to do so, it "didn't even bother me, really"; and
the following week, he junked the car, a 13-year-old
Ford, because its steering mechanism failed inspection
and the car itself was worth only $100. At the time he
drove out of the driveway, Hillard was the only person
to the left of his car.
Hillard denied scratching Bischler's car. For demeanor
reasons, I credit Bischler's version of the incident, and
infer that Hillard scratched Bischler's car. The record
fails to show when management learned about this inci-
dent.
Employee Grant credibly testified that, on I day
during the first 2 or 3 days of the strike, he saw Hillard
stand on one side of Respondent's driveway as non-
strikers came in. On direct examination, he testified that
he saw her physically touch the sides of entering cars by
swinging her hand loosely back and forth; on cross-ex-
amination, he testified that she touched the cars by hold-
ing her hand stationary against the sides as the cars
drove by. On cross-examination, but not direct examina-
tion, he testified that he saw her using a Magic Marker
pen on the sides of the cars. He further testified that he
knew she was marking the cars because he checked some
of them in the parking lot that same morning. On direct
examination, he testified that he saw such marks on 10
cars in the lot, and "I wouldn't say that she marked all
ten, but she was running her hand down the side of a lot
of cars coming through." On cross-examination, he testi-
fied that he did not remember how many cars she
marked, or any specific car that she marked. I do not
credit Grant's testimony that he saw Hillard touching the
cars or using a Magic Marker on the sides of the cars,
for demeanor reasons, because of the internal inconsisten-
cies in his testimony, and because I think he was too far
away from her (somewhat less than 25 yards) to be able
407 She failed to picket for periods totaling 2 or 3 weeks.
to observe whether she was actually touching the cars or
holding a Magic Marker. Rather, as to the incidents testi-
fied to by Grant, I accept Hillard's denial that she
touched or marked cars.
Hillard credibly testified that she yelled "scab" at non-
strikers, and that on one occasion during the second
week of the strike, she wrote "scab" in the dust on a
company van and two private cars. No contention is
made that she was discharged for this conduct.
On direct examination, Hinnegan testified that, while
he was near the company driveway or the private drive-
way (both leading to Westtown Road) on the first day of
the strike, he saw employee Rossi hand something to
Hillard, and that thereafter he received complaints from
nonstrikers that three or four cars had been marked with
Magic Markers and three or four had been scratched to
the bare metal. On cross-examination, he testified that, on
the first day of the strike, he observed Rossi and Hillard
blocking cars and engaging in like activity, that this was
all he saw Rossi do that day, and that he did not recall
that Hillard did anything else that day. Rossi denied that
she had any Magic Markers with her on that day, denied
giving anything (except a picket sign) to any other picket
on that day, and testified that after a few moments near
these Westtown Road driveways that morning, she was
sent to picket at a driveway leading into the plaza from
Market Street, which is at right angles to Westtown
Road. For demeanor reasons, I discredit the foregoing
testimony by Hinnegan about Rossi's and Hillard's con-
duct, credit the foregoing testimony by Rossi, credit Hil-
lard's denial that she marked cars with a Magic Marker,
and (as to the incident testified to by Hinnegan) credit
her denial that she scratched cars.
Nonstriker Honor French testified that on "quite a few
days" Hillard used the side of her fist to bang the car
window nearest French's seat, as the car in which she
was riding crossed the picket line. French testified that
Hillard did not damage the car, and that Hillard's con-
duct "stopped when an injunction was taken against
them to stop them from beating on the cars." (I infer
that French was referring to the March injunction,
rather than the one issued on the first day of the strike.)
Hillard testified that, with exceptions not material here,
she never touched any cars. For demeanor reasons, I
credit French. Hillard credibly testified that she picketed
every day the first 3 days of the strike, thereafter no of-
tener than every other day, and missed 2 or 3 weeks al-
together; in other words, she picketed an absolute maxi-
mum of 21 days (including weekends) between the begin-
ning of the strike and the March injunction. French testi-
fied that she reported such conduct to Hinnegan. He did
not testify that Hillard was discharged for banging a car.
Night Shift Supervisor Houff testified that about 11:45
p.m. I night in mid-March, he saw Hillard and Rossi
placing something every inch or two in a ditch along the
shoulder to the road into which the company driveway
led. Still according to Houff, he saw them stoop "in
places." Houff went on to testify that, about an hour
later, when he made his nightly trip to sweep nails out of
the driveway, the ditch was full of galvanized roofing
nails sitting on their heads. Houff identified the nails as
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constituting Respondent's Exhibit 103E, which all parties
stipulated was given to Hinnegan on March 17, 1975.
Houff further testified that he told Hinnegan that Hillard
and Rossi had placed some of these nails in the drive-
way, but Hinnegan did not testify that anyone ever told
him that these two women had placed nails or testify
that they were discharged for placing nails. Rossi testi-
fied that the only time she ever placed nails in the drive-
way was in early March, and that Hillard was not with
her on that occasion (infra, part lI,D,7,k.) For demeanor
reasons, I accept Rossi's and Hillard's denial of Houffs
testimony about the nails. 4 0 8
About the middle of the strike, Rita Hillard threw two
snowballs at the car of nonstriker Elsie McDonald while
the car was stopped 25 to 35 feet away from Hillard and
was waiting to get into the driveway. The first one
missed; the second one hit the rear car window above
the trunk. Hillard was angry at the passengers for work-
ing during the strike, and threw the snowballs "pretty
hard," but did not damage the car. Hinnegan did not tes-
tify that the snowball incident played any part in the dis-
charge decision, nor was this incident mentioned in Re-
spondent's May 1975 letter to NLRB Agent Maclasky
or, so far as the record shows, in the unemployment
compensation proceeding.
Houff testified that two nonstrikers reported to him on
an unspecified date that as they turned into the driveway
Hillard had jumped off the curb with a bottle in her
hand, screaming at them and swinging it as if she were
going to hit the windshield. Houff further testified that
he relayed this report to Hinnegan, but Hinnegan did not
refer to this incident. I accept Hillard's denial that any
such incident occurred.
Company Counsel Oliver stated that Hillard was dis-
qualified from reinstatement because she took license
numbers. Hinnegan did not testify that Hillard was dis-
charged for such a reason, Respondent did not so state in
its May 1975 letter to NLRB Agent MacLasky, and
there is no evidence that Respondent so contended
during the unemployment compensation hearing. There
is no evidence that she engaged in any such conduct, or
that Respondent's management had any reason to sup-
pose that she had.
Before the strike, Respondent's nurse had kept in Re-
spondent's refrigerator some allergy medicine purchased
by Hillard, and had used it to administer shots to her.
After the strike began, Respondent advised her that the
nurse would continue to administer the shots if Hillard
would present herself at the nurse's office. This offer was
not conditioned on Hillard's returning to work. Hillard
did not accept the offer.
g. Betty Jo Hughes
In September 1974, the Union advised Respondent that
Betty Jo Hughes had been selected as a departmental ste-
ward, a job which she held until the strike began. She
was also elected sergeant-at-arms of the local. She went
out on strike the first day of the strike, and continued to
4'O Hillard testified that she picketed with Rossi on 2 nights, that Hil-
lard was there the whole time Rossi was there, and that Hillard never
saw Rossi place any nails. Rossi testified that she picketed a total of 3 to
5 nights, all but one of them in March.
strike and picket until the end of the strike. The January
9 officers' meeting named her to the welfare committee.
She was in charge of breaking up wood for the fire bar-
rels which the pickets placed off to the side of the drive-
ways in order to keep warm. In addition, during the last
few days of the strike, she was in charge of scheduling
the pickets on alternate days on her picket shift. She also
answered the telephone at the trailer, a half-mile from
the plant, which served as the strike headquarters. She
was present at the picket line when Respondent's plant
opened up on the first day of the strike. During the early
part of the strike, the hours of her picket shift were such
that they did not coincide with either the beginning or
the end of any employee's work shift. However, during
the latter part of the strike she was at the plant on two
or three occasions when the day shift began and on one
or two occasions when it ended.
Hinnegan testified that Respondent discharged Hughes
for picket line conduct observed by himself and Compa-
ny President Hart-namely, picketing in such a fashion
as to block the entrance or exit of cars, and leaning
against and standing in front of cars and blocking them
from entering or leaving-and because of reports from
other employees, whose identity he could not recall, that
she had made "damaging marks on a car" with lipstick
and/or a lipstick container. Respondent's May 1975 letter
to Board Field Examiner Maclasky states, inter alia, that
she "struck and marked with red lipstick the car of a
non-striking employee."
As to Hughes' picket line conduct, Hinnegan testified,
"She picketed along with the others and, in some cases,
in a fashion that caused cars to be blocked from going in
or going out... . She wasn't a loud person vocally. But
I must say that when she arrived, she stirred things up a
little bit; was a very super-active type person. It seemed
like the picket line got more active when she arrived on
the scene." Hinnegan initially testified, without corrobo-
ration from any other witness, that he saw Hughes
blocking cars during the south gate incident (supra, part
II,D,5), but on cross-examination, he admitted that he
did not personally observe such conduct. On rebuttal,
Hinnegan testified for the first time that on an unspeci-
fied date an unidentified salesman had reported to him
that the salesman had been told by the "picket line" that
he could not use the company driveway, so he had
driven in by the private driveway. Still according to
Hinnegan, the salesman further reported that, when he
was driving into the plaza, Hughes "was up against his
car and shouting things at him not to go through and so
forth," and he thought she was responsible for a deep
scratch on the back of his car. Hinnegan's testimony as
to the salesman incident was not received to show the
truth of the matter asserted. Company Counsel Oliver
stated that Hughes was disqualified from reinstatement
for "marking on automobiles ... and doing physical
damage to cars"; but the salesman incident is the only
such incident as to which there is any record evidence.
Hughes testified that, during the first week or two of
the strike, when a car approached the picket line during
her picketing shift, six pickets would walk in a circle in
the driveway until each picket had made a complete
1098
HAROWE SERVO CONTROLS, INC.
circle, after which they all left the driveway and the car
could go through without the risk of hitting anyone. She
further testified that, toward the end of the strike, the
pickets would go off the picket line at shift-changing
time "to cut down on the humiliation." She testified that,
while she was picketing, the trash truck regularly came
into the plant and then left with the trash. Also, she testi-
fied that, while picketing, she called "scabs" to people
who were driving across the picket line, and told them
to go home, they were taking bread out of her children's
mouths. She further testified that, one afternoon, she
wrote "scabbo" with her finger in the dirt on the back of
a company vehicle as it paused at the picket line. She
denied ever writing anything else, on a vehicle coming
through the picket line, with her finger, a lipstick, or any
Magic Marker; slapping, pounding, or kicking any vehi-
cle coming through the picket line; or in any other way
coming into physical contact with any car coming
through the picket line. As to the salesman incident, she
testified that the salesman became impatient at the pick-
eting in the company driveway, attempted to drive in
through the private driveway but was blocked by the
pickets, and eventually drove in through the company
driveway after the pickets had made most of their cus-
tomary circle in that driveway. She testified that she did
not notice a scratch in his car; that he did not say any-
thing to her about the matter; and, in effect, that she did
not scratch his car.40 9 She further testified that she was
not present during the incident at the south gate. For de-
meanor reasons, I credit the testimony of Hughes sum-
marized in this paragraph.
h. Patricia Murrey
There is no evidence that Patricia Murrey occupied
any union office. Hinnegan testified that Respondent dis-
charged Murrey for "picketing in such a fashion that I
observed on a number of occasions that caused cars to
have a problem getting in and out and by blocking and
the nature of the picketing activity," and because Murrey
"struck" employee Sharon Firlein. Murrey did not tes-
tify.
Hinnegan credibly testified that Murrey picketed in
the morning, at lunchtime, and on Saturdays. Still ac-
cording to his credible testimony, he saw her "block cars
and stand in front of them and picket slowly," but did
not see her doing anything else.
Firlein credibly testified as follows: On the second day
of the strike, as she was turning into the plaza entrance
from Market Street, her car was blocked by a group of
about 10 pickets, including Murrey, Roundtree, and Ste-
vens. After about 30 seconds, they cleared the way. She
started to drive through the gate, whereupon one or
more of the pickets (she did not know which) pounded
her car once, hard. She drove into the premises, pulled
her car over, got out, and yelled, "Who pounded?"
Murrey yelled back, "Try to find out." Firlein, who had
started to walk toward the pickets, said it would be use-
less to try to find out. The pickets came up to meet her
409 As noted, with exceptions not relevani here, she denied ever
coming into contact with any car coming through the picket line The
parties stipulated that, if asked, she would specifically deny scratching
the salesman's car
and stood around her. Pickets Murrey and Roundtree
yelled that Firlein was taking food out of their mouths
and money out of their pockets, that they had a right to
be there, and that they would have a job and the non-
strikers would not. The other pickets called Firlein
names and said that she would not have a job the next
day. By this time, the pickets were around her, with
Murrey directly in front of Firlein and Roundtree well
toward the back. Murrey, who is more than a head
shorter than Firlein and was wearing mittens, adminis-
tered two or three hard pats to Firlein's cheek and dared
Firlein to hit her back. These pats humiliated Firlein but
did not hurt her physically. She said that she was not
going to hit Murrey back. Meanwhile, Stevens was push-
ing his body against Firlein's as if he were trying to get
her to move. Some of the pickets (but the record fails to
show that Murrey or Roundtree did this) kept yelling
names and obscenities. Finally, the pickets (probably in-
cluding Murrey, but not Roundtree so far as the record
shows) said, "Why don't you leave?" Firlein said that
she would, and started to walk toward her car. Some of
the pickets (but the record fails to show that Murrey or
Roundtree did this) yelled "scab" at Firlein as she
walked back to her car. Firlein then got into her car,
drove to the plant, and went inside the building. Before
entering the plant, she was "mad," but when she got into
the building she became "upset" (as she credibly put it,
"that really didn't hit me until I got in the building and
realized what had happened"). She went into the ladies'
room, where she stayed about 15 minutes and cried.
When Operations Vice President Rado heard that she
had been crying, he called her to his office, where she
told him what had happened. She had no subsequent
confrontation with Murrey.
My findings in the foregoing paragraph are based on
Firlein's testimony. Roundtree testified that Firlein was
not stopped by the pickets, that they yelled at her to
slow down, and that after parking her car Firlein went
all the way back to the gate. Still according to Round-
tree, Firlein then "jump[ed] in Pat Murrey's face" and
yelled at her, whereupon Stevens got between the two
women and "politely" told Firlein, "Why don't you just
get in your car and go to work?" On direct examination
Roundtree testified, but on cross-examination he denied,
that Firlein berated Murrey for scratching Firlein's car.
Because of these inconsistencies and for demeanor rea-
sons, I credit Firlein.
Hinnegan testified that at Murrey's unemployment
compensation hearing, which was held on October 2,
1975, he heard Murrey testify that, before this incident
happened, Firlein (who is white) called Murrey (who is
black), a "nigger." 4 ° Still according to Hinnegan, he
then asked Fitlein about the matter, and she said that she
ino Hinnegan later testified that he did not ask Flrlein whether this
epithet had preceded or followed the slaps administered by Murrey, and
that he did not know which had provoked the other, although he vwas
under the impression that the slaps had come first He could not recall
Murrey's testimony about the sequence at the unemployment compensa-
lion hearing The decision of a referee of the Pennsylvania Unemploy-
ment Compensation Board of Review state, that -"a a result of a racial
slur made to [Murrey] while she was pickcling. [Murrey struckl a co-em-
ployee who made the racial slur."
1099
DECISIONS OFt NAtIONAL LABOR RELATIONS BOARD
had made some comment about the matter. Hinnegan
testified that in April 1975 he had been unaware that Fir-
lein had made that kind of statement. Firlein denied di-
recting this or any other racial epithet at Murrey, and
denied telling Hinnegan that Firlein had called Murrey a
"nigger." For demeanor reasons, I conclude that Firlein
did direct this epithet to Murrey, and did tell Hinnegan
that she had done so. I make this finding notwithstanding
Murrey's failure to testify at all and Stevens' failure to
testify about this incident. Although Roundtree (who is
black) did not testify to any such epithet, on Firlein's
credited testimony he might have been out of earshot.
i. Geoffrey O'Flynn
O'Flynn was the president of the Union, was a
member of the union negotiating committee, and was
named as shop chairman in the Union's September 6
letter to Respondent. He conducted most of the adminis-
trative end of the strike. He assigned picket captains, reg-
ulated picket shifts, had picket captains set up picket
shifts, purchased coffee, arranged for a place for the
trailer used as a strike headquarters, had telephones in-
stalled, oversaw the picket line as much as he could,
tried to obtain from the International the funds requested
by the Union welfare committee, and acted as a liaison
between the Union and Hinnegan. He was on the picket
line almost around the clock for the first 2 weeks of the
strike. He was out sick for a few days during the third
week, but was on the picket line for frequent and ex-
tended periods thereafter. He was usually on the picket
line in the morning when the bulk of the nonstrikers'
cars were entering, and in the evening when they were
leaving. On about two occasions, Company President
Earle Hart drove through the picket line at what
O'Flynn considered an excessive speed. On the first oc-
casion, O'Flynn yelled at Hart to "slow down . . . who
does he think he is," whereupon Hart slowed down,
rolled down his window, and said something that
O'Flynn did not hear. The second such incident oc-
curred about the second week of the strike, perhaps after
a contempt petition was filed against O'Flynn. On this
occasion, Hart said, "O'Flynn, you're going to get yours.
. You're going to jail."
Hinnegan testified that Respondent discharged
O'Flynn because "he banged on cars, he picketed in
front of cars in such a way as to block their entrance or
exit. He kicked cars, he cursed at people, he threatened
people, [he] wielded a blackjack on the picket line" and
he participated in an automobile-ramming incident dis-
cussed infra. Hinnegan went on to say, "There are prob-
ably other incidents which will be testified to, that or
some of it .... All of the reports that we received
played a part . . ... and the reports that we received will
be testified to."
Company Counsel Oliver stated that O'Flynn was dis-
qualified for reinstatement because, inter alia, he "was
seen on the picket line openly threatening employees by
writing down license numbers and writing down other
information with respect to people coming in and out of
the picket line." There is no evidence that O'Flynn en-
gaged in such conduct, or that Respondent had any
reason to suppose that he had, or that Respondent ever
contended on any other occasion that he engaged in such
conduct.
Respondent states in its post-hearing memorandum,
without attaching a record reference to this sentence,
"On the occasions that Mr. O'Flynn did not engage in
. . .blocking activity [on the picket line], he was off to
the side of the company driveway, clearly conducting
and directing the activities." Because Respondent never
(so far as the record shows) previously contended that
he was discharged for this reason, Respondent must pre-
ponderantly show that he in fact engaged in this conduct
(supra, part lI,D,8,c(l)). Grant testified that O'Flynn
"More or less [helped] to direct the picketers." Howev-
er, Grant could not hear what O'Flynn said, and did not
otherwise tender any specific basis for his testimony in
this respect. I regard Grant's testimony as insufficient to
show that O'Flynn in fact directed others to engage in
blocking or other improper activity. Respondent's coun-
sel stated (although he may later have withdrawn) the
contention that O'Flynn was discharged partly because
he failed to take action as union president when others
misconducted themselves (see supra, part II,B,8,C infra,
part 11,D,8,c (I). O'Flynn never told any pickets not to
come back, that they were not welcome on the picket
line, because they were not conducting themselves prop-
erly.
Hinnegan credibly testified that, on the first day of the
strike, O'Flynn "was taking part in all of the general ac-
tivities. He was blocking cars and moving from drive-
way to driveway." Hinnegan further credibly testified
that, until March 7, O'Flynn was on the picket line just
about every day, and he picketed the same way as the
others. Nonstriker Grant credibly testified that, on the
picket line, O'Flynn "would be walking in front of the
cars, taking the short steps, not getting all the way past
the car and then turning around and going right back
again. And, when the cars were let out, he would stand
at the side to more or less block their vision to make it
very difficult to let the cars get out" (see supra, part
lI,D,7,a). Grant further testified that most of the pickets
engaged in such activity.
Hinnegan testified that, on several occasions the first
day of the strike, O'Flynn as well as other pickets leaned
their knees on nonstrikers' cars and put their hands on
the hood. For demeanor reasons, I credit such testimony
over O'Flynn's denial. O'Flynn did not deny Hinnegan's
testimony that O'Flynn did this on subsequent occasions
whose numbers and dates Hinnegan did not give.
Hinnegan testified that, on the first day of the strike,
O'Flynn banged cars with his hands. Grant testified that,
on an occasion the first 2 or 3 weeks of the strike,
O'Flynn pounded nonstriker Butterfield's car with his
fists. 4 11 O'Flynn testified that, about the middle of the
strike, after Supervisor Bruno Thomas hit him on the
picket line with his van, O'Flynn banged on the door on
the driver's side, and probably yelled something to him.
O'Flynn initially testified that he did not believe he
slapped any other cars. However, his credited testimony
(see below) shows that, on February 24, he pounded on
i"1 As found vupra, part 11.D,24. on the second day of the strike But-
terfield hit strikers Collins and Colella with his car.
1100
HAROWE SERVO CONTROLS, INC
the car of a driver who had brushed two pickets while
going through the picket line at what O'Flynn regarded
as an excessive speed. Over O'Flynn's denial, I accept
Hinnegan's testimony that O'Flynn banged cars with his
hands on the first day of the strike, and Grant's testimo-
ny that O'Flynn later pounded Butterfield's car.
Grant credibly testified without denial that, through-
out the strike, O'Flynn hollered and shook his fist at
nonstrikers and directed obscene gestures to them. Pro-
duction Supervisor Sweitzer credibly testified, without
denial, that O'Flynn often walked up to cars and made
obscene gestures. From time to time, O'Flynn yelled at
the nonstrikers "scab," "S.O.B.," "You will get yours,"
"We will see that you get taken care of," and similar re-
marks.4 12 Nonstrikers directed obscenities toward
O'Flynn. 413
Hinnegan further testified that "once in a while"
O'Flynn would shake his fist at Hinnegan; and that on at
least one occasion, which date he did not give, O'Flynn
said that he knew where Hinnegan lived. For demeanor
reasons, I credit Hinnegan in this respect, and to that
extent discredit O'Flynn's testimony that he never made
any threats to Hinnegan.
Nonstriker John Wojcik testified that, on the first day
of the strike, as he was driving his car through the picket
line, he was watching in the left outside rear view mirror
and saw O'Flynn kick Wojcik's car. Wojcik testified that
the thud was hard enough to be felt throughout the car,
but the kick did no damage and the kick itself did not
frighten him, although he was frightened at the time be-
cause of the number of people in the area and the "feel-
ing generating from the area." Still according to Wojcik,
he asked O'Flynn why he had kicked the car, and
O'Flynn replied, "Well, I felt like it." O'Flynn testified
that, as Wojcik's car was passing through the picket line
on the first, second, or third day of the strike, O'Flynn
heard a thump; that he was about the last person that
Wojcik's car would go by; and that after pulling up his
car, Wojcik obscenely yelled at O'Flynn about leaving
Wojcik's car alone, to which O'Flynn replied by telling
him to get back in the car, shut up, and go to work.
O'Flynn testified that Wojcik picked O'Flynn to yell at
because he was the only male in the driveway, and that
O'Flynn was not the only person near that part of the
car. O'Flynn testimonially denied kicking Wojcik's car,
but did not testify that he made any representations of
innocence to Wojcik. I accept Wojcik's version of the in-
cident.
Hinnegan testified that "quite often" O'Flynn, in a fit
of temper, would kick and pull at the shrubbery in the
center of the company driveway, that on one occasion
he pulled out a big chunk of it, that he and other pickets
eventually wiped out the shrubbery, and that replacing
the shrubbery on both sides cost $500. Hinnegan further
testified that, on an undisclosed date, someone whose
identity he did not know carved O'Flynn's initials or
name on a table in the room where the parties were con-
412 This finding is based on a composite of the undenied testimony of
O'Flynn and Hinnegan.
4'3 This finding is based on O'Flynn's testimony Hoswever, for demea-
nor reasons, I accept Grant's denial of O'Flynn's testimony attributing
such language to Grant.
ducting negotiations, and where the union representa-
tives were sometimes by themselves.4 t 4 O'Flynn did not
deny engaging in such conduct. Hinnegan did not testify
that either incident played any part in the discharge deci-
sion.
The evidence relating to O'Flynn's conduct during the
south gate incident is summarized supra, part 11,D,5.
Respondent's May 1975 letter to NLRB Agent Ma-
clasky stated that O'Flynn was discharged partly because
he struck the window of an employee's car with an ice
ball. At the hearing, Respondent did not advert to this
allegation until putting on its rebuttal with respect to the
misconduct issue, at which time Company Attorney Pen-
tima stated that Respondent was contending that
O'Flynn was discharged in whole or in part because he
threw a snowball or ice ball at the car of employee Mary
Bishop. Bishop testified that, as she was leaving the plant
across the picket line about the middle of the strike,
O'Flynn hit the corner of her windshield on the driver's
side with an ice ball or a frozen snowball, "Pretty hard,
because it made us jump." Bishop stated that her car was
moving slowly at that time. The car was not damaged.
Still according to Bishop, she reported this incident to
Hinnegan. For demeanor reasons, I credit Bishop over
O'Flynn's somewhat equivocal denials.
Hinnegan testified that, on an undisclosed number of
occasions, when Hinnegan told the pickets that they
were breaking the law in certain respects and asked
O'Flynn or Stevens what to do, O'Flynn "would get
very upset and ill-tempered at that and rattle off some
statement, 'Why don't you shut your what's-a-naming
mouth,' or 'I'll shut it for you,' and this type of thing."
O'Flynn testified that Hinnegan told him a few days
before the strike about his responsibilities to the pickets
and about leading them down the garden path, and that
he should think about what he was doing and possibly
reconsider his actions; that after the strike began, Hinne-
gan repeatedly made deprecating references about
O'Flynn's ability to conduct himself and the pickets; and
that he "many times" responded by telling Hinnegan "to
stick it in his ear, or shut up and mind his own business,
and that [O'Flynn] would just rather not say anything to
him at all." O'Flynn further testified that it was "highly
possible" he used some obscenities, but that he did not
say he would knock Hinnegan's brains out. To the extent
that their testimony in this respect may differ, for demea-
nor reasons I credit O'Flynn.
Hinnegan testified that, on an undisclosed number of
occasions which dates he did not give, when he and
Company President Hart were standing near the picket
line, O'Flynn said he would beat their heads in. For de-
meanor reasons, I accept O'Flynn's denial.
Hinnegan testified that, on the first day of the strike,
on several occasions he saw O'Flynn drop onto the hood
or the fender of nonstrikers' cars. Hinnegan further testi-
fied that, on the morning of January 27 or 28, he saw
O'Flynn flop on the hood of a nonstriker's car which
41' Hinnegan also testified that, on occasion, when the union repre-
sentatives were the last to leasve the room. Respondent later found out
that the thermostat had been turned full open Hinnegan did not know
who did this, and Respondent has never contended that it suas O'Flynn
1101
DECISI()NS O() NATIONAL LABOR RELATIONS BOARD
had stopped at the picket line, roll off, and then act as if
he had been struck by the car. Still according to Hinne-
gan, when O'Flynn saw him and Hart standing there,
O'Flynn straightened up and his limp disappeared.
O'Flynn is a former policeman who retired in 1971 on a
partial disability pension because in March 1970 he was
shot twice while on duty. He still has a bullet lodged in
the first cervical vertebra of his spine. His doctors told
him that a severe blow could possibly dislodge it and,
while the dislodgement might not be fatal, it would more
than likely cause paralysis. In consequence, O'Flynn
cannot play rough sports and is not permitted to lift a
heavy object or stand or sit for any extended periods of
time. At the time of the strike, he was 29 years old and
had a wife and three children 6 to 10 years old. In view
of his physical condition, family responsibilities, and age,
I think it unlikely that he lay or flopped on the hood of a
car and that he rolled off. I credit his denial that he did
so.
Hinnegan and plant engineer Frank Cross, a supervi-
sor, both testified about an incident where O'Flynn alleg-
edly dropped nails on the company driveway. Hinnegan
did not testify that this incident motivated O'Flynn's dis-
charge. Respondent's post-hearing memorandum asserts
that Cross and Hinnegan were testifying about the same
incident. Cross testified that this incident occurred about
4:45 p.m. in about the second week in March, and that it
occurred during the normal 5-day workweek. Hinnegan
testified that it occurred on Saturday, March 22, on a
date when O'Flynn was probably out of town. Cross tes-
tified that he saw O'Flynn, who was wearing coveralls
and had his hands inside them, move his hand and then
shake his pants leg. Still according to Cross, he saw a
clump of at least five nails drop from the bottom of
O'Flynn's coveralls to the ground, a distance of 6 or 7
inches, and saw O'Flynn move at least three nails, by
using his feet, into a heads-down position at a location in
the asphalt driveway. Cross testified that, when observ-
ing this activity, he was about 85 feet from O'Flynn and
on a level with O'Flynn's legs. Cross testified that these
nails were the same kind as a flat-headed, 1-1/4 inch gal-
vanized roofing nail received into evidence as a part of
Respondent's Exhibit 103 e, but a little shinier; and that
when he saw these nails, they were lit up by the late
afternoon sun behind him. Cross further testified that he
then went out to the area and used a magnet to pick up
one or two dozen nails, most of which were roofing nails
of the kind previously described, and 6 to 10 of which
were standing on their heads in a straight row right in
the middle of the driveway. On direct examination, he
testified that after picking up the nails, he took them in
and gave them to Hinnegan. On cross-examination, he
testified at one point that Hinnegan went out to the
driveway with him; then that Hinnegan arrived at the
driveway a little bit after. Cross and either while Cross
was picking up the nails or after he had already picked
them up; then that after the incident he went right to
Hinnegan and told him about the incident, at the same
time turning in the nails Cross had collected; and then
that Hinnegan came out about 20 seconds after Cross.
Cross further testified that he did not see O'Flynn drop
any nails (or, implicitly, straighten any) after Cross ar-
rived with the magnet, and that O'Flynn was on the
curb at all times when Cross was physically in the drive-
way. Hinnegan testified that he reached the driveway
before Cross did, and that Hinnegan saw O'Flynn plac-
ing nails in the driveway and leaning over to put them
on their heads. Cross testified that Stevens was present, 8
to 10 feet from O'Flynn, and Hinnegan that he did not
recall seeing Stevens although he could have been there.
Cross also testified that, when he was collecting the
nails, O'Flynn said, in Hinnegan's presence, that Cross
was being overpaid for just picking up nails. Hinnegan
did not refer to this remark. Hinnegan testified that,
before Cross arrived on the scene, Hinnegan said, "You
don't even care if somebody stands there and watches
you do that, then?" and O'Flynn said no and shrugged
his shoulders.
O'Flynn testified that, on one cold evening, he saw
Hinnegan looking at the picket line from the plant vesti-
bule. Still according to O'Flynn, for the purpose of en-
ticing Hinnegan to come out in the cold, O'Flynn and
Rossi made motions as if they were dropping nails, but
did not in fact drop any. O'Flynn went on to testify that
Cross did come out and pick up nails, but they were
nails up out of the driveway by the fire barrel and not
roofing nails. Rossi, who was present during this incident
according to the testimony of Cross, Hinnegan, and
O'Flynn, testified, "We used to harass Mr. Hinnegan by
playing like we were putting nails down and straighten-
ing them up with our feet and all that; and then, they
would be coming out with their little magnet . . . and
they would pick up nails; but I mean like the nails they
would pick up would be the ones laying along the curb
in front of the barrels, bent, rusted.... They weren't
placed."
If Cross' testimony is accepted, Hinnegan could not
have been accurate when he testified that he saw
O'Flynn dropping and straightening nails. Furthermore,
as shown, as to other particulars their testimony conflicts
or is not mutually corroborative; Cross' testimony is in-
ternally inconsistent as to when (if ever) Hinnegan was
present; and Cross' testimony about being able to see the
nails from 85 feet away seems unlikely. For the forego-
ing reasons and demeanor considerations, I accept
O'Flynn's and Rossi's version of the incident and dis-
credit Cross' and Hinnegan's. In view of the credible tes-
timony that there were in fact no nails in the driveway
proper, I need not and do not consider how the incident
should be handled under Burnup and Sims, 379 U.S. 21,
if Respondent had found such nails after O'Flynn and
Rossi had pretended to drop them.
Nonstriker Thomas Riale credibly testified as follows:
On a Thursday or Friday evening in late February, 4 's
he, his fiancee, and another couple went for a ride in a
Volkswagen "beetle." Riale was seated in the back, di-
rectly behind the driver, who owned the car. Riale was
the only company employee in the car, but on two or
three other occasions the driver had driven Riale's sister,
who works for Respondent, across the picket line. At or
about 9 p.m., as the car was going north along Westtown
41 Int view of other evidence, I infer that the incident occurred on
Thursday. Fehruary 2()
1102
HAROWE SERVO CONTROLS, INC
Road near the picket line, the driver tried to throw a
raw egg at the picket line, but accidentally broke it
inside the car. The passengers tried to clean off the egg
by using a damp rag, but inadvertently left some eggshell
in the car. They then drove toward the picket line area
again. As they approached, an unknown person threw a
can at the Volkswagen, but missed. Riale then threw a
raw egg through the window next to the driver, who is
6 feet I inch tall and weights 200 pounds. The egg hit
Union Representative Ledsome. As the car stopped for a
red light at the intersection of Westtown Road and
Market Street, Riale turned around and saw Ledsome
and another individual run across Westtown Road and
get into a 1970 or 1971 light blue Plymouth. Riale initial-
ly testified that he thought Ledsome was on the passen-
ger's side, but later testified that Riale was not sure. The
Plymouth chased the Volkswagen on a circuitous route
for about 15 minutes at speeds up to 50 miles an hour, at
one point making a U-turn and coming toward the
Volkswagen on the wrong side of the road, and eventu-
ally rammed the Volkswagen three times in the rear,
pushing in the hood of the engine, "messing up" the
bumper, and knocking off the idle arm. The Volkswagen
then drove into a randomly selected private driveway
near the back porch of a private home. The porch was
lighted, and the kitchen light may also have been on.
When asked whether this area was well lit, Riale replied,
"No. Well, the direct area where on the car was well lit.
You could see things around you." The Plymouth
parked on the street, about 25 yards from the Volks-
wagen. The two occupants of the Plymouth ran to the
Volkswagen, where Ledsome stood on the driver's side
(where Riale was sitting) and the other man on the pas-
senger's side. They screamed at the Volkswagen passen-
gers to get out, but the passengers stayed in the car. Led-
some had a lead pipe in his hand, and the other man had
a heavy-duty chain 12 to 18 inches long. They smashed
the back window, then the two side windows in the
back, and then the passenger window. Then, Ledsome
and the other man again told the Volkswagen passengers
to get out of the car. The two women got out. When the
driver opened up the door, Ledsome grabbed the driv-
er's shirt. The driver knocked Ledsome's hand away.
Ledsome told the men in the Volkswagen to get out of
the car, because Ledsome and the other man were going
to beat them up. They said no. Ledsome and the other
man said that they would have beaten up the men in the
Volkswagen if the women had not been with them. One
of the two men from the Plymouth (Riale was not sure
which, but thought it was not Ledsome) said that they
were lucky, and if either of the "two guys" crossed the
picket line, they were going to "get it." The two men
from the Plymouth then drove off. The Volkswagen oc-
cupants were "shook up" but not hurt.
After the arrival of the police, and while still at the
scene, Riale and the other Volkswagen occupants wrote
out what Riale described (at the hearing before me) as a
"wrong" statement which made no reference to the egg-
throwing. When examined at the hearing by union coun-
sel, Riale could not remember whether this statement
mentioned O'Flynn's name. Riale did testify, however,
that the Volkswagen occupants gave the police the
names of Ledsome and O'Flynn, and further testified
without objection that the next day "the cops" said that
"they went to their house that night and didn't neither
one showed up."
Initially, and before Riale testified, Hinnegan testified
that he inspected the Volkswagen the day after the inci-
dent, and either later that same inspection day or on the
next day, police officer Loane told him that Loane was
looking for O'Flynn and Ledsome. Hinnegan believed
that he knew where O'Flynn was, but could not recall
whether he told this to the police. On cross-examination,
Hinnegan testified that the first he heard about the inci-
dent was when police officer Fleck told him about it
either late the night of the incident or early the next
morning (that is, before Hinnegan inspected the Volks-
wagen) and said that the police "were looking for
O'Flynn and Ledsome, and his car." On rebuttal, and
after Riale had testified about telephone conversations
with Hart's secretary and Hinnegan (see infra), the day
after the incident and before Hinnegan had inspected the
Volkswagen, Hinnegan testified that he first became
aware of the incident when, the day after it happened,
Riale's sister, a company employee, said that her brother
was not coming to work that day because of a picket line
incident in which he and some friends were chased by
"somebody" or "four people" (whom she did not name)
and had their car smashed up.4 ' Hinnegan went on to
testify at this point that he then telephoned Company
President Hart about the matter, and after that tele-
phoned the police; that Hinnegan was referred to Fleck,
whom Hinnegan asked about Riale's "altercation": and
that Fleck replied "there was an all points bulletin out on
Jeff O'Flynn, Bill Ledsome and a search was being made
for Jeff O'Flynn's car and they had not found either of
them yet."
That same day, Hart's secretary telephoned Riale that
his sister had told her what happened. Hinnegan then got
on the telephone. He asked Riale to come in, but Riale
did not want to. Hinnegan wanted to take pictures of the
car, and the two agreed to meet at West End Towing
Company, where the Volkswagen had been towed.
During this conversation, Hinnegan did not ask Riale
what happened.4 1 7
Later that day, Hinnegan and Company Attorney
Oliver met at West End Towing with Riale, his fiancee,
and the driver. The driver took photographs of the car,
prints of which Riale later obtained from the driver and
gave to Respondent. Also, Riale told Hinnegan and
Oliver about the incident. Riale testified at one point that
he told them that he knew Ledsome was one of the two
men, but "wasn't sure about Jeff O'Flynn. whether it
was his car."-4 I Hinnegan testified that, during this con-
4R In viear of this evidence, and Riale's testimony that he worked
only 5 days a week, I infer Ihat the Volksv, agen incident .occurred on a
Thursday rather than a Friday
4': My findings about this Riale-Hinnegan conversation are based on
the testimony of Riale. whom for demeanor reasons I regard as a more
reliable witness then Hinnegan as Ito this matter Filnnegan's testimony
implies that the meeting at West End Towing ",as a chance enciunler
"' Immediately after so testifying. wuhen asked whether Riale told
Hlnnegan Ihat he was nolt sure it wais ()'Flynn, Rlale testified. "I don't
(' ntilnued
1103
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
versation, Riale identified the assailants as O'Flynn and
Ledsome. Hinnegan testified that the occupants of the
Volkswagen told him that the chase resulted from a
verbal exchange between them and the pickets as the
Volkswagen drove by. Riale credibly testified that there
was no such exchange. Hinnegan denied that he saw any
traces of any eggs on the Volkswagen, and denied that
the egg-throwing was mentioned during the conversation
at the towing yard. Riale credibly testified that the
Volkswagen still contained an eggshell, and that the
Volkswagen occupants told Hinnegan about the egg-
throwing. A little while after this conversation, Riale
went down to the police station and gave a second state-
ment. After that day, Riale never again talked to police
about the facts of the case. When asked whether Hinne-
gan had suggested making another statement to the
police, Riale testified, "Not that I know of... I don't
remember that." When asked what Hinnegan and Oliver
told him to do, Riale testified, "I don't remember if they
said to do anything."
The Volkswagen incident occurred on Thursday, Feb-
ruary 20 (infra, fn. 420). On Saturday, February 22, or
Sunday, February 23, as O'Flynn was driving his bright
blue and white 1972 Plymouth (see infra, fn. 419) toward
the picket line, he was waved down by police officer
Loane. O'Flynn parked his car and got out. Loane asked
him where he had been, how he had got his car fixed so
fast, and where the car had been. O'Flynn asked why
Loane was asking all these questions, and what O'Flynn
was supposed to have done. Loane replied that a car had
been smashed into and some people beaten up, and
Loane had been given a description of Ledsome and
O'Flynn and of O'Flynn's car, including the first 3, num-
bers of his license plate.4 '9 (Riale credibly testified that,
on the night of the incident, nobody got the Plymouth's
license number because the car's lights were turned off
as it left.) O'Flynn told Loane, truthfully, that no
damage had been inflicted on the front end of his car at
any time since he acquired it in 1972, and invited Loane
to have the car towed into a police garage and arrange
for a complete examination of the car. Loane said that
the police department in O'Flynn's community had told
him that O'Flynn's car had not been at his residence for
3 days.42 0 O'Flynn replied that his car had been there at
night. During this conversation, Loane looked inside of.
underneath, and at the front and rear of the car, and also
looked at the grillwork, without finding any front-end
damage or, so far as the record shows, any damage any-
where else.
On an undisclosed date prior to February 28, the
Volkswagen passengers asked Hinnegan about a lawyer
to file criminal charges, and consulted the one whom
remember now." When then asked whether Hinnegan told Riale that it
was O'Flynn, Riale replied, "I don't remember.. . It's possible " Hinne-
gan denied so advising Riale.
4'l In view of Loane's remarks and the fact that the first three num-
bers of the license plates differ, I infer that O'Flynn was then driving his
bright blue and white 1972 Plymouth rather than his 1963 Oldsmobile of
an unspecified hue.
420 In view of the uncontradicted evidence that Loane made this
remark on Saturday or Sunday. February 22 or 23, and the evidence
(suprra fn. 416) that the Volkswagen incident occurred on a Thursday, I
infer that it occurred on Thursday, February 20
Hinnegan suggested. Charges which Riale never saw
were filed against Ledsome and O'Flynn. A few days
after O'Flynn's conversation with loane, another
member of the police department told O'Flynn that he
would probably be arrested soon. Later, while the Feb-
ruary 28/March 3 injunction proceeding was in progress,
O'Flynn heard that the police were looking for him. He
telephoned officer Loane, who came down to the court-
room with a warrant for O'Flynn's arrest. Thereafter,
O'Flynn and Ledsome were fingerprinted, mugged, and
arraigned. When O'Flynn testified before me in June
1976, some 14 months after the incident, he had heard
nothing more about the matter. Riale had been told by
the judge's secretary that the preliminary hearing had
been postponed or canceled.
An insurance company paid the Volkswagen driver
$700 to repair his car. The record fails to show whether
the insurance company ever attempted to collect this
sum from Ledsome and/or O'Flynn. Following the inci-
dent, Riale stayed away from work for 3 or 4 days, at
least partly to calm down his fiancee. Respondent paid
him for this period (cf. supra, part I,D,12,jj). 4 2 1 After re-
turning to work, he saw O'Flynn and Ledsome on the
picket line every once in a while. About a week after re-
turning to work, Riale saw the car which had pursued
him, parked on or near company premises. The car had
what appeared to be a new front left quarter panel and
headlight assembly, and the paint had been touched up.
Hinnegan testified that, after inspecting the damaged
Volkswagen, he observed the picket line on a fairly reg-
ular basis, but did not see O'Flynn for "some days there-
after." Elsewhere, however, Hinnegan testified about
O'Flynn's picket-line conduct on February 21 (the day
after the Volkswagen incident) and on Monday, Febru-
ary 24. In addition, when asked on direct examination
whether there was a period of time when O'Flynn ab-
sented himself from the picket line for several consecu-
tive days, and what might have occurred at the time,
Hinnegan replied, "I heard he was arrested"-an event
which occurred no earlier than February 28, more than a
week after the Volkswagen incident. Hinnegan further
testified that he never asked O'Flynn whether he had
been involved in the incident, although the two frequent-
ly conversed on the picket line. Respondent's May 1975
description of this incident to Board Agent Maclasky
avers that the Plymouth occupants "referred to a firearm
in O'Flynn's possession." There is no evidence that any
such remark was made or was reported to Respondent.
Riale testified on direct examination that the second
man in the car was O'Flynn. On cross-examination, he
testified that he had never met O'Flynn until Riale start-
ed crossing the picket line, which was less than 3 weeks
before the Volkswagen incident occurred. Then, when
asked whether he recognized O'Flynn as being in the
courtroom, Riale testified, "I'm not really sure about
421 Riale had been hired in February 1975, less than 3 weeks before
this incident occurred He was never told that he was going to be a per-
manent employee When testifying in June 1976, he was still working for
Respondent
1104
HAROWE SERVO CONTROLS, INC.
O'Flynn, and he was on the passenger side 4 2 2 the whole
time, and I was on the driver's side . . . I think that's
him right back there. But I didn't get a good view of
O'Flynn." At that moment, he pointed to one John
Bowders, a Board agent. 4 2 3 Later, he testified, "I was
sitting in the back seat. I couldn't get a good view of'
O'Flynn. He then testified as follows:
Q. [By Mr. Glickman] If you never got a good
view of Mr. O'Flynn how do you know it was Mr.
O'Flynn?
A.... Well, my friend knows him. He's seen
him before and it was F'e car and I seen him driving
his car before.
Q. I m asking you how do you know that was
N:,. O'Flynn.
A. I caught a glimpse and it looked like him.
Q. You caught a glimpse of him and it looked
like him.
A. Right. Because when we were riding around,
you know when he was coming at us, I wasn't wor-
ried about seeing who it was. I was worried about
trying to get out of the way of their car coming at
us.
Similarly, he later testified that he could not get a good
view of the man he thought was O'Flynn, "Because I
wasn't real worried about seeing who they were. We
were just trying to get away .... At the time, I didn't
really think about [who they were]. We were just trying
to think of which way to go."
I accept O'Flynn's denial that he was the second man
in the pursuing Plymouth, and conclude that Riale was
mistaken in his testimony to the contrary. In so finding, I
rely on (1) Riale's admitted uncertainty on cross-exami-
nation about whether the second man was O'Flynn; (2)
the fact that the incident occurred after dark; (3) the lim-
ited periods during which Riale had an opportunity to
observe the second man; (4) the physical barriers to his
observation (the second man's location, after the car
stopped, on the opposite side of the car from Riale; the
Volkswagen's wide pillars and small windows in the
rear, where Riale was sitting; the eventual crazing of
much of the window glass after it had been hit; and the
large size of the driver in front of Riale); (5) Riale's rela-
tive unfamiliarity with O'Flynn; (6) Riale's misidentifica-
tion; (7) O'Flynn's uncontradicted testimony that Loane's
inspection showed no damage to O'Flynn's bright blue
and white 1972 Plymouth; (8) Riale's testimony that the
front end of the car which pursued him had been re-
paired; and (9) O'Flynn's demeanor. I also give some
weight to Riale's description of the pursuing car as a
light blue 1970 or 1971 Plymouth rather than a bright
blue and white 1972 Plymouth. While he did give the
1970 and 1971 model years as alternatives, and had little
opportunity to look at the car carefully while it was
chasing him, he got a good look at it a few days later,
after it had been repaired, and he testified that he had
some experience with working on cars. Also, for demea-
422 That is, the passenger's side of the Volkswagen after it had parked
in the driveway
42n At that time. O'Flynn was not in the courtroom The two men
bear a general resemblance to each other. but are not remarkabhl alike
nor reasons I credit O'Flynn's testimony that he had
been on the picket line around the time he talked with
officer Loane about the condition of his car, and I dis-
credit Hinnegan's contrary testimony, which is inconsist-
ent with other testimony by him.
Hinnegan, Grant, Rossi, and O'Flynn all testified about
an incident where a nonemployee drove back across the
picket line after picking up a female employee. 4 2 4 Hin-
negan testified without contradiction that this incident
occurred on February 24. On the basis of a composite of
credible portions of their testimony, I find that the fol-
lowing occurred: The car drove out, at what O'Flynn
and Rossi regarded as an excessive speed, and brushed
against Rossi and another female picket. 4 2 5 Rossi hit the
car once with her umbrella. 4 29 O'Flynn banged against
the side of the car with the side of his fist, without dam-
aging the car, and yelled at the driver to slow down. 4 2 7
Hinnegan, who was about 15 feet away, 42 8 made a dep-
recating remark about the Rossi's use of her umbrella,
and Rossi told him that the car had hit her. 4 2 9 The
driver drove his car across Westtown Road, parked,
jumped out, and walked back to O'Flynn. The driver
was young and thin; was well over 6 feet tall; wore a
motorcycle jacket, motorcycle boots, and a black peaked
cap; and had a heavy chain hanging out from under his
jacket. 4 3 0 The driver screamed and cursed at O'Flynn,
and yelled at him not to touch the car. O'Flynn replied
that he just wanted the driver to slow down in order not
to hurt the women pickets.4 3 ' O'Flynn, who is about
average height and build, credibly testified that he was
physically afraid of the driver. After this conversation,
the driver went back to his car and drove away.
Hinnegan testified that, as the driver approached
O'Flynn, O'Flynn pulled out a blackjack. Hinnegan ini-
tially testified that O'Flynn pulled it out from under a
jacket he was wearing, and that O'Flynn repeatedly
"brandished" the blackjack, holding it above his head
and waving it. Later, after O'Flynn had testified that he
424 Grant testified that he was "pretty sure'" this incident occurred in
the morning. but the principal basis for his testimony swas that the vehicle
drove in and out
42s This finding is based on Rosi's and O'Flynn's testimony I do not
credit Hinnegan's testimony that the car did not brush Rossi Hinnegan
testified that the driver accelerated a little as he started through the line.
but expressed the opinion that his speed was not excessive
426 This finding is based on Hlnnegan's testimony. in effect corroborat-
ed by Rossi's testimony that, after reading a newspaper report that she
"beat" the car with her umbrella. she telephoned the newspaper reporter
that "heat" means to strike repeatedly and "hit" to strike a blow. I do not
credit her testimony that the car knocked the umbrella out of her hand
To this extent. I think Grant was mistaken in testifying that. with an ex-
ception not material here. nobody going out through that gate was ever
hit by clubs or umbrellas or anything else
421 This finding is based on Rossi's and O'Flynn's testimony Hinnegan
testified that he heard a "loud crack which was quite different from the
umbrella sound"
42a This finding is based on Hinnegan', tchtimony ParticularlN in .ies
of the testimony of Hinnegan. Rossi, and O)'Flnn that Hirnegan made
various remarks to the other participants in this incident. I do not credit
Rossi's testimony that Hinneganl was 30 to 50 feet asay.
421 This finding is based on Rosi's testinion)
4."' This finding is based nt O('Flylls testimony I do not accept
Rossi'rs eslimony that the driser as i swearing a dungaree jacket. or Hin-
negalln' teslimliony that lie sa1 no chulln
431 My findings in the last iAo sentences are hasled on Rosls, testmo-
ny
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was wearing a slicker 4 32 and company witness Grant
had testified that nobody brandished anything, Hinnegan
testified that O'Flynn "might have" had a raincoat on ("I
thought he had a jacket on [because] it seemed [the
blackjack] came in from around his chest somewhere")
and that O'Flynn did not hold the weapon aloft, but held
it waist high, a couple of inches from his body. Still ac-
cording to Hinnegan, the driver then said, "If you are
going to use that [obscenity], use it. And if you are not,
you had better put it away or I will feed it to you,"
whereupon O'Flynn put the blackjack away. Rossi and
O'Flynn both denied that O'Flynn pulled out a black-
jack. In view of the inconsistencies in Hinnegan's testi-
mony and for demeanor reasons, I credit Grant, Rossi,
and O'Flynn, and discredit Hinnegan's testimony that
O'Flynn pulled out a blackjack and his related testimony
about the driver's remarks and about an alleged Hinne-
gan-Stevens conversation about the alleged blackjack.
Also for demeanor reasons, I do not accept O'Flynn's
uncorroborated testimony, denied by Hinnegan, that Hin-
negan yelled at the driver that O'Flynn had a blackjack,
and the driver thereupon challenged O'Flynn to use it.
j. Regina Paskings
There is no evidence that Regina Paskings held any
union office.
Hinnegan testified that Respondent discharged Regina
Paskings because she picketed "in such a fashion that she
blocked cars from entering and leaving in concert with
others," because she assaulted and struck nonstriker
Leigh Bruton as she was crossing the picket line, and be-
cause Paskings threatened Bruton. The alleged threat
was not mentioned in either Respondent's May 1975
letter to the Board, or in the opening statement by Re-
spondent's counsel. Paskings did not testify.
Hinnegan's uncontradicted and credible testimony
shows as follows: From time to time, Paskings picketed
in the morning, at lunchtime, and sometimes on Satur-
days. She picketed slowly in front of cars and impeded
their progress. On three or four occasions, she blocked
them by failing, in concert with others, to move out of
the way.
Bruton's uncontradicted and credible testimony shows
as follows: After having lunch across the street during
the first week of the strike, she and her supervisor, Bud
Bradford, walked into the plaza area through a point
some distance from the picketed gate. As they neared the
plaza building where they worked, which was a different
building from the Harowe plant itself, Paskings ran up to
Bruton from behind, slapped her ear with the palm of
Paskings' hand, called Bruton a scab, and ran away.
Bruton said, "Ooh, she just hit me," whereupon Brad-
ford, who was about 2 feet ahead of her, turned around
and "kind of laughed." Bruton stopped for a minute, and
then proceeded on her way. She was not hurt, and suf-
fered no swellings or bruises, but her ears rang and she
felt rather shaky for a few minutes. A couple of nights
later, as Bruton was driving out the plant gate on her
way home, Paskings yelled at her to "get out of the car
4:. Hinnegan and others credibly testified that it had been raining ion
and off.
and let's go."4 33 Hinnegan credibly testified that the two
women were about the same size. At this time, Bruton,
who did not then know Paskings' name, pointed her out
to Hinnegan.
k. Catherine Natalie Rossi
Catherine Natalie Rossi, who uses her middle rather
than her first name, was elected chief steward on Octo-
ber 22. She was also a picket captain on her shift-3 to 7
p.m. on alternate days. Early in the strike, she picketed
in the morning. After that, she picketed regularly on her
shift, and toward the end of March began to picket at
other times as well.
Hinnegan initially testified that Rossi was discharged
for "picketing in such a fashion that she would block
cars from moving and block them from entering or leav-
ing the premises," for banging on cars with her open
hand, for leaning against cars, for hitting a car with an
umbrella, and for one incident of throwing snowballs at
cars going through the picket line. He testified that he
himself observed her engage in all of this activity except
snowball throwing. Later, he testified that she was dis-
charged partly because she was "involved" in marking
cars or a car with a Magic Marker. For the reasons set
forth supra, part II,D,7,d, I find that she did not engage
in this latter conduct.
Rossi interfered with the exit and entry of cars by
walking in front of them very slowly. For the most part,
she limited her remarks to calling nonstrikers "scabs"
and saying they should be ashamed of themselves, but on
occasion she shook her fist at nonstrikers, cursed them,
and directed obscene gestures toward them.4 3 4 On the
first day of the strike, she rocked and banged an undis-
closed number of cars. Also on the first day of the strike,
she kicked one car, damaging only her foot and did not
kick any more because such activity hurt her foot. Grant
credibly testified that she obscured drivers' vision by
standing off to one side (supra, part II,D,7,a).
Employee Shea testified that, on one occasion whose
date she did not give, Rossi pounded with the side of her
fist the car being driven by Shea across the picket line.
For demeanor reasons, I credit her testimony in this re-
spect, and disbelieve Rossi's denial. Shea told Hinnegan
or her supervisor about this incident.
Rossi threw one snowball at a nonstriker's car which
was stopped, 40 feet away, for traffic coming down the
road. The snowball hit the door on the driver's side. She
also threw one snowball at a moving vehicle, but with-
out hurting it. 43 5 Grant reported this incident to his su-
periors.
Rossi's activity during the February 27 incident is
summarized supra, part II,D,6.
Hinnegan did not testify that Rossi was discharged
partly for threats on the picket line. However, Company
Counsel Oliver stated that Rossi was disqualified from
4:13 Hinnegan. who was also present. teslified that Paskings said. "1
A.1ll gel you again" For demeanor reasons. I accept Bruton's version
4 4 My findings in this sentence are based on a synthesis of credible
portion,l of the testimony of tlinncgan, Grant arid Ro'ssi
40:¢ Ms finding in this scntetincc is based on a comnposite of Rossi's arid
Grant', testitlmony
1106
HAROWE SERVO CONTROLS, INC
reinstatement because of "numerous" threats. Nonstriker
Grant credibly testified that one evening about the third
or fourth week of the strike, when he was crossing the
picket line, picket Rossi told him not to leave home that
night. 43 6 A few days later, two windows were shot out
of his house with a high-powered BB gun, and oil was
thrown on his car. Grant credibly testified that he re-
ported this incident to Hinnegan or President Hart's sec-
retary. Night Supervisor Houff credibly testified that, on
occasion, Rossi and other pickets would say, "Hi there,
Al, how's the kiddies?" Houff described this remark as
"sort of insinuating," testified that he took it "sort of as
an intimidating statement," but said that he was not
"scared" by it. "I don't scare that easily .... I never
take things like that real serious. I'd rather sit back and
wait until something definite comes up, before I get
shaken." He further testified that he did not expect Rossi
to do anything to his children ("I just passed it off. Some
people, it might have shook them"). Nothing ever hap-
pened or was directed to Houff's children. Rossi credibly
testified that she asked him this question "like a slur" be-
cause he had left his family.
Company Counsel Oliver stated that Rossi was dis-
qualified from reinstatement because "Apparently ...
with respect to writing down information with respect to
license numbers and so forth." There is no evidence re-
garding this matter.
Although Hinnegan gave testimony, which I have pre-
viously discredited, that Rossi put nails in Respondent's
driveway, he did not testify that she was discharged for
nail-placing, and there is no evidence that any such claim
was made at the unemployment compensation hearing.
However, Respondent so alleged in its May 1975 letter
to Board Agent Maclasky, and Respondent's counsel al-
leged at the hearing that such alleged conduct disquali-
fied her from reinstatement. I have found supra, part
II,D,7,f, that one of those alleged incidents never oc-
curred. A composite of Rossi's and Grayson's credible
testimony as to the other incident shows as follows: One
night in early March, after the second-shift lunch break
and before quitting time, Rossi set up nails point up
across the driveway. An unidentified nonstriker then
drove from the plant to the picket line, stopped his car
and remarked, "I guess I have to clean up after you nig-
gers."43 7 He then picked up enough nails to enable him
to drive out without damaging his tires, and drove off.
Thereafter, and still before the shift left, Grayson pointed
out to Rossi that members of management were at the
window watching her. In consequence, she picked up
the rest of the nails. The nails stayed on the ground for a
half hour, during which only the previously mentioned
car drove out.
Rossi is employee McFadden's aunt, and visited her at
the hospital the second day of the strike, the day when
she was hit by a car.
438 For demeanor reasons. I do not accept Rowsi's equivocal denial of
this remark.
4a' Rossi and Grayson are both white No black% were in fact in the
area
1. Randolph Roundtree
On September 6, 1975, the Union notified Respondent
that Randolph Roundtree had been elected a department-
al steward. Roundtree was also the Union's sergeant at
arms and a picket captain on his shift.
Hinnegan testified that Roundtree was discharged be-
cause "he picketed in concert with others in such a fash-
ion that cars were biocked from entering and leaving the
plant and, also, in such a fashion that they were held up
for periods of time by his leaning against them, laying on
them, kicking them, and pounding them with his fist and
he used threatening gestures, threatening remarks, abu-
sive language, obscene language." Later, he testified that
Roundtree was discharged partly for calling people
names.
Roundtree's conduct during the February 21 south
gate incident is described supra, part 11,D,5. His conduct
during the Firlein incident is described supra, part
II,D,7,h. His other conduct is discussed below.
After the first 2 or 3 days of the strike, Roundtree
picketed from 3 to 7 p.m. on alternate days throughout
the strike, except for a week and a half in late February
when he was out of town. On occasion, he may also
have picketed in the mornings. He picketed in such a
fashion as to block cars for 5 to 10 seconds. He was loud
and sometimes shouted "scab" and obscenities on the
picket line. Nonstriker Grant credibly testified that
Roundtree obscured drivers' side vision while they were
exiting (supra, part II,D,7,a), and nonstriker Lyons credi-
bly testified that when her view was thus blocked and
nobody was directing traffic, Roundtree and other un-
identified pickets would yell at her that she could drive
out, at times when there was in fact cross-traffic.
On six to nine occasions, Roundtree placed both his
hands on the hood of a car and leaned into the car, in an
effort to keep it from moving. On two or three such oc-
casions, Roundtree also slapped his hands on the hood
and lay against the car. On one occasion, "Not in the
very beginning, but in the early part" of the strike, he
pounded the car of John Butterfield, without damaging it
so far as the record shows. 43 8
Nonstriker Phyllis Bailey, a rather short woman who
appeared to be in her early 60's, testified that, shortly
after the strike started, as she was crossing the picket line
in the front passenger's seat of a car with three other
passengers and with the window rolled up, Roundtree
banged the window on the passenger's side with the
bottom of his fists and said, "I know where you live. I'm
going to get you." She testified that, shortly after the
strike started, she was called to the company lawyer and
asked to sign an affidavit about the incident. She further
testified that she believed Roundtree was then living in
the same town as she, and that she was afraid because
she lives alone. This incident was denied by Roundtree,
who appeared to be about 30 years old, is 6 feet one and
a half inches tall, and weighs about 265 pounds. For de-
meanor reasons, I credit Bailey.
'"4 My finding in this sentence i baed ion (Gramnl' testmion,, which
for demeanor reasolln I accept iver Roundtree's denial
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daryl Sweitzer, the production supervisor of the rotor
department, testified as follows: On the second or third
day of the strike, when he was transporting a carful of
production workers, he was driving rather slowly
through the picket line when he heard a scratching
sound on the passenger's side of the car. He looked
across the seat, but his view was blocked by the front
seat passenger. Then, Sweitzer heard a scratching sound
on the driver's side. He turned around and saw Round-
tree's body right up against the car, with his hands down
to his sides and not visible. When the car was moving,
Roundtree was the only picket up against it on
Sweitzer's side. After Sweitzer had parked his car, he
saw on the driver's side a rather deep, but short and
narrow, scratch which had gone past the primer, and on
the passenger's side a longer and wider but shallower
scratch which did not completely pick up the bare metal.
Sweitzer reported this incident to Hinnegan and to Hin-
negan's then secretary, and unsuccessfully requested Re-
spondent for a look at the videotapes of this incident.43 9
Sweitzer did not regard the incident as important, be-
cause the car needed repainting anyway.
I regard the foregoing testimony by Sweitzer, if cred-
ited, as preponderantly showing that Roundtree
scratched Sweitzer's car. For demeanor reasons, I credit
such testimony, and to that extent discredit Roundtree's
denial that he ever scratched any cars. Hinnegan's moti-
vation testimony did not refer to this incident.
Hinnegan testified that he once saw Roundtree admin-
ister a "good kick" to the driver's side rear panel of Re-
spondent's station wagon, which was being driven across
the picket line by employee Shea (supra, fn. 342). The al-
leged kick did not damage the car, so far as Hinnegan
could recall. Shea, who was called by Respondent as a
witness, did not corroborate Hinnegan's testimony in this
respect. For this and demeanor reasons, I accept Round-
tree's denial.
Nonstriker Jolene Hagen, who is not a member of the
bargaining unit, testified that, when she drove two other
nonunit employees to work on the first day of the strike,
she was blocked in the driveway by various pickets, in-
cluding Roundtree. She further testified that she saw
Roundtree leaning toward her window on the driver's
side,440 and that other pickets were standing on that
same side. Still according to Hagen, as she went through
the picket line, she heard a scratch being made, and
when she parked the car, she noticed a thin scratch on
the driver's side, from under the back window to the end
of the car. Paint had been removed, but the scratch did
not go down to the bare metal. Hagen testified that she
did not see Roundtree come nearer than a foot from her
car, or with any object in his hand.4 4 ' Hagen, who is
white, testified that she was sure Roundtree was the one
who scratched her car because he was standing there,
and that she remembered him because he was big and
black. Sheal so testified that she reported to Hinnegan
439 The record fails to show whether such a videotape existed.
44' She initially testified that he was "by" the window, then that he
was leaning "on" it. and, finally, that she did not see him touch the car at
all.
,4' She testified that she did not see his hands
that Roundtree had scratched her car. Hagen never had
the scratch repaired.
As to Hagen, I credit Roundtree's testimony that he
did not scratch any cars. In any event, the evidence fails
preponderantly to show that he scratched Hagen's car.
Hinnegan's motivation testimony does not refer to this
incident.
Hinnegan twice testified on direct examination that
Roundtree told him on one occasion, to which he later
attached a February 8 or 9 date, "We will find out
where you live" by following him, and the next day told
him, "We know where you live." When relating this al-
leged incident on cross-examination, he added that on
this second occasion Roundtree said that Hinnegan
"would be taken care of' and that the pickets were
going to rush him on the picket line. Still later on cross-
examination, he testified that Roundtree said, "We are
going to get you," and subsequently said he was "just
funning." Hinnegan further testified that Roundtree told
employees who were crossing the picket line, "We know
where you live and we will get you," (1) "on several oc-
casions"; (2) "a number of times"; (3) "two or three
times"; (4) "At least two or three times"; and (5) "quite
often." Still according to Hinnegan, he heard Roundtree
say, "Guns shoot straight. Arrows shoot straight." Hin-
negan initially testified that Roundtree made the
"arrows" remark to one person whose identity Hinnegan
could not remember, then that Roundtree made this
remark to Hinnegan, and then that Roundtree made this
remark to "people coming through the line." On cross-
examination, Hinnegan specifically testified for the first
time that he heard Roundtree tell employees who were
crossing the picket line that "you won't live through the
night and just about the whole gamut of threats." Hinne-
gan's testimony summarized in this paragraph is wholly
uncorroborated.4 4 2 For this and demeanor reasons, I
accept Roundtree's denial.
8. Analysis and conclusions
a. The alleged procedural bars with respect to Barnett,
Collins, Copella, Grayson, Hillard, O'Flynn, Rossi,
and Roundtree
The Union's April 16, 1975, charge in Case 4-CA-
7348 alleged that Respondent had violated Section
8(a)(l) and (3) by refusing to reinstate certain named em-
ployees (including all those mentioned by name in this
part II,D,8,a) "because of their protected concerted ac-
tivities on behalf of' the Union. Its May 21, 1975,
amended charge in Case 4-CA-7348 alleged that Re-
spondent violated Section 8(a)(l), (3), (4), and (5), "In
addition to and incorporated with the specifications of
the [7348] charge previously filed .... By failing to
recall workers to their old jobs, or substantially similar
positions of employment, because of their protected ac-
tivities on behalf of' the Union. By letter dated August
25, 1975, and bearing the docket number of Case 4-CA-
7348, the Acting Regional Director dismissed portions of
44" While I have credited Bailey' s teslinony that on one occasion
Roundtiee told her that he knew where she lived. there is no evidence
that Hinneganll as then present
1108
HAROWE SERVO CONTROLS. INC.
that charge, stating, inter alia, "The evidence . . . estab-
lished that employees O'Flynn, Rossi, Barnett, Round-
tree, Grayson, Hillard, Collins, and Copella were dis-
charged . . . because of their misconduct during the
strike, and not because of their activities on behalf of the
Union." On August 29, 1975, the initial complaint herein
issued under the Case 4-CA-7348 docket number and re-
citing that it was based on the Case 4-CA-7348
charge.4 43 It alleged, inter alia, that Respondent had vio-
lated Section 8(a)(l) and (3) by failing and refusing to re-
instate certain named employees, other than those speci-
fied in the August 25 dismissal letter, "because said em-
ployees joined or assisted the Union and participated in
the strike."
The Union filed an appeal, not alleged to be untimely,
in connection with this August 25 dismissal letter. By
telegram dated February 9, 1976, and bearing the Case
4-CA-7348 docket number,4 4 4 Robert Allen, the direc-
tor of the General Counsel's Office of Appeals, issued
the following ruling:
Appeal sustained only as to alleged discriminatees
Barnett, Roundtree, Copella, and Collins. With re-
spect to.. .O'Flynn, Grayson, Hillard, [and] Rossi
. . . it could not be established on the basis of the
evidence as a whole that they did not engage in
strike misconduct sufficiently serious as to warrant
the disciplinary action that was undertaken by the
Employer. Further, it could not be established that
the Employer had agreed to forgive the misconduct
with the intent to resume the normal employment
relationship with the employees that had engaged in
such conduct so as to warrant a finding of condona-
tion.
On the Union's motion for reconsideration, as to
which no untimeliness claim was advanced to me, Allen
stated, by letter dated February 27, 1976, "The motion is
sustained. It was concluded that the evidence that the
employer condoned the alleged misconduct of all the
strikers, presented issues warranting Board determination
based on record testimony developed at a hearing . . .
accordingly, this case was remanded to the Regional Di-
rector with instructions to amend the outstanding com-
plaint."
Meanwhile, on October 2, 1975, the Union filed a
charge, docketed as Case 4-CA-7627, alleging that
"Since April 1, 1975 and thereafter, [Respondent] has
. . . refused, and continues to discriminatorily refuse to
recall, reinstate, and rehire employees on the 'preferential
recall list,' and has otherwise discriminated against these
employees because of their protected, concerted activity
on behalf of the" Union.
On January 7, 1976, the Regional Director issued a
consolidated amended complaint bearing the Case 4-
CA-7348 and 7627 docket numbers and reciting that it
14" The complaint was also docketed as Case 4-CA 7215 See infra.
fn. 444.
"4 The telegram also bore the docket number 4-CA-7215 rhis
charge had been filed in January 1975. and amended in February 1975
The Union had also appealed the Regional Director's August 25. 1975.
partial dismissal of this Case 4-CA-72 15 charge
was based on the Case 4-CA-7348 and 7627 charges. 44 5
This complaint, and an amended consolidated complaint
issued on January 15, 1976, and reciting the same docket
numbers, both alleged that Respondent violated Section
8(a)(l) and (3) by failing and refusing to recall, reemploy,
or otherwise reinstate certain named employees (not
named in the August 25 dismissal letter) "because said
employees joined or assisted the Union and participated
in the strike."
On February 9, 1976, the names of Barnett, Collins,
Copella, and Roundtree were added to the January 15
complaint. On March 4, 1976, the names of Grayson,
Hillard, O'Flynn, and Rossi were added.
I find plainly without merit Respondent's contention in
its post-hearing memorandum that, as to these eight em-
ployees, no unfair labor practice finding can be made be-
cause the Acting Regional Director dismissed the Case
4-CA-7348 charge and the Case 4-CA-7627 charge was
untimely. Respondent overlooks the fact that in this re-
spect the Office of Appeals reversed the Acting Regional
Director's dismissal action in Case 4-CA-7348. See
N.L.R.B. v. Monsanto Chemical Co., 205 F.2d 763 (8th
Cir. 1953). Accordingly, I need not and do not consider
whether the October 2, 1975, charge in Case 4-CA-7627
would have sufficiently supported the complaint as to
them.
Respondent also raises the more substantial contention
that, for procedural reasons, any 8(a)(1) and (3) finding
as to Grayson, Hillard, O'Flynn, and Rossi would have
to be based on condonation. Respondent relies on Allen's
February 27 letter in light of his February 9 letter; on
the General Counsel's statement at the hearing, not later
disavowed, that as to these four, "at this time" he was
relying solely on a condonation theory; and on Section
3(d) of the Act, which affords the General Counsel
"final" authority, on behalf of the Board, in respect of
the investigation of charges and issuance of complaints
. . . and in respect of prosecution of such complaints
before the Board."
With some doubt, I conclude that these four are in the
same position procedurally as the others named in the
same paragraph of the complaint. The complaint does
not distinguish between them and the others who never
received job offers, and as to whom no such procedural
limitation is urged. Further, although it is true that evi-
dence tending to support an unfair labor practice finding
not based on condonation is also related to other issues
questionably before me, the fact remains that such evi-
dence was received without objection by the General
Counsel and sometimes even at his instance. Finally, and
most important, Respondent's purpose in ridding itself of
the Union and its supporters forms part of the underpin-
ning for the condonation theory which the General
Counsel urges. Cf. California Pacific Signs, Inc., 233
NLRB 450 (1977). Under these circumstances, I find it
unnecessary to determine whether the Board has the
power to dispose of a case on the basis of a legal theory
urged by the charging party but expressly disclaimed by
the General Counsel, where the charging party relies
44r It also bore the Case 4-CA-7215 docket number and recited that it
was based on that charge too
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solely on evidence relevant to the General Counsel's
case and the theory urged by the charging party does
not lie outside the General Counsel's complaint on its
face. Cf. Piasecki Aircraft Corp. v. N.L.R.B., 280 F.2d
575, 586-589 (3d Cir. 1960), charging party's petition for
cert. denied 364 U.S. 933 (1961); International Union of
Electrical, Radio and Machine Workers, AFL-CIO
[NECO Electrical Products Corp.] v. N.L.R.B., 289 F.2d
757, 760-762 (D.C. Cir. 1960); Retail Clerks Union. Local
137, et al. v. Food Employers Council, 351 F.2d 525, 530,
fn. 3 (9th Cir. 1965); N.L.R.B. v. Pecheur Lozenge, supra,
290 F.2d at 402. In any event, I regard any showing that
Respondent's action against these employees was of the
retaliatory nature ordinarily proscribed by Section
8(a)(1) and (3) as relevant to the appropriate remedy as
to them (see infra, part Il,D,c,(3)). Cf. Piasecki v.
N.L.R.B. supra, 280 F.2d at 586-587.
b. The alleged condonation
As previously found, by letter sent to all the strikers
on March I , Hinnegan stated that Respondent was pro-
ceeding with the replacement of striking employees and
"We sincerely hope that you return to work before you
are replaced. Any employee who desires to return to
work should notify the Company immediately." Also, by
letter to "All Striking Harowe Employees" dated March
21, Hinnegan stated, inter alia, "On March 11th, we noti-
fied each of you that we are hiring permanent replace-
ments for striking employees and that unless you re-
turned to work immediately, all of you would be re-
placed as soon as replacements were available.... Re-
member, during the strike, all the International Union of-
ficials are being fully paid; their jobs are not at stake. It
is most important that You make up your own mindTl--it
is your livelihood that may be lost-not theirs." There is
no evidence that Respondent refused to reinstate anyone
who requested reinstatement during the strike. Further,
in connection with the March 28 "request to return"
forms, sent to and returned by all the dischargees, Hinne-
gan testified that "at that point, everybody on that list
was, as far as we were concerned, eligible to return."
Nor is there any credible evidence that subsequent to
March 11 Respondent acquired any additional informa-
tion about any of the dischargees' alleged misconduct. 44 6
I agree with the General Counsel and the Union that,
by the foregoing conduct and statements, Respondent
condoned such alleged misconduct and, therefore, was
precluded from subsequently relying thereon in refusing
to reinstate the 12 dischargees. I believe this result is re-
quired by The Colonial Press, Inc., 207 NLRB 673
(1973). 44 7 Respondent's March 11 and 21 letters made it
perfectly clear that, if any of the dischargees had chosen
to abandon the strike and ask for reinstatement before
March 21 (that is, before their statutory representative
elected to do so), Respondent would have reinstated him
irrespective of his alleged misconduct. Furthermore, if
448 Hinnegan testified that., as of the March 3 contempt hearing, Re-
spondent had most of the information on misconduct which had occurred
up to that point.
447 Modified 509 F.2d 580 (8th Cir 1975), intervening union's petition
for cert denied 423 U S 33. The Court's opinion is discussed infra. fn.
448
the dischargees had done this, Respondent would by
condonation have lost any right it may have previously
had to rely upon any alleged misconduct previously
known to it as a defense to discharging them N.L.R.B..
v. Cast Optics, supra, 458 F.2d at 404-406; Bentex Mills,
213 NLRB 296 (1974). Accordingly, to accept Respond-
ent's contention that they forfeited the benefits of this
offer by failing to accept it until the end of the strike
would enpower Respondent, during a strike caused by
unfair labor practices which included breaches of its bar-
gaining obligations, to coerce strikers into becoming
strikebreakers by concomitant employer offers to forgive
alleged misconduct if they returned before their bargain-
ing representative wanted to end the strike and enforce-
able threats to use such misconduct to prevent them
from returning if they waited until their bargaining rep-
resentative chose to end the strike. N.L.R.B. v. Colonial
Press, supra, holds that the employer may not lawfully
exert such pressures on participants in a legitimate strike.
See also Winn-Dixie Atlanta, Inc., 207 NLRB 290 (1973);
Union Twist Drill Co., 124 NLRB 1143, 1144-46, 1155-
57 .448
In resisting the condonation allegation here, Respond-
ent relies entirely upon cases where the employees had
engaged in an unprotected or an economic strike. In de-
termining whether condonation has been established in
this class of cases, the principal (if indeed not the only)
factor to be balanced against the employer's privilege to
discharge employees for strike misconduct is the public
interest in the prompt settlement of labor disputes. How-
ever, in assessing the condonation issue here, Respond-
ent's discharge privilege must also be balanced against
the fact that the dischargees were engaging in a strike
authorized by their statutory bargaining representative
and caused by unfair labor practices which included bar-
gaining tactics calculated to drive a wedge between the
employees and their bargaining representative and to un-
dermine the Union's majority support. These same ends
were also furthered by Respondent's tactics in connec-
tion with the reinstatement/misconduct issue. I note,
moreover, Respondent's contention that, notwithstanding
its expressed willingness during the strike to take back
anybody, at the end of the strike the Union could not
make an effective application for reinstatement condition-
ed on Respondent's taking back everybody, but would
have to agree in advance to exclude strikers to be select-
ed by Respondent at some future time, and whose identi-
ty the Union was unable finally to ascertain until more
than 5 weeks after the strike had ended. Furthermore,
the 12 strikers so selected included the Union's president,
its vice president, its sergeant at arms, its chief steward,
'44 In N.L.R.B. v. Colonial Presvs, supra, 509 F.2d at 854-859, a divided
Eighth Circuit found no condonation on the ground, infer alia, that the
employer had lawfully discharged the individuals in question before
making the alleged condoning offer of employment which they refused,
and, therefore. their acceptance would not have rendered them strike-
breakers to any greater extent than any unemployed worker who wished
to work for the employer The majority opinion, however, pointed out
(509 F 2d at 855), "In the normal predischarge condonation setting
such acceptance by the employee is not, strictly speaking, required be-
cause he is still an employee," citing Union Twist Drill. supra, 124 NLRB
1143 In the case at bar, the discharges ,cre admittedly not effected until
after the dischargees executed the request-to-return forms.
II10
HAROWE SERVO CONTROI S. INC
three departmental stewards, and an employee (Hillard)
whom Hinnegan erroneously believed was a union offi-
cer. Their official position with the Union not only
would have made their condonation-induced return
during the strike of particular assistance in undermining
the strikers' morale but also afforded Respondent a spe-
cial reason to want to get rid of them upon their decision
to wait until their bargaining representative wanted them
to return.
As previously found, on March 25, 1975, an effective
application for work was made on behalf of, inter a/ia,
these 12 employees who were later discharged. For the
foregoing reasons, I conclude that Respondent violated
Section 8(a)(1) and (3) by failing to offer reinstatement to
these 12 employees, whose names appear in Appendix C,
infra.
c. The dischargees' reinstatement rights assuming no
condonation
(I) Introduction
My analysis under this part II,D,8,c assumes that Re-
spondent did not condone the misconduct of any of the
dischargees within the meaning of the cases cited, supra,
part lI,D,8,b. Preliminarily, I note that, although all the
dischargees (like practically all the strikers) engaged in
blocking activity on the picket line, Respondent's coun-
sel stated on the record that it was not Respondent's po-
sition that the blocking of ingress and egress, without
more, was sufficient to warrant discharge. Further, I find
that the record fails to show that the dischargees were
conscious participants in a conspiracy to deny non-
strikers, by improper "harassment," their right to work
during the strike. Instead, the record shows that the
Union and the strikers, including the dischargees, em-
barked on their picketing and related conduct as tradi-
tional means of maintaining solidarity among the strikers,
swaying nonstrikers to their cause, and inducing deliver-
ymen and other business visitors not to cross the picket
line. Moreover, the record evidence of misconduct by
nonstrikers, by strikers other than the dischargees, and
by sympathizers with their respective causes, when taken
as a whole leads me to infer that a substantial number of
the participants in this labor dispute (both strikers and
nonstrikers) were more or less apprehensive that their
position in the dispute might endanger the safety of
themselves, their families, and their property. The effect
of particular incidents upon the dischargees' particular
misconduct is discussed in connection with the miscon-
duct in question.
(2) Dischargees entitled to reinstatement regardless
of the nature of the strike (Boyer, Copella, Hughes,
Murrey)
The credited evidence shows that on two occasions
Boyer opened an unlocked door in a car being driven
across the picket line. On one of these occasions, she and
a passenger pulled the door back and forth about three
times in a manner described by the driver as "playing"
or "fooling." The other occasion involved a passenger
who had directed obscenities toward Boyer. On one oc-
casion, Copella hit the bed portion of a nonstriker's truck
once with her cane as it was going through the picket
line. Hughes called "scabs" to people who were driving
across the picket line; told them to go home, they were
taking bread out of her children's mouths; and on one
occasion wrote "scabbo" with her finger in the dirt on
the back of a company vehicle as it paused on the picket
line. While in a group of about 10 pickets, Murrey yelled
"Try to find out" when nonstriker Firlein asked which
picket had pounded her car; yelled that Firlein was
taking food out of their mouths and money out of their
pockets, and that they would have a job and the non-
strikers would not; after Firlein (a head taller than
Murrey) directed a racial epithet at her, administered
two or three hard pats, with mittened hands, to Firlein's
cheek, and invited her to hit Murrey back; and urged her
to leave the vicinity of the picket line. Also, all of these
dischargees impeded the ingress and egress of cars by
walking or standing in front of them, and Copella
blocked existing nonstrikers' vision by standing to one
side.
Even assuming with Respondent that the instant strike
was an economic strike, I do not think that any of these
four strikers engaged in misconduct, in the course of a 2-
month strike, which warranted Respondent in denying
them reinstatement. N.L.R.B. v. McQuaide, supra, 552
F.2d at 526-528 Buitoni Foods Corp., 126 NLRB 767,
782-783 (1960), enfd. 298 F.2d 169, 174-175 (3d Cir.
1962); Terry Coach Industries, 166 NLRB 560 (1967),
enfd. 411 F.2d 612 (9th Cir. 1969); Daniel A. Donovan,
Charles Brennichs and John Brenmick, etc. d/b/a N.ew
Fairview Hall Convalescent Home, 206 NLRB 688 (1973),
enfd. 520 F.2d 1316, 1323-24 (2d Cir. 1975), cert. denied
423 U.S. 1053 (1976).
(3) Effect on the dischargees' reinstatement rights of
the fact that they were engaged in an unfair labor
practice strike.
(a) Introduction
As previously found, the instant strike was an unfair
labor practice strike from its inception. Accordingly, in
determining whether Respondent violated the Act by re-
fusing to reinstate the 12 dischargees on the alleged
ground of alleged strike misconduct, the severity of the
employer's unfair labor practices which provoked and
prolonged the strike must be balanced against whatever
misconduct by each dischargee may have occurred in
the course of the strike. Coronet Casuals, supra, 207
NLRB at 304-305; Lee Cylinder Division of Golay & Co.,
Inc., 156 NLRB 1252, 1263, enfd. in pertinent part sub
nom. Golay & Co., Inc., 371 F.2d 259, 262-263 (7th Cir.
1966), cert. denied 387 U.S. 944 (1967). Furthermore,
even assuming that the employer's refusal to reinstate the
dischargees did not of itself constitute an unfair labor
practice, the Board must nonetheless determine whether
to afford them reinstatement with backpay, as a remedy
for Respondent's unfair labor practices which caused and
prolonged the strike. Local 833. UA W ([Kohler Co.]) v.
N.L.R.B., 300 F.2d 699, 701-705 (D.C. Cir. 1962), cert.
denied 370 U.S. 911, decision on remand 148 NLRB
1434, 1453-54 (1964), enfd. 345 F.2d 748 (D.C. Cir.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
1965), cert. denied 382 U.S. 836; N.L.R.B. v. Puerto Rico
Rayon Mills Inc., 293 F.2d 941, 947 (Ist Cir. 1961); Golay
& Co., Inc. v. N.L.R.B., supra, 371 F.2d at 261-263;
Farmers Cooperative Gin, supra, 389 F.2d at 555;
N.L.R.B. v. Wallick, supra, 198 F.2d at 485; N.L.R.B. v.
Wichita Television Corporation Inc., d/b/a KARD-TV, 277
F.2d 579, 585 (10th Cir. 1960), cert. denied 364 U.S. 871.
The Board "has power under §l(c) to order reinstate-
ment if the discharges were not 'cause' and if such an
order would effectuate the policies of the Act"; and "a
determination that an employee is not engaged in a §7
activity does not necessarily mean that, if he is dis-
charged for his participation in the unprotected action,
the discharge is 'for cause.' That depends on the sur-
rounding circumstances. What is cause in one situation
may not be in another." N.L.R.B. v. Thayer Co., 213
F.2d 748, 753 (Ist Cir. 1954), cert. denied 348 U.S. 883;
Hennepin Broadcasting Associates, Inc., 225 NLRB 486,
499-500 (1976), enfd. 96 LRRM 2585 (8th Cir. 1977),
cert. denied 46 L.W. 3200 (1977). A recent Fifth Circuit
decision indicates that this balancing test is inapplicable
to threats and violence directed, not against manage-
ment, but against fellow employees who did not them-
selves engage in provocative misconduct. Mosher Steel
Co. v. N.L.R.B., 568 F.2d 436. However, neither the
Board nor other courts have thus confined it. See, e.g.,
Elmira Machine and Specialty Works, Inc., et.al., 148
NLRB 1695, 1698-99; Coronet Casuals, supra, 207 NLRB
at 308; Thayer, supra, 213 F.2d at 757; Kohler v.
N.L.R.B., supra, 300 F.2d at 701-705, Kohler, 300 F.2d at
703, explained the basis for this rule as follows:
First, the employer's antecedent unfair labor prac-
tices may have been so blatant that they provoked
employees to resort to unprotected action. Second,
reinstatement is the only sanction which prevents an
employer from benefiting from his unfair labor
practices through discharges which may weaken or
destroy a union .. .. But sanctions other than dis-
charge-criminal prosecutions, civil suits, union
unfair labor practice proceedings, and the possibility
of discharge-are available to prevent or remedy
certain employee misconduct.... Hence automatic
denial of reinstatement prevents the Board from
protecting the rights of employees, but may not be
essential to the protection of legitimate interests of
employers and the public.
(b) Barnett, Collins, Grayson, Hillard, R. Paskings,
Rossi, and Roundtree
Barnett leaned against and in front of nonstriker Scott's
car while dischargee O'Flynn broke Scott's antenna;
swung at nonstriker Krider through the front window
while Krider was leaning forward from the back seat of
a car going through the picket line, with a bare and open
hand but without coming in contact with her or the car;
while picketing, impliedly threatened reprisals against
nonstrikers; tauntingly displayed awareness of an anony-
mous "bad" phone call to a nonstriker's invalid mother;
openly took notes, or made a show of taking notes, of
the names of employees and the license plates of cars
crossing the picket line; scratched the car of an employ-
ee who was driving through the picket line; on a couple
of occasions, smacked with an open hand cars which
came into the picket line rapidly; called persons crossing
the picket line "scabs"; and sometimes cursed them. Col-
lins posted the homes of two nonstrikers with signs
giving the name of each and calling him a "scab," after
briefly picketing with such a sign the home of one of
them; threw snowballs at cars going slowly through the
picket line, without hitting the windshield or the driver's
side windows or damaging the cars; threw slush (re-
moved by the cars' windshield wipers) on the wind-
shields of two cars which were standing still in the
driveway; and, while picketing, made obscene gestures,
did a lot of shouting, leaning, and looking in car win-
dows, and slapped cars a few times with her open hand.
Grayson stood in front of a car, with folded arms, while
striker Becker jumped on the hood, beat the windshield
with her fist, and directed obscene language to the
driver. Grayson also walked in front of cars while Slifer
slapped and kicked them, in one case denting a fender.
She twice impliedly threatened damage to a car driven
by nonstriker Seiple, who regularly directed obscene ges-
tures toward Grayson and other pickets. On one occa-
sion, Grayson slapped Seiple's car and four other cars
with the side of her fist. On one occasion, she kicked
nonstriker Marburger's car fender and repeatedly banged
on his car window, while wearing two pairs of gloves
and without damaging the car, while it was waiting to
leave the plant across the picket line. On about six occa-
sions, she and other pickets surrounded or tried to sur-
round a car which they thought was coming through the
picket line too fast. On these occasions, she slapped the
car with the side of her fist, usually with two gloves on;
twice kicked the car; screamed at the driver to slow
down; and screamed at Hinnegan for not compelling the
driver to do so. She directed obscenities at nonstrikers.
On several occasions, Hillard banged with the side of her
fist the window nearest the seat of employee Honor
French as the car in which she was driving crossed the
picket line. Also, Hillard scratched a car, threw two
snowballs "pretty hard" at (and one of which hit) a non-
striker's car which was stopped waiting to get into the
driveway, yelled "scab" at nonstrikers, and wrote "scab"
in the dust on the side of several vehicles. R. Paskings
slapped the ear of nonstriker Bruton and called her a
scab (causing her ears to ring, and also causing her to
feel rather shaky) and a couple of nights later yelled at
her to "get out of the car and let's go." Rossi kicked one
car, and rocked and banged an undisclosed number of
cars, on the first day of the strike; on February 27,
walked in front of cars while Slifer slapped and kicked
them, in one case denting a fender, and also slapped
about five different cars; shook her fist, cursed, and di-
rected obscene gestures at nonstrikers, and called them
scabs; on one occasion pounded with her fist the car
being driven by employee Shea; hit once with Rossi's
umbrella a car which had brushed her on the picket line;
threw one snowball at a stopped vehicle; threw one
snowball at a moving vehicle, without hurting it; warned
nonstriker Grant (whose home was damaged by un-
known persons several days later) not to leave home that
1112
HAROWE SERVO CONTROLS, INC.
night; and taunted Supervisor Houff about his irregular
family life. On one occasion, she set up nails across the
company driveway, but picked them up a half-hour later
when she learned that management was watching. The
only driver who used the driveway while the nails were
still there saw them and picked up enough to permit a
safe passage. Randolph Roundtree, who is a large young
man, banged the closed window nearest to a much
shorter and older female nonstriker who was a passenger
in a car crossing the picket line, said that he knew where
she lived, and threatened to "get" her. During the south
gate incident, he leaned against nonstriker Scott's head-
light while O'Flynn broke her car antenna. He scratched
a nonstriker's car as it was coming through the picket
line. On six to nine occasions, he placed both his hands
on the hood of a car in an effort to keep it from moving.
On two or three such occasions, he also slapped his
hands on the hood and lay against the car. On one occa-
sion, he pounded the car of John Butterfield as it was
going through the picket line. 449 He sometimes shouted
"scab" and obscenities on the picket line. All these dis-
chargees engaged in blocking activity on the picket line;
all but Paskings obscured, by standing to one side, the
vision of nonstrikers who were leaving the plant by driv-
ing across the picket line; and Roundtree concomitantly
misrepresented to the drivers that there was no cross
traffic.
The foregoing misconduct occurred during a 2-month
strike caused and prolonged by unfair labor practices
which began more than 4 months before the strike and
continued at all times thereafter. These unfair labor prac-
tices had immediate impact on every employee in the
bargaining unit, and included not only Respondent's con-
tinuous breach of the bargaining obligations imposed by
the Union's certification, but also Respondent's continu-
ous and unlawful punitive withholding of the series of
wage increases called for by the 1974 wage program and
its unlawful unilateral effectuation of a different and
cheaper program. I conclude that these unfair labor prac-
tices outweigh these strikers' misconduct, and that Re-
spondent violated Section 8(a)(1) and (3) by refusing to
offer reinstatement to strikers Barnett, Collins, Grayson,
Hillard, R. Paskings, Rossi, and Roundtree. Terry Coach.
supra, 166 NLRB 560; Elmira Machine and Specialty
Works, Inc., supra, 148 NLRB 1695. In any event, I con-
clude that a reinstatement and backpay order should
issue as to them to remedy the unfair labor practices
which caused the strike. A fortiori, I reach the same
result as to the strikers discussed supra part II,D,8,c(2)
(Boyer, Copella, Hughes, and Murrey), whose miscon-
duct I have found insufficient to defend the refusal to re-
instate them assuming this to be an economic strike.
44Y As previously found, when driving through the pcket hline. Butter-
field had hit Copella and Collin%
(c) O'Flynn
(i) Whether Respondent's refusal to reinstate the
dischargees was specifically motivated by a desire
to effect reprisals against them because of their
protected union and strike activity
As Kohler held (300 F.2d at 703), the Board's power to
require reinstatement with backpay of employees who
engaged in strike misconduct is based partly on the con-
sideration that "reinstatement is the only sanction which
prevents an employer from benefiting from his unfair
labor practices through discharges which may weaken or
destroy a union." I infer that in striking the balance
called for by the Kohler class of cases, a factor to be
taken into account is whether the employer's attempt to
sever the employment relationship is specifically motivat-
ed by a desire to effect reprisals against the strikers be-
cause of their protected union and strike activity. It is
convenient at this point to consider the Union's conten-
tion, urged as to some dischargees by the General Coun-
sel as well, that Respondent was so motivated as to the
dischargees.
The record shows that Respondent disliked the Union
and did not want its employees to be represented by that
organization. Shortly before the election, Company
President Hart said, in effect, that employees who fa-
vored the Union should leave Respondent's employ and
get jobs in UE establishments. The 12 dischargees in-
cluded the Union's president and chairman of the shop
and negotiating committees (O'Flynn); its vice president,
who was also a picket captain and a departmental ste-
ward (Barnett); its chief steward, who was also a picket
captain (Rossi); a member of its negotiating committee
(Copella), who had previously been disciplined because
of her effort to process a grievance and her other union
activity; two departmental stewards (Collins and
Hughes), one of whom (Hughes) was also sergeant at
arms and on the welfare committee and the other of
whom had been named as a picket captain; another de-
partmental steward and sergeant at arms (Roundtree)
who was also a picket captain; and a supposed union of-
ficer (Hillard). Also, the record shows that all the dis-
chargees were on the picket line on frequent occasions
until the end of the strike; Company Attorney Messina
testified that, after the first week of the strike, "it was
always the same people who were picketing"; and Grant
testified that by the end of the strike only about 20 em-
ployees did any picketing at any time.450
Furthermore, in tendering explanations for their dis-
charge and defenses to their reinstatement, Respondent
made some misconduct allegations without either show-
ing the source of its alleged belief that such misconduct
occurred, or producing any evidence at all that it did
occur. Thus, there is no testimony at all in connection
with the statement in Respondent's May 1975 letter to
Board Agent Maclasky that Grayson was discharged for
feigning injury on several occasions from nonstrikers'
cars which were driving through the picket line and for
dropping nails on the driveway; or that Copella was dis-
*"" Steven, testified. "I ,ould saym more than 20 "
I1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged for feigning such injury on January 27; or that
Barnett was discharged because she repeatedly feigned
injury from nonstrikers' cars and because she attempted
to tear something off a company van moving through
the picket line. Nor is there any testimony at all in con-
nection with Company Attorney Oliver's statement at
the hearing that O'Flynn, Hillard, and Rossi were dis-
qualified from reinstatement partly for taking down non-
strikers' license numbers, or Boyer for engaging in bat-
tery against nonstrikers, or Collins and Copella for
threats of violence. Further, Collins' credited testimony
that she was bruised by Butterfield's car is the only testi-
mony in connection with Oliver's statement that she was
disqualified because "one of [her] favorite pastimes was
to feign injury by cars . . . followed by various threats
of suits and legal charge." Moreover, although in May
1975 and at various times thereafter Respondent asserted
that Copella was discharged partly for hitting a truck
with her cane, feigning injury from nonstrikers' cars, and
in effect threatening to sue one of the drivers, Hinnegan
testified that he thought Copella was "a fine person,"
and he made no allegations of misconduct in a July 1975
letter he gave to Copella to help her look for another
job.
In addition, Hinnegan testified that he "would accept"
nonstrikers' reports about strikers' misconduct "until I
found out that it was not the case"; but he never did ask
any of the dischargees about any of the misconduct
which the nonstrikers attributed to them. He testified, in
effect, that he did not question the dischargees because
this would have been "an exercise in futility"; that they
would only deny misconduct and "what would that
prove?" Respondent never discharged or disciplined any
nonstrikers for misconduct. Hinnegan accepted the de-
nials of the drivers who allegedly hit strikers on the
picket line (Chambers, Butterfield, and Leys) without
speaking to strikers whom Chambers and Leys allegedly
hit (McFadden, Collins, Copella, and Gould). After
learning that nonstrikers Orkis and Surplus had been cri-
minally charged with breaking and entering, and Orkis
with damaging Ledsome's car, Hinnegan merely inter-
viewed them (perhaps jointly) and accepted their claims
of innocence without any further investigation. Howev-
er, in connection with the accusations made against
Union President O'Flynn, in connection with the Volks-
wagen-ramming incident, Hinnegan wanted to talk to
nonstriker Riale (a Volkswagen passenger) about the in-
cident and to take pictures of the Volkswagen, made an
appointment with Riale to meet at the lot where it had
been towed, and was accompanied there by Company
Attorney Oliver; but never talked to Union President
O'Flynn about the matter, even though they frequently
conversed on the picket line, and even though (as Hinne-
gan must have known) any denial of involvement by
O'Flynn could have been substantially checked by in-
spection of O'Flynn's car.
Corroboration for my conclusion of unlawful motiva-
tion is provided by Hinnegan's January 31 letter to all
the strikers stating, inter aila, "For some of you, the en-
closed paycheck will be your last one. For employees on
strike who have not acted illegally we hope this is not
your last paycheck for a long time.... For those of
you who deserve better, Good luck! For the others,
Good Riddance!" Although Hinnegan testified that he
"would assume" that the "Good Riddance" language re-
ferred to the strikers who were acting in violation of the
law and damaging people's property, he further testified
that the first draft of the letter could have been written
before the strike started; and that, as of the time Re-
spondent started preparing this letter, Respondent had
not decided to discharge anybody. Under these circum-
stances, I conclude that the "Good Riddance" language
constitutes evidence that Respondent wanted to get rid
of some strikers entirely apart from any misconduct in
which they may have engaged.
I find further corroboration of an unlawful motive
from the following circumstances: As previously found,
Hinnegan testified that he thought Barnett, Copella,
O'Flynn, Rossi, Roundtree, and (erroneously) Hillard all
occupied union office. He credibly testified that he and
Hart decided to discharge them partly because of their
not supplying leadership in connection with the strike
misconduct of others. 4 5 ' Further, when asked whether
this was true as to Grayson, he replied, "I don't know
whether she held any elected post or not." (She did not,
so far as the record shows.) Attorney Messina, who par-
ticipated in the discharge discussion and (to some extent)
the decision about whom to discipline, was asked wheth-
er a factor in the decision to discharge any of the 12 em-
ployees was that employee's position in the Union as (for
example) an officer or picket captain or chief steward,
and he replied, "To the extent that legally it could be, it
was." Attorney Oliver initially stated on the record that
the reinstatement rights of Barnett, O'Flynn, and Rossi
were affected by their failure to act as leaders of the
Union in controlling and supervising allegedly improper
acts by other strikers. Notwithstanding subsequent dis-
avowals (see supra, part II,B,8), I regard the evidence
summarized in this paragraph as pointing to the inference
that Respondent's discharge of Barnett, Copella, Gray-
son, Hillard, O'Flynn, Rossi, and Roundtree was moti-
vated partly by their alleged failure to attempt to control
the allegedly improper activities of other strikers, and
that Respondent regarded such inaction as either blame-
worthy or more blameworthy because of the discharg-
ees' positions or supposed positions in the Union. I
regard such motivation as unlawful, because Respondent
could not unlawfully discharge a rank-and-file union
member for misconduct which he did not participate in
or authorize, or discharge union leaders for conduct
which would not have justified or led to the discharge of
union members. A different rule would permit an antiun-
ion employer to defend a discharge by citing the very
protected activity (holding union office) which may have
rendered the employer particularly tempted to effect the
discharge. See Precision Castings Co., Division of Aurora
Corporation, etc., 233 NLRB 183 (1977)452 Indeed, Hin-
4"' For demeanor reasons. I do not accept Hinnegan's subsequent re-
traction of this lestimony with respect to O()Flynn
"s The discharged picket line captain in Blair Proces Cromnpany. Inc..
199 NLRB 194. fn 3 (1972), cited by Respondenl as pointing otherwise,
told olther stl-ikers to follow cars and scare nonstriking employees. and he
himself engaged in such coniduct. Nor were the union officials' rights
Continued
1114
HAROWE SERVO CONTROLS. INC
negan's testimony in connection with Grayson, and also
Messina's testimony, indicates that the dischargees' al-
leged inaction was itself a pretext for their discharge.
For the foregoing reasons, I find-with respect to Bar-
nett, Boyer, Collins, Copella, Grayson, Hillard, Hughes,
O'Flynn, Rossi, and Roundtree-that because of their
protected union and strike activity Respondent was anx-
ious to get rid of them and was trying to find miscon-
duct to charge them with for that purpose. Accordingly,
as to these employees, the question of whether unlawful
motivation underlay their selection for discharge turns
on whether the nature of the misconduct as reported to
Respondent and which (according to Respondent) moti-
vated their discharge was such as would have led Re-
spondent to discharge them in any event.
However, the record fails preponderantly to show this
as to Murrey and Paskings, who were not union officers
or believed to be such, and as to whom Respondent's
tendered reasons for discharge conformed to the evi-
dence showing what was reported to Respondent. I note,
however, Hinnegan's testimony that, after learning in
October 1975 that Firlein had directed a racial epithet at
Murrey, he never considered any reconsideration of the
discharge action, because he had the "impression" that
Firlein's slur was provoked by Murrey's "slapping"
action. He went on to testify that he did not recall
whether Murrey said that the epithet preceded or fol-
lowed the "slapping," However, he initially testified that
Firlein used the epithet before "this incident." As previ-
ously noted, Respondent's log states that Murrey's dis-
charge for strike misconduct did not occur until Decem-
ber 1975.453
As to each of the dischargees except O'Flynn (whose
case is discussed infra), Murrey, and Paskings, I find at
this point that the nature of the misconduct as reported
to Respondent and which (according to Respondent)
motivated their discharge was not such as would have
led Respondent to discharge them absent Respondent's
anxiety to get rid of them because of protected union
and strike activity. For reasons previously discussed, this
finding buttresses my previous determination that Re-
spondent's refusal to reinstate them violated Section
8(a)(l) and (3) of the Act and, in any event, their rein-
statement with backpay is called for to remedy the unfair
labor practices which caused the strike.
(ii) Analysis and conclusions as to O'Flynn
O'Flynn picketed by walking slowly in front of cars,
and stood at one side in such a way as to block their
vision as they drove out. Most of the pickets engaged in
such activity. On the first day of the strike, he blocked
cars and moved from driveway to driveway, and banged
cars with his hands. He hit with a flatjack the windshield
(which was not damaged) of a car whose driver's side
herein affected by any bargaining agreement Cf Super Valu Xenia..4 Di-
vision ofSuper }'alu Stores, Inc., 228 NLRB 1254 (1977), and cases cited I
need not and do not consider the effect. if any. of such conitract clause
on the rights of persons whi, like Hillard. were erroneously believed to
be union officials
.'" The evidence fails preponderantly to suppiort the Inion's conten-
tion that Boyer, Murrey, and iaskings were discharged at least partly be-
cause they are black Accordingly. I need not and do not consider the
significance (of any such showing to Ihe issues presented hcre
window was open and which had been nudging O'Flynn
as he walked in front of it while the car stopped at the
picket line. He broke the antenna of nonstriker Scott's
car while other strikers were leaning against the head-
lights and preventing it from moving. He kicked across
the road a padlock belonging to Respondent, which
promptly retrieved it. He kicked nonstriker Wojcik's car
without provocation. He leaned his knees on nonstrikers'
cars and put his hands on the hood. He pounded on Su-
pervisor Thomas' van, which had hit O'Flvynn on the
picket line, on the car of a driver who had brushed two
pickets while going through the picket line at what
O'Flynn regarded as an excessive speed, and on the car
of a nonstriker who had hit two pickets with his car on
the second day of the strike. Throughout the strike, he
hollered and shook his fist at nonstrikers and directed ob-
scene gestures to them. From time to time, he yelled at
the nonstrikers such remarks as "scah," "S (.." "You
will get yours," and "We will see that you get taken care
of." He shook his fist at Hinnegatl once in a while. once
said that he knew where Hinnegan lived, and frequently
told him to shut up and mind his own business. He hit
nonstriker Bishop's windshield with an iceball or a
frozen snowball (without damaging the car) while it was
slowly moving. He pulled and kicked at shrubbery on
the company driveway, and probably carved his initials
on a company table in the room where the parties were
conducting negotiations. Hinnegan did not testify that
the decision to discharge him was based on the iceball,
shrubbery, or table incidents.
If my function here was limited to weighing the seri-
ousness of O'Flynn's strike misconduct against the seri-
ousness of the employer unfair labor practices which
caused the strike, I would find that O'Flynn's miscon-
duct, particularly in view of the flatjack incident, called
for excluding him from a reinstatement order. However,
for reasons previously indicated, I regard as material in
this connection the question of whether Respondent was
unlawfully motivated in deciding to get rid of him. As to
the unlawful motivation contention, a stronger case exists
as to O'Flynn than as to any other dischargee. O'Flynn
was by far the most active employee in the Union and in
the protected strike activity. He was the president of the
Union, the chairman of the negotiating committee, and
the chairman of the shop committee. He conducted most
of the administrative end of the strike, and himself pick-
eted a great deal. It is undenied that as early as August
1974, and before the election, supervisor Thomas told
O'Flynn that Thomas "didn't understand why [O'Flynn]
was throwing away [his] career at Harowe with the in-
volvement with the Union." It is likewise undenied that,
about the second week of the strike, Company President
Hart, who intensely disliked the Union, told O'Flynn,
"You're going to get yours .... You're going to
jail. " 4 54 Further, as to the unlawful-motive contention, I
attach weight to Hinnegan's obvious testimonial fabrica-
tions about O'Flynn's allegedly brandishing a blackjack
4:4 Although Respoll dent adduced leimolinl fron ()'f 1 Isiim Ihal fliIt
remark mais ha'le been malde alicr a intlllcrllpl petitiolln (%'hlLh ditd iit
result mi a con tem pt finding) .aisl filled agatl ( 1 NFIsnn, tart neither
denied this remiirk inor offered an' explaalilion for it
I 1 5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the picket line, and to the conflicts between Hinne-
gan's and Cross' discredited testimony about O'Flynn's
alleged nail-dropping.
Finally, I regard as highly significant Respondent's
conduct in connection with the Volkswagen-ramming in-
cident. Before the strike, O'Flynn had been a relatively
well-paid employee45 5 in a relatively high labor grade
(new labor grade 5). He had been working for Respond-
ent for about 17 months, was about halfway up the se-
niority list, was married, with three children, was known
to be a retired policeman, and (so far as the record
shows) had an impeccable work record. So far as the
record shows, nothing in his prior conduct remotely sug-
gested that he would engage in the type of vicious mis-
conduct committed by the occupants of the light blue
1970 or 1971 Plymouth against the Volkswagen and its
occupants. Furthermore, Messina's version of his March
20 conversation with Stevens and O'Flynn regarding dis-
cipline for strike misconduct indicates that Respondent
regarded the Volkswagen incident as the most serious in-
cident of strike misconduct and as constituting an insur-
mountable obstacle to O'Flynn's immediate reinstate-
ment. Also, Respondent's May 1975 letter to Board
Agent Maclasky describes this as the "most egregious"
incident involving O'Flynn.4 56 Yet, Respondent never
even asked O'Flynn about the matter while he stood on
the picket line near Hinnegan, let alone asking for per-
mission to inspect O'Flynn's bright blue and white 1972
Plymouth, which Hinnegan must have known would
have displayed signs of damage had it been the pursuing
car, but which in fact showed none. I infer that Re-
spondent failed to take these obvious steps, after Hinne-
gan had gone to the trouble of visiting West End
Towing with company counsel to get photographs of the
Volkswagen and interview the occupants, because Re-
spondent feared that it would find evidence establishing
O'Flynn's innocence (as in fact Respondent would have
found) and thereby would lose all color of right to rely
on the incident to justify O'Flynn's discharge. Moreover,
Respondent tendered to Board Agent MaClasky the
wholly unsupported allegation that, during the Volks-
wagen incident, O'Flynn and Ledsome referred to a fire-
arm in O'Flynn's possession.45 7
I conclude that, if O'Flynn had not been a leader in
the employees' protected activity, the acts of misconduct
which (according to Respondent) motivated its refusal to
reinstate him would not have led Respondent to dis-
charge him. In short, I conclude that Respondent refusal
to reinstate O'Flynn was specifically motivated by his
union and protected activity. I find that Respondent's
misconduct in this respect, together with the employer
t Tice received $350 an hour Lukens testified. in effect, that the
average hourly rate in the plant was about $3.20
41; Ilrinegan testified, however, that although ()'F lytil vwa dis-
charged partly hecause of this incident, it "wasn't the oerriding factlr
Ihere were so many other things, that it was just one of many
() Fly nn] didl enough without that, in my mind, to w varranll discharge
,cveral times over, so that was really only incidental . it could war-
rant discharge, too, let's say, ulnder certain circumstances hecause of the
saagery of it. but I think we didn't need thai to Iadd to the pile."
,r7 Indeed, at the hearing Respondent's counsel offered as to ()O lynn
a disquialification contention which is denoid of supporting esidenct
nlamely. thtat ie allegedly wrole down lic ense numbers and otlhcr tlfor-
mnatlilon aboul employees who crossed the picket line
misconduct which caused and prolonged the strike,
outweighs in seriousness the strike misconduct in which
O'Flynn engaged. Accordingly, I conclude that Re-
spondent's refusal to reinstate him violated Section
8(a)(1) and (3) of the Act. Further, I find that, in view of
the unfair labor practices which caused the strike,
O'Flynn's strike misconduct was not sufficiently serious
to warrant withholding reinstatement and backpay as a
remedy for his unlawfully motivated discharge. In con-
nection with the seriousness of his misconduct, I note
that, because of his prestrike activities as a union official,
he had more immediate and personal knowledge than
any other employee about how serious Respondent's
unfair labor practices were.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for collective-bar-
gaining purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
Harowe Servo Controls, West Chester, Pennsylva-
nia, and Aero Systems, Inc.,45 8 West Chester,
Pennsylvania, but excluding all other employees in-
cluding office clerical employees, salaried employ-
ees, professional employees, guards and supervisors
as defined in the Act.
4. At all times since September 3, 1974, the Union has
been the duly certified representative for the purposes of
collective bargaining of the employees in the unit, and
has been the collective-bargaining representative of such
employees within the meaning of Section 9(a) of the Act.
5. Respondent has violated Section 8(a)(1), (3), and (5)
of the Act by (I) suspending or canceling the 1974 wage
program with respect to bargaining unit employees; (2)
failing to give its bargaining unit employees bonuses and
turkeys at Christmas 1974; and (3) dismantling the ladies'
lounge.
6. Respondent has violated Section 8(a)(5) and (1) of
the Act by unreasonable delay in giving the Union (1) an
up-to-date list of the employees, their rates of pay, se-
niority date, and job descriptions; (2) the pension formula
and the pension plan; (3) all job descriptions; and (4) a
list of the department or departments under each named
foreman.
4- Itis ciorporation is a , holly ortned subsidiary of Respotndent
Ilt rov,e Servo Citntrols. Inc. Flarowc Presidlenl arl I arl testified in late
Julle 19'76 that Aero had "recently" taken over operation of Respondent's
sysems D)ivisxion, which had beetl owned and operated by Responldent at
all prior material times I ukenls testified that Aeron was ilicorporated in
Septemlber 1975 I infer from l. ketn' and Hart', tet'tiontly that somncone
tIartied lledrick had an interest il Systems before liarowe bought it. that
under the purchase arrangement he acquired Haroswe stock, aid thal Ihe
cvCenlual separate incorporalion, of Systems 'was contemlplated by the pur-
ehasc aIrralngeterit in accordanice v ith Hlcdrick's ',sihes As of late June
197h. Systems employed 10 barg;nlinilg unit cmployees I conclude that
Acro is' al ililr ego, of, iccupies single-emplohyer status with, is a suLccs-
,str ofl or is an gelit of Ilarol e. aind that tle Syst'ttis t[)li, m n ernploy-
ecs rertaltcid ia the unit notvtwithstandig Aero's incorporationt
1116
HAROWE SERVO CONTROLS. INC
7. Respondent has violated Section 8(a)(5) and (1) of
the Act by failing to give the Union (1) a copy of the
pension booklet and of the written explanation of
changes therein; (2) data allegedly justifying Respond-
ent's contention that Respondent could not afford to
offer more money and benefits than Respondent's De-
cember 17, 1974, offer; (3) pay scale and Respondent's
formula for reaching the top rates as well as the bottom
rate for each job; and (4) the wage progressions sched-
uled for 1974 through 1976.
8. Respondent has violated Section 8(a)(5) and (1) of
the Act by attempting to bargain with employee Linda
Sloane about a grievance.
9. Respondent has violated Section 8(a)(1), (3), and (5)
of the Act by issuing a written warning notice to em-
ployee Copella because of her effort to process Sloane's
grievance as a union representative and because of Co-
pella's other union and protected activity.
10. Respondent has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain in good faith
with the Union since about September 8, 1974, and at all
times thereafter; and by withdrawing recognition from
the Union on and after July 17, 1975.
11. Respondent has violated Section 8(a)(l), (3), and
(5) of the Act by its January 1975 implementation of a
new wage program.
12. The strike which began among Respondent's em-
ployees on January 27, 1975, was an unfair labor practice
strike from its inception.
13. Respondent has violated Section 8(a)(1) and (3) of
the Act by failing to offer immediate reinstatement, on
request, to the strikers named in Appendixes A, B, and
C.
14. Respondent has violated Section 8(a)(1) of the Act
by failing to pay, to the strikers named in Appendixes A,
B, and C who did not return to the active payroll in
1975, vacation pay attributable to the period May 1,
1974-April 30, 1975.
15. Respondent has violated Section 8(a)(5) and (1) of
the Act by changing from 6 to 2 minutes the grace
period within which employees are permitted to be late
without loss of pay.
16. The unfair labor practices specified in Conclusions
of Law 5 through 15 affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
17. Respondent has not violated the Act by restricting
employees from going to the restroom; by failing to pro-
vide the Union with a list of the foremen; by reclassify-
ing certain employees; by failing or refusing to offer rein-
statement to R. H. Erskine; or by advising certain non-
strikers during the strike that they had completed a satis-
factory probationary period.
18. Respondent has not violated Section 8(a)(3) of the
Act by the conduct described in Conclusion of Law 14.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom. The number of Re-
spondent's unfair labor practices, the length of time over
which they were committed, and the fact that they in-
cluded bad-faith bargaining with the Union and an un-
lawful failure promptly to offer reinstatement to 107 em-
ployees lead me to anticipate danger that Respondent
will otherwise violate the Act in the future. According-
ly, I shall recommend that Respondent be required to re-
frain from infringing on its employees' rights in any
other manner.
Affirmatively, Respondent will be required to make its
employees whole for loss of wages resulting from Re-
spondent's unlawful cancellation or suspension of the
1974 wage program; from Respondent's January 1975
implementation of a new wage program (see supra, fns.
145, 146, 169); from Respondent's unlawful withholding
of vacation pay; and from Respondent's unlawful change
in the grace period; in each case with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977) 4 s9 Because doubts created by Respondent's unfair
labor practices are to be resolved against it, for purposes
of calculating interest the vacation payments shall be
deemed payable on May 1, 1975, and for purposes of cal-
culating amount (which under Respondent's practice is
determined by the employee's wage rate when he takes
his vacation) shall be deemed payable on April 30, 1976,
when wage rates were at their highest under the 1974
wage plan and under the system which Respondent put
into effect on January 27, 1975.
Also, Respondent will be required to make its employ-
ees whole for its unlawful failure to give them bonuses
and turkeys in Christmas 1974. As such bonuses and tur-
keys were established conditions of employment before
Respondent's unlawful 1974 failure to provide such bene-
fits, Respondent may not change them without first noti-
fying the Union and, on request, bargaining with it on
the subject to an agreement or an impasse. Accordingly,
until satisfying this requirement Respondent will also be
required to continue to give its employees Christmas bo-
nuses and turkeys, and to make its employees whole for
any post-1974 failure by it to do so, either before or after
issuance of this Decision. Washington Hardware and Fur-
niture Co., 175 NLRB 63 (1969).460 The bonus shall be
calculated on the basis of the formula used before 1974.
Payments required in this paragraph will be with interest
as prescribed in Florida Steel, supra.
The pleadings establish that between April 28, 1975,
and April 6, 1976, Respondent offered jobs to 44 of the
employees named in the complaint. At the hearing, the
General Counsel stated, in effect, that he was not con-
ceding that all such offers were reinstatement offers. His
brief states that Respondent "did eventually reinstate
some 44 employees." However, because the Union makes
no such concession, I shall make no finding as to wheth-
er or not any or all such offers were offers of reinstate-
ment. No offer of reinstatement will be required to any
employee who has already received such an offer. An
offer of reinstatement shall consist of an offer of the em-
ployee's exact same prestrike job on his prestrike shift, if
any such job exists, and, if not, of substantially equiva-
lent employment, without prejudice to seniority or other
rights or privileges.
I'" See, generally, Iis Plumbing & Heali,ni (', 138 NI RB 716 (I9t,2
46. The record shows that no turkeys vcrc gi\'en on Chrim;lna, 1075
I I 1 7
I)ICt'ISI()NS ()I NA'I'I()NAI I.A()OR RFI.ATIONS BH)ARI)
At the hearing, Respondent contended that it was
under no duty to offer reinstatement to 31 employees in
addition to those mentioned in the foregoing paragraph.
I he tacts as to each are as follows:
a. E. R. Bath was on the April 10 preferred hiring list.
She waits terninated by Respondent on May 19, 1975,
when she \was offered her old job back arid informed
!linnegan that she was resigning to go on social security.
The log entry as to her states "Resigned-voluntary." I
conclude that she is not entitled to backpay after May
19, 1975, when she rejected a reinstatement offer.
b. W. Bazylewwicz was on the April 10 preferred hiring
list. She was terminated by Respondent on June 13, 1975,
after she had failed to respond to a letter from Respond-
ent, received by her on June 12, 1975, advising her of
"aln opening in the Machine Shop on the 2nd shift run-
ning the Kummers . . . you have until Friday, June 13th
at 4:30 p.m. to accept or reject this offer. Failure to
accept will be considered automatic termination." There
is no evidence that she replied to this letter. Before the
strike, she had been an "OPA Lathe-Auto" on the
second shift, and had operated the Kummers and other
lathes. The log entry as to her states, "Resigned from
strike." I conclude that Respondent's June 12 letter did
not affect her right to a reinstatement offer and to back-
pay, because she was given an unreasonably short time
(I day) to accept or reject the offer, and was advised she
would be terminated if she failed to accept it within that
day. Murray Products, supra, 228 NLRB 268.
c. L. M. Belmonte was terminated on August 19, 1975.
Her name appears on the April 10 preferred hiring list.
Hiinegan testified that she was not on the preferred
hiring list because he believed she had resigned to take
another job. The log entry as to her states, "Took other
position." Hinnegan testified that he did not believe Re-
spondent ever offered her a job. I conclude that she re-
mains entitled to a reinstatement offer and to backpay.
There is no probative evidence that she ever took an-
other position; there is no evidence as to whether any
such position was substantially equivalent to her job with
Respondent; and as an unfair labor practice striker from
whom a reinstatement offer had been unlawfully with-
held at the end of the strike, she would remain entitled
to reinstatement and backpay even if the probative evi-
dence showed that she had obtained such a substantially
equivalent job.
d. M. E. Bevans was terminated by Respondent on No-
vember 10, 1975. The log entry as to her states "Did not
accept job-on strike." Her name appears on the April
10 preferred hiring list. Hinnegan testified that she was
removed from the preferred hiring list because "she took
another position and resigned." Respondent's records
show that by letter dated November 4, 1975, she was of-
fered a solvent clean job on the second shift in Depart-
ment 65, in the roter department, and "Failure to accept
will be considered automatic termination." This job re-
quires the worker to keep her hands wet all the time
with solvent, which on occasion causes skin rash. Before
the strike, she had been working on the second shift in
miscellaneous assembly (rotor) which "sometimes" re-
quired the employee to have her hands in solvent. By
letter to Bevans dated November 11, 1975, Respondent
stated, inter alia, ". .. your failure to accept the job
placed you in the position of being automatically termi-
nated." There is no evidence that Bevans replied to
either letter. I conclude that Respondent has failed to
meet its burden of showing that Bevans' old job did not
exist, or in any event that she was offered substantially
equivalent employment, or that she resigned, or that she
obtained employment elsewhere (regular and substantial-
ly equivalent or otherwise), and that the foregoing evi-
dence does not affect her right to reinstatement offer or
to backpay.
e. B. Birely is not on the April 10 preferred hiring list
A letter to her from Hinnegan, dated June 12, 1975, was
received in evidence without objection or limitation.
This letter states, inter alia, "In accordance with the
form you returned indicating that you had taken another
job and wished to be terminated from [Respondent], we
have processed your termination effective June 10,
1975." The log record as to her states, "Resigned from
strike." There is no evidence that Birely ever answered
this letter, or that Respondent ever offered her a job, or
as to whether any job she may have obtained elsewhere
constituted regular and substantially equivalent employ-
ment.
There is no evidence that Birely's request for termina-
tion was motivated by a desire to enable herself to obtain
alternative employment elsewhere in view of Respond-
ent's unlawful refusal to reinstate her. Accordingly, I do
not believe that, in my determination of the appropriate
remedy, disregard of her request is warranted by Hart-
man Luggage Company, 183 NLRB 1246, 1246-47 (1970),
enfd. in material part 453 F.2d 178 (6th Cir. 1971); Indus-
trial Bearings & 7ransmis.sion Co., Inc., 230 NLRB 885
(1977); or NV.L.R.B. v. Kohler Co., 351 F.2d 798, 802-804
(D.C. Cir. 1965). 1 find that her resignation calls for toll-
ing her backpay as of June 10, 1975. On the other hand,
the reinstatement requirement has the purpose of demon-
strating the employer's good faith to the other employ-
ees, as well as to the employee who is to receive the
offer. Heinrich Motors v. N.'L.R.B., 403 F.2d 145, 150 (2d
Cir. 1968). Accordingly, after an employee's resignation
he remains entitled to a reinstatement offer which had
been unlawfully withheld, even though this wrongful
conduct was not shown to have been related to his resig-
nation. Custom Craft Manufacturing Company, 212
NLRB 255, 259, 261-262 (1974) (Woodard); Mississippi
Steel Corporation, 169 NLRB 647, 663 (1968) (Woodley
and W. Ernest Chunn), enfd. in material part 405 F.2d
1373 (D.C. Cir. 1968). Although Custom Craft and Mis-
sissippi Steel did not include any backpay order to the
employees who had resigned after failing to receive rein-
statement offers to which they were entitled, I nonethe-
less regard as appropriate a provision that backpay re-
commence as of 5 days after Respondent receives my
Decision, unless Respondent has by that time offered
Birely reinstatement. Such a requirement takes into ac-
count the possibility that Birely would not have resigned
if Respondent had complied with its legal obligation to
offer her reinstatement 2-1/2 months earlier, and will
also afford Respondent an incentive promptly to comply
with its obligation to offer reinstatement. Cf. Heinrich
I I 1 8
IAROTW S'I R%'() CONT Rol' S. INC
Mfotors, Inc. v. '.L.R.B., .supra: Industrial Bearing, supra.
N.L.R.B. v. Kohler Co.. supra, 351 F-.2d at 806 Oh .L.R.B.
v. Prick Company, 423 F.12d 1327, 1333, In. 12, IL.eds &
Northrup Co. v. N.L.R.B., 391 1-.2d 874 88X();. N.L.R.B. c.
Seven-Up Bottling Co. of .Miami. Inc., 344 U.S. 344, 347
348 (1953); Fibrebhoard Paper Products Corporation, 138
NLRB 550, 555 (1962), affd. 322 F.2d 411, 415 (D.C. Cir.
1963), union's petition for cert. denied 375 U.S. 974; 7e/h-
vision Wisconsin, Inc., 224 NLRB 722, 780-781 (1976);
Drug Package. supra, 228 NLRB 108. J. H. Rutter-Rex
Manufacturing Company Inc. v. N.L.R.B., 399 F.2d 356,
360-361 (5th Cir. 1968), employer's petition for cert.
denied 393 U.S. 1117 (1969).
f. M. A. Bowyer, who was on the April 10 preferred
hiring list, told Hinnegan on May 8, 1975, that she was
leaving. By letter to her dated that same day. tHinnegain
stated, inter alia, "In a telephone conversation on May
8th, you stated that you would not be returning to work
at Harowe .... In view of' tile above, we have put
through termination report effective that date." There is
no evidence that she even answered this letter. Hinnmegan
could not recall ever offering Ilowy er a job 'the log ,is
to her states, "Out oii strike-- resigned." I find that her
backpay should be tolled as of May 8, 1975, hut that she
remains entitled to an offer of reinstalement. Her hack-
pay shall recommence as of 5 days alfter Respondent re-
ceives my Decision, unless Respondent has by that time
offered her reinstatement. See the discussion in connec-
tion with Birely.
g. G. M. Cain was never offered a job. She was on the
April 10 preferred hiring list. Hinnegan had no discus-
sion with her about returning to work. He testified that,
on an unspecified date, a personnel manager from an-
other firm told him that this firm was "considering"
hiring Cain, and requested a reference for her. Hinnegan
did not testify what reference, if any, Respondent gave.
Cain returned her badge to Respondent by mail. 3By
letter to her dated May 6, 1975, Hinnegan stated, "This
letter will acknowledge receipt of your badge, which we
received on May I, 1975. Although there was no mes-
sage, we assume that you will not be returning to work
at Harowe.... Effective May 1, 1975, we have put
through termination report indicating the above action."
There is no evidence that she ever answered this letter.
The log entry as to her states, "Was out on strike-re-
signed to take another job." In view of Cain's return of
her badge, I infer that she resigned. Accordingly, I find
that her backpay should be tolled as of May 1, 1975.
However, she remains entitled to an offer of reinstate-
ment. Her backpay shall recommence as of 5 days after
Respondent receives my Decision, unless Respondent has
by that time offered her reinstatement. See the discussion
as to Birely.
h. J. Carpinelli was not on the April 10 preferred
hiring list. She was terminated by Respondent on August
25, 1975, 3 weeks to a month after she was offered the
same job, and on the same shift, as her prestrike job.
Hinnegan testified that every striker who was recalled
after the March 25, 1975, end of the strike received one
quarterly wage increase in accordance with the new
wage program put into effect as of January 27, 1975. but
did not receive as of the date of his recall any more of
such quarterly wage increaises regardless of the da;l (id'
his recall. Accordingly, tlimigani's lestrionlly cstahhsliss
that, if Carpineli had acccpltld tis, August 1'975 lob
offer, her wage rate on hier rctlrii ,I)i ld hi;l',rc Itclllided
only the first 10-cent increase and not the second Ill-ccii
increase, sheit would tl hl\rc icC. li.(d it' she had been rt ii-
stated right after the end of the strike She niniinall told
Hinnegan she was coming hback. then said that sth 5%.as
not going to return and was taking a job elsewa hcrc I he
log entry as to her states "''I ook other positionl"
I find that her gross hackpav should take into ac-ounit
both increases she would hal;i rec1ive(d if Respondent
had complied with its staltitory ditly to offer her rein-
statement at the end of the strike allld she had accepted
that offer. However, I find that RLcspoidciit's pil ;tilie of'
affording only one increase to strikers ;vcho retulil ed atter
the strike, regardless of the date of their retlurn, doees not
ottherwise affect tthe sufficienvy of the reinslatenlrlert offer
as to her; that she received ; stuffic ient ofl'tr of' rcillstate-
nient about August 4, 1975. that she is nlot enlitled lto ar-
other offer of reinsta;tenient; alid that she is not entitled
to backpay after August 4, 1975 Rcli/hncc ( l,' Produtsl
Companr. 105 NI R 135, 136 7 I )1)
. I' Clay was not on the April I1) pl efcrred hiring Ilis.
and there is no evidence that she was ever rloffered a. jo
IBy letter dated April 27, 1q75, and received hb Respond-
ent on April 29, 1975. she returned her hadgce anrd stilled,
inter alia, "''I shall not be returnilng to work ait [laroN e iis
I have found other employmenlt " Respondenllt itriliiimaled
her effective April 27, 1975 The log entr i as to her
states, "W'as oUt on strike resigned to take a;Iother
job." I find that she resignlcd. anll that her hackpay
should be tolled as of April 219, 1975. Ilow eer. she re-
mains entitled to all offer of reinstatemenit l3ackpay as to
her shall recommence as of 5 dlays after Respoildent re-
ceivCs rnly i)ecisiol, tinless Rcspollient 1has by that tinle
offered her reinstatemeint See tilt discussion as to lirely.
Apart front the "incentive" ftactor, the discussion as to
Birely points to the tirthiei conclusion that Clay is enti-
tled to vacation pay attribut able to the year preceding
April 30, 1975. although she was not on the active pay-
roll on that date and her backpay has been tolled before
that date. See vupra, part II.C.4 I note that Respondent
gave vacation pay to Weaver, who never actively
worked for Respondent after the strike and whose retire-
ment request was made on April 28, 1975
j. D. Coppick (nee Iverson), who was on the April 10
preferred hiring list, was offered her old job, on her old
shift, about March 27, 1976. Hinnegan's testimony estab-
lishes that, if she had accepted this offer, her wage rate
on her return would have included the first 10-cent in-
crease she would have reached if she had been reinstated
right after the end of the strike, but not the remaining
increases she would have received thereafter, totaling 30
cents. Coppick refused the offer because she could not
get a trustworthy sitter for her new baby, and "felt
maybe it was too soon and . . . she wouldn't be coming
back."
I find that her gross backpay should take into account
all the increases she would have received if Respondent
had complied with its statutory duty to offer her rein-
11 1' )
DECISIONS OF NATI()NAL LA()OR RELATIONS BOARD
statement at the end of the strike and she had accepted
that offer. However, I find that for all other purposes
she received a sufficient offer of reinstatement, that she is
not entitled to a second offer of reinstatement, and that
she is not entitled to backpay after April 1, 1976. See Re-
liance Clay, supra at 136-137.
k. There is no evidence that B. Gagliardi was ever of-
fered a job. Gagliardi was on the April 10 preferred
hiring list. A letter to her from Hinnegan, dated April
21, 1975, was received into evidence without limitation
or objection. The letter acknowledged receipt of her
badge without a message, stated that Respondent as-
sumed she would not be returning to work at Harowe,
and stated that Respondent was putting in a termination
report indicating the above action. There is no evidence
that she ever replied to this letter. She was terminated
effective April 21, 1975. The log entry as to her states
"Was out on strike-resigned to take another job." I
conclude that Gagliardi resigned, and that her backpay
should be tolled as of April 21, 1975. However, she re-
mains entitled to an offer of reinstatement, and to vaca-
tion pay attributable to the year preceding April 30,
1975. Backpay as to her will recommence 5 days after
Respondent has received my Decision, unless Respond-
ent has by that time offered her reinstatement. See the
discussions in connection with Birely and Clay.
I. E. M. Gould was terminated by Respondent, on a
date not shown by the record, after a person unidentified
in the record told Hinnegan that Gould was not coming
back. Her name is not on the April 10 preferred hiring
list. As of June 1976, she was working elsewhere, but the
record fails to show how long she had been working
there, what her job was, or how much she was being
paid. There is no evidence that Respondent ever offered
her a job. I conclude that Respondent has failed to sus-
tain its burden of showing by probative evidence that she
resigned, and that the foregoing evidence does not affect
her right to a reinstatement offer and to backpay.
m. B. Hunt was never offered a job. Her name is not
on the April 10 preferred hiring list. On June 16, 1975,
Respondent received from her a form in which she had
checked the entry, "I wish to be considered a voluntary
termination from Harowe." Respondent terminated her
effective June 16, 1975. The log entry as to her states,
"Resigned from strike." I conclude that she resigned, and
that backpay as to her should be tolled as of June 16,
1975. However, she remains entitled to a reinstatement
offer. Backpay as to her will recommence as of 5 days
after Respondent receives my Decision, unless Respond-
ent has by that time offered her reinstatement. See the
discussion as to Birely.
n. D. C. Jones was terminated by Respondent on
August 29, 1975, after she telephoned Hinnegan that she
was going to take a job somewhere else and was sorry
she got involved in "the whole mess." There is no evi-
dence as to the nature of any job she may have obtained
elsewhere. Respondent never offered Jones her job back.
The log entry as to her states, "No req. form since
June." Her name is not on the April 10 preferred hiring
list. The parties stipulated that she was either not placed
on or removed from the preferred hiring list because she
failed to individually advise Respondent of her availabil-
ity or continued availability for work. I conclude that
she remains entitled to an offer of reinstatement and to
backpay.
o. Hinnegan testified that, about November 1975, he
instructed his secretary to offer E. M. Korth her old job
back, on her old shift. Hinnegan further testified that his
secretary thereafter reported to him that she had talked
to Korth, who said she did not think she would be able
to get in owing to transportation problems. Hinnegan's
testimony in this respect was not received to show the
contents of the conversation betweew Korth Hinnegan's
secretary. 4 ; The log entry as to Korth states that she
was terminated on December 1, 1975, because "No avail-
ability for work form since June." Korth was on the
April 10 preferred hiring list. The parties stipulated that
she was removed from the preferred hiring list because
she failed to individually advise Respondent of her con-
tinued availability for recall. I find that Respondent has
failed to discharge its burden of showing, by probative
evidence, that Korth was offered reinstatement. I con-
clude that she remains entitled to a reinstatement offer
and to backpay.
p. A. L. LeCates was terminated on December 1, 1975.
Her name was on the April 10 preferred hiring list. The
log entry as to her states, "No availability for work form
since June." Hinnegan had no conversations with her
with respect to recall. I find that the foregoing evidence
does not affect her right to a reinstatement offer and
backpay.
q. C. Longacre was recalled about April 1976 to a job
in the same general work area, and on the same shift, as
her old job. Her new. job required her to do connecting,
which was the work she had previously performed, and
also to train as a stator repair "girl." The new job would
have eventually led to a higher wage rate than her old
job. After trying the new job for a couple of days, Lon-
gacre told Hinnegan that her eyes would not stand the
strain of "repair girl" work, which requires the employee
to spend a lot of time looking through a microscope. She
asked to be relieved of the new job and to wait for her
old job to open up Respondent agreed to this arrange-
ment. I find that the foregoing evidence does not affect
her right to reinstatement and backpay. Daniel A. Dono-
van, el al. d/b/a New Fairview Hall Convalescent Home,
206 NLRB 688 (1973), enfd. 520 F.2d 1316 2d Cir. 1975),
cert. denied 423 U.S. 1053 (1976).
r. R. F. Marsden was never offered a job. On May 5,
1975, he told Hinnegan that he wanted to turn in his
badge, that he was not coming back because he was
going to take a different type of job in order to make
more money, and that he was sorry for getting involved
and had been led down the garden path. He was termi-
nated as of May 6, 1975. The log entry as to him states,
"Was out on strike-resigned to take another job." He
was not on the April 10 preferred hiring list. I conclude
h"' T e brief of counsel for Ihe General Counlscl. vhose ohJectioll at
the hearing led to this limnitation on HinneganX \ ts ilsono) disregards its
hearay character Holever. Ihe General Counsel's successfully tendered
objection at the hearing may have led union ciounsel to refrain Ironl a
like ibijetlion, and union counsel's brief does not specifically discuss
Korth
I 120
HAROWE SERVO CONTROLS, INC
that Marsden resigned, and that his backpay was tolled
as of May 5, 1975. However, he remains entitled to an
offer of reinstatement. His backpay is to recommence 5
days after Respondent's receipt of this Decision, unless
Respondent has by that time offered him reinstatement.
See the discussion in connection with Birely.
s. There is no evidence that T7 R. Miller was ever of-
fered a job. On April 3, 1975, he gave Respondent a
letter dated April I, stating that he was available for
part-time employment only, and would accept only a
higher starting rate than when he left. By reason of this
letter, he was not placed on the April 10 preferred hiring
list. On June 9. Respondent received from him a form on
which he had checked the entry "I have taken another
job and wish to be terminated from employment at
Harowe." He added to this form the written notation, "If
I am needed part-time please let me know (nights)." By
letter to him dated June 12, 1975, Respondent stated, "In
accordance with the form you returned indicating that
you had taken another job and wished to be terminated
from Harowe . . . we have processed your termination
effective June 10, 1975." The log entry as to him states,
"Resigned from strike."
I conclude that Miller was not available for his old
full-time job as of April 1, 1975, and that his backpay is
tolled as of that date. However, he remains entitled to an
offer of reinstatement, and to vacation pay attributable to
the year preceding April 30, 1975. Backpay as to him
will recommence 5 days after Respondent receives this
Decision, unless Respondent has previously made such
an offer. See the discussions in connection with Birely
and Clay.
t. C. M. Murrey was placed on the preferred hiring list,
and was still on that list as of April 1976. She remains
entitled to a reinstatement offer and to backpay.
u. On April 21, 1975, following the receipt through the
mail of the employee badge of J. C. Pardue, Hinnegan
wrote her a letter acknowledging receipt of the badge
and stating, "Although there was no message, we assume
that you will not be returning to work at Harowe....
Effective this date we have put through termination
report indicating the above action." There is no evidence
that she ever replied to this letter. The log entry as to
her states that she "resigned." Pardue's name appears on
the April 10 preferred hiring list. There is no evidence
that she was ever offered a job. I conclude that Pardue
resigned, and that her backpay should be tolled as of
April 21, 1975. However, she remains entitled to a rein-
statement offer, and to vacation pay attributable to the
year preceding April 30, 1975. Backpay as to her will re-
commence 5 days after Respondent receives this Deci-
sion, unless Respondent has by that time offered her rein-
statement. See the discussion in connection with Birely
and Clay.
v. V. Piecara's name was not on the April 10 preferred
hiring list. About February 17, 1976, Hinnegan offered
her a job in gear deburring. This job was in the same de-
partment, on the same shift, and at the same rate of pay
as her old job. Hinnegan testified that the new job was in
"Roughly the same area" as her old job, but that she
would be moving from one physical area of the plant to
another. Her old job called for her to take burrs off parts
which had been drilled, threaded, or milled, after they
had been machined. The new job would have required
her to take burrs off gears after they had been machined.
Piecara turned down the gear-deburring job, stating
"that she would rather wait for some future time; and
she just was not prepared to come in and work in gear,
and . . . she didn't think she would like it and didn't
want to do it." The log entry as to her states that she
was terminated on February 19, 1976, because "she did
not accept."
Because Respondent has failed to sustain its burden of
showing that her prestrike job no longer existed, I would
regard the offer made to Piecara as insufficient to satisfy
Respondent's obligations even if she had been offered a
substantially equivalent job (see cases cited supra, fn.
311). In any event, Respondent has failed to sustain its
burden of showing that the job offered her was substan-
tially equivalent to her prestrike job. I conclude that she
remains entitled to a reinstatement offer and to backpay.
w. F Pishner's name was on the April 10, 1975, pre-
ferred hiring list. At Respondent's request, in early Feb-
ruary 1976 she came to Hinnegan to talk about possible
job openings. Hinnegan told her that her old job was not
available at that time, and asked whether she would be
willing to take other jobs if they were open. She replied
that she was already working and making "pretty good
money," and would like to continue to work until her
old job opened up. There is no evidence that she was
ever offered a job. On February 19, 1976, Respondent
took her name off the preferred hiring list. The log entry
as to her states "Did not accept." I conclude that this
evidence does not affect her right to a reinstatement
offer and to backpay. Kenston Trucking Company, Inc.,
etc., 223 NLRB 502 (1976).
x. A. Ramirez, was not on the April 10, 1975, preferred
hiring list. She was removed from the preferred hiring
list on June 24, 1975, after she took another position. The
log entry as to her states "Resigned from strike-another
job." Hinnegan testified that he "believed" he offered
Ramirez "her job," but he did not recall what her pres-
trike job was or what job she was offered after the
strike. Aside from the dates of the log entry and the pre-
ferred hiring list action, there is no evidence about when
any such conversation took place. On June 24, 1975, Re-
spondent received from Ramirez a form on which she
had checked the entry, "I have taken another job and
wish to be terminated from employment at Harowe."
I conclude that Ramirez resigned, and that backpay as
to her should be tolled as of June 24, 1975. However, she
remains entitled to a reinstatement offer. Backpay as to
her will recommence 5 days after Respondent receives
my Decision, unless Respondent has previously offered
her reinstatement. See the discussion in connection with
Birely.
y. J. A. Reeves was on the April 10, 1975, preferred
hiring list. About early October 1975, Respondent of-
fered her her old job on her old shift and at the same
rate of pay as before. About October 30, Hinnegan told
her that Respondent had given her time to arrange for
transportation and had attempted to find a ride to work
for her, and that Respondent was at the point where it
I 1 2 1
DI)CISI()NS OF NATIONAL LABOR RELATIONS BOARD
had to fill the job. By letter dated Friday, October 31,
1975, Respondent reiterated this job offer and advised
Reeves that it considered her failure to accept this offer
as a voluntary termination on her part. The log entry
states that she was terminated on October 31 because
"did not accept job offer-on strike." I conclude that her
gross backpay should take into account all the increases
(totaling 30 cents) she would have received if Respond-
ent had complied with its statutory duty to offer her re-
instatecnlet at the end of the strike and she had accepted
that offer. However, I find that for all other purposes
she received a sufficient offer of reinstatement, that she is
not entitled to a second offer of reinstatement, and that
she is not entitled to backpay after November 3, 1975,
when I infer she received the October 31 letter. See Reli-
ance Clay Products supra, 105 NLRB at 136-137.
z. J. Rivcra was terminated by Respondent on August
29, 1975, after another employee, Jones, telephoned Hin-
negan that Rivera was going to take a job somewhere
else. Hinnegan's testimony about this call was not re-
ceived to show what Rivera told Jones. The log entry as
to Rivera states, No req. form since June. Hinnegan did
not offer Rivera her job back. Her name does not appear
on the April 10 preferred hiring list. The parties stipulat-
ed that she was either not placed on or removed from
the preferred hiring list because she failed to individually
advise Respondent of her availability or continued avail-
ability for recall. I conclude that this evidence does not
affect Rivera's right to a reinstatement offer and to back-
pay.
aa. M. Rochester was on the April 10, 1975, preferred
hiring list. About early March 1976, Hinnegan offered
her her old job on her old shift. During the next week
and a half, Respondent twice reiterated this offer. Roch-
ester never reported to work. About mid-March, Re-
spondent removed her from the preferred hiring list.
I conclude that Rochester's gross backpay should take
into account all the increases she would have received if
Respondent had complied with its statutory duty to offer
her reinstatement at the end of the strike and she had ac-
cepted that offer. However, I find that for all other pur-
poses she received a sufficient offer of reinstatement, and
that she is not entitled to backpay after March 15, 1976.
See Reliance Clay Products, supra, 105 NLRB at 136-137.
b. R. Roy was on the April 10 preferred hiring list. Re-
spondent took him off this list on August 19, 1975. The
log entry as to him states "Took other position." Shortly
before that date, Hinnegan chanced to encounter Roy in
a bar. Roy said that he was then working at a more chal-
lenging job, that it was a good job which paid him "far
better" than his old job with Respondent, that he was
very happy in it, and that he would consider coming
back if Respondent had a very high paying job at a
much higher status, but otherwise he was happy where
he was. Roy was not then under the influence of alcohol.
Hinnegan asked him to send a written resignation to
clear up Respondent's records. He said he would, but
never did. Hinnegan did not offer Roy a job on this oc-
casion, and could not recall whether Respondent was
then looking for a production scheduler, Roy's prestrike
job. There is no evidence that Respondent ever offered
him a job.
I conclude that Roy did not in fact resign, that there is
no evidence that his statements to Hinnegan led Re-
spondent to withhold a reinstatement offer Roy other-
wise would have received. and that doubts whether he
would have accepted any such offer should be resolved
against Respondent. Heinrich Motors, Inc. v. N.L.R.B.,
supra, 403 F.2d at 150; see also Kenston Trucking, supra,
223 NLRB 502. He remains entitled to a reinstatement
offer and to backpay.
cc. L. A. Szeliga was on the April 10 preferred hiring
list. In mid-May 1975, Hinnegan offered her a job in the
machine shop on the second shift running the Kummers.
Her prestrike job had been "OPA Lathe Auto" on the
second shift, a job which required her to run Kummers
and other lathes. She stated that she was not prepared to
come back at that time, citing transportation problems
and other considerations not shown in the record. Re-
spondent tried to get a ride for her, but could not. By
letter dated June 18, 1975, Respondent advised Szeliga
that she had been terminated, effective June 13, 1975.
The letter stated that Respondent "has no choice but to
accept your resignation . . . your failure to accept the
job offered placed you in the position of being automati-
cally terminated." The letter asked her to return her
badge, but she never did, nor did she reply to the letter.
I conclude that she is not entitled to backpay after May
15, 1975, the approximate date on which she refused a
reinstatement offer.
dd. L. F: Thompson as not on the April 10, 1975, pre-
ferred hiring list. In early February 1976, Hinnegan told
her that Respondent had a job in the stator stacking area
and asked her whether she would be interested in taking
it until possibly her old job opened up. She said that she
would come in the following Monday, but never came
or gave any explanation for not coming. This job was in
new labor grade I, whose maximum rate is $2.91 an
hour. Before the strike, Thompson had been a sewer
stator in old labor grade 2, whose maximum was $3.30
an hour. Before the strike, she had been paid $2.83 an
hour. Hinnegan told her that she would receive her old
rate plus 10 cents. She did not ask what her labor grade
would be, and he did not tell her. Hinnegan testified that
"she would be promotable, and I'm sure she would have
no problem," but that he did not discuss this matter with
her.
I conclude that Respondent has never offered Thomp-
son reinstatement to her old job, has failed to show that
it no longer existed, and, in any event, has failed to show
that the job she was offered was substantially equivalent
to her old job. Accordingly, she remains entitled to a re-
instatement offer and to backpay. In so finding, I find it
unnecessary to determine the materiality of the differ-
ence between the maximum rate in her prestrike job and
the maximum rate in the job she was offered, which dif-
ference resulted from the new wage system which Re-
spondent unlawfully put into effect. Cf. American Manu-
facturing Company of Texas, 98 NLRB 226, 245 (1952),
enforcement denied on other grounds 203 F.2d 212 (5th
Cir. 1953).
ee. On April 1, 1975, Respondent received a form
from H. Weaver dated "9-3-75," and stating, "I am for-
11 22
HAROWE SERVO CONTROLS, INC
mally requesting to return to my former position." She
was put on the April 10 preferred hiring list. Hinnegan
testified that she "was asked a number of times to come
back,' ; but he did not give dates or specify the jobs in-
volved. She never again performed any active work for
Respondent. On April 28, 1975, Weaver signed a docu-
ment stating, "I wish to formally request retirement from
Harowe Servo Controls, Inc. I also wish to make the ef-
fective date as soon as possible." By memorandum dated
that same day, Lukens asked Hinnegan to process this re-
quest. By letter dated May 6, 1975, Hinnegan advised
Weaver that he was enclosing a check to cover her
1974--75 vacation (see supra, part II,B,11) and would
soon be receiving her pension check. I conclude that Re-
spondent has made no showing that Weaver was offered
reinstatement at any time. However, I conclude that she
voluntarily retired as of May 6, 1975. 1 find that she is
entitled to backpay up to that date. She remains entitled
to a reinstatement offer. Backpay as to her will resume 5
days after Respondent has received my Decision, unless
it has offered her reinstatement before that date. See the
discussion in connection with Birely. While Weaver re-
tired rather than resigning, I note that her pension was
reduced because she retired before the age of 65.
For the foregoing reasons, I shall require Respondent
to offer reinstatement to the employees listed in Appen-
dixes A and C, if it has not already done so; but shall not
require Respondent to offer reinstatement to the employ-
ees listed in Appendix B. The employees listed in Appen-
dixes A, B, and C shall be made whole for loss of any
pay they may have suffered by reason of Respondent's
failure promptly to offer them reinstatement. Because an
effective application for reinstatement was made on
March 25, 1975, on behalf of the strikers named in Ap-
pendixes A, B, and C, and because no offers were forth-
coming as to any of them within 5 days, their backpay
will begin to run on March 26, 1975. Drug Package,
supra, 228 NLRB 108. Except for Birely, Bowyer, Cain,
Clay, Gagliardi, Hunt, Marsden, Miller, Pardue, Ra-
mirez, and Weaver, whose cases are discussed above,
backpay as to each employee will continue to run until
he has received an offer of reinstatement. Backpay will
be computed on a quarterly basis as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as prescribed in Florida Steel, supra. Each employee's
gross backpay will include the wage increases he would
have received if he had received and accepted a timely
offer of reinstatement. Net interim earnings are to be de-
ducted. However, the amount of backpay due will not be
affected by any unemployment compensation benefits the
employees may have received. Gullett Gin Company, Inc.
v. N.L.R.B., 340 U.S. 361 (1951). Backpay under this
paragraph will be in addition to and unaffected by back-
pay attributable to the unlawful suspension of the 1974
wage program. While Respondent's January 1975 wage
program might have called for lower wage rates if the
1974 wage program had remained in effect, doubts in
this respect should be resolved against Respondent,
whose unfair labor practices created this doubt. Televi-
sion Wisconsin, supra, 224 NLRB at 780-781; N.L.R.B. v.
Frick Co., supra, 423 F.2d at 1333, fn. 12; Leeds & Nor-
throp Co. v. N.L.R.B., supra, 391 F.2d at 880. However,
of course, no employee is entitled to more than one va-
cation payment attributable to the year May 1, 1974-
April 30, 1975.
Further, Respondent will be required to restore the
ladies' lounge to the condition it was in before October
1974; except that, because the Union did not seek the re-
moval of the lockers (so long as they were used by
women), removal of women's lockers will not be re-
quired. Also, Respondent will be required to return the
January 23, 1975, warning notice to Copella, and to
excise all reference thereto from its personnel files. Main-
tenance Contractor of Kings Country, etc., 228 NLRB
1182, fn. 7 (1977).
In addition, Respondent will be required, on the
Union's request, to bargain with the Union. The General
Counsel's excellent brief proposes that Respondent be re-
quired to bargain, on request, within 15 days of the
Order; and to agree to any request by the Union that a
representative of the Federal Mediation and Conciliation
Service attend negotiations. I regard these suggested re-
quirements as tending to improve the prospects of fruit-
ful negotiations, and shall include them in the recom-
mended Order. Further, Respondent will be required, on
request, to incorporate in a signed contract any agree-
ment reached; to restore the 6-minute grace period; to
rescind the January 1975 wage program; and to provide
the Union with (1) a copy of the pension booklet and of
the written explanation of changes therein; (2) pay scale
and Respondent's formula for reaching the top rate as
well as the bottom rate for each job; and (3) the wage
progressions scheduled for 1974 through 1976. Because
as an incident to the instant litigation Respondent pro-
vided union counsel with financial data relevant to Re-
spondent's December 17, 1974, offer, and because such
1974 information would in any event be of little use to
the Union during any bargaining after the issuance of
this Order, I shall not require Respondent to provide this
information. However, Respondent will be required to
provide the Union, on request, with financial data rele-
vant to any claim by Respondent of inability to pay; and
with any other information relevant to collective bar-
gaining. In addition, Respondent will be required to re-
imburse the employee members of the bargaining com-
mittee for wages lost while attending the negotiating ses-
sions, with interest as called for by Florida Steel. supra.
M. F A. Milling Company, 170 NLRB 1079, 1080 (1968),
enfd. 463 F.2d 953 (D.C. Cir. 1972). The record indicates
that the Union in fact reimbursed the employees for at
least some of such losses. To that extent, the Union is to
be made whole, with interest. Truck Drivers, Oil Drivers,
Filling Station and Platform Workers Union, Local No.
705, an affiliate of International Brotherhood of Teamsters
(Gasoline Retailers Association), 210 NLRB 210, 211-212
(1974).
In addition, the General Counsel requests an order re-
quiring Respondent to bargain with the Union for at
least 15 hours a week, and to report to the Regional Di-
rector every 15 days about the progress of negotiations.
This proposed order impresses me as being unnecessarily
rigid, and compliance therewith might divert time and
attention from the negotiating process itself. Respondent
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be required to meet and negotiate with the Union
reasonably often and for reasonably long periods, and to
comply with requests of the Regional Director, made at
reasonable intervals, for reports (which the Regional Di-
rector may require to be in writing and/or submitted to
the Union as well) on the progress of the negotiations.
Also, the Union requests that Respondent be required
to reimburse the Union for certain expenses incurred in
the litigation of this proceeding, from the investigation of
the charge, through the appeals to the Board's Office of
Appeals in Washington, D.C., and in the preparation and
litigation of the proceeding. The Union would include in
this order attorney's fees and related clerical expenses,
reimbursement for the salaries of union representatives
who have appeared as witnesses in the proceeding, sub-
pena fees, witness fees, and the cost of its copy of the
transcript. However, while the Board has held that it
will award litigation expenses where defenses are frivo-
lous, it has rejected requests for such awards where the
issues raised in defense are debatable even where in ret-
rospect the unfair labor practices found may be charac-
terized as flagrant, aggravated, and pervasive-particu-
larly where, as here, the findings depend to some extent
upon the resolution of credibility issues. Television Wis-
consin, supra, 224 NLRB at 781. Accordingly, the
Union's request in this respect is rejected.
Also, the General Counsel and the Union both request
an order requiring Respondent to reimburse the Union
for the bargaining expenses which it incurred while Re-
spondent was breaching its bargaining obligation, includ-
ing reimbursement for clerical expenses and the union
representatives' salaries and mileage. The parties cite no
cases providing such a remedy, nor do I know of any.
M. F. A. Milling, supra, 170 NLRB at 1080, which re-
quired the employer to reimburse employee members of
the negotiating committee for wages lost while attending
negotiating sessions, is grounded on the view that the
employees "did not receive the compensatory benefit of
good-faith bargaining for which they sacrificed their
wages. Since the [employer] never had any intention to
bargain in good faith, it deliberately deprived the em-
ployees of their wages as well as this anticipated bene-
fit." Moreover, the requirement that Respondent reim-
burse the Union for its reimbursement to the employees
furthers the protection afforded employee victims of
such deprivation. Cf. Gasoline Retailers, supra, 210
NLRB at 211-212. However, the Union here exists for
the very purpose of, inter alia, engaging in bargaining ne-
gotiations, and was in effect compelled by its certifica-
tion to embark thereon and to undergo related expenses
which might well have been about the same regardless of
the employer's bad faith. In short, as to bargaining ex-
penses, the injury which Respondent's bad-faith bargain-
ing imposed on the Union was basically institutional
rather than financial. Accordingly, I am not inclined to
break new ground by issuing such an order.
Because Respondent has never bargained in good faith
with the Union pursuant to the Board's certification, the
certification year has not yet begun to run, and the certi-
fication year will be extended until at least I year after
Respondent begins to bargain in good faith. Mar-Jac
Poultry Company, 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
Respondent will also be required to post appropriate
notices.
For reasons indicated supra, fn. 458, Aero will also be
required to comply with the Order.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 4 62
The Respondent, Harowe Servo Controls, Inc., its of-
ficers, agents, successors, and assigns, including Aero
Systems, Inc., shall:
1. Cease and desist from:
(a) Suspending or canceling scheduled wage increases,
withholding Christmas bonuses or Christmas turkeys, dis-
mantling the ladies' lounge, issuing warning notices, and
refusing to reinstate strikers, in order to punish employ-
ees for having chosen representation by United Electri-
cal, Radio and Machine Workers of America, Local 145
(the Union) and engaging in activities on its behalf, or to
discourage membership in the Union.
(b) Withholding employees' vacation pay in conse-
quence of their protected strike activity.
(c) Refusing to bargain collectively in good faith with
the Union concerning rates of pay, hours of employment,
and other terms and conditions of employment in the ap-
propriate unit described in paragraph C of Section III of
this Decision, entitled "Conclusions of Law."
(d) Unilaterally changing wages or working condi-
tions, without giving the Union notice and an opportuni-
ty to bargain and, if the Union requests such bargaining,
without first reaching an impasse on the matter.
(e) Failing to give or unreasonably delaying in giving
the Union, on request, information relevant for collec-
tive-bargaining purposes.
(f) Attempting to bargain directly with employees
about grievances, where they or the Union want griev-
ance representation by the Union.
(g) Issuing warning notices to employees because they
attempt to process grievances as union representatives or
engage in other protected union activity.
(h) In any other manner discouraging membership in
the Union or any other labor organization by discrimina-
tion with regard to hire or tenure of employment or any
term or condition of employment.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
482 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Section 102 48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
1124
HAROWE SE RV() CONI ROLS INC.
(a) To the extent that Respondent or Aero has not al-
ready done so, offer immediate and full reinstatement to
their former positions or. if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, to
all the employees listed in Appendices A and C, dismiss-
ing if necessary any persons hired on or after January 27,
1975.
(b) Make whole all the employees listed in Appendixes
A, B, and C, for any loss of pay they may have suffered
by reason of Respondent's or Aero's failure to make
them a timely offer of reinstatement, in the manner set
forth in that part of the Decision entitled "The
Remedy."
(c) Make whole all the employees listed in Appendixes
A (except Helen Weaver), B, and C for losses resulting
from Respondent's unlawful withholding of vacation
pay, in the manner set forth in that part of the Decision
entitled. "The Remedy."
(d) Make employees whole for loss of wages resulting
from Respondent's cancellation or suspension of the 1974
wage program, from Respondent's January 1975 imple-
mentation of a new program, and from Respondent's un-
lawful change in the grace period, in the manner set
forth in that part of this Decision entitled "The
Remedy."
(e) Make employees whole for Respondent's unlawful
failure to give Christmas bonuses and Christmas turkeys
in 1974, and any subsequent failure to afford such bene-
fits, in the manner set forth in that part of this Decision
entitled "The Remedy."
(f) Restore the ladies' lounge to the condition it was in
before October 1974, except that the women's lockers
may remain.
(g) Return to Ann Copella the warning notice slip
issued to her on January 23, 1975, and excise all refer-
ence thereto from its personnel files.
(h) Upon the Union's request, bargain collectively in
good faith, within 15 days of this recommended Order,
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment, with the
Union as the exclusive collective-bargaining representa-
tive of all the employees in the aforesaid unit, and, if an
agreement is reached, embody it in a signed contract.
(i) Agree to any request by the Union that bargaining
sessions be attended by a mediator from the Federal Me-
diation and Conciliation Service.
(j) Upon the Union's request, restore the 6-minute
grace period, and rescind the January 1975 wage pro-
gram.
(k) On the Union's request, provide it with (1) a copy
of the pension booklet and of the written explanation of
changes therein; (2) pay scale and Respondent's formula
for reaching the top rate as well as the bottom rate for
each job; (3) the wage progressions scheduled for 1974
through 1976; (4) financial data relevant to any claim by
Respondent of inability to pay; and (5) any other infor-
mation relevant to collective bargaining.
(1) On the Union's request, meet and negotiate with it
reasonably often and for reasonably long periods.
(m) Comply with requests of the Regional Director for
Region 4, made at reasonable intervals, for reports
(which the Regional Director may require to be in writ-
ing and/or submitted to the Union as well) on the prog-
ress of the negotiations.
(n) Reimburse the employee members of the bargain-
ing committee for wages lost while attending the 1974
and 1975 negotiating sessions, and reimburse the Ulnion
for any such reimbursement it may have afforded to
these employees, in the manner set forth in the part of
this Decision headed "The Remedy."
(o) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all per-
sonnel records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary or useful to analysis of the amounts of
backpay due under the terms of this Order, including the
slips in employees' individual personnel files which de-
scribe the increases scheduled under the 1974 wage pro-
gram and records of the time spent by employees during
contract negotiations.
(p) Post at their West Chester. Pennsylvania, place of
business copies of the attached notice, consisting of Ap-
pendix I and Appendixes A, 3, and C.
46': Copies of said
notice, on forms provided by the Regional Director for
Region 4, after being duly signed by representatives of
Respondent and of Aero Systems, Inc., shall be posted
by them immediately upon receipt thereof, and be main-
tained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees. including employees on Aero Systems' pay-
roll, are customarily posted Reasonable steps shall be
taken by Respondent and Acro Systems to insure that
said notices are not altered. defaced, or covered by any
other material.
(q) Notify the Regional I)irector for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
The complaint is dismissed to the extent that it alleges
that Respondent unla;wfully restricted employees from
going to the restroom, failed to provide the Union with a
list of the foremen. reclassified certain employees, failed
and refused to offer reinstatement to R. H. Erskine, and
advised nonstrikers during the strike that they had com-
pleted a satisfalctory probationary period.
The complaint is also dismissed to the extent that it al-
leges that Respondent's withholding of vacation pay vio-
lated Section 8(a)(3) of the Act.
4 i: hI the evre l tht thtis ()rdcr t I enforced by a Jtilgmrttll f1 a I. nt'd
Slaiie Co hurt of Appeals the words it the lOtl.ce rleadinig "l'otcd h,
order of thle Naitlotia l. ahor Rcatlions Iloard" hall read "'oslcd Puirtl-
ail l .o a Jlludgmen.l t of the L nItI d Stalc, (Collrl of Appeals tltlf)oll'tg t111
)rder of tie National L.ahor Rc[llonis I.iard-
APPENDIX A
M. F. Abbott
H. M. Archie
M. Battle
W. Bazylewicz
P. A. Becker
L. M. Belmonte
P. M. Beulah
M. E. Bevans
D. Long
C. L. Longacre
S. L. Lyster
M. Malinowski
R. F. Marsden
D. M. Marvin
J. J. Masci
T. M. McFadden
1125
DF. CISIONS OF NATIONAL I AB()R REI.A IONS HO(ARD
B. Birely E. V. Messick
M. A. Bowyer T. R. Miller
G. M. Cain M. E. Morrison
B. L. Chandler C. M. Murray
E. Clay E. Nance
P. C. Condit T. O. Palmore
E. F. Copes J. C. I'ardue
R. Craig M. Paskings
L. T. Dennis E. B. Peacock
L. S. Dillon R. Petrillo
D. DiPietro M. L. Phillips
D. L. Eddis V. Piecara
T. G. Fightmaster F. N. Pishner
S. A. Frail A. Ramirez
B. Gagliardi M. Reeves
K. L. Garneski J. Rivera
E. C. Gibbons R. J. Roy, Jr.
B. Gigetts J. Samuels
M. R. Goldsborough L. Searfoss
B. Goode H. T. Selskis
E. M. Gould J. 1. Shroyer
S. E. Green K. Skidmore
R. A. Harlon L. A. Sloane
M. B. Harrison I. C. Smith
M. V. Hicks M. J. Smith
L. Hoey
B. Hunt
D. H. Jaskson
M. E. Johnson
W. Johnson
D. C. Jones
R. D. Kirk
E. M. Korth
M. Lakatosh
M. M. Latham
E. R. Bath
J. Carpinelli
D. Coppick
D. Barnett
E. Boyer
B. Collins
A. Copella
A. Grayson
R. Hillard
E. R. Snyder
J. Starkey
B. Y. Steele
E. Thompson
L. F. Thompson
V. Turioscy
J. N. Wallace
H. D. Weaver
A. M. Westcott
J. Wiegand
A. L. LeCates
E. M. Will
APPENDIX B
J. A. Reeves
MN. Rochester
L. A. Szeliga
APPENDIX C
B. J. Hughes
P. H. Murrey
G. O'Flynn
R. I'askings
N. Rossi
R. Roundtree
1126h