Hedstrom Co.

National Labor Relations Board - Board Decisions

Apr 28, 1978

235 N.L.R.B. 1198 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hedstrom Company, a subsidiary of Brown Group,
Inc. and District No. 98, International Association
of Machinists and Aerospace Workers, AFL-CIO.
Cases 6-CA-9532, 6-CA-9575, and 6-CA-9810
April 28, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 26, 1977, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions 2 of the Administrative Law
Judge, to modify the remedy so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977),3 and to adopt his
recommended Order, as modified herein.
1. The Administrative Law Judge found, and we
agree, that employee Lewis was responsible for
making physical contact with vehicles driven by
Respondent's president, Ketcham, and Foremen
Beland and LeGros when they drove through the
picket line which was conducted by Lewis and two
other employees. We also agree with his finding that
the above-mentioned conduct was accompanied by
threats to Ketcham and to Supervisor Jarvela, who
was observing the picketing from inside the plant
gate. However, we disagree with the Administrative
Law Judge's conclusion that Lewis' misconduct was
not so serious as to disqualify him from further
employment with Respondent.
Sections 7 and 13 of the Act grant employees, inter
alia, the right to strike and picket; however, not all
forms of conduct literally within the terms of these
sections are entitled to statutory protection. In
I Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3.
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 The Administrative Law Judge indicated, at fn. I I of his Decision, that
his conclusion that the strike was an unfair labor practice strike, and that the
strikers were unfair labor practice strikers, was based upon his finding that
the strike was caused by the Respondent's refusal to comply with the
Board's bargaining order contained in the Board's Decision at 223 NLRB
235 NLRB No. 167
deference to the rights of employers and the public,
the Board and the courts have acknowledged that
serious acts of misconduct which occur in the course
of a strike may disqualify a striker from the protec-
tion of the Act. In the case of unfair labor practice
strikers, the misconduct of the striker must be
balanced against the severity of the employer's unfair
labor practices which provoked the dispute.4 We find
that the seriousness of Lewis' misconduct, when
considered in light of Respondent's unfair labor
practices, warrants his discharge.
On the morning of August 24, 1976,5 Ketcham
drove his car toward the picket line formed by
employees Will, Hillegas, and Lewis. When Ketc-
ham's car passed between Hillegas and Lewis, Lewis
hit the car with his body, causing the mirror which
had been mounted on a swivel to be flattened against
the righthand side of the car. Ketcham stopped upon
hearing the impact. Lewis then screamed at Ketc-
ham, "Get out of that car, you big prick, or I'll kick
the shit out of you, you big prick, come on, come
on." Ketcham resumed driving and passed through
the picket line into Respondent's parking lot. Thus,
Lewis not only threatened Ketcham the company
president, with physical harm if he did not leave his
car, but also attempted to physically prevent the car
from passing by striking it and causing damage.
At the time of the encounter between Ketcham and
Lewis, several of Respondent's officials were sta-
tioned in the driveway behind the pickets for the
purpose of directing traffic. Among these was Jarve-
la, who saw the incident. Jarvela told Lewis that
Lewis had caused the incident by stepping into
Ketcham's car. Lewis replied, "I'm going to get you,
Red. I'm going to kill you." When Jarvela asked if
Lewis were threatening him, Lewis took several steps
toward Jarvela and said, "I will get you, Red. I'll kill
you." Lewis' initial threat to Jarvela was therefore
repeated in the context of physical movement toward
Jarvela. In these circumstances, Lewis' conduct
undoubtedly constituted a serious threat of bodily
harm to Jarvela.
Shortly after the exchange between Jarvela and
Lewis, Foreman Beland approached the picket line
in a pickup truck. Lewis kicked the right rear fender
of the truck as it moved slowly past him. A few
1409. That Decision was remanded to the Board by the U.S. Court of
Appeals for the ThirJ Circuit for the purposes of setting forth the grounds
on which the Order was based, and determining whether it is still
appropriate. In a Supplemental Decision and Order issued this day, the
Board on remand, has reaffirmed its decision that a bargaining order is
warranted. 235 NLRB 1193. In accordance with that decision, we adopt the
Administrative Law Judge's conclusion that the strike in the instant case is
an unfair labor practice strike, and the strikers are unfair labor practice
strikers.
3 See, generally, Isis Plumbingd Heating Co., 138 NLRB 716 (1962).
Coronet Casuals, Inc., 207 NLRB 304 (1973).
5 All dates are in 1976 unless otherwise indicated.
1198
HEDSTROM COMPANY
minutes later, Lewis struck Foreman LeGros' station
wagon as it passed through the picket line. Thus,
Lewis' picketing involved physical attempts to im-
pede the passage of vehicles through the picket line.
Taken as a whole, Lewis' conduct consisted of
serious threats of bodily harm to two people, and
physical actions against three cars resulting in dam-
age to one of the cars. Respondent's unfair labor
practices are not of such severity as to outweigh the
seriousness of Lewis' misconduct. At the time of
Lewis' actions, Respondent's only unlawful act had
been to refuse to recognize the Union pending the
outcome of enforcement proceedings in the Third
Circuit Court of Appeals.6 While it is true that Lewis
would not have been on the picket line had Respon-
dent lawfully complied with the Board's bargaining
order, we find that this fact alone is insufficient to
counteract the seriousness of Lewis' misconduct. To
the contrary, we find that Lewis' misconduct was
sufficiently serious to support his discharge by
Respondent.
The General Counsel, however, contends that the
real reason for the discharge of Lewis was Respon-
dent's union animus and not Lewis' picket line
misconduct. He asserts that Respondent condoned
picket line misconduct by Connor, a nonstriking
employee, while it did not tolerate such misconduct
by Lewis, a striking employee. We find no merit in
this contention.
In support of his position, the General Counsel
points to the following facts with respect to Respon-
dent's treatment of Connor. Director of Employee
Relations Sherer was informed that Connor, whom
he knew to be a nonstriking employee, had been
involved in an incident on the picket line. He gave
Connor the opportunity to explain his version of the
incident. Sherer testified that Connor told him he
had driven to the picket line and exchanged words
with the picketers. Sherer told Connor he should not
have done that and not to go to the picket line again.
No further action was taken with regard to Connor.
Sherer, however, admitted that he subsequently read
a newspaper article mentioning Connor in connec-
tion with assault charges. The article was entitled
"Strike-Related Assault Case Settled Out of Court."
It stated that four striking employees had filed
assault complaints against Connor, charging that he
had struck them while they were on the picket line.
The article further stated that a settlement was
reached wherein the charges were dismissed and
Connor paid prosecution and sheriffs costs, apolo-
gized to the four men, and gave assurance that he
would avoid contact with the persons on the picket
6 All of Respondent's other alleged unlawful acts involved herein
occurred after August 24, 1976. the date of Lewis' misconduct.
7 Ketcham, Beland, LeGros, and Jarvela, who were involved in the Lewis
line. The article also reported that the magistrate
urged both union and nonunion employees to refrain
from engaging in harassment. After Sherer read the
article, he did not conduct any further investigation
of the incident.
The General Counsel contends that Respondent's
treatment of Lewis and Connor is disparate inas-
much as Connor was given a chance to explain his
conduct and was not further investigated even
though Sherer's reading of the newspaper article
provided grounds for him to believe that Connor had
not given an accurate account of his involvement in
the incident. Lewis, on the other hand, was not given
an opportunity to explain his conduct and was
terminated on the same day it occurred. The General
Counsel argues that the reason for the difference in
Respondent's treatment of Connor and Lewis was its
union animus. We find no merit in this argument.
Respondent's officials were not present at the
incident involving Connor. When the incident was
brought to their attention, Connor was questioned by
Sherer, admitted that he had exchanged words with
the pickets, and was orally reprimanded by Sherer.
With respect to the decision to discharge Lewis, four
of the six Respondent officials 7 who made the
decision were directly involved in Lewis' conduct on
the picket line. It was therefore reasonable for them
to find that an explanation by Lewis or further
investigation of the incident was unnecessary.
In contrast, Respondent's officials had no direct
knowledge of the incident involving Connor. In
order to determine whether Connor was at fault, it
was therefore necessary for them to question him.
Thus, the difference in treatment of Lewis and
Connor is explained by Respondent's direct knowl-
edge of the conduct of the former and its indirect
knowledge of the conduct of the latter.
Further, we do not find that Sherer's failure to
conduct an investigation of Connor after reading the
newspaper article concerning the picket line incident
constituted condonation of misconduct by nonstrik-
ing employees. The article stated that the case had
been settled out of court, and that Connor was
required to apologize to the strikers. Thus, the article
left unanswered the question as to what role Connor
actually played in the incident. Further, there is no
evidence that the four striking employees, or anyone
else, made complaints to Respondent regarding
Connor's conduct after Sherer's interview with Con-
nor. In these circumstances, we find it reasonable
incidents, joined General Superintendent Griffiths and Sherer in making the
decision to discharge Lewis.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Sherer took no further action against Connor
after reading the newspaper article.8
Accordingly, we find that Respondent did not
unlawfully discharge Lewis and shall dismiss this
allegation of the complaint.
2. The Administrative Law Judge found, and we
agree, that employee Rena Ritchey was an unfair
labor practice striker who did not receive an appro-
priate offer of reinstatement, did not waive her right
to reinstatement, and was therefore unlawfully termi-
nated by Respondent. The General Counsel agrees
with this conclusion, but contends that the Adminis-
trative Law Judge should have also found that, even
if Ritchey were an economic striker, she was unlaw-
fully denied reinstatement. We find merit in this
contention.
The Administrative Law Judge properly found that
Ritchey had advised Respondent that she intended
to return to work after the strike and that Respon-
dent did not provide her with a valid unconditional
offer of reinstatement which included a reasonable
time within which to report.9 We agree for the
reasons set forth by him. Further, the parties stipulat-
ed that as of September 20, several days after
Ritchey's discharge, she had not been permanently
replaced. As a matter of law, economic strikers must
be reinstated upon their application following the
strike if they have not been permanently replaced as
of the time of the application.' 0 Thus, Ritchey, who
had not been permanently replaced, was entitled to
reinstatement even if she had been an economic
striker. Her reinstatement was unlawfully denied due
to Respondent's failure to provide an offer of
reinstatement with an adequate time within which to
respond. Accordingly, we find that Ritchey was
discharged in violation of Section 8(a)(3) and (1) of
the Act irrespective of her status as an unfair labor
practice striker.
3. The Administrative Law Judge found that on
September 14, the first day that striking employees
returned to work, Company President Ketcham
made the following remarks to former striker Erma
England, for the stated reason that the situation in
the plant was volatile and England had "a very foul
mouth" during the strike:
Look, I just wanted to make sure that you
understand the seriousness of the situation ....
Look. Would you please listen to me? Because
8 In addition, we note that Sherer took no investigatory action toward
the four striking employees involved in the court case, even though the
article stated that both striking and nonstriking employees were urged not to
engage in harassment.
9 Respondent initially gave Ritchey a few hours' notice and then
extended the notice by 2 days. As a result of being out of town, a fact of
which Respondent was aware, Ritchey did not receive either notice until it
was too late.
you are in a area that there are a few people who
have been on strike, and you've harassed an awful
lot of these people; and their feelings are running
awfully high, and I want you to stay in your work
area. Do you understand.
Ketcham conceded that he reiterated the work rules
to England with particular emphasis on her staying
at her workplace. The Administrative Law Judge
concluded that Ketcham's remarks were designed to
reduce friction in the plant and were not threats to
impose more onerous working conditions on her."
We disagree.
Ketcham admitted that he viewed England as an
active striker who had a foul mouth during the strike.
He also accused her of having harassed a number of
employees. In these circumstances, Ketcham's action
of singling England out for the purpose of reiterating
the work rules to her and commanding her to stay in
her work area cannot be construed as merely an
attempt to insure peace in the plant. Rather, it
conveyed the message that Respondent viewed En-
gland as a troublemaker and would enforce the work
rules more stringently against her than against other
employees.
We therefore find, contrary to the Administrative
Law Judge, that Respondent violated Section 8(a)(l)
of the Act by threatening employee England with the
imposition of more onerous work conditions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Hedstrom Company, a subsidiary of Brown
Group, Inc., Bedford, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(f):
"(f) Refusing to bargain with District No. 98 as the
exclusive bargaining representative of our employees
in the appropriate unit with respect to rates of pay,
wages, hours of employment, or other terms and
conditions of employment, and unilaterally and
without prior notice to District No. 98 promulgating
work rules."
10 Fleetwood Trailer Company, Inc. v. N.LR.B., 389 U.S. 375, 380-381
(1967).
i' No specific exceptions were filed with respect to this finding.
However, both the General Counsel and Respondent make reference to the
England incident in connection with their exceptions to other aspects of the
Administrative Law Judge's Decision. The issue therefore has been placed
before us. In the absence of exceptions thereto, Member Penello adopts the
Administrative Law Judge's dismissal of this allegation.
1200
HEDSTROM COMPANY
2. Insert the following as paragraph l(g) and
reletter the subsequent paragraph accordingly:
"(g) Threatening employees with the imposition of
more onerous work conditions for having engaged in
activity on behalf of the Union."
3. Substitute the following for paragraph 2(a):
"(a) Offer Rena Ritchey immediate and full rein-
statement to her former job or, if it no longer exists,
to a substantially equivalent job, and make her whole
for any loss of pay which she may have suffered as a
result of the discrimination practiced against her in
the manner set forth in the section of this Decision
entitled'The Remedy.' "
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint herein
be dismissed insofar as it alleges violations of the Act
other than those specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees, thereby
discriminating in regard to their hire and tenure
of employment in order to discourage member-
ship in International Association of Machinists
and Aerospace Workers, District No. 98, AFL-
CIO, or any other labor organization.
WE WILL NOT threaten employees with dis-
charge for having engaged in activity on behalf of
District No. 98.
WE WILL NOT tell employees that we will never
sign a contract with District No. 98.
WE WILL NOT solicit grievances from employees
to dissuade them from engaging in activities on
behalf of District No. 98.
WE WILL NOT interrogate employees concern-
ing their activities on behalf of the Union.
WE WILL NOT refuse to bargain with District
No. 98 as the exclusive bargaining representative
of our employees in the appropriate unit de-
scribed below with respect to rates of pay, wages,
hours of employment, or other terms and condi-
tions of employment and WE WILL NOT unilateral-
ly and without prior notice to District No. 98
promulgate work rules.
WE WILL NOT threaten employees with the
imposition of more onerous work conditions for
having engaged in activity on behalf of District
No. 98.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL make Rena Ritchey whole for any
loss of pay she may have suffered as a result of
our discrimination practiced against her, plus
interest, and WE WILL offer her full and immedi-
ate reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights
and privileges.
WE WILL rescind the plant work rules unilater-
ally promulgated on and after September 13,
1976.
WE WILL bargain, upon request, with District
No. 98 as the exclusive bargaining representative
of all employees in the bargaining unit described
below with respect to wages, rates of pay, hours of
employment, or other terms and conditions of
employment, including plant work rules, and, if
an understanding is reached, embody such under-
standing in a signed agreement. The bargaining
unit is:
All production and maintenance employees,
including group leaders at the Bedford,
Pennsylvania, plant of Hedstrom Company;
excluding office clerical employees, and
guards, professional employees and supervi-
sors as defined in the Act.
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
the above-named or any other labor organization.
HEDSTROM COMPANY, A
SUBSIDIARY OF BROWN
GROUP, INC.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
original charge herein (Case 6-CA-9532) was filed on
August 30, 1976,1 by District No. 98, International Associ-
ation of Machinists and Aerospace Workers, AFL-CIO,
herein called the Charging Party or Union. A complaint
thereon was issued on November 10, alleging violations of
Section 8(a)(3) and (1) of the Act. An answer thereto was
timely filed by Hedstrom Company, a subsidiary of Brown
Group, Inc., herein called the Employer or Respondent.
Another charge (Case 6-CA-9575) was filed by the
Charging Party on September 15. An amended charge
thereto was filed by the Charging Party on October 8. A
second amended charge thereto was filed on November 11.
I All dates refer to 1976 unless otherwise indicated.
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The third charge (Case 6-CA-9810) was filed by the
Charging Party on December 14. A consolidated complaint
and notice of hearing as to the last two charges was issued
by the General Counsel of the National Labor Relations
Board on December 20 alleging violations of Section
8(a)(1), (3), and (5) of the Act as detailed therein. An
answer thereto was timely filed by Respondent on Decem-
ber 30. Pursuant to notice, the hearing was held on the
above complaints by the Administrative Law Judge at
Bedford, Pennsylvania, on February 14, 15, and 16, 1977.
Briefs have been duly filed by General Counsel and
Respondent which have been duly considered.
FINDINGS OF FACT 2
1. THE EMPLOYER'S BUSINESS
The Employer is a Delaware corporation with its princi-
pal offices located in Bedford, Pennsylvania, where it is
engaged in the manufacture and nonretail sale of juvenile
furniture and toys. During the 12-month period immediate-
ly preceding the issuance of the consolidated complaint
Respondent received goods and materials valued in excess
of $50,000 from points located outside the Commonwealth
of Pennsylvania, for use at its Bedford, Pennsylvania,
facility. The complaint alleges, the answer admits, and I
find that the Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts3
1. Background and strike
The Union's organizational effort among the production
workers at Respondent's Bedford, Pennsylvania, plant
culminated in an election held on March 28, 1974, which
the Union lost. Objections to the election and unfair labor
practice charges were filed by the Union. A Board
Decision and Order, dated May 12, found that Respondent
had engaged in misconduct in violation of Section 8(aXI)
and (5) of the Act. 4 The Board's Order provides, inter aria,
that Respondent bargain with the Union as the exclusive
collective-bargaining representative of Respondent's em-
ployees. Thereafter, an exchange of letters, which are in
2 There is conflicting testimony regarding many allegations of the
complaint. In resolving these conflicts, I have taken into consideration the
apparent interests of the witnesses. In addition, I have considered the
inherent probabilities; the probabilities in light of other events; corrobora-
tion or lack of it; and consistencies or inconsistencies within the testimony
of each witness, and between the testimony of each and that of other
witnesses with similar apparent interests. In evaluating the testimony of each
witness, I rely specifically upon his or her demeanor and have made my
findings accordingly. And while apart from considerations of demeanor, I
have taken into account the above-noted credibility considerations, my
failure to detail each of these is not to be deemed a failure on my part to
have fully considered it. Bishop and Malco, Inc., 159 NLRB 1159, 1161
(1966).
evidence, between the Union and Respondent took place
wherein the Union requested Respondent to bargain and
Respondent refused. Respondent concedes that it has
refused to comply with the Board's Order pending the
outcome of enforcement proceedings in the United States
Third Circuit Court of Appeals. 5
The intransigence of Respondent caused the Union to
call a strike. Picketing began on July 12. On August 23 and
24, about 125 of the approximately 300 production and
maintenance employees returned to work and Respondent
resumed production. The strike ended on September 9
when it was called off by Jesse G. Young, Grand Lodge
representative of the Union. Young also, at that time, made
an offer on behalf of the employees to return to work and
the employees began to return to work on the following
Monday, September 13.
2. Discharge of Thomas Lewis
On the day that the strike began, July 12, a consent
decree was entered into in the Court of Common Pleas of
Bedford County, Pennsylvania, which, inter alia, enjoined
the Union from:
Picketing other than lawfully and peacefully, and from
interfering in any manner with ingress to or egress from
Plaintiff's Bedford location. In no event should there be
more than three pickets, ten feet apart, at any entrance
or exit to the said location, except the RR siding which
shall not have more than one picket.
Lewis was a picket line captain, normally on the noon-to-
6 p.m. shift. According to his testimony, he was advised by
State Trooper Stevens about 4 p.m., on the afternoon of
August 23, that the three pickets were to be stationary at
10-foot intervals to be "legally picketing." Thereupon,
Lewis measured and marked the center of the driveway at
the main gate where the picket line had been established.
He then measured and marked 10 feet to each side of the
center mark for the location of the other two pickets. Lewis
instructed the pickets to remain stationary at those loca-
tions and not to patrol.
The following morning, shortly before 6:30 a.m., Young
arrived at the main gate where he was advised that the
pickets had been told by the state police that the three
pickets were to be stationary at 10-foot intervals. The
pickets at this time were Eugene T. Will, James Hillegas,
and Lewis. These three pickets were stationed by Young
with Hillegas in the center; Lewis and Will were about II
feet from him on either side. All were about 4 feet into the
driveway off the public road. Entering the driveway from
I The original complaint was amended at the hearing to reflect the
following corrections in paragraph 5 as to spelling and job title: James
Beland; Terry Voithofer, Assistant Marketing Manager. Further, par. I I(a)
of the consolidated complaint was amended to read, "All employees without
exception . . ."
4 Hedstrom Comprany, a subsidiary of Brown Group, Inc., 223 NLRB 1409
(1976).
5 Such pendency does not, however, preclude disposition of the issues
raised in the instant complaint by the Administrative Law Judge. The court
decided the case on July 5, 1977 (558 F.2d 1 137), and the impact of that
decision on the instant case is treated below.
1202
HEDSTROM COMPANY
the public road, Lewis was on the right, Will on the left,
and Hillegas in the middle.
About 7:30 a.m., E. L. Ketcham, president of Respon-
dent, made a right turn into the driveway from the public
road. He came into the space between Lewis and Hillegas.
As he passed Lewis, at a slow rate of speed, he heard a
thump on the right hand side of the car and put on his
brakes. Lewis then came to the rear of the car and
screamed at Ketcham to "get out of that car you, you big
prick, or I'll kick the shit out of you, you big prick, come
on, come on." Ketcham then resumed the movement with
the car into the Employer's parking lot and upon examin-
ing the car saw that the mirror, which had been mounted
on a swivel, had been flattened up against the side of the
car.
At the time that Ketcham came through the driveway,
there were several company officials present located sever-
al feet behind the pickets in the driveway. They were there
to assist in facilitating the flow of traffic and otherwise to
protect the interests of the Employer. Among these were
Terry Voithofer, assistant marketing manager, and Armas
Jarvela, presently retired, who at that time was superinten-
dent of the toy division.
After the incident which Jarvela had witnessed, he told
Lewis that he (Lewis) had created the incident by stepping
into Ketcham's car causing contact with the vehicle.
Thereupon Lewis turned to Jarvela and said, "I'm going to
get you, Red. I'm going to kill you." Jarvela asked if he was
being threatened and Lewis, taking two or three steps in
Jarvela's direction, reiterated, "I will get you, Red. I will
kill you."
Voithofer testified that Lewis moved or leaned into
Ketcham's car and he heard a loud bang on the side of the
vehicle. Voithofer substantially corroborated the testimony
of Ketcham and Jarvela with respect to the statements
made by Lewis.
A short time after Ketcham came through the picket line
a pickup truck driven by James Beland, machine shop
foreman, turned into the driveway. Fred Gardner, quality
control manager, was a passenger in the front seat. Beland
approached the driveway at a slow rate of speed from the
same direction as Ketcham. Lewis was on the right of his
truck. As Beland drove slowly pass Lewis, Lewis made
bodily contact with the side of the truck at the left front
and rear. Glenda Mallow, timekeeper, testified that she was
in the car immediately following Beland's truck and saw
Lewis kick the truck as it passed through. Gardner also
testified that he had an unobstructed view of Lewis as he
kicked the right rear fender of the truck. The testimony of
Gardner and Mallow that Lewis kicked Beland's fender is
corroborated by testimony of Terry Ackland, plant con-
troller, who observed the incident from inside the office
building about 150 feet away.
Shortly after the Beland incident, Robert LeGros, fore-
man in the heat seal department came into the driveway in
a station wagon. LeGros testified that as he came into the
driveway, Lewis was in front of his station wagon. He
6 Any justification for remaining stationary because of orders from the
state police is also misplaced. Even assuming that the state police did ask the
pickets to be stationary, it would have been unreasonable for Lewis to
interpret such a request as an order to remain immobile so as to permit
himself to be struck by autos. In any event it cannot be argued that any such
slowed down and stopped until Lewis passed to the right
front of the station wagon. LeGros heard something strike
the station wagon. After this he started again and drove to
the plant parking lot.
Lewis testified that the vehicles of Ketcham, Beland, and
LeGros were driven so as to make contact with him as he
remained positioned at his location on the picket line. The
substance of his testimony was that he did not cause the
contact himself. Several of the pickets, as well as Young,
testified in basically the same fashion as Lewis. However,
based upon the credibility criteria set forth above and
because Respondent's witnesses had a better view of these
incidents, I credit the testimony of Respondent's witnesses
to the effect that Lewis did cause the contact with the
vehicles as they came into the driveway, It strains credulity
beyond reasonable limits to conclude that Lewis could not
have avoided contact with these vehicles.6
Sometime later on the same morning between 8 and 9
a.m., Ketcham had a meeting with management officials
including Beland, LeGros, Jarvela, William E. Griffiths,
general superintendent, and John Sherer, director of
employee relations. After a discussion of the above-noted
incidents, Ketcham decided to discharge Lewis.
3. Discharge of Rena Ritchey
Rena Ritchey, a 10-year employee, was a striker and a
union member who picketed regularly at Respondent's
premises.
On Friday, September 10, after the strike was called off,
Ritchey received a telephone call from Olavi Oja, an
analyst in the engineering department. Oja was making
calls on behalf of Respondent from a typewritten, alpha-
betical list in order to determine whether or not the striking
employees desired to return to work. Ritchey told Oja that
she intended to return. He then read to her the following
prepared statement:
The Company will be in touch with you by phone at
this number to let you know when you are to report to
work, as soon as we have established our production
plan and schedule and have our materials ready. Please
do not come to work until we call you back on your
reporting time. In the meantime, please listen to your
radio and read the Bedford Gazette for public an-
nouncements by the HEDSTROM COMPANY.
Thank you.
During this same conversation Ritchey also told Oja that
she might be going away for a day or 2 and gave him the
telephone number of a friend through whom she could be
contacted. Oja made a notation on the typewritten list to
the effect that Ritchey planned to return to work and listed
the telephone number given to him by Ritchey along with
the notation "if not home call 839-2474 this weekend."
Ritchey denies referring only to the "weekend," stating
only that she might be going away inasmuch as she did not
order to remain stationary was in effect at the time of the incidents
described above since Young concedes that shortly after he arrived on the
picket line about 6:30 a.m. on August 24, and before the first car came
through the picket line, State Trooper Stevens told him that the first picket
who did not move out of the way of a car would be arrested.
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know what the production situation was at Hedstrom. In
this regard I credit Ritchey despite Oja's notation. It is
more reasonable to conclude that she would stay until the
hiring situation was clarified with the Respondent. In fact,
she did not leave until after the weekend when the hiring
situation was clarified, at least substantially, on Monday,
September 13, as set out below.
Oja testified that he brought the list to Sherer on
Saturday, September 11, and explained the notations to
him.
On Monday, September 13, about 7 a.m., some 50
employees including Ritchey, gathered at the Employer's
parking lot. Griffiths and Sherer spoke to them concerning
their return to work. Griffiths read off a list of employees to
return that day and told the rest, including Ritchey, that
they would be contacted as needed.
After this meeting, Ritchey went home and left Bedford
about noon to visit relatives in New Jersey. She called her
friend Nancy Gates to advise her of these plans. Gates was
already in possession of the telephone number of Ritchey's
brother where she would be visiting.
On the same morning of September 13, Jack Faust,
personnel manager, called Ritchey at her home. Her son
Wayne took the call in her absence. Wayne advised Faust
that his mother was not at home.
On Tuesday morning, September 14, Faust again called
Ritchey's home, this time speaking to another son, William,
who told him that she was out of town. While Faust and
the sons disagree as to whether any messages were left for
her to return to work, I do not deem a finding thereon
necessary to the disposition of the issue where it is
undisputed that Ritchey herself was unaware that anyone
from Hedstrom had called her until she returned from the
trip on Thursday, September 16.
On Tuesday, September 14, Sherer wrote a certified letter
to Ritchey stating:
On Monday, September 13, 1976, we made a telephone
call to your residence and left a message that you
should return to work on Tuesday, September 14, 1976,
at 7:00 A.M. and to report to the Shipping Department
for a meeting prior to the start of work.
You did not report for work on Tuesday, September 14,
1976, and failed to notify us.
Please be advised that if you do not report for work by
Thursday, September 16, 1976, your employment with
HEDSTROM COMPANY will be terminated.
On Friday, September 17, also by certified mail, Sherer
wrote to Ritchey as follows:
By letter dated September 14, 1976, we advised you
that if you failed to report for work by Thursday,
September 16, 1976, your employment with HED-
STROM would be terminated.
Since you did not report for work as requested your
termination has been made effective this date.
Ritchey returned to Bedford about 5 p.m., on September
16. That evening she was told by her son that Hedstrom
had been trying to contact her.
On Friday, September 17, Ritchey called the Employer
and spoke to Faust and Sherer who read her the September
14 letter which she had not yet received. On this day she
also spoke to Griffiths who agreed to reconsider her
discharge, however, to date she remains discharged pursu-
ant to the final letter. Ritchey received both letters on
Saturday, September 18.
Ritchey's job was not filled at the time she called
Respondent on September 17. The parties stipulated that
there was no permanent replacement hired or assigned to
her job prior to September 20.
4. Erma England: Imposition of more onerous
conditions and reducing wages
a. More onerous conditions
Prior to the strike, Erma England had worked for 10
years as an airpress operator in the fiber department. Her
supervisor, before and after the strike, was and is Thomas
Ickes, who supervised the wood shop and fiber depart-
ments.
As noted above, the strike ended on September 9 and the
recall of employees began September 13. England was
recalled on September 14. However, she was returned to a
sanding machine instead of her normal airpress machine.
She did not refuse or complain about the assignment. On
September 15 she was returned to the airpress operation on
a permanent basis.
Ickes testified that the airpress machines were not
operating on September 14 because there was still an
imbalance in production which resulted in overproduction
on the airpressers while they were running behind in the
sanding operation and this was why England was assigned
to the sander.
England testified that she is allergic to dust, sulfur drugs,
and some foods. In 1974, she complained about dusty
conditions because of the sanding machine which is
located some 30 feet from her work area, and the situation
was corrected by attaching a dust catcher to the sander.
England concedes that the dust catcher "is effective."
Nonetheless, England testified that this single day of work
on the sander caused her to have nosebleeds, which
occurred thereafter. However, no medical documentation
was offered to support this conclusion and England
concedes that there has been no dust problem at her
airpress machine since she returned after the strike.
b. Wage reduction
The airpress operated by England has two settings.
About two or three times a week, it is necessary to readjust
the settings to accomodate a different size of stock. Ickes
testified that the adjustment takes about 15 minutes;
England, that it took about a half hour. It is undisputed
that before the strike Ickes made the adjustments for her
and that he did not make them for any other airpress
1204
HEDSTROM COMPANY
operators. It is also undisputed that after the strike ended
he did not continue to make these adjustments for her. 7
According to Ickes, he had received complaints about the
preferential treatment accorded to England and so he
discontinued it and required her to make her own adjust-
ments. Ickes also testified that the loss of an experienced
worker left him with less time. Respondent's records
indicate that England's average hourly wage was 5.238 per
hour during the 4-week period before the strike and 5.380
during the 4-week period after the strike.
5. Allegations of coercion as to Clark Ferguson
Delores Casteel, a 10-year employee of Respondent who
had participated in the strike, was a member of the union
bargaining committee. On the night of September 10,
Casteel was in the Carriage House Bar in Bedford.
Ferguson, a foreman in the chroming department, came
into the bar at 1:20 a.m. with a friend, Joyce Bowser.
Ferguson had been drinking and admits to having con-
sumed at least six drinks before arriving. According to
Casteel he called her a scab and concerning the prospective
return of striking employees on Monday, September 13,
said to her, "If I'd be you, I'd be ashamed to; and,
furthermore, you have no job." Casteel further testified
that Ferguson said, "What did you gain out there on the
line, just .... Young didn't do a damn thing for you, and
you'll never get a contract."
Ferguson admits having imbibed freely on the night in
question and that he was at the Carriage House exchanging
words, even vulgarities, with Casteel, but tie denies having
threatened her employment or saying that the Employer
would never sign a contract with the Union. However,
based on the above-noted credibility criteria, I credit
Casteel's version of the event.
6. Rena Ritchey: Interrogation and solicitation of
grievances
On September 4, about 3 p.m., Ritchey was located at the
picket line inside the union tent at the Employer's shipping
gate. Ritchey was visible through the mesh covering.
Griffiths came into the tent and according to Ritchey said,
"I hear you're having a Union meeting Tuesday night."
Ritchey replied affirmatively, and Griffiths asked, "Do you
know what it's about?" and Ritchey replied negatively.
Griffiths asked what her problem was in the factory,
whether or not it was the foremen, and Ritchey replied,
"Well, partially, but not really." Ritchey complained that
there was no one to take personal problems to and Griffiths
replied, "Well, I think you will like our new personnel. It
will be handled differently." Ritchey mentioned the pen-
sion plan as being inadequate and Griffiths told her that
she probably did not understand it and went into a
description of the plan.
Griffiths testified that he went to the tent at Ritchey's
invitation and that there was a sign in the tent announcing
a union meeting on September 7. According to Griffiths, he
said, "I see you're having a union meeting on Tuesday
evening" and further, with respect to the meeting, "I hope
7 Making adjustments to the machines appears to be contemplated bq
the machine operator's job description.
you can resolve these issues so that we can all get back to
work." Also, "I'm surprised to see you out here." He
concedes that he asked her what her problems had been
and that there was a discussion concerning the personnel
office, the serviceman in her department, and the Employ-
er's pension and profit-sharing plan. Based upon the
credibility factors noted above I credit Ritchey's version of
the conversation to the extent that they are not consistent.
7. Larry Ickes: Impression of surveillance;
suggesting and offering assistance in resigning from
the Union
On September 5, Larry Ickes, a striking employee, called
Griffiths at his home. Because of personal financial
considerations, Ickes asked Griffiths if he could return to
work. According to Ickes, he told Griffiths that he had
heard there was a union fine. Griffiths replied that one way
to avoid a union fine for returning to work was to resign
from the Union and that this was his free choice and would
not affect his right to return to work.
On September 7, a union meeting concerning the strike
was held and on September 8 Ickes returned to work.
According to Ickes, about 8 or 9 a.m., on September 8,
Griffiths came by, and after welcoming him, said, "Well,
how did the meeting go?" Ickes did not respond. There-
upon, Griffiths said, "Well, I know you was there . . .
because you're supposed to report yesterday and I knowed
the meeting was supposed to have been last night."
Griffiths also added, "Well, I know a couple of guys at the
meeting that didn't want to come back until there was a
contract signed." Ickes further testified that Griffiths told
him if he would like to resign he could, and that there was a
copy of a letter up in the Employer's office; that he could
get a copy of it, sign it, and send it registered mail to Jessie
Young. Ickes replied that he did not want to sign anything
at that time.
Griffiths testified, with respect to the September 5
telephone call, that Ickes initiated the discussion of union
fines. When Ickes voiced the probability of a union fine,
Griffiths told him that he had been advised by Employer's
counsel that he could resign from the Union, but that this
was not a condition of his return to work with the
Employer. Ickes was to return to work on September 6 (the
Employer was operating even though it was Labor Day),
but he did not report until September 8 after the union
meeting on September 7.
Upon his return, on September 8, according to Griffiths,
he told Ickes that he missed him on Monday and Tuesday
and that he guessed the reason for the delay was Ickes
desire to wait for the union meeting on September 7, so
that he could "avoid the embarassment of being called a
scab." Griffiths had been made aware of the union meeting
in various ways, including a telephone conversation with
Robert Verbal, a union committeeman. Griffiths denied
telling Ickes that form letters were available for resignation
from the Union.
Based upon the credibility formula set forth above, I
credit Griffiths' version of these conversations.
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Erma England: Threats of more onerous
working conditions
As noted above, Erma England returned to work on
September 14. About 8 or 9 a.m., Ketcham approached
her. According to England, he told her that she was a very
vulgar person and that he was surprised that she wanted to
come back. Ketcham told her that there had been a lot of
hard feelings and she agreed. According to England,
Ketcham also told her not to leave her machine at any time
and that she would be watched very carefully. Ketcham
testified that on September 14, with the return of the
striking employees, he was making a tour of the plant
because he was concerned about the "volatility of the
situation inside the plant as a result of the strike ending."
He spoke to England and asked her if she had heard the
reiteration of the work rules that morning. She said she had
and wanted to know why. Ketcham told her that it was a
volatile situation and he wanted to make sure she under-
stood the rules because during the strike she had a very foul
mouth and feelings were running high in the plant. When
she protested, Ketcham said, "Look. I just wanted to make
sure that you understand the seriousness of the situation."
She reiterated the fact that she did not curse or swear, and
Ketcham said, "Look. Would you please be quiet and
listen to me? Because you are in a area that there are a few
people who have been on strike, and you've harassed an
awful a lot of these people; and their feelings are running
awfully high, and I want you to stay in your work area. Do
you understand." Ketcham concedes that he reiterated the
work rules to her with particular emphasis on staying put
and then left. Viewed in the light of the credibility factors
noted above, I conclude that Ketcham's version of the
conversations is the more credible.
9. Unilateral promulgation of work rules
On September 13, the first day that employees began
returning to work after the strike, Respondent posted, at
various locations on the premises, notices to employees
containing various work rules. In addition, these notices
were read to groups of employees. These notices contained,
inter alia, three work rules, noted below, which the General
Counsel contends were illegal as unilaterally promulgated.
First, that portion of the rules reading:
All employees without exception must be at their
assigned work stations except for:
(a) Authorized rest periods
(b) lunch period
(c) Personal needs when permission has been requested
of and granted by your supervisor.
Second, the posting of rules requiring that all first shift
employees no longer take coffee breaks at the same time.
Third, that no employee may be on plant premises 5
minutes after quitting time unless otherwise instructed by
his supervisor.
Certain portions of the booklet entitled "Employees
Manual" instituted in 1966, contained references to these
s This conclusion is, of course, based upon the Board's bargaining order
and depends upon the ultimate disposition of the bargaining order issue
pursuant to the court's remand. (See fn. I 1, infra.)
matters, under the captions, seriatim; working hours, rest
periods, and plant premises.
B. Analysis and Discussion
1. The strike
I conclude that the strike in the instant case was an
unfair labor practice strike since it was caused by Respon-
dent's refusal to bargain with the Union pursuant to the
Board's Order. The strikers therefore are unfair labor
strikers, entitled to the legal protection afforded them
because of their status as such.8
2. Lewis' discharge
As noted above, I conclude that Lewis was himself
responsible for whatever contact his body made with the
vehicles in the above-described incidents. This perfor-
mance was accompanied by threats to both Ketcham and
Jarvela. However, this misconduct was not, in my opinion,
so serious as to disqualify Lewis from further employment
with Respondent.
A review of applicable precedent discloses that while
neither the Board nor the courts condone picket line
misconduct, there are levels of misconduct which are
viewed as tolerable, and which do not justify an employer's
refusal to reinstate. This acceptable or tolerable "quantum"
increases in situations like the instant case, where the
strikers are unfair labor practice strikers. That is to say, the
misconduct of the strikers is balanced against the unfair
labor practices of the employer in deciding whether or not
the misconduct justifies the employer's refusal to reinstate.
Coronet Casuals, Inc., 207 NLRB 304 (1973).
In evaluating Lewis' misconduct there are certain miti-
gating factors. A review of the facts shows that all of the
misconduct chargeable to Lewis took place on a single day
within a relatively short timespan in the early morning. No
other misconduct has been alleged as attributable to Lewis.
These incidents occurred on August 24. The record
indicates that from the time the strike began on July 12,
until August 23, the strike had been effective to the extent
that there was no production at the plant. On August 24,
the strike was "broken" by the return of some 125
employees. Thus, it was on the morning of the first day that
employees crossed the picket line that these incidents
occurred.
Further, it is my opinion with respect to the nature of the
remarks themselves that they were not intended by Lewis
to be taken seriously. They were essentially outbursts born
of frustration, unaccompanied by any acts of physical
misconduct, either at that time or at any later time.
On the other hand, it is clear from the record that the
strike was caused by Respondent's unfair labor practice in
refusing to bargain with the Union pursuant to an Order of
the National Labor Relations Board. Were it not for this
unfair labor practice, the strike would not have taken place
since he presumably would have been working as an
employee while the Union and Respondent engaged in
bona fide collective bargaining.
1206
HEDSTROM COMPANY
In these circumstances, I conclude that Lewis' miscon-
duct was not so serious as to disqualify him from
reinstatement. Valley Oil Co., 210 NLRB 370 (1974).
3. Ritchey's discharge
The credited version of the facts herein disclose that
Ritchey advised the Respondent that she intended to work
after the strike but might be out of town for a few days,
giving the telephone number of a friend through whom she
could be reached. Thereafter, on Monday, September 13,
she went to the plant and was told that she would be
contacted as production resumed and employees were
called back. On this day about noon, she began a trip from
which she returned on Thursday, September 16. Nothing in
the record indicates that Respondent made any attempt to
reach her at the number she had left with them.
By certified letter dated and mailed September 14, she
was told that if she did not return to work by September 16
she would be terminated and she was discharged by letter
dated September 17.
As noted above, the strike was an unfair labor practice
strike and therefore all strikers, including Ritchey, are
unfair labor practice strikers. She is entitled, as a matter of
law, to reinstatement. She is also entitled to a valid
unconditional offer of reinstatement which includes a
reasonable time within which to report. From the facts of
the instant case, I do not deem the notice provided in the
September 14 letter adequate, even though she had indicat-
ed her intention to return to work and had accepted
Respondent's offer of reinstatement on September 10.
Seminole Asphalt Refining, Inc., 225 NLRB 1202 (1976).
In this regard, I note that Respondent was not resuming
full production immediately and probably would not for at
least several days. Further, that Ritchey had advised
Respondent of her plans to be away and had provided a
telephone number through which she could have been
contacted. No effort was made, so far as the record reveals,
to contact her at that number, and Ritchey did in fact
contact Respondent the day following her return. The facts
do not, as urged by Respondent, constitute a waiver by
Ritchey of her right to reinstatement. In my opinion,
Respondent's notice to Ritchey was inadequate and her
termination illegal.9
4. Erma England: Imposition of more onerous
working conditions and reductions in wages
a. Imposition of more onerous working conditions
The General Counsel contends that the assignment of
England to the sanding machine operation for a single day,
on September 14, the first day she returned to work after
the strike was discriminatory.
Respondent, on the other hand argues that she was
assigned to the sander for the day because the airpress, her
normal machine, was not in operation that day. It is
undisputed that the airpress machines did not operate on
September 14. It is also undisputed that on September 15
9 Respondent's reliance on a company rule providing for termination
upon failure to return to work from a layoff within 3 working days after
request is misplaced. The rules governing the reinstatement of unfair labor
she was returned to her prestrike job permanently. Respon-
dent takes the position that this temporary assignment was
necessitated by production imbalances while production
returned to normal. In my opinion, the facts lend more
support to Respondent than the General Counsel as to
motivation. In summary, I am not satisfied on these facts
that the sanding job either was more onerous or, assuming
that it was, that the I-day assignment was made for
discriminatory considerations.
b. Reduction in wages
The General Counsel contends that England's wages
were reduced because of her union activity. According to
the General Counsel, this was accomplished when Ickes, a
supervisor, discontinued making certain adjustments to her
machine, thus requiring England to make them herself.
The facts disclose that before the strike, airpress opera-
tors all made their own adjustments with the exception of
England. After the strike, Ickes discontinued making the
adjustments for her, citing dissatisfaction on the part of the
operators for whom the work was not done, and the loss of
an experienced worker during the strike which left him
with less time for such matters.
In my opinion, Respondent's conduct was not discrimi-
natory. England was asked only to do what had been
required of all the airpress operators; a requirement which
her job description appears to contemplate.
Moreover, even assuming that the refusal to continue
making the adjustments was motivated by antiunion
considerations, the fact of discrimination, i.e., a reduction
in wages, has not been established. In fact, Respondent
introduced figures which were not controverted by the
General Counsel, showing that she suffered no financial
losses at all, and in fact made more money after the strike
than she did before. Accordingly, I conclude that the
General Counsel has not shown that England's wages were
discriminatorily reduced and I shall recommend that the
allegation be dismissed.
5. Allegations of coercion as to Clark Ferguson
As noted above, I conclude that Ferguson made the
remarks as alleged by the General Counsel. Respondent,
however, argues that even assuming that Ferguson made
the statements, no finding of coercion can be based
thereon, because, inter alia, Ferguson was not Casteel's
supervisor, and was without disciplinary authority over her.
Nonetheless Ferguson's supervisory status is not disputed
and his remarks are chargeable to Respondent. In summa-
ry, I conclude that the remarks were coercive and that
Respondent thereby violated Section 8(a)( ) of the Act.
6. Rena Ritchey: Interrogation and solicitation of
grievances
Having concluded that Griffiths did ask Ritchey what
the upcoming union meeting was about, I further conclude
that such inquiry exceeded permissible bounds and is
practice strikers are established by Board and court precedent under the
Act.
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercive interrogation within the meaning of Section
8(a)(1) of the Act. Further, Griffiths inquired of her
problems in the plant, with specific attention to her own
foreman. When Ritchey recited her problem, Griffiths
offered assurances that matters would be handled differ-
ently. These remarks are coercive as alleged by the General
Counsel in violation of Section 8(a)(l) of the Act.
7. Larry Ickes: Impression of surveillance;
suggesting and offering assistance in resigning from
the Union
The General Counsel contends that Griffiths conveyed
to Ickes the impression of surveillance as to Ickes' union
activity. I do not agree. It was common knowledge that a
union meeting was upcoming on September 7. Griffiths
had acquired this information from several sources. To
opine to Ickes that his failure to report as arranged was in
order to wait for the union meeting on September 7 so as to
avoid the embarrassment of being called a scab, which is
the testimony I have credited, does not constitute coercion.
Neither do I conclude that Griffiths suggested to Ickes
that he resign from the Union, and offered to assist him
therein. While Griffiths did tell Ickes that he could avoid a
union fine by resigning from the Union, this was not a
suggestion to do so. Nor was his return to work condi-
tioned upon any such resignation, and in fact the opposite
assurances were made to him.
Finally, having credited Griffiths in this regard, I
conclude that he did not offer to assist Ickes in resigning
from the Union.
8. Erma England: Threats of more onerous
working conditions
On the first day of work after the strike ended, on
September 13, there were both striking and nonstriking
employees in the plant. This created a potentially danger-
ous situation and Ketcham had legitimate interest in
reducing the hazard. It is my opinion that his remarks to
England on September 14 were designed to reduce the
possibility of friction in the plant and were not threats to
impose onerous working conditions on her.
9. Unilateral promulgation of work rules
It is undisputed that the work rules were promulgated on
September 13 when the strike ended, as alleged in the
complaint, without notice to the Union. Respondent takes
the position that it merely reiterated certain rules that were
already in existence and contained in its employees'
manual.
With respect to paragraph 1 (a) and (b) of the complaint,
a comparison of the rules in the employees' manual with
the posted rules promulgated when the strike ended makes
it clear that there are obvious and substantial differences.
Clearly their promulgation without notice to the Union
violates Section 8(a)(5) of the Act, where, as here, the
Union has been designated as the lawful collective-bar-
gaining representative of the employees.
With respect to paragraph 1 (c) of the complaint, while it
appears that such a rule is contained in the employees'
manual, I conclude, nevertheless, that the promulgation of
the rule was unlawful since the penalty provisions of the
new rules contained language not present in the rules as
they appear in the employees' manual, to wit:
In accepting employment with the HEDSTROM
COMPANY, each employee agreed to observe work rules
and to work together in a spirit of cooperation. The
following work rules are necessary for safe and busi-
ness-like operation. Failure to observe the rules may
result in disciplinary action, including discharge. [Empha-
sis supplied.]
In these circumstances, the new rule is substantially more
than a simple reiteration of the existing rule.
Further, even if all the work rules in issue were only a
reiteration of previously existing rules, such a reiteration, in
my opinion, would be illegal without notice to the Union in
the circumstances in this case. The timing of the reading,
posting, and promulgation of these rules to employees just
as the strikers returned from an unfair labor practice strike
caused by the Company's refusal to bargain with the
Union convinces me that promulgation of the rules were
designed to circumvent and undermine the lawful bargain-
ing agent of the employees in violation of Section 8(a)(5) of
the Act. Southland Paint Co., 157 NLRB 795 (1966).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with Respondent's opera-
tion described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent discharged Thomas Lewis
and Rena Ritchey for reasons which offended the provi-
sions of Section 8(aXI) and (3) of the Act. I shall therefore
recommend that Respondent make them whole for any loss
of pay which they may have suffered as a result of the
discrimination practiced against them. The backpay pro-
vided for herein shall be computed in accordance with the
Board's formula set forth in F. W Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum computed as described in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
On the basis of the foregoing findings of fact and
conclusions, and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1208
HEDSTROM COMPANY
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging Thomas Lewis and Rena Ritchey,
thereby discriminating in regard to their hire and tenure of
employment, in order to discourage membership in the
Union, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
5. The following employees of Respondent constitute
an appropriate unit for the purpose of collective bargaining
within the meaning of the Act:
All production and maintenance employees including
group leaders, at the Bedford, Pennsylvania, plant of
Hedstrom Company; excluding office clerical employ-
ees, and guards, professional employees and supervi-
sors as defined in the Act.
6. On or about May 17, 1976, the Board issued its
Decision and Order (223 NLRB 1409) ordering Respon-
dent to, inter alia:
Upon request, recognize and bargain with [the Union]
as the exclusive bargaining representative of the em-
ployees in the bargaining unit described above with
respect to wages, hours and other terms and conditions
of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
7. Since on or about May 17, 1976, and all times
thereafter, the Union has requested and is now requesting
Respondent to bargain collectively with it as the exclusive
representative of all employees in the unit described above
with respect to wages, hours, and other terms and condi-
tions of employment.
8. Respondent has failed and refused, and continues to
fail and refuse to bargain collectively with the Union as the
exclusive collective-bargaining representative in the unit
described above, although requested to do so by the Union.
9. From on or about July 12, 1976, until on or about
September 13, 1976, the unit employees described above
ceased work concertedly and engaged in a strike.
10. The strike described above was caused and pro-
longed by Respondent's unfair labor practices in refusing
to bargain with the Union as the exclusive collective-
1' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
11 On July 5, 1977, the U.S. Court of Appeals for the Third Circuit issued
its decision in the above-noted prior related case involving Respondent and
the Union. (558 F.2d 1137.) In its decision, the court states, "For the reasons
stated below we enforce in part and deny enforcement in part; we vacate
that portion of the Board's order which requires the Company to bargain,
and remand this case for proceedings consistent with this opinion." In the
body of its decision, the court concluded, inter alia, that the Board had
bargaining representative of the above-described unit of
employees.
11. Since on or about September 13, 1976, the conclu-
sion of the above strike, Respondent failed and refused and
continues to fail and refuse to bargain collectively with the
Union by unilaterally and without prior notice to the
Union promulgating work rules pertaining to the terms and
conditions of employment of employees in the above unit
in violation of Section 8(a)( I) and (5) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby issue
the following recommended: 10
ORDER"1
Respondent Hedstrom Company, a subsidiary of Brown
Group, Inc., Bedford, Pennsylvania, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge for having
engaged in activity on behalf of the Union.
(b) Telling employees that Respondent would never sign
a contract with the Union.
(c) Interrogating employees concerning their activities on
behalf of the Union.
(d) Soliciting grievances from employees to dissuade
them from engaging in activities on behalf of the Union.
(e) Discharging employees, thereby discriminating in
regard to their hire and tenure of employment in order to
discourage membership in the Union, or any other labor
organization.
(f) Unilaterally and without prior notice to the Union,
promulgating work rules relating to terms and conditions
of employment of employees in the collective-bargaining
unit represented by the Union.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer Thomas Lewis and Rena Ritchey immediate
and full reinstatement to their former jobs or, if they no
longer exist to substantially equivalent jobs, and make
them whole for any loss of pay which they may have
suffered as a result of the discrimination practiced against
them, in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Rescind the plant work rules unilaterally promulgat-
ed on and after September 13, 1976.
failed to explicate its reasons for issuing a bargaining order on a Gissel
theory. N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
My conclusion that the strike was an unfair labor practice strike and the
strikers unfair labor practice strikers is based upon my finding that the strike
was caused by Respondent's refusal to comply with the Board's bargaining
order pending Respondent's appeal to the Third Circuit. The validity of the
bargaining order is again unresolved because of remand.
Obviously, since basic allegations in the instant case depend upon the
ultimate resolution of the underlying Gissel issue, the remedial action
recommended herein must await resolution by the Board of that issue upon
remand. However, despite the remand, it is my opinion that the interests of
administrative efficiency are better served by issuance of the instant
decision at this time.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Upon request, bargain collectively with District No.
98 International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of the
employees in the unit found appropriate herein, with
respect to the rates of pay, wages, hours of employment, or
other terms and conditions of employment, including plant
work rules and, if an understanding is reached, embody
such understanding in a signed statement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this Order.
(e) Post at its facility at Bedford, Pennsylvania, copies of
the attached notice marked "Appendix." 12 Copies of said
12 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's autho-
rized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than as specifically found herein.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1210